The Great Stern Con Law 1 Outline

I. The Nature and Scope of Judicial Review

a. Origins
A. Federalist Ppr. #10
1. Written by James Madison – advocated created of a united Republic
(representative govt) - to minimize danger of factions – i.e. independent
states/groups vying for power.
2. Constitution has built-in mechanisms to avoid gov’t oppresion (primary
concern of the anti-Federalists)
a. separation of powers in the Constitution – Checks and balances
b. Federalism – states have own rights and legislative independence
c. Judicial review (established in Marbury v. Madison) – courts protect
citizens by making sure legislature sticks to the Constitution
i. JR “protects America when America has had too much to drink” –
keeps republic from violating core rights.
ii. Framers wanted to make it difficult for temporary majorities to
change the fundamental interests of society.

B. Marbury v Madison- created judicial review

1. FACTS
a. Marbury suing to force new Prez Jefferson to deliver completed
commissions of Federalist judges, including himself and Marshall.
2. HOLDING/NOTES
C. court declines the right to enforce writ of mandamus on Article III grounds that
Marbury did not fulfill the public minister requirement, satisfying the Jefferson
administration (who would have impeached him had he granted the writ), but creates
judicial review – court has power to review constitutionality of laws. The
Constitution prevails over the statute. The Constitution is the superior paramount
law over statutes that are repugnant to the constitution and are void.
i. Logic: JR is implicit in Const under the Supremacy clause Article
6 – “Const is supreme law of the land”
1. Constitution governs all cases under the laws of the US,
and is superior to all legislation – unconstiutional laws are
void.
b. LIMITS ON JUDICIAL REVIEW
i. The judiciary can’t just make unprovoked decisions – they must
wait for an appropriate case to come along before they can make
decisions to change various aspects of the law or Constitutional
issues.
1. This case establishes ONE TYPE of judicial review – SC
to review constitutionality of federal statutes in a case
that is brought through the federal courts.

b. Theories of Constitutional Interpretation

Many laws violate Constitution – i.e. Jim Crow laws after Brown v. Board of Education –
but not every unconst law is gonna get addressed b/c SC cant deal w/ them until a case
addressing them is brought into the courts, and even then SC won’t declare statutes
unconstitutional unless statute is CLEARLY erroneous – strong presumption of
Constitutionality w/ statutes is a major inhibitor of SC JR. Courts use their massive
power sparingly to avoid undermining public opinion, creating controversy and
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compromising efficient implementation of their decisions by other branches of govt (they
wont take courts seriously if they do crazy shit all the time and congress is capable and has
on occasion changed the USSC rulings.).

A. Martin v. Hunter’s Lessee- SC’s JR applied to state legislation

1. FACTS
a. Conflict b/w state and nat’l govt – Virginia SC confiscate land granted to
P by US treaty w/ Britain., and balk at USC order to give him back land
b/c Sect 25 of Judic. Act (which infers that USC has appellate jusrisdiction
over state SCs) is invalid b/c Const doesn’t explicity give USC power
over SCs.
2. ISSUE – Allocation of Powers Conflict/Different Federalism Ideals
i. VSC wants dual federalism – separate but equal SCs
ii. USC feels that Const gives them bottom-line appellate jurisdiction.
3. HOLDING
a. VC must obey USC’s rulings- USC has appellate jurisdiction over
state SCs on issues involving federal Constitution, laws and treaties.
Uses 3 modes of analysis:
i. Constitutional Textual analysis - Judge Story felt that Article 3 of
Const gave USC sweeping appellate jusridiction over federal
question issues.
ii. Design analysis (broader) - VA has taken the position that to
elevate the US sup ct above the states, we are going against the
spirit of the constitution which they think is a co-equal partnership
between the federal and the states
1. Story says that the federal gov’t and the states have not
been set up the same at state and federal level. Examples
of where state power is limited:
a. The state cannot create their own currency as we
see in Artile I Section 10
b. He also references Article VI, the Supremacy
Clause which says that the states have to follow the
constitution
iii. Teleology (when not clear from other approaches, look at both
possible outcomes and pick one that serves broader const. end -
Constitutional Uniformity- its inconsistent w/ national Constitution
if rights granted by that doc vary from state to state. It’s better to
have consistent place to look for laws than patchwork system from
state to state.

B. US v. Carolene Products, Footnote 4

1. Courts will apply heightened level of scrutiny to laws that may 1) infringe upon
Bill of Rights, 2) restrict political representation, 3) statutes dealing w/ minorities
(political or racial, or religious in nature). This ensures that people are represented
and b/c minorities otherwise may not have another path to defend itself in the
political process if not for the courts.
C. Const Article 1, Section 10 – States Federalist Limitations
a. States can’t act as sovereign entities – can’t make their own money, enter
into treaties/alliances with foreign countries, wage war, etc.
D. Intent of the Framers Approach to Constitutional Interpretation
1. Main Problems
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 a. Different framers had different opinions so you can’t nail down one single
mindset on behalf of the framers. – would be hard to find single approach
or coherent intent.
b. Times have changed and there are either new issues or the issues are
different than the framers could have imagined

c. Political Question Doctrine

- The “case or controversy” requirement of Article 3, Section 2 limits federal jurisdiction to
only justiciable cases: cases w/ substantial disputes affecting legal interests of genuinely
opposed parties, where specific relief can be obtained through judicial decision. Court will
leave to resolution to one of the other political branches. Purely political questions have
been determined to be nonjusticiable and should be left to other gov’t branches, under
separation of powers.
- 4 factors are weighed in determining whether there is a political question: #1 - A
“textually demonstrable” constitutional commitment of the issue to political branches f/
resolution, #2 – the appropriatenes of attributing finality of action to political branches,
#3 – lack of adequate standards for judicial resolution of the issue, #4 – the lack of
adequate judicial remedies.
1. Examples of Determined Political Questions:
a. Luther v. Borden- different factions claiming to be true gov’t of Rhode
Isleand; SC decides it’s a political Q for Congress 2 deal w/
i. its not for courts to determine initial policy or what a
republican form of gov’t comprises – that’s politics.
b. Coleman v. Miller- national Const amendment proposed by Congress,
Kansas waits 13 yrs to approve – issue that approval is invalid cause wait
was too long. SC determines that it’s a political question b/c they lack the
judicial standards to determine it.
i. Stern: they could have said there is a textually written commitment
in the Const f/ Congress to determine what’s a reasonable
timeframe.
2. Gilligan v. Morgan- the Kent State Shootings – p. 33 of handout- Ps want decree
to clean up Ohio Nation Guard after they shoot a bunch of kids at Kent State in
1970; court claims political question with inverse reasoning of Coleman –
says there’s textual commitment of militia operation to political branches;
Instead, they looked at Art 1 Section 8 and said that there is a vesting of guards in
other branches of gov’t – other branches of gov’t have the job to oversee the
national guard so not going to get in the way
i. Stern: Court could have done lack of judicial criteria! Courts cant
determine what it takes to run a militia, and any decisions from
court would be political, not judicial.
1. Notice that what makes this a political question has nothing
to do with the fact that these shootings were a huge
political issue
2. The court is not going to stay out of an issue that otherwise
provides avenue for constitutional interpretation just b/c
there are political stakes (ie Bush v. Gore)
b. Goldwater v. Carter- Senator sues Prez f/ withdrawing from Taiwan
treaty. SC says it’s a political question b/c they don’t have the judicial
criteria to determine if Prez can do it
c. his w/o Senate approval. It’s up to Congress to figure that out.

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 i. Stern:- Can’t do textual commitment with this one, cause
Constitution speaks only of ratifying treaties, not terminating them.
3. Nixon v. US - a judge, Nixon, challenges removal by saying that he was not
properly tried under constitution. He challenges process that senate used to make
conviction. There was a streamlined decision that was not a full trial. Several
senators were assigned and there were essentially a series of closing arguments.
He says not tried under contstutional Article I Section 3 Clause 6 saying that the
senate shall have the sole power to try for impeachment. He says that the senate
did not moved slowly enough and that he says that the senate should perform a
trial for impeachment that provides more than what he was provided
a. The court rejects Nixon’s claim – the court is not ruling on the merits.
The holding is not on the merits saying that they are trying him under
Article I – the holding refrains from deciding whether a process in the
senate rises to level of whether this was proper trying for political offense
and for impeachment. Says it was a political question
4. Nixon v. US - Senate delegated a committee to hold hearings on accusations against Nixon. Committee then
gave Senate transcript, and Senate voted by 2/3s to convict. Nixon argued this violated amendment b/c full
Senate didn't hear evidence, but rather committee. Supreme Court held that Nixon's argument presented a
non-justiciable political question. Interpreted Article I Section 3 Clause 6 (Senate Impeachment Clause) to
determine that Senate had power to determine what constitutes valid "trial." Court further held that opening
this door would expose political life to chaos."
5. Renquist in Nixon hedges a bit about what criteria for a political question are
relied upon
6. He meshes together a number of the parts together – meshes textural argument
with a lack of judicially manageable or discoverable standards
i. Textural – looks at text itself and the Article I language says the
senate has the sole power to try one for impeachment making non
reviewable by the court
ii. Manageable Standards - However, the opinion continues and
points to the various definitions in dictionaries of the term to ‘try’
– says the court lacks any principled standards to determine
whether a judge has been properly tried under the constitution
iii. Either of these could have been independent, but he uses both
b. Suter concurrence - He makes an argument against the majority saying
don’t want to hand down categorical rule that the court can never rule on
conviction after impeachment b/c there can be a process for example that
is totally arbitrary that they may want to review for the adequacy of the
outcome. – political standards very important

B. Baker v. Carr- Justiciability of Reapportionment Challenges- NO PQ

1. FACTS
a. P seeks an injunction prohibiting the 1901 standard of county
representation, saying that it undermined the value of his vote – made it
arbitrary and illogical – and requested a reapportionment based on federal
census figures. According to outdated apportionment, small districts had
same voting power as large cities – minority of population could control
legislature
b. Lower federal courts denied relief on grounds of nonjusticiability, saying
that it was a political question.
2. HOLDING
a. Federal judiciary’s relationship w/ the states doesn’t give rise to political
question – federal crts have jurisdiction over const challenges to state
legislative apportionment.
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 b. Relationship b/c judiciary and coordinate branches of gov’t is what
creates political question, not fed judiciary’s relationships w/ states.
3. NOTES
a. This case was justiciable b/c it was an equal protection clause claim –
malapportionment discounted votes, not all people had equal voting
power.
i. Court’s usual deference to will of the people isn’t applicable when
the political process doesn’t represent the will of the majority of
the ppl.
b. P. 115 – Judge left EPC guideliness intentionally vague, b/c judicial
standards under EPC arent well-developed and familiar and he didn’t want
to lose his majority vote on the case.
i. STERN: there may be tension b/c what a justice needs to do to get
a majority vote and what he needs to do to provide guidance to the
lower courts – his opinion was vague and sucked b/c he had to
keep it vague to get a majority for the decision (which was the
right decision) – but it gave little guidance to the lower courts for
future cases.
ii. Stern - Frankfurter’s Dissent - Essentially called this claim of
Equal Protection bogus – essentially calls it a Guarantee clause
claim in disguise. Stern thinks has a point.

C. Powell v. McCormack
1. FACTS
a. Powell junior representative in the House of Reps, and the HOR refused to
let him sit b/c of alleged malfeasances. Argument against Powell is
nonjusticiability – the matter of who gets to sit in the house of reps is
textually committed to the House itself – no court interference
(political question)
2. HOLDING
a. Judge Warren says that as long as Powell meets the Constitutionally
mandated requirements for HOR members, and the House is empowered
to be the judge of, that the house cannot refuse him his seat. (Article I
Section 1)
3. NOTES
a. If you follow through the logical implications, in theory the House could
decide that Powell didn’t meet one of these requirements “we think
Powell is 10 yrs old” – since they determine whether the criteria are met.
i. If court had ruled otherwise, it would have established precedent
that HOR has authority to thwart/subvert the will of the voters
(in their appointment of their Reps) by rejecting Reps that are
“too liberal, too honest, too ugly” etc.
ii. Court says wrong left out some relevant text
1. Article I Section 2 – spells out some other parts of house
membership
2. Holding: On the merits, the court says that as long as he
meets these requirements set out in constitution, that he
cannot be excluded from House membership
iii. There is a potentially anomaly of holding, which says in theory the
House could say that there was another requirement that he didn’t
meet
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 iv. The court held that not political question where some though they
would have said it would
v. The court did not hold political question perhaps b/c the political
process itself has been undermined; the constitutents in Powell
district voted him in and the House said he wasn’t qualified, so the
court though that this represented the second para. Of the Caroline
Products where the court needs to take a closer look where
political process has failed

D. Gilligan v. Morgan- Kent State Shootings – see above.

E. RELEVANT PQ CONSTITUTIONAL PROVISIONS

1. Article 1, Section 5
a. Cl 1 - Outlines the duties and behaviors of the House of Representatives and the members
of each state.
b. CL 2 – Each house may determine the rules of these proceedings, punish its members for
disorderly behavior, and can expel a member with 2/3 majority vote.
2. Article 1, Section 1
a. CL 2 – House of Reps member must be 25, a 7 year citizen of the US, and must inhabit
the state he represents.
3. 14th Amendment
a. Ppl born in a state are residents of the US and that state. No state can make laws violating
rights of US citizens, nor can any state take away liberties w/o due process, nor deny any
citizen equal protection of the laws. (as opposed to the Guarantee Clause which
guarantees a certain structure of government)
4. Article 4, Section 4 (Guaranty Clause)
a. US gaurantees to every state a Republican gov’t, shall protect them against invasion and
domestic violence (insurrection).
5. Article 5
a. Criteria for creating Constitutional amendments – Congress will hold a convention for
amendments whenever 2/3 of the House deem it necessary, where they may be ratified as
part of the Constitution.

d. Justiciability – Advisory Opinions, Ripeness, and Mootness

The “Case and Controversy” requirement of Article 3, Section 2 disallows judiciary to
invalidate legislative or executive actions merely b/c they are unconstitutional – there must
a justiciable constitutional case presented for court to rule upon. When a case dismisses
an issue as non-justiciable, they’re saying that Article 3 doenst give them power in that
circumstance.
Court may not issue advisory opinions, may not decide political questions, may only hear
constitutional cases w/ someone who has “standing”(personal stake in the controversy),
etc. This “c and c” requirement could be to limit friction b/w branches of gov’t b/c of
JR, to make sure Constitutional issues are resolved only for concrete disputes rather
than abstract/hypothetical problems, and make sure probs are solved only to those that
are injured – i.e. racially discriminated ppl must bring their case to court, outsiders w/
ideological interest CANT.
Mootness – the converse of ripeness and advisory opinion – we acknowledge that
there was a full blown dispute at one time between these parties, but by this time
the parties are no longer at odds – there is no live controversy – a ruling would
have no meaningful effect (no impact on the parties)
Advisory Opinions- opinions on the constitutionlity of legislative or executive
actions that did not grow out of a case or controversy – courts wont hear them b/c
there’s no adverse parties. Under Article III, there must be an adversary party
going up against the other.
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 Ripeness – its not the right time to hear this case yet – too early. Some kind of
dispute between two parties, but hard to determine exactly what the dispute or the
relevant facts are. This is called a lack of ripeness – there is a dispute, but not ripe
for resolution for court. This is very similar to advisory opinion – the line is very
blurry

These 3 doctrines all lack standing due to timing – either too early or too late.
Comparatively the political question doctrine isnt permitted based on the issue
itself.

A. Muskrat v. US- No Advisory Opinions - No concrete controversy, no justiciability

1. FACTS
a. Federal gov’t gives parcel of land to Cherokees, Congress subdivides it
further so each indian gets less land. Indians sue b/c of further subdivision.
The government hadn’t taken action yet – the legislation had been passed
but not enforced.
2. HOLDING
a. P didn’t show there was a concrete controversy b/w “adverse parties”
(both parties with concrete stakes at issue and something to lose). This
is just a challenge to unenforced sketch legislation, the gov’t has
nothing at stake.
B. United Public Workers v. Mitchell- if your claim is to vague, nonjusticiable
1. FACTS
a. Employees challenge constitutionality of Hatch Act, which prevents gov’t
employees from engaging in political activities.
2. HOLDING
a. Claim dismissed b/c it’s too vague – group doesn’t say what they want to
do other than “help with a campaign” – we need to know more than we
can learn from the appellate record – we make precise rulings on
precise behavior.
b. Court wouldn’t know precisely what it would be ruling on – this is why
more ripe then advisory opinion – no question that there was a dispute, but
court didn’t have precise picture of dispute – court doesn’t want to create
ruling until understand what the ‘case’ is (in Article III terms).
C. Rescue Army v. Municipal Court – Courts avoid Constitutional conflict if possible
1. ASHWANDER RULES – courts will go out of their way to dispose of disputes
without raising constitutional issues – if multiple interpretations of statutes are
available, courts will interpret statutes in a way that avoids questioning the
Constitutionality of legislation.
2. “Constititional Doubt” – strong assumption of legislative constitutionality if
other interpretations are available. Doctrine of Constitional Doubt - ‘won’t take
up constitiutionality of statute if the construction is fairly possible by which the
question can be avoided.
a. If have statute where constitutionality being challenged
b. 2 interpretations – one casts doubt on constitutionality of statutes, other
does not. Court says when faced with situation where both are plausible,
they will tilt toward the interpretation that does not raise constitutional
difficulty
D. DeFunis v. Odegaard- mootness – if controversy is moot, it’s nonjusticiable!
1. FACTS

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 a. P is rejected from UW Law School, brings Equal Protection clause
discrimination suit against the school, case goes back and forth up to the
US SC.
2. HOLDING
a. The case is moot – P already registered for his last year of law school –
whether we decide its valid or invalid, DeFunis will finish law school -
the specific fight between these parties is over and therefore there is no
need to resolve this issue in this instance.
b. Difference between Roe v. Wade and this case is that Roe will always be
moot; no woman will ever be able to get in front of SC in time so allow
3. Voluntary Cessation Doctrine: Defendant has voluntarily, but not necessarily
permanently, changed his conduct
a. Voluntary cessation of conduct by D will not make case moot
b. Case would be moot only if there is no reasonable expectation that wrong
will be repeated
c. Injunction requested, and D ceases conduct, will still not make case moot
b/c D could revert to old ways
d. There are adverse collateral consequences/’ to the defendant's action
which, when considered, prevent mootness
e. Ex. - If a criminal D has already served his sentence, case will not be
deemed
4. NOTES
a. STERN: This was a close case; by deciding close cases in favor of
mootness, crt is favoring private law approach: court is looking at this
as a specific dispute b/w individuals, no concrete dispute = no case.
i. Private law model – the overriding function of the courts is to
resolve individual disputes, and the Sup Ct in doing this
promulgates broader principles, but it is thought the vehicle of
individual cases that it does so – the court should confine disputes
to specific disputes to parties who have clear important stakes in
the outcome of the disputes – therefore they should go beyond
what is needed to resolve dispute and beyond core function of
judiciary
1. In this method, when there is ambiguity in the mootness,
the burden should be on those who don’t think it’s moot to
show this
ii. BUT mootness presents strongest case for public values model
approach: cases provide vehicle f/ USC’s larger purpose of
providing coherent interpretation of fed law and Const issues for
public good. Mootness is good for applying this b/c you don’t
have the same uncertainty/vagueness probs that you do with
advisory opinions – parties have previous adversarial
relationship, well-defined facts and arguments – a decision
should be made in the interest of public policy!
iii. Public Values Model – says that yes courts resolve disputes, but
importance of the Sup Ct is that it resolves important theories for
interpretation and we look to USSC to get a coherent interpretation
of important principles and it happens to be that individual cases
are the vehicle that these important principle are decided. One of
the strongest vehicles for this are judges themselves. Justice
Kennedy said that they don’t pick the cases that they think worst
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 injustice done, they pick cases with most need for society to have a
question resolved.
1. If dispute involves an important legal issue that is
ambiguous and the public is going to look to the court to
resolve, then the court should resolve these ambiguitites
against mootness so that the court can resolve its basic
functions
2. In DeFunis, Brennan in dissent said that it is not over yet
and he may get sick of flunk out, that there is still a
possibility that he is not going to ultimately graduate and
that they should go ahead and resolve the issue
3. Of these various types of non justiciability, mootness
probably provides the strongest case for the public values
model – the argument against mootness like Brennan’s
here. This is distinguished from the advisory opinions in
that in those the court is uncertain and doesn’t know
exactly what it’s ruling on. In mootness cases, esp like this
one, we know there is a full blown dispute and by the time
get to USSC there is a full record.
e. Standing (like in civpro, there is a similar phenomenon of successive motions to survive
constitutional claim which include:
a. Does this party have standing – are they right person?
b. Is this an issue that these courts can resolve or is it political question?
c. Does this have merit – on the merits does it violate the constitution.
f. Standing is a threshold condition – you must demonstrate that you are a proper party to be
bringing this claim (that you have “standing”). The court will not hear the merits of the case
unless there is standing. There are 3 requirements to have Const. standing:
#1 – Injury in Fact – most rigid requirement – you must be hurt in some way that
the court is willing to recognize b/f there’s “c or c” – gotta have concrete stake in
the outcome of the case
2 Types of Standing Injuries
Individual Standing- most common – gov’t action has harmed you
by infringing on your individual Constitutional rights. I.e. state
shuts down your newspaper cause u talk shit about G.W.
Citizenship/Taxpayer Standing- unusual - gov’t has duty to act
properly towards taxpayers. Only possible in challenging gov’t
expenditure programs – taxpayer thinks gov’t is spending his tax
unconstitutionally

#2 – Attributability (Causation)- you must show that the injury was clearly
caused by the statute – must be “fairly traceable” to the governmental action. You
gotta demonstrate to court that statute will cause you injury, regardless of how
obviously unconstitutional it is.
i.e. “6’2 dorks cant buy 100 ft yacht” statute – Bill Gates has standing, poor dork doesn’t
b/c even if harmed by statute this is not what’s preventing him from buying yacht.

#3 – Redressability- you gotta show if that relief is granted, it will benefit you.
i.e. if “dork yacht” statute is revoked, poor dork still wont be able to buy the yacht

Alternate Way to Establish Standing

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 Statutory Standing – Congress establishes standing for certain classes of ppl
automatically through statute. Think enviromental stuates – prohibits factories
from emitting ctain amounts of toxins – if you breath the toxins, you have
standing against the factory (you’re within the zone of interest of the statute).
Statutory standing is a much easier claim to bring than proving
constitutional standing – courts don’t like collisions /w legislature and
judiciary, and theres no threat of that with a statutory claim. Courts
rarely reject statutory standing.

A. US v. Richardson – Courts don’t like “taxpayer standing” claims

1. FACTS
a. citizen challenges CIA Act which allows CIA to keep expenditures private
– challenges gov’t as a taxpayer, saying that it violates his
Constitutional right to know whats happening with his money.
2. HOLDING
a. P had no standing – his claim was “generalized grievance” and he suffered
no specific harm as a result of it.
1. Generalized grievance – if he is injured then everyone else
is too. It is just a generalized injury not specific to the
person
2. Rule: If you are suffering from an injury that all citizens
are suffering if it arises to the level of the injury then this
does not qualify under injury in fact under Article III>
ii. Must be a individualized injury f/ standing under Article 3.
3. NOTES
a. STERN: this case is a situation where court intervention is most needed
(under Caroline products footnote reasons) – this problem is so obscure
that its not possible to gain enough public support through political
channels – Court should have let P bring his claim into court,
recognizing his injury.
i. Courts are much more receptive to claims w/ individual injury
standing than taxpayer standing.

B. Warth v. Seldin- “snob zoning” - No standing if you’re not the party being injured.
1. FACTS
a. Suit brought by Rochest taxpayers challenging discriminatory ordinances
on Constitutional grounds b/c they discriminate against lower incomes,
and most lower incomes are minorities, ordinances violate Bill of
Rights. Really they’re just pissed cause they have higher taxes b/c of
added cost of building more low income house f/ the negroes.
2. HOLDING
a. No Individual Injury- No standing b/c its not their Constitutional rights
being violated! General standing rule is that you don’t presumptively
have standing to assert someone else’s const rights.
b. No Redressability- the negrfoes couldn’t afford to live there anyway! Ps
failed to demonstrate that ordinance was the cause of injury (inability to
live there)
3. NOTES
a. Kicking parties out of court before they can plead their case leads to catch
22 situation – the more effective zoning barrier is at keeping ppl out, the
more difficult it is to find builders/insiders to meet court’s standing
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 requirement of DEMONSTRATING you’d be able to move in if ordinance
was removed.

g. Standing to a Statutory Claim

1. General Rule: easier to bring case and get standing for statutory claim than a
constitutional claim
2. more lenient in applying attibutability
3. If you think of distinction betw. Standing in const. and statutory context, it is not
an arbirtrary notion
a. Stern is saying that in constitutional claims, you would expect more
restrictive notion b/c concenerned with separation of powers. Remember
the ashwander rules where they say that if they can avoid a constitional
claim they willl if they don’t have to confront, and standing is one of bases
for dismissal under Ashalder
b. In statutory claims, the court no problem with separation of powers, b/c
the court’s function is to dissern the intent of the congress when they made
the statute. It is really implementing congress’s will, not stepping on its
toes
4. Minor point: court says that congress does not have unlimited power to create
standing or say that class of persons can have standing. There is a limit, but it is
very far out before they will regulate what congress says about causation where
people have been injured by something – chain of causation would have to be
very long before the court would say the chain of causation created by congress is
too big to lack standing

h. Standing to Assert 3rd Party Rights

The general rule requiring that Constitutional standing must be based on a violation of your
own rights is NOT a mandatory rule – it’s a rule of practice. Courts will waive the rule and
allow third parties standing when other factors outweigh upholding it.

A. Craig v Boren – boy b/w ages 18-21 AND a beer vendor bring suit f/ Constitutional
gender discrimination concerning alcohol ordinance that allows girls to buy 3.2oz beer
at 18 but disallows boys to buy it until 21 (even though they could drink it).
1. ISSUE – Does beer vendor have standing to bring suit using the Constitutional
discrimination against males 18-20?
2. HOLDING- YES since statute directly impacts/effects alcohol vendors, vendor
has standing to raise equal protection challenge to this law.

B. Rule – (most common type court allows)When the third party who’s constitutional
rights are being violated are in a difficult or impossible position to assert right
themselves
NAACP v. Alabama- gov’t requiring membership lists for NAACP – NAACP brings suit,
citing Constitutional right of freedom of association on behalf of its members
1. HOLDING
a. Common sense – since bringing members into court to defend their right
of privacy would destroy it, NAACP can litigate f/ them
i. Rights of individual privacy override “practice rule” of allowing
only personal claims of Const violation.

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C. Barrows v. Jackson- white person defending against enforcement of racially-based
covenant on behalf of discriminated negroes.
1. HOLDING
a. Rule of practice outweighed by the need to protect the fundamental
rights which would be denied by permitting the damages action to be
maintained and the racially discriminative covt to be enforced.
i. Court allowing standing on behalf of a third party CLASS of
individuals – blacks – b/c specific enforcement of racially
discriminative covts would violate 14th amendment.
ii. If blacks had brought suit f/ themselves, sellers would gear
transactions specifically against blacks – court granted standing
b/c 3rd party nonlitigants arent in effect position to assert their
Const rights.
1. **most distinctive element of Barrows –
a. It really stands out as representative of the public
values model
b. Court thinks that important issue if one can be
assessed damages in violation of racially restrictive
covenant
c. b/c there is an important norm that needs to be
clarified, they use public values model and resolve
the case on the merits.
D. Pierce v. Society of Sisters – the state had passed a statute making parents criminally
liabile for not sending their kids to public schools. Catholic Schools brought suit
i. There are a number of reasons to speculate why parents would not
be able to comfortably be able to come forward themselves - court
probably took these into consideration when saying that school can
assert the constitutional rights of these third parties
1. declaratory judgment act might not have been available –
might have been concerned about being prosecuted
2. background is anti-catholic prejudice and they might not
have wanted to risk social persecution by coming forward
3. there may not have been individual parents who could bear
the risk, burden and cost of the litigation.
E. Griswold v. Conn – the contraceptives case - Court recognized as a practical matter
why people should not be forced to come into court and explain why they need
contraceptives
F. Hunt v. Washington Apple Advertising- set 3 part standard for third party standing of
organization on behalf of its members
1. the org’s members would otherwise have standing to sue in their own right
2. the interests sought to be proteted are germane to the organization’s purpose
a. usually an easy criteria to meet
3. the claim asserted and relief requested do not require the participation of
individual members in the suit
4. Additional requirement – The party asserting the rights of the third party
must have injury-in-fact; must be a MEMBER of the injured class.
a. The court will sometimes waive this requirement if a party whose rights
are being aserted isnt in effective position to assert their own rights- see
above Barrows, NAACP, Craig

12
 G. THIRD PARTY STANDING SUMMARIZED - Party asserting rights for a third-party
must still have been injured by the statute challenged per Article III requirement; case
and controversy can be waived, but injury in fact cannot

II. Congressional Power under the Commerce Clause and Related

Regulatory Sources
The Commerce Clause -Article 1 Section 8 – Congress has power to regulate interstate
commerce
The Commerce Clause confers many wide-ranging powers on Congress – most regulatory
regimes stem from CC. Courts have begun to restrict Congressional power under the CC.
There are two dimensions to the Commerce clause. The first (and most important) is to confer
upon Congress the power to regulate interstate commerce. The second is the dormant
commerce clause, where there is an implied limitation on the state’s ability to regulate certain
types of commerce even if Congress hasn’t addressed or done anything about it particularly b/c
it seems to be encroaching on Congress’s commerce power.
ORIGINS OF COMMERCE CLAUSE: Congress wanted to stop trade wars between the
states (there were thirteen different economies and the states were constantly trying to
undermine each other). Framer’s economic intent was clear – the very purpose of the
Congress Convention was to establish far more commercial authority for the fed
govt.

a. McCulloch v Maryland
A. FACTS
1. When second Bank of the United States – federally chartered corporation.
Historically, corporations had always been creatures of the state rather than the
federal government – it was considered unconstitutional by some for the federal
gov’t to get into the banking game.
a. Maryland leveled a punitive tax against the Bank to get it out of their
state- the US is resisiting (challenging) the tax – federal gov’t is
challenging state power - State contending for dual soverignty – state
power EQUAL to federal power.
B. HOLDING
1. Congress had power to create bank even thought it was not explicitly laid out
in Constitution – Const isnt supposed to be ultra-detailed legal code.
2. Marshall addressed 2 issues that needed to be resolved
a. #1 - Did gov’t have power to make Bank?
i. Yes, under Necessary and Proper clause – Article 1 Sect. 8 – Bank
is necessary in that it is a USEFUL, CONVENIENT means of
accomplishing Congress’s goals – Marshall uses own definition of
“necessary,” different than “absolutely necessary” as
characterized in in Article I, sect 10 - flexible definiton that gives
Congress wide-ranging power
1. Congress can use any appropriate means to attain
legitimate ends that are within scope of Const,and
aren’t specfically prohibited by it – Congress still can’t
do anything specifcally prohibited by the Const, even if
it’s towards a valid goal.
2. “presumptively permitted” – presumption IS in favor of
congressional exercise of power.

13
 b. #2 - Consequentialist Argument – if Maryland’s strict construction of
Const is permitted, it would make Const too inflexible to be a long-lasting
governmental instrument.
c. #3 – Accountability and State powers- Marshall is concerned that
giving states right to tax federal gov’t it could hamstring fed govt’s ability
to serve - states could tax postal service, military installations.
i. Whole population represented by fed, small section
represented by each state- Maryland residents would have
political recourse through voting, but no one else in the US would
be able to act if MA acted contrary to their interests!
b. Federalist Ppr #46
A. Madison was trying to assuage concerns about the federal government trampling the
rights of the states
B. His argument was that states would have all the advantages, because state
legislators are closer to the people, states provide the services people use on a day-to-
day basis, states have more employees, federal legislators are elected by the states and
will not alienate their constituents by selling out the states, and federal government
rules only in times of war and unrest
C. Also argued that states would have the means to fight encroachment by the federal
government by manning together
D. Argued that the system would promote individual choice, as people were free to
move to any state whose politics better suited their preferences (real phenomenon)
E. Local politics allow citizens to participate in their own governance
F. Prevention of tyranny through dispersion of power

c. Theories of Federalism
A. Advantages to federalism
1. Promotes ability for individuals to move to other states with more favorable
politics for them
2. gives people local access to gov’t – greater participation
3. helps to prevent tyranny

The Court’s interpretation of the Commerce clause isn’t a straight line – the decisions are
inconsistent and can’t all be reconciled with each other.

B. Gibbons v. Ogden- “Commerce” definition expanded

1. FACTS
a. Ogden has exclusive authority from NY statute to operate steamboats b/w
NYC and New Jersey - monopoly to operate steamboat service. Gibbons
wants the same power – he claims his authority based on federal statute –
he has a license to operate his steamboats in the same waters. Conflict b/w
state and federal law – incompatible.
2. HOLDING
a. Congress’s power to regulate interstate commerce is an exclusive
power that is not shared w/ the states, and relates to both goods and
services including ferrying – states cant exclude federally authorized
operators, its unconstitutional. (Marshall the federalist again takes an
expansive view)
3. NOTES
a. While the Supremacy clause allows federal law to trump state law, this
case is decided on Commerce clause b/c court defines “commerce” to
14
 include not just goods, but any commerical transactions where money is
exchanged between parties – commerce just must involve or affect other
states to qualify as “commerce among the states”- catapulting them
across the border still counts despite no actual “entry” into other state.
b. RATIONAL LIMITATION OF COMMERCE CLAUSE
i. Unless Congressional action is specifically prohibited by the
Const, as long as Congress has rational basis for that exercise of
power it is Constitutional.
c. INTERNAL v. EXTERNAL LIMITATIONS
i. Internal – does fed gov’t have authority to impose laws of that
nature? Is Congress authorized to do it under the Const? YES.
1. Like McCollough, if there were an external limitation in the
statute from another part of the constitution (can’t transport
African Americans), then not within power.

C. Champion v. Ames-enumerated intrstate commerce pwr to regulate undesirable activity

1. FACTS
a. D was transporting lottery tickets across state lines against the Federal
Lottery Act of 1895, which prohibited all interstate carriage of LTs.
2. HOLDING
a. Congress has power under CC to regulate undesirable activity.
Lottery tickets, a “moral pestilence,” are subjects of commerce that
can be sold and transported, therefore they’re subject to the CC when
they start moving from state to state.
b. HUGE expansion of Congress’s power to make laws effecting
interstate commerce – as long as there’s some logical basis for
enacting the law, the court is going to uphold it.
3. NOTES
a. Holding passes McCulloch “Rational relation” test – it’s an enumerated
power of Congress, and it’s rationally connected to a legitimate goal.
b. Congress using CC to accomplish noncommercial goal – attacking the
moral problem of lottery.
i. POLICE POWER RULE – As long as Congress is pursuing a
valid interstate goal, its entitled under the “police power
provision,” which grants govt inherent, wide powers to protect
societal interests - can be noneconomic and still subject to
Congress’s power over interstate commerce.
c. 3 Categories of Activities Congress can prohibit in otder to protect
public health and welfare under federal police power:
i. #1 – Goods harmful to interstate commerce itself
1. diseased animals that could spread disease
ii. #2 – Commercial Items that are harmful
1. adulterated/mislabeled articles
iii. #3 – Noncommercial items that constitute “evil activity”
1. like lottery tickets or stolen goods
d. SEPARATION OF POWERS RATIONALE
i. It would be intrusive of courts to pass judgement on motives of
legislators – i.e. Congress passing Fed Lottery Act – as long as its
enumerated power of congress and rationally related to legit goal,
court has no business interfering and must respect legislative
intent.
15
 1. even if congress was not really acting with moral interests
at heart (they were bribed and clergy didn’t think immoral),
court still will likely not overturn statute b/c rational and
reasonable link to the goal of solving moral problem. (don’t
really look at the personal motives of legislators.

D. Houston, East and West Texas Railway v. US (Shereveport Rate Cases) CC and
Intrastate Commerce
1. FACTS
a. Classic instance of interstate price discrimination – railroads that are
charging higher rates to haul goods from louisiana to texas than from one
point in texas to another point in texas, w/ no valid reason given.
b. Interstate Commerce Commission – federally created body – declares that
railway must charge same rate for both in and out of state transfers.
2. HOLDING
a. Fed govt can regulate intrastate transfers in Texas to the extent to
which they have an adverse effect on interstate commerce – it would
diminish state-to-state commerce here.
3. NOTES
a. CREATION OF CLOSE AND SUBSTANTIAL TEST f/
REGULATING INTRASTATE COMMERCE UNDER
COMMERCE CLAUSE
i. Intrastate activity must be so closely and substantively related to
interstate traffic that one cannot be controlled w/o controlling the
other
ii. This Shreveport Test looks to the degree of the relationship b/w the
intrastate activity and interstate commerce.
b. Case represents another expansion of Congress’s power under CC –
takes rea;listic and practical “big picture” approach – interstate and
intrastate commerce are inextricably related, not separate entities.
i. Demonstrates leniency in rational relationship test
E. Stafford v. Wallace
a. Activity that Congress was regulating was a local activity, the buying and
selling of cattle in the Chicago stock yards (Illinois), nothing on fact that’s
interstate about it
b. Court is saying that you can’t look at this in isolation; must look at whole
transaction
c. Broader implicated transaction is cattle shipped from out west, slaughtered
in Chicago and then shipped to points easteward
d. Congress is not taking narrow aim on local bad business practices but how
they affect the larger or broader transaction on the shipment/slaughter/sale
of cattle
e. They looked on how it had the close/substantial relationship to broader
transaction, and as they viewed it does have the ability to regulate

Commerce Clause Trilogy cases continued (after Shreveport, etc.) – restriction on the power of the first
trilogy. None of these cases are good law today.

F. US v. EC Knight – first major case where SC didn’t support Congress under CC

1. NOTES
16
 a. American sugar refinery has monopoly on refined suger product- gov’t
goes after them, under the Sherman Antitrust act.
b. Court construed Sherman Antitrust Act NOT to apply to this
particular manufacturing activity b/c Congress couldn’t have
intended the Commerce clause to pertain to local production of sugar.
c. Its unconstitutional to extend Antitrust Act to this activity – utilizes
doctrine of “constitutional doubt” – interpreting to AVOID a
constitutional question.

G. Hammer v. Dagenhart- Congress’ failed attempt to influence intrastate production

1. FACTS
a. Congress creates Child Labor Act, which forbids interstate commerce
involving factories which employ extreme child labor.
2. HOLDING
a. State was beyond scope of CC and Congress’s authority because it was a
federal attempt to use Commerce clause to control purely state-held rights
of policing labor policies – actual shipment of products wasn’t leg intent.
i. the activity Cong is truly trying to regulate doesn’t meet either
prong of CC – its neither interstate NOR commerce.
3. NOTES
a. Tension b/w Hammer and Lottery case – there Congress was allowed to
regulate b/c of ulterior protective motives, but not here. Way to
distinguish them: there the product itself was societally harmful.
b. DECISION RESTS ON DUAL FEDERALISM – states and fed both have
specific spheres of authority.
c. This case represents ABRUPT SHIFT from Shreveport decision to a
stricter CATEGORICAL APPROACH
i. commerce or manufacturing, interstate or locally – new way of
determining whether it falls under CC and congressional juris.
d. RESULT OF THIS CASE
i. states must regulate child labor, but they won’t b/c it will
undermine their competition with other states in terms of
production costs – non-regulated states’ goods will be cheaper.
ii. Case is no longer good law
iii. *Here is Hammer the theoroy is the power to regulate, local
regulation of production, is a power and prerogative is a poewer
the state’s always had that they did not relinquish to feds at time of
constitution being formed; for feds to act as they did here enacting
child labor act really usurps the prerogatives of the states; this is
basic theory underlying the holding of Hammer – court was
concerned with figuring out specific activity and in this case
decided that the federal gov’t can’t regulate production under CC
e. Reconciling Hammer and EC Knight
i. *the practical effect in both case thwarts the regulation of business
at any level; federal barred, and the states as a practical manner not
in position to regulate them

17
New Deal Era - Congress and President Roosevelt began implementing New Deal in 1933. SC
view of congressional power under Commerce Clause stood in an ambiguous state. Three
Blocks on the Court).

H. Carter v. Coal Co. – court strikes down another fed attempt to intefere w. state matters
1. FACTS
a. Coal industry was faltering - Congress passed Bituminous Coal Act of
1935 – these mechanisms had the power to set up minimum wages and
maximum hours for coal workers.
b. Coal industry challenges act, saying that it exceeds Congressional power
under commerce clause.
2. HOLDING
a. Act is struck down – Congress simply trying to regulate intra-state
matters – wages and hrs arent interstate commerce, and don’t effect it
– if local actions doesn’t exert direct effect on interstate commerce, it
lies BEYOND scope of interstate commerce.
i. Causation b/w them is too weak – there’s merely an indirect effect
on interstate commerce. No matter how great the effect is, if its an
indirect effect at the local level it CANT fall within CC.
3. NOTES
a. This case didn’t use the Shreveport test of degree of influence upon
interstate commerce – it instead adopted the stricter, formal classification
of whether or not the activity is interstate or intrastate.
b. This case is ironic in the same way as Hammer:
i. States arent in a position to alleviate the problem because if
they do – regulate coal – it will render the coal uncompetitive
w/ other unregulated states.
1. the federal gov’t is the ONLY body who was sufficiently
equipped to deal with this problem!
c. Formalistic argument of Majority - IF THE RELATIONSIHIP IS
INDIRECT, THEN IT DOESN’T MATTER WHAT THE IMPACT IS
GOING TO BE, IT FALLS BEYOND CONGRESS’S POWER TO
REGULATE INTERESTATE COMMERCE
d. SLIPPERY SLOPE ARGUMENT – court argues that if we allow fed to
exercise control over state matters this one time because of the severity
that the government argued due to the depression crisis and impact on
coal, it will result in complete erosion of state power and violate allocation
of power b/w fed and states

I. KILLING CARTER – The Modern Commerce Power f/ Inter and Intrastate Commerce
1. Affectation Doctrine - SC abandoned “direct v. indirect” or “geographic”
stndards for Commerce clause regulation after Carter decision – Congress now
has power to regulate ANY inter or intrastate activity as long as it has any
appreciable effect on interstate commerce.

J. NLRB v, Jones and Laughlin Steel Corps-, 1937 Return to Shreveport degree test
18
 1. FACTS
a. National Labor Relations Act protects rights of employees to form unions
and protect against unfair labor practices and distcrimination against union
members. National steel corp who had fired union activists challenges act
on the grounds that it exceeds the power granted to Congress under the
Commerce clause – that the stuff it interferes with are purely local
concerns that do not deal w/ interstate commerce.
2. HOLDING
a. If there is a CLOSE AND SUBSTANTIAL RELATIONSHIP w/ the
instate actions and interstate commerce, Congress can regulate it
regardless of whether it is totally in-state or not.
i. Since the manufacturer’s national operations have deep ties to
interstate commerce, and labor strife could cripple the company’s
interstate operations, it would affect IC and can be regulated under
CC.
3. NOTES
a. This decision closely mirrors justice Cardozo’s dissent in the Carter case –
instead of trying to pidgeonhole an activity into one category – in
realistic terms, what would be the impact of an ABSENCE of such
provisions, there would be a disruption in interstate
commerce(realistic /Permissive instead of formalistic)
b. The Court chooses Shreveport analysis over the other line of cases –
Carter, the Lottery case, Hammer
i. He doesn’t acknowledge that the court is abandoning/refuting a
line of cases going in another direction, and instead follows a line
of cases that look at the degree of relationship b/w the in-state
activities and their impact on interstate commerce.
c. **This is a striking departure from Carter, but it started a revultion in the
next four cases where we see the court go well beyond what Jones did

K. US v, Darby – Overruling of Hammer – Congress can regulate manufacturing under CC

1. FACTS
a. Fair Labor Standards Act set maximum and minimum wages for workers
making goods for interstate commerce, and FORBADE interstate
shipment of goods made by non-compliant employers.
2. HOLDING
a. Congress may estalbish and enforce wage and hour standards for
manufacture of goods for interstate commerce – falls within police
power.
i. Forbidding of interstate shipping easily associated w/ CC
ii. Setting of wage and hour limits more attenuated argument, but
court says that setting wage/hour regulations prevents unfair
competition, which could impede interstate commerce.
3. NOTES
a. PARALLEL TO LOTTERY CASE -EXERCISE OF POLICE POWER –
court is applying protective principle that they can protect interstate
commerce from being used as an instrument to spread evil - gambling,
unfair competition – which allows them some power at local level.
b. Power to go into intrastate affairs related to interstate commerce only
if they so affect interstate commerce that you have to regulate one to
effect the other.
19
 i. Getting them at the source disallows them from slipping into the
stream of commerce and creating unfair competition.
c. Hammer v. Dagenhart has been OVERRULED through this decision.
d. Court dismisses 10th amendment as a truism, not a policy- and that
the relationship b/w Congress and the local level fundamentally
existed
e. Darby represents a dramatic expansion of Congressional power under the
Commerce clause – the range of goals that Congress is allowed to pursue
under interstate commerce is extremely broad, and the link b/w a local
activity and interstate commerce to grant Congress regulatory power is
easily created by Courts.
i. Court is NOT giving Congress national police power – they still
have to justify their regulation UNDER the Constitution – but
once they do that, the goals they are allowed to pursue and the
relationship they must establish is extremely easy to create.

L. Wickard v. Filburn- huge expansion of Congress’ power to regulate individuals

1. FACTS
a. USC pases Agricultural Adjustment Act to combat overproduction of
wheat – nationwide quotas/cielings on wheat production all the way down
to individual farm. P exceeds quota, but argues that Congress’s regulation
doesn’t apply to him concerning wheat grown for his own personal
consumption (its not going to end up in interstate commerce)
2. HOLDING
a. Court is applying practical, not rigid abstract analysis (like employed
in Carter) - while this commerce could be categorized in local, it
realistically can have a substantial effect on interstate commerce as a part
of the bigger picture.
i. Court demonstrates that Congress could reasonably believe
that production limits on wheat could remedy the problems
facing the wheat industry – and this INCLUDES personal-
production wheat
3. NOTES
a. Cumulative Impact Doctrine - Court is applying consequential analysis
– while his impact would be miniscule, if everyone did it it could damage
interstate commerce by compromising quotas.
i. if Congress is allowed to regulate class of activities in an aggregate
capacity, then they are allowed to regulate each individual
practitioner in that same industry – enormous power granted to
Congress within the economic sphere.
b. FAIRNESS OBJECTIONS TO POLICY - Objections that this legislation
favors bulk wheat growers over small-time wheat growers feeding their
family – court says TOUGH SHIT – if you can’t demonstrate that this is
beyond Congress’s power, that’s the end of the Courts inquiry.
i. if you don’t like it, change it through the political process.
c. PRESUMPTION OF CONSTITUTIONALITY- Court is generally
reluctant to intervene in economic sphere b/c of assumption that if
majority of Congress voted for it its at least rational, if not fair.
i. This philosophy/approach is STILL applied by USC.

M. Perez v US – The end of Congress’ expansion under the Commerce clause

20
 1. court upholds federal ban on loan sharking – D’s argument is that loan
sharking legislation exceeds Congressional power b/c it almost inherently takes
place at local level.
a. Court upholds statute taking loan sharking as an aggregate class of activity
– defers to Congress’s findings that loan sharking as an aggregate activity
has a large effect on interstate commerce.
i. This is the limit to Congress’s power under Commerce clause-
but it is STILL good law. Lopez case marks the end of court’s
deference to Congressional power under the Commerce clause.
N. The line of cases up to this point: An activity being related in a particular
circumstance, even if a decidedly local activity, if the impact can be aggregated to
exert a substantial impact on interstate commerce, then Congress will be able to
reach each instance of that local activity
1. COURTS PROGRESSION – its clear that court is signaling abandonment of any
serious restriction on Congress’s ability to limit economic activity using the
Commerce clause.
a. Darby and Wickard -federal government is not required to show for
EVERY single case that there is a strong connection b/w that specific
activity and interstate commerce – aggregate activity doctrine allows for
broader inclusion.

O. Heart of Atlanta Motel v. United States – p. 183 – Discrimination outlawed using CC

1. FACTS
a. Title 2 of Civil Rights Act of 1964 outlaws racial discrimination in public
places – federal law making state discriminatory policy illegal. Hotel is in
prime location, had policy of not renting rooms to negros. Action is
brought to force hotel to conform to Title 2
i. Noone is disputing that this is the type of establishment
discrimination that the legislation was designed to prevent - this is
a question of pure Constitutional interpretation – did they have the
POWER to forbid establishments like motel
2. HOLDING
a. Court could have upheld Act based on 2 Constitution provisions, and
chose easier route by selecting Commerce Clause (avoiding of
constitutional conflict and amendment – i.e. Ashwander Rule)
i. Equal Protection Clause of 14th Amendment – states can’t pass any
laws that deny the equal protection of the law, and Congress can
enforce that amendment by any necessary legislation
ii. Commerce Clause – chosen reasoning – if blacks cant sleep or
eat while traveling, it will discourage interstate travel and effect
interstate commerce.
3. NOTES
a. Court avoided using 14th Amendment b/c of old precedent case – 1883
civil rights case – which raised questions about Congress’ ability to reach
that type of private activity unde rthe 14th amendment
i. Commerce clause was used to authorize Congress to pass a law
to prohibit racial discrimination.

P. Katzenbach v McClung- Partner case to Heart of Atlanta- even broader CC application

1. FACTS

21
 a. Ollie’s BBQ is a family-owned restaurant in Birmingham – extremely
local clientele. Refused to serve black guy traveling through w/ his fam
i. HARD to find a link b/w interstate commerce and this case… there
arent many or ANY customers coming from other states.
ii. Only potential link is 70,000 pds of meat a year shipped in from
out-of-state– but that doesn’t appreciably effect interstate
commerce.
2. HOLDING
a. Aggregate effect doctrine – if everyone does this, it will effect interstate
commerce
i. The substantial impact found was the reduction in business traffic,
the reduction of food consumed, and dissuasion of professional
people to move to that area
3. NOTES
a. Congress isnt required to demonstrate that the particular activity being
regulated itself
b. “It’s small world after all, and the Commerce clause covers it all!”
c. The point of this case is that the courts can find a link between any
economic acitivty and the Commerce clause, if they want to. This case
repesents the high water mark in the court’s explansion of
Congressional regulatory power under the Commerce clause.

d. The Court Begins to Limit the Commerce clause

The court continued to use the expansive Commerce clause powers established in these
cases until the mid-1990s, where the line of cases finally began imposing limits on
Congressional power under the CC.

A. US v. Lopez- 1995 – No logical economic connection, no CC application

1. FACTS
a. Challenge to the Gun-Free School Zones Act of 1990, which made it a
federal offense for to knowingly possess a firearm w/n a school zone.
b. Prior to Lopez, court would have probably in a routine fashion reasoned
around the lack of interstate commerce connection by using the usual
aggregate impact doctrine –
1. this is basically the gov’t argument – i.e. could raise
insurance rates, discourage ppl from moving to “gun
school” towns, guns in school zone will “reduce learning
capability.”
2. HOLDING
a. there is NO plausible economic connection b/w firearm regulation of this
type and interstate commerce. - Different from say the personal wheat
case, where there is a logical commercial link.
b. CONSEQUENTUALIST RATIONALE- if they let this one go by, there
will be NOTHING left that Congress can’t regulate b/c aggregate impact
can be linked to ANYTHING.
i. Congress may exercise only those enumerated powers – to
uphold this statute would negate the idea of specified
enumerated powers bordering Congressional power.
o DISSENT – even if you accept the court’s premise in the other cases
(which do not have an economic basis for the actual case of the end but

22
 just an economic result) then you should accept this case as effecting
commerce
• NOTES
o Return and Modification of “substantial impact” doctrine - you
CANT just say it anymore – you have to show actual evidence in regard
to purely local activities – plausible possible theories are no longer
sufficient.
 STERN: Different wording could have made the link work –
have statute say something about BUYING guns and regulating
that way - congress was getting sloppy b/c the courts had been
spoonfeeding them decisions.
o FEDERALISM CONCERNS
 must protect the divide and relationship b/w fed and states, and
state soveriegnity.
 This would displace the explicitly state powers concerning
education and law enforcement.
• If it HAD been determined that there was an acceptable
aggregate effect, the state statutes or rights would have
been overriden.
o FACTORS COURT WILL NOW CONSIDER FOR FED
REGULATION, SINCE THEYRE NOT JUST ALLOWING EVRYTHIN
 Nature of activity being regulated
 Whether theres a jurisdictional element
 Whether theres some sort of interstate commerce connection
(lesser factor)
 Federalism concern – whether activity being regulated is one
traditionally regulated by the state
 Opinion will be at least influenced by whether the problem
being addressed is one that needs to be addressed on a national
scope.
o FOUR CATEGORIES
• There are four broad categories which Congress will typically regulate:
o Channels - Congress will regulate use of channels of interstate commerce (highways, waterways
and air traffic). Congress can do so even though activity is intrastate.
o Instrumentalities - Congress can regulate instrumentalities of interstate commerce, even though
threat may only come from intrastate activities. (Category refers to people, machines and other
things.)
o Article moving in interstate commerce - Congress can regulate articles moving in interstate
commerce.
o Substantially affecting - Congress can regulate those activities which have a substantial effect.

B. US v. Morrison – 2000 – Application of new regulatory factors

1. Written by same majority as in Lopez
2. Court held the civil remedy provision of the Violence Against Women Act
unconstitutional
3. Court found the connection between violence against women and commerce
too attenuated, despite legislative history full of evidence of affects on
commerce
a. Must look at all the factors to try to get some sense of where the court
is going to come out on these issues
e. Gonzalez v. Raich, Su;plement pgs 1-4
23
 A. Court upheld a federal ban on growing marijuana which was legal under CA law for
medicinal purposes The court pointed to Wicker v. Phiburn – the court in both cases
B. The court as of yet is not going to cut back too severly on congress’ power to regulate
under congress clause
C. At least at last term, Wicker was reaffirmed and relied upon in the Gonzalez case; in
both cases the federal govenmtne restricted commodity grown intrastate even though
locally and not directly used in commercial transaction just like in Wicher where only
growing crops for family; what you have in both cases is instatnce where the aggregate
production of both commodities produced a substantial connection with interstate
commerce; famers will not be able to go out and buy crops
1. This is a little different; but the idea here is that even if they say idea is just
growing pot at home for medicinal purposes, there is a strong demand for pot and
inevitably some of this will get out into interstae commerce; nieve to think that
none of it will make it’s way into the interstate market
D. This is not a retreat from Lopez or Morrison; not much in opinoion about whether
activity has a commercial nature in the aggregate or its having a substantial impact on
interstate commerce
E. The distinction on the courts mind is that growing marijana even though iself doesn’t
have an immediate economic dimension, it does seem to have an inevitable economic
association in that people buy it and consume it in much the same way that they sell
wheat; this is main reason why court doesn’t see case as strongly governmed by Lopez

f. Blah
A. National League of Cities v. Usery- Initial limiting of CC, overruled by Garcia
1. FACTS
a. Another challenge to Fair Labor Standards Act. After Darby, legislature
kept extending FLSA until it covered vast majorty of private, state and
municipal employees.
2. HOLDING
a. Fed govt can’t infere with state soverignty to that degree w/o
justification- FLSA regulation cannot be enforced here b/c it violates
state rights under the 10 amendment.
b. 3 Prongs of Analysis:
i. Regulations covered working conditions, which court had already
accepted as grounds for federal regulation – substantially affects
interstate commerce
ii. Activity regulated had ALSO been accepted as accomplishing a
legitimate goal of Cong, having effect on interstate commerce
1. Workers might strike, etc.
iii. BUT, regulation violated 10th Amendment.
c. The court’s concern is that the regulation undermines the states’ ability to
operate w/n the federal system – court used 2 rationales.
i. The regulation violates the internal limitations of the CC b/c of
lack of activity’s connection to interstate commerce.
ii. STATE SOVERIEGNTY – fed gov’t cant violate it.
3. NOTES
a. This case revived notion of dual soveringty of state and fed govts
i. Certain activities – police, fire protection, education – are core
state powers that can’t be interfered w/ by fed w/o legit reason.
b. LOPEZ v. NATL LEAGUE

24
 i. NL differs from Lopez in that Lopez restricts Congress’s ability to
regulate by shrinking the activities that can be regulated, while
Natl League finds enclaves within state sphere of power that
can’t be regulated.
c. CONSEQUENTALIST PERSPECTIVE – if fed govt regulated wages of
state employees and state had only budgeted to pay certain amounts, state
would have NO recourse
i. It would be direct interference w/ state sovereignty, forcing them
to operate in a way besides that which they had chosen.

g. DURING THE TIME BETWEEN NATL LEAGUE AND GARCIA

A. Over next 9 years, majority of court shifted to disfavor Natl League holding, (shift back
towards allowing gov’t regulation under CC), but it was never directly overruled –
courts just made lame distinctions in subsequent cases instead of explicitly striking it
down; until Garcia.

B. Garcia v, San Antonio Metro Trans Authority – 1985 – Overruled Natl League
1. FACTS
a. Garcia seeking overtime pay from state transit authority under federal
FLSA legislation, while Trans Authority countersues saying theyre
exempt from FLSA. Revisiting of same issue from Natl League.
2. HOLDING
a. Fed govt’ can enforce FLSA overtime regulations on state-run agency
– explicit overruling of National League.
i. This is still the current state of law, but League of Cities approach
may be revived someday
b. Court argued, naively, that the political process and structure of the
fed gov’t imposes limitations on fed gov’t ability to intrude upon state
rights
i. State sovereignty interests are more property protected by
procedural safeguards – state representation in Senate, etc – than
by judicially created limitations on federal power.
1. STERN: NAÏVE SILLINESS- just because Senate reps are
elected from a particular state doesn’t mean theyre going to
be looking out for those states and protect their soverienty.
3. NOTES
a. Court discussed the four conditions of the National League Test
i. federal statute must regulate the states as STATES
ii. Statute must address matters that are indisputably attributes of state
sovereignty
iii. State compliance with the federal obligation must DIRECTLY
impair the states’ ability ot structure integral operations in areas of
traditional gov’t regulation.
iv. Relation of state and federal interests must NOT be such that the
nature of the federal interests justifies state submission.
4. Court found 3 reasons f/ overturning National League Test
a. #1 - Sheer unworkability of the test- it creates PROBLEMS
i. “traditional, integral functions of govt” – the standard gives us no
way to apply these concepts and principles.

25
 ii. how can judiciary decide what comprises a “traditional
government function??” Any selections made will be intrinsically
arbitrary – this standard cant be applied in a uniform manner.
iii. Gives NO PRINCIPLED WAY to gauge “undue impairment” or
“excessive interference”
1. Too difficult to distinguish whether federal statutes “unduly
impaired” state function.

b. #2 - National League court MISREAD the 10th Amendment

i. Two Competing Visions of what 10th amendment stands for
1. Ntl League held that 10 amend represented a substantive
source of state soveriegnty that could be used to strike
down violative legislation.
2. Garcia held as Darbyi did; 10th AMENDMENT JUST A
TRUISM (to placate states federalist worries) – not an
functional legal doctrine f/ state rights.
c. #3 - Judicial restraint (bullshit argument according to Stern)
i. the National Cities rule is disrespectful of state rights, so instead
we’re going to protect NONE OF THEM and let the “political
process” serve as your only 10th amendment protection.
5. DISSENT!
a. POWELL: Court “wimped out” by abandoning 4-pronged Natl League
approach – just because constitution issues are difficult is no reason to
abandoning them.
i. Marbury v. Madison connection – Powell says theres a danger of
undermining Marbury v. Madison’s power of judicial review (to
interpret and apply the law) – court is passing on interpreting this
provision b/c it is too hard. He is concerned that court is
abrogating duty/responsibility to interpret the law.
b. REHNQUIST - we will, once there have been appropriate shifts in the
court, BRING BACK the “national league of cities” rule.

C. NY v. US -1992 – Court restores SOME degree of state sovereignty – last big CC case
1. FACTS
a. Low-Level Radioactive Waste Policy Act: fed govt trying to put
responsibility for dealing w/ radioactive waste to the states, - they
either have to take title to their nuclear shit, or enact a certain set of
federal regulations.
i. Incentives: MONEY – surcharges given to states that dispose of
their own waste. ACCESS – access to existing sites could be
denied after a series of deadlines. FORCED TAKE TITLE
PROVISION – if states unable to dispose its own waste by 1996, it
takes title and must take possession of the shit.
b. NY has problems complying with the Act, and just challenges its
constitutionality.
2. HOLDING
a. Act struck down - there is a sphere of state sovereignty that we must
protect – states are not just vassals for fed govt – this derived from general
constructin of the Constitution

26
 b. The federal gov’t cannot use the state govt’s to accomplish its means by
bullying them with coercive legislature – it must deal with the people
DIRECTLY.
3. NOTES
a. Courts Problem w/ statute is with the means, not the ends
i. Statute that is directed ONLY towards the states AS states is
different from one directed at individuals or groups of citizens
(such as Garcia).
1. Federal gov’t can’t just TELL state govts what to do –
“here is the kind of law that you must enact – must give
these two options” – this is not a policy chosen and
implemented by the states, it is chosen and implemented
by the feds – and it is a serious infringment on state
sovereignty.
2. Congress can regulate individuals under the commerce
clause, but it cant force the states to enact regulations.
ii. Congress CAN offer incentives to adopt legislation – they just
can’t forthrightly COERCE them to adopt it; the federal gov’t
can take over a whole policy like waste, but if it doesn’t can’t
tell the states how to regulate and spend $. The opposite way is
saying that they’ll reward them a certain way, like giving them
highway money if they regulate drinking age; the state then
has the choice of whether to regulate or not if they want the $.
b. Disconnection b/w Incentives and Regulation
i. Must be connection b/w behavior sought and incentives, which
doesn’t exist here – i.e. withholding funding f/ nuclear waste
disposal.
c. FEDERALISM OVER THE 10th Amendment - wasn’t a possible way of
overruling this cause its been dismissed as a truism, so court uses the
broad structure of the Constitution and the federalism inherent in it to infer
that it is reasonable to infer that the act is beyond the constitutionally-
assigned power of Congress
i. Reimposes the notion of dual federalism as put forth in OLD
cases like Hunter’s Lesee
d. ACCOUNTABILITY ISSUES- its kind of shitty for fed gov’t to force
state employees to carry out their policies, cause if the people don’t like
them they’re going to blame the state ppl for policies they didn’t even
create! Can’t let fed govt enforce policies w/o accountability.
e. FINANCIAL IMPOSITION- this policies reduces states’ ability to
manage their money and expend it in the ways THEIR ppl see fit!

D. Printz v. US
1. Challenge of the Brady Act, gun control legislation which established a national
instant background check system - ACT STRUCK DOWN AT USC.
2. Federal legislation of a program, with an order to the states to carry out that
legislation, is generally not allowed (relying on NY case, above, 1992)
a. To the extent that the federal government makes the state devote
resources to carrying out a federally conceived program, then the
state is left less room to carry out programs of its choosing
3. ACCOUNTABILITY ISSUE – state employees are having to enforce the
mandatory background check policy, and incurring unpopularity f/ it.
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 E. CUMULATIVE COMMERCE CLAUSE CONCLUSIONS
1. Conceivable that if in fact as threatened by the dissents in Garcia, if the National
League of Cities team ever made a comeback, the federal government might still
be able to come through the back door
a. No longer able to say that the states must allocate funds to certain
means/ends, e.g. paying minimum wages, the federal government could
simply offer or withhold funds until those ends are met
b. The result could therefore be obtained through the spending clause instead
of regulation through the commerce clause

h. The 11th Amendment and State Immunity – NOT ON TEST

THE 11th AMENDMENT p. 230 (not on test, but listening anyway)
A. limitations on Congress’s ability to subject states to suits from private individuals FOR
damages
1. Courts cant use commerce clause to subject states to suits by private individuals
B. Americans w/ Disabilities Act – doesn’t supercede 11th amendment and doesn’t allow
individuals to sue states
i. Exceptions
A. Individuals CAN go to federal court to get injunctive relief against a state – b/c theres a
legal fiction that allows it
a. Can’t sue states for damages for ADA but you can go into federal court to
bring an injunctive sut against the state; can’t get $ but you can go to court
to get a decree to require a state to cease it’s ongoing violation of the ADA
b. Court has rationalized b/c not a state suit itself but a legal fiction that you
are bringing agains an individual who is violating the state
B. The federal govt CAN sue the states for violations of federal statutes
C. Another extremely limited exception is if congress passes stateue pursuant to section 5
of 14th amendment (rather than commerce clause) then the federal gov’t can make states
subject to suit for damages by private individuals – there are very few statutes that meet
this criteria of being pursuant to section 5 of 14th Amendment

III. Executive (Presidential) Power, Other Sources of Power, and the

Separation of Powers.
The Constitution provides for separation of powers between the judiciary, executive and
legislative branches of govt, in order to prevent power from becoming accumulated in any one
source. These powers overlap to some degree though- i.e. Prez and Congress share legislative
duties.
Article 2 vests all executive power in the President, as well as granting him limited
legislative powers – while his powers seem sparse on paper, they have extended FAR
beyond what the framer’s originally intended. Federal govt has vastly increased in
power in terms of how it regulates society – by association the president’s powers have
increased also. Pres also has other advantages in exerting power over the other branches,
as he is a single person, and therefore has a unity of will and purpose that Congress
will never have (divided on partisan lines)

A. Youngstown v. Sawyer- President acting beyond scope of his executive powers

1. FACTS

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 a. At beginning of Korean War, steel workers were going to go on strike.
Truman freaks out and gets secretary of commerce to take over steel mills
– federal govt takes over operation of all steel mills – steel mill owners
bring suit.
2. HOLDING
a. Justice Black - Truman doesn’t have authority to take over steel mills –
Congress did not give consent for such an exercise of power – in fact, it
specifically rejected the means used by D (Taft-Hartley Act).
3. NOTES
a. This is an exercise of lawmaking power exclusively by the President
himself- the structure of the presidential order is structured as a statute –
looks like a statute, rather than an executive order.
i. It is congress that makes the law, and the president carries it
out – this is a distinction that is fundamental to our democracy.
b. Court found C and C authority didn’t warrrant the siezure – its too far
removed from “theater of war”
c. JACKSON’S CONCURRING OPINION (the good opinion f/ this case)
i. Thinks Black’s formalistic opining “Congress declines to give this
power” is too simple – court should apply a balancing test on a
case-by-case basis.
ii. The Spectrum of Presidential Power Circumstance - 3 Levels
1. President’s action authorized by Congress (explicitly or
implicitly) – LEAST doubt of legitimacy of Prez’s action.
a. Strong overwhelming assumption of validity.
2. “Twilight Zone” Circumstance – Congress has neither
given nor forbid Prez’s type of action – Prez is acting on
his own inherent authority. Will be analyzed on a case-by-
case basis.
a. Factors include how urgent, have PAST presidents
undertaken that type of action, has Congress
routinely acquiesced in the past when done, etc
b. Stricter standard than #1.
3. Prez acting AGAINST the will of Congress –
a. Strong presumption against validity of action –
will be strictly scrutinized f/ legitimacy
b. Presidential claim to power so conclusive and
preclusive must be scrutinized with caution, since at
stake is the equilibrium established by the
constitutional system
c.
iii. Application of Jackson Test to Case at Bar
1. Placed his actions w/n third category – against will of
Congress.
2. HYPO – is the Air Force unconstitutional b/c the
Constitution doesn’t mention it – of course no, b/c it is not
to be interpreted literally and the framers could not have
contemplated such at thing (luket his the framers did not
contemplate that the military would be operating as it did
during the Korean war)
d. JACKSON’S OPINION v. FRANKFURTER

29
 i. Frankfurter reads the Taft-Hartley Act as Congress telling the
president that he cannot take over companies in that way
ii. Jackson reads the Act as Congress providing a method for dealing
with that type of problem, and the president acting inconsistently
with Congress’ prescribed method
1. Only an academic difference in this case, as the result is
the same, although there are cases in which the distinction
would make a difference
iii. THE THEORIES IN PRACTICE
1. Jackson’s approach is that if Congress says the president
can do A, B and C, but not D, the president can do A, B
and C, definitely not D, but also not E or F because they
were not addressed
2. Frankfurter’s approach, on the other hand, is that under the
same circumstances, the president could not do D, but
could maybe do E or F
e. BASIC ANALYSIS OF THIS CASE
i. Whether Congress had granted or refused to grant the relevant
power
ii. Whether historical practices supported the assertion of power
iii. Whether contemporary imponderables or imperatives of events
argued in favor of or against the asserted power

B. Dames & Moore v. Regan- Presidential Authority to Enter Executive Agreements

1. FACTS
a. Prez Carter froze all Iranian assets in the US in response to Iranian
Hostage Crisis. D & M had a land surveying K w/ Iran and they didn’t
pay. Prez had three requirements under the agreement to release the
hostages
i. Nullify attachment of any Iranian property involved in litigation–
i.e. D &M’s K.
ii. Transfer all frozen Iranian assets in English bank.
iii. Suspend all actual underlying claims from private
citizens/banks against Iran, and refer them to international
tribunal – this is the problematic element f/ DM.
2. HOLDING
a. Court upheld Prez’s power to perform these conditions, under difft
rationales.
i. Pertaining to first two provisions, the IEEPA statutes confer on the
President the power to make these executive provisions.
1. First two provisions are easily justified – falls into first
category of executive powers (specifically granted by
Congress).
2. Third Provision – falls within the “Twilight Zone” Jackson
category – Congress hasn’t specifically granted or forbid
this action. Therefore the 3 factors must be analyzed.
a. HISTORY: general tenor of Congress’ legislation,
acceptance of such behavior
b. Long accepted that presidents have authority to
enter into executive agreements (outside of treaty
process)
30
 c. Recognizes that a president, while not having
inherent authority, is not totally lacking in authority
d. Circumstances reasonably called for immediate
action
b. NOTES
i. Rehnquist applies Jackson test, but Frankfurter’s conclusion,
that the president might be able to do things legislation has not
spoken on
a. President gets more deference in the international
sphere than in the domestic sphere
b. Long-standing principle of the judiciary to provide
the president broad discretion when dealing with
international affairs
c. Rehnquist noted that Congress cannot foresee every
situation in which the president may need to act (p.
350)
ii. D&M v. Youngstown
1. D&M court found legislative approval where Congress had
given none, which inverted the logic of Youngstown, where
they construed statutory nonapproval to mean legislative
disapproval!
a. D&M court also condoned legislative inactivity at a
time that demanded interbranch dialogue and
bipartisan consensus
iii. Stern on Treaties - Treaties are governed by the Consttution – to
some extent by Art. 2 Sec 2 and Supremacy clause – Art 4.
1. Hierarchy b/w Treaties and Legislature
a. As between an exec. Agreement and state law, an
exec. Agreement if valid supercedes state law
b. in conflict between treaty and executive agreement,
TREATY overrides/
c. In conflict between treaty and properly enacted
federal statute, the more recently enacted one wins.
C. INS v. Chadha- Congress infringing upon the Executive Branch – No Leg Veto
1. FACTS
a. D an alien whose visa has expired – no question that Chada is
imminently deportable. Provision in Immigration Naturlization Act –
attorney general can suspend deportation if he met certain criteria.
b. Chada met these criteria (i.e. he’d suffer extreme hardship if deported).
His deportation was suspended by the Attny General.
c. Same act that gives Attorney General right to suspend the suspension
gives either branch – House or Senate – power to OVERRIDE attorney
general’s suspension and kick the alien outta the country – they do so in
this case.
i. Congress employs legislative veto to override executive branch.
2. HOLDING
a. Congress doesn’t have constitutional authority to create law single
handedly – it must go through the legislative process of bicameral passage
and presidential veto.

31
 i. While the legislative veto is efficient., efficiency is not the
overriding value of the Constitution. Constitutional separation of
powers cannot be eroded for convenience.
3. NOTES
a. House of Reps – “we’re taking this action to have legal effects on Chada”
– when Congress wants to pass a law, they need bicameral agreement
(house and senate) AND Prez must have chance to veto.
i. While HOR’s actions – legislative veto – doesn’t seem like law,
it is the equivalent of passing a LAW – YOU CANT ENACT
LEGISLATION unless you undergo process of bicameral
passage and presidential veto opportunity.
1. No one actor can enact law!
b. DISSENT – Justice White
i. Many organzations have law-making capability.
1. i.e. – If FDA makes a ruling that VIOXX should go off the
market, that ruling is law – there will be penalities for
attempting to sell it.
ii. Bicameral passage isnt necessary for this and other organizations.
iii. Practical Policy Argument – if we don’t give delegation powers
to other organizations it gives massive power to the legislative
branch
c. CONGRESSIONAL POWERPLAYS – legislative veto is only one of the
many ways Congress has attempted to control administrative agencies
whom they’ve delegated to other agencies substantial discretionary
authority:
i. Other methods of control: oversight hearings, appropriations
riders, decrease/increase in agency’s budget, sunset legislation,
passage of measures repealing/limiting agency’s authority
1. In light of all this other bullshit, does the Chada decision
even accomplish anything significant??
D. Bowsher v. Synar – Cong infringing into Exec again – Difft Approach from Chadha
1. FACTS
a. Graham Redner Act an attempt to eliminate federal budget deficit. “Stop
Me before I Kill Again” methodology- provides mechanism that allows
for across the board spending cuts every time the budget exceeds
specified levels. i.e. – ceiling is 250 billion, actual spending is 270 billion
– 20 billion of “so called” automatic cuts.Comptroller general figures out
WHERE the cuts should occur
b. Therefore, Comptroller General determines what budget deficit actually is
– this kind of calculation is NOT objective – there is much subjective
analysis (projections, estmiations, etc). It’s the Comptroller General’s
role in this case that dooms the bill.
2. HOLDING
a. Court rules that what the Comptroller General is doing is executing the
provisions of the Graham Act, and because he’s a part of the legislative
branch he can’t interfere with executive functions – legislative branch
can’t infringe into executive branch powers.
i. Congress trying to take shortcut through Constitutional
methods – represents Congressional overreaching of power
into executive branch.
3. NOTES
32
 a. Court is adopting a strict formalistic categorical approach (i.e. Carter,
Hammercd)– classifying Comp. Gen. as a legislative officer, and sharply
dividing the functions of the branches so that its UNCONST under
separation of pwrs
i. Congress is having its officer both write and execute the law, and
under separation of powers that cannot happen

b. BOWSHER UNDER CHADA ANALYSIS

i. Court would say, “What you’re really doing is rewriting the law –
Comp General is rewriting the budget – and when you are
creating federal policy you need bicameral passage – Stern thinks
it would be a reasonable opinion.
c. STERN: The Act would have been ok if the Prez had chosen the Comp
Gen b/c it is a position w/ exectuive power and can only be nominated by
an executive officer
i. Untitary Executive – theory is that the constitution created the
position as one to be given to a sngle person – all executive power
should be vested in the president –
1. if someone was to adhere to thise thoery then they wuld not
allow the act regardless of who had delegated the power –
a legislative officer cannot act as an executive officer.

E. Clinton v. NY – Return to Chadha Analysis against exec – Prez cant law-make

1. FACTS
a. Line item veto act enabled prez clinton to cancel/change certain spending
items of his own volition.
2. HOLDING
a. Court invalidated federal line item veto act - Predictable based on Chada.
b. Same principal as Chada – bicameral processes for creating law – w/
line item veto, prez’s altered legislation qualifies as NEW law
(different spending budgets, etc)
i. the Framer’s intentionally meant to withold the power to veto
particular items (esp expenditures) in particular legislation.
3. NOTES
a. Why was the court divided if this was an obvious case?
i. The way the line item veto was enacted was a delegation
1. Delegation – all delegations of the last 70 yrs have been
permissible
b. How can we say that bicameral passage is only way to create law when
agencies create law all the time?
i. b/c agencies are acting under direct order from Congress to
accomplish a certain goal, and laws created under that premise are
considered as getting Congressional approval.
ii. nondelegation doctrine- agencies need specific doctrine – outdated
– last 70 yrs of delegation have been permissable.
c. Scalia’s argument- the cancellation permitted to prez under line item veto
act is same as permissable delegation – lawmaking other than in
specifically–prescribed for (via agency)

F. US v. Nixon – Attempt to use executive immunity to block judicial branch

1. FACTS
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 a. Nixon gets busted as a conconspirator in Watergate, subpoened to provide
tapes of private discussions b/w him and his cronies. He first tries to
release limited, censored versions of tapes and transcripts (18 min gaps) –
NIXON IS A SHADY MUTHAFUCKA.
i. Executive Priviledge Defense - Nixon tries to exert executive
priviledge, citing that since he is President he is ABOVE THE
LAW (he has absolute privacy b/c he is Commander and Chief).
ii. Also, since executive branch has absolute power to decide which
cases to try and what evidence to use, therefore Prez has final
decision in what evidence to be brought in crimc case.
iii. Court responds by citing Marbury v. Madison – is it the function
of the Court to decide what the law is. STERN doesn’t find this a
strong argument, as the court equated their ability to interpret the
law w/ some sort of of restriction on presidential power.
b. Separation of Powers defense - Also, invokes separation of powers b/c
matter was between members of the executuive branch, and therefore was
not subject to judiciary interference.
2. HOLDING
a. Give up the tapes asshole – the judiciary and the appointed special
investigator and Constitutionally-based rights that override Presidential
general right to privacy w/o special excuse (national security secret, etc)
i. BALANCING TEST OF BOTH SIDES
1. Constitutionally-endowed rights of justice in criminal
law proceeding is greater than general Presidential
privacy right and claimed right of priviledge.
3. NOTES
a. Court acknowledges that Prez has qualified executive priviledge, esp
concerning nation defense – while this is not laid out in Const, its
structurally inferred from separation of powers and Article 2.
b. NIXON’S EFFICIENCY ARGUMENT
i. that allowing everything said in Oval Office to go to the press
would compromise candor and efficiency of executive function –
court dmisses that argument, saying it wouldn’t effect
communicative openness b/c judiciary will not
c. COURT PROTECTING JUDICAL POWER – by not letting the Prez
dictate what evidence we can and cannot hear.
d. SCARCITY OF OTHER EVIDENCE
i. If special prosecutors couldn’t get their hands on the tapes, there
are no other sources of evidence – i.e. no case. Also, need for
evidence in criminal suit is greater than that in civil suit (b/c of
higher degree of proof necessary).
1. see insider trading example with Attorney General in
notes
e. COURTS AND OVERRIDING EXECUTIVE PRIVILEDGE – while in
this case P attempted and overcame exec priviledge, in other

G. Morrison v. Olson- Congress limiting Prez’s ability to appt/remove executive officers

1. FACTS
a. Congressionally-created Ethics in Govt Act granted judicary the right to
create independent counsel f/ investigating federal criminal offenses –

34
 could only be removed with good cause as specified under the statute, and
the removal could be appealed.
b. 2 Issues at bar in this case:
i. narrower – whether judiciary appointment of IC exceeds power of
the courts
ii. broader - whether statutory scheme violates Separation of
Powers – infringment upon Prez’s (exec branch) Appointment
clause power by Congress (legislature).
2. HOLDING
a. FUNCTIONAIST APPROACH – COURT VIEWS RULE AS
PRESUMPTION, NOT RIGID RULE - While Appointments clause of
Article 2 gives Prez exclusive right to appoint and remove purely
executive superior officers, Congress can invest apptment of inferior
officers if 2 factors are met:
i. Officer must be inferior (no standard for inferior officer – “we
know it when we see it”)
ii. There must be relationship b/w function of appointed officers and
the particular position – here the court reasoned that judges are
particularly well-suited to appoint prosecutors.
3. NOTES
a. TWO precendent cases concerning Congressional Limitation of Prez
i. Meyers v. US(overidden by Morrison) - purely executive officers
(sec of state, attny general – those carrying out directives of Prez)
could be approved by Senate (Senate could lock their appointment)
but once they were in office, only prez could remove them.
1. Article II – vests all executive power in Prez, therefore any
restrictions on Prez’s power to remove exective officers =
bogus – this logic fits well under the “unitary executive”
principal
ii. Humphreys Executor v. Us - Congress COULD restrict prez’s power to remove
quasi-judicial and legislative officers (heads of indenpendant agnecies (FCC, FTC)
1. “quasi” terminology – by calling them quasi-legislative, quasi-judicial, pres
doesn’t have to have COMPLETE control over them
iii. APP OF THESE CASES TO MORRISON -
1. under Meyers Congress has no power to limit Prez’s
removal power, b/c they are purely executive, but Court
says that issue isn’t categorization of officers as
executive is the determining factor; but rather whether
the limitation of power IMPEDES’S PREZ’S ABILITY
TO DO HIS CONSTITUTIONAL DUTY – which it
doesn’t- Prez can still do job despite restriction.
2. This ruling does not invalidate Myers and Humprey – court is just
saying if an officer is purely executive, there is still a presumption against
restrictions on Prez authority but Courts have a chance to address the
restrictions in special situations.
b. DISSENT – Scalia – Formalist argument – branches are rigidly divided
and ANY restriction on prez’s removal power or judicial intrustion into
executive power is constitutionally invalid.
c. Act is a strong candidate for flexibility for those who do not embrace
Scalia’s view, since it involves who is going to investigate the executive
branch

35
 i. Understandable that Congress would enact such a statute,
particularly in the wake of Watergate, to gain a more detached
investigation
ii. Probably the most logical place to make an exception, as the
conflict of interest does present a special circumstance that would
cause the court to modify the ordinary standards
H. OPINIONS SHOW THE STARK CONTRAST b/w FORMALISTS AND INFORMALISTS
I. Scalia- formalist – restriction should be struck down – courts should maintain tight
boundaries of the letter of the Constitution, and court shouldn’t be takin liberties w/ the.
– particluarly, court has no business violating explicit principle of the unitary
executive- putting this power
J. Majority – funcitonalist approach – 3 branches of govt shouldn’t be totally cut off from each other – a wire
fence which can sometimes be breached when theres a good reason to do so
1. When balance of power is upset, you can get involved (if its bad)
K. Stern: court needs to CONFINE their infringement on executive power to very limited circumtance (could be
abused if overused) – Morris v. Olson should represent outer limits of what courts can do in terms of
infringing upon executive and presidential power
1. Court has heeded that warning and not invoked that power very often.
L. STERNS HIDDEN AGENDA THEORY: if crt had followed earlier formalist decisions – Chada, etc – and
struck down the Ethics in Govt Act – courld have been launching board f/ invalidating all independent
agencies – and the court just didn’t want to go there.

IV. State Power to Regulate: Dormant Commerce Clause,

Preemption, and Interstate Priviledges and Immunites
Clause
a. Overview of Dormant Commerce Clause
- The basic premise of dormant commerce clause is that the VERY EXISTENCE of Congress’s power to
regulate interstate commerce prevents the states from imposing restrictions that can effect that same
commerce. Even when Congress is silent on a specific topic, the Commerce clause displaces state’s
power to regulate in ways that adversely effect the flow of interstate commerce!
- Dowling’s Article created the modern evolution of dormant CC – before that, courts decisions were all
over the place. Dowling’s thesis was that when state legislation unreasonably interefere’s with IC, and
Congress hasn’t EXPLICITY authorized that state action, the court is to assume that Congress would
have disapproved of that particular state action, and invalide it on their behalf. WWCD (What would
Congress do?)  This doctrine is allowed b/c Congress can’t expected to deal w/ every little thing,
theyre busy.
- BALANCING TEST f/ INVALIDATING STATE REGULATIONS
o State’s interests v. adverse impact on goals of CC – how much will regulation adversely effect
interstate commerce v. how relevant are the state interests??
• if the interference gets more weight than the court will
strike it down
 GENERAL PHILOSOPHY – our economy is a unified single national unit, and isnt
segmented off by state – so anything that interefers w/ its operation must be
addressed.
- DCC AS APPLIED TO:
o Facially discrimintory statutes- these are default invalid – challenges must establish
impermissable purpose

36
 o Statues that Affect In- and Out of State Interests Equally – these are usually constitutional,
unless challenger can show that statute’s burden on IC is CLEARLY excessive relative to state
benefits
o Statutes That Affect Purely Out-of-State Interests – state has burden to prove that statute is
highely likely to achieve its legitimate purpose and that this purpose CANT be served as well by
nondiscriminatory alternatives.
- DCC USED TO PREVENT STATE PROTECTIONISM (states trying to protect their own economic
interests by setting up regulatory barriers) – any legislation using geographic terms is viewed with
great suspicion, as it is likely protectionist.

b. South Carolina Highway v. Barnwell Bros – no DCC violation if discimination is equal!

A. FACTS
1. SC has placed limitations on width and weight of ALL trucks that pass through
SC highways. Concerned about accidents from huge trucks and wear and tear on
highways from these heavy trucks - 85% of trucks didn’t meet these standards.
a. Trucking company brings suit, claiming a Commerce Clause challenge
that SC has violated the DORMANT commerce clause (inherent state
limitations in the commerce clause.
B. HOLDING
1. SC’s regulation is Constitutional - South Carolina’s regulations on these trucks
DID NOT discriminate whether trucks are interstate or intrastate – doesn’t matter
if road passes through SC or is just within SC.
a. But IF you have a regulation where it discriminates against interstate
commerce, court automatically drops the hammer and invalidates the
statute – state cannot be imposed standard to gain an advantage at the
cost of other states (a total violation of dormant commerce clause)
C. NOTES
1. POLITICAL MACHINE RATIONALE
a. If these restrictions are seriously affecting trucking interests, they are
affecting both in and out-of-state trucking interests – everyone goes to the
politicians and bitch about it: - Court will DECLINE to intervene where
you can expect the political machine to make the changes on their
own.
i. i.e. in SC the political process eventually changed the SC trucking
regulations.
2. Absence of discrimination and involvement of the political machine play a role
in the implementation of the dormant commerce clause.

c. Southern Pacific Co. v. Arizona- BIG case – Epitome of Modern DCC, Post-Dowling
A. FACTS
1. Arizona passed legislation limiting lengths of all train cars operating within the
state – interstate carrier challenged statute, claiming that it unduly burdened
interstate commerce – it effectively dictates to other states what their train’s
lengths have to be – instead of breaking up their trains at the borders, they’ll
just run all of them at lower lengths to avoid difft state regs– huge burden on
IC. Also, most other states already tolerate longer trains.
B. HOLDING
1. BALANCING TEST - Court candidly admits that this type of regulation has 2
dimensions to balance
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 a. #1 – state has safety interest under the “police power”
b. #2 – this regulation interferes w. interestate commerce
i. Must conduct balancing test b/w state interests and adverse effects
to interstate commerce
2. RESULT – non-existent state safety concerns are massively outweighed by
burden to IC regulations present – too much of a hassle for all states to
comply
a. Court looks to the validity of the state interest – its relative weight – gives
FAR LESS deference to the state legislature’s discretion than was given in
Barnwell.
C. NOTES
1. POPULARITY REASONING – if 40 states had adopted a similar legislation to
Arizona, burden on IC would be far less – but b/c only 2 had them, it’s a burden.
2. ABSENCE OF FED STATUTE– there is no federal statute on point here,
therefore court has to guess what Congress would approve on this subject –
after this decision Congress could have expressly permitted the kind of
regulation Arizona had enacted through creating statue.
a. Congress can always come in and supercede the court’s judgment on what
the Court’s think Congress’s will is.
3. IN SUMMATION: This case represents the Court changing it’s mind from the
early Barnwell decision, b/c its after the DOWLING PAPER is published!
a. Barnwell- if the state can come forward and bring any remotely plausible
safety measure, we won’t second-guess them
b. Southern Pacific- we will second-guess the states’ safety measures as we
see fit, and override their regulation.

D. Bibb v. Navajo Frieght Lines – Reiterization of Court’s ability to judge SI validity

1. FACTS
a. The Mud-flap case – trucks on IL highways must have contoured, rather
than the common flat mudguards (45 states only require flat mudguards) –
to change mudgaurds they must be welded on – 4 hour process – at border
of IL. Conflicting requirements w/ Arkansas…– Arkansas REQUIRES
straight mudgaurds.
2. HOLDING
a. BALANCING TEST
i. State interests: lack of evidence f/ actual safety benefits – no good
reason for the regulation!
ii. IC Inference – huge, b/c of transfering guards, etc Perishable food
could… perish.
b. This case represents FACIAL DISCRIMINATORY REGULATION –
therefore the discrimination doesn’t have to be closely examined.
3. NOTES
a. STERN: on the other hand there is a subtle form of protection for a
burdensome statute
i. If the trucks route is within states that have the same or no statute
then trucking interest will be affected, but only initially (still must
put on the mud contours, just don’t have to take them off in other
places)

d. Kassel v. Consolidated Freightways Corp- Stupid safety standard doesn’t = valid state interest
A. FACTS
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 1. Bibb case, but with double-wide trailers – Iowa prohibits 65-foot double-wide
trailers on their highwways, citing safety concerns – at trial, brings forht lots of
evidence of dangers posed by these huge trucks “100,000 lbs of ROLLING
DEATH! Also, the statute allows discriminatory permit practice that allows Iowa
trucking companies to be exempt from the restriction.
B. HOLDING/NOTES
1. Plurality (majority all w/ different reasons) strike down statute for being overly
burdensome to IC – unless state has special conditions which necessitate
special regulations on vehicles, stats should not be able to dump their
transportation problems and road wear and tear probs onto other states –
cant shut down roads to one type of vehicle that other states allow – this will
force other states to GO AROUND IOWA!
a. EXAMPLE OF APPROPRIATE SPECIAL CONDITION TO MERIT
REGULATION – snow tires in Minnesota during the winter.
2. Balancing Test – burden on IC outweighs safety benefit
C. NOTES
1. PROTECTIONIST UNDERCURRENTS – court’s balancing test is more “for
show” in this case – court feels that Iowa is just trying to exert barrier to other
state’s commerce, and therefore court gives little consideration to state safety
interests.
a. If they really posed a danger, they wouldn’t be allowed ANYWHERE
in Iowa – but they are allowed at border cities – to Court, this
suggests that theyre reasoning is bullshit. Law would have been a lot
more credible if it had been blanket for all of Iowa.
2. KASSEL v. BARNWELL
a. In Barnwell regulation was equally discriminatory to in/out of state
interests, therefore its duty of legislature to repeal the regulation when
everyone comes out bitching
b. HERE the regulation effects almost exclusively out of state interests, b/c
of permit allowing natives to sneak around it.
i. LACK OF ACCOUNTABILITY: shrewd Iowa statutory “li-l
scheme” to circumvent political culpability b/c legislature wont
give a shit about adverse impact on non-voting out of state
interests.

D. Pike v. Bruce Church, Inc – Valid state interest but inference w/ IC

1. FACTS – Arizona statute requiring growers to pack containers of cantaoupes w/
name and address of Arizona shippers. While not specifically protectionist in
intent- they just want their state name promoted through attachment to high-
quality cantaloupes – it creates a burden on IC b/c of extra cost of labeling and
packing f/ ppl with out of state shippers – P would have to relocate packing
facility - $200 K.
2. HOLDING
a. Balancing Test:
i. “Vague promotion of Arizona’s cantaloupes” v. huge IC burden
ii. Substantial burden f/ P against slight interest – nobrainer.
3. NOTES
a. PROTECTIONIST IMPACT OF REGULATION- if AZ permitted to
enforce regulation, BC will have to move its packing center to AZ, which
will cause CA to lose jobs and AZ to gain them
39
 b. When you have state, pseudo-bullshit interest (with ulterior motive to
promote state interests at expense of others), that is going to diminish
the weight of state’s interest in balancing test and elevate level of
judicial scrutiny.

i. The point: if you discriminate equally between in and out of state

interests, you have some chance of winning at court – but if you
discriminate purely against out of state interests, ur screwed.

E. Philadelphia v. NJ – Blatant discrimination against out-of-state interests

1. FACTS
a. Philly dumping trash in New Jersey b/c of contracts with private operators
of landfills. NJ noticed the extra garbage piling up in their state, and
passes statute which bans importation of waste that originated outside NJ.
i. NJ’s argument is that CC doesn’t apply here b/c its garbage.
2. HOLDING
a. First, court applies argument from Gibbons v. Ogden, and holds that even
w/ garbage theres movment of items and $$ across state lines – therefore
CC applies.
b. Under CC, this is blatant discrimination against OOS intterests –
therefore it is bogus. Court opines that even though their regulation
isnt specifically geared to undermine out of state interests, and there
are valid reasons for it, it cant be accomplished through specifically
discriminating againjst OOSI.
c. STRICT STANDARD f/ OVER DISCRIMINATION
i. Case imposes EXTREMELY stringent standard – virtual “per se”
ruling negating statute when statute is found discriminatory
1. USSC-We have confidence in NJ legislature, that they
will be able to come up with a solution that is less
discriminatory.
2. Out right discrimination is too drastic a measure to
achieve even an important goal as this was.
d. LEAST RESTRICTIVE ALTERNATIVE TEST – from Dean’s Milk
i. When court categorizes regulation as discriminatory, they will
apply this strict test, and ordinarily suggest alternative, less-
restrictive solutions.
1. This was such blatant discrimination that the court just
struck down the state w/o giving any alternatives.
What happens when u have a statute that is neutral on its face but is
still discriminatory?
F. Hunt v. Washington Apple Advertising Commission – Operational(nonfacial) discrim.
1. FACTS
a. NC Regulation that requires that apple crates must either bear a USDA
grade label or NO grade at all – which precludes labels of superior,
Washington-state grade apples. NC argues that regulation wa sto protect
against apple marketing fraud. NC applies were trying to protect
themselves against the influx of Washington apples.
2. HOLDING
a. While not explicitly discriminatory on its face, in practice it discriminates
against Washington, and is therefore operationally discriminatory.

40
 b. What’s wrong with this regulation? The Washington apple growers will
now have re-label all the creates and that will cost money, and the people
buying apples in NC wont know if the apples are from Washington thus
hurting them in that market
c. Court applies least restrictive alternative test, and provides an
alternative: allowing labeling with BOTH grading systems. This will help
NC aim in people not being confused with what apples they are buying
and still not discriminate against Washington.
i. **in a case like this they say on the face it’s not discrim. Then
they look to practice to see if operationally discriminatory will the
impact cause discrim, and the court said that the effect would be
discrim against Washington which brought them to the least
discriminatory alternative test
1. here there is an overwhelming presumption that a less
discriminatory alternative exists; the court almost always
finds one
one of the consideration in the Barnwell cases was an instant of significant in
state and out state interest were affected. You could expect in state political
process will deal with this problem. The apple case is clearly the opposite,
since this was an industry that has its way with the NC legislature. And the
court takes this into account in is decision.

FROM REVIEW SESSION

DCC
• If the regulation amounts to discrimination and you can’t always tell, then this triggers the least
restrict alternative
• If it is just a burden on commerce, then it applies only the balancing test

ii. PROTECTIONIST MOTIVES - Downgrading of grading system

offered the NC apple industry the sort of protection against
competing out-of-state products the commerce clause was
designed to prohibit
3. NOTES
a. OUT-OF-STATERS GET PREFERENCE
i. The court will more closely scrutinize legislation that imposes a
burden on a party without the political power to affect legislative
change in the state (i.e. out of state ppl that cant vote)
1. A factor in the court’s analysis would be whether
realistically the adversely affected party will have any
recourse to the legislating body in the state

G. Exxon Corp v. Maryland – Facially neutral, operationally discriminatory statute

1. FACTS
a. Court upheld regulation imposed by Maryland to prohibit producers and
refiners of petroleum products from owning retail service stations within
Maryland – there were NO producers/refiners within the state!
b. Case will hinged on perception of whether the restriction imposed a
burden on out-of-state businesses, or whether the regulation was
imposed on an interest that happened to contain some out-of-state
actors
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 c. The circumstances were that of an oil shortage, with the refiners and
distributors favoring their own stations
i. Crucial question of whether a statute that is facially neutral is in
fact in operation discriminatory – does statute DISCRIMINATE
against out of state commerce?
2. HOLDING
a. Since all petro products come from outside the state, theres no
discrimination – also b/c only SOME of the out-of-state actors would
be effected by the ban, its not discriminatory.
3. DISSENT : Blackmun – everyone injured by the regulation is out-of-state and
everyone benefitting is in-state – therefore protectionism and discrimination,
which should trigger least-restrictive alternative test.
a. Upon that test, def other ways of excluding out-of-state classes of
companies that could harm in-state interests –i.e. restricting predatory
pricing and enforcing it.
4. NOTES
a. Exxon argues that Maryland does not have the right to determine who
shall engage in that market, to dictate the structure of the market
i. The court counters, saying the Commerce Clause does not protect
the “particular structure or methods of operation” in given market
b. Regulation simply scrambles the identity of the out-of-state actors, which
the majority says does not rise to the level of violation of the commerce
clause, as long as the regulation does not interfere with the flow of
interstate commerce
c. NATIONAL SOLIDARITY ANALYSIS
i. Decision illustrates that while we treat the dormant commerce
clause as a free trade doctrine, it is really more of a political
doctrine
ii. Paramount value embodied is the notion of national solidarity
1. Cardozo quote found in dissent: “the peoples of the several
states must sink or swim together.”
iii. There will be a few instances in which a statute viewed
economically would not appear to be a good idea, but as long as it
does not violate the notion of national solidarity, it will be
constitutional

H. Minnesota v. Clover Leaf Cremery- Facially non-discriminatory, operationally disc

1. FACTS
a. Ban on sale of milk in plastic containers
i. Happy coincidence that out-of-state companies are the principles
manufacturers of such plastic containers
ii. Also happy coincidence that the beneficiaries of the ban, pulpwood
industries, are Minnesota residents
1. facially nondiscriminatory, b/c it doesn’t clearly
differentiate b/w in-state and out-of-state interests
2. HOLDING
a. Statutory ban upheld
b. USC accepts argument that statute served its stated purposes of promoting
conservation, easing waste disposal problems, and conserving energy
c. NO PERMANENT IN-STATE ADVANTAGE - Immediate affect of the
statute is to provide a disproportionate benefit to Minn. residents and
42
 disproportionate burden to out-of-state residents, but there is no reason at
all why that disproportionate affect should continue beyond the immediate
i. Out-of-state residents are free to up their production of
pulpwood/paper containers
ii. Not a regulation intended to create a permanent advantage to
Minnesota producers, as it would be if Arizona required containers
to be made of cactus, etc.
iii. In addition, there are some Minnesota companies that had been
manufacturing plastic containers
iv. There are thus at least some in-state residents that will be adversely
affected, and their voices could be heard in the state political
sphere

e. Preemption
- Issue is when state law conflicts w/ federal regulation, but there is no Congressional specification as to
whether fed regs are supposed to override/negate state – questgion of whether Congress intended Fed
to preempt state statutes.
o i.e. did Fed want more state regulations on the subject?
o Express Preemption- fed reg does specifically override state – still requires interpretation of
extent to which it preempts. This is not usually the case/issue.
o Implied Preemption - Congress does not enact a specific or express preemption clause, so it is
typically left to the court to infer whether Congress intended to preempt a particular type of
legislation.TWO TYPES OF IMPLIED PREEMPTION
 #1 – Conflict Preemption – if state statute conflicts with operation/purpose of fed
statute, the federal statute preempts – i.e. Gibbons v. Ogden
• This is the easier type of preemption to identify and apply.
 #2 – Field Preemption – where federal regulation is so sweeping and broad that court
sees Congress as intending to preempt any state regulation in that ENTIRE field.

o VALERIE ON PREEMPTION: Questions of characterization:

 What subjects did Congress expressly preempt, or what is the field that Congress has occupied?
 Is the state regulation one that falls within the domain that Congress expressly preempted or occupied?
 Frequently the same concerns underlying dormant commerce clause analyses affect the court’s decision
• E.g. national uniformity, interference with interstate commerce, preservation of a proper sphere for local
regulation, etc.
 Overview:
• In dormant commerce clause cases, the court may say, “leave the problem to Congress”
• In preemption cases, Congress has acted, and saying, “leave it to Congress” amounts to imposing on
Congress a requirement of explicitness
o Preemption may be used to avoid other constitutional issues
o Matter of statutory interpretation

A. the Market Participation Doctrine

- The courts have made an exception to CC restrictions on state regulation – when the state acts as a
market participant, the commerce clause becomes irrelevant and the state can restrict their
conduct to the same extent as any private industry
o i.e. NJ could have purchased the private landfills and restricted out-of-state waste
constitutionally; Florida could not restrict export of oranges by PRIVATE growers, but having
their state-owned growers refuse to export is Constitutional.
o THIRD PARTIES – state hires general contractor w/ K that specifies that when GC hires SCs,
half of those SCs must be residents of Tally
 Court has said that lack of privity is not an issue – SCs are state workers by association,
and therefore state can use discriminatory measures.
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- EXCEPTIONS TO MPD – i.e. subject to dormant commerce clause analysis
o #1 – State attempts to affect parties BEYOND those they’re in K with- i.e. regulatory
consequences outweigh market value consequences.
o #2 – State’s participation in market involves RAW NATURAL RESOURCES?
1. South-Central Timber Development v. Wunnicke
a. FACTS
i. Alaska sells some timber from state-owned lands below market prices. Buyer is required
to process timber inside of Alaska before exporting it. A non-Alaska firm with no Alaska
processing facilities attacked the process as violative of dormant commerce clause. State
defendant on grounds of market doctrine claiming it was selling a commodity it owned.
ii. Obvious discrimination in preference given to in-state lumber
processors
iii. Alaska was not in the market for the processing of timber, and
instead was attempting to regulate the processing
b. HOLDING
i. No MPC, regulation violates dormant CC – state can’t impose
conditions that have substantial regulatory effect OUTSIDE of the
particular marketing area that they’re participating in!
1. Alaska was acting as a market regulator, not a market
participant. Big effect on IC.
ii. THE BIG PICTURE – burdens on commerce went beyond
immediate state transactions – terms imposed by state prevented
buyer from seling logs to out-of-state buyers unless they had been
processed in Alaska – state is a market participant in
buying/selling timber – once they started reaching into timber
processing, they were trying to regulate other industries.

B. Art. IV Privileges and Immunities Clause

- Priv/Imm Clause of Article 4 : privileges of residents in each state have privileges of residents of all
states”
o A state cannot discriminate against individuals in certain ways purely because they are
nonresidents!
 RATIONALE – based on political reality that state legislators don’t give a shit about out-
of-state interests (they’re only concerned with the ppl voting to keep them in office).
Also, broader notion that this is a united nation where rights shouldn’t be compromised
just by going across state lines.
o 2- PART TEST FOR ARTICLE 4 ISSUE
 #1 – Whether right restricted is a “fundamental right” in the eyes of the court
• i.e. fundamental to the promotion of interstate harmony
• Examples – 20x higher price for out of state hunting licenses – hunting NOT fund
 But hiring quota f/ Alaskans –right to pursue employment is fund
 #2 – Whether state can demonstrate that nonresidents constitute a peculiar source
of evil, at which statute is aimed. Has to be a “substantial” justification.

1. United Bldg & Contruction Trades Council v. Camden- 2 step process f/ disc
a. FACTS
i. City of Camden NJ had minimum quota of residents you had to
hire – 40% Camdonites - i.e. GC hiring laborers. This challenged
b/c ppl outside Camden and New Jersey wont b able to get work

44
 b/c of this quota. Ppl from Philadelphia commute into Camden to
work.
b. HOLDING
i. Court held that an out-of-state resident’s interest in employment on
public works contracts was fundamental to the promotion of
interstate harmony, and therefore protected by the clause
ii. State’s justification - it fails – “we have unemployment problems
and ppl that live in other cities are coming in and taking advantage
of our jobs and not giving back to the city, so we need to keep
these jobs for our citizens – court says this is a justification but it
AINT good enough – Not substantial enough.
c. NOTES
i. COURT: a situation that may be immune from dormant commerce
clause DOES NOT MEAN YOU CAN’T BE CHALLENGED
UNDER ARTICLE 4 PRIVILEDGES AND IMMUNITIES
1. Whenever a court gets to the merits, it should take into
account that these ppl work for the state, but it doesn’t
short-circuit the analysis
2. ARTICLE 4 PI Clause provides another basis for suits
brought by people not getting jobs b/c they’re
nonresidents, when they cant sue under dormant
commerce clause
3. Cases tend to end when saying that either there is no
fundamental right involved or there is a fundamental right
and the state must show that they are the fundamental cause
of the problem and this is unusual

V. Substantive Protection of Economic Interests from State

Regulation: The Due Process and Contract Clauses –
SUBSTANTIVE DUE PROCESS
- Based around the notion that there are fundamental rights entitled to judicial protection, that require
greater scrutiny to make sure they are not infringed upon.
o 14 Amendment - "Nor shall any state deprive any person of life, liberty or property w/o due
process of law. (This clause is a limit on the substantive power of state legislatures to regulate
various areas of economic and non-economic life.)

-Prior to the adoption of the 14th A, the Constitution imposed very few limitations on the states.
- The Amendment adds the Privileges and Immunities Clause, The due process clause and the equal
protections clause

Overview of debate over originalism and interpretivism

- Underlying principles/attitudes
o One debate - Question of Interpretevism v. Non-Interpretevism (Not a very wide gap)
 Interpretivism - stick very close to Constitution
o Probably willing to draw a certain level of inferences; probably do not
believe that government has carte blanche to do whatever it wants absent
an express constitutional prohibition; A school of thought or mode of

45
 const. interp. that insists on sticking to the text of constitution in regard to
whether it allows government to regulate. It is only the judge’s job to
interpret the literal text; don’t read individual rights into constitution; if
it’s not there then there isn’t a gov’t power to regulate
 Non-Interpretevism - more inclined to do certain things government is not allowed to do
o more inclined to find certain things substantively that the government is
not permitted to do, even though those limitations are not explicitly
spelled out in the constitution; The constitution does not spell out every
limitation on governmental power and every right and liberty under the
const. and there are certain rights that can be inferred from cont. even if
not spelled out in precise detail.
o Another separate debate - Originalism v. Non-originalism
 Originalism - constitutional interpretation should be guided by the intent of the framers
 Non-originalism - greater willingness to look to other sources to determine constitutional
intent
- General Rule: High degree of deference is given to state law. Therefore, D has burden of showing
there is no rationale basis. Law will be struck down if arbitrary and capricious. This applies to
commercial things - zoning, businesss regulations, tax laws, etc.

A. Slaughterhouse cases- took priviledges and immunities clause away as a way to strike down state legislation
1. FACTS
a. State of Louisiana conferred by statute a monopoly in the slaughterhouse
business on a certain slaughterhouse – genuine health concern of wanting
to secure quality of meat by ending cutthroat competition.
b. Competing slaughterhouses challenged this as an abridgement of the right
to own and use property. P content this was a right guaranteed by the
Privileges and Immunities Clause of the 14th Amendment.
2. HOLDING
a. Court held monopoly did not violate due process b/c reasonably related
to a permissible state objective. Privileges and immunities clause was
read out of constitution. Basically, for 100 years following it was like
there was no PI clause.
i. Due Process Clause in slaughterhouse is interpreted as only
imposing procedural limitations, not substantive limitations.
This holding took the entire meaning out the 14th amend.
b. As a result- judges couldn’t use PIC because it was removed from the
arsenal of the courts to attack a state economic program
c. Since no PIC, they had to rely on SDP- to tell state how they can regulate
the market
Majority held that the 14th protects the rights of states as citizens of the US (Stern
disagree)

3. NOTES
a. COURTS REPLACE Privileges and Immunities Clause WITH DUE
PROCESS f/ STATE REG
i. Due Process clause: after Slaughterhouse, judges end up doing
reading substantive limitations on state gov’t power on due
process clause (which would have been added to priv and
immunity clause, if slaughterhouse hadn’t happened)
b. SUBSTANTIVE DUE PROCESS
46
  There are certain substantive things that gov’t can’t do!
• Gov’t cant redistribute property, interfere w/ contracts,
compensate for unreasonable bargaining rights
i. While this isn’t explicitly set out in the const, they were “read
into” the due process clause – i.e. they were interpreted to be
components of substantive due process
c. SDP ALSO APPLIED TO ECONOMIC LEGISLATION
i. Court also sees due process clause as justification for reviewing
reasonableness of econ legis. – if legislation was found to be
unreasonable – it was found to be a violation of substantive due
process b/c SDP implied that legislation should be reasonable
ii.

B. Lochner v. NY – Radical non-interpretivism, “freedom of contract”

1. FACTS
a. NY imposed a limit on the number of hours a baker could work; 10 per day, 60
per week. Law was defended as being 1) valid labor law and 2) protected health
and safety of workers – AND will improve/protect quality of bread.
2. HOLDING
a. Statute struck down based upon “liberty of contract” right inferred into
the 14th amendment by the Lochner court
i. Before, 14th amendment purely procedural – NOW court imposed
this into substantive liberty of K – there is a fundamental,
substantive liberty of K protected by 14 amendment – implicit
specific limitations exist within the text
b. Govt has no right to interfere in Ks between willing workers and employer
c. This is bad policy and not a sufficient government al interest in messing
with the employer/employee relationship
d. Court issues a diatribe against paternalistic legislation
3. DISSENT – Holmes
a. He objects to the court deciding this case on their own opinions
b. The act should not bring up the baker’s social situation- said that this
holding creates a “survival of the fittest” economic situation.
c. While probably sympathetic to economic majority, he able to separate
his own view from the Const – seen here b/c he was a social Darwinist
(no friend to welfare)
d. Court in no way is relying on a rational relationship test
e. He objects to the majority construing the constitution in the economic
theory of laze fare
f. Holmes Dissent - In the Holmes and Harlan dissent is the early articulation
of the rational relationship standard which prevailed in the post Lochner
era
g. **Post Lochner Rational Relationship Test**This approach is that the
court should sustain this kind of legislation that is being challenged if it
appears that the legislature had reasonable grounds for some kind of good
or whatever it’s articulated goal was (Reasonableness test)
h. If the wisdom of a statute is within realm of judgment and sane people
could find this decent legislation, this is where the inquiry should end
i. This is lenient and if this standard were taken by the majority of the court
then this legislation would have prevailed.
4. NOTES
47
 a. EXTREME NONINTERPRETIVISM - you really have to reach well
beyond text of Constitution to infer “liberty of k” that restricts states from
imposing regulations on bakers
b. INFAMOUS OPINION
i. Notorious b/c Walker is seen as epitomizing in worst way the
way judges can infer/enforce their own preferences over that
over the legislature
1. p. 714 – in determining Constitutionality of statute, judges
decide what is fair and reasonable – EXTREMELY strong
language in overriding state
a. state interests not effect in the SLIGHTEST
DEGREE for such an act
b. state is grossly overreaching (in our view)
c. COINED THE TERM “LOCKNERISM”
i. “Locknerism” – judges elevating their OWN person views – social
political economic – into fundamental Constitutional principals –
fusing their own attitudes into the Const, and substituting their
own judgment for the judgment of the legislature
ii. Lochner stands for the notion that due process includes substantive
liberty, such as freedom to contract, and also allows judges to pass
on the reasonableness of legislation
1. One of the most condemned cases in US history, used to
symbolize judicial dereliction and abuse
d. CREATED LOCKNER ERA (1905-1934)
i. The Lochner period was really the heyday of substantive due
process, with the courts invoking broad clauses of the constitution
to override decisions of the legislature
1. This led to a floodtide of such judicial behavior
ii. Judicial behavior seemed to change in line with the New Deal
progression as discussed in the Commerce Clauses cases
iii. From Lochner to mid-1930s, the court invalidated
approximately 200 economic regulations, usually under the
due process clause of the 14th amendment
1. Then, in the mid-1930s, the court changed composition,
and the court was prepared to abandon Lochner, due in
part to the economic realities of the Depression, which
seemed to undermine Lochner’s central premises…

b. The Demise of the Lockner Era

- In a series of decisions, courts “get out of the business of second-guessing/scrutinizing state legislation”,
represents a shift towards the modern approach courts currently take towards state economic policies

A. Nebbia v. NY- beginning of the end of Locknerism, return of rational relationship test
1. FACTS
a. NY tries to establish retail price of milk - minimum and maximum –
grocer found to be selling below minimum, so NY brings suit.
2. HOLDING
a. Statute upheld under modern, post-Lockner approach – instead of
approaching issue in terms of abstract “freedom of K” way, court LOOKS
at relevant facts to determine “whether NY has factual foundation for

48
 thinking that setting minimum price of milk would support health of
citizens and dairy industry
i. Rational Relationship Test – as long as there’s some plausible
basis for NY to think this’ll help ppl and industry, court wont
interfere
1. most lenient level of judicial review
3. NOTES
a. TOTAL INVALIDATION OF LOCKNER
i. court announces that its “getting out of the business” of second-
guessing the policy decisions of the legislature
b. PRESUMPTION/DEFERENCE TO STATE LEGISLATIVE VALIDITY
i. “state is free to adopt any legislation reasonably designed to
promote public welfare”
ii. Legislature is the judge of such enactments – all assumptions
should be in favor of them”
c. COURT SPECIFIES WHAT’S UNCONSTITUTIONAL
i. Court found that price control, like any other form of regulation, is
unconstitutional only if arbitrary, discriminatory, or demonstrably
irrelevant to the policy the legislature is free to adopt
1. must be an “unnecessary and unwarranted interference
with individual liberty”

B. West Coast Hotel Co. v. Parrish, 1937 – the legislature knows economic policy best
1. Court upheld a state law establishing minimum wages for women
a. Court took into account that the bargaining power of women in that
area was relatively weak; legislature was entitled to make that
adjustment in the market under rational relationship test.
2. EXPRESS REPUDIATION OF LOCKNER
a. The Lochner court would have thought it was entirely wrong of the
legislature to make such adjustments in the market, as inequality/unequal
power is the price of a free market
3. Standard of review was whether the legislative response to the situation was
arbitrary or capricious
a. Court found the legislature was entitled to its judgment
4. COURT’S NEW PHILOSOPHY
a. wholesale deference to legislature concerning commercial and
economic policy-making- court totally avoids the question of what
“they” would do, rather they examine whether it was rational that the
legislature did what they did

C. US v. Carolene Products, 1938- re-emphasis of judicial deference, even with bad

legislation
1. FACTS
a. Federal Filled Milk Act prohibits shipment of aduleterated milk – mixed
with veg oil – from interstate commerce, D violates and is prosecuted
b. D moves for demurrer claiming that act violates his due process rights.
2. HOLDING
a. Act is constitutional – Court holds that the burden of demonstrating
the lack of any rational relationship is on the party challenging the
legislation.

49
 i. The court deliberately closed its eyes to the fact that the legislation
was based entirely on special interests, with no actual legitimate
goal
ii. This is a near impossible burden of proving a negative.
3. NOTES
a. LIMITS OF COURT DEFERENCE
i. This extreme deference applies only to specific areas of
legislation, like economic/commercial ones.
ii. *Only qualificiation – when we talk of courts beingn so
permissive, keep in mind the kind of legislation this applies to;
they are talking about legislation in the areas of economic and
social welfare (products, prices business, ) – all of these courts will
apply rational relationship std.
iii. **Footnote #4 - when we start talking about individual rights and
liberties like freedom of speech or the right of privacy then the
approach is not so deferential and when the face of statute
encroaches on one of these rights and liberties the court takes a less
deferential approach and takes a stricter standard
b. THE FAMOUS CAROLINA FOOTNOTE
i. THIS case is an exception to the general rule – when we’re dealing
w/ legislation that on its face violations liberties, we’re going to
look at it more closely
1. Court is cautioning that just because we’re deferring to
legislation here, doesn’t mean we’re going to let
everything go by or stop watching shit.
a. When it comes to deciding how economic pie is
going to be carved up – when it comes to specific
rights that are in the bill of rights, we are NOT
going be so deferential as the general rule implies
ii.
c. COURT FURTHER EXPANDS DEFERENCE IN SUBSEQUENT
CASES
i. Williamson v. Lee Optical- extreme rational basis
1. Oklahoma statute requiring that anyone wanting a lens had
to obtain scrip from optician/opthamologist
a. no legitimate purpose f/ this legislation other than
benefitting opticians
2. But court doesn’t say that – dances around real purpose of
legislation (special interest grps that got to legislature) –
instead, Crt comes very close to saying “Ok Oklahoma, u
thought this was a good idea and that’s good enough for
us”
a. This is an extreme form of rational basis test – OK
doesn’t have any pronounced reason for this, but
court in speculation can think of how “a
leglislature” could have possibly formed this.
3. Court says they will no longer use the DP clause to strike
down laws because they may be unwise or improvident
ii. Ferguson v. Skrupa, 1963 – ULTIMATE rational basis test

50
 1. Kansas passes law that says “if you wanna be a debt
adjustor, you have to be a lawyer” – blatant favoring of
lawyers.
2. Court goes further than Lee Optical – court says “here are
some reasons that might work, so legislations are ok” - if
legislation thought it was a good idea, that’s good
enough for us
a. “up to legislatures, not courts, to decide on the
wisdom and utility of legislation”
b. *there is vitually no chance that the court will strike
down under substantive due process
c. ***lawyers still try to raise substantive due process
challenges which is surprising b/c they’ll def fail
D. Duke Power Co. v. Carolina Env Study Group- a final reiteration of judicial deference
1. Congress imposes $60 million ceiling on nuclear accident liability damages – its
challenged.
a. Court considered the regulation a legislative effort to structure and
accommodate the burdens and benefits of economic life
2. That the measure may have profound and far-reaching consequences was
seen as an argument for greater deference to congressional judgment unless
demonstrably arbitrary or irrational
a. Court thought any figure used as a cap would be necessarily arbitrary
because based on imponderables
c. The Contracts Clause
- Article 1, section 10 – no state shall pass a law impairing the obligations of private contracts
o Limitation it imposes on gov’t actions is different from Lockner Era substantive due process
 “Libery of K” – state can’t prevent willing private parties from entering Ks
 Contracts Clause - Once you pick your K rules – what rules are going to govern
formation and enforceability of Ks – you cannot retroactively change those rules.
• It does NOT prohibit in advance what that regime may be – it tells the state “you
pick the tules, you just can’t change them once theyre in place for a specific K or
whatever”
o EXAMPLE: If Florida wants to say, “from here on, every K has to have
Ashton Kutcher seal” – they can do that – court is just sayin that 10 years
later you cant say that in K where rules are followed, that its invalid

- HISTORY OF K CLAUSE – death and rebirth

o After K clause was adopted, it was evoked occasionally to strike down legislation – but the kind
of legislation it was used to strike down was exactly the kind that it was designed for – debt
easement
 But language of K clause is much broader than that – but over the last 150 yrs, a lot of
legislation that seemed to meet language of the K clause, but SC struck down challenges
 POLICE POWER EXCEPTION
• Hypo- parties A and B have a K where A supplies cocaine to B for X # of years
for $X.
o once cocaine is outlawed as a state law, you cant protect coke deals
through contracts – police power exception to the K clause
o Blaisdale case in 1954 signaled demise f K clause b/c the court decided that they werent going to
look closely at economic Ks. Majority nullified K clause. Dissent said that this case was exactly
the kind that the K clause was designed to comabt.

51
 From notes - In the very same term another decision Blaisedale case (pg 992) came down
where a Minn. Law in depression allowed under certain circ. Memoritroium on the
foreclosure of mortgages (if fail to pay, bank forecloses); during height of depression lots
of people couldn’t pay so tons of foreclosures which state’s were concerned about; they
didn’t cancel mortgages but made them easier to pay off with a court order allowing you
to strech out your schedule of payments (2nd opp to pay off);
o If originalism means anything this is what should be struck down under K
clause b/c this is exactly the type of law that framers had in mind when
they inserted the K clasue into the cont. of putting in laws to make it easier
to pay debts
o However, the court upheld Minn’s laws; this is coincidental that in 1934 is
they come down almost simulteneouslly and the signal that seems to be
admitted is that the court is getting out of the business completely the
substance of economic legislation whether under the K clause or under
substantive due process
 The court backing out all together out of any time of review of
economic legislation and would sustain anything like this
 This was a valid interpretation of events that was valid for a couple
of decades; for over four decades after these decisions the court did
not invalidate any leglislation under the K clasue even though there
was challenged legislation that did seem to challenge the validation
of K’s

 In 2 big cases, courts resurrected K clause and said it will be used to strike down
legislation in certain instances…

A. United States Trust Co. v. New Jersey –courts are startin 2 take KC seriously again
1. FACTS
a. NJ wanted to divert revenues to support mass transit system, changes K
legal rules. The money was coming from money that was agreed w/
bondholders would NOT be used particularly for this purpose
i. NJ is violating its contract w/ bondholders to use money for other
purposes
2. HOLDING
a. Court strikes down NJ’s law, which was an attempt to weasel out of their
K.
i. This decision signaled a new life for the K clause, but was
considered at the time to be a “flash in the pan” – Wrong.
b. UNFORESEEABLE EMERGENCY EXCEPTION:
i. NJ tried to argue that the money was used and laws changed b/c
mass transit problem was an unforeseeable emergency – had this
been the case, the changes might be justified.
1. BUT NJ’s attempt to control where this money went
failed,, b/c it was foreseeable that NJ would have mass
transit problems – NJ was NOT responding to an
unforeseeable problem.
3. NOTES
a. STATE SHADINESS UNDER THE K CLAUSE
i. US TRUST is an easier case for the court b/c state was a party in
the case – when you have a case where a state, as a party, is
trying to change their own obligations, etc, it looks more
52
 dubious to the court and seems like the state is breaking its
word for its own benefit.
1. Other than the courts, there isnt much of a political check
on states
b. REMAINING QUESTION
i. How seriously were courts going to apply the newly-
resurrected K clause, and how would it apply when a private
party, NOT a state, was trying shade out of the contract?

B. Allied Structural Steel Co. v. Spannaus

1. FACTS
a. Minnesota law provided that under certain conditions, the amount of
money that a minnesota employer had agreed to pay in a pension
agreement would increase
i. Original formula was that employer owed $5 million to employees,
new formula increased all those agreed upon Ks to $10 million
2. HOLDING
a. State does not have a general right to increase the employer’s
contractual obligations – legislation struck down.
i. While underfunded pensiosn are a problem, this is not the kind of
widespread severe problem that warrants this drastic a changee in
the contractual obligation of Allied Steel.
b. Factors considered by the court
i. How substantially law will affect K terms?
1. Is it a drastic change to term or is it a modes change to K?
2. It amount to sliding scale where the more severely the
legislation alters the terms the more stringently the state
will enforce
3. If it’s not a big alteration, then the court is much more
likely to sustain the terms of K’s
ii. How necessary was state’s need to change K?
1. not enough need to merit this severe alteration – there
were many alternative solutions to this problem.
2. The court will clelarly take into account the scale or
magnitude of problem that will be addressed by altering
terms of K
3. The court draws the comparison of the broad and desperate
emergency conditions in depression in that pension is
problem but pale in comparison to conditions in depression
and therefore the state has far less justification than in
Blaisdale case than they did during the great depression
4. Magnitude far less than depression
iii. Foreseeability – both state and employer – if prob was
unforeseeable, state might be given more slack.
1. Prob was foreseeable – there were known problems b/w
employers and employee pensions – NOT emergency.
2. employer indicated that he didn’t expect changed K terms
iv. Compromised Interests – state was a party in this K…when state
is trying to break its own K. this weighs against court support of
change.
3. NOTES
53
 a. DIFFERENCE b/w K CLAUSE AND SUBSTANTIVE DUE PROCESS
i. Here is a very specific provision in the constitution concerning
Ks, as opposed to courts making up shit like “liberty of contract”
under Lockneristic methodology.
b. SPECIFICITY OF STATE LEGISLATION IMPORTANT
i. Courts are particularly hostile to states picking out particular types
of Ks and changing them legislatively, esp in their own interest.
1. when it comes to state legislation that simply happens to
have impact of affecting private contracts, but wasn’t
designed specifically to TARGET those kind of Ks, court
will uphoild that sort of legislation.
c. REAL MEANING OF THESE DECISIONS
i. These cases were really more warning shots to the
government/states, rather than an indication that the court would
consistently strike down such legislation
1. were really more warning shots to the government/states,
rather than an indication that the court would consistently
strike down such legislation
a. If the states take a really egregious regulation,
particularly if aimed at particular contracts, the
court is prepared to strike them down

d. Modern Contracts Clause Review – BROAD RATIONAL RELATIONSHIP TEST

A. Modern review under the contract clause is substantially identical to modern rationality
review under the due process and equal protection clauses
1. In all three contexts, the court engages in the same inquiry
a. The court identifies the state interests and requires a rough relation
between the legitimate state interests and the measure under review
2. Class of legitimate state interests is extremely broad, including everything other
than raw political questions
a. Idea seems based on existing distributions never being prepolitical and are
often unjust, and therefore a matter for democratic control
i. The fit between the legitimate interest and the measure under
review need not be close

VI. The Right of Privacy (or “Personhood)

- The right to privacy deals with judicial protection of people’s non-economic rights within their lives –
these rights have been classified as fundamental interests. Courts apply a heightened scrutiny to any
law infringing upon these basic human rights and life choice, which include voting, access to the courts,
procreation, and welfare.

- Initially, two cases created protections for certain types of rights; however their relevance is
undermined by the fact that they were decided under substantive due process, not “right of
privacy”
A. Meyer v. Nebraska
1. Struck down a state statute banning the teaching of modern foreign languages
other than English in any public or private grammar school
2. Court found that no emergency had arisen which rendered such knowledge
harmful enough to justify infringement of the right to acquire useful knowledge
B. Piece v. Society of Sisters

54
 1. Struck down a state statute forbidding parents from sending their children to
private schools (also discussed in standing)
2. Court found the statute interfered unreasonably with parents’ right to direct the
upbringing and education of their children

C. Skinner v, Oklahoma – Procreation is an implied constitutional right, precurson to Griswold

1. FACTS
a. People convicted 3 times of “moral terpitude” crimes will be sterlized. P
was a chicken thief up to be sterilized
i. Conn legislature wrote the statute so that the pertinent crimes
were all “poor people’s crimes” – crimes involved politicians and
other “high class” crimes didn’t involve sterilization
2. HOLDING
a. Court strikes down this statute on equal protection grounds because it
discriminates against poor people – sterizilies blue collar criminals
but not white collar
i. The statute was actually found to infringe on the fundamental right
of having offspring, though that right is not explicitly protected in
the Constitution

3. NOTES
a. SUBSTANTIVE DUE PROCESS IN DISGUISE
i. Court doesn’t really mean this logic – they didn’t want to call
doctrine by its real name – substantive due process – what they
were really doing was the same sort of thing from Meyer and
Pierce – Substantive process – they couldn’t address it b/c of
collapse of Lockner era – court comes up with “Equal Protection”
rationale to cover up their application of substantive due process
b. EQUAL PROTECTION, BUT NOT REALLY
i. Formal application of equal protection, but actual application
of noneconomic fundamental rights (such as that of
procreation, ,marriage, childrearing) under Constitutional
substantive due process
1. This decision advanced the evolution of the protection of
noneconomic fundamental rights through constitutional
substantive due process.
c. STRICT SCRUTINY STANDARD OF REVIEW
i. Court is clearly demonstrating, indicating a willingness to apply
strict scrutiny to legislation that effects people’s fundmental
noneconomic rights
d. CONCURRING OPINION’S PROCEDURAL DUE PROCESS POINT
i. Due process was violated b/c D was given hearing to acertain
whether sterilization would be detrimental to his health, but NOT
as to whether his criminal tendencies were inheritable!

D. PREFACE TO GRISWOLD
1. By the time of Griswold, it is pretty well accepted that one has a corpus of rights
surrounding the family, but it is not yet solidified how they are constitutionally
justified
E. Griswold v. Conneticut- Personal Const rights defined as “Right to Privacy”
1. FACTS
55
 a. Challenge to Conn statute prohibiting use of contraceptives by everyone –
married couples included. What we have here is state invasion of
personal, fundamental rights concerning procreation and children
and family rights
2. HOLDING
a. Statute struck down. What state has done here is to infringe upon
body of rights w/ presumptuve right to make life decisions – when
state infringes upon these “rights of privacy,” we’re going to apply
strict scrutiny - state must prove that statute serves legitimate state
interest
i. Its easy to see how this statute fails that test – this is a very
difficult standard to prove – state will almost always fail that test,
esp when the statute is totally insane.
3. NOTES
a. CREATION OF RIGHT OF PRIVACY (i.e. SUBST DUE PROCESS)
i. Court wants to recognize these intensely personal rights – the
courts decide to call it “right of privacy”
1. Court held that this right of privacy came from various
provisions in the bill of rights – 1st, 3rd , 4th, 5th, and 9th -just
kind of mentioned them all without going into specifics
ii. “Penumbra” – each of these amendments has a privacy aspect,
and together they emanate a “penumbra of privacy” that
encompasses rights to have access and to use contraceptives b/c it
falls into life decisions about personal matters that court has been
protecting since, Meyer¸ Pierce, and Skinner.
1. This is essentially the same “substantive due process”
application from Skinner – but court again is reluctant to
call it that, and instead make up “right of privacy” label
so they don’t touch on Lockner shit
b. THEORETICAL DEBATE – INTERP. V. NONINTERP
i. Goldberg (concurring opinion) – extreme noninterpretivism –
doesn’t even use penumbra analysis, just “thinks its there”
ii. The rights are reasonably implied from the constitution.
iii. Douglas – Qualified non-interpretivism because he at least makes
an effort saying that it does arise out of the specific provision.
iv. Black’s (dissent) – militant interpretivism – says court is
Locknerizing, using vague reasoning/formulas to advance their
own agendas – if it wasn’t in text, it doesn’t exist!
1. Black hates basing the existence of a right, you need to find
it in an explicit guarantee in the constitution. If you don’t
do it like this, you will be left with Lochnerism.
c. MODERN VIEW ON RIGHT OF PRIVACY AND SUBST DUE
PROCESS – HARLAND’S CONCURRING OPINION
i. We are applying substantive due process, stop bullshitting around
the issue with constitutional penumbra reasoning! Taboo a/b
“Locknerism” is dead and buried, lets just call it what it is.
ii. In response to Black: SDP doesn’t give justices free reign to put
their own personal beliefs into decisions – these rights being
protected under substantive due process – the “vague formulas’
Black talks about – establish limitations that disallow judicial

56
 abuse of power. All SDP does is protect against violations against
order and liberty.
d. STERN’S VIEW- BROADER HOLDING ON GOV’T INTRUSION
i. Harland’s view convening substantive due process is the modern
view
ii. Griswold isn’t just about the rights of married individuals –
what Griswold REALY embodies is broader right AGAINST
gov’t intrusion into decisions regarding procreation –
reinforced in Eisenstadt.
1. Griswold applies to broader decisions regarding rights of
procreation, not just married people.
F. Eisenstadt v. Beard – Reiteration of Griswold protection of bodily rights
1. FACTS
a. Involved a Mass. statute prohibiting the distribution of birth control to
unmarried persons - State claimed the purpose of deterring premarital sex
2. HOLDING
a. Court struck the statute down based on the equal protection clause, as the
statute provided different treatment for married and unmarried persons
b. Court found the statute could not possibly meet the state’s purported goal:
i. Contained too many exceptions, e.g. not outlawing distribution of
contraceptives to prevent the spread of disease
c. Also, unreasonable for the state to punish premarital sex with unwanted
children
3. NOTES
a. This case is another indication that the court has embraced the idea
that there is a substantial body of rights under substantive due
process to protect individual autonomy to make their own decisions
on home, family, childrearing
b. Abortion
- Most controversial issue in modern constitutional, b/c people’s personal views are intertwined
morally/socially/ethically/religiously with the issue – if one feels it’s a fundamental right, more likely
to feel like a constitutional right
- History from Griswold – Compelling State Interest Test -if a right is recognized then the state is to
show that any restrictions upon that right are justified
-

A. Roe v. Wade – legalized abortion – woman’s right to choose=fundamental privacy right

1. FACTS
a. Involved a TX statute that prohibited abortion unless the mother’s life was
threatened.
b. Historic bases for criminality of abortions:
i. Discourage illicit sexual conduct
ii. Procedure was hazardous
iii. Protection of fetal life
2. HOLDING
a. Under Griswold, Meyer, Skinner and Pierce, a woman’s right to
decide whether to end a pregnancy was part of the fundamental rights
of privacy.
3. NOTES
a. ESTABLISHED COMPELLING STATE INTEREST TEST

57
 i. Once you start with that position, the state cannot invade or restrict
that right unless it is necessary to achieve a compelling state
interest
1. Compelling state interest was the premise from which the
whole trimester basis flowed
a. System was rooted in what was thought at the time
as medical fact; medically, not a whole lot has
changed since Roe
b. ESTABLISHED TRIMESTER SYSTEM – BALANCING TEST
BETWEEN STATE INTEREST AND WOMEN’S RIGHT TO CHOOSE
i. First trimester - risk of abortion is same as carrying the baby –
state has no real interest in woman’s decision – its between her
and her Dr.
ii. Second trimester - balance changes b/c health risks substantially
increase – state can impose regulations governing abortion
reasonably related to protect women’s health
iii. Third trimester- weight of state’s interest dramatically increase
and state has compelling interest to protect life, and it overrides
mother’s right to make a free choice
1. Rule is that from that point on, state can prohibit
abortions except when abortion is necessary to protect
health of mother

B. Between Roe (1973) and Casey (1992)

1. First Abortion Era – 73-87 - Strong Version of Roe – no longer good law
a. Between 1973 and 1987, there were always 5 justices on the court to strike
down state attempts to outlaw/impede abortions – very pro-choice court.
i. Strict adherence to trimester system
b. Struck down statute requiring woman to be informed of negative effects of
abortion and characteristics of fetus – while on its face this wasn’t direct
inhibition of abortion, it was excessive interference in the woman’s
dialogue with her Dr. and her choice.
c. Abortion Qualifications during Strong Era: Parental Consent with
Judicial Bypass
i. Minors cld b treated differently f/ adults–STILL GOOD LAW.
1. State could require for dependant minors seeking abortion
that she obtain parental consent OR if you didn’t want to
go to parents, you could get judge authorization.
a. If judge thought it was in her best interests, he could
give it to her – in practice this is usually granted.
b. the judge would have to grant consent if the judge
found 1) minor woman was mature enough to make
the decision for themselves or 2) if the judge found
that it was in the woman’s “best interest” to have an
abortion
c. (over the years in practice that has meant if she can
muster courage to approach a judge, the judge will
almost always find one of the 2 conditions exists)
ii. Gov’t Refusal – withholding of funds to poor women – was
upheld even in free health programs – court said that this was a
govt value choice, and that there’s no constitutional duty in Roe v.
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 Wade to aid women, as long as they weren’t actively blocking
her.
2. Webster Case Signified end of Strong Era – “right to privacy” now “mere
liberty” interest
a. one justice changed - court upheld Missouri restrictions on access to
abortion – what was scary was that there was no longer 5 justices that
qualified it as “right to privacy” – there was now a majority that
characterized it as a “mere liberty” – this means that gov’t restrictions
on exercise of that interest only have to rationally further a state
interest.
1. MUCH lower standard of scrutiny than the strict scrutiny
used for right of privacy decisions
2. Very Alarming for pro-choice advocates

3. PREFACE TO CASEY
a. Heading Into Casey, the composition of the court and their
noncommittal attitudes towards the Roe decision had everyone
thinking that Roe was going to be overturned… but it WASN’T, b/c
three judges expected to vote against it actually wrote a joint opinion
upholding Roe.

C. Planned Parenthood v. Casey- rejection of trimester f/ “undue burden and viability”

1. FACTS
a. State requires 24 hr waiting period before abortion, during which anti-
abortion information is distributed to mother-to-bed. Joint opinion states
that in some cases 24 hr period is going to act as an inhibition f/
abortion in itself.
2. HOLDING
a. Court says that while this is a plausible speculation, you didn’t bring
enough evidence within the record that proves this – therefore they
upheld the restriction
i. 24 requirement DOES NOT act as complete deterrent to
significant number of abortions –
ii. The reality – this acts as a defacto ban on many women’s
abortion rights – think women with husbands, parents – secret
abortions – you cant get away for 24 hrs.
iii. Overrules or rejects the original trimester test of Roe and replaces
it with an “undue burden” standard.
b. UNDUE BURDEN REQUIREMENT
i. State regulations that do not outright ban or bar a woman from
aborting a non-viable fetus will be presumed to be valid, unless
challenger can make strong evidentiary showing that regulation
will create undue burden on women seeking abortions.
ii. (notes) In practice this means that if the state imposes a limitation
on the availability of abortion that does not amount to a prohibition
prior to viability then whoever is challenging the limitation must
overcome the evidentiary burden of showing that in fact the
limitation amounts to a ban or insurmountable obstacle on abortion
1. When the court applies this approach, most are upheld;
most tellingly the court overturns a decision from when
Powell was on court and upheld a mandatory 24 hour
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 waiting period for abortion in PA (with exception of
emergency) and during this period you need to be informed
of health risk from abortion all with the purpose of
dissuading women from abortion
2. This shows how strong the validity of provision that is not
an outright ban is; there are circumstances where the 24
hour delay could provide an obstacle like if they live far
away from the clinic and the expense of having to go to the
clinic twice; the court says this is possible but has not been
demonstrated the this delay represents an undue burden or
insurmountable argument for abortion
3. They use the same reasoning in the provision in statute
requiring parental consent with the judicial bypass option
we discussed yesterday
4. As a practical matter even having to go to a judge for a
woman is going to be a deterrent and is hard and if the
pregnancy is from incest is going to make it hard for her
too
5. Also there is a certain amount of delay in the system. In PA
for the whole process to operate takes about 8 business day;
under the circumstances here 8 days is a long time; these
are all arguments that a pro choice advocate could make
against the provision
6. However, under this standard this does not amount to an
intrinsic insurmountable obstacle; it is not an undue burden
it doesn’t make the abortion inherently unattainable
c. It is a strong presumption for the statute, but it can be overcome with an
adequate record, which is what happens with the spousal notification
statute, requiring telling husband

3. NOTES
a. ROE v. WADE SURVIVES…BARELY
i. Upheld the essence of Roe v. Wade – the substantive liberty of the
Due Process clause concerns marriage, family and procreation –
therefore abortion falls within it as well.
1. Tone of joint opinion is kind of halfhearted – there’s an
implicit lack of support for Roe.
b. SPOUSAL PERMISSION STILL DISALLOWED
i. Spousal Permission/Notification requirement – for a substantial
number of women, spousal notification statute will function to
disallow abortion – in a lot of these cases women don’t want
their husbands to KNOW - for fear of beating, or other
retaliation
1. Operates as substantial burden/undue obstacle to abortion.
c. UPHOLDING BASED ON COURT RESPECT/LEGITIMACY
i. If court gets into habit of routinely changing its mind, public will
become cynical of court operations and question their principals –
think they’ll be like other political organs and change their
principles every time new members come into power.
Inappropriate.

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 ii. The court again avoids using the words, “right to privacy” but
choose liberty right.
iii. The court draws distinction between Roe and overruled past
decisions like Brown v. Board, Lockner
iv. Says that Lockner different b/c understanding of underlying facts
changed and it was made on idea that Laze Faire was best way to
run economy and in new deal/depression people came to
understand differently
v. Thus, there had been a change to the factual underpinnings of
Lochner and the Lochner doctrine had already substantially
eroded.
vi. Also by the time got to the court for overturn, it had already been
taking bit hits
vii. Conversely, in reference to Roe, our basic understanding of liberty
hadn’t changed much, neither had the medical facts underlying
Roe, and whatever we would have thought if on court in 73 it is
more important to uphold precedent to preserve the sanctity of the
court; looks like this was more important for justices than that the
Roe v. Wade liberty was something they really believed in
d. CASEY’S IMPACT ON ROE
i. Most important part of opinion is that right of woman to have an
abortion BEFORE viability without undue right of interference
from the state – state can’t impose undue burden or substantial
obstacle to a woman’s right to choose prior to viability.
ii. undue burden isn’t the same thing as rigid trimester system of Roe
v. Wade – rejection of the trimester system in favor of “undue
burden and prior to viability” standard – if pre-viability state
poses restriction that amounts to less outright ban, there is a favor
in presumption of that restriction.
1. To prevail under undue burden standard, you must broke
that restriction would prevent significant # of abortions –
standard amounts to ban somewhat.
4. Camps on Court in Making Determination
a. Descending Order
i. Privacy – Super heightened liberty interest – Blackmun and
Stevens
ii. Liberty Interest (joint opinion) – “liberty with punch” – if were
just garden variety liberty than would not have struck down the
spousal notification – When the joint opinion uses the word
“liberty” they are talking about a heightened form of liberty – but
not as heightened as “privacy”
iii. Dissent – Rehnquist, etc.
1. even they don’t deny that there is a liberty interest of sort in
deciding, it’s just a low level of liberty interest that can be
overridden if the state has a rational relationship to the
government interest (which almost everything passes)
iv. When the court categories as right to privacy applies strict scrutiny
and will be struck down
v. Liberty - If the court categorizes as having a vanilla liberty interest,
(Rehnquist dissent), then if the state has a rational reason to
undertake liberty and less likely to strike
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 vi. Liberty with Punch – when they say liberty but look closely at the
actual impact they are applying a stronger level of scrutiny than
dissenters; they call the same thing , but the punch is the higher
level
5. In Critiquing joint opinion as questionable, Rehnquist mocks the joint opinion
with tribute to Stare Decisis, he says you say you are adhering to stare, what do
you mean?
a. Roe said that the right to choose is a right of privacy and you’re not
calling it this anymore
b. Roe says if encroach on interest must pass strict scrutiny which you’ve
done away with and you’ve also done away with the trimester system
c. How is this Stare decisis is what Rehnquist is saying given that you’ve
altered everything?
6. You have the collision of the 2 fundamental principals – the courts counter-
majoritarian aim v. the substantive due process aim of the traditions and collective
consequences of people and what does society as a whole think which is also
important
a. Scalia would say that if we are talking about extrapolating from broad
language of liberty the right to have an abortion, this needs to be measured
against the traditions of society and if the broad majority of people haven’t
recognized such a right than it can’t be teased out of the constitution

c. Family and Lifestyle Interest

- Privacy of family life is a fundamental right. Court applies strict scrutiny to govt interference with
personal privacy in these areas.
- INTRO CASE f/ Moore-
o Veltaire v. Boras - zoning ordinance allows only single-families. Challenged as violating
substantive due process. Court upholds ordinance under “rational relationship” test – govt’s
justification of “single families will prevent congestion/overcrowding” is not a perfect fit b/w
rationale and justification – huge family of 9 ppl allowed, but 3 single ppl CANT live there!
Heightened scrutiny would overturn.

A. Moore v. City of East Cleveland – Crazy Ass Zoning Ordinance Rejected

1. FACTS
a. Another city zoning ordinance f/ narrowly-defined categories of families
puts grandmother living with grandsons charged w/ criminal violation b/c
they don’t fit the statutory definition of a “family.”
2. HOLDING (Powell)
a. Court applies strict scrutiny, as govt is intruding on choices of family
living arrangements and relationships – statute struck down, as it at
BEST works only minimally, if at all, to reduce overcrowding/traffic.
b. Invokes substantive due process
c. Distinguishes from Veltaire ordinance because this invades or encroaches
on the family in which the Veltaire opinion had.
3. NOTES
a. MUCH more heightened strict scrutiny in this – plurality is read to
raise rights b/c they fall under substantive due process – rights that fall
under childrearing and other protecting procreative rights.

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 i. A slightly unusual instance where 4 members of the court are
willing to call it “substantive due process” instead of talking
around that term

B. Zablocki v. Redhail – The Right to Marry

1. ISSUE – May state protect welfare of out-of-custody children by denying
marriage license to persons who fulfilling their support obligation to those
children- i.e. “prove that child is not a public charge”?
2. HOLDING – NO – marriage is a fundamental right, and significant interference
w/ it is allowed ONLY if closely tailored to protect SUFFICIENTLY.
IMPORTANT state interests.
a. Even if state interests in protecting kids are valid, the means used by state
unnecessarily impinge on fundamental right to marry.
3. NOTES
a. Confusing - court strikes this down on “Equal Protection Grounds”
b. CONCURRING OPINION – Stewart – C’mon its substantive due
process! Let’s call it that! Once again state trying to intrude too deeply
into intimate personal rights covered under substantive due process, and
we have a duty to protect under that.
i. In cases which affect substantive due process rights, courts will
apply strict scrutiny
c. LIMITATIONS ON MARRIAGE HOLDING
i. “We’re not saying that ANY restriction on marriage will result in
strict scrutiny – traditional state age requirements and forbidding
bigamy/incest are ok.
d. Keep in mind for exam that we have not taken up officially the doctrine of
equal protection; even though they call these equal protection we can use
cases to back up substantive due process
C. Lawrence v. Texas- Sex is a fundamental right
1. FACTS
a. Texas statute bans gay sex. Issue is whether sexual relations w/n the home
fall within the cluster of non-economic substantive due process rights that
the court has been protecting since Meyer?
2. HOLDING
a. Court first retraces the history of decisions concerning intimate conduct
and rights – Griswold = right of privacy/use of contraceptives. Roe and
Casey – court held that Casey broadly recognized personal, non-
economic rights as having protection from govt interference. (Seem to
assume the conventional family)
b. This is NOT a case about merely the right to engage in this specific act –
the real question here that we should be confronting is whether the
govt may whether govt can define the meaning of a personal
relationship absent an injury to a person or the law it protects”- NO
i. This holding overrules Fowler, an earlier decision where they
upheld a ban on homosexual sodomy as an individual act (even
though statute disallowed ALL sodomy, court interpreted it as only
banning homosexual sodomy)
ii. White: observes that protection of homo conduct has not been a
mainstay of civilization which he is right about; it is a historically
accurate fact to say that official tolerance or laws recognizing the
right to gay conduct are of recent vintage; therefore his conclusion
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 is that there is nothing const. defective about Georgia giving effect
to a long standing moral philosophy about moral conduct.
iii. Blackmun dissent: if all this statute has going for it is that the law
has been around for long time and represents majority beliefs it
must fail in assertion of the liberty interest being asserted in this
case; if all it took to sustain law is that represented moral view
point of majority then every law would be up to challenged b/c
nearly every law or statute embodies a moral judgment (education
good, drugs bad; this is what laws are). Blackmun says there needs
to be something more than this to sustain a law.

3. NOTES
a. DEBATE OVER JUDICIAL AUTHORITY TO DETERMINE
VIABILITY/MORALITY OF STATUTES
i. Lawrence majority keeps going back to Hardwick dissent – if the
moral choice of the majority alone is a sufficient reason to
uphold a law, than virtually ALL laws are going to survive
constitutional challenge
1. There are relatively few laws that are going to be n
violation, since most are the representation of the
majority
ii. Opposite is ALSO true – laws are expressions of moral
viewpoint – education is good, clean air is good. Criminal law –
murder is bad, etc. Obviously, the fact that a law embodies a
moral preference cant be grounds for invalidating a law b/c then
ull strike down ALL the laws
b. SEX REGULATIONS OK AS LONG AS THERES COERCIVE HARM
i. Lawrence does not mean that all sex regulations are going to be
invalidating b/c they violate substantive due process – i.e.
polygamy, incest, prostitution.
ii. STERN: Court would reject challenges to these statutes and
distinguish them, b/c in all these other categories you can
indentify a HARM that is created, and the state can justify that
the right/interest in the intimate association isn’t NEARLY as
compelling as in lawrence.
c. LAWRENCE AND GAY MARRIAGE
i. Majority says – no this case has nothing to do with gay marriage –
dissent – of COURSE it does! All the sodomy arguments can be
just as easily applied to state prohibitions on gay marriage!
Lawrence opinions leads to conclusion that bans on gay
marriage can invalid.
ii. STERN: ct. will not strike down legislation that refuses to
acknowledge gay marriage.
1. Logic will be distinction b/w intrusion into lives of ppl
iii. Scalia’s dissent – what are the implications on Gay marriage or
state’s refusal to accept
(i) Majority opinion says has nothing to do with this

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 (ii) Scalia says that is does; every single argument to strike
down law can be applied to evoke state’s refusal to section gay
marriage
(iii) It’s ironic that this is one thing that gay advocates and he
would agree with
(iv) However, safe prediction that court will not do this; they
will ldistinguish between law struck down in Lawrence that
actively interfered with relationship and a state law that
withholds a particular benefit from people that engage in conduct
1. this will not be unprecedented – abortion in Mayer
and , court upheld provision for not giving medical aid for
those in abortion; the gove’t does not have to help you pay to
get abortion
1. the court will likely engage in
similar
d. CONFUSING ASPECT OF LAWRENCE OPINION
i. Its not really clear what level of scrutiny the court is applying here
– at face value, its merely aplyingh “raitonal relationship” test –
other structiny – heightened “liberty with punch” scrutiny – not
STRICT, but higher than normal –

VII. Revival of 14th Amendment Priviledges or Immunities

Clause (Saenz v. Roe); Procedural Due Process
Distinguish Article 4 Privileges and Immunities – Discriminating against out of state residents in favor
of in-state residents

A. Saenz v. Roe – 14th amendment P+I Clause RESURRECTED!

1. FACTS
a. California statute said that when you moved to the state the first year you
got the welfare payment you would have received in your last resident
state (BUT only when the prior state paid less in welfare benefits
i. Cali’s official stance – reason we have to delay welfare to ppl
from other states is that “We’re trying to deter fraud” – i.e. people
come to cali saying they’re gonna stay, but really just want our
higher welfare benefits, after which they’ll leave
ii. Cali’s real stance: keep poor ppl from coming to Cali.
2. HOLDING
a. Statute struck down because of the ends, not the means. Court
acknowledges state’s valid justification of protecting their welfare system
from crooks, but hold that these restrictions on welfare benefits impinge
on constitutional right to travel (one of the components of P+I clause).
i. Const right to travel: travelers from other states have “right to
be treated like members of that state”
1. Cali regulation treats out-of-state travelers
DIFFERENTLY from residents.
- The states cannot create a hierarchy between its residency. The exception with
this is that they can distinguish portable benefits – like in-state tuition
3. NOTES
a. P+I A GOOD FIT INSTEAD OF DCC
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 i. Explicit discrimination under dormant commerce clause – STERN
feels that court adopted priviledges and immunities clause route for
a few reasons
1. #1 – DCC – tacky to equate movement of people w/ movmt
of goods – weird to treat them w/ same doctrine
2. #2 - In DCC, Court is making a guess as to what Congress
would do in this situation – in theory and practice, even tho
courts can decide one way, Congress can always
specifically override them after the fact- here, they wanted
their decision to stick
b. RIGHT TO INTERSTATE TRAVEL = STRICT SCRUTINY TEST
i. Slaughterhouse cases completely destroyed 14th amendment priv
and immunities clause – this court revived it – this court held that
Slaughterhouse decision left that Privileges and Immunities clause
left ability to move from state to state w/o undue discrimination
1. When a state adopts a measure like this that so directly
impinges upon right to interstate travel under Priv and
Immunities clause, we will apply strict scrutiny rest
a. SS – is there an EXTREMELY TIGHT FIT
between the means chosen and end (the goal) -
when court applies strict scrutiny, its expecting
almost a PERFECT match b/w rationale and statute
– therefore almost all statutes brought before the
court under strict scrutiny fail this analysis.
c. STATUTE’S INCONGRUITY UNDER STRICT SCRUTINY
i. STERN: i.e. you have someone coming from NJ, and they
DIDN’T need welfare when they got to Cali, but something
terrible happens after they get there and then they need it – in this
case, even tho they don’t even remotely fall into the freeloader
category, they will get fucked by this statute by making them
get the NJ level of welfare – THIS IS THE INCONGRUITY
b/w RATIONALE AND STATUTE = a lot more ppl would be
adversely effected than just those that are the target of the
statute.
d. WELFARE PAYMENTS = NONPORTABLE
i. The Question is – WHAT is the distinction b/w these two
categories of statutes?
1. Portability – state can require reasonable waiting period f/
benefits – like college aid- b/c their education is a portable
asset that will benefit them wherever they go!
2. Non-portability – welfare benefits – you can’t take it with
you, they are consumed immediately – in a practical
sense, when you go to Cali and get those benefits, you are
going to consume them within California (i.e. welfare
money for food)
B. WHAT IS COURT TRYING TO SAY ABOUT 14th AMENDMENT ?
1. There’s a general principle in 14th P and I clause that state CANNOT distinguish
among different categories of residents - new and old , etc – there’s a general
presumption against treating sub-classes of residents who haven’t been there as
long as being inferior on the totem pole

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 a. HOWEVER, state CAN show that a reasonable waiting period is a
reasonable means to protect against people trying to take advantage of the
system – i.e. welfare gypsies – but its difficult to prove this, b/c the court
is applying a strict scrutiny test
i. Dividing line is courts notion of portability – education =
portable, welfare = non-portable
2. State cannot maintain a caste system amongst its residents – once you move to a
state, state can’t put an asterisk next to your name and hold you at a lower level
than settled residents – this is the lasting effect of this case concerning the
Privileges and Immunities clause – limited exception of student tuition.

Extra-textual Right
- Example of court’s simply inferring right to travel out of the14th Amendment. Stern says you can also
draw this from the larger context of the Constitution and its fundamentals. Individuals should be free to
choose their state without encountering restrictive barriers.

b. Procedural Due Process

- 14th and 15th Amendments protect against the deprivation of “life, liberty, or property” WITHOUT DUE
PROCESS OF LAW – procedural due process protects a range of liberty and property interests outside
the criminal context.
- Courts have abandoned definitional approach of whether interest can be term a “right” or privilege” –
the scope of liberty and property rights protected by due process is broad.
o the epitome of PDP is where gov’t has given you some benefit – i.e. welfare, social sec
benefits, gov’t employment etc – and NOW gov’t has says “you’re no longer eligible” and
they yank it away from you – question is WHAT PROCEDURES, if any, is gov’t obligated to
follow before it takes that benefit away from you in court – this is a snapshot of PDP as we will
cover it in this course. These are reviewed on a case by case basis.

- TWO QUESTIONS INHERENT IN PROCEDURAL DUE PROCSS (based on P+I clause)

o #1 – Is interest gov’t is taking away qualify as a “liberty” or “property” which is protected
under PDP?
o #2 – (if yes to Q1) What type of process/procedure are you entitled to if you want to
CHALLENGE that taking of liberty?

- REPUTATION UNDER PDP (Liberty Interest?)

o Reputation alone is not a liberty protected under PDP.
 i.e. Paul v. Davis- if govt wants to send out fliers that say “you’re a shoplifter” – your
liberty interests under PDP are NOT harmed
o STIGMA-PLUS EXCEPTION - Harm to reputation accompanied by ANOTHER harm
does fall under PDP. In this scenario, you are entitled to some process.
 i.e. government sends out press release- “We’re releasing P from his job because he’s a
filthy drunk” – there is reputation harm plus a physical liberty harm (being fired from
job plus being insulted).

o PROPERTY INTEREST UNDER PDP

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 Property interests, unlike liberty interests, are NOT directly protected/created in the
Constitution. Property interests are usually created by independent sources such as
state law, and include interests already acquired in specific benefits (i.e. govt jobs).
• i.e.- Stern example – if you have govt job, you MAY have property interest in that
job – May, not MUST – just having a job doesn’t necessarily mean u have
property interest – in order for you to have a property interest in that job for
PDP, gov’t/state must have given you an EXPECTATION that you’ll continue in
that job until there is cause for dismissal.
o There is no property interest until govt specifies that you will continue
to receive that benefit until you give them good reason to terminate it.
• IF property interest does qualify as property interest, procedural due process is
triggered and gov’t has to give SOME sort of hearing or process before depriving
you of that benefit.
o IN SHORT
 Step 1 – State decides whether they want to create property interest
in the first place (by determining what kind of position its going to
be)
 Step 2 – Once this expectation has been created by the state on the
part of the recipient, the COURT gets to review the process
situationally and determine if it meets due process
• i.e. if states’ process grants person due process for
terminating their state benefit.

A. Board of Regents v. Roth – Limits on termination obligations of govt under PDP

1. FACTS
a. Teacher hired for a one year fixed term at a public university, and was not
rehired at the end of that term and given no reasons why not. Tenure
doesn’t kick in until 4 years, and leaves all lower hiring decisions to
university officials.
b. P brings suit, claiming he was deprived of “life and liberty” w/o a
constitutionally-required hearing,
2. HOLDING
a. D had no obligation to rehire or provide termination obligations to P –
liberty and property interests under the 14th amendment are broad
BUT NOT INFINITE – gotta draw the line somewhere!
i. Concept of “liberty” does not extend to an otherwise
NONEXISTENT right to be employed by a certain employer.
ii. There as no expectation or promise to rehire which is required
3. NOTES
a. NO PROPERTY INTEREST
i. Court holds that P had no property interest – P was given no
specific contractual interest in being rehired, NOR did state law
recognize any such property interest.
1. P’s abstract concern in being rehired is NOT a valid
property interest to be protected under 14th amendment.
ii. Best known example of interest – tenure in a public university;
once one gains tenure you can continue in the position until such
time as there is cause to dismiss; this is conspicuous b/c the
threshold of what is cause for taking away the property interest in
the position is very high

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 1. review gotten benefit from gov’t and they have
communicated that have benefit until cause to take away

B. Arnett v. Kennedy(overruled in Loudermille)

1. FACTS
a. Challenge by former federal employee to the procedures by which he was
dismissed.
2. HOLDING
a. Plurality: where the legislation conferring the substantive right ALSO
sets out the procedural mechanism for enforcing that right, the two can’t
be separated.
i. B/c state law created the property interests, P’s property right
is conditioned on the legislature’s choice of procedure for the
termination of the right.
ii. If property rights flow from exclusively from state related
mechanism, why can’t the state gov’t determine the set of
procedures that they will take.

C. Cleveland Board of Educations v. Loudermill- 2 Step process re-emphasized.

1. FACTS
a. Govt-hired security guard hired after writing on application that he had
never been convicted of a felony – 11 months later employer discovered
he was a felon, and fired him.
i. Applicable state law was that he could only be fired FOR
CAUSE
1. i.e. property right created.
2. HOLDING
a. State law created property rights in P’s job by allowing him to only be
fired “for cause – under the due process clause, once property right
exists it cant be taken away unless constitutionally adequate measures
are taken (i.e. termination hearing of some sort).
3. NOTES
a. DIGNITY REQUIRES DUE PROCESS
i. We have due process not just to determine whether this person
deserves to lose benefit, but b/c due process is an important
fundamental value in and of itself
1. Dignitary interests – its part of basic concept of due
process that if you are dismissed from your job for being
chronically late, it is fundamental to individual dignity that
you have a power to respond to that charge and tell YOUR
side of the story.
2. When it comes to determining what sort of property or
procedure is valid, the courts are the best suited to
address this question.
b. JUDICIAL BALANCING TEST FOR AMBIGUOUS CONST
PROVISIONS
i. one of the modes the court employs is to weigh one
consequence v. the opposite – if you do that in this instance it
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 comes out pretty strongly in favor that state doesn’t have
unrestricted plenary power to determine whatever positions or
none at all employee has concerning his termination or taking of
benefits
1. Unlimited state power could be bad: “we’ll hire you as a
teacher until we decide that there’s cause – we decided
cause exists b/c we looked at crystal ball.”

i. It is up to the state in first instance whether to confer an property interest of

benefit or public employments, BUT once having done so it is up to the court
to weigh whether the process has been provided for whether the cause exists
measures up to due process

c. PART II – Now that a property right has been established, its time to decide whether the
state’s termination procedure is adequate.
- MAIN QUESTION - what kind of procedure features does that kind of hearing have to have? What will
court require?
o i.e. HEARING SPECIFICATIONS - how formal must it be? How much does state hearing f/
termination have to resemble a real trial? OR how informal must it be –what’s the timing for
this hearing?
- PREFACE MATERIAL
o Goldberg v. Kelley- as demanding as the court ever got in this area
 Anytime the state proposed to terminate welfare benefits, they had to hold a live, formal
evidentiary hearing to determine whether there was cause to terminate benefits.
• Formal, trial-like – witness, cross-examination, etc

 Since Goldberg v. Kelley, trend has been towards creating more informal hearings –
trend has been towards giving state more leeway in what sort of hearing they gotta
do

d. Matthews v. Eldridge – MODERN COST/BENEFIT WEIGHING TEST FOR PROCESS

1. FACTS
a. Disabled person gets social security benefits revoked by letter.
2. HOLDING –
a. Gov’t does NOT have to conduct formal, goldberg-ish hearing f/
termination of welfare benefits
i. As long as terminated person gets a chance to be heard, you
don’t need to give them a complete live hearing. Adequate
notice is fine.
3. NOTES
a. Court applies COST /BENEFIT ANALYSIS – we’re going to weight 3
major factors to determine whether termination process is adequate
i. #1 – How import is the prop interest – how much will person
suffer from losing benefit
ii. #2 – Look at how much of a risk of erroneous deprivation if
process doesn’t have specific feature – OR how much more
likely is it going to be that we will have a accurate factual
procedure if we add the process the claimant is looking to add

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 iii. #3 – Public Interest – Burden on gov’t. of having to include the
particular procedure that claimant is demanding – i.e. cost, or
just hassle – time, etc.
1. This is a weighing/balancing test the court looks at in this
situation
2. Requiring live cross examination could raise the cost to the
gov. of running the program significantly which could
reduce the benefits to the people.
b. TEST REPRESENTS MINIMUM REQUIRED PROCEDURE
i. These factors and the conclusion the court reaches tell what is
the MINIMUM procedure require by the 14th amendment and
the due process clause – state can decide to provide MORE
than what court requires
1. This is just a floor – the least- that the state can provide.

c. STERN: Factor court takes into account in hearing is – is the injury the
person is going to suffer as a result of the benefit deprivation
i. Represents a high threshold f/ liability
1. Principal question is what process govt has to provide at a
minimum
2. If your kid was in public school and the teacher breaks his
leg, then you can sue and that $ will make you whole.
d. Criticism: due process is not just about accuracy in factfinding; also about
dignity & treating individuals fairly when making important decisions
about their lives; test doesn’t recognize this

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