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CONSTITUTIONAL LAW OUTLINE

PART I – JUDICIAL POWER

I. CONSTITUTIONAL CONSTRUCTION
A. THE SIX MODALITIES
i. Textual: Argument that considers the words and language of the
text. (ex: First Amendment establishing “preferred” rights –
“Congress shall make no law”)
ii.Historical: Argument that relies upon the intention of the drafters,
the events that produced the provision, or similar kinds of appeals
to history.
iii.Structural: Argument that infers relationships among the entities
set up or recognized by the Constitution and interprets its
provisions accordingly.
iv.Doctrinal: Argument that refers to tradition of received wisdom,
usually to the precedential implications of the Supreme Court’s
decisions; fancy word for “precedent.”
v.Prudential: Argument that depends upon the practical
consequences of differing interpretations, or in other words, a
“policy” argument.
vi.Ethical: Argument that relies on moral or ethical grounds. Differs
from prudential in that prudential emphasizes the consequences of
an interpretation in the practical sense, and ethical argument
emphasizes the rightness-or-wrongness or moral content of the
interpretation.

II. JUDICIAL REVIEW


A. OVERVIEW
i. Const. Art. III, § 1, cl. 1 (Judicial Vesting Power): THE JUDICIAL POWER
OF THE UNITED STATES, SHALL BE VESTED IN ONE SUPREME COURT, AND IN SUCH INFERIOR
COURTS AS THE CONGRESS MAY FROM TIME TO TIME ORDAIN AND ESTABLISH. THE
JUDGES, BOTH OF THE SUPREME AND INFERIOR COURTS, SHALL HOLD THEIR OFFICES DURING
GOOD BEHAVIOUR, AND SHALL, AT STATED TIMES, RECEIVE FOR THEIR SERVICES, A
COMPENSATION, WHICH SHALL NOT BE DIMINISHED DURING THEIR CONTINUANCE IN OFFICE.
ii.Const. Art. III, § 2, cl. 1 (Cases and Controversies): THE JUDICIAL
POWER SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY, ARISING UNDER THIS
CONSTITUTION, THE LAWS OF THE UNITED STATES, AND TREATIES MADE . . .
iii.Const. Art. III, § 2, cl. 2 (Limiting Power of Congress): IN ALL CASES
AFFECTING AMBASSADORS, OTHER PUBLIC MINISTERS AND CONSULS, AND THOSE IN WHICH A
STATE SHALL BE A PARTY, THE SUPREME COURT SHALL HAVE ORIGINAL JURISDICTION.
IN ALL THE OTHER CASES BEFORE MENTIONED, THE SUPREME COURT SHALL HAVE APPELLATE
JURISDICTION, BOTH AS TO LAW AND FACT, WITH SUCH EXCEPTIONS, AND UNDER SUCH
REGULATIONS AS THE CONGRESS SHALL MAKE.

B. REVIEWING AND OVERRULING ACTS OF CONGRESS


i. RULE: Federal Courts have authority under constitution to declare
acts of congress and acts of executive as unconstitutional, and
can strike them down and invalidate them. Thus, the Supreme
Court has the power to review Acts of Congress and determine
their validity against the Constitution.
1. Ex: Marbury v. Madison: The background of the case was a
political struggle between John Admas and the Federalists,
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and his successor Thomas Jefferson and the Republicans.
Just before leaving office, Adams appointed a number of new
judges, including several justices of the peace for the District
of Columbia. Commissions for these justices of the peace
had been signed by Adams, but not yet delivered by the
time he left office. The Jefferson Administration then refused
to honor the appointments for which commissions had not
actually been delivered prior to the end of Adams’ term.
Several of the would be justices, including Marbury,
brought suit directly in the Supreme Court. They
sought a writ of mandamus compelling the delivery of
the commissions. The writ of mandamus action was
brought under the Judiciary Act of 1789, Section 13.
a. Right to Commission: Marshall found that Marbury had
a right to receive his commission.
b. Remedy: The Judiciary Act allowed a mandamus
action; the appropriate cause of action and the
appropriate remedy.
2. Mandamus NOT Allowed: Judiciary Act of 1789 –
Section 13 At Odds with the Constitution: The Act
provided that the Supreme Court has original jurisdiction
over writs of mandamus. The grant of original jurisdiction
was in conflict with Article III, §2 of the Constitution:
a. Const. Art. III, §2, cl. 1 (Cases and Controversies):
THE JUDICIAL POWER SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY,
ARISING UNDER THIS CONSTITUTION, THE LAWS OF THE UNITED
STATES, AND TREATIES MADE…
b. Const. Art. III, § 2, cl. 2: IN ALL CASES AFFECTING AMBASSADORS,
OTHER PUBLIC MINISTERS AND CONSULS, AND THOSE IN WHICH A STATE
SHALL BE PARTY, THE SUPREME COURT SHALL HAVE ORIGINAL
JURISDICTION.
3. HOLDING: Marshall, however, refuses to grant the
mandamus. Allowing the Supreme Court to have
original jurisdiction over this writ of mandamus
action violates the Constitution.
a. Const. Art. III, 2, cl. 2 provides an exhaustive list of
options under which the Supreme Court may exercise
original jurisdiction. In all other cases, the Supreme
Court shall have appellate jurisdiction. Thus, Marshall
relies on the “inclusion of one is the exclusion of
another” argument.
b. Therefore, the Judiciary Act of 1789, Section 13,
providing for original jurisdiction over writs of
mandamus for the Supreme Court is unconstitutional;
not within the scope of the Supreme Court’s power as
provided by the Constitution.
ii.Supremacy of Constitution
1. If the Supreme Court identifies a conflict between a
constitutional provision and a congressional statute, the
Court has the authority (and a duty) to declare the statute
unconstitutional and to refuse to enforce it. (Textual
Argument)
a. Supremacy Clause: Article VI, Section 2: “This
Constitution, and the Laws of the United States which
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shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of
the United States, shall be the supreme Law of the
Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.”
i. The framers of the constitution contemplated
that instrument (the Constitution) as a rule for
the government of courts, as well as of the
legislature.
b. Interpretation of Supreme Court’s jurisdiction under
Article III, Section 2. “The Judicial Power of the United
States is extended to all cases arising under the
Constitution.”
2. Who Interprets? Structural Argument: “It is
emphatically the province and duty of the judicial
department to say what the law is. Those who apply the rule
to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the courts
must decide on the operation of each.”
3. Historical Argument: Framers intended for checks and
balances among the branches of governments.
iii.Could Marshall have avoided the Constitutional issue?: Yes,
could’ve declared lack of jurisdiction, which is generally what most
courts do if there is an implication of an unconstitutional statute.

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Judicial Review Pros and Cons
Pros Cons
Need to act as a check on the Anti-democratic; Counter
other branches to prevent the majoritian: People elect, justices
tyranny of the majority; are lifers and unreviewable.
recognize rights of minority; Every time the Supreme Court
strikes down a statute as
unconstitutional, it is acting
anti-Democratic. All federal
judges have life tenure and are
subject to removal only by
impeachment. Thus, when the
Court strikes down an act of
Congress, “we are confronted
by the fact that the one non-
elective and non-removable
element in the government
rejects the conclusion of the two
elective and removable
branches.”

Judicial expertise; the relatively Abuse of power; judicial


apolitical judiciary will interpret overreaching.
the Constitution to reach these
ends.
Prevents Tyranny of the
Majority.
1. Doctrine of Avoidance: Sometimes, the Supreme Court
may be required to address a constitutional issue, but they
do not decide it, because of the cardinal principle that the
Court will first ascertain whether a construction of the
statute is fairly possible by which the constitutional question
may be avoided. Courts should avoid interpreting a statute
to involve a constitutional issue.

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iv.The Madisonian Dilemma – Reconciling Minority Rights
with Majority Rule: Under our Democracy, majorities generally
are entitled to rule simply because they are majorities. Still
minorities must have some protection. But neither can draw the
dividing line, because doing so would create tyranny by one or the
other. (Solution – See Below)
v.Categories of Cases where Robust Judicial Review is
Favored – United States v. Carolene Products, Co.
1. Judicial review particularly justified when:
a. Clear textual violation;
b. Political branches cannot resolve the issue;
c. Review of statutes directed at “discrete and
insular minorities; in particular, religious,
national, or racial minorities.
vi.The Court’s Political Environment: Separation of Powers,
Independent Duties of Co-ordinate Branches, and the
Problem of Defiance
1. Ex: Cooper v. Aaron: Arkansas state officials claimed that
they were not bound by a federal court desegregation order.
2. Supreme Law of the Land
a. It is the federal judiciary duty to interpret and
determine what is valid under the constitution; not the
State courts. The Supreme Court’s interpretation of
the Constitution is binding on state legislatures and
executive and judicial officers.
b. Supremacy Clause: Federal law trumps State law,
and it is up to the federal courts to determine
constitutionality. Under Article IV of the Constitution,
the Constitution is the law of the land…It follows that
the interpretation of the Fourteenth Amendment
enunciated by this Court in the Brown v. Board of
Education case is the supreme law of the land…
C. CONGRESSIONAL CONTROL OF FEDERAL COURT JURISDICTION
i. Article III itself suggests that Congress may place certain limits
both on: (1) the Supreme Court’s appellate jurisdiction; and
(2) on the jurisdiction of the lower federal courts.
1. Congress can restrict APPELLATE jurisdiction of the
Supreme Court - Art. III, § 2, cl 2: IN ALL THE OTHER CASES BEFORE
MENTIONED, THE SUPREME COURT SHALL HAVE APPELLATE JURISDICTION, BOTH AS
TO LAW AND FACT, WITH SUCH EXCEPTIONS, AND UNDER SUCH REGULATIONS AS
THE CONGRESS SHALL MAKE.
a. Ex Parte McCardle: McCardle was imprisoned by a
military government imposed by Congress. He
brought a habeas corpus action in federal circuit
court, charging the Acts under which he was
convicted as unconstitutional. After the circuit court
rejected his claim, he appealed under a 1867
congressional statute, authorizing the grant of habeas
corpus by federal circuit courts and also authorizing
appeal to the Supreme Court in such cases. After the
Supreme Court listened to oral argument, but before
handing down its decision, Congress passed a law
repealing the portion of the 1867 Act, which allowed
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appeals to the Supreme Court. Thus, Congress
purported to deprive the Supreme Court of its right to
decide the case or any similar case. HELD: The Court
upheld Congress’ restriction of the Court’s
jurisdiction. Under the consitution, the appellate
jurisdiction of the Supreme Court is “conferred with
such exceptions and under such regulations as
Congress shall make.” This was such an exception.
i. NOTE Habeas Corpus: Common Law writ that
says you were withheld unlawfully.
2. Limitations on Congressional Power to Create
Exceptions: Congress does not have unlimited power to
tamper with the Supreme Court’s appellate jurisdiction over
lower federal court decisions.
a. Ex: United States v. Klein: Invalidated a congressional
“exception” to appellate jurisdiction over a class of
cases arising in the then-new federal Court of Claims.
The Court held that the statutory exception violated
separation of powers because it was directed at two
impermissible ends: (1) it impaired the Executive’s
pardoning power; and (2) infringed on the judicial
power because it basically forced the judiciary to
abandon a rule of evidence enunciated in a previous
case.
i. RULE: Any jurisdictional limitation must be
neutral. If a Congressional attempt to limit
appellate jurisdiction unduly interferes with
executive or judicial power, Congress would be
limited in this respect.
b. Ex: United States v. Bitty: In establishing “exceptions”
Congress must have “due regard to all the provisions
of the Constitution.
i. RULE: Congress is further limited if taking
away appellate jurisdiction would violate some
other provision of the Constitution (i.e. Due
Process Clause of the 5th Amendment; Equal
Protection Clause; 1st Amendment; Indiviual
rights in constitution).
1. HYPO: Suppose Congress passed a law
that federal courts, including Supreme
Court, can no longer here cases on
abortion or school prayer.
ii.Supreme Court’s Original Jurisdiction: Congress cannot alter
original jurisdiction of the Supreme Court.
1. See Const. Art. III, § 2, cl. 2
iii.Application to lower federal courts: Congress has the power
to create them and abolish them.
1. See Const. Art. III, § 1, cl. 1

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III. FEDERAL COURT REVIEW OF STATE COURT DECISIONS
A. GENERAL
i. Const. Art. III, § 2, cl. 1 (Cases and Controversies): THE JUDICIAL
POWER SHALL EXTEND TO ALL CASES, IN LAW AND EQUITY, ARISING UNDER THIS
CONSTITUTION, THE LAWS OF THE UNITED STATES, AND TREATIES MADE . .
1. Ex: Martin v. Hunter’s Lessee: During the Revolutionary War,
Virginia confiscated Martin’s land and granted a portion to
Hunter. Hunter sued Martin to eject from property in Virginia
state court. Virginia COA held for Hunter. Supreme Court
reversed and issued mandate directing Virginia court to
enter judgment for Martin. Virginia refused to obey Supreme
Court’s mandate arguing that the appellate power of the
Supreme Court did not extend to the Virginia Court under
the Constitution. HELD: The Court held that the Court could
review the constitutionality of a decision by a state’s
high court.
ii.Rationales for Review of State Court Decisions
1. Textual
a. Article III, 2, cl.1: Since Article II grants the Court
appellate jurisdiction over all cases arising under
the Constitution, the grant must include those that
arise from state courts.
i. “The judicial Power shall extend to all Cases,
in Law and Equity, arising under this
Constitution, the Laws of the United States,
and Treaties made, or which shall be made,
under their Authority…”
b. Article VI Supremacy Clause: No state sovereignty
over Constitutional interpretation; the Constitution
abrogates state sovereignty in a number of important
ways and the Supremacy Clause clearly indicates that
state judges are bound by the Constitution.
2. Policy Arguments
a. Uniformity: It is necessary to have uniformity in
decisions throughout the nation interpreting the
Constitution. This supports compatibility of appellate
jurisdiction over State tribunals.
b. Avoid State Favoritism
iii.Digest of the Constitution (esp. boldface parts): Equal Protection
Clause; Full Faith and Credit Clause; Article II Section; 10th, 12th,
15th, 17th, 19th Amendments.
B. RULES FOR REVIEWING STATE COURT DECISIONS
i. Federal Question: Here, the Supreme Court exercises its
appellate, rather than original jurisdiction. Federal courts can
review state court decisions, but only to the extent there is a
federal question involved.
ii.No Review of State Law Issued: The Supreme Court may
determine whether a state court has reached a decision that is not
in conformity with the Constitution; but it may not review state
court decisions that merely adjudicate questions of state
law.
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iii.Pendent Jurisdiction: If state law question is related to a federal
question, the federal court can have “pendent” jurisdiction over
the state issue.
1. The Refusal to Review Judgments Resting Upon
“Independent and Adequate” State Grounds
(Michigan v. Long – Justice O’Connor): Constitution does
not expressly define jurisdiction over state judgments. The
Court has declined to review state judgments that rest upon
independent and adequate state law grounds.
a. If state courts’ resolution of state law issue resolves
the case anyway, regardless of what the federal court
would say regarding the federal issue, federal court
should decline to take the case due to presence of an
“adequate and independent state ground.”
b. If the four corners of the state court opinion did not
reflect a plain statement of an independent and
adequate state ground for the holding, the Court
would presume that there were no such grounds and
that it has jurisdiction. State courts can avoid this
result by including the requisite plain statement.
iv.Direct Appeals from state courts to Supreme Court: Some
appellate review, only if it is a Federal Issue; same rules apply
when state law is involved.

IV. LIMITS ON JUDICIAL POWER: JUSTICIABILITY


A. GENERAL
i. Const. Art. III, § 2, cl. 1 (Cases and Controversies): See Above.
ii.This section discusses preconditions that must be satisified before
a federal court will adjudicate a lawsuit or constitutional challenge.
The preconditions come from: (1) Article III, §2’s limitation of
federal jurisdiction to “cases and controversies;” and (2) Non-
Constitutional Prudential (discretionary) considerations. Only if
the case satisfies all of these preconditions will the case be
deemed justiciable.
B. NO ADVISORY OPINIONS

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i. An Adivsory Opinion is an opinion that gives advice about
particular legislative or executive action, when no party is
before the court who has suffered or imminently faces specific
injury.
1. RULE: Article III, §2 limits federal jurisdiction to “cases” and
“controversies.” The federal courts are thus prevented from
issuing opinions on abstract or hypothetical opinions.
a. Ex: Muskrat v. United States: In 1902, Congress
distributed to certain individual Cherokkee Indians
lands owned by the Cherokee Tribe. Fearing that the
Act may be unconstitutional, Congress provided in the
Act that four named individuals could file suit against
the U.S. in the U.S. Court of Claims on behalf of all
claimants under the 1902 Act, with a right of appeal
to the Supreme Court. The C.O.C. upheld the
distribution and Muskrat appealed to the Supreme
Court. HELD: By the express terms of the
Constitution, the exercise of judicial power is limited
to “cases” and “controversies,” and the judicial
power is the right to determine actual controversies
arising between adverse litigants, duly instituted in
courts in proper jurisdiction.
b. NOTE: A “case” is a suit instituted according to the
regular course of judicial procedure.
ii.Policy Rationales for No Advisory Opinions
1. Avoid Unchecked judicial power;
a. Structural Argument: Judiciary is a passive branch. It
has to wait before a proper case comes before it; then
and only then, can it rule.
2. Waste of limited judicial resources in deciding a
question that may never arise;
3. Nonzealous advocacy/failure to develop the facts, thus
leading the Court to make an unwise decision; and
4. Collusive Litigation
iii.State Provisions for Advisory Opinions
1. To avoid a “Catch-22” (Passing law without declaration of
constitutionality and unable to obtain a declaration unless it
first passes the law) some states empower the judicial
branch to render advisory opinions on proposed legislation.
c. OTHER PRECONDITIONS OF ADJUDICATION: STANDING
i. A litigant must have “standing to assert his claim,” which means
that he must have a significant stake in the controversy to merit
his being the one to litigate it. Thus, standing ficuses mostly on
the party asserting the claim, whereas the other preconditions of
justiciability focus on the nature of the issue being litigated.
ii.The Current Tests for Standing: Article III and Prudential
Requirements
1. The Supreme Court’s rules on standing are a blend of: (1)
requirements deemed to be imposed by the Article III “case
or controversy” requirement; and (2) prudential or
discretionary requirements (non-constitutional judgments
about what constitutes wise policy on administering the
judiciary).

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a. Consequence: This distinction provides that Congress
is not free to override the Supreme Court as to an
element of standing found within the “case or
controversy” requirement, but it is free to
override the prudential concerns.
2. Article III Requirements: Valley Forge Minimum Test
(Valley Forge Christian College v. Americans United for
Separation of Church and State): The Plaintiff must show:
a. Injury: Some actual or threatened injury, economic or
otherwise;
i. Must be “actual or imminent”: If
threatened, the injury must be imminent and
not conjectural. Thus, if the threatened harm
is too far in the future, or too speculative, this
element will not be satisfied and standing will
not be found.
ii.Can be non-economic: For instance, an
environmental group could allege that federal
de-forestation laws injured “aesthetic and
environmental well-being.”
b. Casual Nexus: The injury must be fairly traceable to
the actions of the governmental defendant (typically a
violation of the Constitution or of a federal statute);
and
c. Redressability: The injury must be redressable by a
decision favorable to the plaintiff or a possibility that
the plaintiff will get relief.
3. Prudential/Discretionary Factors (Association of Data
Processing Organizations v. Camp): Supplementing these
Article III minima are various prudential or discretionary
requirements. Each factor comes armed with exceptions,
the invocation of which often depends upon the Court’s
desire to engage in constitutional lawmaking in a particular
case. The factors include:
a. Personal Legal Rights: The plaintiff must normally
assert personal legal rights, not those of third parties.
i. HYPO: Brashier breaks Kiel’s window. Can
Mulroy sue for the damage? No.
ii.Constitutional Jus Tertii Exception: “On the
part of the third party.” This Exception is
prudential and is merely discretionary.
1. Ex: Court has allowed doctors to sue
abortion regulations on belhalf of their
patients.
b. Concrete and Particularized: The Court usually
refrains from adjudicating questions of wide public
importance that amount to “generalized grievances”
common to all citizens. The Court has never been
willing to hold that the generalized interest of a citizen
in having his government behave constitutionally is
sufficient to permit the litigation. Therefore, the
plaintiff must show that his interest in the
controversy is somehow more direct and

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individualized than that of the citizenry at
large.
c. Zone of Interest: A plaintiff claiming economic
injury, due to governmental action favoring the
plaintiff’s competitors, must normally fall within “the
zone of interests” protected or regulated by the
statutory provision in question.”
iii.Standing Hypo’s
1. Congress passes a law preventing flag burning if the
purpose is to be unpatriotic. Can I sue to enjoin enforcement
of the statute?
a. A: No, I cannot show actual threat or injury. Must be
an actual injury that is existing or is imminent and it
cannot be speculative and conjectural. There must be
a high probability that the injury is likely to take place
soon or are suffering it now.
2. Ripeness Variation: What if you think you might one day
burn a flag in 10 years?
a. A: Non-justiciable because it is not ripe. Could
threaten to burn a flag; then, probably have standing
because it is pretty imminent.
3. Standing/Mootness Hypo: A school allows some groups to
use facilities after hours, but not my group because we’re a
Jewish group. Who has standing?
a. A member of the group that was caused an injury by
not being able to use the school.
b. Possibly a parent of a child in that group, but not
a parent of a child that was not in the student group.
c. What about a parent of a child who was in the group,
but then transferred to another school?
i. No, this issue would be moot!
d. What if the student stays in the school, but graduates
before the case goes to court?
i. As a practical matter, you can substitute
another harmed student for another harmed
student to avoid the mootness issue.
4. Ex: Bender v. Williamsport Area School District: Students
successfully brought suit against members of a school
board. The Court found that one of the members did not
have standing to appeal the judgment because the
judgment against him was in his official capacity, not his
individual capacity.
d. OTHER PRECONDITIONS FOR ADJUDICATION: MOOTNESS
i. A case is not justiciable if it is “moot.” A case is moot if it raised a
justiciable controversy at the time the complaint was filed, but
events occurring after the filing have deprived the litigant of
an ongoing stake in the controversy, thus preventing the Article III
requirements to remain alive during the entire litigation.
1. Ex: A challenged statute expires or is repealed or is
significantly amended pending review, and the only relief
sought is prospective, the Court’s practice has been to
dismiss the case as moot.

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a. NOTE – Ex: Northeastern Florida Chapter of the
Associated General Contractors v. City of Jacksonville:
A Jacksonville ordinance set aside 10% of the City’s
contracts for minority businesses. While challenged on
e.p. grounds, the city repealed the ordinance and
replaced it with another. HELD: The Court rejected
the city’s argument that the case was moot by
holding that the new law, while less racially based,
might still disadvantage contractors.
2. HYPO: P sues D, a state University, claiming that its
admission process is discriminatory. P attends the school
while the case is being litigated. By the time it reaches the
Supreme Court, P is in his last year and the school permits
him to graduate.
ii.Voluntary Cessation by Defendant: If the defendant
voluntarily ceases the conduct about which the plaintiff is
complaining, this will normally not be enough to make the case
moot. The reasoning is that it would not discourage the defendant
from going back to the challenged practice once the case is
mooted.
iii.Voluntary Cessation by the Plaintiff: This will moot the case.
1. NOTE: Adding a claim for monetary damages
(retrospective relief) to claims for prospective relief will be a
means to avoid mootness even if the challenger’s
circumstances would change during the course of litigation.
2. Ex: Arizonans For Official English v. Arizona: AZ passed a
state constitutional provision that the state’s official
language would only be English. A state employee
challenged the provision. While the case was pending
appeal, the employee voluntarily left government
employment. The case is moot.
3. Exception – Capable of Repetition, Yet Avoiding
Review: In some circumstances, a plaintiff’s cessation will
not make a case moot. This often happens with school
issues (Graduating Students) or pregnancy, and other
situations where the cessation is not voluntary or is beyond
the P’s control.
a. Class Actions: One mechanism that has been used
to address this problem is for P’s to file their suit as a
class action, with a fluid group always having rights at
issue.
b. HYPO: P, a pregnant woman, attacks the
constitutionality of a state’s anti-abortion laws. By the
time her case reaches the Supreme Court, P is no
longer pregnant. The case should not be dismissed as
moot. Pregnancy will almost always end before
appeallate review. Moreover, even if P does not
become pregnant again, obviously other woman will.
iv.Mootness Hypo’s
1. What if a parent of student files suit and transfers to another
school prior to trial
a. A: This is a moot point because there is no longer any
injury, so court action is no longer necessary to
redress. If there is a damages claim, then the case
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would not be moot even if he transfers because there
is no prospective injunctive relief.
2. What if the student stays in school but graduates before the
case can be resolved?
a. A: Under the doctrine of “Capable Repition, yet
evading review,” even though a particular P may not
be suffering injury, we know there are other people
that will have the same injury (i.e. other students still
at the school)
3. What if the school pulled their policy the day before trial?
a. A: This is a tricky issue, not 100% consistency.
4. What if student drops his membership in reliegious group?
a. A: MOOT. Voluntary cessation by P will moot the case.
e. OTHER PRECONDITIONS OF ADJUDICATION: RIPENESS
i. The Ripeness Requirement refers to the notion that the claim
has not matured because all conditions or events that must concur
to create the required injury have not yet come into existence. The
issue of Ripeness and Standing somewhat overlap. For example, if
an injury isn’t imminent yet, then the case will not be considered
ripe.
1. HYPO: What if a religious group applies for permission, the
school then dithers, and while they are deciding, the school
group sues.
a. A: The case is not ripe because the group has not
been injured.
ii.Factors in Ripeness Analysis (Sierra Club Case)
1. Whether delayed review would cause hardship to plaintiffs;
2. Whether judicial intervention would improperly interfere with
further administrative action;
3. Whether the court would benefit from further factual
development of the issues presented.
f. THE POLITICAL QUESTION DOCTRINE: AN EXCEPTION/LIMITATION TO JUDICIAL REVIEW
i. Const. Amendment 14, §1 (Equal Protection): … NOR SHALL ANY STATE
DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY WITHOUT DUE PROCESS OF LAW;
NOR DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF ITS LAWS.
ii.Political Question Doctrine: Historically, the Supreme Court
refused to decide issues involving a “political question.” It is not for
a lack of jurisdiction, but rather it would be prudential for the Court
not to intervene in these political matters. The doctrine reflects:
1. Respect for the separation of powers in avoiding
decisions expressly given by the Constitution to the
executive or legislative branches.
2. Some decisions are inappropriate for the judicial function,
because they involve non-judicial discretion or lack of
judicially determinable standards.
3. It encompasses what might be called “prudential”
concerns, or judicial deference as a matter of policy, such
as the avoidance of embarrassment to other branches or of
interference with pronouncements where
consistency/uniformity especially is important.
iii.Political Question Factors from Baker: At least one of these
factors must be present in order to make an issue a non-justiciable

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political question. Each of these factors relates in some way to the
separation of powers:
1. Textually demonstrable constitutional commitment of
the issue to a coordinate political branch (i.e., to
Congress or to the President);
2. Lack of judicially manageable standards for resolving
the issue;
3. Political decision already made: An unusual need for
respect or deference to a political decision already made by
another branch;
4. Need for uniformity among branches
iv.Classic Instances of Political Questions
1. Foreign affairs
a. Ex: Vietnam War
2. What constitutes a “Republican form” of government
a. Ex: Luther v. Borden: The case grew out of a rebellion
by some dissatisfied Rhode Island citizens, and
ultimately required the federal courts to decide which
of the two competing governments was the lawful
government of the state. The claim was based on the
guaranty clause of Art. IV, §4, which guaranteed a
republican form of government. But the Supreme
Court declined to make this determination, concluding
that the case posed a political question because of a
lack of criteria by which a court could determine
which form of government was republican.
3. Apprtionment/Reapportionment: Until Baker, the Court
consistently refused to adjudicate claims concerning
legislative apportionment on the grounds that it presented a
political question.
a. Ex: Baker v. Carr: Challenge to the constitutionality of
reapportionment of districts under the equal
protection clause of the Fourteenth Amendment. In
this instance, a smaller number of the people were
voting for a large number of the representatives. The
votes in the larger districts were thus being diluted.
HELD: The Supreme Court says that the plaintiffs are
being denied equal protection of the law, but the
Court does not immediately grant relief. The
reapportionment question does present a justiciable
question, thus enabling the federal courts to
intervene in and decide said questions. The Court
noted that the constitution did not confer this
question on another branch, no embarrassment would
arise, and that judical equal protection standards are
manageable.
b. The Aftermath of Baker v. Carr: Judicially
Manageable Standard for Apportionment –
Reynolds v. Sims: The Court interpreted the equal
protection clause as requiring apportionment
according to population – a principle that since has
become known as “one person, one vote.” Thus,
there was a “judicially discoverable and manageable
standard” to resolving apportionment questions.
14
v.Political & Racial Gerrymandering: The “one man, one vote”
principle does not say anything about how district lines should be
drawn, and thus, a state legislature could gerrymander the shape
of the districts to dilute the voter’s strength.
1. Political – This type of gerrymandering involves redistricting
schemes that attempt to keep on party in office, while
diluting another parties vote.
a. Ex: Davis v. Bandemer: Democrats alleged that a
Republican majority in the state legislature had
reapportioned the voting districts by a political
gerrymander that violated their right to equal
protection of the laws. HELD: The Court held that
there were indeed judicially discernible and
manageable standards by which political gerrymander
cases may be decided. However, this particular case
is not justiciable because of the parties involved.
b. Ex: Vieth v. Jubelirer (Rejects Bandemer): PA adopted
a congressional redistricting plan, and plaintiffs sued
to enjoin enforcement alleging that it was a political
gerrymandering in violation of Article I and 14th
Amendment Equal Protection Clause. HELD: The
claim is a non-justiciable question.
i. RULE: Political gerrymandering claims are “per
se” non-justiciable questions because no
judicially discernible and manageable
standards for adjudicating such claims
exist.
1. Does not explicitly overrule Bandemer
but states that its standard is
unworkable; rejects the rule. This Court
goes through a number of rules and
rejects each approach as unworkable and
unmanageable. The court notes that the
Miller standard is not sufficient b/c in
Miller they weren’t applying it to a
statewide plan.
ii.Justice Kennedy, however, refused to
foreclose all possibility of judicial relief if some
limited and precise rationale could be found to
review these cases.
1. Racial Gerrymandering cases are considered justiciable.
a. See 15th Amendment.
b. See Miller v. Johnson Below.

PART II – CONGRESSIONAL POWER

I. GENERAL
A. CONSTITUTIONAL PROVISIONS
i. Const. Art. I, § 8 (Enumerated Powers Vested in Congress)
1. Cl.1: The Congress shall have power to lay and collect taxes,
duties, imposts and excises, to pay the debts and provide for
the common defense and general welfare of the United
15
States; but all duties, imposts and excises shall be uniform
throughout the United States;
2. Cl. 2: To borrow money on the credit of the United States;
3. Cl. 3 (Power to Regulate Commerce): To regulate commerce
with foreign nations, and among the several states, and with
the Indian tribes.
ii.Tenth Amendment: The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
B. DOCTRINE OF IMPLIED OR INCIDENTAL POWERS
i. Besides acting under the Constitution’s enumerated powers, the
federal government (especially Congress) may validly exercise
power that is ancillary to one of the powers explicitly listed
in the Constitution, so long as this ancillary power does not
conflict with specific Constitutional prohibitions.
1. This notion is explicitly stated in the “Necessary and
Proper” clause (Art. I, § 8, which states that Congress may
“make all Laws which shall be necessary and proper for
carrying into Execution” the specific legislative granted by
this section, or other parts of the Const.
ii.Ex: McCulloch v. Maryland: Congress chartered the second Bank of
the United States in 1816. The Bank was designed to regulate the
currency and help solve the national economic problems. However,
it soon encountered substantial political opposition mostly as the
result of the Panic of 1818 and corruption within the various
branches of the Bank. As a result, a number of states enacted anti-
Bank measures. Maryland’s anti-Bank statute was at issue.
Maryland imposed a tax upon all banks operating in the state that
were not charted by the state. The measure was intended to
discriminate against the national Bank, and its Maryland branch.
The state then brought suit against the Bank and its cashier
(McCulloch) to collect the tax. HELD: The Supreme Court, per Chief
Justice Marshall, held the tax unconstitutionally invalid. In response
to the following arguments against the federal government’s power
to do things not explicitly enumerated in the constitution, Marshall
rebutted as follows:
1. Enumerated Powers/Implied or Incidental Powers
a. Structual Argument: Marshall turned to the issue of
whether an explicit constituional grant of power (to
charter a bank or corporation) was required. Marshall
concluded that powers could be implied from the
explicit grant of other powers from a
constitution that does not exhaustively list all
powers.
i. “A constituion, to contain an accurate detail of
all the subdivisions of which its great powers
will admit, and of all the means by which they
may be carried into execution, would partake of
a proxlixity of a legal code, and coud scarcely
be embraced by the human mind…We must
never forget that it is a constituion we are
expounding.”
2. Necessary and Proper Clause: Marshall relied upon this
clause as a justification for Congress’ right to create a bank
16
or corporation even though such power was not specifically
granted in the Constitution. He rejected the State’s
contention that “necessary” meant “absolutely necessary”
or “indispensible.” Instead, he stated that “let the end be
legitimate, let it be within the scope of the constitution, and
all means which are appropriate, which are plainly adapted
to that end, which are not prohibited, but consistent with the
letter and spirit of the constitution, are constitutional. (Later
became Rational Basis) Absence some specific reason for
applying hightened scrutiny, we will apply this test: Is what
the government is trying to do legitimate? If so, is the way
they are going about related to the generqla purpose.
a. HOLDING: The act of chartering a bank was valid,
because it bore a reasonable relationship to various
constitutionally enumerated powers of the
government (i.e Lay and collect taxes; to borrow
money; to regulate commerce; to declare and
conduct; to raise navy and army; power to establish
post-offices)
3. The Power to Tax is the Power to Destroy
a. The State tax interfered with the exercise of a valid
federal activity. Thus, it violated the Supremecy
Clause.
b. RULE: State Governments cannot tax federal entities.

I. POWER TO REGULATE COMMERCE


A. GENERAL
i. Const. Art. I, § 8, cl. 3: The Congress shall have Power To regulate
Commerce with foreign Nations, and among the several States,
and with the Indian Tribes. . .
ii.10th Amendment (Reserved Powers to States): The powers not
delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to
the people.
iii.Policy for Strong Commerce Power
1. Avoid discrimination among states that would burden
interstate commerce.

17
2. National Economic Uniformity.
iv.Reasons for Limiting Commerce Power
1. Laboratories of Democracy Argument (O’Conner’s
Dissent in Morrison): Allow states to experiment with
regulating commerce.
2. Protect Indiviudal Liberties: Under Federalism, we need
some sort check on Congress’ power.
a. 10th Amendment
3. Blurring of Power among Federal and State Entities:
May lose political accountability.
b. THE BEGINNING OF CONGRESS’ COMMERCE POWER
i. Marshall’s Broad Interpretation of the Commerce Clause:
Under the clause, a broad baseline of commerce is covered. The
Clause permits Congress to legislate with respect to all “commerce
which concerns more States than one.” Furthermore, Commerce
includes not only buying and selling, but all “commercial
intercourse.”
1. Commerce “Among” the Several States as “That
Commerce that Concerns More States than One” (May
affect intrasate matters): This congressional power to
regulate interstate commerce includes the ability to affect
matters occurring within a state, so long as the activity has
some commercial connection with another state.
a. Ex: A boat leaves in state A, stops in State B, and
ports in State C. It is within Congress’ power to
regulate the entire voyage.
b. Ex: A boat leaves state A, loops into State B, and
finishes in State A. It is still within Congress’ power to
regulate.
2. Congress’ Plenary Power (“Utmost Extent”): No area of
interstate commerce is reserved for state control. “This
power, like all others vested in Congress, is complete in
itself, may be exercised to its utmost extent, and
acknowledges no limitations, other than those prescribed in
the constitution.”
3. Ex: Gibbons v. Ogdon: Ogdon acquired, by grant from the
New York legislature, monopoly rights to operate
steamboats between New York and New Jersey. Gibbons
began operating steamboats between New York and New
Jersey, in violation of Ogden’s monopoly; Gibbons’ boats
were licensed, however, under a federal statute. Ogden
obtained an injunction in a New York court ordering Gibbons
to stop operating his boats in NY waters. HELD: Marshall
found the injunction against Gibbons invalid, on the ground
that it was based upon a monopoly that conflicted with a
valid federal statute, and thus violated the Supremacy
Clause.
C. THE COMMERCE POWER DURING THE “DUAL FEDERALISM” ERA: FROM THE LATE 1800S
TO THE 1930S
i. Economic Regulation: The Supreme Court’s view of economic
regulatory laws from about 1880 to 1937 was characterized by
what has been called “dual federalism” approach. That is, the
Court felt that there were areas of economic life, which, under the
Tenth Amendment, were to be left to state regulation, and other
18
areas of activity which were properly preserved for the federal
government. These two areas were viewed as being essentially
non-overlapping (either an area was proper for state regulation, or
for congressional regulation, but not for both.
i. Close & Substantial Relation: Congress’ power to regulate
commerce includes the right to regulate all matters having such a
close and substantial relation to interstate commerce. The
fact that the activity being regulated is intrastate does not place it
beyond Congress’ control, since the ultimate object is the
protection of interstate commerce and the avoidance of a chilling
effect on commerce resulting from intrastate discrimination.
ii.Current of Commerce Theory: An activity could be regulated
under the commerce power not because it had an effect on
commerce, but rather, because the activity itself could be viewed
as being “in” commerce or as being part of the “current” of
commerce.
1. Ex: The Shreveport Rate Case (Houston, East & West Texas
RY. V. United States): The Interstate Commerce Commission,
after setting rates for transport of goods between
Shreveport, LA and vaious points in TX, sought to prevent
railroads from setting rates for hauls totally within Texas
which were less per mile than the Texas-to-Shrevport rates.
The Commission’s theory was that Shreveport competed
with certain TX cities for shipments from other parts of TX,
and that the lower TX intrastate rates were unfairly
discriminating against the TX-to-Shreveport interstate traffic.
The railroads countered that it was beyond Congress’ power
to control intrastate rates of an interstate carrier. HELD: The
Court upheld the ICC’s right to regulate intrastate charges.
A. THE GREAT DEPRESSION, THE NEW DEAL, AND THE DIRECT-INDIRECT EFFECTS DOCTRINE
i. Following the Great Depression, Congress enacted the National
Industrial Recovery Act of 1933. The Act contained provisions for
minimum wages, maximum hours, collective bargaining, consumer
protection, and industrial codes. In the cases that follow, the Court
had to grapple with the extent of the Commerce Power.
i. Ex: A.L.A.Schecter Poultry Corp. v. United States: At issue in the
case was the validity of the (NIRA), which authorized the President
to adopt “codes of fair competition” for various trades or
industries; the codes regulated such items as minimum wages and
prices, maximum hours, collective bargaining, etc. Schecter was
convicted on charges of violating the the wage and hour provisions
of the NY Metropolitan Code. Although the vast majority of poultry
sold in NY came from other states, Schecter itself bought within NY
city, and resold its stock exclusively to dealers. HELD: The Court
held the NIRA unconstitutional as applied to Schecter.
1. Not in “Current/Flow of Commerce”: Schecter’s
activities were not within the current or stream of commerce
because the interstate transactions ended when the
shipments reached its slaughter-houses invalidaded the
statute. Chickens not in flow of commerce.
2. Not Affecting Commerce: What was required was a direct,
not indirect, effect on commerce. Although Schecter’s wage
and price policies might have forced interstate competitors

19
to lower their own prices, this impact was much too indirect
to allow for congressional control.
ii.Ex: Carter v. Coal: The Court used similar direct-indirect reasoning
to strike down wage and hour regulations promulgated pursuant to
the Bituminous Coal Conservation Act of 1935. HELD: The Act is
unconstitutional. The Court relied on the distinction espoused in
Knight between “production” and “commerce.”
1. Production v. Commerce: Production of coal was being
regulated here and it is a purely local activity, even though
the materials produced would ultimately be sold in interstate
commerce.
2. Direct/Indirect Doctrine: The word direct implies that the
activity or condition invoked or blamed shall operate
proximately – not mediately, remotely, or collaterally – to
produce the effect.
a.Thus, the issue is not the extent of the effect
produced on interstate commerce, but the existence
or non-existence of a direct logical relation/nexus
between the production and the interstate commerce.
Where the effect of intrastate transactions is merely
indirect, such transactions remain within the domain
of state power.
3. Relevance: The Case did not overrule Schecter. Instead, it
added that to determine whether there is a close and
substantial relationship, you need to look to see if there is a
direct or an indirect effect on interstate commerce.
a. Race to the Bottom Crticism: If you leave certain
regulations up to the states, then each state will
compete to have the lowest amount of regulation to
attract more commerce. Thus, these higher standard
will never get enacted.
B. EXPANSION AND BREAKTHROUGH: NATIONAL ECONOMIC PROBLEMS AS OBJECTS OF THE
COMMERCE POWER
i. Beginning with NLRB, the Court began to reject the narrow view of
Schecter by relaxing what Congress could regulate based on its
plenary power.
1. Congress Plenary Power: “The power to regulate
commerce is the power to enact all appropriate legislation
for its protection and advancement…and may be exerted to
protect interstate commerce no matter what the source of
the dangers which threaten it.”
2. Substantial Economic Effect Test: So long as the
regulated activity has a substantial economic effect upon
interstate commerce, that activity falls under Congress’
Commerce Power.
a. Rejects “Cureent of Commerce” theory: If the activity
has a substantial effect on interstate commerce, that
activity may occur before the interstate movement, or
even after the interstate commerce.
ii.Ex: NLRB v. Jones & Laughlin Steel Corp.: This case tested the
constitutionality of the National Labor Relations Act of 1935
(NLRA). The case involved the NLRB’s attempt to prevent Jones &
Laughlin (a large integrated steel producer) from engaging in
“unfair labor practices” by the discriminatory firing of employees
20
for union activity. HELD: The NLRA, as applied to Jones & Laughlin,
lay witing the commerce power. Because of Jones & Laughlin’s
multi-state network (while it only produced steel in PA, it owned
mines in two other states, operated steamboats in another state,
sent 75% of its product out of PA), the Court concluded that a labor
stoppage of the PA intrastate manufacturing operation would have
a substantial effect on interstate commerce. Therefore, labor
relations at the PA plants could be regulated by Congress.
c. EXTENSION OF COMMERCE POWER TO NON-ECONOMIC ACTIVITY & RATIONAL BASIS
REVIEW FOR CONGRESS’ COMMERCE POWER
i. Civil Rights Legislation: The Civil Rights Act of 1964 bans
discrimination in places of public accommodation. It also covers
any establishment which serves interstate travelers, where a
substantial portion of its goods or food is purchased out of state or
has moved in commerce.
ii.Rational Basis Review: When the Court finds that Congress has
a rational basis for finding a chosen regulatory scheme necessary
to the protection of commerce (to regulate areas which have a
substantial effect on interstate commerce), the Act will be upheld.
1. Ex: Katzenback v. McClung: Involved a Birmingham, AL
restaurant called Ollie’s Barbecue. The restaurant was
relatively far from any interstate highway or train or bus
station, and there was no evidence that an appreciable part
of its business was in serving out of state travels. However,
46% of the food purchased by the restaurant during the
previous year had been bought from a supplier who had
brought it from out of state. HELD: The Court upheld the
Act. The Court found that the unavailability of
accommodations dissuaded blacks from traveling in
interstate commerce. The Court applied Rational Basis
review to defer to Congress purpose for passing the Act.
a. NOTE: 14th Amendment – THE CONGRESS SHALL HAVE POWER
TO ENFORCE, BY APPROPRIATE LEGISLATION, THE PROVISIONS OF THIS
ARTICLE.
i. The Concurrence in McClung stated that this
was a better basis for the Court’s finding
because it could prevent litigation on a case by
case basis of whether or not an establishment
comes within the meaning of the Act.
1. However, it is arguable that it would not
apply because there is no state action.
d. CUMULATIVE EFFECT THEORY
i. This other major extension of the Commerce Power provides that
Congress may regulate not only acts which taken alone would
have a substantial effect on interstate commerce, but also an
entire class of acts, if the class has a substantial economic
effect (even though one act within it may have no effect at
all or a trivial effect) on interstate commerce.
1. Ex: Wickard v. Filburn: Involved the Agricultural Adjustment
Act of 1938, which permotted the Secretary of Agriculture to
set quotas on the raising of wheat on every farm in the
country. The Act not only controlled the quotas on wheat
that would be sold interstate or intrastate, but also which
could be consumed on the very farm where it was raised.
21
Wheat raised in excess of the quota was penalized. Filburn,
who grew wheat for home consumption, challenged that the
Act was unconstitutional because this was purely local
activity beyond the scope of federal control. HELD: The
Court upheld the statute.
a. Consumption has market effect: The more wheat that
is consumed on the farm where it is grown, the less
wheat that is brought in commerce (from other
farmers), whether interstate or not.
b. Cumulative Effect: This type of decision taken
together with that of many others similarly situated is
far from trivial because the home grown wheat
competes with the open market. The Court also held
that this regulation is reasonably related to protecting
commerce.
E. THE MODERN “SUBSTANTIAL EFFECT” AND RATIONAL BASIS REVIEW
i. Three Categories that Congress May Regulated Under it Commerce
Power:
1. Use of Channels of Interstate Commerce (roads,
rivers, etc.);
2. Instrumentalities of interstate commerce (airplanes,
phones, etc.) or persons or things IN interstate
commerce (i.e., transportation of any thing or person
across state lines, whether or not done
commercially), even though the threat may come only
from intrastate activities; and
3. Activities which “substantially affect” interstate
commerce.
a. Prong (3) of Lopez Test At Its Weakest When:
i. No congressional findings that there is a
logical nexus to of the activity to interstate
commerce;
1. If there are formal findings that activity
has a substantial affect on interstate
commerce, then this will stregthen case.
ii.Activity regulated is not “commercial”
ii.Rational Basis: It is not whether the Court finds a substantial
effect; it is whether Congress could have had a “rational basis” for
concluding that there was such an effect. Thus, the Court will not
invalidate a statute even ehen it finds no substantial effect, if
Congress found such an effect and was not irrational in doing so.
iii.Preface to Lopez: This case showed that limits still exist on
Congress’ Commerce powers. In Lopez, the Court for the first time
in 60 years invalidated a federal statute on the grounds that it was
beyond Congress’ Commerce Power.
1. Ex: United States v. Lopez: Involved the Gun-Free School
Zones Act of 1990, in which Congress made it a federal
crime “for any individual knowingly to possess a firearm at a
place that the individual knows, or has reasonable cause to
believe, is a school zone.” HELD: The Court struck down the
statute.
a. Substantial Effect: Activity must have a
substantially effect, not just an effect, on Interstate
Commerce.
22
b. Little Connection to Commerce: The criminal
statute by its terms has no connection and nothing to
do with interstate commerce.
c. No Jurisdictional Nexus: The statute does not
ensure, on a case-by-case inquiry, that the firearm
possession in question affects interstate commerce.
Instead, it banned even possession of a gun that had
never traveled in, or even affected, interstate
commerce.
d. No Legislative Findings: The Statute did not
include explicit findings by Congress that the activity
being regulated (possession of guns in schools)
affected commerce.
i. Normally not required to make formal findings
as to the substantial burdens that an activity
has on interstate commerce, but without them,
the Court has trouble sustaining proported
legislative judgment that such activity
substantially affects interstate commerce.
e. Not Commercial: The Court thought that the activity
being regulated was not itself commercial activity.
i. Cumulative Effect: The Court distinguishes
Lopez from Wickard saying that the activity in
Wickard involved economic activity in a way
that the possession of a gun in a school zone
does not. Furthermore, the regulation here was
not apart of a larger economic activity in which
the regulatory scheme could be undercut
unless the intrastate activity were regulated.
f. Building Inference upon Inference: The
Government asserted that gun possession in schools
does have a substantial effect on commerce because
guns in school creates crime which in turn (1) affects
the national economy by (a) crime reduces individuals
willingness to travel across state lines to unsafe
locations; (b) violent crime in schools reduces the
schools’ ability to educate their students, who thus
become less economically productive.
i. The Court rejected these. Specifically, (b) was
rejected because it meant that Congress could
regulate any activity it found related to
economic productivity (i.e. family law (divorce,
child custody)) Also, they thought that under
this rationale, things like a federal mandated
curriculum and child rearing could be said to
have a substantial effect on interstate. The
Court was not willing to “place inference upon
inference in a manner that would bid fair to
convert congressional authority under the
Commerce Clause to a general police power of
the sort retained by the States.”
iv.Ex: U.S. v. Morrison: Involved was the Violence Against Women
Act of 1994 which gave a victime of gender motivated crime a civil

23
action claim. HELD: The Act was beyond Congress’ Commerce
Power.
1. Economic Activity: The Court relied principally on the fact
that the activity being regulated was essentially non-
economic. Thus, the substantial effect prong of the Lopez
test did not apply and the regulation could not be saved.
v.Regulation of non-commercial activity as part of broad
regulation of commercial activity: Conversely, when Congress
is engaged in a broad regulation of a commercial activity, it may
regulate purely non-commericial and intrastate instances of that
activity, if it reasonably believes that failure to regulate these
instances would jeopardize the success of the overall regulatory
scheme.
1. Ex: Gonzales v. Raich: Congress, through the Controlled
Substances Act, made it a crime to manufacture, distribute,
or possess marijuana. California approved a proposition
which established an exemption from criminal prosecution
for the use of marijuana for medicinal purposes. The two P’s
claimed that Congress did not have the power under the
Commerce Clause to do this. HELD: Congress’ Commerce
power includes the right to regulate even the purely
intrastate and noncommercial cultivation of marijuana.
a. Reliance on Wickard: Congress can regulate purely
intrasate activity that is not itself “commercial,” in
that it is not produced for sale, if it concludes that
failure to regulate that class of activity would
undercut the regulation of the interstate market in
that commodity.
i. Thus, Congress, in passing the CSA, rationally
believed that if cultivation of home-grown
marijuana were permitted for medicinal
consumption, the high demand in the interstate
market would draw that home-grown marijuana
into interstate market, frustrating Congress’
purpose of banning interstate commerce in
marijuana.
2. Commercial Transaction: Thus, where the transaction being
reglated is itself clearly an economic or commercial one, the
Court will probably allow Congress to regulate it. Even if in it
completely intrastate, as long as it’s part of a class that, in
the aggragate, substantially affects interstate commerce,
Congress can regulate.
3. Non-Commercial: The Court will not regard the impact of the
activity on interstate commerce as being suffient and thus
less likely to permit Commerce to regulate.
a. NOTE: If not commercial, then government should put
in a jurisdictional nexus.
f. THE LOCHNER ERA
i. Represents a line of Supreme Court cases from 1900 to 1939 in
which a very conservative Court struck down attempts of the
government intervening with commerce. In a majority of these
cases, when federal regulation of economy was involved, The Court
held that the regulation was beyond Congress’ commerce power.
Additionally, these cases also struck down states trying to regulate
24
the economy. Thus, the Court limited the use of the Commerce
Clause and the 10th Amendment.
1. Substantive Due Process: The Court examined the due
process clause of 14th amendement and said that due
process means everyone must be able to enter into
contracts without interference. In essence, the court used a
substantive due process analysis to write a laissez fair
version of economics into constitution.
a. Ex: Lochner v. New York: The Court struck down a
New York law which limited the hours which a bakery
employee could work to 10 per day and 60 per week.

ii.Decline of the Era


1. Court Packing Plan (“Switch in Time that Saved
Nine”): To enforce governmental regulation, President
Roosevelt proposed to add additional justices to the
Supreme Court. This was ultimately defeated by Congress,
but the defeat was partly due to the changes of position of
some justices, who shifted the majority of the Court.
2. This era is now discredited. These decsions became
incresingly unpopoular during the New Deal. The Era came
to an end in in the late 1930’s with
a. Ex: Nebbia v. New York: The Court sustained a New
York regulatory scheme for fixing milk prices. The
Court essentially rejected “Lochnerism,” noting that
the constitution does not endorse any economic
theory and that it is a matter for political branches to
decide.Until the 60’s. substantive due procee was
unused.

II. CONGRESS’ SPENDING POWER


A. GENERAL
i. Const. Art. I, §8: THE CONGRESS SHALL HAVE THE POWER TO LAY AND COLLECT TAXES
. . . TO PAY THE DEBTS AND PROVIDE FOR THE COMMON DEFENSE AND GENERAL WELFARE
OF THE UNITED STATES…
1. The power to spend is thus linked to the power to tax –
money may be raised by taxation, and then spent for the
common defense and general welfare.
ii.Const. Art. I, §8, cl. 18: TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND
PROPER FOR CARRYING INTO EXECUTION THE FOREGOING POWERS, AND ALL OTHER POWERS
VESTED BY THIS CONSTITUTION IN THE GOVERNMENT OF THE UNITED STATES . . .
iii.Const. Art.I, §9, cl. 7: NO MONEY SHALL BE GIVEN BY ANY REGULATION OF
COMMERCE OR REVENUE TO THE PORTS OF ONE STATE OVER THOSE OF ANOTHER: NOR
SHALL VESSELS BOUND TO, OR FROM, ONE STATE, BE OBLIGED TO ENTER, CLEAR, OR PAY
DUTIES IN ANOTHER.
iv.21st Amendment: Repeal of Prohibition
B. LIMITS ON CONGRESSIONAL USE OF SPENDING POWER
i. Achievement of Otherwise disallowed objectives: Congress
has no power to regulate for the purpose of providing for the
genral welfare. Thus, if Congress cannot obtain a certain objective
by direct regulation (i.e. because it is outside of its Commerce
Power or other enumerated powers), Congress may use its
conditional spending power to achieve the same result
25
indirectly (i.e. depriving the states money if they do not achieve
the regulatory result) as long as the action by the state do
not violate other constitutional provisions.
ii.The Condition must:
1. Be used to “promote the general welfare”;
a. Deference to Congress’ determination.
2. Be used via an explicit condition;
a. Must be unambiguous enabling the States to exercise
their choice knowingly, cognizant of the consequences
of their participation.
3. Be “related to the federal interest in the particular
national project or program” (this prong is not enforced
very strictly);
a. The condition must bear a ligitamate relationship to
the purpose for which the funds are extended. While
the majority in Dole fashioned a broad conception of
this nexus, O’Connor’s dissent would apply a narrow
conception in that the federal highway funds should
only be withheld when the federal interest involved
safe highway construction.
4. Not contravene an independent constitutional
requirement;
a. Another constitutional provision might provide an
independent bar to the conditional grant of federal
funds (See S.D. v. Dole)
5. Also, note that “pressure” cannot become
“compulsion”
iii.Ex: South Dakota v. Dole: Congress, in order to prevent drivers
under the age of 21 from drinking, withholds federal highway funds
from states that permit individuals younger than 21 to purchase or
possess in public any alcoholic beverage. South Dakota attacks the
statute on the grounds that this condition interferes with its own
exclusive powers under both the 10th and 21st Amendments.
HELD: The statute is valid.
1. Independent Constitional Bar: This concept stands for
the proposition that the power may not be used to induce
states to engage in activities that would themselves be
unconstitutional.
a. Ex: A grant of federal funds conditioned on invidiously
discriminatory state action or the infliction of cruel
and unusual punishment.

26
PART III – FEDERALISM

I. FEDERAL PREEMPTION OF STATE POWER


A. GENERAL
i. Preemption deals with State and Federal law and asks the question
“Will the federal law trump the state law?” There is no big
constitutional issues here, just figuring out “What Congress wants.”
ii.Express Preemption: Federal law explicitly says Congress
intends to supplant state law.
iii.Implied Preemption:
1. Actual conflict between federal & state law;
2. Federal law “covers the field”
B. CONSTITUTIONAL PROVISIONS
i. Const. Art. VI, §1, cl. 2. (Supremacy Clause): THIS CONSTITUTION, AND
THE LAWS OF THE UNITED STATES WHICH SHALL BE MADE IN PURSANCE THEREOF; . . .
SHALL BE THE SUPREME LAW OF THE LAND . . .
1. Ex: A state passes an act providing that Newspapers are no
longer permitted. Because the constitution provides for the
freedom of speech and the press, and since the Constitution
and federal laws are the Supreme Laws of the Land, the stat
law in question therefore is of no effect.
ii.10th Amendment: THE POWERS NOT DELEGATED TO THE U.S. BY THE CONSTITUTION,
NOR PROHIBITED BY IT TO THE STATES, ARE RESERVED TO THE STATES RESPECTIVELY, OR TO
THE PEOPLE.
C. PREEMPTION & THE SUPREMACY CLAUSE
i. Preemption of State Power by Congress: As a part of
federalism, the Supremacy Clause dictates that national power
overcomes inconsistent exercises of state power. Thus, if
Congress passes an act, the states cannot countermand it. The
Supremacy Clause of Article IV provides that in case of a conflict,
state law must yield to federal law. Federal law is said to have
“preempted” state law.
ii.Preemption by Negative Implication: The Commerce Clause
as a Restraint on State Power (“Dormant Commerce
Clause”): If a legislative matter particularly affects interstate
commerce and Congress has not acted, there may be a negative
implication that Congress intended the matter to remain
unregulated.
iii.Privileges and Immunities: The Constitution requires the states
to afford privileges and immunities to citizens and noncitizens
alike.

II. IMPLIED PREEMPTION


A. GENERAL
i. Issue of Congressional Intent: A preemption problem is not
always controlled by any clear statement of Congress, and thus
preemption is inferred as a matter of Congressional intent to
displace possibly inconsistent state regulation. The main rational is
that we don’t want either one of them to become too powerful.
B. TWO CATEGORIES OF IMPLIED PREEMPTION

27
i. Actual Conflict: In cases in which there is an actual clear-cut
conflict between congressional and state regulation, the State
statute is invalid.
1. Joint Compliance Impossible whereby it may be physically
impossible to obey the state and federal regulations
simultaneously.
a. Ex: Gonzales v. Raich: State and Federal marijuana
statutes conflicted.
2. Conflicting Objectives behind the Federal and State
regulations whereby the state law stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress.
3. Conflicting Tactics employed by the two may be sufficiently
conflicting that a court will conclude the state regulation is
preempted.
ii.Cover The Field: Where Congress has enacted broad, sweeping
statutes in a particular area to cover the entire field, the Court is
much more likely to find federal preemption than where the federal
scheme is less comprehensive.
1. Field Traditionally left to states: Courts are less likely to
find these as subjects of federal preemption. This means
that if the subject area is usually viewed as “local” rather
than “national,” preemption is unlikely to be found.
a. Ex: Health and Safety regulations.
2. National Matters/Fields of Federal Dominance: Foreign
relations, bankruptcy, patent and trademark, admiralty,
immigration, National Security, and others will normally be
found to be federally preempted.
C. THREE PART “COVER THE FIELD” TEST
i. Absent explicit preemptive language, Congress’ intent to
supersede state law altogether may be found depending on the
answers to these questions:
1. Is the scheme of federal regulation so pervasive as to make
reasonable the inference that Congress left no room for
the states to supplement it?
2. Does the federal statute touch a field in which the federal
interest is so dominant that the federal system must be
assumed to preclude enforcement of the state laws on the
same subject?;
3. Would enforcement of the State law present a serious
danger of conflict with the administration of the federal
program?
ii.Ex: Pennsylvania v. Nelson (“Impliedly Preempted Penn.
Sedition Act”): Defendant’s conviction of Pennsylvania Sedition
(rebellion) Act for being a known member of the Communist Party
reversal affirmed by Supreme Court because federal Smith Act
preempted the state sedition acts. The case was analyzed as a
cover the field implied preemption case, whereby the court applied
the three part test: (1) The federal Smith Act and other acts evince
a Congressional plan which makes it reasonable to determine that
no room has been left for the states to supplement it; (2) Congress
has a an all-embracing program for resistance to the various forms
of totalitarian aggression; (3) Enforcement of state sedition acts
presents a serious danger of conflict with the administration of
28
federal programs because there is a history of the federal
government wanted to avoid a hampering of uniform enforcement
of its program by sporadic local prosecutions.
iii.Ex: Pacific Gas & Elec. v. State Energy Resources Conservation
(“NOT Impliedly Preempted”): CA passed a law which
conditioned the building of any nuclear power plant upon the state
energy commission’s finding that there would be “adequate”
capacity” for temporary storage of the plant’s spent fuel. After the
district court held the CA statue preempted by the federal Atomic
Energy Act, the Court of Appeals reversed. HELD: The Supreme
Court Affirmed. The federal system of licensing and inspecting
nuclear plants was set up solely to deal with nuclear (radiological)
safety regulation, and with the construction and operation of
nuclear power plants. The Court’s deciding factor turned on CA’s
intention behind the regulation which was aimed at the economic
problems of storing and disposing of waste, not safety problems.
Thus, the CA statute did not come within the area preempted by
Congress. Even if there is a congressional intent to cover the field,
the Court must determine the exact area their intention covered.
iv.Other General Preemption Rules
1. If Congress expressly states that it does not intend to
preempt state regulation, or if the legislative history
contains controlling statements to that effect, the courts
should honor state laws. (Askew v. American Waterways
Operators, Inc.). Similarly, the courts should honor
controlling expressions of intent to preempt.
2. Presumption Against Preemption
a. If legislative intent is unclear, then default
setting is no preemption. When a Court is forced to
infer Congressional intent from conflicting or
ambiguous indications, such as the inference of an
attempt to occupy the field by a less than
comprehensive regulatory scheme, the Court often
has preferred not to find preemption.
i. Intent to occupy the field is inferable only when
“unmistakable” i.e. when the nature of the
regulated subject matter permits no other
conclusion (Florida Lime & Avocado Growers v.
Paul)

III. EXPRESS PREEMPTION


a. TEST FOR EXPRESS PREEMPTION
i. Presumption Against Preemption; Explicit Statutory
Preemption Provision
ii.Determining the indented Scope of Congressional Action:
Does the state law regulate within the scope of the preemption
language in the federal statute? (Check congressional intent, using
plain language, legislative history, etc.; also ask if there is an
actual conflict, or if state law frustrates Congress’ purpose in
passing the main law in the first place)
1. Compare McClendon and Cippone: These cases demonstrate
that, even in express preemption cases, the Congressional
choice of terms must be interpreted by courts in a manner

29
consistent with applicable constitutional history, structure,
and values.
iii.Elimination of Implied Preemption by an Express
Preemption: Express preemption “crowds out” implied
preemption. If there is express preemption, the entire extent of
preemption is governed by the express preemption language.
iv.If there was not express preemption language, then you could
argue implied preemption, but because the express preemption
language is there, then the implied preemption argument will not
work.
v.Ex: Ingersoll-Rand Co. v. McClendon (“Expressly Preempted TX
Pension Law”): The Employee Retirement Income Security Act
(“ERISA”) enacted a uniform regulatory scheme for private
employee benefit plans. The Act also contained a broad express
preemption of “any and all State laws” that relate to any
employee benefit plan. The P, McClendon, brought action under TX
state law covering tort and contract theories. The TX Sup. Ct.
created a public policy exception, namely, that allowed the suit
because McClendon’s termination was motivated principally by an
employer’s desire to avoid pension contribution and ruled in favor
of P. ISSUE: Because there was a conflict between a federal
statute and a state court ruling, the issue was whether the state
court ruling is preempted by the federal statute. HELD: Reversed.
The State Court ruling is preempted by the express preemption
language of ERISA. The Court’s reasoning was predicated on the
preemption language:
1. ERISA preemption clause was designed to establish pension
plan regulation as an exclusive federal concern.
2. A state law may “relate to” a benefit plan, and thereby be
preempted, even if the law is not specifically designed to
affect such plans, or the effect is only indirect. Preemption is
not precluded simply because a state law is consistent with
ERISA’s substantive requirements.
3. The TX judicially created case of action makes specific
reference to, and is premised on, the existence of a pension
plan.
4. Congressional Intent: Congress wanted to have a uniform
body of law for these pension plans; the goal was to
minimize the administrative and financial burden of
complying with conflicting directives among States or
between States and the Federal Government; each state
could create different substantive standards applicable to
the same employer conduct. Because of that, it is important
to read the exemption language broadly.
5. Alternative Preemption Analysis: Even if there was no
express preemption, the Court states this would still be
struck down under the Actual Conflict Implied Preemption
Doctrine because it conflicts directly with the ERISA’s
creation of an exclusive remedy for interference with
protected pension rights.
vi.Ex: Cippolone v. Liggett Group (“Expressly Preempted Cig.
Warning”: The Federal law at issue was the Federal Cigarette
Labeling and Advertising Act (1965), which was later amended in
1969. The amendment broadened the preemption language: “No
30
requirement or prohibition based on smoking and health shall be
imposed under state law with respect to the advertising or
promotion of any cigarettes.” The Defendants contended that
federal preemption protected them from any liability from the P’s
(a woman who died from smoking) common law claims. HELD:
Certain of the P’s common law claims were preempted, while
others were not.
1. 1965 Act: Under the maxim Expressio Unius est Exclusio
Alterius, the pre-emptive scope of the express language
governs, and this implied preemption excluded. Congress’
enactment of a provision defining the pre-emptive reach of a
statute implies that matters beyond that reach are not
preemptive.
a. Could the cigarette company have argued the other
non-preempted issues were in fact preempted by
Implied Preemption? No, where Congress has
expressly spelled out what is preempted, the Court is
not going to leave any room for additional implied
preemption.
2. 1969 Act: Because the language was much broader, the
court: (1) considered the strong presumption against
preemption by narrowly construing the precise language and
(2) looked to each of the P’s common law claims to
determine whether it is in fact preempted:
a. Failure to Warn: Preempted. P’s claims that the post
1969 advertisings or promotions should have included
more warnings clearly conflicts with the federal act.
b. Breach of Express Warranty: Not preempted by the
Act because the “requirements” imposed by an
express warranty claim are not “imposed under state
law,” but rather imposed by the warrantor.
c. Fraudulent Misrepresentation: Not Preempted, not
based on smoking or health warnings, rather deals
with a fraud claim.
d. Conspiracy to Misrepresent or Conceal: Not
Preempted, not based on smoking or health
warnings, rather deals with a fraud claim.

IV. FEDERALISM – THE NEGATIVE COMMERCE CLAUSE “DORMANT” COMMERCE CLAUSE:


RESTRICTIONS ON STATE POWER TO AFFECT INTERSTATE COMMERCE
A. GENERAL
i. Const. Art. I, § 8; 10th Amendment.
ii.The Commerce Clause really contains two clauses: On the
one hand, it is an affirmative grant to Congress of power to
regulate commerce. On the other hand, it has the effect of
restraining state power to regulate interstate commerce (“dormant
commerce clause”).
1. Congressional Silence Theory: Congress has the power
to regulate interstate commerce, but if it declines to
regulate a particular aspect of that commerce, the
Congressional silence is tantamount to a Congressional
expression of intent to leave the area unregulated, and
hence to protect it from state regulation.

31
2. Today, the rationales for the doctrine focus on protecting
national economic unity, protecting outsiders to the political
process, and supporting individual economic liberty.
iii.Modalities
1. Textualism: There is not a very strong textualist argument
because there is no express language in the commerce
clause for this restriction on state power and it seems that
the 10th amendment delegates this power to the states.
2. Originalism: There is a strong originalist argument,
however, because the founders wanted to avoid the
problems created by the Articles of Confederation by having
a uniform national economy. Under the Articles of
Confederation, the states had strong motivations to favor
local interests. Discriminatory regulations and duties,
abrogations of contracts in favor of residents, reliance on
unstable paper money, and taxes on interstate commerce
were particular concerns.
iv.The Early Dual Federalism Approach to the Commerce
Power – Mutual of “Selective” Exclusivity: No overlapping
between state and federal power. Thus, the existence of federal
power meant the absence of state power, and vice versa. As
federal power expanded, this approach would have wiped out state
power.
v.Concept of “Police Power”: The notion that the power to
provide for the local health, welfare, and morals is the essential
province of the states. This power was historically used to justify
the kind of state regulation that seemed necessary but that
arguably affected interstate commerce.
vi.Justifications for Heightened Review
1. National Political Unity (P & I Clause of Art. IV);
2. Political Process Rationale (Similar to Equal Protection);
3. Individual Economic Activty (P & I Clause of the 14th Amen.
and Substantive Due Process)
B. THE MODERN STANDARD UNDER THE NEGATIVE COMMERCE CLAUSE
i. Overview
1. If the state law (1) Burdens Interstate Commerce; and (2)
Furthers a Legitimate State Interest (typically by rationale
means to the end), then:
a. If facially discriminatory, apply “least
restrictive means” test (Dean Milk); or
b. If not facially discriminatory, ask if the burden
on interstate commerce is “clearly excessive”
in light of the purported local benefits. (Bruce
Church)
2. Legitamate State Interests and Rational Means to
that End: The court has distinguished between measures
that are designed for the promotion of health, safety and
welfare objective on the one hand, and those that are
designed for furtherance of economic benefits, on the other.
a. Health, safety, and welfare (“Police Power Rationale”):
The Court will most likely hold these objectives as
legitamate state ends.
b. Economic Advantage: The Court is much more
skeptical of a state regulatory scheme where the
32
state’s obective is to promote the economic interests
of its own residents. These objectives are generally
not considered to be a legitimate state end, where
pursuit of it materially affects interstate commerce.
ii.Facially Discrimnatory: The Least Onerous
Alternative/Restrictive Means Test (“No Homecookin’”)
1. If the law is facially discriminatory, apply “least restrictive
means” test (Dean Milk). In considering the legitimate state
end, the Courts will sometimes consider not only the
objectives which the state is pursuing, but also the necessity
of the means which the state has used to achieve this
objective: If the objective could have been achieved by
means less burdensome (or less discriminatory) to
interstate commerce, the Court is more likely to find
that the national interest in free commerce
outweighs the state’s interest. On the other hand, the
law will be valid if its means are the least restrictive to
further the law’s end.
a. Ex: Dean Milk Co. v. City of Madison: Local regulations
prevented the importation and sale of pasteurized
milk unless processed within a five-mile radius of the
city’s center. The ordinance also limited the city’s
responsibility for inspection, which was a condition to
importation and sale, to a 25 mile radius. HELD: The
ordinance is unconstitutional because it discriminated
against interstate commerce and could not be
justified by the absence of any less onerous
alternative. Even though the state’s objective
(protection of residents against adulterated milk –
health and safety rationale) was permissible, and the
regulatory scheme (prohibiting importation so that
only regularly-inspected local plants could sell milk)
was rationally related to that objective, the safety
objective could have been achieved by less
burdensome means (e.g. sending of inspectors to out-
of-state pasteurization plants to make quality checks,
at the out-of state producers’ expense).
b. If not facially discriminatory, ask if the burden on I.C.
is “clearly excessive” in light of the purported local
benefits. (Bruce Church)
2. Per Se Rule of Invalidity”: A facially discriminatory
statute is virtually invalid.
a. Ex: City of Philadelphia v. New Jersey: A NJ statute
prohibited the importation of most waste into the
state, but still allowed in-state waste to be disposed of
it NJ landfills. Several out-of-state users challenged
the validity of the statute on the ground that it
discriminated against interstate commerce. HELD:
The Court struck down the statute. While the State
has an interest in protecting its environment or
reducing costs to its residents, it can pursue these
ends discriminatorily. The state may, however, slow
the flow of all waste into the state’s landfills, even

33
though interstate commerce may be incidentally
affected.
b. Ex: Fort Gartiot Sanitary Landfill, Inc. v. Michigan
Deparatment of Natural Resources: A MI law
prohibited waste from being imported into a given
county unless it was done pursuant to a
comprehensive waste management plan adopted by
the county. Although it applied even to waste
transfers within the State as long as they went from
one county to another, the Court still struck down the
statute.
i. Environmental Protectionism: The Court will
closely scrutinze any discriminatory or
protectionist state action, even it was enacted
in furtherance of environmental or other non-
economic motives. Only if no less-
discriminatory alternatives are available will the
Court uphold such a statute. The clearest
example of such legislation is a law that overtly
blocks the flow of interstate commerce at a
State’s borders.
c. Taxation of Out-Of-State Waste: The Court is
extremely vigilant to ensure that any such taxing
scheme is not discriminatory. If the state really taxes
out-of-state and in-state waste equally, then there is
probably no violation of the Commerce Clause.
i. Ex: Chemical Waste Case: An AL law imposed a
fee of $26.50 per ton of waster, but imposed an
additional $72.00 for each ton “generated
outside to AL.” HELD: The Court struck down
the statute. The Court rejected the state’s
argument that the extra fee compensated for
environmental risks created by transportation
on AL’s highways over long distances.
iii.Not Facially Discriminatory: The “Clearly Excessive
Standard” Undue Burden Test: Where a statute regulates
evenhandedly to effectuate a legitamate local public interest, and
its effects on interstate commerce are only incidental, it will be
upheld unless the burden imposed on such commerce is clearly
excessive in relation to the putative local benefits.
1. Ex: Pike v. Bruce Church, Inc.: An AZ statute required that all
cantaloupes grown in Arizona must be packaged in AZ. The
regulation was applied to a California Company, Bruce
Church Inc., which required them to process and package
the cantaloupes in AZ rather than at their existing facility in
CA. In effect, the nondiscriminatory AZ regulation would
require Bruch Church to spend over $200,000 (1960) to
build an AZ packaging facility. The purpose of the
requirement was to enhance the reputation and demand for
AZ’s cantaloupes, which were of high quality. HELD: The
statute was invalid under the Dormant Commerce Clause.
While the interest is a legitamate one cannot justify the
$200,000 to be paid by Bruce Church. Thus, the state
interest is clearly outweighed by the national interest in

34
unencumbered commerce because the burden imposed on
this commerce is clearly excessive in relation to the local
benefits.
2. Discriminatory Purpose & Discriminatory Effect fall
under this test, because such analysis does not consist of a
facially discriminatory law.
iv.State as a Subsidizer vs. Regulating in Favor of In-Staters
1. Where the state acts as a market particpant where it buys
and sells from and to in-staters, the state may favor local
citizens over out-of-state interests.
2. Trying to Regulate will give rise to a dormant commerce
clause power. But the general idea is that it is the state’s
money and they can use it how they choo se.
a. Ex: TN provides In-State tuition for TN residents.
v.Dormant Commerce Clause Trumps State Plenary Powers
1. RULE: State power over the regulation of alcohol (21st
Amendment) is limited by the nondiscrimination principle of
the Commerce Clause.
a. Ex: Granholm Case: MI and NY gave preferential
treatment to in-state wineries, allowing them to
bypass wholesalers and retailers. HELD: The Court
ruled that states must permit in-state and out-of state
wineries to be subject to the same legal rules when it
comes to shipping their products directly to
consumers. Thus, the State’s plenary power to
regulate alcohol under the 21st Amendment was
effectively trumped by the dormant commerce clause.

V. ARTICLE IV INTERSTATE PRIVILEGES AND IMMUNITIES CLAUSE


A. GENERAL
i. Const. Art. IV, § 1, cl. 1: THE CITIZENS OF EACH STATE SHALL BE ENTITLED TO ALL
PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES.
ii.The interstate P & I Clause (Distinguish from the P & I Clause of §
of the 14th Amen.) prevents states from discriminating
against out-of-state residents. The Clause “was designed to
insure to a citizen of State A who ventures into State B the same
privileges which the citizens of State B enjoy.” (Toomer v. Witsell).
The purpose is to “help fuse into one Nation a collection of
independent, sovereign States.”
1. NOTE: Corporations, Aliens, and In-stater’s are not protected
and do not have standing.
B. TEST FOR P & I VIOLATION
i. Only “fundamental rights” covered: Only rights that are
“fundamental to national unity” are covered. It is only with respect
to those privileges and immunities bearing on the vitality of the
35
Nation as a single entity that a State must accord residents and
nonresidents equal treatment.
1. A Means of Livelihood: Right to be employed, right to
practice one’s profession, and the right to engage in
business are all fundamental, and therefore protected
whereby discrimination is not allowed.
a. Ex: Alaska requires that Alaskan residents be given an
absolute preference over non-residents for all jobs on
the Alaskan oil pipeline. HELD: The preference
violates the P & I clause, Access to employment is a
right fundamental to national unity. After applying the
two part test below, the preference failed because the
preference was not closely tailored to the substantial
reason (an unemployment problem). (Hicklin v.
Orbeck)
2. Recreational Use: Conversely, non-economic rights are
generally not “fundamental to national unity,” and thus are
not protected by the P & I Clause. Therefore,
discrimination is permitted.
a. Ex: Montana allows Montana residents to purchase a
license for hunting elk and other animals for $30,
while non-residents are charged $225. HELD: This
scheme does not violate the P & I Clause, because the
right to recreation is not a right that is fundamental to
national unity. (Baldwin v. Fish and Game Comm’n)
i. However, charging higher fees for a commercial
fishing license may be prohibited because it is a
means of livelihood.
ii.Two-Part Test (Limits on P & I Clause): Once the Court
concludes that a “fundamental right” is at stake, the Court applies
this two-part test to determine whether the discrimination is
acceptable. The clause does not preclude discrimination against
non-residents where and if the State can show that:
1. There is a substantial reason for the difference in
treatment and the rule burdening out-of-staters; and that
2. The discrimination practiced against nonresidents bears a
substantial relationship to the States objective. Thus,
the rule must be the least restrictive means necessary to
further the substantial interest.
c. SUPREME COURT OF NEW HAMPSHIRE V. PIPER – APPLICATION OF THE P & I TEST
i. The State Law issue in this case was a N.H. Supreme Court rule
that limited admission to the state bar to residents of the state.
The P passed the N.H. bar but was not admitted and brought suit.
HELD: The N.H. rule violated the P & I Clause.
1. Fundamental Right: The court noted that the right to
practice law and membership is the bar is a privilege or
immunity protected by the clause.
a. Exception to the P & I Clause – Political Function
Doctrine: The Court noted that “Although recognizing
that the State might have legitimate reasons for
limiting the right to vote or to hold elective office to
its own citizens,” a lawyer is not a political officer of
the State in any political sense.

36
i. HYPO: Could New Hampshire require that its
judges and legislature be only limited to
residents of the state?
1. A: Yes, these are public officials that
exercise state political power. It is
appropriate for state to have state
residents only as officials.
ii.Voters? – A: Yes.
iii.N.H. state parks? – A: Yes, they could because
this is recreation.
2. Two-Part Test
a. The state offered these justifications for the law
stating that non-resident members would be less
likely to:
i. Be familiar with local rules and procedures;
ii.To behave ethically;
1. These first two were thrown out
immediately.
iii.Be available for court proceedings;
1. Least Restrictive Mean: The trial court
may require any lawyer who resides at a
great distance to retain a local attorney
to be available for meetings.
iv.To do Pro bono work in the State.
1. Least Restrictive Mean: They could still
be required to do so by the State.
3. Dissent: Justice Rehnquist found that the Court’s “less-
restrictive means” test was ill-advised and unmanageable. If
carried too far, he feared an overreaching by judicial review
would occur, which would ultimately lead to striking down
almost any statute on the ground that the Court could think
o another “less restrictive” way to write it.
4. Alternate Legal Theory – Dormant Commerce Clause:
The P could have used a domrnat commerce clause
argument because the statute was facially discriminatory.

D. REVIEW
i. Distinguishing The D.C.C. & The P & I Clause
1. The Court has held that a corporation does not have
standing under Art. IV because a Corporation is not
considered a “citizen.”
2. The Dormant Commerce Clause challenege does not have to
be an out-of-stater, while Article IV only protectes out-of-
state residents.
3. Art. IV protectes only those interests considered
fundamental rights. There is no fundamental right threshold
in dormant Commerce Clause doctrine.
4. Market Participant: There is no “marketplace” exception
to the P & I Clause and thus could proceed on this theory.
a. Ex: White v. Massachusetts Council of Construction
Emplyers: The Court uphel a Boston ordinance
requiring public work contractors to fill at leas 50% of

37
all construction jobs with city residents. The Court
concluded that since the City’s funds were at issue, it
was a market participant and was not in violation of
the dormant Commerce Clause. What result under a P
& I analysis?
ii.When to use the Dormant Commerce Clause and the P & I Clause
of Art. IV
1. Some times, both are warranted.
2. Limitation on indivudal lberty? – Typically P & I
3. Broad based economic regulation – DC

VI. STATE SOVEREIGNTY


A. GENERAL
i. When Congress attempts to regulate a State as a state entity,
states envoke the doctrine of State Sovereignty.
ii.Const. Art. IV, §1 (Full Faith and Credit Clause): FULL FAITH AND
CREDIT SHALL BE GIVEN IN EACH STATE TO THE PUBLIC ACTS, RECORDS, AND JUDICIAL
PROCEEDINGS OF EVERY OTHER STATE. AND THE CONGRESS MAY BY GENERAL LAWS
PRESCRIBE THE MANNER IN WHICH SUCH ACTS, RECORDS, AND PROCEEDINGS SHALL BE
PROVED, AND THE EFFECT THEREOF.
iii.Const. Art. IV, §3, cl. 1: NEW STATES MAY BE ADMITTED BY THE CONGRESS INTO
THIS UNION; BUT NO NEW STATE SHALL BE FORMED OR ERECTED WITHIN THE JURISDICTION OF
ANY OTHER STATE; NOR ANY STATE BE FORMED BY THE JUNCTION OF TWO OR MORE STATES,
OR PARTS OF STATES, WITHOUT THE CONSENT OF THE LEGISLATURES OF THE STATES
CONCERNED AS WELL AS OF THE CONGRESS.
1. This provision basically protects the territorial integrity of
the States. The State itself gets to decide what the
boundaries of its own State are. Once a State is recognized
as a State, it is theoretically a sovereign entity. It gets to
decide its own boundaries.
iv.Rules of Thumb
1. A Federal Statute is More Likely To Be Upheld if
Congress:
a. Uses Spending Power;
38
b. Regulates private as well as States;
c. Exercises Express Preemption Power
2. A Federal Statute is Less Likely To Be Upheld if
Congress:
a. Regulates State Employees;
b. Regulates Just States;
c. Commandeers’ State Employees
i. Ex: Federal government forcing state troops
need to do affirmative acts to implement some
federal regulation.
b. THE NATIONAL LEAGUE OF CITIES V. USERY TEST
i. The Court held that the 10th Amendment barred Congress from
making federal minimum-wage and overtime rules applicable to
state and municipal employees under the the Fair Labor Standards
Act.
ii.Soverignty Test: Four conditions must be satisfied before a state
activity may be deemed immune from a particular federal
regulation under the Commerce Clause:
1. The Federal statute at issue must regulate the “States as
states,” rather than regulating commercial activities or
private persons.
2. The statute must “address matters that are indisputably
attributes of state sovereignty.’”
3. State compliance with the federal obligation must ‘directly
impair the States’ ability ‘to structure integral operations in
areas of traditional governmental functions.’”
4. The relation of state and federal interests must not be such
that “the nature of the federal interest…justifies state
submission.”

c. OVERRULING N.L.O.C - GARCIA V. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY


i. RULE: Once Congress, acting pursuant to its Commerce Power,
regulates the states, the fact that it is a state being regulated has
virtually no practical significance – if the regulation would
be valid if applied to a private party, it is also valid as to
the state.
ii.SAMTA state-owned entity operating mass transit sued for
declaratory judgment that it was entitled to immunity from
minimum wage and overtime pay provisions of the Fair Labor
Standards Act. Plaintiff argued the ownership and operation of the
mass transit system is a traditional governmental function and is
exempt/immune from FLSA obligations. The issue was not whether
congress had the power regulate the wage and hour regulation for
private entities; but to state governmental employees.
HELD: The Court explicitly overruled National League of Cities and
its test and held that SAMTA was not immune from Congressional
regulation under FLSA.
1. Rationale for Abandoning N.L.O.C. Test: The 3rd Prong
of the N.L.O.C. Test proved as a unworkable line-drawing
test because:
a. Line-Drawing Problem: It is diffcult, if not
impossible, to identify an organizing principle that
would distinguish between those functions that are

39
“traditional governmental functions” and those that
are not.
b. Too Subjective: Any rule of state immunity that
looks to the “traditional,” “integral,” or “necessary”
nature of governmental functions inevitably invites an
unelected federal judiciary to make decisions
about which state policies it favors and which one it
dislikes.
c. Separation of Powers: There is an overreaching of
the judiciary; leave it to Congress to decide if there is
overreaching.
2. Procedural Safguards
a. The rejection of National League of Cities does not
mean that there are no limitations upon the federal
government’s right to use its delegated powers to
impair state sovereignty. However, state sovereign
interests are protected by procedural safeguards
inherent in the structure of the federal system, not by
judicially created limitations on federal power.
i. Bicameral legislature – Equal Senate
Representation: The representatives are from
the states and these are cognizant of the
state/federal balance.
ii.Modern Federal Regulation: State’s have been
able to utlilize federal funding while at the
same time exempting themselves from a wide
variety of obligations imposed by Congress
under the Commerce Clause.
3. Powell’Dissent: The majority has made meaningless the
Tenth Amendment when Congress acts pursuant to the
Commerce Clause. The separate sphere of State sovereignty
is to act as a counterbalance to the federal government.
Acting contrary to this, as the majority did, rejects the basic
precepts of the federal system.
4. O’Connor’s Dissent: Virtually every state activity arguably
affects interstate commerce. Congress can now regulate a
significant sphere of activities that were envisioned for
regulation by the States. There is a risk that Congress will
erase the separation of power between the federal and State
governments. There is no protection against these
encroachments on state activities.
5. NOTE: Under National League of Cities, the State would have
been immune to provisions of the FLSA; Congress could not
intervene in this area of State sovereignty.
D. CUTTIN’ BACK LOPEZ
i. The following cases stand for the propositions that Congress may
not (1) force a state to legislate or regulate in a certain way; or (2)
require state executive-branch personnel to perform even
ministerial functions.
ii.Use of State’s Lawmaking mechanisms
1. Ex: New York v. United States: Congress enacted the Low-
Level Radioactive Waste Policy Amendments Act of 1985.
The Act attempted to force each state to make its own
arrangements for disposing (either in-state or our-of-state)
40
of the low-level radioaction waste generated in that state
through a series of incentives. N.Y. sued the federal
government stating that the “take-title” provision violated
the 10th Amendment because it effectively forced the state
to regulate in a particular area. HELD: The Court held that
the 10th Amendment was violated.
a. Monetary Incentive (VALID): Provided that states
with disposal sites may impose a surcharge on waste
from other states; in turn, states receive funding.
i. No dormant commerce clause/discrimination
issue because it is not the states that are
enforcing it; it is the federal government.
(Distinguished from Philadelphia case)
b. Access Incentive (VALID): Authorized sited states
gradually to increase the cost of access for waste
generated states that do not meet federal guidelines,
and then to deny access altogether.
i. Congress’ use of Spending Power.
c. Take Title Incentives (INVALID): Vested title to the
waste in the state if they did not comply with the
regulations. Thus, the state would be liable for
damages in connection with the waste.
i. Violates 10th Amendment: The court
specifically rejects the “poltical process will
work itself out” rationale enunciated in Garcia,
and instead followed the reasoning from the
Dissent’s in Garcia. They adopted the reasoning
of the dissent of Garcia. Out of fear for being
called activists, the Court did not overrule
Garcia.
iii.Anticommandeering Principle as a Limit on Congressional
Power
1. RULE: While Congress may preempt state law and may
enact incentives for states to adopt federally approved
standards, Congress may not force the states to enact
federal regulations directly nor may it direct state
officials to carry out a federal regulatory program.
This is true even if the functions are fairly ministerial and
esy-to-perform, and even if the compulsion is only
temporary. Not just reghulation, but laws that require that
individual state offices to enforce and impement out federal
program.
a. Ex: Printz v. United States: The [Federal] Brandy Hand
Gun Violence Prevention Act’s provisions required
state and local enforcement officers to conduct
background checks on prospective handgun buyers.
HELD: The Act’s provisions were unconstitutional
because it improperly commandeered state
executive branch resources to implement the
[federal] program. The state executive resources
protected by principles of state sovereignty.
iv.Upholding Congress’ Laws that only Promote a Minimal
Federal Interest

41
1. Garcia conernced a federal statute based upon a generally
accepted federal interest, which, although it intruded into
state sovereignty, did not reach the deepest core of that
concept. Thus, open-ended questions remain as whether an
Act of Congress will be upheld if it only promotes a minimal
federal interest in a core of state sovereignty.
a. Ex: Coyle v. Smith: No significant federal interest in
deciding where a State’s capital should be. State has
plenary power to decide where to position its capital.
i. Art. IV, §3, cl.1
i. Reconciling Garcia
1. Garcia seems to apply mainly to generally applicable federal
lawmaking (laws that apply to both states and individuals
etc.). Here the 10th Amendment does not entitle a state’s
own operations to an exemption, merely because it is a
state that is being regulated along with other private
entities. But where the federal government tries to force a
state or local government to enact legislation or regulation,
or forces state officials to perform particular governmental
functions, this legislation is in the perview of State
Soverignty, and thus violates the 10th Amendment.

State Sovereignty Rules of Thumb from Cases


Federal Statute More Federal Statute Less Federal Statute
Likely to Be Upheld if Likely to be Upheld if Definitely Invalid
Congress… Congress…
Uses spending power Regulates just states Explicit text of the
Constitution reserves
the power to the States
Regulates private as Regulates State The regulation
well as States Employees encroaches upon state
territorial integrity; e.g.
moving the State
capital
Exercises express Violates the
preemption of state anticommandeering
power. principles of Printz

PART IV – PRESIDENTIAL POWER & SEPARATION OF POWERS

I. SOURCES OF PRESIDENTIAL (EXECUTIVE) POWER – ARTICLE II


a. INHERENT POWERS IN THE CONSTITUTION
i. Const. Art. II, § 1 cl. 1 (Vesting Power) THE EXECUTIVE POWER SHALL BE
VESTED IN A PRESIDENT OF THE UNITED STATES OF AMERICA. HE SHALL HOLD HIS OFFICE
DURING THE TERM OF FOUR YEARS, AND, TOGETHER WITH THE VICE PRESIDENT, CHOSEN
FOR THE SAME TERM, BE ELECTED . . .
1. Describes length of term, the election process,
qualifications, succession, compensation, and oath of office.
ii.§ 2 cl. 1 & 2 (War Powers): (1) THE PRESIDENT SHALL BE COMMANDER IN
CHIEF OF THE ARMY AND NAVY OF THE UNITED STATES, AND OF THE MILITIA OF THE
42
SEVERAL STATES, WHEN CALLED INTO THE ACTUAL SERVICE OF THE UNITED STATES…AND
HE SHALL HAVE POWER TO GRANT REPRIEVES AND PARDONS FOR OFFENSES AGAINST
THE UNITED STATES, EXCEPT IN CASES OF IMPEACHMENT. (2) HE SHALL HAVE
POWER, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO MAKE TREATIES,
PROVIDED TWO THIRDS OF THE SENATORS PRESENT CONCUR; AND HE SHALL NOMINATE, AND
BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, SHALL APPOINT AMBASSADORS,
OTHER PUBLIC MINISTERS AND CONSULS, JUDGES OF THE SUPREME COURT, AND ALL OTHER
OFFICERS OF THE UNITED STATES….
1. Describes role as Commander and Chief and the powers to
grant pardons, make treaties, appoint officials, and fill
vacancies.
iii.§ 3 (“Take Care Clause”): …HE SHALL TAKE CARE THAT THE LAWS BE
FAITHFULLY EXECUTED…
B. LIMITS ON THE INHERENT POWERS OF THE EXECUTIVE
i. Presidential authority comes from either:
1. A direct provision of the Constitution (express or
implied); or
2. An Act of Congress
ii.Implied Powers
1. Much of the President’s power has been derived implicitly
from the explicit constitutional powers above. Thus, if the
Supreme Court conclude that a presidential action is
properly regarded as being part of the “executive” sphere,
that action will not be rendered unconstitutional merely by
the fact that it does not fall within the president’s enumerate
powers.
2. Thus, unless the power exercised is constitutionally
questionable enough to cause intervention of the legislature
or judiciary, the President is generally free to define the
scope of his own authority.
iii.No Right to Make Laws: The President may not make laws; he
may only carry them out.
1. Ex: Youngstreet Sheet & Tube Co. v. Sawyer (“The Steel
Seizure Case”) – Justice Black’s Formulistic Approach: During
the Korean War, President Truman sought to avert a strike in
the nation’s steel mills. He therefore issued an executive
order directing his Secretary of Commerce to seize the mills
and operate them under federal direction. Congressional
approval of the seizure order was not requested. The steel
companies ought an injunction to prevent the seizure. The
steel mill argued that the seizure was not authorized by an
act of Congress or a Constitutional Provision. The
government contented that this power should be implied
from the president’s enumerated powers. HELD: The court
rejected the government’s contentions and held that it was
an unconstitutional exercise of the lawmaking authority
reserved to the states because there was no statute nor a
constitutional provision authorizing it.
a. Commander-in-Chief Power: Justice Black rejected
this argument. The order could not be justified under
this provision; the taking of private property in order
to keep labor disputes from stopping production of
war material was too far removed from the actual
“theater of war” in which the President had the right

43
to set policy. While the President has broad
power to do this in a theater of war, the
distinction comes in when he tries to do this
within the united states.
i. What if the president seized private property to
repel an invasion? This would be proper
according to majority it would be a theater of
war.
b. Vesting Power/Take Care Clause: Nor could the
seizure be justified under the President’s power to see
that the laws are faithfully executed – the very
language of the clause shows that the President must
merely carry out the laws, not make them (which is
reserved to the legislature in Article I)
2. Jackson’s Functional Approach (Jackson’s Concurrence):
Stated that the President’s powers “are not fixed but
fluctuate, depending on their disjunction or conjunction
with those of Congress.” He conceived three categories:
a. Congressional Approval (Highest Power): Where
the President acts pursuant to express or implied
authorization of Congress, in which case his
authority is at its maximum and is valid as long as
Federal Government generally has the power.
i. Here, there was no congressional authority for
the seizure.
b. Congressional Silence (Middle Power): Where the
President acts in the absence of either a
congressional grant or denial of authority, in which
case “there is a zone of twilight in which he and
Congress may have concurrent authority, or in which
its distribution is uncertain.” Silence could be
acquiescence; interpret on case-by-case basis
taking into account the “imperatives of events and
contemporary imponderables.”
i. Here, Congress did not leave the seizure of
private property an open field but had three
statutory policies inconsistent with the seizure.
c. Congressional Disapproval (Lowest Power):
Where the President acts in contradiction to the
express or implied will of Congress; in this case, his
power is “at its lowest ebb.” Valid only if President
has an independent source of power and
Congress lacks power in this area.
i. Jacksons felt that the Steel Seizure Case, and
the executive seizure of the steel industry in
particular, fell into this category because
Congress had already covered the field here
that provided for different types of seizers. So
we are inferring that Congress disapproved of
this particular seizure.
d. HYPO’s under Jackson Analysis: What if Congress
passed a law saying that the President could not
pardon rapists before convicted? Suppose Congress
passed a law that said that president could jail people
44
for speaking out against Korean war effort and
president jailed people? (#1)
iv.This case could be analyzed as a:
1. Separation of power case;
2. Individual case on constitutional basis;
a. 5th amendment Due Process Clause (Jackson’s
Concurrence): The “Take Care Clause” must be
matched with the 5th Amendment. One gives a
governmental authority that reaches so far as there is
law, the other gives a private right that authority shall
go no farther.
b. Takings Clause (Douglas Concurrence): The
seizure of the mill is “taking” in the constitutional
sense and compensation is required. The President
has no power to raise revenue. Thus, because the
legislature has this power, it is the only one that can
authorize the seizure.
3. Gloss on the Constitution (Frankfurter’s Concurrence)
a. “Deeply embedded traditional ways of conducting
government cannot supplant the Constitution or
legislation, but they give meaning to the words of a
text or supply them. It is an inadmissibly narrow
conception of American constitutional law to
confine it to the words of the Constitution and
to disregard the gloss which life has written
upon them. In short, a systematic, unbroken,
executive practice, long pursued to the knowledge of
the Congress and never before questions, engaged in
by presidents who have also sworn to uphold the
constitution, making as it were such exercise of power
part of the structure of our government, may be
treated as a gloss on “executive Power” vested in the
President by § 1 of Art. II.”
i. Historical experience, past presidential actions,
what has congress done in the past? These
types of experience can inform our
constitutional interpretation. This view is
contrasted with Black’s view of where the
President gets his power.
1. Here, the historical record is barren of
instances comparable to the one
presented. Thus, this is not a recognized
executive power.
I. THE PRESIDENT’S EXERCISE OF QUASI-LEGISLATIVE POWERS - VETO/IMPOUNDMENT POWER
a. VETO POWER GENERALLY
i. The most significant and direct constitutional acknowledgment of
the Executive’s legislative function is the President’s veto power,
also known as an “Executive Plenary Power.”
1. Const Art. I, §7, Cl. 2 (Presentment Clause – Approval or
Veto of Bills): EVERY BILL WHICH SHALL HAVE PASSED THE HOUSE OF
REPRESENTATIVES AND THE SENATE, SHALL… BE PRESENTED TO THE PRESIDENT …
IF HE APPROVES, HE SHALL SIGN IT, BUT IF NOT HE SHALL RETURN IT…. IF AFTER
SUCH RECONSIDERATION TWO THIRDS OF THAT HOUSE SHALL AGREE TO PASS THE
BILL, IT SHALL BE SENT, TOGETHER WITH THE OBJECTIONS, TO THE OTHER HOUSE,
45
BY WHICH IT SHALL LIKEWISE BE RECONSIDERED, AND IF APPROVED BY TWO THIRDS
OF THAT HOUSE, IT SHALL BECOME A LAW…. IF ANY BILL SHALL NOT BE RETURNED
BY THE PRESIDENT WITHIN TEN DAYS (SUNDAYS EXCEPTED) AFTER IT SHALL HAVE
BEEN PRESENTED TO HIM, THE SAME SHALL BE A LAW, IN LIKE MANNER AS IF HE
HAD SIGNED IT, UNLESS THE CONGRESS BY THEIR ADJOURNMENT PREVENT ITS
RETURN, IN WHICH CASE IT SHALL NOT BE A LAW.
a. The provision gives the President the power to veto
any bill passed by Congress. If the measure is vetoed,
the veto can be overridden (and the measure enacted
into law) only by a 2/3 vote in each house.
ii.Pocket Veto: The provision provides that if the President fails
within 10 days either to sign a bill or to veto it and return it to the
house in which it originated (so that an override can be made), the
bill becomes law. However, that section also provides that if
Congress by its adjournment has prevented return of the vetoed
legislation, the statute cannot go into effect unless the President
sigs it. In this situation, the President is given an absolute veto
power (i.e. one which cannot be overridden).
b. LIMITS ON PRESIDENTIAL VETO – LINE-ITEM VETO/STATUTORY LINE ITEM VETO
i. Ex: Clinton c. City of New York: In an effort to control federal
spending, Congress passed the Line Item Veto Act. The City of New
York challenged the “spending cancellation” and the Snake River
Farmers cooperative challenged the cancellation of a “tax break”
provision. HELD: The Line Item Veto Act is unconstitutional
because it violated the Presentment Clause.
1. The Act: Gave the President the power to “cancel” any of
several types of provision contained in statues, including an
“item of new direct spending” and any “limited tax benefit.”
The Act allowed the President to sign an entire bill into law,
and then to “cancel” any individual spending or limited tax
benefit item he wished, provided that he did so within five
days after enactment as well as considered other relevant
information and followed other procedures. At that point, the
only way Congress could restore the vetoed item was re-
enact it as a separate “disapproval bill,” which the President
could veto again. The net effect of the Act was to let the
President plus 1/3 of Congress (the % necessary to uphold
the president’s veto of the disapproval bill) veto any
individual item of spending or limited tax benefit.
2. Violates Presentment Clause: To begin, there is not a
Constitutional provision that authorizes the President to
enact, to amend, or to appeal statutes. The process laid
down in the Presentment Clause is the only way authorized
in the Constitution to enact or repeal a bill. The Act failed
to follow this procedure in at least two ways: (1) The
President’s “return” of the bill (his veto of it) occurred after
the bill had been signed into law, rather than before; and
(2) The cancellation could apply to only part of the bill,
whereas the Presentment clause requires veto of the entire
bill.
3. Net Effect is to Let President Write new Bill: The Act
gave the President the unilateral power to change the text of
duly enacted statutes. If it were valid, it would authorize the
President to create a different law – one whose text was not

46
voted on by either House of Congress or presented to the
president for signature.
a. NOTE: If the President is to play a different role in the
process of enacting legislation, the change should
come by a Constitutional Amendment through Article
V.
4. Executive Authority to decline to spend Appropriate
Funds v. The Act:
a. Ex: Field v. Clark: Congress made the decision to
suspend or repeal provisions at issue upon the
occurrence of particular events subsequent to
enactment, and it only left the determination of
whether such events occur up to the president. Thus,
if Congress grants the President authority to
spend, but lists factors that, if they occur he
can refuse to spend, this kind of statute is
okay.
b. The Act: This type of statute proscribes a legislative
function not within the scope of Executive Power and
is in opposition to the Presentment Clause.
5. Historical Argument: Detailed procedure in presentment
clause was the result of much debate of the framers. Any
change to this is presumptively unconstitutional.
6. Separation of Powers Issue (Kennedy Concurrence):
a. He rejected the idea the political branches may freely
allocate their own authority by holding as flawed the
premise that liberty is not at stake when one or more
branches seek to transgress the separation of powers
whereby concentration of power is in the hands of a
single branch. The Act allows the President the
sole ability to hurt one group that is a visible
target and to award another. The law is the
functional equivalent of a line item veto and enhances
the President’s powers beyond what the Framers
would have endorsed.
b. We can gather from this that a formalistic approach
is taken when it comes to separation of powers
generally and legislative and executive powers
specifically. Courts are less willing to be flexible to the
demands of the modern administrative state.
7. Dissent: The Act did not give the President power to repeal
or amend the statute because the statute itself remains fully
in force following the “cancellation action.” Instead,
Congress merely gave the President the discretion to spend
or not to spend an appropriate item, something it had done
many times in the past.
C. IMPOUNDMENT
i. The President can also directly affect legislation through the
impoundment of appropriated funds. This highly controversial
power is exercised when the President delays or refuses to
spend Congressionally authorized funding. Unlike the veto or
pocket-veto, the President can selectively spend or withhold funds
on different provisions of a bill.

47
1. Presidents claim that impoundment power is an inherent
power vested in the Executive to control finances and policy,
but Court has never ruled on it.
2. Court Rulings
a. Lower federal courts have refused attempts to
impound funds, reasoning through a narrow view of
statutory interpretation and holding that
congressional appropriations were mandatory rather
than discretionary.
b. The Supreme Court has never ruled on the
constitutionality of impoundment. However, in Train
v. City of New York, the court rejected Nixon’s attempt
to withhold funds as a matter of statutory
construction of the Federal Water Pollution Control
Act.
ii.Separation of Powers issue: It has been argued that
impoundment in effect repeals a law when the President withholds
appropriated funds. Further, the President must faithfully execute
the law. It is Congress, not the President that is regarded as having
the “power of the purse” and to enact legislation.
1. Impoundment Control Act of 1974: During Nixon’s broad
assertion of this power, and over Presidential Veto, the act
seemingly defuses the Separation of Powers issue as a
compromise between the two branches. It recognizes only
two forms of impoundment: (1) Deferral of budget authority;
and (2) Rescission of budgetary authority. The Supreme
Court has never passed on it as the statute is a “gloss” on
the constitution.
iii.Steel Seizure Analysis: The power is most typically seen when
it comes to presidential spending on defense and military
(Commander and chief authority) but it conflicts with Congress’
power to spend funds (third Category). An argument could be
made that it falls in the 2nd category.

II. LEGISLATIVE VETO


A. GENERAL
i. Const. Art. I, §1 (Vesting power in Congress): ALL LEGISLATIVE
POWERS HEREIN GRANTED SHALL BE VESTED IN A CONGRESS OF THE UNITED STATES, WHICH
SHALL CONSIST OF A SENATE AND HOUSE OF REPRESENTATIVES.
ii.Const. Art. I, §7 (Presentment Clause)
iii.Const. Art. I, §7, cl. 3: EVERY ORDER, RESOLUTION, OR VOTE TO WHICH THE
CONCURRENCE OF THE SENATE AND HOUSE OF REPRESENTATIVES MAY BE NECESSARY
(EXCEPT ON A QUESTION OF ADJOURNMENT) SHALL BE PRESENTED TO THE PRESIDENT OF THE
UNITED STATES; AND BEFORE THE SAME SHALL TAKE EFFECT, SHALL BE APPROVED BY HIM,
OR BEING DISAPPROVED BY HIM, SHALL BE REPASSED BY TWO THIRDS OF THE SENATE AND
HOUSE OF REPRESENTATIVES, ACCORDING TO THE RULES AND LIMITATIONS PRESCRIBED IN
THE CASE OF A BILL.
B. ONE-HOUSE LEGISLATIVE VETO
i. This corner or constitutional law has taken a very formalistic
approach and has not looked at the underlying practicalities.
48
Thus, the fact that the veto mechanism may be a more “efficient”
means of controlling administrative action is irrelevant.
ii.This veto is a device that enables Congress to monitor the
executive branch and administrative agencies. Such a veto
provision is included as part of a statute delegating powers to
federal agencies. If, after an agency takes a certain action
(issuance of a regulation), and Congress disagrees, the veto
provision in the original bill allows one or both houses to
cancel the action by means of a resolution, which is not
presented to the President for an opportunity to veto it.
1. Veto Rule Unconstitutional (I.N.S. v. Chada): Chada, an
alien, overstayed his welcome in the U.S. Pursuant to the
Immigration and Nationality Act that allowed the Attorney
General to suspend deportation, the immigration judge held
that Chada met its requirements and thus Chada should not
be deported. The Act included a provision allowing this
determination to be invalidated by one house of Congress,
by resolution, without vote, treatment as a legislative act, or
presentment to the President. The House considered the
decision and reversed. The deportation proceedings were
reopened and the judge implemented the order on Chada.
HELD: The Supreme Court held that a typical one-house
legislative veto was unconstitutional, because it violated
both: (1) The President’s veto power; and (2) The Bicameral
structure of Congress.
a. Violation of Presentment Clause: Every bill must
be presented to the President for signature, so that he
may have the opportunity to veto it. The lawmaking
power is shared by both Congress and the President,
and the framers explicitly assured that these
requirements not be circumvented for fear that a
“resolution” or “vote,” rather than a bill, would be
passed.
i. 3 Reasons for Presentment
1. Enable the President to defend himself;
2. Prevent the passing of bad laws; and
3. Assuring that the national perspective is
grafted on the legislative process.
b. Violation the Bicameralism: Since this type of veto
could be exercised by a single house, it violated the
bicameral requirement of Art. I, §§ 1 and 7, by which
both house must pass a bill before it can become law.
i. Reasons for Bicameralism
1. Diffusion of legislative power:
Accumulating, in a single body, all the
most important prerogatives of
sovereignty could cause special interests
to be favored at the expense of public
needs;
2. Protection of small states: The
framers allayed the fears of both large
and small states by having a House
(representing the people) and the Senate
(States); and
49
3. Opportunity for debate and study in
separate settings.
c. Consequence: Thus, Congress can only reverse an
administrative decision by passing a law, in the
constitutionally formalistic procedure (passage by
both houses and presentment to the President.
d. Legislative Action: Not every action taken by either
house is subject to bicameralism and presentment.
However, Presentment is true when there is a
requirement of bicameralism. An action is subject
to these requirements when:
i. It alters someone’s legal status; or
ii.The purpose of the challenged provision
can only be achieved by legislation.
1. Chada: Here, overruling the Attorney
General’s decision on deportation
constituted legislative action outside the
legislative branch.
2. HYPO: What if the House passed a
resolution that condemned Bush’s action
in Katrina. Bush is still in office and it is
unlikely he will sign it. Can they pass
this? No, the requirements are triggered
because this is legislative action.
e. Uni-Cameral Powers (Textual Argument): The
Constitution prescribes 4 instances where either
House can act alone outside its bicameral legislative
role.
i. Art. I §2, cl. 5: The House of Rep. alone was
given the power to initiate impeachment;
ii.Art. I, §3, cl. 6: The Senate alone was given the
power to conduct trials following impeachment;
iii.Art. II, §2, cl. 2: The Senate alone was given
final unreviewable power to approve or to
disapprove Presidential appointments;
iv.Art. II, §2, cl. 2: The Senate alone was given
unreviewable power to ratify treaties
negotiated by the President.
2. Two-House Veto Provisions: Legislative veto clauses
allowing a veto only where both houses act concurrently are
just as unconstitutional as a single-house veto provision,
since both types of clauses deprive the President of his veto
power.
a. Independent Regulatory Agencies: These things
are created by an act of Congress but they are not
located within the executive branch; instead, they are
supposed to be independent. If a decision is made by
them, it will not be presented to the President nor can
the President remove the independent Agency. While
this is not a violation of the separation of powers,
there is still no room for a legislative veto.
i. Formalistic Approach: Even when bicameralism
is satisfied and presentment is arguably

50
uninvolved, the Court still says this it is a
legislative act and must comport with
constitutional Procedure.
1. Ex: Process Gas Consumers Group v.
Consumers Energy Council (FTC and
Federal Energy Regulatory Commission):
However, the dissent noted that because
the agency was truly independent, the
regulations based by them have the
force of law without the President’s
concurrence or veto power. Thus, the
legislative veto would not interfere with
the President’s control over the agencies.
3. Anti – Aggrandizement: An argument could be made on a
separation of powers basis that the veto was adjudicatory
and therefore impermissible because Congress sought to
aggrandize itself.
C. REVIEW
i. Presidential Veto
1. Must be presentment and bicameralism, explain the reasons
for these requirements.
ii.Line Item Veto invalid
1. Ex: Clinton v. New York
iii.Legislative Veto invalid
1. Ex: I.N.S. v. Chada
a. Violates Bicameralism and Presentment
b. Must be a legislative act
c. If an act is a legislative act, it must meet
bicameralism and presentment.
iv.Post Chada Cases
1. Two-House Legislative Veto
2. Independent Agencies

III. CONGRESSIONAL DELEGATION OF QUASI-LEGISLATIVE POWER TO “INDEPENDENT REGULATORY


AGENCIES” OR OFFICERS
A. GENERAL
i. Const. Art. I, § 1 (Vesting Power of Congress): All legislative
Powers herein granted shall be vested in a Congress of the United
States, which shall consist of a Senate and House of
Representatives
ii.Const Art. I, § 6, cl. 2: No Senator or Representative shall, during
the Time for which he was elected, be appointed to any civil Office
under the Authority of the United States, which shall have been
created, or the Emoluments whereof shall have been encreased
during such time; and no Person holding any Office under the
United States, shall be a Member of either House during his
Continuance in Office.
b. THE NONDELEGATION DOCTRINE
i. This doctrine involves the interaction between the legislative
function and the administrative state. While the Constitution is
silent on the issue of Congressional delegation to the Executive,
Art. 1, §1 requires that these powers be vested in Congress.
ii.Restrictive View

51
1. Ex: Panama Refining Co. v. Ryan: The Court invalidated a
provision of the National Industrial Recovery Act of 1933
which delegated to the Executive the authority to prohibit
the interstate transportation of oil violating state mandated
production quotas “to rehabilitate industry and to conserve
natural resourses.” HELD: The statute did not sufficiently
direct the Executive’s actions and therefore impermissibly
delegated legislative discretion to the President.
2. Ex: Schecter Poultry Corp. v. United States: The Supreme
Court rejected a statute authorizing the Executive to
promulgate a “live poultry code” which established
regulations governing the sale and quality of chicks, unfair
competition, and employee wage and hour limits. The Court
focused on the vagueness and broadness of the term
“Fair Competition” as used in the Act and stated that it
gave the Executive insufficient guidance.
iii.The Death of the Nondelegation Doctrine: The two cases
above are the only ones where the Court has invalidated statutes
under the Doctrine. The Court has upheld statutes authorizing the
Executive to promulgate regulations on vague “fair,” “reasonable,”
and “public interest” standards.
iv.Modern Non-Delegation Doctrine (Yakus v. United States):
This modern approach to delegation of authority to agencies of the
Executive Branch involved a challenge to the Emergency Price
Control Act, which allowed an agency to fix maximum process of
commodities and rents to prevent wartime inflation. It mandated
that the prices set be “fair and equitable.” HELD: The Court upheld
the statute stating that there were proper penal guidelines, clear
rules, etc.
1. Modern Formulation of the Intelligible Principle
Standard (From J.W. Hampton, Jr & Co. v. United States to
Yakus): “Only if we could say that there is an absence of
standards for the guidance of the Administrator’s action, so
that it would be impossible in a proper proceeding to
ascertain whether the will of Congress has been
obeyed, would we be justified in overriding its choice of
means for effecting its declared purpose preventing
inflation.”
v.Reviving the Non-Delegation Doctrine: Schecter has never
been followed, but has also not been overruled. Justice Renhquist,
in Industrial Union Department v. American Petroleum Institute,
advocated for its resuscitation stating that the Court should not be
worried about reinvigorating a discredited doctrine when its goal is
to ensure that Congress itself make critical policy decisions.
1. HYPO: Could Congress start a new session on first day, and
give president plenary power to have full discretion for the
next two years and then adjourn for the subsequent two
years? A: Probably not because Congress is delegating such
broad authority to Executive. This may be an instance where
the Court could revive the doctrine by looking at: (1) Const.
Art. 1, §1; (2) Political Justifications; (3) Congressional
Accountability; (4) Need for Predictability.
C. SEPARATION OF POWERS ISSUE – APPOINTMENT AND REMOVAL OF EXECUTIVE PERSONNEL

52
i. While the nondelegation doctrine has been ignored, the separation
of powers issues underlying the legislative delegation of power
remain significant. In determining whether there is a violation of
separation of powers, look at the underlying motive of the
legislation.
ii.Removal by Congress
1. RULE: Congress may not reserve to itself the power to
remove an executive officer.
a. Ex: Bowsher v. Synar (The “Gramm-Rudman-Hollins
Case”): Congress passed the Gramm-Rudman Act to
reduce federal budget deficits by requiring automatic
across the board cuts to federal spending. The Act
gave a key role to an “independent” government
officer in carrying out the automatic cut provisions:
The Comptroller General. By Separate older
legislation, Congress reserved to itself the right to
remove the officer for specified reasons. HELD: The
Court struck down statute because it gave the budget
cutting power, an executive power, to a legislative
entity, namely the Comptroller General. The C.G. was
a legislative entity because he could be removed by
Congress and could not constitutionally exercise the
powers given to him by the Act. This, the Act is
invalid.
iii.Congress Restricting Executive Power of Removal
1. RULE: Congress may limit the President’s right to remove a
purely executive officer, so long as the removal restrictions
are not of such a nature that they impeded the President’s
ability to perform his constitutional duty.
a. Ex: Morrison v. Olsen: The statute here required the
Attorney General to investigate allegations of
wrongdoing by executive officers and apply for the
appointment of a special prosecutor if further
investigation was warranted. A three-judge panel
appointed the special prosecutor. Once the special
prosecutor was appointed, she could only be removed
by the Attorney. HELD: The Court upheld the statutes
and stated that the removal provisions did not restrict
the President’s powers as to violate separation of
powers. The Attorney General could only terminate
the independent counsel for “good cause”, and thus
the President retained the power to make sure she
was acting competently.
d. INTERFERENCE WITH, OR UNDUE DELEGATION TO, THE JUDICIAL BRANCH
i. As shown above, separation of powers issues arise when Congress
delegates law-making power to the President or interferes with the
President’s powers. Similar separation of powers issues can be
presented by action that takes place at the boundary line between
Congress and the Judicial Branch, or the boundary between the
Executive and Judicial Branches.
ii.General Rule: The Judicial Branch’s role cannot be abridged by
action of one of the other branches, and conversely, functions that
are the appropriate job of the other two branches cannot be given
instead to the Judicial Branch.
53
iii.Delegation of Legislative Powers
1. RULE: Congress has flexibility in assigning the Judicial
Branch tasks that might be considered law-making ones, at
least where the subject matter (1) Relates to the role of
the courts; and (2) As long as moonlighting does not
undermine the integrity or impartiality of the judicial
branch.
2. Ex: Mistretta v. United States: The United States Sentencing
Commission, set up by Congress, was supposed to develop
mandatory guidelines that federal judges would have to
apply in setting sentences for federal crimes. Congress
provided that of the seven voting members (all to be
appointed by the President with the advice and consent of
the Senate and removal by the President for good cause), at
least 3 must be federal judges. Thus, the Commission is
located in the Judicial Branch. HELD: The Court upheld the
Commission.
a. Plaintiffs argued that Congress was assigning to the
judges on the Commission not the job of interpreting
the law (a proper judicial role), but the law-making job
of making sentencing guidelines (a legislative
function).
i. Non-Delegation Doctrine: P’s argued that
Congress granted the Commission excessive
legislative discretion. The Court found no
violation because the guidelines were definite
and specified, and thus did not violate the
intelligible principal standard from Yakus.
ii.Separation of Powers: There is no danger of
encroachment or aggrandizement or erosion of
the integrity of the judicial branch because:
1. Location of Commission: (1) Congress’
decision to create an independent
rulemaking body to promulgate
sentencing guidelines and to locate that
body within the Judicial Branch is not
unconstitutional unless Congress
has vested in the Commission
powers that are more appropriately
performed by the other Branches or
that undermine the integrity of the
Judicial Branch. (2) “Twilight Area”
of nonadjudicatory activities of the
Judical Branch – While the judicial power
is limited to “cases” and “controversies,”
there exists a constitutional area in
which separate Branches merge. Here,
Sentencing is a particular judicial
function that is shared by the Branches
and falls in this category (i.e. Analogy to
Federal Rules of Civil Procedure).
2. Composition of the Commission: The Act
does not impermissibly interfere with
judiciary because: (1) Text of
54
Constitutions does not have an
Incompatibility Clause applicable to the
judiciary like there is for the legislature
(Art. 1, §6, cl. 2); (2) Historical Argument
(i.e. John Marshall being Secretary of
State and Chief Justice); (3) Not
mandatory, but voluntary acceptance on
part of Judges; (4) Will not affect judge’s
impartiality (Judicial independence from
President—implausible to believe
opportunity to serve on USSG
Commission would cause judges to
change their Art. III decisions).
3. Presidential Control: The Act does not
authorize the President to remove, or in
any way diminish the status of the Article
III judges as judges.
iii.Scalia Dissent: (1) The rules are binding as
law and the judge who disregards them will be
reversed; (2) The courts should not have any
legislative power.
3. Are there dangers in giving judges powers beyond article III?
a. No Advisory Opinions;
b. Undemocratic – There is no remedy if we do not like
these guidelines. Judges are not elected and have life
tenor
4. Contrast the Court’s Functional Approach in Mistretta
to its “Formalistic Approach” in Chada.
5. Examples of additional powers of judges:
a. Power to appoint an independent prosecutor;
b. Push for unreasonably harsh or lenient guidelines;
c. Power to discipline attorneys;
d. Power to appoint contempt attorneys to prosecute
contemptees.
i. Civil Contempt: Jail until you comply
ii.Criminal Contempt: Fines

IV. THE WAR AND MILITARY POWERS AND THE COMMANDER-IN-CHIEF


A. GENERAL – THE WAR POWER
i. As seen below, (Const. Art.1, § 8, cls. 11-16 & Const. Art. II, § 2, cl.
1 & cl. 2) Congress has the initial power to declare war and
maintain armed forces, but the President, by use of his
55
Commander-in-Chief power over the Army and Navy, carries out
any war that is so declared.
ii.Separation of Powers issues arises to ways: (1) The
President’s right to commit our armed forces abroad without
congressional approval; and (2) the President’s right to detain and
try enemy combatants who have been captured.
B. CONSTITUTIONAL PROVISIONS
i. Const. Art. II, §2, Cl. 1: THE PRESIDENT SHALL BE COMMANDER IN CHIEF OF THE
ARMY AND NAVY OF THE UNITED STATES, AND OF THE MILITIA OF THE SEVERAL STATES,
WHEN CALLED INTO THE ACTUAL SERVICE OF THE UNITED STATES ….
ii.The War Power - Congress
1. Const. Art. I, §8:
a. Cl. 11 – Declare War
b. Cl. 12 – Raise & Support armies
c. Cl. 13 – Provide & maintain a Navy
d. Cl. 14 – Make Rules Re: Land & Naval Forces
e. Cl. 15 – Calling Forth Militia
f. Cl. 16 – Organizing Militia
C. THE WAR POWERS RESOLUTION – THE PRESIDENT’S RIGHT TO COMMIT OUR ARMED
FORCES ABROAD WITHOUT CONGRESSIONAL APPROVAL
i. Overview
1. Sudden Attack: It is settled that the President may commit
our armed forces to repel a sudden attack on the U.S. itself.
a. Attacks on allies: Unclear
b. Preemptive strike: Unclear
2. Presidents have not really followed this resolution since it
was enacted. They claim it is an unconstitutional
encroachment on executive authority.
a. Opponents of the Resolution argue that in temporary,
defensive situations the President should be able to
act unilaterally for the nation.
b. The conflict arises between the gray area between
repulsion of sudden attack and a full-scale war.
3. Judicial Solution?: Although the President has committed
American armed forces to military action without declaration
of war, the courts have rarely passed on the constitutionality
of such action because Congress has acquiesced in such
action.
a. HYPO: What should the Supreme Court do if an issue
on the constitution of the War Powers Resolution
came about? Ex: Obama sends troops to Sudan,
Congress doesn’t like this and passes a statute
cutting military funding. A: The Court may not even
get involved because it is a Political Question.
ii.§2 Purpose and Policy
1. (a) Congressional declaration: Insures that the collective
judgments of both the Congress and the President will apply
to the introduction of U.S. forces into hostilities, or into
situations where imminent involvement of hostilities is
clearly indicated by the circumstances .
2. (c) Presidential executive power as Commander-in-
Chief; limitations: The President’s power to introduce
forces can only be exercised pursuant to: (1) a declaration

56
of war, (2) specific statutory authorization, or (3) a national
emergency created by attack upon the U.S., its territories or
possessions, or its armed forces.
iii.§3 Consultation; initial and regular consultations: In every
instance possible, the President must consult Congress before
introducing armed forces, and must regularly consult Congress
thereafter until they are withdrawn.
iv.§4 Reporting requirement: Whenever the President introduces
forces with Congress’ declaration, he must submit a written report
within 48 hours to Congress, and then once every 6 months
thereafter.
v.§5 Congressional action . . .
1. (b): If Congress does not affirmatively authorize within 60
days, the president must terminate and withdraw the troops
unless: (1) Congress has declared war or has enacted
specific legislation; (2) has extended by law the 60 day
period; or (3) Is physically unable to meet as a result of an
attack on the U.S.
2. (c): Concurrent resolution for removal by President of
the U.S. Armed Forces: Notwithstanding (b), at anytime
Armed Forces are engaged in hostilities outside the US.
without Congress’ consent, such forces shall be removed by
the President if the Congress so directs by concurrent
resolution.
D. PRESIDENT’S RIGHT TO DETAIN AND TRY ENEMY COMBATANTS WHO HAVE BEEN CAPTURED
i. NOTE on Older Detainee Cases: (1) Ex Parte Milligan (Civil War
Case): People who were agitating around war effort were detained.
As long as civilian courts are open, U.S. citizens in non-rebelling
states have right to be tried in civilian courts, not military
commissions. The Defendant was accused of being a spy (not an
actual belligerent) but denied charge. (2) Ex: Quirin Case (Nazi
Saboteur case): Gov’t has power to detain U.S. citizens in military
jurisdiction if they have violated “laws of war” (defined under
internat’l law). Such persons get habeas corpus review in Art. III
federal courts. It was undisputed that defendants were involved in
attempted sabotage.
ii.Authorization for Use of Military Force Act (“AUMF”): “[T]he
President is authorized to use all necessary and appropriate force
against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks that
occurred on Sept. 11, 2001…in order to prevent any future acts of
international terrorism against the U.S. by such nations,
organizations, or persons.”
iii.“Combatant Detainees” Decisions: In these decisions, the
Supreme Court considered the due process and separation of
powers issues arising out of the war in Afghanistan.
1. Ex: Hamdi. v. Rumsfeld (Procedural Due Process): A U.S.
citizen was captured in Afghanistan and detained
incommunicado in a military brig in the U.S. HELD: The
Court stated that the initial capture was authorized by
Congress in AUMF. However, the Court rejected the
Executive’s argument that it had the power to indefinitely
detain persons it had determined to be “enemy combatants”
and to do so without a hearing.
57
a. RULE: Enemy combatants are entitled to, at a
minimum:
i. “notice of the factual basis for the
classification” and
ii.“a fair opportunity to rebut” before a
“neutral decisionmaker”
b. Policy for Having Detainees Held
Incommunicado: Prevents them from talking or
discussing plans with the outside world; prevents
communication with others in the terrorist network
2. Ex: Hamdan v. Rumsfeld (2004) (Military Commissions):
Following the cases above, the Bush Administration sought
to “try” certain “detainees” (Hamdan) in “military
commission tribunals” rather than Article III court or court-
martial. The rights of the defendants would be much
narrower in these tribunals (i.e. accused and counsel could
be excluded from the proceeding; could be barred from
learning was evidence was presented. HELD: The Court held
that the President lack the authority to impose the military
tribunal because: (1) Any Presidential authority to use
military commissions must be authorized by Congress or by
international law: (2) The Commissions were not authorized
by AUMF, Uniform Code of Military Justice which, by its
Uniform Procedures rule appeared to bar such tribunals
unless they followed the same procedures used in court
martial “insofar as practicable”(“UCMJ”), or any other
congressional act; and (3) The Commissions violated Geneva
Convention, which is binding authority.
a. Left undecided who was going to be a neutral
decision-maker and what kind of counsel and
presumptions would be available to detainee.
b. Presumptive of guilt, evidence is considered secret?
3. Ex: Boumediene v. Bush (2008) (Suspension of Habeas
Corpus Rights): In 2006, Congress responded to the
Hamdan decision and passed the Military Commission Act
(“MCA”). This act stripped the federal courts of jurisdiction to
hear habeas corpus claims by “enemy combatants.” In
essence, the Act basically overruled Hamdan. The Act gave
the President authority for these commissions and stripped
from Art. III judges the jurisdiction to review due process
objections. HELD: Invalid. The Court employed a functional
analysis derived from its prior precedents examining several
factors, including process, etc. The Court found that
detainees have habeas rights and that the Military
Commission procedures are not adequate for habeas review.
a. NOTE: Here, Congress gave the Executive the
authority to have military commissions where the
procedural standards were lower than regular trials.
This decision only struck down that portion of the act
that stripped federal judges from reviewing due
process concerns.
b. Const., Art. I, § 9, cl. 2: THE PRIVILEGE OF THE WRIT OF HABEAS
CORPUS SHALL NOT BE SUSPENDED, UNLESS WHEN IN CASES OF REBELLION
OR INVASION THE PUBLIC SAFETY MAY REQUIRE IT.

58
V. EXECUTIVE PRIVILEGE; IMMUNITIES
a. EXECUTIVE PRIVILEGE FOR CONFIDENTIAL INFORMATION
i. RULE: Absent a claim of need to protect military, diplomatic, or
sensitive national security secrets, there is no general doctrine
making the President or other members of the Executive Branch
immune from the judicial process (e.g. subpoenas).
1. Ex: United States v. Nixon: The Watergate tapes revelaed
that acting with the knowledge of Nixon, a number of people
were illegally investigated and harassed as enemies of
Nixon. A grand jury had named Nixon an unindicted co-
conspirator and the lower court issued a subpoena requiring
the attorney to turn over certain tapes. ISSUE: Whether the
president had unqualified immunity from the judicial
proceess. HELD: No, there is no absolute privilege; only a
presumptive privilege or “qualified immunity” that will more
than likely be outweighed by the role of the courts under Art.
III.
a. The Executive Branch will most likely argue that they
have absolute immunity because of: (1) The need for
protection of communications between high
government officials and those who advise and assist
them; and (2) the independence of the Executive
Branch insulates these situations from the judicial
sphere. (Separation of Powers).
2. Separation of Powers Inapplicable: See Marbury v.
Madison.
3. Privilege Exists: There is indeed a privilege for
confidentiality of Presidential communications in the
exercise of Art. II powers. How
4. Balancing Test – Requirement Of In Camera Hearings:
Compulsory process must be available for the production of
evidence, and this need for justice typically outweighs an
assertion of confidentiality. The Court will balance the two
interests (i.e. the presumption of privilege and the need for
the evidence).
a. Duty of Trial Court: An In Camera evidentiary review
will filter things that are relevant to a criminal
investigation and things that need to stay
confidential (i.e. would it jeopordize national security.
B. PRESIDENTIAL CIVIL IMMUNITY/LIABILITY
i. Civil Liability of President for Official Acts: The President has
absolute immunity from civil liability for all acts within the outer
perimeter/scope of his authority.
1. Ex: Nixon v. Fitzgerald: The P contended that he had been
fired from his Defense Department job in retaliation for his
testimony against the military. He sued Nixon for a violation
of his 1st Amendment rights.
2. Rationale: (1) The President cannot be too preoccupied with
stepping on toes and not performing his duties; (2) The
president would be distracted by the onslaught of litigation,
discovery process, etc.
3. Criminal Prosecution: There is no executive immunity.
Instead, if criminal crimes are committed while in office, the

59
President will more than likely be impeached. Thus, he
could be sued for the crime after he is out of office.
ii.No Presidential Immunity for Non-Official Acts: (1) There is
no immunity – not even qualified immunity – for acts that the
President takes that are completely unrelated to the carrying
out of his job; (2) If the allegedly tortious act took place prior to
the time when President took office, then absolute civil immunity in
Nixon does not apply; (3) there is no privilege to “temporary
immunity” and the President can be sued while in office.
1. Ex: Clinton v. Jones: Involved a private damages suit by
Paula Jones against Clinton while he was in office. HELD:
The Court found that there is no absolute immunity to acts
taken by the president taken before he takes office nor any
requirement for “temporary immunity.”
2. Rationale: (1) The pincipal rationale for affording certain
public servants immunity from suits is inapplicable to
unofficial conduct; (2) There is no separation of powers
issue because allowing the claim was not encroaching on the
Executive Functionl;
iii.Civil Immunity of Presidential Advisors – Qualified
Immunity: There is no absolute immunity; but there is a qualified
immunity.
1. RULE: Executive Branch officials are immune from civil
liability for official acts, unless these acts are shown to
violate “clearly established law,” of which, a reasonable
person should have been aware.
a. Ex: Harlow v. Fitzgerald
2. Congressional Subpoenas: Presidential Advisors still have
only qualified immunity; Stay pending Appeal.
a. Ex: United States v. Miers: White House fired U.S.
Attorneys. Miers was White House Counsel and
Congress wanted Miers to testify regarding the firings.
She filed a claim of executive privilege. Order
provided that Harriet Miers, former White House
Counsel, is not absolutely immune from compliance
with congressional subpoenas and must therefore
appear before the Committee on the Judiciary of the
U.S. House of Representatives (“Committee”) to
provide testimony. Also, required Miers to produce all
non-privileged documents responsive to the
Committee's subpoenas and provide a more specific
description of any documents withheld on the basis of
executive privilege than has to date been provided.
Court denies the Executive's motion for a stay
pending appeal. Miers was required to respond to the
subpoena.
i. See Harlow v. Fitzgerald
b. Can claim executive privilege on a question-by-
question basis. In a given instance, balance the
need for the information (if it is relevant and if it
would threaten national security or generalized
interests in allowing for candor among the advisors).
c. Concern in Granting Executive Privilege: Want
the President to have candor and unfettered
60
conversations with high-level Presidential advisors; do
not want them to worry about having to testify in front
of Congress.
3. HOLDING: The Executive's interests will retain protection
even absent a stay; Mier’s can invoke executive privilege on
a question-by-question basis; qualified immunity. No serious
harm to either Ms. Miers or the Executive's institutional
interests will occur due to that event [testimony at
Committee]. Mier’s must respond to Congressional
subpoena.
4. Standard of Review for Stay Pending Appeal: The
standard for granting a motion for stay pending appeal is
well-established in this Circuit. To prevail on such a motion,
a party must show:
a. (1) That it has a substantial likelihood of success on
the merits;
b. (2) That it will suffer irreparable injury if the stay is
denied;
c. (3) That issuance of the stay will not cause substantial
harm to other parties; and
d. (4) That the public interest will be served by issuance
of the stay.
e. *These are the same factors for a preliminary appeal.
f. Considered in Light Most Favorable to the
Congressional Committee.

61
VI. PRESIDENTIAL ELECTIONS
A. GENERAL
i. Constitutional Provisions
1. Const., Art. II, §1, cl. 2 (Presidential Electors): Each State
shall appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole
Number of Senators and Representatives to which the State
may be entitled in Congress; but no Senator or
Representative, or Person holding an Office of Trust or Profit
under the United States, shall be appointed an Elector.
2. Const. Art. II, §1, cl. 3 (Election Day): The Congress may
determine the Time of chusing the Electors, and the Day on
which they shall give their Votes; which Day shall be the
same throughout the United States.
3. 12th Amendment: Commits to Congress the authority and
responsibility to count electoral votes.
ii.How to Elect the President
1. State Legislature [not Congress] chooses manner of
selecting Electoral College delegates. (Art. II, Sec 1, Cl. 2);
Electoral College meets to count votes about 6 weeks after
election 3 U.S.C. 1 et seq (“Electoral Count Act”); Electoral
College sends results to Congress, (Amen. 12), which
convenes and certifies results on Jan. 6. (Electoral Count
Act)
2. If no majority, House chooses from among top 3 vote-
getters. (Amen 12)
3. If there’s a dispute regarding a state’s vote, Congress
decides. (Electoral Count Act)
4. President takes office Jan. 20. (Amen. 12)
b. 2000 PRESIDENTIAL ELECTION DRAMA
i. Ex: Bush v. Gore: The election came down to the vote in Florida.
The vote margin was very close; at stake were Florida’s 25
Electoral College votes. Gore sought manual recounts in four
counties. Bush objected to the recounts on the following grounds:
(1) Violation of equal protection rights; and (2) Procedures
ordered by the Florida Supreme Court violated Article II standards.
The Florida Supreme Court agreed with Gore and ordered the
manual recount of all “undervotes.” Appeal to Supreme Court,
reversed the Florida Supreme Court and signaled that the Article II
argument was colorable; granted a stay on the recount. On
remand, the Florida Supreme Court essentially agreed again with
the Gore position. Bush appealed again. The Bush II opinion
involves three basic opinions: (1) Per curiam opinion pursues an
equal protection analysis; (2) Concurring opinion focuses on Article
II considerations; (3) Opinions by the dissenting justices.
1. HELD: The Court issued a stay blocking the continuation of
this recount, then decided that no constitutionally-
62
acceptable recount could be completed within the time
available. The Florida Supreme Court’s method for
recounting ballots was a violation of the Equal Protection
Clause; the manual recount of the Presidential election
ordered by the Florida Supreme Court (to discern the “intent
of the voter”) violated Bush’s rights under the equal
protection doctrine because the state court had not provided
specific, state-wide standards to avoid arbitrary treatment of
voters. The Supreme Court said that this decision is “limited
to the present circumstances, for the problem of equal
protection in election processes generally presents many
complexities.”
2. Undervotes: Ballots on which, according to the machine
tabulation, no candidate was selected.
3. Florida Election Law: Gore sought relief pursuant to
Florida statute, providing that a receipt of a number of illegal
votes or a rejection of a number of legal votes sufficient to
cast doubt on the result of the election shall be grounds for
a contest. Florida courts have the power to overturn certified
election results. In Florida, a “legal vote” is one where you
can discern “the clear intent of the voter;” this is not clear.
a. Supreme Court ordered a state-wide recount. The
state-wide recount was never finished. There was a
strict deadline, but the Florida Supreme Court
extended the deadline.
4. Equal Protection Argument: There was no statewide
standard that each county board could use to determine
whether a given ballot was a legal vote. If you are going to
do a recount, you must be consistent and uniform in the
application of standards, or otherwise violate the Equal
Protection Clause.
a. Overvotes were excluded: Overvote is voting for
two candidates, and an undervote is counted as no
vote. Need a manual examination to reveal the clear
intent of the voter.
b. Standards varied between the counties, varied
within a county, and within a particular team
examining the votes.
c. There was no uniformity regarding who got to be
on the recount team.
d. RULE: Manual re-counts are per se constitutional.
e. RULE: The right to vote in state elections [after a
legislature provides this as the method for electing
candidates] is considered a fundamental right for
purposes of equal protection doctrine; need to ensure
uniformity to in standards for recount in order to
protect this fundamental right.
5. Political Question? (1): textual commitment of power to
another branch; (2) lack of judicially manageable standards;
(3) unusual need for deference to another branch; (4) need
for uniformity among the branches.
a. In Bush, an argument coutld be made that while this
is a federal branch doctrine, the Court could have
deferred to the state? The Court seemed to but a lot
63
of weight on the fact that it was a Presidential
Election.
b. The Dissent in Bush also poined out that the
provisions of Art. II and the 12th Amendment
demonstrate that there is a “textual commitment” of
Electoral College disputes to Congress, and, therefore,
the federal courts should avoid this.
6. Art. II Timing Problems: 3 U.S.C. §5 – Safe Harbor
Provision
a. If a state finalizes its Electoral College vote 6 days
before meeting of the Electoral College, Congress
cannot challenge its vote. Florida Election Code
required certification by this deadline, so it could take
advantage of the safe harbor provision. There was no
time to remedy the equal protection violation and still
be within the Safe Harbor Deadline.
i. RULE: If the legislature’s Art. II powers are to
be respected, the post-election state-court
actions must not frustrate the legislative desire
to attain the “safe-harbor” provision.
1. In Bush, the State court jeopardized the
“legislative wish” to take advantage of
the safe-harbor provision by extending
the deadline.
7. Stay/preliminary injunction: Remember the factors for
granting a stay/preliminary injunction in Miers; Supreme
Court interrupted an ongoing recount – must show these
things for stay:
a. Irreparable harm [if the recount was finished];
b. Likelihood of success on the merits;
c. Public interest;
d. Balance of harms to the various parties
i. Weighed in favor of stopping the recount and
deciding whether the recount could continue in
the second Bush v. Gore.

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PART V – PROCEDURAL DUE PROCESS

I. PROCEDURAL DUE PROCESS


A. GENERAL
i. Const. Amen. XIV §1 (Due Process Clause Applicable to
States): “…NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE
PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED STATES; NOR SHALL ANY STATE
DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW.”
ii.Const. Amen. V. (Applies to the Federal Gov.): IN ALL CRIMINAL
PROSECUTIONS, THE ACCUSED SHALL ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN
IMPARTIAL JURY OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN
COMMITTED . . .
1. Grand Jury Indictment for Capital Crimes; Double Jeopardy;
Self-Incrimination; Due Process of Law; Just Compensation
for Property
B. THE BASIC PROCEDURAL STRUCTURE OF DUE PROCESS AS A PROTECTION AGAINST STATE
ACTION
i. State Action Requirement: By its terms, §1 of the 14th
Amendment applies only to action by the state. Thus, these
provisions do not apply to private actions that are not tied
to the state or its agents.
1. POLICY: In their private dealings, people need a degree of
freedom to act in ways that would be illegal if done by the
state – EX: to prefer to associate with their friends rather
than “afford due process” to strangers.
2. When private conduct is intertwined with government
action, the Court must decide whether the action is really
attributable to the state. Three theories by which ostensibly
private conduct can be treated as state action are:
a. Public Function Doctrine: The private actor may be
conducting a government function, replicating
similar characteristic of a city, or acting as a surrogate
for the state (e.g. white primaries, “company town”);
i. Ex: Terry v. Adams (Jaybird Primaries): Private
activity of political parties setting up “private”
primary elections for state offices excluding
African Americans is unconstitutional because
conducting an election is a governmental
function.
ii.Ex: Marsh v. Alabama (Company-Owned Town):
Court held it was unconstitutional for a private
company that owned an entire town to prohibit
religious minorities to engage is speech related
activities on the property. While the land was
private, it became state action because its
management of the entire town was a
governmental function.
1. Contrast with Hudgens v. NLRB where
the Court held that a Shopping center
owner excluding individuals from
distributing handbills was engaged in a
private action, not state action, and thus
did not fall under due process.

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2. And Jackson v. Consolidated Edison
where the Court held that a private
corporation did not perform a
government function by conducting a
utility business, and it was not bound by
the d.p.c. when it cut off electrical
service to a customer.
b. The state may be involved deeply enough or
“inextricably intertwined” in the private action so
that it should be characterized as governmental
action (e.g., state leases the property & has business
ties);
i. Compare Burton v. Wilmington Parking
Authority: A private business discriminated
against blacks, but the shop was located in a
space leased from the city, and this
discrimination was state action with Moose
Lodge No. 107 v. Irvis: The Court held that
private club on private land that was
discriminatory did not become a state actor
simply because it was subject to extensive
liquor regulations.
ii.HYPO: Private parking company leased federal
parking garage and was discriminatory.
c. The state may have encouraged or validated the
private action to such an extent that it becomes
state action (e.g., restrictive covenants.
i. Ex: Shelly v. Kraemer: Court holds racially
discriminatory restrictive covenants for private
housing is a state action when they were
enforced by the State.
ii.Congressional Enforcement Due Process: §5 of the 14th
Amendment gives Congress power to “enforce” the 14th Amen. by
“appropriate legislation.” This provision enables Congress to
protect civil rights against private conduct that would not
otherwise be reached by the constitution.
iii.Incorporation Doctrine (See Below)
C. THEORIES OF INCORPORATION
i. The Bill of Rights and the States: One of the major functions of
the 14th Amendment’s Due Process Clause is to make the Bill of
Rights applicable to the states because as it was originally drafted,
it was only limited to the federal government. The amendment
requires that the states not deprive anyone of “life, liberty or
property without due process.” Nearly all the guarantees of the Bill
of rights have been interpreted by the S.C. as being so important
that if a state denies these rights, it has in effect taken away an
aspect of “liberty.”
ii.Total Incorporation: The theory that the Due Process Clause
simply applied the entire Bill of Rights to the states. While this is
simple and consistent, the Supreme Court has consistently
declined to adopt it.
1. States have a considerable interest in the right to
experiment and alter certain procedures. While nearly all

66
rights have been incorporated into the meaning of due
process, the following have not:
a. 2nd Amendment;
b. 3rd Amendment;
c. 5th Amendment: Right not to be subject to a criminal
trial without a grand jury indictment.
d. 7th Amendment: Right to a jury trial in all civil cases
(although right to jury in criminal case is incorporated)
The state can decide whether they want a jury
trial for a civil case, but not a criminal case.
iii.Selective Incorporation/Fundamental Rights: Under this
approach, each right in the Bill of Rights is examined to see
whether it is of “fundamental importance.” If so, that right is
“selectively incorporated” into the meaning of due process, and
thus binding on the states. It is not the amendments that limit the
state. Instead, it is the 14th Amendment Due Process Clause that
provides the limit against state interference with these
“fundamental” rights.
1. Pre-Duncan Test: A right is fundamental if it is “implicit in
the concept of ordered liberty.” (Palko v. Connecticut)
2. MODERN TEST: The Court today incorporates into the 14th
Amendment any guarantee which is “fundamental to the
American scheme of justice” – is it a fundamental
right?
a. Ex: Duncan v. Louisiana: Louisiana stated that the
Constitution imposes on the state no duty to give a
jury trial in a criminal case. The Supreme Court HELD
that the 14th Amendment’s Due Process Clause
incorporated the right to a jury trial as protected by
the Sixth Amendment in criminal cases because trial
by jury is fundamental to the American Scheme of
Justice.
i. If incorporated, then state/federal
distinction immaterial.
b. Rights Currently Covered:
i. Right to Compensation for property taken by
state;
ii.Rights of speech, press, and religion covered
by the 1st Amend.;
iii.4th Amend. rights to be free from unreasonable
search and seizure and to have excluded from
criminal trials any evidence illegally seized;
iv.Right guaranteed by the 5th Amendment to be
free of compelled self-incrimination; and the 6th
Amendment rights to counsel, to a speedy and
public trial, to confrontation of opposing
witness, and to compulsory process fro
obtaining witnesses.
d. Failure of the Privileges and Immunities Clause of the 14th
Amendment
i. 14th Amend. P & I Clause: NO STATE SHALL MAKE OR ENFORCE ANY LAW WHICH
SHALL ABRIDGE THE PRIVILEGES OR IMMUNITIES OF CITIZENS OF THE UNITED STATES.

67
ii.The Supreme Court has narrowed the meaning (Slaughter House
cases) to relative obscurity. The clause merely forbids state
infringement of the rights of national citizenship, not rights of
state citizenship. Thus, the protection afforded by this provision
is a very narrow grant and only rights, which are federal in nature
(rights through being citizens of the U.S.), are protected.
1. Ex: Leave or reentry to country; access to federal
waterways.

II. PROPERTY AND LIBERTY INTERESTS


A. GENERAL
i. The Due Process Clause does not bar the government from
procedural irregularities per se. Only when “life, “liberty” or
“property” are being taken is the government required to
act with procedural correctness. Thus, we are concerned with
just what types of interests are deemed to be ones in “liberty” or
“property,” such that they may not be impaired without procedural
due process.
ii.Before 1970: There was one notable area in which the Court was
reluctant to find that a “liberty” or “property” interest existed. This
was the area of benefits flowing from the public sector, including
governmental employment and monetary benefits (welfare). The
Court traditionally took the view that such items were a
“privilege,” not a “right”, and that they could therefore be
withdrawn without procedural irregularity.
iii.Growth in the 70’s entitlements: During the 70s, the Supreme
Court held that many types of government benefits previously
thought to be mere “privileges” rather than “rights” were in fact
interests in liberty or property, which could therefore not be taken
without procedural due process.
iv.Liberty: Physical liberty, arrest, mental institution, transfer of
prisoner from jail to mental institution, (prisoner does not have
liberty interest while in jail only unusual hardship), Physical
punishments (by government), parental rights.
v.Property: Such an interest does not exist merely because the
individual has a “need” for a benefit, or even a “unilateral
expectation” of it; rather, he must have a “legitimate claim of
entitlement” to it.
B. TWO BASIC QUESTIONS
i. Is there a cognizable Liberty or Property interest being deprived?
1. Property Interest in government benefits to which
you are ENTITLED.
a. Ex: Goldberg v. Kelly (Welfare Benefits): The Court
held that when public assistance is terminated, the
welfare recipient must be afforded a pre-termination
evidentiary hearing before the termination of welfare
benefits because there was a cognizable property
interest in welfare benefits. The Court distinguished
cases of discharged governmental employees, or
taxpayer’s denied a tax exemption, all of whom had
no constitutional right to a prior hearing. Here,
elimination of the welfare benefits at issue would
deprive the claimant “of the very means to live.”

68
i. RULE: Any governmental benefit that was
essential to a person’s livelihood or
simply an important interest was a form of
liberty or property to which due process was
attached. The importance of the interest was
determined as a matter federal law, not state
law.
1. Applies to claims made by governmental
employees, licensees, students,
prisoners, and debtors.
2. Property Interest in continued government
employment if it is not “at will” employment.
a. Ex: Bishop v. Wood: A city ordinance provided that a
permanent employee may be discharged if he fails to
perform work up to the standard of his classification,
or if he is negligent, inefficient, or unfit to perform his
duties. Petitioner argued that the statute should read
as a “for cause” termination rather than an at-will,
which would give him tenure, and that in so doing,
gave him a sufficient expectance of continued
employment to constitute a protected property
interest. The state court held that, under state law,
the statute should be interpreted as an at-will
termination. HELD: The state law foreclosed the
finding of a liberty or property interest and that the
discharged officer was entitled only to the procedures
provided by state law, not those required by due
process.
i. Property Claim: The Supreme Court reasoned
that he would only have a cognizable property
interest if he had some property interest as a
for-cause employment.
1. Scope defined by State Law: Whether
or not such a “legitimate claim of
entitlement (property interest)” to a
benefit exists is to be determined by
reference to state law. Here, the Court
held that they were not going to examine
the state-law issue because the state
court’s interpretation was tenable.
ii.Liberty Claim: Petitioner argued that
termination for cause will cause harm to his
reputation and would affect his chances to get
re-hired by someone else. The Court rejected
this argument and held that while it may make
him somewhat less attractive to other
employers, it would stretch the concept of
“liberty” too far because the Petitioner had the
opportunity to seek another job. The court
further contended that the 14th Amen. does not
necessarily cover ill-advised management
decisions. This is irrelevant in the courts eyes.
1. Dicta: If there was public disclosure of
discharge and a broader tarnishing of
69
reputation, then there may be a
restriction on your liberty interest.
3. Liberty Interest in any tangible restriction on your
liberty (e.g., detention).
a. Ex: If a person were detained or put in jail, this would
be a deprivation of a liberty interest.
ii.If so, what process is due? (See Below)

70
C. THE PROCESS THAT IS DUE
i. Once the court concludes that a constitutionally-protected “liberty” or
“property” interest has been impaired, the issue becomes: What
process is due?
ii.Components Observed in this Section
1. Notice – “Reasonably calculated …to apprise affected persons”
2. Hearing – If required, normally should involve notice;
opportunity to confront witnesses, present evidence; decision-
maker states reasons for decision.
3. Counsel – Usually can bring attorney at own expense;
government will pay in criminal cases with jail time, extreme
and complex civil cases like termination of parental rights,
involuntary civil commitment.
4. Proof/Evidence – For criminal: reasonable doubt; for termination
of parental rights & involuntary civil commitment: clear and
convincing.
5. Impartial decision-maker – Might be official of same agency,
though not same person involved in decision; can’t have
financial stake in outcome.
6. Freedom from arbitrary decisions
7. Appeal – Generally no right to one, except death cases; once
granted, must follow reasonable due process.
iii.Balancing Test (Mathews v. Eldridge): The Court’s present view
may be summarized as calling for use of a balancing test, in which the
costs of requiring a particular set of procedures will be weighed against
the benefits from the use of those procedures. So, the additional
procedure will be granted if: (Amount at stake for individual) x
(likelihood that administrative error will be reduced by using
procedural safeguard) > cost to the government of granting
procedure.
1. To determine “what process is due,” consider:
a. The private interest that will be affected by the official
action (so that the bigger the individual’s stake in the
outcome, the more safeguards would be required);
b. The risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards
(The risk of error that the outcome will be wrong if the
extra procedural safeguard(s) not added); and
c. The government interest, including the function
involved and the fiscal and administrative burden that the
additional or substitute procedural requirement would
entail.
2. Ex: Mathews v. Eldridge: The Supreme Court held that
termination of disability benefits under the Social Security Act,
based upon a determination of recovery, does not require a pre-
termination evidentiary hearing. The Court reasoned as follows:
a. Private Interests: Unlike the welfare payments at issue
in Goldberg, the disability payments were less likely to be
the individual’s sole source of income and caused only
limited deprivation, so his stake was lower than in

71
Goldberg. Moreover, the plaintiff would have a chance to
appeal.
i. DISSENT: There was real financial need. Disability
system set up to assume that you are so disabled
that you can’t work and so there is no showing of
financial need.
b. The risk of error if the extra procedural
safeguard(s) not added: The value of an evidentiary
hearing was less than in Goldberg because the
determination that a person remain eligible for disability
benefits turned upon an unbiased medical assessment of
the worker’s physical or mental condition, which
assessment could probably be evaluated through written
documents rather than oral testimony. Thus, the risk of
error was low.
i. DISSENT: There is no distinction between the way
in which you find financial need and medical
diagnosis.
c. The Government interest: Financial cost alone is not
controlling weight in determining whether due process
requires a particular procedural safeguard prior to some
administrative decision. However, conserving scarce fiscal
and administrative resources is a factor to be weighed.
Here, the burden would be substantial, and the cost of it
“may in the end come out of the pocket of the deserving
since resources available for any particular program of
social welfare are not unlimited.
i. The ultimate balance involves fairness in
administrative action. Substantial weight
must be given to the good faith judgments of
Congress in the procedures they have
provided. Here, the Act proscribed an effective
process for asserting claims prior to administrative
action, the right to an evidentiary hearing, and
subsequent judicial review.
3. Ex: Cleveland Bd. Of Ed. V. Loudermill: A public-sector employee
was fired for allegedly dishonestly answering that he was an ex-
felon. The Court held that he had a liberty or property interest in
his employment. The Court used the balancing test and stated
that the interest in continued employment and the opportunity
to present his side of the case before termination were not
outweighed by the government’s interest in having a quick way
to fire unsatisfactory employees. The court also noted the
erroneous deprivation factor and said the until the matter is
settled, the employer would continue to receive the benefits of
the employee’s labor. The court did not require a full evidentiary
hearing; instead he was entitled to notice, an explanation of
evidence, and an opportunity to present his side of the story.
iv.Notice
1. General Standard (Mullane v. Central Hanover Bank &
Trust Co.): Notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of

72
the action and afford them an opportunity to present their
objections.
a. Ex: Greene v. Lindsey: The Court disallowed service by
posting on the tenant’s door in eviction proceedings, since
notices were “not infrequently” removed by children.
Posting should be accompanied by mailed service.
i. NOTE Ratification of Private Action (Shelly v.
Kramer): Private action here is considered state
action because the state courts would enforce the
eviction judgment.
b. Ex: Jones v. Flowers: Notice of tax sale on property sent
by certified mail to taxpayer insufficient when certified
mail was returned as “unclaimed.”
c. Ex: A terrorist would have the right to have notice of what
the facts he is being charged of.
2. What Should be contained in the Notice (Aguchak v.
Montgomery Ward Co.): In interpreting its constitution, the
Alaska Supreme Court held that reasonable calculation required
that a form of summons adequately inform the affected person
of their rights and obligation. The appraisal must be in terms
understandable to a lay person of their rights.
3. Prejudgment Seizure: When Can It Be Done Without
Notice (Connecticut v. Doehr): Seizure by attachment,
garnishment, sequestration or similar remedies may cause
injury to both the debtor (may be able to avoid erroneous use of
the remedy if they have notice) and the creditor (a property
interest may be lost if they have to give notice). Thus, the
Supreme Court allows the use of ex parte seizure without notice
if:
a. Sworn supporting testimony;
b. Neutral Decision-making; and
c. Compelling, or exigent circumstances
4. Unduly Expensive Notice Requirement (Boddie v.
Connecticut): The Court held unconstitutional a system that
required an average fee of $60, including service, to bring a
divorce action, as applied to an indigent.
v.Hearing
1. Ex: Goldberg v. Kelly: After determining that due process
required a pre-termination evidentiary, the Court went on to
note that the type of hearing required did not have to be a form
of a judicial or a quasi-judicial trial. Instead, the only function it
was to serve was to produce an initial determination of the
validity of the Welfare Department’s grounds in order to protect
a recipient against an erroneous termination of benefits. Thus, it
must:
a. Be at a meaningful time and in a meaningful
manner;
b. Give the recipient timely and adequate notice detailing
the reasons for a proposed termination; and
c. An effective opportunity to defend by (1) Confronting any
adverse witnesses; and (2) by presenting arguments and
evidence orally.

73
i. The opportunity must be tailored to the
capacities of those who are to be heard (i.e.
Written submissions unrealistic for those who lack
education or professional assistance)
d. Counsel doesn’t have to be provided, but recipient must
be allowed to retain an attorney;
e. Decision maker should state reasons for
determination and indicate the evidence relied on;
although it need not amount to a full opinion or even
formal findings of fact and conclusions of law.
f. Impartial Decision-maker
i. Minimal involvement will not bar participation as
decision-maker.
vi.Proof Standard (Proof by the Opponent, Evidence
Development, and Discovery)
1. Ex: Santosky v. Kramer: The Santoskys were convicted of
permanently neglecting their children and their parental rights
were terminated. NY law required only a “fair preponderance of
the evidence” standard. HELD: Reversed. The Supreme Court,
after applying the Mathews factors, stated that the correct
standard was “clear and convincing evidence.” (as opposed to
an even higher criminal standard (“beyond a reasonable doubt”)
because it would erect an unreasonable barrier to state efforts
to free permanently neglected children for adoption.
a. Private Interests: Parental rights are a fundamental
right, and here, the state seeks to end them. Thus, the
interest is substantial.
b. Risk Of Erroneous Deprivation resulting from
current standard and alleviation by new standard:
A higher standard of proof would alleviate the possible
risk that a parent would be deprived based solely on a few
isolated instances of misconduct.
c. Governmental Interests: (1) a parens patriae interest
in preserving and promoting the welfare of children; and
(2) fiscal and administrative interests in reducing the cost
and burden of such proceedings. Here, a higher standard
is consistent with both interests.
vii.Counsel
1. Ex: Lassiter v. Department of Social Services: After being
convicted of brutal murder, the D had her parental rights
terminated for “willfully leaving her child in foster care.”
Lassiter, and indigent, claimed a due process denial in that the
state was not required to provide counsel for her in the
termination proceeding. HELD: The Court held that the
circumstances in the case do not require the state to provide
counsel and that counsel is not required in every termination
proceeding. The Court applied the Mathews test: (1) parent’s
interests in child rights and danger of criminal liability; (2) Risk
of erroneous deprivation may be high to an uncounselled parent
in a complex proceeding; (3) Government’s interest in correct
decision and a weak pecuniary interest. DISSENT: Pointed out
that the state is extinguishing the parent-child relationship and

74
thus the private interest was extremely high. Therefore, the
state’s interest does not outweigh.
a. The Government is required to provide counsel:
i. If the termination proceeding involved
complex issue(s);
ii.If there are allegations upon which criminal
charges could be based (i.e. risk of jail time – the
Supreme Court holds that you are entitled to have
an attorney paid for at the expense of the state).
1. If it is a civil case (Losing parental rights
where it is complex), then generally no
attorney provided. There are other
exceptions – Complex case involving
involuntary civil commitment (crazy bin) (You
are losing your liberty, not technically going
to jail)
iii.Expert witness testified;
iv.Particular troublesome points of law;
v.Counsel could have made a determinative
difference
b. In Goldberg, the government would not provide one. In all
situations, you are entitled to bring a lawyer if you can
afford one.
viii.Neutral/Impartial Decision-Maker
1. Ex: Ward v. Village of Monroeville: Petitioner was convicted of a
traffic offense in the Mayor’s Court. He claimed a violation of
due process because the Mayor, who presided over the court,
also was the chief executive of the village, a major part of whose
income was derived from the fines imposed by him on his
Mayor’s Court. HELD: The Supreme Court reversed the Ohio
Supreme Court, holding that the Mayor could not act in a
disinterested judicial capacity.
a. Tumey v. Ohio Principle: If a decision maker has a
direct, personal, substantial pecuniary interest in reaching
a conclusion against a criminal defendant, the Due
Process Clause of the 14th Amendment is violated because
the defendant is deprived of due process of law. In other
words, a decision maker can personally line his pockets
with proceeds if there is a guilty verdict.
b. The Ward Court extended this principle and
deduced a Temptation Test: If the decision makers
situation is one which would offer a possible
temptation to the average person as a judge to forget
the burden of proof required to convict the defendant, or
which might lead him not to hold the balance nice, clear
and true between the state and the accused, then due
process is violated.
c. There is also a tiny separation of powers issue (even
though it is a state – The Executive branch is making
judicial decisions).
d. General Rule: Need not be someone outside agency
entirely, but not someone initially involved in making the
administrative determination.
75
i. Ex: Goldberg v. Kelly: A welfare official could have
acted as a judge but not an individual official who
was involved in the pre-determination of
terminating the benefits.
ix.Freedom from Arbitrary Application of Law
1. Grossly Excessive Standard: In addition to these factors, if a
decision is arbitrary, it may be a violation of due process. A
prime example is that in some circumstances, the award of
punitive damages may grossly excessive that it violates a
defendant’s due process rights.
a. This principle stems from the notion of fairness in
providing a person fair notice of the conduct that will
subject him to punishment and the severity of the
penalty.
2. Three Guideposts guide the Court in determining if a punitive
damages award will be grossly excessive and be in violation of
due process:
a. The Degree of Reprehensibility of the
nondisclosure;
i. The more reprehensible the conduct, the higher the
amount of punitive damages that may be awarded
without violating due process.
b. The disparity between the actual harm and the
punitive damages award; and
c. The difference between the current remedy and
the civil penalties authorized or imposed in
comparable cases for comparable misconduct.
3. Ex: BMW v. Gore: Gore learned that his BMW had actually been
repainted after being exposed to acid rain. BMW’s policy allowed
for the reselling of the car and not disclosing the repairs to the
purchaser. The lower court awarded Gore $4,000 in actual
damages and $4 million in punitive damages (1,000 (cars with
same repairs) x $4,000 (diminished value)). The award was later
reduced to $2 million (500 times more) HELD: Following the
guideposts, the Court held that the punitive damages award
violated BMW’s procedural due process. Also, the court noted
that the fact that it was a large corporation did not diminish its
entitlement to fair notice. DISSENT: The 14th Amendment only
provides an opportunity to contest the reasonableness of the
award in state court. There is no federal guarantee that they
actually be reasonable.
a. Three Guideposts: (1) Reprehensible conduct not
present, BMW infliction on Gore was purely economic in
nature; (2) The punitive damages were 500 times larger
than actual damages; (3) This remedy is substantially
greater than other statutory fines in the state.
x.The Contours of Appeal Rights
1. RULE: There is no specific right to appeal in either criminal or
civil proceedings. However, if the state creates a right to
appeal, various due process rights attach. (Abney v. United
States)
a. EXCEPTION: Death penalty – Due Process Clause
and the 8th Amendment (Cruel and unusual
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punishment): In Gregg v. Georgia, the court upheld
capital punishment in GA, which had an automatic right of
appeal, noting that it was an “important procedural
safeguard against arbitrariness and caprice.” However,
the court did not condition an appeal as due process. In
Parker v. Dugger, the court actually vacated a death
penalty sentence because the state’s appellate review
was inadequate.
i. RULE: Once granted, the state must follow
reasonable due process whereby appellate review
is not administered in an arbitrary or irrational
manner.
2. Ex: Could a state decide that appeals in civil cases would be
decided by coin toss? See also Presidential Elections (Bush v.
Gore)
xi.Unanswered Procedural Due Process Questions: (1) Can they use
secret evidence against you?; (2) Is there a presumption of guilt
against you?; (3) Being held incommunicado?
1. See Hamdan Case – No secret evidence or presumption of guilt.
What if Congress authorized it? Then you would have a question
whether the constitution says it is ok and apply the Mathews
Test; Presumption of guilt: Nowhere in American jurisprudence
do we impose a presumption of guilt. What makes it different in
this situation? Is it because we are in war?

xii.Review
1. When a state in involved in abridging free speech or religion or
unreasonable search and seizure, how is it that the constitution
prevents them from doing it?
a. 14th Amendment Incorporation Doctrine: Incorporates
selected provisions of the Bill of Rights.
i. TEST: Whether a right is considered to be
fundamental, ask yourself if it is “implicit in
scheme of American scheme of justice.” If so, then
it is an explicitly guaranteed right in one of the first
8 amendments that applies not only to federal
government but also the states.
2. Ask yourself what liberty or property harm is being suffered
separate and apart from the any interest in a procedural
safeguards.

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PART VI – SUBSTANTIVE DUE PROCESS

I. GENERAL
A. OVERVIEW
i. Const. Amen. 14, § 1: “… NOR SHALL ANY STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY,
OR PROPERTY, WITHOUT DUE PROCESS OF LAW…”
ii.Constitutional Test – Strict Scrutiny Test
1. When a particular right or interest is protected by the
Constitution and is deemed fundamental (as opposed to an
economic right), the Court applies a stricter scrutiny of statutes
impinging upon these fundamental rights. Courts require:
a. States to demonstrate a “compelling” state interest to
support such a statute; and
b. Demonstrate that the government’s means are necessary
to the achievement of the compelling interest. (Narrow
Tailoring)
iii.Non-Textual “Fundamental” Rights (Unenumerated Rights):
1. While some fundamental rights are explicitly protected by the
constitution, there are some rights, although not explicit in the
text, that are so fundamental that one or more of the open-
textured provision of the Constitution may be interpreted to
protect them.
2. The same “fundamental rights test (strict scrutiny)”
applies as with the enumerated rights.
a. Ex: Right to vote in state elections; right to marry.
iv.History leading to the Modern Fundamental Rights View
1. Ex: Pierce v. Society of Sisters: S.C. invalided a state law
requiring children to go to public school recognizing a basic,
although non-textual, liberty of parent to direct the upbringing
and education of their children.
2. Ex: Meyer v. Nebraska: The Court invalidated a state law that
prohibited the teaching of foreign languages to children. The
Court found that “liberty” as used in the 14th amendment
included many non-econoimc rights, but nonetheless rights
(right to teach and acquire knowledge). The Court held that the
law had no “reasonable relation” to any end within the
competency of the state.
3. NOTE: From these early cases, we see the court recognizing un-
enumerated fundamental rights and also applying different tests
(Rational Basis Test in Meyer)
v.See The Lochner Era (Laissez fair etc.): This era has been critzicized as
unwarranted judicial action.
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II. REPORDUCTION, ABORTION, AND SEXUAL CONDUCT
A. FUNDAMENTAL RIGHT TO REPRODUCE
i. Ex: Skinner v. OK: The Court invalidated OK’s Habitual Criminal
Sterilization Act, which authorized the sexual sterilization of a “habitual
criminal,” defined as a person three times convicted of a felony
involving moral terpidutude. However, the Act provided that certain
offenses, such as embezzlements, would not be considered. HELD:
The Court invalided the forced sterilization for recidivists. The Court
focused on the equal protection clause of the 14th Amendment instead
of the Due Process Clause. However, the Court did say there was a
fundamental right of marriage and procreation and that it was
necessary to the very existence and survivial of the race.
1. NOTE on Sterilization of mental Defectives: (Ex: Buck v. Bell):
The Court actually upheld a law allowing involuntary sterilization
of retards stating that “three generations of imbeciles are
enough.” (This would probably be struck down today)
b. RIGHT TO PRIVACY: BRITH CONTROL AND THE BASIC STRUCTURE OF MODERN SUBSTANTIVE
DUE PROCESS – A FUNDAMENTAL UNENUMERATED RIGHT
i. The first major modern-era case which used a substantive-due-process
approach to protect a fundamental right was Griswold v. Conn. (The
Famous Contraceptives Case)
1. Ex: Griswold v. Connecticut: The statute at issue in Griswold was
a state law which forbade the use of contraceptives (and made
this use a criminal offense); the statute also forbade the aiding
or counseling of others in their use. The defendants were the
director of the local Planned Parenthood Association and its
medical director. They were convicted of counseling married
persons in the use of contraceptives. No users, married or
single, were charged in the case. HELD: The Court struck down
the state statute. While not making explicit use of the
substantive due process doctrine (Refusing to follow
Lochner v. New York), the court noted that the law operates
directly on an intimate relation of husband and wife and their
physician’s role in one aspect of that relation.
2. Penumbras & Emanations: The specific guarantees in the Bill
of Rights have penumbras, formed by emanations from those
guarantees that help give them life and substance.
a. The various guarantees create zones of privacy.
i. In Griswold, the Court found that the right of
married persons to use contraceptives fell within
this penumbra. The very idea [of intruding into the
bedroom] is repulsive to the notions of privacy
surrounding the marriage relationship.
3. Collectively, the following Amendments establish a zone in
which “privacy is protected from governmental
intrusion”:

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a. First Amendement: The emanation of free speech has a
penumbra of the right of association, though not explicitly
mentioned in the constitution, is a freedom.
b. Fourth Amendment: The ban on unreasonable searches
has a penumbra which protects a privacy interest is being
secure in your houses, papers, etc.
c. Third Amendment: Prohibition against the quartering of
soldiers in any house in times of peace without the
consent of the owner is another facet of that privacy.
d. Fifth Amendment: The Self-Incrimination Clause
enables a citizen to create a zone of privacy which
government may not force him to surrender to his
detriment.
e. Ninth Amendment: Provides the enumeration in the
Constitution, of certain rights shall not be construed to
deny or disparage others retained by the people.
4. NOTE: The Majority noted cases like Pierce, Meyer, Boyd, and
Mapp, to find that unenumerated fundamental rights had been
found to be protected in the constitution.
5. Goldberg’s Concurrence (Ninth Amendment): Connecticut’s
birth control law unconstitutionally intrudes upon the right of
marital privacy. The concept of liberty protects these personal
rights that are fundamental, and is not confined to the specific
terms of the Bill of Rights. Focused on the Ninth Amendment
and the belief that fundamental rights exist that are not
expressly enumerated in the first eight amendments of the Bill
of Rights.
a. Privacy – Possible Sources, Generally how you
decied if there is an unenumerated right:
i. Tradition;
ii.Specific guarantees in text of the Constitution;
iii.Experience of Society
6. Harlan’s Concurrence (Incorporation): The Due process
Clause of the 14th Amendment stands on its own bottom and
marital privacy is protected. He concluded that certain rights
that were implicit in the concept of ordered liberty should
receive heightened scrutiny.
7. White’s Concurrence: State laws, if reasonably necessary for
the effectuation of a legitamate and substantial state interest,
and not arbitrary or capricious, are not invalid, Hpwever, this law
was drawn to broadly, and didn’t fit the test.
8. Black’s Dissent: There are guarantees in certain specific
constitutional provisions which are designed in part to protect
privacy at certain times and places with respect to certain
activities. There is no constitutional right of privacy, though.
Thus, only those rights explicitly protected by a specific bill of
rights or other constitutional provion were protected by the 14th
amendment. The “right of privacy” didn’t fall into this category.
Black also criticized the majority’s interpretation of the Ninth
Amendment and the Due Process Clause of the Fourteenth
Amendment with the opinion that many judges will make
subjective considerations as to personal rights.

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9. Stewarts’ Dissent: Accepted the idea that the statute was
“unwise” and even “asinine.” He argued that there was no basis
for judicial action and would have left it to the political process.
ii.Post-Griswold
1. Ex: Eisentadt b. Baird (Expansion to all Individuals):
Whatever the rights of the individual to access contraceptives
may be, the rights must be the same for the unmarried and
the married alike. If the right of privacy means anything, it is
the right of the individual, married or single, to be free
from unwarranted government instrusion into matters so
fundamentally affecting a person as the decision to
reproduce.
2. Ex: Carey v. Population Services International: A NY statute
made it a crime to distrubte contraceptives to minors under 16,
for anyone other than a physician to distribute them, and
prohibited their advertisement. The P was a corporation
engaged in the mail order retail sale of nonmedical
contraceptives. HELD: The right of reproductive autonomy
exists even in non-private situations (i.e. the doctor’s office or a
hotel room).
iii.Criticizing Griswold and the Penumbra Theory
1. Result Oriented Reasoning: Result reached independently of
logic.
2. Persuasiveness of the Penumbra Hypothesis: Use of
emanations to discern a penumbra that does not partake of the
expression of any provision is questionable.
3. Why Not Infer Other Penumbras?: Other penumbras could
be inferred using the same reasoning, but the result might be
equally legitimate yet absurd in consequences. For example, can
one infer a penumbra of free enterprise, making businesses
immune from regulation?
a. Art. I, § 10, cl. 1 (Contracts Clause): “No State shall…
pass any …law impairing the obligation of contracts.”
b. Amend. 5 (Takings Clause): “. . . nor shall private
property be taken for public use, without just
compensation.”
c. What about the other economic Const. proisions?
i. Art. I, Sec 9, cl. 4—No tax unless proportionate to
census;
ii.Art I, Sec 9, cl. 5—No tax exports from State;
iii.Art. VI, Sec 1, cl. 1—Prior US debts valid.
4. Lack of a Principled Basis for Distinguishing Economic
Rights: The majority distinguished substantive due process
cases in the economic sphere, but is there really a basis for the
distinction?
a. How do you avoid the Lochner Era if you extend the right
of judges to find prenumbras in other areas?
5. Lack of Principled Bases for Distinguishing Fundamental
Rights: Griswold criticized for the dependence upon
idiosyncratic preferences of judges.
6. Search and Seizure Reasoning Lacks Persuasive Force: No
search was involved in this case.

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7. Lack of Limits and Inconsistency in Implications: No
discernible limits. Contradictory implications seem likely (i.e.
extending the reasoning to adultery, homosexuality, etc. where
the court drew the line).
8. The P & I Clause: Privileges of Immunities clause of the 14th
amendment could be argued as a substantive due process
clause. There is some historical eveidence that the framers
intended for life liberty and pursuit of happiness through the
privilege and immunities clause. However, the Supreme Court
interpreted the P & I clause in a very narrow meaning in the
Slaughter House Cases. They put great import on “of citizens of
United states” and held it only applies to those right inherit to
national citizenship (i.e. Right to travel between states and Right
to travel on federal waterways, etc.)
a. Thus, this clause was not readily available to individuals
who challenged statutes like Griswolds. There is an
argment that these cases could have been decided under
the clause instead of creating substantive due process.
iv.Defending the Griswold Reasoning
1. Penumbra Rationale: This doctrine is not wholly lacking in
legitimacy; doesn’t the doctrine of separation of powers
emanate from the structure of the constitution? What about
Congress’ implied powers?
2. Natural Law: Social compact underlying the Constitution
created certain natural rights.
3. Difficulty of Avoiding Unacceptable Results if Not
Protected: If we did not recognize some protection of
unenumerated fundamental rights, the statute at issue in
Skinner would be constitutional.
4. Importance of Marital and Sexual Privacy.
5. Fourth Amendment Right to Be Secure in One’s Person: If
one emphasizes personal security protected by the amendment,
the privacy rationale may be more strongly based than it
otherwise appears.
6. Avoiding State Imposition of Religious Values.
7. Equal Treatment of Men and Women or Rich and Poor:
Without birth control, the consequences of pregnancy fall far
more heavily upon women than upon men, and they fall more
heavily upon the poor than upon the wealthy.
C. ABORTION AND SUBSTANTIVE DUE PROCESS
i. The right of privacy found in Griswold has been extended to the
abortion context in Roe v. Wade, which recognized that the right limits
the legislature’s freedom to regulate abortion. However, Planned
Parenthood v. Casey, and Gonzales v. Carhart, cut back the effect of
Wade.
1. NOTE Ex: Union Pacific R. Co. v. Botsford (1891): The Supreme
Court recognized the right of personal privacy (bodily integrity)
does exist under constitution, i.e. Constitutional right to be free
from a court ordered surgical exam for P as part of discovery. It
would take compelling circumstances to order the exam.
ii.Ex: Roe v. Wade: The statute at issue made it a crime to “procure an
abortion” or to attempt one, except with respect to saving the

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mother’s life. HELD: The Court held that a woman’s right to privacy is
a fundamental right under the 14th Amendment. Therefore the
legislature has only a limited right to regulate, and may not completely
proscribe, abortions. Thus, the Court struck down the statute because
of its nearly complete ban on abortions.
1. State’s Historical Justifications for Statute:
a. Discourage illicit sexual conduct.
b. When most abortion laws were enacted, the procedure
was hazardous for a woman; Modern techniques have
altered the situation.
c. State’s interest in protecting prenatal life. Based on the
argument that human life is present from the moment of
conception. Only when the mother’s life is at stake should
the interest be weighed in favor of the mother.
2. Court’s Reliance on Precedent: Premised upon the right of
privacy, the Court pointed to Griswold, Pierce, Loving, and
Meyer, that these rights are implicit in the concept of ordered
liberty.
3. Unenumerated Fundamental Right: The Consitution does
not mention any right of privacy, but whether it be found in the
14th Amendment’s concept of personal liberty and
restrictions on state action, or in the 9th Amendment’s
reservation of rights to the people, these encompass a
woman’s decision whether to terminate her pregnancy.
iii.The “Compelling Point” Trimester Test: The Court found that the
woman’s right is not absolute. At some point in pregnancy, three
respective state interests become sufficiently compelling to sustain
regulation of the factors that govern the abortion decision:
1. 1st Trimester – Protection of Right of Privacy
a. A state may not ban, or even closely regulate,
abortions. Prior to this “compelling point,” the physician
and the patient are free to determine, without regulation
by the State, that the patient’s pregnancy should be
terminated.
i. Rationale: The motality rate for mothers having
abortions in the 1st term is lower than the rate for
full-term pregancies. Therefore, there is no valid
interest in protecting the mother.
2. 2nd Trimester – Safeguarding maternal health;
Maintaining medical standards
a. The state may protect its interest in the mother’s
health, by regulating procedure in ways that are
“reasonably related” to the preservation and protection
of maternal health.
i. Ex: A requirement that the operation take place in
a hospital rather than a clinic; licensing.
ii.Rationale: The motality rate for mothers is higher
that normal birth.
iii.No protection of the fetus: But the state may
not protect the fetus’ life during this period (i.e. a
flat ban on abortion during the second trimester,
etc.)

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3. 3rd Trimester – Protection of “potential life”
a. The “compelling point” is at viability. That is, the
capability of meaningful life outside the mother’s womb.
Therefore, after viability the state has a “compelling”
interest in protecting the fetus. It may therefore
regulate, or even proscribe, abortion.
i. EXCEPTION: The abortion still must be permitted
where it is necessary to preserve the life or the
health of the mother.
b. Consitutional Definition of “Person”: The Court
delined to define where life begins. It noted that
whenever the word “person” was found in the
Constitution, it referred to a born person. However, the
Court stated that the State as an interest in protecting
potential life and this interest begins at viability.
iv.Renquist’s Dissent: Argued that only a “mere rationality” test,
not a strict scrutiny one, should be applied. Thus, some regulation
could pass this standard. He noted that the traditional test applied in
the area of social and economic legislation is whether the law has a
rational relation to a valid state objective.
1. State Law Reference: 36 states had laws limiting abortion at
time of adoption of 14th amendment. Therefore, it is not a
fundamental right.
a. Majority Rebuttal (Loving v. Virgina: Anti-desimination
laws): At time of the founding of due process, these laws
were common. We don’t care about history, we are stiking
it down.
i. NOTE: What about Scalia’s opinion in Casey? He
said that at least for Loving, there was a textual
basis (E.P.C). Thus, you can put aside history and
go to text. On the right to abortion, however, there
is no textual argument.
2. Still has a limit: Exception for Mother’s life
3. Argument against Majority: What governmental organ is best to
decide what is based for the states? Judges or Legislature?
v.Standard of Review: Strict Scrutiny
1. The decision to have an abortion, like all reproductive decisions,
is an unenumerated fundamental right triggering strict
scrutiny. Thus, the mother’s right can be outweighed if:
a. There is a compelling governmental interest (i.e.
protection of mother after 1st trimester; protection of fetus
after 2nd trimester); and
b. The state law is narrowly tailored to further a compelling
government interest.
2. Application of Roe
a. Ex: Doe v. Bolton (Companion Case): Using Strict Scrutiny,
the Court struck down provisions of GA law stating that it
was not narrowly tailored when it required:
i. Accredited Hospital;
ii.Approval by hospital abortion staff;
iii.Three doctors must sign off on procedure

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b. Ex: Akron Case: The Court struck down a statute that was
not necesasily inconsistent with trimester approach, but it
nonetheless did not pass strict scrutiny:
i. Hospital requirement;
ii.Informed consent;
iii.24-hour waiting period;
iv.Restrictions regarding humane and sanitary
treatment of the fetus

a. THE PROGENCY OF ROE: ABORTION CONSENT, NOTIFICATION, ETC.


i. After establishment of a fundamental right to terminate pregnancy,
consent, notification to others, and funding, became an early
battleground.
1. Striking Down Requirements for Husbands’ or Parents’
Consent (Ex: Planned Parenthood v. Danforth): Struck down a
Missouri statute requiring a woman’s husband to consent to her
obtaining an abortion and also requiring consent of the parents
of an unmarried teenager under age 18, unless a physician
certified that the abortion was necessary to preserve her life.
HELD: The Court invalidated the statute reasoning that the
mother’s decisions outweighs a husbands veto because it is a
women’s body.
2. Adding a Judicial-Approval Escape Valve Does Not
Salavage a Blanket Parental Consent Requirement (Ex:
Bellotti v. Baird): Involved a case that added an escape valve to
the parental consent requirement; if mother’s parents do not
consent, consent could be obtained by order of a judge for good
cause shown, after such hearing as he deems necessary. HELD:
In order for parental consent requirements to stand, the state
must provide an “alternative procedure” in which a minor
can obtain the abortion by showing either:
a. That she is mature enough and well enough
informed to make her abortion decision; or
b. That even if she is not able to make the decisions
independently, the desired abortion would be in
her best interests.
3. Consent Laws Summary
a. Spousal Consent – Invalid
i. Danforth; someone’s gotta decide.
b. Parental Consent – Invalid, unless there is a judicial
bypass; judge can decide if:
i. Minor is mature enough, or
ii.Abortion is in minor’s best interest.
ii.Abortion Funding
1. Upholding the Refusal to Fund Even Medically Necessary
Abortions (Ex: Harris v. McRae): The Court upheld a statute
(Hyde Amendment) that prohibited the use of Medicaid funds for
abortions other than those necessary to save the life of the
mother. The Court reasoned that while there may be a
fundamental right of the freedom to choose to have an abortion,
the government need not remove any obstacles not of its own
creation hindering that choice. Thus, there is no constitional

85
right to have abortions funded by the government (nor is there
one for the right to contraception of going to private schools).
2. NOTE: Government can do “gag order” – restriction on abortion
counseling for doctors receiving federal funds (Rust v. Sullivan)

b. STARE DECISISOR FAILURE OF DUTY?: THE “UNDUE BURDEN” STANDARD OF THE CASEY
DECISION
i. Overview
1. Roe has been partially overruled. This occurred in Planned
Parenthood of Southeastern Pennsylvania v. Casey. In Casey,
the majority declined to overrule Roe v. Wade explicitly. Casey:
a. Upheld Roe’s “core holding” that women have a right to
abortion before viability; and
b. Replaced strict scrutiny and trimester approach with
“undue burden” standard.
2. New Standard (Casey)
a. Before viability: Regulation of abortion invalid if it
imposes an “undue burden” (i.e., a “substantial
obstacle”).
b. After viability: Regulation of abortion valid—UNLESS
abortion is necessary to protect “life or health” of mother.
3. Statute at Issue – The Penn. Abortion Control Act
required:
a. Informed consent prior to abortion;
b. Information provided 24 hours before the abortion;
c. For minors, informed consent of one of her parents, but
provides for a judicial bypass option.
d. A married woman must sign a statement indicated that
she has notified her husband of the intended abortion.
e. Exempts compliance with the requirements in the event
of a medical emergency.
ii.Holding of Planned Parenthood v. Casey (1992) (Plurality
Opinion):
1. Right to Choose: Recognized that it is a right of the woman to
choose to have an abortion before viability and to obtain it
without undue interference from the State.
2. Confirmation of States Interests: The State has a legitimate
interests from the outset of the pregnancy in protecting the
health of the woman and the life of the fetus that may become a
child.
3. Confirmation of the State’s power to restrict abortions after
fetal viability, if the law contains exceptions for pregnancies that
endanger a woman’s life or health.
a. Viability: The line is still drawn at viability, so that before
that time, the woman has a right to choose to terminate
her pregnancy. The States can interfere and ban
abortions after the moment of viability, unless abortion is
necessary to protect “life or health” of mother. Thus, still
the right to have an abortion post-viability if it is
necessary to protect the life or health of the mother.

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iii.The Undue Burden Standard: The court rejected the Trimester
Approach from Roe and articulated this standard: Only where state
regulation imposes an undue burden on a woman’s ability to
make the decision whether to abort does the power of the
state reach into the heart of liberty protected by the Due
Process Clause.
1. RULE: A state regulation will constitute an undue burden if the
regulation has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus.
a. Stuctural Mechanism: A state regulation that merely
creates a “structural mechanism” to protect the life of the
unborn that does not place a substantial obstacle in the
woman’s path is valid.
b. Maternal Health: A state regulation imposed to further the
health or safety of the woman is valid as long as it does
not unduly burden the right to abortion.
c. Post-Viability (Viability is still the standard): Once the
fetus is viable, this is the only time the state can place a
substantial obstacle, including prohibition (except
life/health of the mother).
2. This test indicated that a Court must consider the “effect” of a
regulation when deciding whether the regulation was an undue
burden. (E.g What is the effect of the spousal notification
requirement? This provided a basis for striking down the
provision).
iv.No More Strict Scrutiny?
1. Normally, when a right is determined unenumerated (not in
the text of the Constitution), in order for the Court to find it a
fundamental right, it would have to pass the strict scrutiny
test. Now, although the Court does not expressly state whether
abortion remains a fundamental right, it now changes the
standard of this unenumerated right, with the application of this
undue burden test. This standard, by its terms, is less strict –
does not have the narrowly tailored, least restrictive means test
that is present in strict scrutiny.
v.Applying the Standard in Casey:
1. Under the undue burden analysis, all of Pennsylvania’s
restrictions – except the spousal notification requirement – did
not impose an undue burden and, therefore, would be upheld.
The spousal notification requirement was found to constitute an
undue burden.
a. Informed Consent (VALID): Penn. statue required info
on the risks of abortion versus the risks of childbirth and
the age of the fetus.
b. 24 Hour Waiting period (VALID)
c. Parental Consent w/ judicial bypass (VALID)
d. Reporting Requirement for Clinics (VALID)
2. Spousal notification—INVALID because undue burden
a. The Court concluded that the risk to a married woman of
spousal abuse or other retaliation as a result of
notification to her husband did pose a substantial obstacle

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and thus the spousal notification requirement was held
invalid as an undue burden.
b. Right of the Husband??
vi.Stare Decisis Test
1. Old rule proven unworkable?
a. Roe rule had not proven unworkable.
2. Reliance hardship?: Whether the rule is subject to a kind of
reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of
repudiation.
a. There has been reliance on the availability of abortion in
the event that contraception should fail. While the effect
of reliance on Roe cannot be exactly measured, neither
can the certain cost of overruling Roe for people who
have ordered their thinking and living around that case be
dismissed.
i. Dissent: Rebuts with Plessy v. Ferguson, separate
but equal case. Dissent also says that if they
overrule, women can immediately start relying on
the new rule.
3. Related principles of law developed to make old rule
“remnant of an abandoned doctrine”?: Has the law
developed past the precedent, undermining its legal reasoning
by subsequent doctrine?
a. The Roe Court finds no evolution of the legal principles
since Roe.
4. Material change in facts?: Whether facts have so changed as
to have robbed the old rule of significant application or
justification; undermining factual assumptions.
a. The Roe Court stated that although the facts have
changed, they had not changed enough. The Court said
that one change was that viability is now earlier and late-
term abortions are safer. However, these facts do not
support overturning Roe. Time has overtaken some of
Roe’s factual assumptions, but they have no bearing on
the validity of Roe’s central holding.
vii.NOTE: Partial-Birth Abortion
1. Ex: Gonzales v. Carhart (2007) “Carhart II”: The Supreme Court
struck down a statute prohibiting doctors from using an abortion
procedure known as intact dilation and evacuation. After Bush
took office, Congressional opponents succeeded in securing a
federal law banning the intact D&E procedure, while allowing
other abortion procedures, including the regular D&E. Supreme
Court upheld the act. Court held that the absence of a health
exception did not mean the Act was unconstitutional. Further,
the Court held that the Act did not impose a substantial obstacle
on a woman seeking a late-term, but pre-viable, abortion.

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I. SEXUAL INTIMACY
A. PRE-LAWRENCE DECISIONS
i. Ex: Bowers v. Hardwick: A GA law prohibited sodomy amongst all
people. The Court analyzed the issue as whether the Federal
Constitution confers a fundamental right upon homsexuals to engage
in sodomy. HELD: The Court upheld the statute stating that it was not
a fundamental right because it was not in the concept of ordered
liberty or deeply rooted in the Nation’s history. Therefore, the statute
did not violate the Due Process Clause.
ii.Ex: Romer v. Evans: Colorado amended its constitution by a state-wide
referendum that said local government entities could not enact gay
rights ordinances. HELD: The Supreme Court invalidated the
amendment under an equal protection analysis. The Court noted
that anomisty towards homosexual, which was prevalent on the face of
the amendment is not a legitimate state interest. Thus, the inquiry
stops here because the law failed the rational basis test.
B. LAWRENCE V. TEXAS
i. Houston police responded to a disturbance at the apartment of the D’s.
When they arrived, they discovered the two men having sex. The D’s
were convicted under a Texas anti-sodomy statute that made it a
crime to engage in deviant sexual intercourse with another individual
of the same sex. HELD: The Supreme Court struck down the statute
under the 14th Amendment Due Process Clause through the
substantive due procees doctrine. The statutes do seek to control a
personal relationship that, whether or not entitled to formal recognition
in the law, is within the liberty of persons to choose without being
punished at criminals.
1. Liberty of Intimate Association: Ability to choose to engage
in certain intimate conduct and relationships. Freedom extends
beyond patial bounds. Liberty presumes an autonomy of self
that includes freedom of thought, belief, expression, and certain
intimate conduct. However, the Court did not find that this
right was fundamental.
a. Based on Right of Privacy: Adults may choose to enter
upon these relationships in the confines of their homes
and their own private lives and still retain their dignity as
free persons.
2. Limit on Liberty: The Court limited its holding and described
the various types of statutes that were not covered by the
Lawrence decision:
a. Minors;
b. Persons who might be injured or coerced or who are
situated in a relationship where consent might not be
easily refused;
c. Public Conduct or Prostitution;
d. It does not involve whether the government must
give formal recognition to any relationship that
homosexuals seeks to enter. (Gay Marriage)
3. Rational Basis Review: The Court never explicitly said that
this liberty was a fundamental right, and thus did not apply strict
scruity.

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a. The Court stated that the Texas statute furthers no
legitimate state interest which can justify its intrusion
into the personal and private life of the individual.
i. Counter Argument: Because there is not even a
legitimate state interest, there is no need to go to
strict scrutiny.
1. Overrules Bowers: The Bowers Court was incorrect in its
evaluation of the right at stake. Laws like the one in Bowers
have far reaching consequences, touching upon the most
private human conduct, sexual behavior, and in the most private
places, the home. Thus, it was not correct when it was decided,
and it is not correct today.
a. Stare Decisis Test from Casey:
i. Old rule proven unworkable?
1. Since Bowers, the Court has reaffirmed rights
of privacy (Casey) and affirmed in Romer the
targeting of homsexuals. Thus, Bowers has
been seriously eroded by case law.
2. Also looked at the European Court of Human
Rights.
ii.Reliance hardship
1. Reliance did not play a significant role in this
argument because people were not
structuring their lives around the ruling in
Bowers as they had been on Roe.
iii.Related principles of law developed to make
old rule “remnant of an abandoned
doctrine”?
iv.Material Change in Facts
1. The material change in facts aspect of stare
decisis concerns the reduction in state
statutes prohibiting this type of conduct.
2. Scalia’s Dissent: The majority describes this conduct as an
exercise of liberty and applies an unheard-of rational basis
review that has implications beyond this case. Nowhere does the
Court declare that homosexual sodomy is a fundamental right,
nor does it subject the Texas law to the standard of review that
would be appropriate (strict scrutiny) if this were a fundamental
right. Scalia is unwilling to recognize this as a fundamental right.
a. Moral Rights Legislation: Scalia found that the Texas
statute seeks to further the belief of its citizens that
certain forms of sexual behavior are immoral and
unacceptable. Thus, the State has a legitimate interest
that would survive rational basis review. This same
interest is seen in other types of legislation that have
been upheld in the past, but now would not survive
rational basis review. Therefore, he feelt that this decision
is the end to all moral legislation such as laws against:
i. Fornication;
ii.Bigamy;
iii.Adultery;
iv.Adult incest;
v.Beastiality; and
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vi.Obscenity.
If the promotion of majoritarian sexual morality is
not a legitimate state interest, none of the above-
mentioned can survive the rational basis standard
of review.
b. Shortcutting of Democratic Process/Gay Agenda:
Texas is well within its range of traditional democratic
action, and its hand should not be stayed through the
invention of a brand new constitutional right by a Court
that is impatient of democratic chance. If the law should
be repealed, it should be by the people and not imposed
by a governing caste that knows best (i.e. the Supreme
Court). Thus, the Court inappropriately allowed gays to
achieve judicially what they had been unable to achieve
politically in Texas.
3. O’Connor’s Concurrence (Equal Protection): The Texas
statute here applied only to sodomy between same-sex
partners, not to sodomy between opposite-sex partners. If the
statute was spread across the entire population equally, either it
will stand because everyone’s ok with it, or it will be overruled
because everyone will be mad.
a. Rational Basis: Also applies a rational basis review
under the Equal Protection Clause. The rational basis
standard for equal protection is the same as rational basis
for substantive due process; therefore, she reached the
same result as the majority. Without any other asserted
state interest, moral disapproval is not a sufficient
rationale under the Equal Protection Clause to justify a
law that discriminates among groups of persons.
A. FAMILY INTEGRITY
i. The Court has extended substantive due process rights to situations
involving an individual’s desire to live together, to marry, or to raise
their children in a certain way and that desire being interfered with by
the state’s desire to regulate zoning.
ii.Zoning & the “Non-Nuclear Family”
1. Ex: Village of Belle Terre v. Boraas: The village adopted a land
use restriction that limited land use to single-family dwellings.
The statute defined family to mean one or more persons related
by blood, adoption, or marriage, or not more than two unrelated
persons, living and cooking together as a single house-keeping
unit. HELD: The Court upheld the statute.
a. Rational Basis Review: The Court stated that the
ordinance fell within the category of economic and social-
legislation not infringing fundamental rights and should
be sustained since it bore a “rational relationship to a
permissible state objective.”
i. City’s need to control traffic, aesthetic
standards, and overcrowding.
2. Ex: Moore v. East Cleveland: A zoning ordinance, similar to Belle
Terre, limited cohabitation to the spouse, unmarried children,
parents, or parents-in-law of the nominal head of the household
or a spouse and dependent kids of ONLY ONE dependent child of
the head of the household. The definition of “family,” as used in
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the ordinance, prevented the plaintiff from living with her two
grandsons, who were first cousins (it would have been okay if
they were brothers). HELD: The Court struck down the
ordinance under the substantive due process doctrine of the
Due Process Clause of the 14th Amendment.
a. Fundamental Right of Family Composition: The right
of members of a family, even a non-nuclear one, to live
together was a liberty interest, and that the Court must
“examine carefully the governmental interests and the
extent to which they are served when regulation intrudes
upon family living arrangements.
i. Extended Family Protected
b. Moore distinguished from Belle Terre: The Court in
Belle Terre upheld a zoning restriction that excluded most
groups of unrelated people. Thus, unrelated persons
had no “fundamental” right to live together.
i. Reconciliation: In Moore, the nuclear family was
okay, but the extended family is what was in
trouble. It is this distinction is what makes it
unconstitutional. Thus, it is family relations, not the
rights of individuals to choose with whom they live,
that has fundamental status.
c. Strict Scrutiny Review/Intermediate Scrutiny: The
Court did not explicitly say that this was a fundamental
right, and it has been argued that either standard was
applied. However, we know the Court did not apply
Rational Basis because the Court referred to the Euclid
and Bell Terre cases and stated that they did not cover
the case. At any rate, the Court found that while the State
interests were “important or ligitamate,” the ordinance
served them marginally at best.
i. The State advanced the following interests:
1. Prevent Overcrowding;
2. Minimize traffic;
3. Parking congestion;
4. Avoiding an undue financial burden on school
system.
ii.NOTE: This is an example of a regulation that is not
“narrowly tailored” to governmental ends. In other
words, the closeness of fit of assertive ends
and the means employed by which to achieve
these ends are of an insufficient type. The
student should observed whether the law is
underinclusive or overinclusive.
3. HYPO: Laura Bush lives with husband George W. Bush; in-law
Grandpa George H.W.; daughter Jenna, her new hubby, &
newborn Newt; plus daughter Barbara and newborn Rudy.
a. Question: Can they all live together in Belle Terre? In East
Cleveland?

B. RIGHT TO MARRY

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i. Ex: Zablocki v. Redhail: The P attacked a Wisconsin law which required
that any parent who was under court order to support a minor child not
in his custody meet two requirements before permitted to remarry: (1)
payment of all court-ordered support; and (2) a demonstration that the
child was not currently, and was not likely to become, a public charge
(i.e. supported by welfare). HELD: The Court stuck down the statute
under the the Due Process Clause of the 14th Amendment.
1. Fundmental Right to Marry: The right to marry is part of the
fundamental “right of privacy” implicit in the fourteenth
amendment’s due process clause.
a. Strict Scrutiny: Applying strict scrutiny, the Court
concluded that the state’s interests were “legitimate and
substantial,” but that the state’s method of furthering
these interests unnecessarily interfered with the
fundamental right to marry.
2. Equal Protection: This case is important because it signifies
that, even without an equal protection analysis, the right to
marry is a fundamental right.
C. THE RIGHT TO INTERSTATE TRAVEL
i. This rights has been analyzed under: (1) The Dormant Commerce
Clause; (2) The Substantive Due Process Doctrine; (3) The P & I Clause
of the 14th Amendment; and (5) the 5th Amendment.
1. Ex: Edwards v. California: A California “Anti-Okie” Law stated
that “Every person that brings or assists in bringing into the
state any indigent person who is not a resident of the state,
knowing him to be an indigent person, is guilty of a
misdemeanor.” Edwards was convicted for bringin his poor
brother-in-law into Cali. HELD: The statute fails under any
known test of the validity of State interference with interstate
commerce.
a. Dormant Commerce Clause Analysis (Majority):
Congress’ Plenary Power over commerce includes
transportation of persons. While the state may justify a
statute of this type as a proper exercise of its police
power (i.e. influx of migrants resulting in problems of
health, morals, and finance), there is still a limit to a
state’s legislative activity. Here, the State is attempting to
isolate itself from the difficulties to all states by
restraining access to its borders. Thus, this prohibition is
not within the state’s police power.
b. P & I Clause of the 14th Amendment/Implicit
Fundamental Right to Interstate Travel (Douglas’
Concurrence): The right to travel between the States is
a fundamental right, one that is incident to national
citizenship protected by the P & I Clause.
c. NOTE – Structural Argument: The Carolene Products case
listed as a favorable category for judicial review “Review
of statutes directed at “discrete and insular
minorities; in particular, religious, national, or
racial minorities.” In Edwards, the indigent non-
residents, who are the real victims of the statute, were
not be able to exert political pressure on the Cali
legislature to change the policy.
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2. Foreign/International Travel
a. 5th Amendment: The Right to Travel abroad is an
important aspect of the “liberty” guaranteed by the Due
Process Clause of the fifth Amendment. Thus, the 5th and
14th Amendment prohibits the state or the federal
government from unduely infringing this right.
i. Ex: Aptheker v. Secretary of State: The Court struck
down a provision of the Subversive Activities
Control Act prohibiting members of Communist
organizations from applying for passports.
3. Limit on Right to Travel
a. RULE: Government has some authority to regulate travel;
e.g. for legitimate national security interests.
b. Ex: Haig v. Agee: Court upheld the revocation of the
passport of a citizen who announced his plans to travel
abroad for the purpose of exposing CIA officers and
agents, and taking the measures necessary to drive them
out of the countries where they are operating. Based this
on the ground that his travel was likely to cause serious
damage to national security.
D. RIGHT TO DIE
i. General Principles
1. A competent adult has a 14th Amendment “liberty” interest in
not being forced to undergo unwanted medical procedures,
including artificial life-sustaining measures. (Cruzan)
2. The state has an important countervailing interest in preserving
life. Thus, this interest entitles that state to require clear and
convincing evidence that the patient would have voluntarily
declined life-sustaining measures. (Cruzan)
3. Terminally-ill patients do not have a general liberty interest/right
in physician assisted suicide. (Glucksberg)
a. State’s Concern/Political Process
i. States can ban assisted suicide without
substantive due process problems;
ii.States can also allow assisted suicide, free from
federal government interference, based on
federalism concerns.
iii.The democrative political process is well suited for
this debate to continue.
ii.“Pullin’ the Plug” – Ex: Cruzan v. Missouri Dept. of Health: The Court
addressed the issue of when family members of an unresponsive
person could decide to with draw life-sustaining medical
measures. Nancy Cruzan had spent years in a persistent vegetative
state resulting from a car accident. Her parents asked the hospital to
remove artificial nutrition and hydration tubes, but the hospital refused
to do so without a court order. The Parent’s claimed that Nancy had a
14th Amendment right not to be kept alive by life-sustaining treatment.
Missouri law required a patient’s "surrogates" to prove by clear and
convincing evidence that the patient would want life-sustaining
treatment removed under the circumstances. The Missouri Supreme
Court held that the parents did not meet this burden and sustained the
hospital's refusal. HELD: The State’s continuation of life-sustaining
procedures did not violate Nancy’s 14th Amendment rights.
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1. Right Exists: A competent person has a constitutionally
protected liberty interest in refusing unwanted medical
treatment under the Substantive Due Process Doctrine. The
Court noted that the logical corollary of the doctrine of informed
consent (common law tort) is that the patient generally
possesses the right not to consent, that is, to refuse treatment.
a. Probably includes life-sustaining treatment: It is not
clear if this is a “fundamental” right or what standard of
review applies.
i. In Cruzan, the Court stated that whether a person’s
constitutional rights have been violated must be
determined by balancing his liberty interests
against the relevant state interests. Although, it
seems like a rational basis standard that they are
using.
ii.Dicta: The Court stated that for purposes of this
case, they would assume that the United States
Constitution would grant a competent person a
constitutionally protected right to refuse lifesaving
hydration and nutrition.
1. This is reaffirmed by Glucksberg, so this is
probably the case.
2. Clear and Convincing Standard Constitutional: When an
individual is incompetent and on life sustaining medical
treatment, the State’s interest in safeguarding against
potentional abuses may be furthered by imposing a clear and
convincing standard for determining if “pulling the plug” is what
the patient wants.
a. State can erect barriers to surrogate making this decision,
and need not remain neutral—can tilt scales toward
keeping patient alive, a substantial state interest.
b. In Cruzan, the parent’s evidence was Nancy Cruzan's past
statement that she would not want to live as a
"vegetable.” The statement was insuffient to pass the
standard.
3. O’Connor Concurrence: Would have to honor the patient’s
wishes even if it was a surrogate making that decision as long as
the evidentiary standard was met.
4. Scalia Concurrence: We ought to leave this issue to the
legislatures. But what is to prevent the legislatures from going
to far? The Equal Protection law saves us, which requires the
democratic majority to accept for themselves and their loved
ones what they impose on you and me.
5. Brennan Dissent: The only legitimate state interest here is
ensuring that the patient's wishes are followed. Once her
wishes are ascertained, the State cannot stand in the way. If the
dissent had its way, it would abrogate the clear and convincing
evidentiary burden. The State is required to be an absolutely
neutral arbiter. It can’t erect high evidentiary burdens to the
parents; maybe a preponderance of evidence.
iii.Physician Assisted Suicide – Ex: Washinton v. Glucksberg:
“Compassion in Dying,” a nonprofit organization in Washington that
provides counseling to terminally ill adults who are contemplating
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suicide, along with physicians and terminally ill patients, brought a suit
to challenge the constitutionality of a Washington statute prohibiting
assisted suicide. The P’s claimed that the statute was unconstitutional
because (1) it placed an undue burden on a constitutionally protected
liberty interest to commit physician assisted suicide without
government interference; and (2) violated the Equal Protection Clause
of the Fourteenth Amendment because people already had a right to
pull the plug. ISSUE: Whether the “liberty” specially protected by the
Due Process Clause includes a right to commit suicide which itself
includes a right to assistance in doing so. HELD: The Supreme Court
held that the ban on assisted suicide in Washington did not violate the
Due Process Clause.
1. No Historical Right: For over 700 years, Anglo-American
common-law tradition has punished or disapproved of suicide
and assisting suicide. By the time of the Fourteenth
Amendment, most all states criminalized assisted suicide.
2. No Fundamental Right: The right to assistance in committing
suicide is not a fundamental liberty interest protected by the
Due Process Clause.
a. NOTE: New 2-Part Unenumerated Fundamental
Rights Test: Rehnquist states that the established
method of substantive-due-process analysis has two
primary features:
i. The Due Process Clause specially protects those
fundamental rights and liberties which are,
objectively, “Deeply rooted in Nation’s history and
tradition,” and “implicit in the concept of ordered
liberty.” AND
ii.Requires a careful description of the asserted
fundamental liberty interest. (New Prong)
3. Rational Basis Test: Because there was no fundamental right,
the Court examined the State’s ban of assisted suicide under
this standard, finding that the statute rationally related to
legitimate government interests.
a. Legitimate Government Interests: (1) Preservation of
Human Life; (2) Preventing Suicide as a Public Health
problem and Protecting vulnerable groups (i.e. poor,
elderly, and disabled from abuse, neglect, coercion, and
undue influence; (3) Protecting Integrity of Medical
Profession; (4) Slippery Slope: The State could rationally
fear that legalizing physician assisted suicide would set it
down a slippery slope towards voluntary and perhaps
involuntary euthanasia.
4. Distinguished from right in Cruzan: The right established in
Cruzan was not deduced merely from abstract concepts of
personal autonomy. Rather, it was derived from common law
concepts and torts. Thus, the right was entirely consistent with
this Nation’s history and constitutional traditions.
iv.Federalism Concerns – Physician Assisted Suicide
1. Ex: Gonzales v. Oregon: Involved the Oregon Death with Dignity
Act, which recognized the right to assisted suicide for
Oregonians. The Bush Administration and Attorney General John
Ashcroft issued an interpretive ruling declaring the ODWDA to
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be invalid, and that physician’s use of CSA covered drugs to
assist suicide is not a legitimate medical practice. The ruling
sought to criminalize the practice notwithstanding the ODWDA.
Challengers disputed the Attorney General’s power to override
the constitutional authority of the State of Oregon’s decision to
permit certain assisted suicide. HELD: The Supreme Court
analyzed the case as if it were a matter of administrative law. As
a matter of federalism, the administration’s position could not
stand because there would be a radical shift of authority from
the States to the federal government to define general state
medical standards.
a. NOTE (Scalia Dissent): Said the federal government
should be able to trump state law on this matter.

PART VII – EQUAL PROTECTION

I. GENERAL
a. Cont. Amen. 14, §1 (Equal Protection Clause): [N]O STATE SHALL MAKE OR ENFORCE
ANT LAW WHICH SHALL . . . DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE
LAWS.
B. OPERATION OF THE CLAUSE
i. The Equal Protection clause means that similar people must be treated
similarly. The clause and its analysis are triggered whenever
the government engages in a classification in a law. Every law,
to have effect, does classify people in some manner. However,
classification here is not used in its broad sense. Instead, it means laws
that break up the population into various subgroups.
ii.State and Federal Actions: The guarantee of equal protection
applies to actions by both the state and federal government.
1. State and local Governments: The 14th Amendment itself applies
only to these entities.
2. Federal government: Nothing in the Constitution requires that
federal government provide equal protection of the laws.
However, the Fifth Amendment Due Process Clause has
been held to have an “equal protection component” that
forbids invidious discrimination so that when the federal
government engages in a classification which, if it were by a
state, would violate the 14th Amendment, the Court treats it as a
violation of the 5th Amendment Due Process Clause.
a. Ex: Bolling v. Sharpe: The Court held that the federal
government could not operate racially segregated schools
in the District of Columbia.
iii.Classifications
1. Facial Discrimination;
2. Discriminatory Purpose;
3. Discriminatory Application
4. It possible to have a mixture of these.
C. THE THREE-TIERED SYSTEM OF EQUAL PROTECTION ANALYSIS
i. The type of analysis applied depends on what persons are classified
and what rights or interests are burdened. Whenever there is not a
heightened review or a middle tier review, go to the default of
Rational Basis. The three tiers are:
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1. Rational Basis (Reasonable Classification) Test: This is the
lowest standard of review where the question is simply
whether the law is rationally related to a legitimate state
interest.
a. Most laws affecting economic rights, housing, living
arrangements, taxes, employment, and a host of others
are governed by this standard.
b. HYPO: A state run apartment complex bars rental by red-
haired people. What standard of review should be used?
A: Rational Basis – The fact that there is a classification
means that equal protection analysis applies. However,
strict scrutiny doesn’t apply here because it must be
based on a “suspect class” that the Supreme Court has
recognized as needing protection. Here, red haired people
aren’t a suspect class and thus, rational basis would be
used.
2. Strict Scrutiny (Similar to least restrictive means): This is
the highest standard which requires a showing that a law is
“narrowly” tailored to advance a “compelling” (not
merely legitimate) state interests. Wherever a law affects:
(1) Suspect Classes; or has an impact on (2) Fundamental
rights, the law will be subject to strict scrutiny.
a. Suspect Classifications (R-A-N): If a law discriminates
against a suspect class (a politically powerless or
unpopular minority), it will be subject to this review.
Typically, it is on the basis of Race, Alienage, and
Nationality.
i. HYPO: A state college dormitory has one wing for
blacks and one wing for white students. If there
were a constitutional challenge for this, what
standard would apply? A: Strict Scrutiny because it
is a classification based on race.
b. Fundamental Rights:
3. “Middle Tier”/Intermediate Level Scrutiny: There are
certain classifications that the Court considers sensitive but not
so sensitive as to warrant the highest degree of scrutiny. Here,
the state must show that the law is “substantially” (not
merely rationally) related to the achievement of an
“important” (not merely legitimate, but not so strong as
to be compelling) state interest. Thus, it does not have to be
the “least restrictive means.”
a. The Court has invoked this level in cases involving (G-A-
C):
(1) Gender; (2) illegitimacy; (3) children of illegal aliens;
and (4) arguably other classes.
ii.Deciding if a Particular Group is a Suspect Class for Strict
Scrutiny Review
1. History of Discrimination;
2. Immutability;
a. Ex: A person who is black cannot change that immutable
characteristic. However, if a law discriminated against the
class of people who wear trousers below their waists cant

98
come in, this is no immutable because they can pull them
up.
3. Discrete and insular minority;
4. Ability to utilize the political process;
5. NOTE: You do not have to meet everyone of these factors to get
a heightened review.
iii.General Principles of the Standards of Review: The way
classifications work is that they identify some trait in people, and
presume a certain connection between that trait and the legislative
goal.
1. The “Fit” of the Statute: In looking at the classification, see if
there is a “perfect fit” between the Trait and the harm.
2. Overinclusive Classifications: When all persons who have the
Trait contribute to the Harm, but some people who have the
Trait might not contribute to the Harm.
3. Underinclusive Classifications: All persons who have the
Trait contribute to the Harm, but persons without the Trait also
contribute to the Harm.
4. Over and Under-inclusiveness: The classification is over-
inclusive as to some groups of people but under-inclusive as to
others.

II. EXPRESS CLASSIFICATIONS


a. SEGREGATION: SEPARATE BUT EQUAL TREATMENT
i. Strict Scrutiny has traditionally been reserved for those classifications
which operate to the disadvantage of a racial or ethnic minority. Here,
a classification utilizes race, but does not explicitly disadvantage either
one race or another. Claims that these statutes provide equal
protection have failed, re: School Desegregation Cases.
ii.The Separate But Equal Doctrine (Plessy v. Ferguson): Initially, the
Supreme Court treated the doctrine as not in violation of the equal
protection clause. In Plessy, the court upheld a LA law calling for
separate-but-equal accommodations for white and black railroad
passangers.
iii.Overruling the Doctrine
1. Ex: Brown v. Board of Education (“Brown 1”): Plaintiffs, students,
were denied admission to schools attended by white children
under laws permitting segregation based on race. They calimed
that their equal protection rights were violated alleging that the
segregated public schools were not “equal” and could not be
made “equal.”
a. Pre-1954: The Court upheld the doctrine enunciated in
Plessy after the Court found in a series of pre-1954 cases
involving graduate school education that school facilities
available to Blacks were not in fact “equal” to those given
to whites. Thus, it was not necessary to overrule Plessy.
b. Facilities are in fact “equal”: The Court noted that
unlike the pre-1954 cases, there were findings that the
two schools were equalized, or were being equalized, with
respect to the buildings, curricula, qualifications, and
other “tangible” factors. Thus, the Court could not just

99
turn to these factors; they had to turn to the effect of
segregation itself on public education.
2. HOLDING: Noting that the Sweatt and McLaurin cases reviewed
certain “intangible factors,” the Court held that these factors,
regardless of the equality of tangible factors, necessarily
prevented children who were restricted to all-black schools from
receiving equal educational opportunities. Thus, the Court held
that separate educational facilities are inherently
unequal and therefore deprive blacks of equal protection under
the 14th Amendment.
a. Policy Analysis – Importance of Education: Today,
education is perhaps the most important function of state
and local governments. It is doubtful that any child may
reasonably be expected to succeed in life if he is denied
the opportunity of an education. Such an opportunity,
where the state has undertaken to provide it, is a right,
which must be made available to all on equal terms.
b. Social Science Approach: Segregation with the
sanction of law has a tendency to retard the educational
and mental development of Negros and to deprive them
of some of the benefits they would receive in a racially
integrated school system. A sense of inferiority affects
the motivation of a child to learn.
c. Historical Approach: The Court noted that the
legislative history of the 14th Amendment was
inconclusive. At the time of its passage, blacks were not
educated at all, thus it is no help in determining Congress’
intention with respect to school segregation.
i. Status of education then and now: We must
consider public education in the light of its full
development and its present place in American life
throughout the Nation.
3. NOTE – Justice Thomas’ Concurrence in Missouri v. Jenkins:
Thomas’ concurrence rejected the view that the Brown decision
depending on sociological and psychological date concerning
the feelings of inferiority created by de jure
segregation.“Segregation was not unconstitutional because it
might have caused psychological feelings of
inferiority….Psychological injury or benefit is irrelevant to the
question where state actors have engaged in intentional
discrimination – the critical inquiry for ascertaining violations of
the Equal Protection Clause.
iv.Explicit Racial Classifications & Marriage
1. Ex: Loving v. Virginia: A Virginia statute made interracial
marriages between white persons and other races a crime. A
white man and his black wife were convicted for cohabiting as
husband and wife. They challenged Virginia’s law. Virginia
defended on the theory that the antimiscenagation law
burdened whites and blacks equally. HELD: The Supreme Court
reversed the conviction finding that the statute violated the
Equal Protection Clause.
a. Application to other Contexts besides
Education/Strict Scrutiny: The Court held that, even in
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a setting other than education, the state’s use of racial
classifications would be tested by the strict scrutiny
standard. The Court further held that Virginia failed strict
scrutiny because it did not have even a legitimate
government interest, let alone a compelling one. The only
interest it saw being served was furthering discrimination,
preservinf racial integrity of citizens (whites) and white
supremacy. Thus, because these aren’t even ligitimate,
there is no need to go to strict scrutiny.
b. NOTE - Stewart Concurrence: Argued that state
criminal laws where race was an essential element of the
crime were per se invalid. This was much simpler than
the invocation of strict scrutiny, but it would be narrower
because he would apply it only to criminal laws.
2. What if the State had banned all interracial marriage? E.P.
analysis would still prevail (i.e. Hispanic man wants to marry a
black woman). It is still a racial classification that is
unconstitutional and Strict Scrutiny would still be applied.
v.NOTE – NO Race Considerations in Deciding Custody of Children:
1. RULE: Even if the compelling governmental interest is a
benevolent one. Under EP, state cannot bootstrap its own
discrimiation by relying on third party discrimination. This
cannot be justified.
2. Ex: Palmore v. Sidoti: A divorced white mother with custody of
her white child married a Black man. The state court transferred
custody to the child’s father, on the ground that the child should
be spared “the social stigmatization that is sure to come.”
HELD: Applying strict scrutiny, the Court held that the concerns
of the state court were probably real, but held that they could
not supply the compelling interest that was required. Indeed,
the Court held that the state could not give effect to private
prejudices.
vi.NOTE – The Limits of “Racial” Discrimination – Ethnic, Religious, or
Regional Groups as Suspect Classes
1. Ex: St. Francis College v. Al-Khazraji: Plaintiff was a U.S. Citizen
born in Iraq. He alleged that the college was liable to him for
denying him tenure based on his race. He sued under 42 U.S.C.
§1981, which prohibits certain racial discrimination even by
private persons. HELD: The Supreme Court disagreed with the
district court and held that § 1981 reached discrimination based
on national origin, even though it isnt’t racial.
2. Ex: Shaare Tefila Congregation v. Cobb: Extended the holding of
St. Francis College to discrimination against Jews. As evidence
from St. Francis, Jews and Arabs were among the peoples then
considered to be distinct races and hence within the protection
of the statute.

III. PURPOSE V. EFFECT


A. GENERAL
i. If a statute is not facially discriminatory (does not involve an express
classification), then turn to these concepts to see if a plaintiff has a
valid claim for a violation of the Equal Protection Clause of the 14th
Amendment.
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B. DISCRIMINATION IN ADMINISTRATION
i. RULE: Though a law itself may be fair on its face, and impartial in
appearance, yet, if it is applied and administered by public authority
with an evil eye and an unequal hand, there is a denial of equal
protection of the laws.
1. Ex: Yick Wo v. Hopkins: A San Francisco ordinance bars the
operation of hand laundries in wooden buildings, except with the
consent of the Board of Supervisors. The Board gives permits to
all but on of the non-Chinese applicants, but to none of the
nearly 200 Chinese applicants. HELD: Although the ordinance is
neutral on its face, there was discrimination in its administration,
and this discrimination violates the Equal Protection Clause.
C. DISCRIMINATORY PURPOSE
i. If a statute is shown to discriminate on its face, no showing of
discriminatory purpose will be necessary. Furthermore, if an individual
can show that administrators of the law apply in a disadvantageous
way, no additional showing of purpose is required. However, if the
law is facially neutral and is applied according to its terms, the
individual will have to prove that a discriminatory purpose was
behind the statutes enactment.
1. Ex: Washington v. Davis: Involved a suit brought by unsuccessful
black applicants for positions in D.C.’s police department. They
had failed a written test of verbal ability and reading
comprehension (blacks failed 4 times more than whites). The P’s
claimed that this differential impact made the hiring process
violative of equal protection even though those who composed
or selected the test had no intent to discriminate against blacks.
The P’s also provided evidence suggesting that performance on
the test did not necessarily correlate with job performance.
HELD: Racial discrimination violative of the E.P.C. only exists
where it is a product of a discriminatory purpose.
2. General Requirement of Purposeful/Invidious
Discrimination: The Equal Protection Clause is violated only by
purposeful or invidious discrimination.
3. Disprate Impact: While a showing of disproportionate racial
impact is a factor in ascertaining intent, it can never by itself be
sufficient to prove discriminatory intent. Standing alone, it does
not trigger the rule that racial classifications are to be subjected
to the strictest scrutiny and are justifiable only by the weightiest
considerations. (Declined to accept the Disparate Impact theory
advanced in Griggs v. Duke Power Co.)
a. NOTE: An invidious discriminatory purpose may often be
inferred from the totality of the relevant facts, including
the fact, if it is true, that the law bears more heavily on
one race than another.
b. Application to Davis: The D.C. Police Department’s
affirmative efforts to recruit more black policemen,
negated any finding of a discriminatory purpose in the use
of the test. The Court was concerned that absence of an
intent requirement might invalidate a whole range of tax,
welfare, public service, regulatory and licesnsing
statutes that may be burdensome on one race and not
the other.
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4. The Relationship between the Rule or Law &
Constitutionality: The question does not turn on whether the
Court agrees with the business judgment of the particular
regulation, even if it is the case that it is not related to
employment etc. Again, this may be a factor, but what is key is
whether there is discriminatory intent.
5. Alternative Remedy: The Plaintiff’s could have proceeding on
a Disparate Impact claim under Title VII of Civil Rights Act.
ii.Must be “Because of” not “In spite of”
1. RULE: Awareness of the consequences of disparate impact is
not sufficient to prove discriminatory purpose; only if the
legislature chose its course “because of,” and not merely “in
spite of,” its adverse effects upon a minority, could there be said
to be intentional discrimination.
a. Ex: Personnel Administrator of Mass. v. Feeney: P, a
woman, challenged a Mass. civil service statute which
gave an absolute hiring preference to any veteran who
obtained a passing score on a competitive exam. Since, at
the time the suit was brought, over 98% of the veterans
in Mass. were men, the preference operated
overwhelmingly to the benefit of males and the the
detriment of females. HELD: The statute was not
intentionally gender-based. A significant number of men
were also non-veterans. The Court found no evidence that
the disparate effect upon women was, in the legislature’s
mind, anything more than a foreseeable but undesired
inevitable by-product of the basic decision to favor
veterans. Thus, the preference did not violate the E.P.C.
iii.The Motivating Factor Test & Discriminatory Intent
1. Although a discriminatory purpose is required for invocation of
strict scrutiny, such a purpose need not be the sole purpose of
the statute. It is enough that the purpose was a “motivating
factor” in the legislature’s decision to enact the statute.
a. Ex: Village of Arlington Heights v. Metropolitan Housing
Development Corp.: The P, a non-profit developer wanted
to built racially integrated low income housing. It needed
village committee approval to do so by granting a zoning
change from single family to multi-family. The Committee
denied the permit and the Non-Profit sued under equal
protection.
2. Two Motivations: If there are two purposes that motivated the
legislature to enact a statute, and only one of these was
discriminatory against the suspect class, the presence of the
second, non-discriminatory motive, will not immunize the statute
from strict scrutiny.
3. The “Motivating Factor” Test: In deciding if discriminatory
purpose was a motivating factor, look to the following factors:
a. Impact: Look to circumstantial and direct evidence of
intent (i.e. whether the law bears more heavily on one
race than another; clear pattern, unexplainable on
grounds other than race; emerges from the effect of state
action).

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b. Historical Background: Particularly if it reveals a series
of official actions taken for invidious purposes.
c. Sequence of Events leading up to challenged
decision
i. In Arlington, if the property had always been zoned
multi-family, but was suddenly changed to single-
family when town learned of MHDC’s plans to erect
integrated housing.
d. Procedural Departures from the norm
e. Substantive Departures: Particularly if the factors
usually considered important by decision makers strongly
favor a decision contrary to the one reached.
f. Legislative History: Especially where there are
contemporary statements by members.
i. Ex: Hunter v. Underwood: Blacks and whites who
were disenfranchised by an Alabama constitutional
provision denying the vote to persons convicted of
any crime involving moral turpitude alleged that it
denied them equal protection. HELD: Supreme
Court struck down the provision. The evidence
demonstrated that the provision was enacted with
the intent of disenfranchising blacks.
iv.NOTE: Passage of Time
1. If the law had a motivating factor when passed, but the
motivation is now gone, it might be valid or it might get struck
down because of the original motivation when it was enacted. It
could always be re-enacted after it is struck down in the future
because the discriminatory motivation no longer exists today.
a. See Hunter v. Underwood.
v.NOTE: Peremptory Challenges – The Batson challenge (Ex:
Batson v. Kentucky)
1. These challenges enable either side to exuse a certain number
of potential jurors “without cause.” Prosecutors may not use
such challenges based solely on the race of the juror.
a. Criminal defendant needs to show:
i. Membership in class; and
ii.Use of peremptories against that class
(statistical evidence)
b. Once he showed that, the burden then shifts to
prosecutor to show race-neutral explanation (need
not be enough for “for cause” strike)
2. NOTE: Later extended to use by defense; gender, civil juries.

IV. RACE-CONCIOUS REMEDIES & AFFIRMATIVE ACTION


A. GENERAL
i. Benign Discrimination: This type of discrimination uses race as a
factor to remedy or rectify past discrimination by the State.
ii.Standard of Review: Strict Scrutiny
1. A race-based classification will receive the same strict scrutiny
whether the classification is “benign” or “invidious.”
a. See Grutter (2006) below.

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iii.Remedying Societal Discrimination Insufficient: Remedying past
discrimination by society in general is NOT a compelling governmental
interest sufficient to satisfy the strict scrutiny standard
1. See Grutter
2. Remedying General Societal Discrimination v. Actor-Specific Past
Discrimination: In Paradise, the court upheld a 1-to-1 remedy
similar to a quota. In cases involving general societal
discrimination, however, the Court tends to approve rarely, and
only when the “remedy” is not a quota.
b. REDRESSING OF CLEAR PAST DISCRIMINATION: EQUIATABLE REMEDIES AGAINST SPECIFIC
EMPLOYERS FOR PAST DISCRIMINATION
i. Ex: United States v. Paradise: Alabama Dept. of Public Safety
systematically excluded blacks from employment. After eleven years,
the Dept. still did not have promotion procedures that did not
disadvantage blacks, despite a district court order to remedy it. The
District court a ordered one-black-for-one-white promotion requirement
(one black trooper for each white trooper elevated in rank) as long as
qualified black candidates were available, until the Dept. implemented
an acceptable promotion procedure. The Dept. of Justice argued that
this was unconstitutional. HELD: The Supreme Court upheld the order
finding it narrowly tailored to further a compelling governmental
interest.
1. RULE: Government bodies, including courts, may
constitutionally employ racial classifications essential to remedy
unlawful treatment of racial or ethnic groups subject to
discrimination.
a. NOTE: The mere fact that there has been general
“societal” discrimination is not enough to justify
race-conscious measures.
2. Standard of Review.The Paradise Court was not sure what
standard to apply, but the Court stated that the remedy
survivied even strict scrutiny, so that is what was probably
applied.
3. Guidance for determining whether Race-Conscious
Remedies are Narrowly Tailored:
a. Necessity of Relief;
i. In Paradise, the promotion order was necessary to
eliminate pervasive, long term, and open
discrimination. Ensure compliance with decrees by
inducing the Dept. to implement a promotion
procedure that would not have an adverse impact
on blacks.
b. Efficacy of alternative remedies;
c. The flexibility and duration of the relief (Including
availability of waiver provisions);
i. Flexible in application to all ranks.
ii.Requirement may be waived if no qualified black
candidates are available.
iii.If budget cuts necessitate a promotion freeze, the
Dept. not required to make these promotions in
compliance with the court’s order.

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iv.Endures only until the Dept. comes up with an
acceptable procedure that does not have a
discriminatory impact on blacks.
d. Relationship of the numerical goals to the relevant
labor market;
i. Looking at % in applicant pool, general pop,
qualified pool.
ii.Numerical relief ordered and percentage of
nonwhites in the relevant workforcePromote one-
to-one until 25% of the rank in question was black
25% represents the percentage in relevant labor
market.
e. Impact of the relief on the rights on third parties
i. The one-for-one requirement did not impose an
unacceptable burden on innocent parties.
ii.Does not require layoff.
ii.Post-Paradise: The Adarand Case
1. Apply strict scrutiny when race/ethnicity used in
affirmative action.
2. Same standards apply when it’s done by federal
government or by the state government. (Look for race-
based government set-asides programs or affirmative action
schemes passed by Congress)
3. Cannot distinguish between benign and invidious
discrimination.
C. THE PURSUIT OF DIVERSITY IN A STUDENT BODY
i. Decision in Bakke
1. Powell writes a concurrence and resolves it in favor of the
affirmative action program.
2. For decades after, everyone assumed that diversity might be a
compelling governmental interest, but there was never a holding
that stated so.
3. Grutter resolved this.
ii.Ex: Grutter v. Bollinger: In their admissions process, Michigan Law
School developed a policy that looked at not only GPA and LSAT but
also several “soft variables” (such as race), with the hope of
admitting a more diverse student body. These “soft variable” could
trump hard predictive indicators such as the LSAT to ensure an
applicant's admission. It also admitted that it sought a "critical mass"
of each minority to ensure that such students would feel free to speak
in class, without also feeling an obligation to speak as a minority
representative.not given equal weight when considering applicants. A
woman challenged this as a violation of the Equal Protection Clause,
Title VI, and § 1981.
1. Standard of Review: Strict Scrutiny
2. Compelling State Interest – Student body diversity in
Higher Education: is a compelling state interest that can
justify the use of race in university admissions, at least when the
means are narrowly tailored to achieve that goal.
a. This interaction helps prepare them for the increasingly
diverse workplace.
b. This also promotes cross-racial understanding.
c. Diversity of Views;
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d. Amicus briefs from the armed forces and businessmen;
need for diversity in these places.
3. Narrow Tailoring: The Equal Protection Clause does not
prohibit the Law School's narrowly tailored use of race in
admissions decisions to further a compelling interest in
obtaining the educational benefits that flow from a diverse
student body.
a. No Quotas: A program in which certain fixed number
or proportion of opportunities are reserved
exclusively for certain minority groups. Quotas impose a
fixed number or percentage which must be attained, or
which cannot be exceeded.
i. RULE: A program that merely contains aspiration
goals does not thereby become a quota. Nor does
a program become a quota merely because
membership in a certain group is made a plus
factor as long as the plus factor is
administered as part of individualized
evaluations. (No Separate Tracks)
ii.In Grutter, there is no rigid quota. Rather, the Law
School engages in a highly individualized,
holistic review of each applicant's file, giving
serious consideration to all the ways an applicant
might contribute to a diverse educational
environment. The policy "is flexible enough to
consider all pertinent elements of diversity in light
of the particular qualifications of each applicant,
and to place them on the same footing for
consideration.
b. Race-Neutral Alternatives: Narrow tailoring requires
serious, good faith consideration of workable race-neutral
alternatives that will achieve diversity. However, narrow
tailoring does not require exhaustion of every conceivable
race-neutral alternative, only those alternatives that
would serve the governmental interest about as well.
c. 25 Year Sunset: The Grutter Court noted that these
policies should no longer be needed in 25 years.
iii.Limitation to Higher Education
1. Ex: Parents Involved in Community Schools v. Seattle School
District No. 1 & Meredith v. Jefferson Bd. of Education: School
districts used race as the determinant factor under certain
circumstances in admissions and student transfers for public
schools. The Supreme Court applied strict scrutiny and held
that the districts failed to satisfy the narrow tailoring prong. The
Supreme Court limited the holding of Grutter to post-secondary
education.
a. RULE: Diversity as a compelling interest is limited to only
higher education and does not apply to elementary or
secondary public schools that seek to further this
particular interest in an affirmative action admissions
scheme.
iv.Grutter’s Companion Case: Gratz (Undergraduate Admissions Process)

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1. The University of Michigan undergrad used a bonus points
system. Points were awared for various characteristics, up to a
maximum of 150 points. A minimum of 100 points was needed
for admissions. An applicant was entitled to an automatic 20
points for membership in an underrepresented racial or ethnic
minority group. By contrast, the award given for most other
types of non-acedemic traits was much smaller, i.e. 10 points for
being a Michigan resident. 6 points for being from an
underrepresented Michigan county. 5 points for leadership and
service; 5 points for being a High School Student Leader of
having artistic talent. HELD: This admission scheme was
unconstitutional.
a. Point Systems Not Allowed: A point system is
unconstitutional because it is not narrowly tailored to
achieve a school’s interest in educational diversity. Unlike
system’s that utlize race as a plus factor, which is not to
be decisive and each applicant is to be evaluated as an
individual, a point system does not reach these similar
ends and is much more mechanical.
2. Dissent: The message from Gratz and Grutter is to go ahead
and do diversity, but do it in a black box. Don’t make it open
and honest. Hide in your office, so that the Supreme Court can’t
strike down what you are doing.
v.HYPO: Suppose law school admitted only 100% white liberal males
from Mass. School changes its policy and gives bonus points to people
who are outside of Mass. Is there any reason why this isn’t valid?
a. A: The
b. “The Shape of the River”
vi.Socio-economic Based Affirmative Action

V. CLASSIFICATIONS BASED ON ALIENAGE


A. DISCRIMINATION AGAINST LEGAL ALIENS
i. What to Look For: Statutes that restrict the rights of resident
aliens, based solely on being aliens. If so, the Fourteenth
Amendment's Equal Protection Clause applies.
ii.Ex: Graham v. Richardson: Arizona denied welfare benefits to legal
aliens unless they had lived in the U.S. for 15 years or
more. Pennsylvania limited benefits to U.S. citizens. Both laws were
challenged by legal aliens who otherwise qualified for the benefits.
HELD: The Supreme Court invalidated both statutes. The provisions of
state welfare laws that placed conditions on welfare benefits due to
citizenship and imposed durational residency requirements on aliens
violated the E.P.C.
1. Fundamental Rights of Legal Aliens: Legal aliens are
“persons” under the 14th Amendement. Thus, they are afforded
the same protection, rights, and guarantees of the equal
protection of the laws as an American citizen.
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2. Strict Scrutiny Standard: Classifications based on alienage,
like those based on nationality or race, are inherently suspect
and subject to close judicial scrutiny.
a. Aliens as a Suspect Class: They are a (1) “discrete and
insular minority” for whom such heightened judicial
solicitude is appropriate, because they are politically
powerless; (2) Possible tradition of discrimination
against aliens stemming from that against illegal aliens.
i. NOTE: The immutability characteristic is not
strong here because the alien has the ability to
change his status to an American citizen.
3. Failed State Compelling Interest: A State’s concern for
“fiscal integrity” is not a compelling governmental interest for
purposes of equal protection analysis.
a. In Graham, the Court noted that Arizona and Pennsylvania
seek to justify their restrictions ….on the basis of a
state’s 'special interest' in favoring its own citizens over
aliens in the distribution of limited resources such as
welfare benefits.
iii.Ex: In re Griffiths: States may not prevent resident aliens from
practicing law. The state’s interest were not compelling: (1)
Maintaining high professional standards; and (2) Having lawyers serve
as officers of the court.
b. FEDERAL PREEMPTION ISSUE & CONGRESS’ PLENARY POWER OVER IMMIGRATION
i. The Constitution vests in the federal government full authority over
immigration. As a consequence, when a state classifies in a way that
disadvantages aliens, the question becomes is this consistent with
what the federal government does in regards to legal and illegal aliens.
1. Ex: Plyler v. Doe: In determining the validity of a State’s ban on
illegal aliens being able to have access to free public education,
the Court relied in part on their views about whether such a ban
comported with Congressional policy.
2. HYPO: State passes a law that states that all citizens of the Bar
must be United States citizens as well as citizens of that State.
A: Invalid under the Fourteenth Amendment and Graham.
Regulation of immigration is a federal law issue. The state has
no interest in regulating citizenship status.
3. See Federalism Section Above.
4. See Bollinger Case (5th Amendment Equal Protection
Component)
ii.Congress’ Plenary Power Over Immigration: The Supreme Court
will be much more deferential to Congress when it discriminates
against aliens and thus will not use strict scrutiny reveiew. Therefore,
rational basis review (even to legal aliens) applies to permit this
type of Congressional action, which permits some discrimination
against aliens that might not be permitted by the states.
1. Ex: Matthews v. Diaz: The Court held that Congress could
impose the double requirement that aliens be both admitted for
permanent residence and have resided continuously in the U.S.
for five years, in order to receive Medicare.
C. ILLEGAL ALIENS

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i. Rational Basis Review: This type of review applies equally to both
states and Congress using alienage as a classification when the
classification burdens illegal aliens.
1. Ex: Plyer v. Doe: This case struck down a ban on public
education of kids of illegal aliens, using rational basis review.
d. POLITICAL FUNCTION EXCEPTION
i. In some cases, the State can prevent all aliens from holding state
elective executive, legislative and judicial positions and can
limit to citizens participation in positions “intimately related to
democratic self-government” where there is board policy
making authority.
1. See New Hampshire v. Piper.
ii.Bernal v. Fainter: The Court held that notaries public do not perform
functions that go to the heart of a democratic government. Since the
duties of a notary public are essentially clerical and ministerial,
aliens may be barred only if the state’s interest survives strict
scrutiny.

VI. CLASSIFICIATIONS BURDENING FUNDAMENTAL RIGHTS


A. GENERAL
i. Here, legislation does not involve a suspect class. Instead, equal
protection analysis is triggered if the classification burdens a
fundamental right.
1. Strict Scrutiny Standard: This standard is used, regardless
of the people who are burdened.
B. EQUAL PROTECTION IN VOTING
i. Fundamental Right to not having vote Diluted: The right to
sufferage is a fundamental matter in free and democratic society.
Thus, when a legislative apportionment scheme dilutes a person’s vote
by use of electoral districts that are not construed strictly on the basis
of population, equal protection is violated.
ii.States must give “equal weight to equal votes”: This means
“one person, one vote” standard for reapportionment and redistricting.
iii.General Rules
1. Equal Protection Clause requires that the seats in both houses of
a bicameral state legislature must be apportioned on a
population basis.
2. An individual’s right to vote for state legislators is
unconstitutionally impaired when its weight is in a substantial
fashion diluted when compared with votes of citizens living in
other parts of the States.
3. The Equal Protection Clause requires that a State make an
honest and good faith effort to construct districts, in both
houses of its legislature, as nearly of equal population as is
practicable under the circumstances.
a. State and Local Redistricting: Each district must be
within +/- 10% within every other district.
i. This is presumptively okay but can still be
challenged.
b. Federal Redistricting: Each district must be within +/-
1% within every other district.
i. Presumptively valid but can still be challenged.

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4. Ex: Reynolds v. Sims: Alabama legislative districts were
malapportioned because the legislature had not redistricted
since 1901 despite a constitutional requirement that it do so
each ten years. States had drawn districts based on acreage and
not population. Thus, 25% of the population could control the
majority of the Assembly because rural people made up the
majority of the population but only controlled a lower number of
districts. HELD: The Supreme Court holds this apportionment
scheme unconstitutional and similarly invalidated the schemes
of several other states because neither houses were apportioned
on a population basis.
a. Not Substantive Due Process: Equal Protection is the
correct analysis to apply because the state is classifying
people by grouping them into districts and it burdens a
person’s fundamental right to vote.
b. Strict Scrutiny Review: There is a classification that
burdens fundamental rights.
c. Harlan Dissenting: Held that the Equal Protection
Clause was never intended to inhibit the states in
choosing any democratic method they pleased for the
apportionment of their legislatures. Evidenced by history
and language of the Fourteenth Amendment as well as
practices in the states.
iv.Distinguished Federal Congress and State
1. The Federal Congress does not serve as a pattern or model for
apportioning the seats in state legislatures.
a. Inequality in Senate (set number per State – 2): Based on:
i. Congressional and state sovereignty (Political
subdivisions of States were never considered as
sovereign entities);
ii.Federal scheme arises from unique historical
circumstances (Compromise between small and
large states)
C. RACIAL GERRYMANDERING & “REVERSE DISCRIMINATION”
i. Affrimative Action Gerrymandering: Here, race-considerations are
used in drawing legislative districts, but not to dilute black vote.
Instead, race is used to ensure minority voters who were previously
discriminated against to have an equal say in our democratic
government. This is presumptively unconstitutional.
1. NOTE: When old fashioned gerrymandering that targets minority
groups to dilute votes, the proper claim is to show a:
a. Discriminatory Purpose under equal protection
analysis; or
b. Discriminatory Effect under the Voting Rights Act.
ii.The Predominant Factor Test/Strict Scrutiny Review (Ex: Miller
v. Johnson): A person can bring a valid equal protection claim and thus
subject a districting scheme to strict scrutiny by attacking the
drawing of electoral districts if the plaintiff can show that the use of
race was the “predominant factor” in drawing the district lines.
iii.P’s Burden: The plaintiff must show that the legislature, whether
through circumstantial evidence of a district's shape and

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demographics or more direct evidence of legislative purpose, that the
legislature:
1. Subordinated traditional race-neutral districting
principles to race considerations, including but not limited
to:
a. Compactness (Regularity of Shape);
b. Contiguity (Districts Touch or Don’t Touch);
c. Respect for political subdivisions or communities defined
by actual shared interests (Like Minded People Placed
Together)
2. Strict Scrutiny: If the Plaintiff shows that race was the
predominate motive, strict scrutiny still must be applied.
a. Valid Compelling Governmental Interest: Remedying
past discrimination in voting.
iv.Vote Dilution Principle Inapplicable: In a Miller claim, evidence of
vote dilution doesn’t matter. Instead, the mere fact that a bizarre
shapped district was drawn is is iself a violation and is expressive
harm.
v.Ex: Miller v. Johnson: Georgia redistricting legislation alleged to be an
unconstitutional violation of the Equal Protection clause. The plan
contained three black districts, and in one, it combines a black
metropolitan neighborhood with the black populace of a coastal
neighborhood 260 miles away. The District court found this
unconstitutional based on evidence of legislature’s purpose as well as
the irregular border and went to show that race was the overriding
and predominant force in the districting determination. HELD: Race
was the predominant factor motivating the districts’ drawing. Not
only does the bizarre shape support this conclusion but also other
evidence showing that the state legislature was motivated by a
predominant, overriding desire to create a third majority-black district.
Since race was the predominant, overriding factor behind the Eleventh
District's drawing, the State's plan is subject to strict scrutiny and
can be sustained only if it is narrowly tailored to achieve a compelling
state interest. The distrincting flunked strict scrutiny because the
compelling governmental interest was not to remedy past
discrimination.
D. POLITICAL GERRYMANDERING
i. This type of gerrymandering involves redistricting schemes that
attempt to keep on party in office, while diluting another parties vote.
ii.Non-Justiciable Polictical Question
1. Ex: Davis v. Bandemer: Democrats alleged that a Republican
majority in the state legislature had reapportioned the voting
districts by a political gerrymander that violated their right to
equal protection of the laws. HELD: The Court held that there
were indeed judicially discernible and manageable standards by
which political gerrymander cases may be decided. However,
this particular case is not justiciable because of the parties
involved.
2. Ex: Vieth v. Jubelirer (Rejects Bandemer): PA adopted a
congressional redistricting plan, and plaintiffs sued to enjoin
enforcement alleging that it was a political gerrymandering in
violation of Article I and 14th Amendment Equal Protection
Clause. HELD: The claim is a non-justiciable question.
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a. RULE: Political gerrymandering claims are “per se” non-
justiciable questions because no judicially discernible
and manageable standards for adjudicating such
claims exist.
i. Does not explicitly overrule Bandemer but states
that its standard is unworkable; rejects the rule.
This Court goes through a number of rules and
rejects each approach as unworkable and
unmanageable. The court notes that the Miller
standard is not sufficient b/c in Miller they weren’t
applying it to a statewide plan.
b. Justice Kennedy, however, refused to foreclose all
possibility of judicial relief if some limited and precise
rationale could be found to review these cases.

I. GENDER DISCRIMINATION
A. HISTORY OF DECIDING THE STANDARD OF SCRUTINY
i. Ex: Reed v. Reed: Applied a “mere rationality” standard to a state
statute that preferred men over women as administrators of estates.
ii.Ex: Frontiero v. Richardson: Federal statute allowed uniformed
servicemen to claim his wife as a dependent for the purpose of
deductions but required a female member of the uniform services to
prove that he was dependent in order to take those deductions. HELD:
Supreme Court invalidates the distinction.
1. Plurality Holding: Classifications based on sex, like those based
on race, alienage, and national origin, and inherently suspect
and subjected to close judicial scrutiny. The proper test for
classifications based on sex is strict scrutiny because, it is an
immutable characteristic determined solely by the accident of
birth.
2. Factors applied to determined whether a particular class
deserves a heightened review:
a. Immutability of the characteristic.
b. Whether there has been a historically discrimination.
c. No relation to merit.
i. What differentiates sec from such non-suspect
statuses as intelligence or physical disability, and
aligns it with the recognized criteria, is that the sex
characteristic frequently bears no relation to ability
to perform or contribute to society.
d. Discrete and insular minority.
b. INTERMEDIATE LEVEL OF SCRUTINY THROUGHOUT
i. The Court ostensibly applies a single standard to all gender-based
classifications, whether these are found to be truly compensatory or
merely paternalistic and stereotypical. Any gener based classification
must be: (1) MEANS: Substantially related to an (2) ENDS:
Important Governmental Objective.
1. Ex: Craig v. Boron: Oklahoma statutes prohibited the sale 3.2%
beer to males under age 21 and females under age 18. The
consitutional claim was that the statute denied equal protection
to males between the ages of 18-20. OK defended the statute on
the grounds that it promoted traffic safety, since, statistically 18
-20 year old males were arrested for drunken driving much more
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frequently than females of the same age group. HELD: The
Court struck down this statute noting the statistically based
defense insufficient.
a. Maleness could not serve as a proxy for drinking and
driving because of the small number of instances even
with them.
b. Even supposing there was some correlation, the beer
being regulated was non-intoxicating.
c. Poor overall fit: The overall fit between the means of
the regulation (ban on sale of 3.2% beer to 18-20 year
olds) and the end sought to be achieved (promotion of
traffic safety) was simply to tenuous to constituted the
required substantial relation between the means and
the end.
ii.Exceedingly Persuausive Justification: In addition to applying the
2-prongs of Intermediate Scrutiny, parties who seek to defend gender-
based government action must demonstrate an “exceedingly
persuasive justification” for that action.
1. Ex: United States v. Virginia: VMI was the sole male only school
among Virginia’s state universities. U.S. sued Virginia alleging
the VMI’s exclusively male admissions policy violated the
Fourteenth Amendment’s Equal Protection Clause. After
litigation, Virginia established an equivalent women’s private
military institution, Mary Baldwin College. The two lower federal
courts found this satisfied the equal protection requirement, and
the Supreme Court reverses, holding that Virginia has failed to
satisfy the applicable standard for gender-based governmental
action.
a. HOLDING: Virginia has shown no exceedingly persuasive
justification for excluding women from the citizen-soldier
training afforded by VMI; Virginia violated the Equal
Protection Clause.
2. Adequate Alternatives for Women
a. In evaluating the women’s alternative, the Court applies
the test of substantial equivalency to see if the State
has supplied an adequate alternative remedy.
i. In VMI, the alternative for women fails as a
comparable single-gender women’s institution
because the course offerings, tradition, and
facilities are not equal. Thus, the e women’s school
did not provide equal opportunity.
3. Stereotypical Thinking Rejected
a. The Court is especially likely to strike down a gender-
based classification system that seems to be based on
faulty generalizations or sterotypes about the
differing abilities and interests of the two sexes.
b. Such classifications may not be used to:
i. Create or perpetuate the legal social, and economic
inferiority of women.
ii.RULE: Avoid “archaic and overbroad
generalizations” unrelated to real differences
between the sexes.

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1. NOTE – Suitable for Some Women Rationale:
A State’s defense that including women
would materially change a program, etc. will
more than likely be rejected by the Court
because at least some women will be able to
withstand the same treatment that men
receive.
a. In VMI, The State’s justification for
excluding women from citizen-soldier
training for which some are qualified
cannot rank as exceedingly
persuasive.
b. NOTE: This is a prime example of
something being both over inclusive
and underinclusive. It is over inclusive
because because there are men who
would not be able to survive the rigors
of training while it is underinclusive in
that there are women that could
survive, but are denied acess.
c. Sex classifications may be used to:
i. Compensate women for particular economic
disabilities they have suffered or promote equal
opportunities,
ii.To advance full development of talent and
capacities
iii.RULE: OK to discriminate to “recognize inherent
differences” between the sexes.
1. HYPO: The state decided to remedy past
discrimination against women to set up a
special college only to allow women to
attend. Would this situation stand const.
review? A: It would more than likely be
upheld because we can do things to help
women by recognizing inherent differences.
iii.The Application of the VMI Standard: Intermediate Scrutiny
Satisfied – Ex: Nguyen v. INS
1. Application of gender discrimination standard of Intermediate
Scrutiny as established in VMI, under 5th amendment analysis.
Nguyan was born in Vietnam to a Vietnamese mother and an
American citizen father. Under federal law, for the boy to
establish citizenship, the American father must, before the
child’s 18th birthday, either ligitimize the child, make a
declaration of paternity, or secure a court order of paternity.
These requirements are not imposed on the mother. The father
claimed this discriminated against men. HELD: Applying I.S., the
Court held that the scheme served two substantial interest and
that the means were substantially related to the governmental
interests in facilitating a parent-child relationship.

PART VIII – FREE SPEECH

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I. GENERAL
a. Const. Amen. 1: CONGRESS SHALL MAKE NO LAW RESPECTING AN ESTABLISHMENT OF RELIGION, OR
PROHIBITING THE FREE EXERCISE THEREOF; OR ABRIDGING THE FREEDOM OF SPEECH, OR OF THE PRESS;
OR THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR A
REDRESS OF GRIEVANCES.
i. Discrete by related rights recognized by the 1st Amendment:
1. Speech;
2. Press;
a. There is no heightened protection of the press per se, but
still a distinct right.
3. The rights of the people peaceably to assemble;
4. Free Association
a. Being a member of group without assembling.
i. Ex: State is not allowed to see membership lists of
certain organizations. This also includes a private
organinzations right to include or exclude who they
want.
5. Petition the Government for a redress of grievances
a. Right to file suit through the court systems. Thus, laws
that burden people’s access to the court systems will be
struck down.
ii.Binding on the entire Federal Government; State Governments
are bound through the due process clause of 14th Amendment
(Incorporation).
iii.First Amendment Freedoms as “Preferred” Rights (Murdock v.
Pennsulvania)”: Because they are preservative of other freedoms
protected by the Constitution, First Amendemnt rights are said to be in
a “preferred” position and are thus afforded extensive immunity.
iv.Strict Scrutiny: Often, regulations impinging on First Amendment
Freedoms are subject to Strict Scrutiny, which may also inquire
whether the regulation adopts the least restrictive means available.
B. FREE SPEECH
i. Views on Limits of First Amendment
1. Absolute View: The text of the Constitutions supports the view
that “no law” shall be passed and that freedom of speech is
absolutely protected.
2. Balancing View: The Amendment is not absolute but must be
weighed against other constitutional principles or governmental
purposes.
ii.Unprotected “Utterances” vs. Protected Speech: This is another
way to limit the protection of the First Amendment.
1. Generally recognized U.U.: Libel, false advertising, immediate
incitement to crime, obscenity, face-to-face fighting words that
have little communicative content and a high potential for
causing breach of the peace.
iii.Prior Restraints as Virtually Per See Invalid: While the speech
cannot be stopped beforehand, you do have remedies available after
the fact.
1. Ex: An injunction against a newspaper, preventing publication in
advance, is unconstitutional.
2. Rare Exceptions
a. Ex: Publication of military secrets during wartime.

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iv.The “Breathing Space” Doctrine: Because protected speech is
“preferred,” the Court gives speech “breathing space;” Even some
kinds of utterances that are apparently valueless in themselves must
be afforded some measure of protection to prevent self-censorship.
1. Ex: Defamation of public officials non-actionable unless
accompanied by “actual malice.”
v.“Captive Auditor” (The Right Not to Listen) vs. Interest in
Expression: Implicit in the 1st Amendment is the right not to listen,
thus the government may take steps to protect a captive audience
from being forced to listen to obnoxious expression and indecent
speech. However, that does not always outweigh the interest in
expression (See Cohen)
vi.Right Not to Speak – Freedom of Belief: As a general rule,
government cannot force citizens to confess their allegiance to any
particular idea.
vii.Why Protect Speech?
1. “Marketplace of Ideas”: It is not the Government’s place to
suppress ideas because they are wrong; rather, there is to be a
“free trade in ideas,” and truth will become accepted through
“the competition of the market.” Only where the circumstances
are such that there is no time to expose evil ideas through more
speech may the government bar expression. (From Holmes
Dissent in Abrams v. U.S.)
2. Utilitarianism (J.S. Mill on Liberty)
a. There is value in the contest between truth and falsity.
Thus, we need the marketplace of ideas to filter out the
false. Although some statements are entirely false
(maybe even harmful), there is nonetheless value in the
contest because it helps to illustrate what truth is.
3. Individual Self-Exression/Self-Fulfillment (See Cohen)
C. TWO TRACK SYSTEM
i. The government can “abridge” freedom of speech in two broad
categories: (1) Restricting the speech because of its content or the
ideas or information contained in it or the general subject matter; and
(2) The Government seeks to avoid some evil unconnected with the
speech’s content, but the government’s regulation has the incidental
by-product of interfering with particular communications.
ii.The Supreme Court categorizes these regulations in one of “two”
tracks and the rules that govern depend on which track the regulation
falls into.
1. Track One (Content Based Regulation): Strict Scrutiny
Standard
a. HYPO: Congress passes law forbidding criticism of Iraq
War Effort. Here, the government is seeing what is in the
speech and regulating it.
2. Track Two (Content Neutral Regulation): Generally receive
Intermediate Scrutiny and more likely to be upheld; Time,
Place, or Manner Restrictions
a. HYPO: The State passes law that says that you have to
finish what you are doing at a park by midnight. It does
not matter if you are rallying for pro-choice or pro-life, you
still have to leave.

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II. CONTENT-BASED REGULATION
a. ADVOCACY OF ILLEGAL ACTS (PROTECTED) & LIMITS ON POLITICAL SPEECH – INCITMENT
(UNPROTECTED)
i. While political speech is on the top of the pyramid of protected speech,
the Court has designed tests to determine whether it can suppress
such speech in an attempt to strick a compromise between not stifling
legitimate dissents (protected) and exposing citizens to harm from the
incitement of illegal acts (unprotected).
ii.Clear and Present Danger Test (Holmes): Speech will be
unprotected if the words used are used in such circumstances and are
of such a nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a right to
prevent.
1. Inadequacy of the Test: Speech could be punished as an attempt
to commit an illegal act
2. Ex: Congress controls the national mall to prevent overcrowding
in traffic. Under this Test, Congress could pass a law that barred
the million-man march.
3. Ex – Theater Example: Falsly shouting fire in a crowded theater
and causing panic.
a. This is certainly different from the papers in Schenck
because: (1) Here is a statement understood as fact, not
opinion; and (2) There is arguably more time for counter-
speech with the conscription papers. With a crowd, there
is immediacy of the danger and less chance for a
reasonable person to stand up and say that there is no
fire.
4. Ex: Schenck v. United States: Under a statute, a person could be
convicted for willfully obstructing the draft. According to the 4
corners of the pamphlet issued by D, it never explicitly urged
people to violate the law, but instead advocated for peacefull
measures. HELD: Nonetheless, the Court upheld the criminal
convictions. The fact that the circumstances were that of war
time were certainly relevant, and the D’s speech may have been
protected in a time of peace.
b. DISTNIGUISHING ADVOCACY FROM INCITEMENT – THE MODERN TEST FOR CIMINALIZING SPEECH
URGING ILLEGAL ACTION.
i. Today, the Supreme Court gives greater protection to free speech, at
least in the political area.
ii.The Modern Standard (Brandenburg v. Ohio): Speech advocating
the use of force or illegal acts can only be proscribed if:
1. The advocacy is directed to inciting or producing
imminent lawless action (not mere advocacy of abstract
doctine); and
2. The advocacy is likely to incite or produce such action
(Imminence).
a. Imminence: viewed in terms of whether there is
sufficient opportunity for counter speech.
iii.Ex: Bandenburg v. Ohio: D was a leader of an Ohio KKK group who
made threatening statements about Jews and Blacks. He was charged
with violating Ohio’s Criminal Syndicalism Statute, which forbade the
advocacy of crime or violence as a means of accomplishing industrial
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or political reform. HELD: The Court struck down the statute, without
considering whether the D’s speech could have been properly
proscribed because the statute on its face proscribed speech that did
not distinguish between “mere advocacy” from “incitement to
immenent lawless action.”
c. Hypotheticals
i. Man outside Frankenstein’s house with people all with torches. He
yells, “He stole millions from everyone. Kill him and burn his house.”
There is a 1st Amendment defense at his prosecution.
1. A: Not protected. They are likely considered to produce
imminent lawless action; they are standing there with torches –
no chance for counterspeech.
2. They also might be considered fighting words.
ii.Violent movie romanticizing the lives of gangster gang members
enticing people to do copycat crimes of real criminals. Teens watching
the movie go and kill people. Can the movie company be held
criminally or civilly liable or can they be barred from showing the
movie?
1. A: Preventing further screenings would be a prior restraint on
publication, so less likely you could bar further screenings.
2. A: As for 1st Amendment protection and no liability, the speech
must be directed to lawless action – they are not even
advocating it, just depicting it. They were not directed to incite
imminent lawless action.
iii.A publishing company produces and sells an instruction manual for
hitmen. A person buys the book and kills someone after reading it.
1. A: No immenence; opportunity for counterspeech. However, it is
intended to incite lawless action. This is distinguished from other
copy cat cases.
iv.Crazy man is on the corner yelling, “Mary Kate and Ashley are demon
spawn, and everyone should kill them.” Does he have a First
Amendment protection?
1. Here, there is no likelihood that the lawless action will take
place; no immence, thus protected by 1st Amendment.
v.Congress bans memebership in Communist party by passing the Smith
Act because its doctrine explicitly calls for violent overthrow of federal
government.
1. A: Plenty of room for counterspeech.

III. OVERBREDTH & VAGUENESS


A. GENERAL
i. Although the doctrines are distinct, they have a close relationship in
that a statute that is vague is likely to also be overbroad and vice
versa.
ii.“As applied” Challenges and “Limiting Constructions”
iii.The Limits of the Doctines; The Impercision of Language: The
two concepts are flexible because of the impossible task of drafting a
statute so that all improper applications are foreclosed. Thus, the
modern Supreme Court has upheld statutes in spite of some degree of
overbreadth or vagueness.
B. VAGUENESS DOCTRINE
i. Void for Vagueness: Refers to the notion that an unduly vague
statute cannot support a criminal conviction. While not confined to the
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1st Amendment area, the doctrine that the freedom of speech is
fundamental or preferred has given rise to stricter vagueness
standards.
1. RULE (Connally v. General Construction Co.): A statue is
unconstitutionally vague if “persons of common intelligence
must necessarily guess its meaning”
a. Chilling Effect Rationale: A person does not know
whether or not his conduct or speech will ultimately be
held to be constitutionally protected, so he declines to
exercise his rights.
b. Fair Notice
C. OVERBREDTH DOCTRINE
i. This doctrine limits the degree to which a prohibition of utterances can
include expression protected under the 1st Amendment.
ii.Substantial Overbreadthness Test: A statute is overbroad if, in
addition to proscribing activities which may constitutionally forbidden,
it also sweeps within its coverage speech or conduct which is
protected by the guarantees of free speech. This overreaching
must not only be real, but be substantial when judged in
relation to the statute’s plainly legitimate sweep.
1. Appears to say that a tiny incursion upon protected speech is
tolerable if it is the byproduct of a statute that targets a much
larger range of unprotected conduct.
2. If the statute bans not only unprotected speech (which is
constitutional to do so), but also more protected speech, it is
overly broad, then the plainly legitimate sweep of the statute is
overly broad. However, if it is only a smaller infringement on
protected speech, it will not be considered a substantial
overbreadth and might likely be upheld under this test.
3. “Substantial”: Because we don’t know what substantial
means, then we aren’t sure about how much the statute must
infringe protected speech before it will be considered
substantially overbroad. However, if the outer circle that
infringes on protected speech while also proscribing unprotected
speech is so great and large, it will likely be considered
substantially overbroad, and the Court may find it to be
unconstitutional.
iii.Ex: Broaderick v. Oklahoma: OK Merit System of Personnel
Administration Act proscribed a broad range of political activities and
conduct to state employees. P’s challenged to two parts of the statute
as vague and overbroad. The Hatch Act says federal employees
can’t: (1) solicit political contributions; (2) be a member or officer of a
political party cmte, or candidate; (3) “take part in management of
affairs” of a political party or campaign. HELD: Supreme Court said
that this was not vague because the proscribed conduct fell within the
un-vague parts of the statute. Supreme Court also said that the
statute was not overly broad just because some person’s arguably
protected conduct may or may not be caught or chilled by the statute.

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1. NOTE: The Court conceded that the statute by its terms could
be applied to the wearing of political buttons or the use of
bumper stickers, and that these might be constitutionally
protected expressions. But such unsconstitutional applications of
the statute were not numerous enough compared with the
body of permissible applications, so there was no
“substantial overbreadth.”
iv.Relaxed Standing Requirements
1. Typically, a litigant attempting to have a statute held
unconstitutional must show that it is unconstitutional as
applied to him. For instance, a person claiming a violation of
his 1st Amendment rights must show that his own speech or
conduct was protected.
2. Exception to the Usual Requirements of Standing –
Overbreadth Claims: When a facial attack is made on a
statute, the overbreadth doctrin permits a challenger to prevail
if he can show that the statute, applied according to its terms,
would violate the 1st Amendment rights of persons not now
before the court. With relaxed standing, the appellants can get
to the merits of the overbroad claim.
a. Chilling Effect Rationale: An overbroad statute will
have a chilling effect on people who might be intimidated
into not exercising their free speech rights.
v.The Preference for Limiting Constructions & The Normal Rule
that Partial Rather than Facial Invalidation in the Required
Course
1. When a statute is overbroad on its face, the Court has a
preference for invalidating particular applications of a statute
when they appear, rather than invalidating the entire statute.
Thus, the statute should only be subjected to a limiting
construction that salvages all but the part that covers protected
speech.
a. Ex: Brockett v. Spokane Arcades: A statute prohibited not
only obscene materials, but also those that incited lust.
The Court limited the statute’s construction to salavage
the obscene part but struck the portion that proscribed
protected speech (lust).
vi.Hypotheticals
1. A criminal statute bars “publishing anything obnoxious
regarding the president”
a. Vagueness: No definition of obnoxious
b. Overbroad: The statute potentionally infringes on
protected speech
2. A criminal statuts bars “speaking in a manner inconsistent with
the Constitution”
a. Vagueness: YES.
b. Overbroad: NO. By its definintion, it applies only to
speech not protected by the Constitution.
3. What if a person were to reveal classified troop movements in
Iraq and was prosecuted under this statute. Can he raise an
overbreadth defense?

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a. A: Yes, under the relaxed standing requirement. However,
if he in fact reveals troop movements, then he is not
protected.
4. A criminal statute bars publishing anything which threatens
physical or financial harm to the President
a. Vagueness: No.
b. Overbroad: Yes, the statute covers both protected and
unprotected speech (Financial harm being protected).
i. True Threat Doctrine (Verbal Equivalent of Assault)
c. What is a Court likely to do?
i. Relaxed standard for standing (chilling effect) and
strick out the protected aspect of the statute
(financial) while salvaging the remaining part
(physical harm) as a True Threat.
IV. UNPROTECTED SPEECH (OR SPEECH “THAT IS NOT PROTECTED SPEECH”)
A. GENERAL
i. Certain types of speech are considered exceptions to the norm of
heightened judicial protection. The Court has defined certain
established categories of speech, which are deemed not protected by
the first amendment. These types of speech only receive rational
basis scrutiny.
1. NOTE: Here, the Government is still utilizing content-based
regulation (Track-One). Thus, if the regulation is imposed in a
situation that does not fall within one of the pre-existing
unprotected categories, there is a strong presumption that the
regulation is unconstitutional. Therefore, strict scrutiny will be
applied.
2. Distinguishing between “unprotected speech” and
“speech that is ultimately not protected”: Speech that is
ultimately unprotected is present when the government satisfies
strict scrutiny; Unprotected speech only receives rational basis.
ii.The “Captive Audience” Doctrine: Heightened ability to restrict
speech to protect a captive auditor from obnoxious expression.
Common arenas include: (1) The Home; and (2)Offensive advertising
on buses.
iii.Symbolic Speech – The Spence Standard
iv.Traditional Categories of Unprotect Speech (Chaplinksy List):
1. Adovocacy of immenent lawless behavior;
2. Fighting Words
3. Obscenity;
4. Fraudulent misrepresentation,
5. Defamation & Libel;
b. THE CHAPLINSKY STANDARD (CHAPLINSKY V. NEW HAMPSHIRE)
i. Certain categories of speech will be unprotected if such utterances
are no essential part of an expression of ideas, and are of such
slight societal value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in order
and morality.
1. The Court will take into account the harmfulness of the types
of messages conveyed, and the ability or inability of
counterspeech to cure the harm.

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ii.HYPO: A hotel clerk tells Russel Crow that he is a no good S.O.B. Can
the hotel clerk be punished under the first amendment?
1. A: Under the fighting words doctrine is limited to face-to-face
confrontation. Here, there is no opportunity for counter-speech,
so the clerk could be punished.
2. Variation: What if the clerk waiting until Crow left to make the
remark?
a. Not face-to-face.
3. Variation: What if the clerk mailed him a letter with the remark?
a. No immediate breach of the peace.
iii.Profanity as Protected Speech
1. Ex: Cohen v. California: Cohen wore a jacket with the words
“Fuck the Draft” inside a courthouse. ISSUE: Whether the
profane/offensive phrase should be considered unprotected
speech. HELD: A State may not make a simple public display of
profane words a crime.
a. The state has no right to cleanse public debate
because “one man’s vulgarity is another’s lyric.”
b. Self-Realization Rationale whereby profanity is
used to express self-emotion.
c. CONTENT-BASED REGULATION OF UNPROTECTED CATEGORIES: FIGHTING WORDS & HATE
SPEECH
i. If the government singles out bias-motivated speech, criminalizing
it while not criminalizing other types of unprotected speech, the
government is acting in a forbidden content-based rather than neutral-
content way. This will be true for a general ban on the speech even if
all of the type of speech falls within an
unprotected category. Thus, States can regulate unprotected speech.
However, we must check for underinclusiveness, viewpoint
discrimination, and if one of the exceptions exist.
ii.RULE: A ban on speech or conduct intended or likely to incite anger or
violence based solely on particular listed topics or motives (such
as race, color, religion or gender) is impermissible content based.
This is true even if all of the speech/conduct falls within an
unprotected category (such as fighting words).
1. Strict Scrutiny Review: Such regulation will be subjected to
strict scrutiny thereby requiring a determination of available
neutral alternatives.
2. Viewpoint Discrimination: Where two opposing sides have a
confrontation concerning a matter of race or religion, one side
could use fighting words while the other could not.
a. Underclusivity: A statute will be considered
underinclusive when it cuts out a subset of unprotected
speech. This is precisely what a viewpoint discriminatory
statute does by only regulating a subset of unprotected
speech, but not all of it. The manner of confrontation
cannot consist of selective limitations upon speech. The
First Amendment does not allow a statute to impose
special prohibitions on those speakers who express views
on disfavored topics.

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i. Ex: Fightng words on the basis of homo or union
members are not listed when race color, gender etc
are.
ii.Ex: Can’t hold up a sign that says all anti-catholics
are bastards, but holding up a sign saying all
catholics are bastadards is ok.
3. Ex: R.A.V. v. City of St. Paul, Minnesota: D and several other
teenagers allegedly burned a cross in the yard of a black family.
D was prosecuted under a “Bias-Motivated Crime Ordinance”
which provided that “whoever places on public or private
property a symbol, object, buring of a cross, swastika, etc, which
one knows or has reasonable grounds to know arouses anger,
alarm, or resentment on the basis of race, color, creed,
religion or gender, shall by guilty of a misdemeanor. D argued
that the statute was (1) Substantially Overbroad; and (2) it was
impermissibly content-based. HELD: The statute is
impermissibly content based and thus unconstitutional.

iii.Exceptions to the General Rule of R.A.V.


1. Worst of the Worst: The State may impose a content-based
ban on particular instances of unprotected speech if the ban
forbids only the very worst examples illustrating the very
reason the particular class of speech is unprotected.
a. Ex: Thus, the state may choose to criminalize just the
very most dangerous “fighting words,” the very most
obscene obscene images, etc.
2. Fighting Words Distinguished from Hate Speech &
Penalty-Enhancement Statutes: A state may identify
particular generally-appicable criminal proscriptions, and may
then choose to punish more severely those criminal acts that
happen to be motivated by hate than those not motivated
by hate without violating the 1st Amendment.
i. Ex: Wisconsin v. Mitchell: The Court upheld the
State’s statute that permitted the enhancement of
the length of a criminal sentence if the convict
intentionally selected the crime victim because of
race, religion, etc. The Court distinguished R.A.V.
on the ground that the statute was aimed at
conduct unprotected by the 1st Amendment.
3. “True Threats” as Unprotected Speech: A state may select
a particular type of expressive act (e.g. cross burning), and
punish all instances where that act is done with a purpose of
intimidating or threatening someone, even though the state
doesn’t punish other types of intimidating or threatening acts.
a. True Threat Defined: Encompasses those statements
where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.
The speaker need not actually intend to carry out the
threat. The prohibition on true threats protects individuals
from the fear of violence, in addition to protecting people
from the possibility that the threatened violence will
occur.
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b. Ex: Virgina v. Black: Three defendants convicted of felony
cross-burning (one burning a cross at a KKK rally in a
private field, the other two burning in a black neighbor’s
yard). The statute prohibited cross-burning with an intent
to intimidate; included a prima facie provision that
allowed the fact-finder to infer an intent to intimidate
from the very act of cross burning. HELD: The Supreme
Court struck down the statute due to the prima facie
provision and analogized cross burning to another
category of unprotected speech, true threats, and not
fighting words.
i. Government may single out Cross-Burning
(Symbolic Speech): A state may ban any cross-
burning done with intent to intimidate another,
even if the state did not criminalize other
intimidating messages.
1. R.A.V.’s Worst of the Worst: Cross
burning is a particularly virulent form of
intimidation in light of the cross burning’s
long history as a signal of impending
violence. Thus, the state may criminalize the
very worst illustrations of the very reason
why an entire category is unprotected by the
1st Amendment. Therefore, the State may
choose to prohibt only those forms of
intimidation that are most likely to inspire
fear or bodily harm.
ii.Prima Facie Clause Unconstitutional: The
prima facie evidence provision permits a jury to
convict in every cross-burning case in which
defendants exercise their constitutional right not to
put on a defense. It permits the Commonwealth to
arrest, prosecute, and convict a person based
solely on the fact of cross burning itself.
1. Two Purposes of Cross-Burning
a. Intent to intimidate;
b. Political expression: Therefore, the
prima facie clause chills
constitutionally protected political
speech because a state could possibly
convict someone who only engages in
lawful political speech.
4. Speech swept up in a statute mostly banning conduct:

5. Secondary effects:
iv.Hypotheticals
1. A state passes a law which imposes civil penalties on advertising
whch contains false material statements of fact to induce
wrongful reliance on reader.
a. A: False advertising is not protected speech, thus the
state can regulate.
2. Variation: Suppose the same, except it that the statute only
proscribes attacks on democratic cadidates and officials.
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a. A: Under R.A.V., the statute is underinclusive.
3. Variation: Suppose the same, except the statute reads “which
do so in a manner that unfairly maligns any candidate of any
party or causes unfair emabarassment to reputation on grounds
of race, color, or national origin
a. A: Still underinclusive under R.A.V. Gays, Labor Unions,
and Religious organizations are not protected by the
statute.
4. Variation: Same as above, except the statute proscribes speech
that harms the aged or those with limited education and causing
more than $1,000 dollars in wrongful reliance
a. A: “The Worst of the Worst” The statute is targeting those
who are most likely to fall into the harm proscribable by
that speech.
D. OBSCENITY
i. Unprotected Speech: Recall that this type of speech is listed in the
Chaplinsky List and therefore the State may proscribe it. However,
they are not completely free to define obscenity however the wish, and
to then punish the distribution or sale of the material so defined.
1. NOTE: Miller limited scope of obsenity to sexual conduct not
violence.
2. NOTE: Ex: Stanley v GA: The Government does not have
authority to ban mere possession of obscene materials of
consenting adults in the privacy of their own homes. However,
they can still ban the production, distribution, and selling of it.
ii.Facts of Miller: D conducted an unsolicited mass mailing campaign
to advertise the sale of illustrated books of adult material. He was
convicted of knowingly distributing obscene material.
1. Miller Test for Obscenity (Miller v. California): Miller laid
down a three part test, with all parts required to be met, for
identifying what the State may ban as Obscene. Thus, when
there are depictions of sexual conduct specifically defined by
state law, ask:
a. Whether the average person, applying contemporary
community standards would find that the work, taken
as a whole, appeals to the prurient (unwholesome
sexual) interest.
i. Community Standards: What appeals to the
prurient interest or is patently offensive is not to be
determined by reference to a national standard.
What counts are the standards of the local
community where the prosecution takes place and
the triers of fact.
1. The Court has rejected the argument that
the standards should have to be at least
statewide. Thus, obscenity can be judged
by the standards of a small rural town.
b. Whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by
applicable state law; and

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i. NOTE – Vagueness: The State must specifically set
out sexual acts that would be banned if they were
depicted.
1. HYPO: A state law that banned all nude
pictures of women that appealed to the
prurient interest would fail this prong and be
unconstitutional.
c. Whether the work, taken as a whole, lacks serious literary,
artistic, political or scientific value (lacks serious
socially redeeming value).
i. Medical books etc. permitted.
2. Limited to “Hard Core” Sex: Miller also establishes that the
states may ban as obscene only depictions or descriptions of
“hard core” sexual conduct. Since the states must be specific
about what conduct is being banned (in order to satisfy the 1st
Amendment need for fair notice, and in order to prevent a
chilling effect, the Court provided the following examples of
materials which could be banned
a. Ex: Patently offensive representations or descriptions of
ultimate sex acts, normal or perverted, actual or
simulated.
b. Ex: Patenly offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibition of
the genitals.
i. Appeallate courts tend to disagree with juries on
third prong and are less deferential than on prong 1
& 2.
3. Role of Jury Limited: While these factual issue are for the jury,
the jury does not have unbridled discretion. Appeallate courts
will review these findings of fact and will reverse if the findings
could not have been made by a reasonable jury. Appeallate
Courts tend to disagree with juries on third prong and are less
deferential than on prong 1 & 2.
iii.NOTE – Adult Movie Theaters
1. Ex: Paris Adult Theatre I v. Slanton: D’s commercially displayed
two films characterized as “hard-core porn,” leaving “little to the
imagination.” There were warning signs of it being an adult
theater and an age requirement as well as notification of nude
persons on the screen. This was done in violation of Georgia law
regulating the allegedly obscene material. HELD: The Court
upheld the regulation. The Court rejected the theory that
obscene, pornographic films receive constitutional immunity
from state regulation simply because they are exhibited for
consenting adults only.
a. RULE: Nothing precludes a State from the regulation of
this sort, provided that the applicable state law meets the
1st Amendment standards set forth in Miller.
b. Ligitimate State Interests: Even assuming it is feasible
to enforce effective safeguards against exposure to
juveniles and to passerby, the state has ligitimate
interests stemming from the tide of commercialized
obscenity: (1) Interest of the public in the quality of life
and the total community environment; (2) the tone of
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commerce in the great city centers; and (3) Public safety
itself (Crime linked to obscene materials)
2. Brennan Dissenting: Outright suppression of obscenity by the
State cannot be reconciled with the Constitution. However,
certin regulation of obscenity to prevent exposure to juveniles
and unconsenting adults should be permitted.
iv.Hypotheticals
1. The faces of death 9 shows graphic depictions and nude
corposes. Can this be punished as obsence?
a. A: Miller limited scope of obsenity to sexual conduct
not violence
2. Suppose the law simply recites the three prongs?
a. A: Vagueness issue
3. Supopse the distributor of obscene materials in the Miller case
had been sent out only by request.
a. A: Paris case holds there is no exception for consenting-
adults. Thus, the state is allowed to ban obsenity even as
applied to willing adults because of the legitimate
interests at stake.
b. See also Brennan’s Dissent.
E. CHILD PRONOGRAPHY
i. General Rules
1. Can have stricter obscenity standard for work being viewed/read
by minors – adapt each prong of Miller to minors. (Ginsberg)
2. If work shows minors engaging in sex acts, it has no 1st Am
protection. (Ferber)
3. If work not obscene but “indecent,” can regulate broadcast
media so as to limit exposure to minors. (Pacifica v. FCC)
ii.Ex: Ginsberg v. New York: Ginsberg was convicted of selling two girlie
magazines to a 16 year old boy. NY statute prohibited distribution to
minors of materials containing female butts or boobs uncovered below
the nipple if the materials were harmful to minors. Harmful to minors
was defined as appealing to the prurient interests of minors, was
patently offensive, and was utterly without redeeming social
importance for minors (a combination of all standards; Miller, Roth,
Memoirs). HELD: The Supreme Court upheld the conviction. The
materials that wouldn’t be considered obscene for adults and are thus
protected are not necessarily so protected for distribution to minors.
1. State’s Interest: The well being of children and to see that
they are safeguarded from abuses which might prevent their
growth into free and independent well-developed citizens is
within a state’s constitutional power to regulate.
a. RULE: Can have stricter and broader obscenity standard
for work being viewed/read by minors because of the
important State interest – adapt each prong of Miller
to minors. Materials that wouldn’t be considered
obscene for adults and are thus protected are not
necessarily so protected for distribution to minors.
iii.Children as Pornographic Subjects
1. Ex: Ney York v. Ferber: NY criminal statute prohibiting persons
from knowingly promoting sexual performances by children
under 16 by distributing material, which depicts such

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performances. Until now, child porn was not an unprotected
category under Chaplinksy, but the NY court attempts to expand
the set of unprotected categories to include child porn as
unprotected speech. This case arose when a bookstore owner
sold two child porn films to an undercover police officer. HELD:
Supreme Court held that States are entitled greater leeway in
the regulation of child porn.
a. RULE: It is Permissible to consider child porn without the
protection of the First Amendment. The state may ban the
distribution of materials showing children engaged in
sexual conduct, even though the material is not
legally obscene because it has no 1st Amendment
protection.
b. Justifictations
i. Preventing Sexual abuse and exploitation of
children in the production process;
ii.Permanent record of child abuse that will scar the
child and remain with him for life;
iii.Creates a market for child porn and incentives for
more abuse;
iv.Creates a distribution network
2. NOTE: The Court has not extended the reasoning in Stanley v.
Georgia to permit 1st Amendment protection to have child porn
in the privacy of one’s own home. Analagous argument to Ferber
3. NOTE: A statute banning all depictions of children in a sexual
light would not be substantially overbroad. Thus, because it
may just be overbroad, it would be evaluated on a case by case
basis. Unclear from Ferver whether we have to make an
exception for literary work of minors.

f. INDECENT SPEECH: REGULATION OF INDENCY IN MEDIA


i. Definition of Indecent: Refers to non-conformance with accepted
standards of morality.
1. Application to Media: The Supreme Court holds that the
government has substantial latitude in regulating indecent
expression on the public airwaves (Over T.V and Radio)
ii.Ex: FCC v. Pacifica Foundation: Pacifica broadcast 12 minute
monologue entitled “Filthy Words,” which referred to “the words you
couldn’t’ say on the public, ah, airways, um the ones you definitely
wouldn’t say ever.” Among these words were “shiz, piss, f, c*nt,
cocksucker, mother effer, and tits. Those are the ones that will curve
your spine, grow hair on your hands and (laughter) maybe even bring
us peace without honor (laughter).” Some people complained to the
FCC, which issued an order holding that Pacifica could have been
subject to sanctions. It did not impose sanctions but stated that it
could be the basis for sanction on subsequent complaints. FCC
reasoned that the language was not obscene, but that it was
indecent and prohibited by a section of the Communications Act,
which prohibited indecent, profane, or obscene language by radio
stations. FCC did not intend to prohibit this absolute but wanted to
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restrict is to times of day when children wouldn’t be exposed to it.
HELD: The Supreme Court upheld the FCC orders.
1. FCC Nuisance Rationale: The FCC did not assert that it could
ban non-obscene, but indecent speech language for all airwaves
at all times. Rather, it contended that principles analogous to
those of nuisance could be applied, making context all
important. Therefore, the FCC believed that it could keep this
kind of language off the airwaves in the early afternoon, when
children were the likely audience.
a. Pig In a Parlor: “A nuisance may be merely a right thing
in the wrong place – like a pig in the parlor instead of the
barnyard. When the Commission finds that a pig has
entered the parlor, the exercise of its regulatory power
does not depend on proof that the pig is obscene.”
b.
2. Context/Forum Important: Some uses in certain contexts are
unquestionably protected but in others not; Words that are
commonplace in one setting are shocking in another. Of all
forums of communication, it is broadcasting radio that has
received the most limited First Amendment protection because:
a. Of its uniquely pervasive presence that enters the
privacy of the home
i. Captive Audience Rationale: Thus, prior warning
of the indecent speech are insufficient to nullify this
assault on privacy.
b. It is uniquely accessible to children.
3. RULE: If work not obscene but “indecent,” can regulate
broadcast media so as to limit exposure to minors. (Pacifica v.
FCC)
a. Must be narrowly tailored.
g. TIME, PLACE, AND MANNER ANALYSIS: ZONING
i. The Secondary Effects Doctrine: If the court is satisfied that the
government was merely trying to eliminate the undesirable non-
content related consequences of an expressive activity (things like
increased crime, or declining property values) the regulation will be
found to be content-neutral and will be given only Track Two
review.
1. RULE: It is permissible for a state to engage in time, place, and
manner restrictions. They are not banning, just regulating.
a. Ex: City of Renton v. Playtime Theater: The Court upheld a
municpal ordinance that prohibited adult movie theaters
from locating in about 94% of the city’s land. The
ordinance was content neutral because the State’s
interests included:
i. Prevention of crime;
ii.Protecting the city’s retail trade;
iii.Maintaing property values;
iv.Protecting the quality of the city’s
neighborhoods
b. Ex: City of LA v. Alameda Books: Very similar case as
above where the Court applied the secondary effects
doctrine. The Court applied intermediate scrutiny
because the regulation was content neutral.
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H. DEFAMATION
i. Common Law Defamation: defined as “a communication that tends
to damage the plaintiff’s reputation, more or less in the popular sense;
that is, to diminish the respect, goodwill, confidence or esteem in
which he is held, or to excite adverse or unpleasant feelings about
him”
1. Categories of Defamation
a. Libel: Written or printed defamation
b. Slander: Spoken defamation
2. Opinions Not Actionable (Lorainne Journal v. Milkovich):
Assertions of facts are actionable if false and defamatory;
statements that do not amount to an assertion of facts and are
merely name-calling or statements of opinion are not actionable.
a. Rationale: Minimal redeeming or social value in false
statements of fact. If they cause tortious damage to
reputation, there is no constitutional violation in
recognizing defamation.
3. Defense of Truth: When a true statement of fact is made that
may seem like it is defamatory, there will be no cause of action
because part of the tort of defamation is falsity. Thus, it is an
absolute defense.
a. Ex: A TV station correctly says that the mayor has taken a
bribe.
ii.Defamation in the Public Arena: Public Officals
1. Actual Malice Standard: Constitutional guarantees require a
federal rule that prohibits a public official from recovering
damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with
“actual malice.”
a. Actual Malice: Knowledge of falsity, or reckless
disregard for whether it was true or not. Intent,
knowledge, or recklessness will suffice for this standard.
i. Negligence Insufficent: It is not enough for the
official to show that a “reasonably prudent
man” would not have published the statement.
2. To Recover Under This Standard
a. Must show actual malice in order for a public official to
recover for defamation; and
b. The alleged defamatory statement must relate to his
official conduct.
3. NOTE: Subjective Standard of Actual Malice (Ex: St. Amant v.
Thompson)
a. These cases are clear that reckless conduct is not
measured by whether a reasonable prudent man would
have published, or would have investigated before
published. There must be sufficient evidence to permit
the conclusion that the defendant in fact entertained
serious doubts as to the truth of his publication.
4. Rationale: Public debate should be robust, wide-open,
and uninhibited. If people had to worry about speaking out
against the government, this would chill speech. We want
maximum breathing space and minimum chilling effect. To do
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so, we must have a margin of error for defamation liability when
the subject is a public official; why there is a fault standard to
protect speech.
5. Ex: New York Times v. Sullivan: Defendant New York Times
published an ad to civil rights group that defamed plaintiff, who
was a public official. The ad did not explicitly mention the
Plaintiff, but by his position, he felt the ad was of and concerning
him. The events described were inaccurate depictions. Held no
libel because the ad pertained to a public official, and the
plaintiff failed to prove actual malice.
iii.Defamation in the Public Arena: Public Figures
1. The NY Times Standard has been extended to include pulic
figures. The Standard Is akin to gross negiligence which is
not quite actual malice.
a. A public figure (not officials) may also recover damages
for defamatory falsehood whose substance makes
substantial danger to reputation apparent, on a showing
of highly unreasonable conduct which is an extreme
departure from the standards of investigation and
reporting ordinarily adhered to by responsible
publishers.
2. Ex: AP v. Walker & Curtiss Publishing v. Butts established certain
factors to take into account as to whether the standard is
breached:
a. The need for immediate dissemenation of the breaking
news story;
b. The Trustworthiness and competence of the reporter;
c. The reporter’s actual presence at the scene;
d. The Internal consistency of the dispatches with one minor
discrepancy;
e. The lack of motive to distort;
f. The consistency of the previous reported conduct of the
same public figure;
g. Whether the news is “hot news” and requires that there
be a thorough investigation into serious charges and
whether that procedure was ignored.

iv.Defamation in the Private Arena: Private Figures and Speech


of Public Concern
1. The NY Times Standard does not apply to suits by private
figures. That is, where the plaintiff is neither a public official nor
a public figure, there is no constitutional requirement that
he prove that the defendant knew his statement to be false or
recklessly disregarded the truth. He must only show publication
and falsity.
a. Negligence Standard Permitted at a Minimum: The
1st Amendment does not forbid that use of ordinary civil
negligence as the standard. The states are free to decide
which standard to apply, but that may not impose strict
liability (liability without fault).
2. Ex: Gertz v. Robert Welch, Inc..
i. NOTE – Intentional Inflication of Emotional Distress
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1. The NY Times Standard also applies to actions for I.I.E.D. That is,
a public figure or official may recover against the publisher who
causes such distress only if he can show that the publication
contained a false statement of fact published either with
knowledge that the statement was false or a consiouse
disregard as to whether it was true or not.
2. Ex: Hustler Magazine v. Falwell

I. FREEDOM OF THE PRESS


A. PRIOR RESTRAINTS AS PRESUMPTIVELY UNCONSTITUTIONAL
i. Any governmental action which prevents expression from occurring (as
distinguished from punishing it once it has occurred) is presumed to
be unconstitutional. This is all the more true when the prior restraint
is directed against the press. The burden will always be on the
Government to overcome this heavy presumption.
1. Ex: Near v. Minnesota
a. Exceptional Cases in which a Prior Restraint may
be permissible: Actual obstruction of recruitment for the
armed forces, and publication of the location of troop
movements during times of war.
ii.Ex: New York Times Co. v. United States – The Pentagon
Papers Case (Per Curiam Opinion): This case establishes that the
press has almost absolute immunity from pre-publication
restraints
1. Facts: The NY Times and the Washington Post began publishing
a secret Defense Deartment Study of U.S. policy in Vietnam. The
question was whether the United States government could
enjoing the Publications. The Court denied the injunction sought
by President Nixon very heavy burden/presumption against prior
restraint on publication.
2. Stewart’s Concurrence Standard: The government must
show that publication will surely result in direct, immediate,
and irreparable damage (similar to clear and present danger
test) to our Nation or its people. The danger cannot be
merely speculative.
a. In NY Times, the Court found that while danger would
probably result from the publication, it was not
substantially certain.
b. The Court should do an in camera review to see if any of
the information really is a threat to national security.
3. Extraordinary Circumstances for Prior Restraint must be
proven Concurrence
a. Brennan, White, Stewart, and Marshall all would recognize
the extraordinary circumstances in which a prior restraint
could upheld, but each believes that either proof, or
congressional authorization, or both, are missing in
this case.
4. HYPO: A publuisher wants to publish a history which would
identify who in the past were CIA agents. Is a prior restraint
valid?
a. A: Ask whether it would (1) endager those individuals; (2)
endager an ongoing investigation; and (3) is it of sufficent

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detail that it would reveal sources and methods of covert
opps that effect those now going on.
iii.Gag Orders treated as Prior Restraints (Ex: Nebraska Press
Association v. Stuart)
1. A pre-trial order prohibiting the press from publishing
certain types of information because of the dangers of
publicity, especially before a trial begins and the need to ensure
there is an unbiased jury.
a. Essentially a Strict Scrutiny Standard: There are
times where the court can limit press coverage on certain
aspects of the trial. The court must satisfy two steps:
i. The Risk of harm coming from press coverage must
be certain, and not merely speculative, to
outweigh 1st Amendment Protection; and
ii.Less restrictive alternatives that would achieve
the same outcome must be considered:
1. Alternatives for Gag Orders
a. Change of venue;
b. Postponement;
c. Searching questioning during voir dire;
d. Instructions against publicity to jurors;
e. Sequestration;
f. Gag orders binding counsel and state
employees;
g. Courtroom Closure
B. DIFFERENT TREATMENT OF ACCESS IN BROADCAST AND IN PRINT MEDIA
i. Scarce Airwaves Rationale: Broadcast media may be subject to
closer regulation than newspapers and other non-broadcasters
because broadcast frequencies are a naturally scarce commodity
(whereas in theory there can be an unlimited number of newspapers)
ii.The Fairness Doctrine
1. Ex: Red Lion Broadcasting v. FCC: FCC promulgated the
fairness doctrine, which required broadcasters to provide
coverage of each side whenever they covered a controversial
issue. Court said if the government has the ability to regulate
via licensing the public broadcast frequencies based on scarce
resources in public broadcasting, it also has an expanded
interest in regulating it for the public interest. HELD: The
Supreme Court upholds the two rules.
a. Two Rules at Issue
i. Personal Attack Rule: Required the broadcaster
to furnish a tape or transcript and free response
time when an attack upon the “honesty, character,
integrity or like personal qualities of an identified
person or group” was aired.
ii.Political Editorial Rule: Required a broadcaster
that endorsed or opposed a candidate for office to
furnish a tape or transcript and a reasonable
opportunity for response.
1. NOTE: This doctrine is limited to the unique nature of
Broadcast Media. A similar “equal time or equal space” rule as
applied to newspapers would be unconstitutional because the
“naturally scarce” rationale doesn’t apply.
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1. NOTE: There is no fairness doctrine today because it was
rescinded by administrative action and has never been
reinstated.

I. TIME, PLACE, & MANNER RESTRICTIONS


A. GENERAL
i. Here, the Government is not regulating the content of the speech, but
is instead regulating the manner, mode, and location of speech. The
State is substantially freer when it acts in a content-neutral manner.
When it engages in this type of regulation, it will be review under a
Track Two Analysis.
1. Activities protected by the First Amendment are subject to
reasonable time, place, and manner restrictions
ii.Time, Place, or Manner Restrictions
1. Clearly content-neutral?
2. Substantial governmental interest.
3. Ample alternative channels
4. Narrow Tailoring
a. Ex: City bans all solicitations within city limits.
(Overinclusive)
B. THE MODERN TIME, PLACE, OR MANNER DOCTRINE
i. Ex: Heffron v. International Society for Krishna Consciousness: The
State promulgated a Rule applicable to State Fair requiring persons
desiring to sell, exhibit, or distribute materials or to solicit contributions
to do so only from assigned booths. ISKCON wanted to solicit
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donations in connection with their religion, and they wanted to do so at
the State Fair. HELD: The Supreme Court upholds the rule.
1. Criterion for Valid Time, Place, and Manner Restriction
a. Content Neutrality: The restriction may not be based
upon either the content or subject matter of the speech.
b. Significant Governmental Interest: A valid time,
place, and manner restriction must serve a significant
governmental interest.
i. In Heffron, the significant governmental interest
included:
1. Protecting the safety and convenience of
fairgoers;
2. Maintaining the orderly movement of the
crowd in a relatively small area.
a. This is accomplished by confining
individual exhibitors to fixed locations,
with the public moving to and among
the booths or other attractions, using
streets and open spaces provided for
that purpose.
ii.NOTE: Consideration of a forum’s special
attributes is relevant to the constitutionality of a
regulation since the significance of the
governmental interest must be assessed in light of
the characteristic nature and function of the
particular forum involved.
c. Alternative Forums Exist: For a rule to be valid as a
place and manner restriction, it must also be sufficiently
clear that alternative forums for the expression of
respondents’ protected speech exist despite the effects of
the Rule.
i. In Heffron, the Rule does not prevent ISKCON from
practicing its religion outside the fairgrounds. It
does not exclude ISKCON from the fairgrounds, nor
does it deny that organization the right to conduct
any desired activity at some point within the forum.
ii.Forum Based Approach for Assessing Restrictions
1. Ex: International Society for Krishna Consciousness v. Lee:
ISKCON wanted to distribute literature and solicit money in New
York airport terminals in connection with their religion. The Port
Authority has adopted a regulation forbidding within the
terminals the repetitive solicitation of money or distribution of
literature. The regulation governs only the terminals; the Port
Authority permits solicitation and distribution on the sidewalks
outside the terminal buildings. It is uncontested that the
solicitation at issue in this case is a form of speech protected
under the First Amendment. But it is also well settled that the
government need not permit all forms of speech on property
that it owns and controls – time, space, and manner analysis.
Question as to whether airport terminals are public fora or
nonpublic fora. Supreme Court concludes that terminals are
nonpublic fora, and that the regulation reasonably limits

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solicitation; we have no doubt that under this reasonable
standard the prohibition on solicitation passes muster.
2. Traditional Public Forum (E.g. parks and streets and some
types of sidewalks):
Regulation of speech on government property that has
traditionally been available for public expression is subject to
strict scrutiny.
a. Narrow Tailoring: Speech in a public forum may not be
restricted, even in a content neutral way, unless the
restriction is a narrow one which is necessary to serve a
significant governmental interest.
i. NOTE Ex: Ward v. Rock Against Racism: This
narrow-tailoring requirement does not mean that
the state must choose the least-restrictive means
to achieve the objective. Instead, the state must
merely avoid choosing means that are
substantially braoder than necessary to achieve
the significant government interest. Thus, the state
must avoid inclusivness.
3. Designated Public Forum: Property that the state has opened
for expressive activity by part or all of the public; government
deliberately creates a space for this expression. Regulation of
such property is subject to the same limitations as that
governing a traditional public forum but you take into
account the designation of the forum. A forum is a
designated forum only if the government intended it to be open.
a. Ex: Government sets up chat room to ask questions about
medical benefits, and some one starts talking about Deep
Space 9. The government can block these. If the person is
talking on topic and then they try to say they cant then
the regulation will be subject to strict scrutiny.
4. Remaining Public Property: Challenged regulation need only
be reasonable, as long as the regulation is not an effort to
suppress the speaker’s activity due to disagreement with the
speaker’s view (can’t be viewpoint discrimination). All other
government property are non-forums.
a. Rational Basis Review: Must satisfy rational basis,
unless the regulation was viewpoint based.
iii.Characteristics of a Public Forum
1. Immemorially been held in trust for public
2. Purpose: Property that has a principal purpose…the free
exchange of ideas
3. Location (Not a special enclave remote from where
people gather): The location of the property because
separation from acknowledged public areas may serve to
indicate that the separated property is a special enclave,
subject to greater restriction.
a. If it is remote, less likely to be one
b. If a well traveled area, more likely it is a public forum
4. Intent of Government: Government does not create a public
forum by inaction; nor is a public forum created whenever
members of the public are permitted freely to visit a place
owned or operated by the Government. The decision to create a
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public forum must instead be made by intentionally opening
a nontraditional forum for public disclosure.
a. In Heffron, the terminal does not have a principal purpose
of promoting the free exchange of ideas. They have not
previously intentionally opened by operators to such
activity, thus it is not a traditional public forum. Neither
by tradition nor purpose can the terminals be described
as satisfying the standards we have previously set out for
identifying a public forum.
b. However, the Court struck down the ban on distribution

Public Forum Non-Public Forum


must: The regulation must be:
eutral; (i) Reasonable (i.e., viewpoint neutral, but speaker’s status may be considered); and
tailored (ii) Not meant to suppress expression merely because official oppose it or it is a me
ificant government interest; and
ample alternative opportunities for communication and expression

II. SPEECH V. CONDUCT


A. SPEECH V. CONDUCT I
i. Flag Burning (Ex: U.S. v. Obrien): O’Brien and three others burned their
Selective Service registration certificates publicly on courthouse steps
in opposition to the draft and Vietnam War. HELD: The Supreme Court
upholds conviction for these individuals for destroying/mutilating
registration certificate. Determined that the statute specifically
protects this substantial governmental interest of preventing harm to
the smooth and efficient functioning of the draft.
1. Intermediate Level of Scrutiny: When speech and non-
speech elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating
the non-speech element can justify incidental limitations on First
Amendment freedoms.
2. Symbolic Speech: The Court holds that even if some type of
symbolic speech may be protected by the 1st Amendment,
conduct combining speech and non-speech elements
could be regulated if:
a. It is within the constitutional power of the Government,
b. If it furthers an important or substantial governmental
interest,
c. If the governmental interest is unrelated to the
suppression of free expression, and
d. If the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the
furtherance of that interest.
i. Least Restrictive Means
B. SPEECH V. CONDUCT II

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i. Flag Desecration (Ex: Texas v. Johnson): Johnson burned an
American flag while chanting, “America, the red, white and blue, we
spit on you,” outside Texas City Hall during the Republican National
Convention of 1984. No physical violence resulted or was threatened,
but he was convicted under a statute which made it a crime “to
intentionally and knowingly desecrate a state or national flag.
Desecretion was defined to mean deface, damage, or otherwise
physically mistreat in a way that the actor knows will seriously
offend one or more persons likely to observe the action. HELD:
The Supreme Court invalidates the conviction. A prohibition on
burning the American flag is invalid where the conduct was intended
as expressive and there was no actual or imminent breach of the
peace.
ii.Analysis for Regulating Expressive Conduct and Not Speech
1. Is it truly expressive conduct?
a. Need: (1) Intended to convey a message? (2) Likely that
it would be understood by others as conveying a
message?
2. If the conduct is expressive, is the asserted governmental
inetrest even implicated?
a. NOTE: If there a multiple interest, you must analyize both
here.
3. If so, is the asserted governmental regulation related to the
suppression of free expression?
a. If not related to expression, then the less stringent
O’Brien Test for regulations of non-communicative
conduct controls; rational basis standard of review
b. If it is related to expression, then we must ask whether
this interest justifies Johnson’s conviction under a more
demanding standard than O’Brien; strict scrutiny
standard of review.
4. HOLDING: Johnson’s burning of the flag was conduct sufficiently
imbued with elements of communication to implicate the First
Amendment; flag burning constituted protected speech.
a. 1st interest: Preventing breaches of the peace. The court
rejected this argument finding that there was no nexus
between it and the statute. Thus, the interest was not
implicated.
i. Would eviscerate the holding in Brandenburg,
merely by allowing the criminalization of something
like flag burning that has the potential to cause a
breach of the peace.
ii.This expressive conduct does not fall within a
category under Chaplinksy.
b. 2nd Interest: Preserving the flag as a symbol of
nationhood and national unity. The Court found that the
need to protect the falg would only be implicated if the
defendant’s conduct had a contrary message associated
with it, so this was directly related to expression.
i. The State’s interests asserted were related to the
suppression of free expression. Subject the State’s
asserted interest in preserving the special symbolic
character of the flag to strict scrutiny. Since the
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State did not have a compelling governmental
interest, the conviction was overturned.
ii.Bedrock Principal of 1st Amendment: The
Government may not prohibit the expression of an
idea simply because society finds the idea itself
offensive.

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