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1) Constitutional Interpretation and Judicial Review

a) Constitution
i) Why?: Response to the weakness of the decentralized and state-centric Articles of
Confederation; Necessity of stronger, unified national govt for foreign affairs, defense,
and commerce
ii) Structure
(1) Art I: Congress
(2) Art II: President
(3) Art III: Judiciary

b) Constitutional Interpretation: Constitution is short and vague (treason is the only term
defined); designed to be adaptable to changes over time (Marshall); interpretations
based on:
(1) Text: express words and silence
(2) Structure of Govt (Federalism): how the constitution arranges/allocates power
vertically (federalism) AND horizontally (separation of powers/checks and balances)
(3) History/Intent of Framers & Ratifiers: look to Federalist papers, historical context
(not usually clear)
(4) Practice: how has the judiciary and federal govt generally interpreted
(5) Precedent: previous Court holdings (preserves judicial resources, promotes
stability/consistency, BUT obstacle to adaptation)
(6) Principles/Purpose/Policy embodied in Constitution
(a) Includes promoting general welfare, but this is NOT an enumerated power (only
(i) Govt cannot simply regulate behavior, except pursuant to one of its
enumerated powers (commerce, spending, etc.)
c) Republic vs Democracy
i) Republic operates via election of public representatives to govt (Federalist 10)
(1) Superior to democracy b/c it inserts an intermediary b/t the passions/factions
of the people themselves, and results in the election of the best and brightest
politicians with a national orientation (fear of tyranny of majority)
(2) Large, diverse populace less likely to be controlled by majorities; compromise
required to govern, threat of losing power will force national compromise
(3) Federalist 10 makes no mention of judiciary, implying that STRUCTURE of
govt protects individual rights and not the courts
ii) Democracy operates via direct vote of the people

d) Current Justices on the Supreme Court

i) John Stevens (Ford)
ii) Antonin Scalia (Reagan)
iii) Anthony Kennedy (Reagan)
iv) David Souter (HW Bush)
v) Clarence Thomas (HW Bush)
vi) Ruth Bata Ginsberg (Clinton)
vii) Steven Breyer (Clinton)
viii) Samuel Alito (GW Bush)
ix) Chief Justice Roberts (GW Bush)

i) Principle:
(1) The federal judiciary (supreme court) is charged with interpreting and applying the
constitution and legislative enactments, therefore the court is also charged with
determining the constitutionality of those legislative enactments
ii) Preamble and Popular Will:
(1) The “people” ratified the constitution, NOT the states OR congress, therefore
neither the states nor congress can transgress the constitution
iii) Political insulation:
(1) The judiciary is also insulated from political pressures/coercion

iv) Marbury v Madison, 1803 (judicial review)

(1) Principle:
(a) It is emphatically the province and duty of the judiciary to say what the law is.
(b) Judges, NOT the STRUCTURE of Govt, protect liberty (by monitoring
constitutional transgressions by the other branches).
(c) The original jurisdiction of the Supreme Court CANNOT be enlarged/abridged.
(2) Facts:
(a) Pres. Adams signed and sealed Marbury’s commission, and a vested legal right
was created in Marbury and denial of that right was entitled to legal
(b) The delivery of the commission was NOT a political act immune from legal
enforcement, but a Legal One (contra Jefferson).
(c) A writ of mandamus was appropriate under the Judiciary Act, however, the
authority created in the Supreme Court under the Act was unconstitutional b/c
the Constitution’s delineated and exhaustive/exclusive and unchangeable
original jurisdiction for Supreme Ct, and Judiciary Act contravened the
constitution by enlarging original jurisidiction (Marshall: intent must have been
to create permanent original jurisdiction otherwise nothing would have been said
at all).
(d) Judiciary (supreme court) applies the law, and where both constitution and
federal law applies, the judiciary must choose which is paramount and the
constitution is always paramount. Constitution is a written document for a
reason, ie intended to withstand time.
(e) If legislature could change constitution, it would be equivalent of statute/other
laws. Oaths of office swear to uphold constitution first. Contra to Fed #10,
judiciary, NOT structure of govt, protects individual liberty, b/c it is the judiciary
that interprets the law in applying it (supremacy clause only applies to fed/state
conflicts, not intra-federal branch conflicts)
(3) Holding:
(a) Where there is a conflict b/t a statute and the constitution (or a constitutional
interpretation by the SCt-Dickerson), the constitution wins out (paramount
written constitution, popular will), and the Court has the authority (and duty) to
declare the statute unconstitutional and refuse to enforce it.
(b) “It is emphatically the province and duty of the judicial dept to say what the law
is,” ie it is the court and NOT the legislature that determines the constitutionality
of a statute.
(c) The court is insulated from political process and thus has the ability/duty to
enforce the constitution to protect against majority transgressions, ie to keep
the legislature within its constitutionally assigned authority.
v) Cooper v. Aaron, 1958 (judicial supremacy)
(1) Principle: Constitutional interpretations by the Supreme Court are SUPREME and
binding on all parties (considered part of the constitution, which is binding on all
parties); may NOT be overturned by Congress
(i) The Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall
be the supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.
(b) Note: Inasmuch as we recognize judicial supremacy, we are ceding power to the
unelected judiciary, BUT it protects us against legislative abuses by allowing for
recourse via the courts
(2) Facts:
(a) Arkansas state officials claimed they were not bound by federal desegregation
(3) Holding:
(a) Constitution is binding on all parties (Supremacy Clause), and Supreme court is
the interpreter of constitution, therefore, Supreme Court interpretations are
binding on all parties (public has accepted judicial supremacy and violation has
political costs).
(i) The federal govt (via the Fed judiciary) MAY commandeer state legislatures,
executives, and judicial officers, ie force the state govt to follow its orders
based on its role as Constitutional Interpreter and the Supremacy Clause

2) The Judicial Power
a) Article III, sec 2, cl 1 - The “Cases and Controversies”

b) Court will NOT issue Advisory Opinions

i) Underlying Rationale
(1) Separation of Powers
(a) Task of giving advice for legislation is assigned to either legislature or executive
(i) But NOT to judiciary
1. Letter from Justices to President Washington August 8, 1973
(2) Need for Focused Controversy
(a) The judiciary must decide issues which are focused and specific
(3) Need for adversarial parties
(a) Adversarial parties have vigor and will present issues as comprehensively as
(4) “Strict Necessity”
(a) Court only addressed constitutional issues when strictly necessary

c) Standing:
i) Practice/Precedent: Standing case law is NOT consistent but based on the Court’s
considerations on a case by case basis ( considering floodgates of litigation, judicial
interference, etc.)
ii) Constitutional elements (Lujan v. Defenders of Wildlife)
(1) Injury in FACT
(a) Injury must be:
(i) Concrete or particularized (vs. general or vague)
(ii)Actual or imminent (vs. speculative or remote)
1. Not enough if the harm is speculative/in the future
(b)Party seeking review must be himself among the injured
(c) When plaintiff is a STATE acting on behalf of citizens, standing
requirements may be relaxed
(i) Massachusetts v. EPA
1. Facts: MA and 10 other states sued the EPA, arguing the agency was
required under a congressional statute to issue regulations that would
limit emissions from cars
2. Holding: MA had standing because would pose injury to coastal areas
(2) Causation
(a) The injury must be “FAIRLY TRACEABLE ” to the conduct of the D (policy and
other concerns will come into play here)
(i) Massachusetts v EPA standard: MEANINGFUL CONTRIBUTION is sufficient,
primary/exclusive/sole causation is not necessary (eg, contribution to rising
sea levels)
(ii) Allen v. Wright: If causation is too attenuated, not sufficient
1. Suit against IRS that it failed to fulfill its obligations to deny tax exempt
status to racially discriminatory private schools
(3) Redressability
(a) A favorable decisions is LIKELY to redress the injury (absolute proof of redress
is not necessary)
(i) Massachusetts v EPA standard: SOME mitigation of harm is sufficient
(complete redress unnecessary), eg mitigation of rising sea levels
(b) If redressability is too speculative, not sufficient
(i) Allen v. Wright:
(4) Note: causation and redressability inquiries will generally yield the same result

iii) Prudential elements

(1) Courts have imposed limits:
(a) No 3rd party standing
(i) “The plaintiff generally must assert his own legal rights and interests and
cannot rest his claim to relief on the legal rights or interests of third parties
1. Interchangable economic interests
2. Close relationships/significant identity of interests with the rightholder
(b)No “Generalized Grievances”
(i) Principle
1. The Court has long declined to adjudicate constitutional claims at
the behest of a plaintiff who is merely one of millions of
taxpayers or citizens interested in resolving constitutional doubts
about governmental action
i. Harm cannot be the SAME/UNINDIVIDUATED as suffered by millions
of citizens
1. Frothingham v. Mellon
a. Principle
i. Taxpayers do not have right to enjoin the Secretary of the Treasury
from making conditional grants to state programs to “reduce
maternal and infant mortalities” because the interest of the federal
taxpayer in the monies of the treasury is “shared with millions of
others; is comparatively minute and indeterminable; and the effect
upon future taxation is too remote, fluctuating, and uncertain”
2. US v. Richardson
a. Principle
i. Taxpayer does not have standing to claim that a law keeping CIA
expenditures secret violated Art I § 9 that required to keep a regular
statement of account of expenditures
3. Schelesinger v. Reservists Committee to Stop the War
a. Principle
i. Past and present members of the military lack standing to
challenge the membership of certain Members of Congress in the

(c) Separation of Powers issue
(i) In Lujan Scalia suggested that conferring standing on citizens to compel
governmental enforcement action “unconstitutionally transfers from the
Executive to the courts the responsibility to ‘take care that the laws
be faithfully executed”
1. (Lujan v Defenders of Wildlife): it is NOT the duty/responsibility of the
Courts to vindicate the public interest, ie the Courts may not act as
superintendants of the executive branch in faithfully executing the laws
a. Lujan Facts: Sec of Interior re-interpreted Endangered Species Act
requirement providing that every federal agency consult with Sec of
Interior to make sure that no species were jeopardized by agency
actions to apply ONLY to actions taken in US. D opposed but Ct denied
the Pl standing to sue b/c injury was not “imminent” and concerns over
separation of powers.

iv) Congress may confer standing

(1) “Congress has the power to define injuries and articulate chains of
causation that will give rise to a case or controversy where none existed
(i) Massachusetts v. EPA
(2) HOWEVER: Congress may NOT confer generalized grievance standings
(i) Separation of Powers issue (Lujan v Defenders of Wildlife): it is NOT
the duty/responsibility of the Courts to vindicate the public interest, ie the
Courts may not act as superintendants of the executive branch in faithfully
executing the laws
v) Cases
(1) Lujan v. Defenders of Wildlife
(i) Court clarifies elements of Injury-in Fact, Redressability, and
congressional conferred generalized grievances
(i) The Endangered Species Act required federal agencies to consult with the
Interior Department to ensure federal action did not jeopardize endangered
(ii) The Interior determined that this only applied to the US or at sea
(iii)Plaintiffs sued for injunction requiring Secretary of the Interior to apply this
Act worldwide
(iv) To support standing plaintiffs
1. Averred that they would suffer harm from federal programs overseas
2. Would not be able to go and see animals
3. Cited Congress’ citizen suit provision of the act which grants “any person”
the right to enforce the provision
(c) Holdings
(i) 1. Congress may not create right of standing based on generalized
grievance against gov.
a. Unconstitutional under Article III – federal courts may not hear case
where the plaintiff merely has a generalized grievance against
i. See Scalia’s comment above
b. Congress may not give power to courts that the constitution does not
c. Congress may create qualifications for an injury in fact
(ii) 2. Plaintiff did not show Injury in Fact
a. Some day may harm does not mean “actual or imminent injury”
(iii) 3. Plaintiffs did not show redressability (likely overturned by Mass v.
a. Other federal agencies not bound by judgment
b. No indication that foreign nations would reduce efforts harming
because the US did
(2) Massachusetts v. EPA
(i) Elements of Standing may be loosened when brought by a State
1. Because represents the interests of many
(ii) Injury must be Fairly Traceable to Defendant’s conduct
(iii) Court’s relief will be sufficient if some mitigation will occur
(i) EPA refused to enforce the Clean Air Act against motor-vehicle emissions
(ii) MA sued the EPA for this failure
(c) Holding
(i) Injury in Fact
1. Global warming had already caused a slight rise in sea level and the rising
seas have begun to swallow MA land
2. Injury will continue to grow over the years if sea level continues to rise
with increase in global warming
1. 6% of worldwide carbon admissions from vehicles was meaningfully
contributing to problem
(iii) Redressability
1. If MA receives the relief it is after, there the risk that the costal land will
be increasingly lost will be reduced to some extent
(3) Allen v. Wright
(i) Causations Issue
(i) Parents of black children attending public school sued the IRS for failing to
fulfill its obligations to deny tax-exempt status to racially discriminatory
private schools in their district
(ii) Parents claimed that, thru this, the IRS made it more difficult to desegregate
(c) Holding
(i) The injury the plaintiffs cite is not fairly traceable to the government’s
1. Requisite causation not met
(ii) Unclear how many racially discriminatory private schools receive tax
(iii)Entirely speculative the effect of withdrawal of tax exemptions will have on
desegregation efforts
1. Unclear that any white children would leave private school
d) Mootness and Ripeness
i) Mootness:
(1) Occurs when litigants who clearly had standing to sue at the outset of the
litigation are deprived of a concrete stake in the outcome by changes in
the facts or in the law FOLLOWING initiation of the claim
(2) Requirements
(a) There must be an actual controversy at all stages of review and not merely at
the time the complaint is filed
(3) Exceptions
(a)“Capable of Repetition yet Evading Review”
(i) Test:
1. The challenged conduct must be “too short to be fully litigated
prior to its cessation or expiration
2. The parties must reasonably expect that “the same controversy
will recur involving the same complaining party”
(ii) Example:
1. Abortions - Roe v. Wade
(iii) Voluntary cessation of the challenged conduct does not moot a
case unless it is absolutely certain that defendant will not resume
the challenged conduct
1. “A case might become moot [only] if subsequent events made is
absolutely clear that the allegedly wrongful behavior could not reasonably
be expected to recur” (Friends of Earth v. Laidlaw Environmental Services)

ii) Ripeness:
(1) Seeks to prevent premature adjudication and involves situations
where the dispute is insufficiently developed and is instead too remote or
speculative to warrant judicial action
(2) Key: Courts will NOT render advisory opinions
(3) Requirements
(a) Injury is sufficiently well-developed and specific injury is present (related to
injury analysis)

e) Political Questions:
i) The Court will not hear cases which involve non-justiciable
political questions,
ii) Factors to Consider: (Baker v. Carr)
(1) Commitment to another Branch of Government
(a) A “textually demonstrable constitutional commitment of the issue to a
coordinate political department”
(i) (Congress or President)
(b) Potential Examples
(i) Impeachment
1. This may prevent court from constitutionally defining category of “high
Crimes and Misdemeanors”
2. Nixon v. US
a. Walter Nixon not entitled to sue and request entire Senate to try him
for impeachment
(ii) Amendment to the Constitution
(2) Lack of Standards
(a)A “lack of judicially discoverable and manageable standards for
resolving” the issue
(b) Example
(i) Luther v. Borden
1. Guaranty Clause of Republican Form of Government
(3) Unsuitable Policy Determination
(a)The “impossibility of deciding [the issue] without an initial policy
determination of a kind clearly for non-judicial discretion”
(4) Lack of Respect for Other Branches
(a)The “impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due co-ordinate branches of
(5) Political Decision Already Made
(a)An “unusual need for unquestioning adherence to a political decision
already made”
(6) Multiple Pronouncements
(a)The potential for “embarrassment from multifarious pronouncements
by various departments on one question”
(7) Chaos Will Ensue
(a)Opening the door to judicial review of the procedures used by the
Senate in trying impeachments would ‘expose political life of the
country to months of chaos’
1. Nixon v. US
iii) Cases
(1) Baker v. Carr
(i) The fact that a suit seeks protection of a political rights does not
mean it necessarily presents a political question
(ii)Enumerates general characteristics of political questions (see above)
(i) Baker challenged state jurisdictional apportionment asking court to either
direct elections at large or reapportion districts because of population
discrepancy in political representation
(ii) Defendant asserted that this was a political question embodied by the
guarantee of republic form of government
(c) Holdings
(i) Not a political question
(ii) Here Baker asserts his right of equal protection are violated

(2) Powell v. McCormack

(i) Justiciable Issue
(i) House of Rep. refused to seat Powell’s based on committees’ finding that he
had wrongfully diverted House funds and had made false reports on
(ii) Powell claimed he met all the requirements of Art. I §2 cl. 2 (age, citizenship,
and residence)
(c) Holding
(i) Court found wrongful basis for exclusion from House as a justiciable
(ii) House only allowed to judge qualifications set forth in constitution (age,
citizenship, residency)
(3) Goldwater v. Carter
(i) Non-justiciable political question when the issue “involve the
authority of the President and the conduct of our nation’s foreign
relations” and was “a dispute between coequal branches of our
(i) Issue of whether president has the right to terminate a treaty unilaterally
(c) Holding
(i) Non-justiciable political question
(4) Nixon v. US
(i) Non-justiciable issue where Senate is given sole authority under the
constitution to try impeachments (Art I, §6)
1. Framers intended to sets of proceedings in impeachment (Senate
and then Criminal Trial)
2. Court’s review would be inconsistent with separation of powers
a. Impeachment designed to be the only check on the Judicial
Branch by the legislature
b. Judicial review of such would eviscerate this check and balance
3. Opening the door to judicial review of the procedures used by the
Senate in trying impeachments would ‘expose political life of the
country to months of chaos’
(i) Issue – does the Senate have the authority to allow a committee of Senators
rather than the whole Senate hear and report upon evidence against an
impeached officer
(c) Holding
(i) Non-justiciable political question
(5) Colman v. Miller
(i) It is a non-justiciable question of what is a reasonable time for
ratification by the states of a constitutional Amendment proposed by
Congress under Art. V.
(6) Bush v. Gore
(i) Court found the issue to be justiciable
(ii) BUT – many scholars have criticized this because “other institutional actors
were amply well positioned to deal with this claimed harm
1. Constitution assigns roles for state legislatures when a state ‘has failed to
make a choice of electors’
2. Pg 59

3) Federalism
a) Nature and Scope of National Power
i) Constitution: was framed to make up for deficiencies in Art of Conf by delegating
greater power to Fed/National govt, BUT is designed to prevent use of that govt by
factions (majority/plurality) for oppression
(1) Problems of pure democracy: tend to lead to factions, ie tyranny of majority
(2) Republicanism (Fed #10): creates a medium/buffer (elected representative
officials) that serves to prevent factions (or at least mitigate chances of success) b/c
elected officials are theoretically more federally/nationally oriented, deliberate,
above local interests, non-partisan

(a) Madison makes no mention of judiciary in Fed #10, implying that federal
republican govt structure will protect individual rights, NOT courts
(3) Bill of Rights: included in constitution to explicitly protect individual rights
(otherwise ignored in constitution)
ii) Federalism: Federal/National and State govts co-exist
(1) Federal/National govt is one of limited, enumerated powers, ie delegated
(does not include a general police power)
(a) Art I: Congress/Legislature
(b) Art II: President/Executive
(c) Art III: Judiciary
(2) State govt is limited only by constitutional prohibitions, ie inherent powers
(includes a general police power)
(3) Cooperative federalism: generally the fed & state govts work cooperatively; the
fed enacts broad regulation & relies upon states to administer
(a) Administration/conformity is not compulsive, but incentivized, ie fed gives
money for compliance and gives states the option to figure out how to
regulate/meet the fed goals (allows for local tailoring, experimentation)
iii) Rationale
(1) Pros:
(a) Federalism (two govts) allows for local tailoring of govt (eg, morality),
expression of local interests, greater representation of more diverse local
interests (not watered down by national issues), greater responsiveness from
representatives, govt experimentation, local administrative efficiencies
AND also allows for prevention of large special interest factions (forces national
compromises), national efficiencies of action, maximization of wealth
(2) Cons:
(a) Weak federal govt may result in ignorance/disregard of externalities,
slowness of action (free rider problems), diversity of laws may result in
inefficiencies in administration of justice/judicial system, inefficiencies for
commercial transactions/actors

iv) Federal constitutional analysis

(1) Does Congress have the power to act?
(i) Express power:
1. Is the Congress acting within a specific enumerated power? Art I, § 8
(Congress can only act within the Constitutional Congressional “sphere”,
ie Congress’ powers are limited to those enumerated in the Constitution)
(ii) Implied power:
1. If the end is legitimate (consistent with an enumerated power), are
the means adopted by Congress “necessary and proper” for carrying
out the power? (rational basis test under judicial restraint)
(2) If so, does the action violate a limitation on Congressional power (ie, bill of
rights, 10th amendment, etc.)?

v) Powers Vested in Congress by the Constitution

(1) Article I, §8
(i) “To lay and collect Taxes, Duties, Imposts and Excises, to pay debts
and provide for the common Defense and general Welfare of the
United States”
(ii)To barrow money on credit of the United States
(iii) To regulate Commerce with foreign Nations, and among the
several States, and with Indian tribes
(iv) To establish uniform Rules of Naturalization
(v)To establish uniform rules.... on the subject of Bankruptcies
(vi) To coin Money
(vii) To provide for the Punishment of counterfeiting
(viii) To establish Post offices
(viii) Patents
(ix) To constitute tribunals inferior to the Supreme Court
(x)To declare War
(xi) To raise and Support Armies
(xii) To provide and maintain Navy
(xiii) To make all Laws which shall be necessary and proper for carrying
into Execution the foregoing powers

vi) Doctrine of IMPLIED POWERS under “Necessary and

Proper” clause, Art I, Sec 8

(1) McCulloch v Maryland, 1819 (doctrine of implied powers)

(i) Constitution could not anticipate or include every conceivable
contingency, therefore it is deliberately short & vague.
(ii) Constitution is meant to be adaptable over time.
(iii) Congress must be given implied powers necessary (text, purpose: necessary
means convenient/needful) to effectuate legitimate ends.
(iv) Fed govt may exercise power that is not explicitly listed if
necessary to effectuate a legitimate exercise of power and
is not prohibited by constitution;
(v) “necessary” only means “convenient” “needful”, NOT
a. “Let the end be legitimate, let it be within the scope of
the constitution, and all means which are appropriate,
which are plainly adapted to that end, which are no
prohibited, but consistent with the letter and spirit of the
constitution, are constitutional.
i. Necessary and Proper Clause – Broad
- Constitution was intended to endure for ages and thus, was
adapted to address various human affairs
- Therefore, Congress’ judgment deserves deference so long as it
adopted means “which tended directly to the execution” of
delegated powers, or were “appropriate” and “plainly adapted” to
achieving legitimate ends
(b) Facts:
(i) Congress chartered 2nd Bank of US to help with national economic problems,
but charges of corruption led to political backlash.
(ii) MD enacted a state to impose a tax upon the National Bank, which the Bank
refused to pay,
(iii)leading MD to sue.
(c) Holding:
(i) Chartering of Bank constitutional based on practice & the doctrine of implied
powers under “necessary and proper clause” ,
(ii) Fed govt may exercise power that is not explicitly listed if necessary to
effectuate a legitimate exercise of power and is not prohibited
by constitution;
(iii) “necessary” only means “convenient” “needful”, NOT
1. (look at text, structure, precedent, intent);
a. a govt must be given power (implied) to effect those ends permitted
under enumerated powers;
b. constitution does not limit fed power to those “expressly” enumerated;
necessary & proper clause placed with § 8, NOT § 9 (ie, included with
powers, not limitations);
c. Constitutions are meant to survive through time (why else record as
written instrument) and therefore must be adaptable; a constitution
cannot anticipate every prospective contingency and therefore must
be vague to allow for adaptation; people, NOT states created/endorsed
the constitution, therefore it is binding upon the states (preamble
language, ratification conventions were not state legislatures);
(iv) chartering a bank is “incidental/necessary” to the power to raise revenue;
principle: flexibility and adaptation of constitution, judicial
deference to Congressional policymaking decisions, ie what is
“necessary and proper” is a legislative decision (judicial restraint)—


(1) Commerce Power before the New Deal

(a) Gibbons v. Ogden, 1824 (CHANNELS OF COMMERCE)
(i) Principle:
a. Commerce is defined as all commercial intercourse.
b. Congress may affect intrastate matters so long as the activity has a
connection with another state.
c. Supremacy clause invalidates local laws conflicting with
Constitution/Federal law.
(ii) Facts:
a. NY state legislature granted Ogden a monopoly to operate steamboats
b/t NY & NJ.
b. Gibbons began operating a competing line licensed under a federal
c. Ogden obtained injunction in NY court against Gibbons.
(iii) Holding:
a. Congress’s exercise of power was legitimate under the Commerce
Clause, ie it is constitutionally permitted to regulate ALL commerce
concerning more than one state (broad interpretation), where
commerce is ALL COMMERCIAL INTERCOURSE (not just
b. Congress’s actions may permissibly affect intrastate matters, so long
as activity had some commercial connection with another state.
c. Congress’ interstate commerce power is plenary and complete and
not limited other than by Constitution.
d. Injunction against Gibbons is invalid b/c where there is a conflict b/t
state law and legitimate federal law, the federal law is supreme
(Supremacy clause).

(b)United States v E.C. Knight, 1895 (Sugar Trust Case)(limiting

Commerce power under federalism-influenced by 10th amendment)
(i) Principle: Production is NOT commerce
a. Direct v. Indirect Test
i. Direct:
- “Contracts to buy, sell, or exchange goods to be transported
among the several States, the transportation and its
instrumentalities, and articles bought, sold, or exchanged for
the purposes of such transit among the States, or put in the
way of transit, MAY be regulated, but this is because they
form part of the instate trade or commerce
ii. Indirect
- Contracts, combinations, or conspiracies to control domestic
enterprise in manufacture agriculture, mining, production in
all its forms, or to raise or lower prices or wages might
unquestionably tend to restrain external as well as domestic
trade, but the restraint would be an INDIRECT result
(ii) Facts:
a. Under Sherman Antitrust Act, the federal govt sought to bar the
acquisition of 4 sugar refineries by the American Sugar Refining Co. b/c
it would result in American Sugar owning control of 98% of nation’s
sugar refining capacity, thus resulting in a monopoly.
(iii) Holding:
a. Production is NOT Commerce, instead commerce merely succeeds
b. The fact that an article is produced for interstate commerce does not
c. Otherwise, Congress’ power would extend to nearly all activity that
would affect interstate commerce.
d. (fear of overextension of federal Congressional power and mitigation of
state control/sovereignty)

(c) Houston E & W Texas Railway v US , 1914 (Shreveport

Rate Case)
(substantial effects doctrine permits regulation of
purely intrastate activity)
(i) Principle:
a. Commerce power extends to all activities that have a
substantial effect on interstate commerce, even if
activity is purely intrastate.
i. Congressional Authority extends to “all matters
having such a close and substantial relation to
interstate traffic that the control is essential or
appropriate to the security of that traffic, to the
efficiency of the interstate service, and to the
maintenance of conditions under which interstate
commerce may be conducted upon fair terms and
without molestation or hindrance.”
(ii) Facts:
a. Interstate Commerce Commission set rates for transport of goods b/t
Shreveport LA & TX.
b. ICC then sought to prevent RR from setting rates lower for intrastate
TX commerce than for interstate LA/TX commerce b/c it would result in
unfair discrimination of LA/TX commerce.
c. RR countered that Congress could not regulate purely intrastate
commercial activity.
(iii) Holding:
a. ICC had a right to regulate intrastate charges made by interstate
b. The commerce power included the right to regulate all matters closely
related to and having a substantial effect on interstate commerce.
c. The object of the regulation was interstate commerce, and the
regulation of intrastate activity was permissible as an incident to that

(d) Champion v. Ames, 1903 (The Lottery Case)(Articles of Commerce_

(i) Principle:
a. Commerce power may be exercised in pursuance of the general
welfare (eg, to eliminate public nuisance), and may regulate
articles of interstate commerce.
b. Act upheld b/c tickets are “articles” of interstate commerce
and thus subject to Congressional regulation.
(ii) Facts:
a. Federal Lottery Act prohibited interstate shipment of lottery tickets,
and the Act was challenged as an exercise of police power reserved for
the states.
(iii) Holding:
a. The suppression of nuisances to public health and morality is among
the most important duties of govt.
b. Congress in its discretion, regardless of motive, is free to decide what
is injurious to public health and has the power to guard the people
against such nuisances by regulating interstate commerce of the

(e) Hoke v US, 1913 (Prostitutes Across State Lines Case)

(i) Principle:
a. Congress has the power over transportation of things OR
people across states, and this power is plenary
b. Commerce power may be exercised in pursuance of general
welfare/morality (eg, prohibiting interstate prostitution), and
may regulate persons in interstate commerce.
(ii) Facts:
a. Mann Act prohibited the interstate transportation of women for
immoral purposes, which was challenged as an exercise of police
(iii) Holding:
a. Congress has the power over transportation of things OR
people across states, and this power is plenary (ie, no interstate
commerce power resides in the states, limiting federal power).
b. It may use any means that are convenient (judicial restraint), even if
the result has the quality of police regulation.

(f) Hammer v Dagenhart, 1918 (Child Labor Case) (hesitance to intrude

upon state control over production, & employer-employee
(i) Principle:
a. Production is not commerce, and while the Congress may
regulate articles in interstate commerce, it may not do so as a
pretext to regulation of production. (retreat from Hoke &
Champion, and validation of Sugar Trust case)
(ii) Facts:
a. Congress banned the interstate transportation of goods produced in
factories employing children.
b. A father obtained an injunction against enforcement based on
unconstitutional extension of commerce power.
(iii) Holding:
a. The goods regulated by Congress are harmless;
b. The object of the regulation is not goods in interstate commerce but
the production of those goods and employer-employee relationships;
the regulation of goods is a mere pre-text.
c. The production of goods is not commerce and may not be regulated by
(iv) Holmes dissent: The Congress may regulate articles in interstate
commerce, and its power to do so is plenary and NOT limited by the effects it
has on state sovereignty.

(2) Commerce Power and the New Deal, pre-1937

(conflict of power)
(a)Shechter Poultry v United States, 1935 (Sick Chicken Case)(limiting
commerce power)
(i) Principle:
a. Commerce power does not extend to purely intrastate
activities where there is only a tenuous and indirect affect
upon interstate commerce.
(ii) Facts:
a. National Industrial Recovery Act authorized President to adopt codes of
fair competition for trades/industry regulating minimum wages/prices,
max hours.
b. Shechter was charged with violating the provisions in NY.
c. Shechter bought its chickens within NY, and resold exclusively to NY
dealers (ie, all activity was intrastate).
(iii) Holding:
a. NIRA is unconstitutional as applied to Shechter b/c all interstate
transactions ended when shipments reached NY (ie, no further
interstate activity).
b. Moreover, there was no substantial AND direct affect upon interstate
commerce, only a tenuous and indirect affect if any.

(b)Carter v Carter Coal, 1936(limiting commerce power over production)

(i) Principle:
a. Production is not commerce;
b. Employer-employee relationship is a local issue that should be
left to the states.
(ii) Facts:
a. Bituminous Coal Conservation Act set max hrs and min wages for coal
mine workers, challenged as unconstitutional extension of commerce
(iii) Holding:
a. Act unconstitutional b/c it regulated production, which is NOT
commerce, even though materials would eventually be sold interstate.
b. The extent of effects on interstate commerce were irrelevant b/c there
was no direct logical relationship b/t regulation of production and
interstate commerce.
c. Also, employer-employee relationships are local evils to be dealt with
by the states.

(3) Commerce Power after the New Deal, post-1937

(judicial restraint)

(a) NLRB v Jones, 1937(adoption of relaxed judicial restraint &

the “substantial affects test”)
(i) Principle:
a. Commerce power may regulate PRODUCTION under
the substantial effects test (contra Carter Coal)
i. “Although activities may be intrastate in character
when separately considered, if they have such a
close and substantial relation to interstate
commerce that their control is essential or
appropriate to protect that commerce from the
burdens and obstructions, Congress cannot be
denied the power to exercise that control”
(ii) Facts:
1. National Labor Relations Board, under NLRA, tried to prevent Jones from
engaging unfair labor practices by discriminatory firing employees for
union activity at a PA production facility (only a few employees at a large
(iii) Holding:
a. Jones was interstate commerce in itself, ie it owned mines in several
states, owned RR and ships for interstate transportation, owned
warehouses in several states, but manufactured only in PA. B/c of the
multistate character of Jones,
b. a labor stoppage would have a substantial affect on interstate
c. therefore labor relations at the PA facility.
d. Production may be regulated under substantial effects test
e. (overruling Carter Coal)

(b)United States v Darby, 1941(overruling Hammer, police regulation of

(i) Principle:
a. Commerce power may regulate production.
b. Congress may regulate any intrastate/local activity if it
reasonably believes that doing so will effectuate an interstate
c. Congressional motive is irrelevant.
(ii) Facts:
a. Fair Labor Standards Act set min wages and max hours for employees
engaged in interstate commerce, and prohibited shipment of goods
manufactured in violation of the Act, and made it a federal crime for
employers to violate the Act.
(iii) Holding:
a. Congress power of interstate commerce is plenary and may not be
limited by exercise of state power (over production).
b. 10th amendment is “but a truism” of the federal structure of govt and
does not confer upon the states any powers.
c. Congress may impose conditions on the production of anything
that substantially affects interstate commerce (very broad
d. Congress’s motive (ie, pretext) is irrelevant to the analysis.
e. Finally, Congress may impose any conditions/prohibitions
which IT believes (rational basis) are related to the attainment
of the permitted end, EVEN if it involves control over intrastate
f. In other words, Congress may regulate any intrastate/local
activity if it reasonably believes that doing so will effectuate
an interstate regulation.

(c) Wickardv Filburn, 1942 (the “aggregation” principle,
extending powers permitted under NLRB)
(i) Principle:
a. Congress can regulate purely intrastate and non-
commercial (not exchanged) activity IF it believes
that it is necessary to effectuate a legitimate
interstate commerce regulation.
b. Initiation of the aggregation principle of substantial
effects analysis.
i. Aggregation Principle:
- Congress allowed to regulate an activity that,
taken in isolation, does not substantially
affect interstate commerce, if multiple
iterations of that same activity would
substantially affect interstate commerce.
(ii) Facts:
a. Agricultural Adjustment Act permitted Sec of Agriculture to set quotas
on wheat production/consumption on minimally qualified (size) farms
in order to prevent over-production and raise/stabilize prices.
b. Wickard owned a small farm and was fined for exceeding his quota
even though he used the wheat only for consumption/use on his own
(iii) Holding:
a. Congress sought to regulate the national wheat market, and it may do
so under commerce clause.
b. Consumption of home grown wheat is a large and variable factor in the
wheat market, and may have substantial affects on the wheat market
(wheat that is grown and consumed reduces demand), therefore
Congress has a rational basis for regulating home grown and
consumed wheat.
c. Even though Wickard’s actions alone did not have a substantial
affect on interstate commerce, taken together with similar
actions by others would have a substantial affect on interstate
d. Congress can regulate purely intrastate and non-commercial (not
exchanged) activity IF it believes that it is necessary to effectuate a
legitimate interstate commerce regulation.

(d)Heart of Atlanta v US, 1964

(i) Principle:
a. Motels located along national roadways are
INSTRUMENTALITIES of interstate commerce that
serve the channels of commerce
b. No actual findings of substantial effects are
necessary, only a rational belief by Congress.
(ii) Facts:
a. Civil Rights Act of 1964 prohibited discrimination based on race, color,
religion or national origin in public places, including any facilities
affecting commerce.
b. Any facilities which offered service to interstate travelers OR receives
a substantial portion of its food through interstate commerce was
considered to affect interstate commerce.
c. A downtown Atl motel refused to rent rooms to blacks in violation of
the Act.
(iii) Holding:
a. The Act is constitutional b/c discrimination has a substantial affect on
interstate commerce.
b. Even though there was no actual findings presented, discrimination by
motels/hotels will result in discouragement of blacks from traveling
c. Congress may regulate to promote interstate travel/commerce, and in
doing so may regulate local incidents thereof.

(e)Katzenbach v McClung, 1964

(i) Principle:
a. Valid exercise of Commerce power when restaurant obtains a
significant amount of food which has moved interstate
b. Commerce power wide-ranging and Court very deferential.
c. No actual findings of substantial effects are necessary, only a
rational belief by Congress.
(ii) Facts:
a. Civil Rights Act of 1964 prohibited discrimination based on race, color,
religion or national origin in public places, including any facilities
affecting commerce.
b. Any facilities which offered service to interstate travelers OR receives a
substantial portion of its food through interstate commerce was
considered to affect interstate commerce.
c. BBQ restaurant 11 blocks from interstate hwy discriminated against
(iii) Holding:
a. Act is constitutional as applied to restaurant b/c it rec’d some
of its food traveled through interstate commerce before
b. Moreover, discrimination against blacks in restaurants could
have a substantial affect on interstate travel.
c. Restaurants that discriminate against blacks lose interstate business,
travel is obstructed, and business in general suffers.
d. Congress had a rational basis for the regulation, and under
aggregation principle, restaurant discrimination substantially affects
interstate commerce.

ii) Current Doctrine: Retrenchment

(1) Rehnquist’s Revival of Limits on Commerce Power

(a) United States v Lopez, 1995(commerce power limited to

“commercial” activity)
(i) Principle:
a. Court concerned over the overextension of a Federal Police
Power under Commerce clause, esp. where it encroaches upon
Traditional State/Local concerns (federalist principles).
c. Commerce Power limited to “commercial/economic”
(rather narrowly defined) activity, or activity part of
a larger economic regulatory scheme.
d. First time in 60 years Court invalidated a federal statue on the
grounds that it was beyond Congress’ Commerce Power
e. Congress cannot utilize Commerce Power if one is
required “to pile inferences upon inferences in a
manner that would bid fair to convert congressional
authority under Commerce Clause to a general police
(ii) Facts:
a. Gun Free School Zones Act of 1990 made it a federal crime for any
individual to knowingly possess a firearm in a school zone.
b. Act contained no findings of link to interstate commerce, and no
jurisdictional “hook.”
c. Lopez was convicted under the Act and challenged extension of
commerce power.
(iii) Holding:
a. Act unconstitutional because it had not been demonstrated that
possession of guns in schools substantially affected commerce.
b. The activity being regulated was not itself “commercial,” and was not
part of a larger economic regulation.
c. The govt didn’t provide findings of a close link to interstate
commerce, although such findings are merely persuasive.
d. Govt’s argument that violence and fear of violence could affect
education and travel, which would affect economic productivity is
plausible, but would result in overextension of Congress’s power under
commerce clause, ie any activity that was related to economic
productivity (eg, family law) could be regulated by Congress.
e. Court was concerned with encroaching upon police power of the states
and decided that commerce power must be limited.
f. Where an activity is not “commercial,” part of a larger economic
regulatory scheme, or traditionally left to the states (eg, a police power
exercise), then the Court will be less deferential to Congress’s
(iv) Dissent:
a. Court should act with restraint and deference towards Congress using
the rational basis test.
b. Case law supports limited, tenuous relations to interstate commerce so
long as rationally related (eg, Katzenbach), and commercial/non-
commercial distinction is very difficult to draw.

(b) United States v. Morrison, 2000 (Violence Against Women

(i) Principle:
a. Court concerned over the overextension of a Federal Police
Power under Commerce clause, esp. where it encroaches upon
Traditional State/Local concerns (federalist principles).
b. Commerce Power limited to “commercial/economic” (rather
narrowly defined) activity, or activity part of a larger economic
regulatory scheme. Even actual findings of a substantial affect
are not dispositive.
c. The relationship to interstate commerce is too tenuous, and
essentially allows Congress to exercise a general police power,
which is inconsistent with the constitution (no federal police
power granted) and federalism (police power reserved in the
(ii) Facts:
a. Violence Against Women Act allowed women victims of gender crimes
to bring civil suits against perpetrators in federal court.
b. Congress included detailed findings of affect on interstate commerce.
c. A female sued under the Act, and the accused challenged the Act.
(iii) Holding:
a. The activity being regulated, ie violence against women, is not a
commercial/economic activity.
b. The fact that congress included detailed findings is not dispositive,
and in fact irrelevant where activity is non-economic.

(c) Gonzalezv Raich, 2005 (limits of Lopez/Morrison

retrenchment; economic classes of activity)
(i) Principle:
a. The regulation of Marijuana is within Congress’ Commerce
power because the production of the commodity meant for
home consumption, be it wheat or marijuana, has a substantial
effect on the supply and demand in the national market for
that commodity”
b. Court may have restored breadth of Commerce Clause power
that existed before Lopez and Morrison.
c. Congress may regulated a purely non-commercial
and intrastate activity if it has a RATIONAL BASIS to
believe that failure to regulate these instances would
jeopardize the success of the overall regulatory
a. Congress’ ability to regulation local marijuana
growing was derived from NECESSARY AND PROPER
i. “necessary part of a more general regulation of
interstate commerce”
(ii) Facts:
a. Controlled Substances Act made it illegal to manufacture, distribute, or
possess any Schedule 1 drug, which included marijuana.
b. CA established an exemption for physicians who recommended and
patients who possessed or cultivated marijuana for medical purposes.

c. Plaintiffs were arrested and sued to stop enforcement of the Act
challenging Congress’ ability to regulate noncommercial cultivation of
(iii) Holding:
a. The sale of marijuana as a whole had an effect on interstate commerce
b. Congress reasonably feared that its entire regulatory scheme of
marijuana would be undermined it Congress were required to exempt
purely local medicinal cultivation since some may leak into the market
and interstate commerce
c. Congress has the power to regulate the marijuana market, even to
make possession/cultivation illegal pursuant to this power.
d. As a result of this power, Congress can even regulate
intrastate, non-commercial activity if the failure to regulate
that activity would undermine the regulation of the interstate
market (see Wickard).
e. Congress had a rational basis for believing that regulating home
grown/consumed marijuana was necessary to effectuate the interstate
regulation, ie the growth and consumption of marijuana for personal
medical use is an essential part of a larger economic regulation.
f. “Economic” relates to the production, distribution, and consumption”
of commodities

(2) Current Doctrine after Lopez/Morrison

(Rehnquist’s formulation)
(a) Congress may regulate:
1. Channels of IC (eg, roads, waterways, RRs)
a. Examples:
i. Highways
ii. Waterways
iii. Air Traffic
2. Instrumentalities (eg, trucks, ships) OR Articles of
IC (things/people)
a. Things or Buildings that operate in or promote the flow of
people and good through the channels of interstate commerce
b. Examples
i. People, machines, and other “things” used in carrying out
ii. Hotels (Heart of Atlanta)
iii. Restaurants (Katenbach)
iv. Gas stations
3. “Economic” (Lopez/Morrison) “class of activities”
(Raich) that “substantially affects” IC in the
aggregate (Wickard)
a. But MAY include “non-economic” activities, EVEN if intrastate, IF part
of a LARGER economic purpose/regulation (“class of activities”) and
NECESSARY (convenient) for larger regulation to have effect (Raich)
b. Substantial effects test
i. Congressional Authority extends to “all matters having such
a close and substantial relation to interstate traffic that the

control is essential or appropriate to the security of that
traffic, to the efficiency of the interstate service, and to the
maintenance of conditions under which interstate
commerce may be conducted upon fair terms and without
molestation or hindrance.”
c. Aggregation Principle:
i. Congress allowed to regulate an activity that, taken in
isolation, does not substantially affect interstate commerce,
if multiple iterations of that same activity would
substantially affect interstate commerce.

(b) Which Category:

1. look at language of statute and the application of the statute in the facts
of the case (govt must prove that power is allowed under one of the three
categories, the third is the broadest)
(c) Standard of Review:
1. TRADITIONALLY -Rational Basis for belief,
a. NO actual proof necessary or dispositive either way (Judiciary is not
responsible for fact finding, not answerable to people, political process
checks Congressional overstepping)
2. Key Question:
i. Is the Congressional judgment rationally related to the
end/purpose of the statute (ie, could Congress have had a
rational basis for policy)? (highly deferential standard)
3. After Lopez/Morrison, deference may be reduced, esp
for non-commercial activities and activities traditionally
left to state control
i. Courts unlikely to give deference to what Congress believe, or even
found, to have a substantial effect on commerce
ii. The Court will decide for itself if the activity has a substantial effect
(d)Traditional Areas of State Police Power
1. Examples
i. Education
ii. Family Law
iii. General Criminal Activity
2. Consider:
a. Is the Congress exercising a General Police Power that encroaches
upon Traditional state/local concerns (family law, violence against
women)? If so, then under Rehnquist court precedent MORE likely to be
invalidated as overextension of Federal Power (under principles of
federalism & state sovereignty)

c) OTHER LIMITS on Commerce Power (10th and 11th

(1) 10th Amendment & State Autonomy

(a) 10th amendment:
1. “The powers not delegated to the US by the
Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people.

(b) The Anticommandeering principle (embodied in 10th

1. Congress May NOT:
(1) Force a state legislature to regulate in a
certain way (N.Y. v. US)
(2) Pass Legislation which ONLY effect the state
(2) Require state executive branch personnel to
perform ministerial functions of a federal act
(c) Restriction on Federal power:
1. modern cases have rarely made use of the 10th amendment as a limit on
Federal power, instead conferring upon it the role of mere tautology, BUT
this may change
(ii)Key Question:
a. Is an incident of state sovereignty protected by a limitation on an Art I
power under 10th amendment (policy question considering federalist
structure, allocation of power, and federal encroachment upon
traditional state/local concerns, countered by the view that the
primary protections of state power come not from the 10th
amendment but from the Political Process)

(d)National League of Cities v. Usury, 1976 (Respect for State Sovereignty

over govt employee relations)
(i) Principle:
a. Congress may not regulate a state AS a state by controlling its
traditional state functions, eg allocation of funds (for
(ii) Facts:
a. Congress made federal minimum wage and overtime rules applicable
to state and municipal employees.
(iii) Holding:
a. Congress could regulate private employers b/c wage/overtime
requirements would clearly affect commerce, BUT could not apply the
regulations to state actors b/c Congress may not exercise power to
impair the states’ ability to function as sovereign powers, ie to decide
for themselves how to allocate funds.
b. Otherwise, Congress could effectively control the states’ employment
decisions which are traditional state functions (protected by 10th

(e) Garciav San Antonio Metropolitan Transit Authority,

1985(overruled National League of Cities, validity of state
regulation under generally applicable rules)
(i) Principle:
a. Congress MAY regulate a state AS IF a private party
with a generally applicable law (law that applies
equally to states and private parties), EVEN if it
impedes upon the state’s sovereign control.
b. Once Congress, acting pursuant to its Commerce
power, regulates the states, the fact that it is a state
being regulated has virtually no practical
i. If the regulation would be valid if applied to a private part,
it is also valid as to the States.
c. Rejects Usery
i. “We therefore now reject, as unsound in principle and
unworkable in practice, a rule of state immunity from
federal regulation that turns on a judicial appraisal of
whether a particular governmental function is integral or
d. “The political process insures that laws that unduly burden the
States will not be promulgated.
(ii) Facts:
a. Fair Labor Standards Act provided for minimum wage and overtime
requirements on a municipally owned and operated mass transit
(iii) Holding:
a. Regulation is enforced b/c difficult to decide what isa traditional state
govt function.
b. Further, Court rejection of regulation invites judiciary to make
decisions when it should be up to Congress, and structure of govt and
the political process are checks against overextension of power.
(judicial restraint).
c. If a commerce power regulation would be valid if applied to a private
party, then it is also valid if applied to the state, ie the regulation valid
where state is regulated not as a sovereign power but instead under a
generally applicable rule.

(f) New York v United States, 1992 (commandeering of state

(i) Principle:
a. Congress may not pass laws which solely apply to
state (non-general applicable laws)
b. Congress may NOT force a state to regulate
(commandeer state legislatures) because it is a
violation of the 10th Amendment, although it may
offer incentives to regulate or regulate itself.
(a) Federal government may not compel a state to
enforce a particular type of law.
(b) Majority Found: this constitutes commandeering
the legislative processes of the states by
directly compelling them to enact and enforce a
federal regulatory program.
(c) 10 Amendment ensures protection of State’s
ability to make and apply law
(ii) Facts:
a. Low Level Radioactive Waste Policy Amendments Act sought to force
each state to make its own arrangements for the disposal of low level
radioactive waste within the state, based on a series of incentives.
b. The Act was made at the behest of the states in order to sanction and
create enforcement mechanism for arrangements.
c. One of the incentives required the state to arrange for disposal or take
title to the waste and assume liability.
d. Issue: “Take Title” Provision
(iii) Holding:
a. Federal govt may not compel a state to enact or enforce a particular
law or type of law (ie, cannot commandeer state legislative branch).
b. The Federal govt may offer incentives for state action (ie, condition the
receipt of federal funds on state action related to the funding), or even
regulate themselves, however, the federal govt may not force the state
to regulate.
c. Doing so violates state sovereignty and clouds accountability of
d. Congress cannot compel a state to regulate, and it cannot compel a
state to take title to waste, so the state was given no choice
(incentive) and was essentially ordered to perform in violation of the
10th amendment

(g)Printz v. US, 1997 (commandeering of state executive)

(i) Principle:
a. Congress may NOT force the state executive branch to
enforce a federal regulation.
b. Concerns over federalism and accountability.
(a) Congress may not compel state/local officials
to perform federally specified administrative
(ii) Facts:
a. Brady Bill aimed to control flow of guns in US. Under Act, local law
enforcement officials were ordered to temporarily conduct background
checks on prospective gun purchasers until national computerized
system was developed (more convenient for local administration).
(iii) Holding:
a. Federal govt may not compel local/state officials to perform federally
specificied administrative tasks (ie, cannot commandeer state
executive branch).
(iv) Dissent:
a. According to Fed #27, National govt has the authority to require the
states to take appropriate action as auxiliaries to exercise of legitimate
federal power

(h) Reno v. Condon (2000) (distinction between laws regulating the states
[permissible] and laws requiring the states to regulate their own

citizens [impermissible])
(i) Principle:
a. No improper commandeering of legislature because the law
regulated “state activities” rather than “[seeking] to control
or influence the manner in which State regulates private
a. Congress passed statute which limited the commercial vending of
personal data by the states
b. South Carolina filed suit that this law violated 10th Amendment and
principles of federalism
(iii) Holding:
a. Congressional law did NOT violate 10th Amendment because the law
merely regulated state activities
b. Act does not require States to enact any legislation or regulations and
does not require States to assist in the enforcement of federal statutes


(1) Congress May NOT:

(i) Force a State to enact a particular type of law
(ii) Pass laws which are only applicable to the states
(iii) Force the state executive branch to enforce a
federal regulation

(2) Ways Congress can circumvent anti-commandeering

(i) Spending Power
1. Under the Spending Clause, Congress may condition the payment of
relevant federal funds on a state’s agreement to act in a particular way
(ii) Commerce Power
1. Under the Commerce Clause, Congress may pass federal legislation
directly regulating the states on the issue
i. Thus, would preempt and state legislation
(iii) Conditional Preemption
1. Congress may threaten to pass federal legislation under the Commerce
Clause unless states choose to regulate according to federal stanards

e)11th Amendment & State Sovereign Immunity

(a) 11th Amendment:
1. “The judicial power of the US shall not be construed to
extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens
of another State, or by Citizens or Subjects of any
foreign state.”
(ii) Broad interpretation:
a. Citizen can’t sue a state in Federal court
b. Amendment bars suits by citizens against their OWN state (Hans v
Louisiana, 1890), and suits based on diversity OR federal questions.
(iii) Effect:
a. Limits federal judicial power over states
(iv) Exceptions/Alternatives:
a. the Federal Govt may sue the states, and state officials may be sued
for money or injunctions,
b. states may waive 11th amendment protections (also, states may be
sued in state court so long as jurisdiction satisfied, and federal courts
MAY have jurisdiction over suits against states on appeal where federal
question involved)

(b)Seminole Tribe of FL v FL, 1996 (state sovereignty and limits on

Federal power to adjudicate in federal court)
(i) Principle:
a. Congress cannot provide for federal suits against states b/c
11th amendment state sovereignty prohibits it even though
congress has power to regulate activity (gambling) under an
enumerated power (commerce clause)
b. Commerce Clause can never be used to abrogate the 11th
c. The relief sought by a plaintiff suing a State is irrelevant to the
question of whether the suit is barred by the 11th Amendment
(ii) Facts:
a. Indian Gaming Regulatory Act governed aspects of gambling
operations run by Indian tribes, providing that states must negotiate in
good faith with Indian tribes within the state.
b. Act also provided for suits against states if they failed to abide by the
(iii) Holding:
a. Statute violated 11th amendment b/c the 11th amendment restricts
the judicial power under Art III, and Art I Congress cannot circumvent
this limitation.
b. The 11th amendment embodies the concept of state sovereignty which
cannot be overridden by Congress, even where Congress is exercising
a legitimate constitutional power (eg, commerce power).
c. Congress cannot provide for federal suits against states b/c 11th
amendment state sovereignty prohibits it.

(c) Alden v Maine, 1999 (State sovereignty and limits on Federal power to
compel adjudication in state court)
(i) Principle:
a. Congress cannot provide for state suits against the states in
state court b/c 11th amendment state sovereignty prohibits it.
(ii) Facts:
a. Congress said that Fair Labor Standards Act regulation of min wages
and overtime applied to all employers, private or state, and that
employees could bring suits against the state in the state’s own court
under the FLSA.
(iii) Holding:
a. Congress has no constitutional authority to compel the state courts to
hear employee suits under FLSA, even though the suit is based on a
federal right granted by Congress pursuant to a legitimate exercise of
power (eg, commerce power).
b. State immunity against money damages in its own state courts is a
fundamental aspect of sovereignty protected by the 11th amendment.
(iv) Importance/Effect:
a. States have full sovereign immunity from private suits in their own
courts seeking damages for state violations of federal law (states
already had immunity from damages for state violations of federal law
in federal court).
(v)Ways to circumvent sovereign immunity to get States to enforce
Federal Law (Alden)
a. Federal Government can sue for fines or damages – and could
distribute it among injured people
b. 14th Amendment Section 5 Powers if Borne Test is past – “
c. Individuals may obtain injunctions against state officials for violations
of federal law (Ex parte Young)
d. Federal officials may enforce federal statutes through federal agencies
at federal expense
e. Congress may condition federal spending programs on the states’
agreement to waive sovereign immunity

(d)Central Virginia Community College v. Katz (2006) ( Congressional

power over Bankruptcy may circumvent sovereign immunity)
(i) Principle:
a. Federalism principle articulated in state sovereign immunity
line of cases did not bar Congress for subordinating a state
entity to other creditors in a federal bankruptcy proceeding
b. Bankruptcy Clause has been intended… to authorize limited
subordination of a States’ sovereign immunity in the
bankruptcy arena
a. Congress passed statute that allowed state entity to be sued by
creditors in federal bankruptcy proceedings
(iii) Holding:
a. This is not a violation of the 11th Amendment
b. Looked at processes from the time of the framing of the Constitution
c. “In ratifying the Bankruptcy Clause, the States acquiesced in a
subordination of whatever sovereign immunity they might otherwise
have asserted in proceedings necessary to effectuate the in rem
jurisdiction of Bankruptcy Courts.


i) Article I §8:
(a) Art I, Sec. 8 delegates to Congress the power to “lay and collect
Taxes, to pay the Debts and provide the common defense
and general welfare of the United States”

ii) Child Labor Tax Case (Bailey v. Drexel Furniture) (Taxes may not be penal
and may not be solely enacted to regulate a domain which is outside the
authority of Congress)
(1) Principle:
(i) A tax passed by Congress under the pretext of executing its powers,
but which is for the accomplishment of objects not within
congressional power is unconstitutional
a. Incidental regulatory effect is okay
b. But if the statute appears to be SOLELY for the purpose of
regulating (and not raising revenue) and Congress could NOT
regulate it directly (through enumerated power such as
interstate commerce clause)
(ii)A tax that is penal in nature is unconstitutional
(2) Facts
(i) Congress formed a law that imposes a tax of 10% of annual net profit on
every employer of child labor
(ii) Defendant, who utilized child labor, attacked the provision that it is a
regulation of a
(3) Holding
(i) Act constitutes an unconstitutional tax

iii) Veazie Bank v. Fenno; McCray v. United States; United States v. Doremus (All
contained within Bailey)
(1) Principle
(a)If the regulatory object of the excessive tax was within Congressional
authority (such as through the Commerce Power) then it will be held


(1) Tax v. Regulation issue has become less important because almost
all regulations can be sustained under the Commerce Power
(i) A tax statute could be sustained as a “necessary and proper” means
of implementing the Commerce power
a. Even if invalid under the enumerated taxation power
(i) (1) A tax that produces substantial revenues will almost
certainly be sustained and the Court will not inquire into
Congress’ motive in enacting it
(ii) (2) Regulatory provisions that accompany the tax are
valid if they bear a reasonable relation to the tax’s
(iii) (3) A tax which regulates directly through its rate
structure is valid
a. Example:
i. Tax of ¼ cent per pound on margarine v. Tax of 10 cents per pound
for butter
ii. McCray v. United States


i) Spending Power generally:

(a) Art I, Sec. 8 delegates to Congress the power to “lay and
collect Taxes, to pay the Debts and provide the common
defense and general welfare of the United States”
(b) Constitutionally, all federal taxes must be justified by provision for common
defense or general welfare, however, nearly any fed taxation can be justified by
“economic stimulus” (eg, justification for earmarks/pork barrel spending).

ii) United States v Butler, 1936 (Congress may tax and spend, but NOT regulate,
for the general welfare)
(1) Principle:
(i) The power to “tax and spend” is NOT limited to effectuating
enumerated powers (eg, commerce power), INSTEAD, the power is
SEPARATE AND DISTINCT from the other powers enumerated under
Art. I sec 8
i. Hamiltonian View
(ii) the Spending/Taxing Power may be exercised for the General
Welfare (ie, not limited to taxing/spending for other enumerated
(iii)This power is enumerated
(2) Facts:
(i) Agricultural Adjustment Act sought to stabilize farm prices by curtailing
(ii) It authorized Sec of Agriculture to make contracts with farmers to reduce
productive acreage in exchange for payments made out of a processing tax
levied upon farm commodity processors. Processor challenged Act as
unconstitutionally controlling agricultural PRODUCTION, a state matter.
(3) Holding:
(i) the power to “tax and spend” is NOT limited to effectuating enumerated
powers (eg, commerce power), INSTEAD, the power is SEPARATE AND
DISTINCT from the other powers enumerated under Art. I sec 8.
(ii) The power is on part with other federal Congressional power like commerce
power, and the only limitation on the power to tax and spend is that the
power be exercised for common defense or general welfare.
(4) Important clarification/limitation:
(i) The federal power to provide for general welfare is limited to the power to
tax and spend, ie the Congress may NOT regulate the general welfare
INDEPENDENT of the power to tax and spend.
(ii) Congress may tax and spend for the general welfare, but CANNOT REGULATE
for the general welfare.
(iii)Otherwise, the Congress would have a general police power (reserved for the
states) and would not be of a limited and enumerated nature.

iii) South Dakota v Dole, 1987 (Congress may regulate indirectly

through conditional funding)
(1) Principle:
(i) Even where Congress may not directly regulate under
an enumerated power, it MAY achieve the same result

by indirectly regulating via conditional funding under
Spending Power,
(ii) BUT conditional funding must not be COERCIVE (eg,
withholding 100% of funding, but line not clear, may
be no line at all)
(2) Facts:
(i) National Minimum Age Drinking Act directed the Sec of Transportation to
withhold 5% of the federal highway funds payable to the states from any
state that permitted alcohol purchases by anyone under 21.
(ii) South Dakota allowed purchasers to anyone over 19.
(iii)SD challenged the Act b/c 21st amendment gave states exclusive power to
regulate manufacture, transportation, and consumption of alcohol.
(3) Holding:
(i) Congress may not regulate alcohol consumption directly b/c of the 21st
(ii) HOWEVER, the Congress may achieve the same result indirectly through
conditional funding under the spending power
(iii)(BUT, federal govt may regulate by “coercion”, however, there is no clear line
b/t encouragement and coercion).
(iv) Only where the Congress induced the states to pass laws that were
unconstitutional would the federal action be unconstitutional.

iv) Spending Power after Dole: 4 part test on validity of

conditional spending (regulation)
(1) Congress must have the purpose of serving the general
(a) “…the first of these limitations is derived from the language of the
Constitution itself: the exercise of the spending power must be in pursuit
of “the general welfare.” In considering whether a particular expenditure
is intended to serve general public purposes, courts should defer
substantially to the judgment of Congress. “
(2) The Congress must it clear that it is offering conditional
(a) “If Congress desires to condition the States’ receipt of federal funds, it
“must do so unambiguously…., enable[ing] the states to exercise their
choice knowingly , cognizant of the consequences of their participation
(3) Conditions on federal grants must be “reasonably related” to
the spending program” (broad judicial deference under Dole)
(a) “Our cases have suggested [that] conditions on federal grants might be
illegitimate if they are unrelated “to the federal interest in particular
national projects or programs”
(4) Other constitutional provisions may not provide an independent
bar (eg, equal protection, due process, ban on cruel and unusual
(a) “Finally, we have noted that other constitutional provisions may provide
an independent bar to the conditional grant of federal funds”
1. Cannot force a state to carry out an unconstitutional act.



h) Congress’ War, Treaty, and Foreign Affairs Power

(1) Powers conferred from Article I §8

(i) Declare War
(ii)Tax and Spend for national defense
(iii) Raise and Support Armies
(iv) Provide and maintain a navy

(2) Congress’ War Power

(a) Wood v. Cloyd W. Miller Co.
(i) Principle
a. Congress’ war power includes the power to remedy the
evils which have arisen due to the rise and progress of
the war
b. This power continues throughout the duration of the
c. Congress’ authority under the war power does not
necessarily end with the cessation of hostilities
a. Congress enacted a provision to control rend by virtue of their war
power to correct housing shortage
b. It was argued that since the war had ended, congressional authority
under the war power had ended
(iii) Holding
a. Court found the legislation constitutional
b. The legislation made clear that the housing shortage resulting from the
war had not been eliminated

(3) Congress’ Treaty Powers

(a) Missouri v. Holland
(i) Principle
a. Congress can regulate under the treaty power even on
subjects beyond its enumerated powers
i. So – something Congress Can’t regulate under ICC or
14th Amendment CAN still be REGULATED if it is
enacted to uphold the provisions of a treaty
ii. BUT – under REID (below) congress CANNOT enact laws
pursuant to an international treaty that CONFLICT

Congress could not enter into treaty which
bans abortion and then pass legislation
binding on the state’s to that effect
a. In 1916, the US entered into a treaty between the US and GB
governing the migration of birds between the US and Canada
b. Accordingly, Congress passes a statute to regulate the killing of
migratory birds within the US
c. State of Missouri argued that the statute was an unconstitutional
interference with the rights of the States reserved by the 10th
(iii) Holding
a. Congress can enact a Statute to enforce the treaty even though it is
beyond their enumerated powers

(b)Reid v. Covert (Treaties constrained by limits of the

(i) Principle
a. Congress/President CAN enter into treaties that conflict
with the guarantees of the Constitution BUT CANNOT
pass LAWS pursuant to those treaty provisions that
violate the Constition
b. “…no agreement with a foreign nation can confer power
on the Congress, or any other branch of Government,
which is free from the restraints of the Constitution.
c. It would be manifestly contrary to the objectives of those
who created the Constitution as well as the Bill of Rights
… to construe Article VI as permitting the United States
to exercise power under an international agreement
without observing constitutional prohibitions

(4) Congress’ Power over “foreign affairs”

(i) Source of authority
a. No branch is explicitly given power in Constitution over foreign affairs
i. Supreme Court has always recognized that Congress and the
Executive branch have power over foreign affairs
ii. “General constitutional principle” that foreign affairs are the proper
province of the federal government
(ii) Zschernig v. Miller
a. Principle:
i. State cannot enact laws that affects international
relations and had great potential for disruption or
ii. State cannot enact laws which “intrudes into the
field of foreign affairs which the Constitution
entrusts to the President and the Congress”
iii. State cannot intrude and attempt to affect the
“democracy quotient of another nation”
b. Facts
i. Oregon prohibited aliens from inheriting for a decedents estate
absent reciprocity by the alien’s home state
c. Holding
i. Court barred application of this law because it “intruded into the
field of foreign affairs which the Constitution entrusts to the
President and the Congress”

4)Federal Limits on State Authority
(1) no infallible constitutional test, instead a CASE by CASE analysis

ii) Constitutional Basis:

(a) Supremacy Clause, Art VI:
1. “The constitution and the laws of the US . . . shall be
the Supreme Law of the Land”

iii) Types of Preemption scenarios

(1) EXPRESS preemption

(i) Instance where Congress EXPRESSLY preempts state

(2) FIELD (implied/inferred) preemption

(a) Showing that Congress meant to occupy a field and displace
states from regulation of that subject matter (inquiry into
Federal Congressional intent)
(i) FACTORS TO CONSIDER (Rice v. Santa Fe)
1. Federal regulatory scheme is PERVASIVE/COMPREHENSIVE
2. Perceived need for uniformity vs. diversity of regulation (national
economic efficiency)
3. Importance of national policy/federal interest
4. History, ie matter of traditional federal/local concern?
(b) Presumption
AGAINST federal preemption in areas of
TRADITIONALLY local concern (eg, regulation of utilities-
PG&E case)
(i) State Action overturned ONLY by higher standard of CLEAR showing
of Congressional intent to preempt (respect for state sovereignty)

1. PG&E v CA Energy Resources Commission

a. Principle:
i. If it is unclear whether the Congress intended to preempt
State action, esp. in an area of traditionally local concern,
then the Court will leave it to Congress to clarify.
b. Facts:
i. CA law imposed moratorium on certification of nuclear plants until
finding of sufficient technology for disposal of nuclear waste.
ii. Federal Atomic Energy Act provided for exclusive federal
jurisdiction of transfer, delivery, receipt, acquisition, and possession
of nuclear materials leaving NO role for states (over safety
iii. PG&E challenged state law.
c. Holding:
i. Federal Act provides for exclusive federal regulation of nuclear
safety, but Act specifically provides for state role in economic
energy decisions.
ii. CA asserts that it was acting on economic motivations, and Court
will NOT inquire into state motives (will accept at face value).

(3) CONFLICT preemption

(a) Where Congress has enacted a complete scheme of
regulation, the states cannot act inconsistently with the
intent of Congress to conflict, interfere with, curtail,
frustrate, or complement the federal law
(b)Possible Scenarios of Conflict Preemption
(i) Impossibility:
1. Is must be phyiscally impossible to comply with both the state and
federal law? (if YES, then state law is a violation and preempted)
a. Florida Lime & Avocado v Paul
i. Conflict preemption not found
ii. Federal gov. placed min. regulation on development of Avocados
which state can add to with legislation – not impossible to comply
with both
(ii) Frustration of Purpose:
1. Has the state law created an obstacle to the accomplishment and
execution of the purposes of Congress? (if YES, then violation of
a. Hines v Davidowitz
i. Penn enacted conflicting alien registration act to Federal
ii. Frustrated the purpose of the statute
(iii) A common end does not neutralize conflicting means (Crosby v
National Foreign Trade council)
1. Crosby v. National Foreign Trade Council
a. Principle
i. The fact that some companies may be able to comply with
both sets of sanctions does not means that the state act is
not at odds with achievement of the federal objective
b. Facts
i. Massachusetts passed a law barring state entities from buying
goods or services from companies that do business with Burma
ii. Congress passed a law earlier imposing mandatory and conditional
sanctions on Burma
c. Holding
i. The Court held that the MA law was preempted by federal law

5) Congress can CONSENT to State Regulations - Applies to DCC

and Preemption
(1) Prudential Insurance Co. v. Benjamin
(i) When Congress’ affirmatively contradicts Court’s previous ruling of
Preemption issue, this constitutes express approval of the state’s
conduct in question
(c) Holding
(2) White v. Massachusetts Construction Corp.
(i) Federal funding of a State act specifically directed by Congress may
constitute consent
(i) Mayor of Boston required 50% of public works jobs held by city residents
(c) Holding
(i) Upheld DCC challenge because of market participant
(ii) BUT, court said that Congress authorized this conduct through its
authorization of expenditures

b)The Dormant Commerce Clause

i) Rule:
(a) No State shall make any law which discriminates against OR
excessively burdens interstate commerce
(i) (states have a general police power that may be used to regulate public
safety, health, and general welfare, BUT this power is limited by the Dormant
Commerce clause)
ii) Constitutional basis:
(a) Based on a negative implication of the Commerce Clause (
(i) Since the Constitution gives Congress the power to regulate commerce, a
state may be prevented from taking a particular action that subsequently
impacts commerce.

iii) Purpose/Policy (embodied in Commerce Clause):

(a) Economic solidarity/efficiency (Justice Jackson’s theory from H.P. Hood
v. Du Mond)
1. to ensure a robust and EFFICIENT national market (maximization of
national welfare)
2. Prevents states from hoarding there local benefits
(b) Tranquility:
1. to avoid interstate conflicts (and inefficiencies from protectionism)
(c) Representation reinforcement, (Chief Justice Stone’s theory from Southern
Pacific v. Arizona)
1. ie to avoid regulatory burdens on parties excluded from the political
process of the States
2. Out of state interests unrepresented in a state’s political process
3. State law makers will likely advance the interests of in-state constituents
at the expense of out-of staters who cannot vote against them
4. Thus, discrimination against outsiders may be expected predictably to
result from the normal operations of in-state politics
(d) Political solidarity of the states (Justice Cardoza’s perspective in Baldxin
v. Gaff)
(i) “the Constitution was framed upon the theory that the people of the several
states must sink or swim together, and that in the long run prosperity and
salvation are in union and not divison
iv) Application:
(a) The Dormant Commerce Clause is a DEFAULT RULE, but can be OVERRULED
by Congress, ie the Constitution does NOT mandate a national market, and
since Congress has the power to regulate interstate commerce (under

Commerce Clause), it can enact statutes that violate Dormant Commerce

v) Types of laws that violate Dormant commerce clause



Common Example

(a) Philadelphia v NJ (NJ Garbage Case-Facial Discrimination)

(i) Principle:
i. “virtually per se rule against state discrimination against
out of state commerce”
b. State cannot erect a protectionist ban on commerce (garbage)
without a showing that it is absolutely necessary to protect the
state’s health and safety and there are no less restrictive
(ii) Facts:
a. NJ statute prohibited importation of garbage into the state in response
to use of NJ landfills by PA & NY.
(iii) Holding:
a. Even though the state claims that the statute was adopted to protect
the safety & health of its citizens (a legitimate end), the means
adopted (prohibition against interstate waste) were overly protectionist
& discriminatory in effect (at least) against out of state vendors


(b) Maine v. Taylor (Baitfish) (EXCEPTION – Facially

Discriminatory Law Permitted)
(i) Principle:
1. If a state acts to ban/restrict commerce but it is for a legitimate
health purpose and there are no less restrictive/non-
discriminatory means available, the state action will be upheld
2. This is basically the quarantine law exception
1. Maine was entitled to ban the importation of out of state baitfish in order
to prevent a possible disease being spread to its local ecosystem


(c) Oregon Waste Systems, Inc. v. Department of Environmental Quality

(Facially Discriminatory TAXES)
(i) Principle
1. If a state creates a tax structure which imposes higher taxes on
out of staters than instaters it is discriminatory and subject to the
per-se rule of invalidity
1. Oregon imposed a law which had a $2.25 surcharge per ton on the
disposal of out of state waste in Oregon and a $0.85 per ton surcharge on
the disposal of instate waste in Oregon
(iii) Holding
1. The difference in surcharge for out of staters as opposed to in-staters was
facially discriminatory and thus, per se invaild

(d) West Lynn Creamery v Healy (Facially Discriminatory

(i) Facts:
a. MA law imposed assessment on all milk sales in MA, but rebated
proceeds from assessment to all instate MA dairy farmers
(ii) Holding:
a. The rebate is unconstitutional under Dormant Commerce clause b/c it
imposes a burden on out of state competitors, and the rebate is funded
principally from the assessment made on milk sales by out of state
b. Essentially, the out of state vendors are taxed extra to subsidize the in
state producers and this is discriminatory in effect (if not purpose).
c. *Note:
i. it is unresolved whether a rebate paid out of a GENERAL tax fund,
rather than a segregated tax fund, would be constitutional but the
opinion in West Lynn seems to indicate that such a rebate WOULD
be constitutional

(e) Camps Newfound/Owatonna v. Town of Harrison (Facially

Discriminatory TAX EXEMPTION)
(i) Principle
1. Tax exemptions which are established to apply to only those
institutions which benefit a particular state are discriminatory
and per se invalid
1. Maine had a law which provided a property tax exemption for all
charitable organizations in Maine BUT denied full exemption for charitable
institutions in Maine who did not principally operate to benefit the
residents of Maine.
(iii) Holding
1. Maine’s tax exemption functionally serves as an export tariff that targets
out of state consumers by taxing the businesses that principally serve


(f) Dean Milk v Madison (Home Processing Requirement –

Discriminatory Purpose and Effect)
(i) Principle
a. A locality may not discriminate against interstate commerce,
even to protect the health and safety of its people, if
reasonable alternatives exist which do not discriminated and
are adequate to conserve legitimate local interests
b. Even a local law that affects intra-state commerce may be
invalidated if it is discriminatory.
(ii) Facts:
a. Madison WI law barred sale of milk not pasteurized and processed
within 5 miles of Madison center purportedly to protect citizen health.
(iii) Holding:
a. Local law is unconstitutional b/c there were reasonable non-
discriminatory alternatives, eg by setting required uniform standards
of pasteurization.
b. Local law is preferential to local industries

(g)C& A Carbone, Inc. v. Clarkstown (Flow control ordinance –

Discriminatory Effect)
(i) Principle:
i. Discrimination against interstate commerce in favor of local
business is per se invalid unless the municipality can
demonstrate under rigorous/strict scrutiny that it has no
other means to advance a legitimate local interest
ii. Any ordinance that deprives nonlocal businesses from
access to local markets discriminates against interstate
commerce and is invalid under the Dormant Commerce
a. In order to generate revenue for a local solid waste transfer station,
Clarkstown passed a local ordinance which required all solid waste
leaving the town to be processed by the local facility.
b. Defendant sought to send his solid waste to another state for
processing to save money
c. Town sought an injunction to enforce the ordinance and enjoin
defendants from sending garbage out
(iii) Holding
a. Town ordinance violated the Dormant Commerce Clause
b. Town is hoarding a local resource – garbage
c. Outside garbage processors were denied access to local marked due to
the ordinance
d. Town impermissively shut out non-local solid waste processors from
the market
e. Town had less discriminatory means to protect any environmental and
fiscal concerns it had.

(h) UnitedHaulers Ass’n v. Oneida-Herkimer Solid Waste

Management Authority (Flow control ordinance –
permissible when state-created entity)
(i) Principle:
a. An ordinance requiring that trash be delivered to a state-created public
benefit corporation does not violate the Dormant Commerce Clause
b. Public entities treated different under the Dormant Commerce
Clause – particularly in areas of traditional governmental
a. A locality created an ordinance which required trash haulers to bring
all garbage to local facility created by the locality
(iii) Holding:
a. This does not violate the dormant Commerce Clause
b. Disposing of trash is a traditional governmental activity
c. Government is vested with the responsibility of protecting the health,
safety and welfare of its citizens
d. Under this system there is public accountability – if local individuals do
not like the provision, they can elect someone in who will change it


(a)Baldwin v. G.A.F. Seelig, Inc.
(i) Principle:
a. It is a violation of the dormant Commerce Clause for a state to
regulate intrastate prices by prohibiting the importation of
less expensive goods in interstate commerce.
a. NY set up min price for milk and prohibited the sale of milk bought out
of state at a lower price
i. NY said the purpose of the law was to stabilize milk prices during
the Great Depression AND ensure a regular adequate supply of milk
by making sure farmers are able to make a living
b. NY refused to license Plaintiff to sell milk he purchased in VT
c. Plaintiff sued
(iii) Holding
a. Violation of dormant commerce clause
b. NY may not establish protectionist market in NY

(b)H.P. Hood & Sons v. Du Mond

(i) Principle:
a. Restrictions imposed for the avowed purpose and with the
practical effect of curtailing the volume of interstate
commerce to aid local economic interests will not be sustained
under the dormant commerce clause
a. Plaintiff had 3 milk receiving and processing depots in NY
b. When plaintiff applied for 4th permit to operate, he was rejected
c. NY’s basis for denial of plaintiff’s permit was that the area was already
adequately served and the plaintiff’s depot would tend to destruct
competition in that area
(iii) Holding:
a. Invalid under the dormant commerce clause
b. State may not restrict the flow of commerce solely to benefit local
economic advantage
c. This is protectionist in purpose and effect

(c) Hunt v WA State Apple

(i) Facts:
a. NC statute required that apples bear ONLY a US grade purportedly to
protect safety of citizens.
b. WA had its own system of grading that was more stringent than US

(ii) Holding:
a. NC Statute, while neutral on its face, discriminated against WA growers
in favor of their local growers because WA unable to sell in NC
i. Thus, NC growers have less competition
b. Even though only WA state vendors were harmed, the effect of the
statute was to excessively burden interstate commerce (esp. WA).
c. Court did not believe NC justification for the statute and implicitly held
that effects were intentional.

(d)Bacchus Imports Ltd. v. Dias

(i) Principle
a. State may not enact a tax structure which, in purpose and
effect, serves to discriminate against out of state products for
the benefit of local products
a. State of Hawaii exempted from a 20% wholesale local brandy and fruit
wine which really only could come from Hawaii
b. This exemption appeared, on its face, general in nature
(iii) Holding
a. State cannot promote a struggling local industry with protectionist

(e)MN v Clover Leaf Creamery

(i) Facts:
a. MN state law banned retail sale of milk in plastic nonreturnable
containers but permitted sales in pulpwood nonreturnable containers
b/c such containers present a waste problem and waste energy.
b. Plastic resin originated out of state, but pulpwood originated in state
(ii) Holding:
a. The law is non-discriminatory and the burden on interstate commerce
is not excessive considering the state’s legitimate interest in easing
disposal problems and conserving energy.
(f) Exxon Corp v. Maryland
(i) Principle:
1. No problems with dormant commerce clause when instate and out of state
industries receive equal disparate treatment


(a) Pike v. Bruce Church, Inc (Balancing Test)
(i) Principle:
a. Where the statute regulates even-handedly to effectuate a
legitimate local public interest, and its effects on interstate
commerce are only incidental, it will be upheld UNLESS the
BURDEN imposed on such commerce is clearly EXCESSIVE in
relation to the PUTATIVE local benefits
b. If a legitimate local purpose is found, then the question is one
of degree

c. The extent of the burden that will be tolerated will depend on
the nature of the local interest involve, and on whether it
could be promoted as well with lesser impact on interstate
a. Arizona statute required that Arizona-grown cantaloupes advertise
their State of origin on each package
b. Defendant had his cantaloupes packaged in California where it was
c. State would not allow defendant to ship his cantaloupes out without
Arizona identification
d. Would cost defendant $200,000 to conform with law for $700,000
cantaloupe crop
(iii) Holding
a. Arizona statute constitutes an excessive burden for Church
b. Any benefit gained for Arizona is negligible
c. Harm incurred by Church is significant

(b)Kassel v. Consolidated Freightways Corp

(i) Principle
a. A State safety regulation will be unconstitutional if its asserted
safety purpose is outweighed by its degree of interference
with interstate commerce
a. Iowa passed a statute restricting the length of vehicles that may use
its highways
b. Iowa was the only state in the western/Midwestern US to outlaw the
use of double tractor trailers
(iii) Holding
a. Even though highway safety is traditionally within the sphere of state
police power, such will be invalid if the purported safety purpose is
minimal and the effect on interstate commerce is significant

(c) Southern Pacific v. Arizona

(i) Principle
a. State safety regulation will be found to be unconstitutional if
they result in marginal increase in safety, yet a significant
burden on interstate commerce
a. Arizona passed a statute that limed the number permissive size of
(iii) Holding
a. This safety regulation is invalid because it poses a significant burden
on interstate commerce and provides a minimal safety benefit

(d)Bibb v. Navajo Freight

(i) Principle
a. Facially neural laws that have a disproportionate effect on
interstate commerce will be invalidated under the dormant
commerce clause
a. Illinois passed a law that required a particular type of mudguard on
trucks that no other state required
(iii) Holding
a. This law is poses a disproportionate effect on interstate commerce and
thus, is invalid.

vi) Market Participant Exception

(1) Rule:
(i) When a state acts, not as a regulator, but instead as a
market/commercial participant (eg, buyer, seller), it may
regulate FREE of Dormant Commerce Clause Restrictions
(ie, discriminatorily)

(i) States/locales should be allowed to nurture local industry;
(ii) States/locales should not be subject to Dormant Commerce Clause
restrictions when not acting in a sovereign/regulatory capacity
(c) Counter:
(i) Local favoritism frustrates economic/political unity as embodied in national
govt and commerce clause
(d) Court concerns:
(i) if overextended or loosely applied, the exception may swallow up the
Dormant Commerce clause, and therefore the Court takes a FORMALIST
rather than FUNCTIONALIST approach to market participant exceptions,
preserving for itself the role as protector of the Dormant Commerce clause
(i) Hughes v. Alexandra Scrap
a. Maryland permissively charged a higher price for scrap from out of
staters than in-staters in order to attempt to get rid of local junk cars
(ii)Reeves v. Stake
a. South Dakota’s state owned and operated cement plant was permitted
to sell only to state residents - because they participated in the
market – they manufactured the cement, processed it, and sold it.
(iii) White v. Massachusetts
a. Mayor of Boston permissively enacted an executive order which
required all construction projects funded by the city to be performed
by a work force of at least 50% of city residents
(f) Limit of Market Participate Exception:
(i) State/locale can ONLY influence/affect a discrete, identifiable class of
activity of which it is a MAJOR PARTICIPANT,
a. It cannot indirectly regulate downstream activities which it is not
engaged in through contractual conditions
2. South Central Timber v Wunnicke
a. Principle:
i. A state/locale may NOT regulate (directly or indirectly)
any market (narrowly defined, ie discrete and
identifiable class of activity) in which it is not a major
ii. Rationale:
1. State no longer has an interest in transactions down
the line (outside the

immediate transaction)
2. Downstream restrictions have a greater regulatory
effect than do limitations on the
immediate transaction
b. Facts:
i. AK imposed a condition on the sale of state owned timber, requiring
purchasers to process timber in AK before shipping it out of state
(to promote AK processing industry)
c. Holding:
i. AK is a market participant in the timber selling market, but is NOT a
major participant in the processing industry, and therefore may
NOT impose the condition which effectively regulates buyer activity.
d. Extra:
i. Court will increase scrutiny where FOREIGN COMMERCE,
(2) Test 1: Discriminatory Laws (In Purpose or Effect) Analysis
(higher scrutiny):
(i) Isthe law discriminatory/protectionist on facially, in
purpose, or in effect?
1. If YES, then virtually per se invalid
2. Effects: consider who reaps the BENEFIT (eg, in state?) and who bears
the burden (eg, out of state?)
(ii) Even if the law is discriminatory, it CAN be allowed if it
passes the following test:
1. Is there a legitimate state interest (purpose/end)? (Very Broad, will
almost always be YES)
2. Are there NO reasonable non-discriminatory alternatives? (Will
almost always be NO, only 1 exception: Maine v Taylor banning
importation of out of state baitfish due to ecological concerns)
a. Exception: quarantine laws are allowed even if there are other
(iii) NOTE: State act will be VALID if acting as a market

(3) Test 2: Neutral Laws that are UNDULY BURDENSOME (Pike

Balancing Test-more lenient scrutiny)
(a) Neutral laws are those that even-handedly regulate towards legitimate
state/local public interests where Interstate Commerce is only INCIDENTALLY
(b) Neutral Laws are presumptively valid (legitimate ends, rationally
related means), BUT
(c) Can be invalidated if there is CLEAR evidence that burden on
interstate commerce (re: uniformity/free commerce) is
EXCESSIVE to PUTATIVE local/state benefit
(i) Pike Balancing Test
(ii) Note:
1. Excessive burdens on interstate commerce are ALSO circumstantial
evidence of discrimination, and thus may be analyzed under 1st test
(iii) Consider:
1. the Court will probably be more skeptical of state economic interests than
state health/safety interests, and more deferential where a
traditional/largely local concern is involved (concerns over protectionism
vs. concerns over infringement upon state sovereignty)

c) Interstate Privileges & Immunities Restrictions Of

Article IV
i) Constitutional basis:
(a) Privileges and Immunities clause, Art IV, § 2, cl 1:
(i) “The citizens of each state shall be entitled to all
privileges and immunities of citizens in the several
ii) Function:
(a) Prevents states from discriminating against out-of-state

iii) Purpose:
(a) To protect out of state citizens/residents from UNREASONABLE
(b) To fuse the several states into ONE NATION and promote national unity against
state parochialism (representation reinforcement considerations)

iv) Important:
(1) Applies ONLY to discriminatory conduct, and NOT to excessive
interstate commercial burdens
(i) (unlike DCC)
(2) Does NOT have a market participant exception
(i) (unlike DCC), ie ANY state/local action may be challenged under P&I, not
just regulation
(3) Applies to LOCAL regulation as well as State Regulation, even
though clause itself refers to “states”
(i) (Camden labor case)
(4) Does NOT apply to Corporations

v) Cases
(1) United Building and Construction v Camden
(a) Principles:
1. There is no market participant exception to Interstate Privileges
& Immunities challenges;
2. Local (municipal) discrimination along with state discrimination is
barred under the P&I clause
1. Camden, NJ ordinance required at least 40% of employees of
contractors/subcontractors working on city construction to be Camden
2. Ordinance challenged as DCC & Privileges and Immunities violation.
(c) Holding:
1. No DCC violation b/c Camden is a market participant.
2. P&I challenge is remanded for determination as to Camden’s reason for
discrimination & the relationship of means to end.

(2) Supreme Court of New Hampshire v. Piper

(a) Principle
(i) State law limiting bar admission to in-state residents violated the
Privileges and Immunities Clause
1. The States reasons for this law did not constitute a substantial reason for
a. Reasons – become familiar with NH rules, behave ethically, to be
available for court


(1) Is there a FUNDAMENTAL INTEREST being discriminated against?
(i) (Does the discrimination hinder the purpose, development, or formation of a
SINGLE United States?; Is the interests SUFFICIENTLY BASIC to livelihood of
the Nation?)
(ii) Examples:
1. Interest in employment in another state (Camden labor case/NH State Bar
a. recreational interests do NOT count

(2) If YES, then burden shifts to the State;

(i) if NO, then P&I challenge cannot be sustained

(3) BURDEN is then on State to demonstrate:

(a) Is there a SUBSTANTIAL REASON for the discrimination?
1. (Are the non-residents a “peculiar source of evil” sought to be
remedied by the law?)
2. Must be YES to survive challenge
(b) Is there a CLOSE & SUBSTANTIAL relation b/t discrimination &
legislative objective,
(i) ie b/t the law and the eradication of the problem? (Are there NO less
restrictive means?)
(ii) Must be YES to survive challenge

d)DCC & P&I Final Analysis

i) Initial Question: Is the Govt Actor a Market Participant? (vs. a sovereign
(1) If NO, move on to DCC challenge (below).
(2) If YES, is the Govt Actor a “valid” Market Participant, ie is the Govt Actor
acting upon a “relevant” market (narrowly defined) in which it is “major
(a) If NO, move on to DCC analysis (below).
(b) If YES, then exempt from DCC challenges but NOT P&I challenges; move on to
Interstate Privileges & Immunities challenge.
ii) Interstate Privileges & Immunities Clause Challenge (intermediate scrutiny)
(1) Is there a “Fundamental” Interest/Immunity being discriminated
(a) If NO, then move on DCC challenge (below)
(b) If YES, then burden shifts to State to validate the law—continue
(2) Is there a Substantial Reason for discrimination (ie, are non-
residents a peculiar evil against which the law seeks to remedy)
(a) If NO, then law is unconstitutional.
(3) If YES, is there a Close & Substantial relationship b/t the law & its
objective, ie b/t the discrimination and the problem to be eradicated? (ie,
are there no less discriminatory means available?)
(a) If NO, then law is unconstitutional.
iii) Dormant Commerce Clause Challenge
(1) Initial Question: Is the law discriminatory or neutral (conclusory)?
(a) If Discriminatory on its face, in purpose, or effects, then virtually per se invalid
but continue to Q(2)-strict scrutiny
(b) If Neutral, continue to Q (4)
(2) Is there a legitimate state interest? (Very deferential, almost always YES)
(a) If NO, then law is unconstitutional
(3) Are there NO less discriminatory alternatives available? (Very high stnd,
almost always NO)
(a) If NO, then law is unconstitutional
(b) If YES (rare), then law is valid
(4) Is there a legitimate state interest and rationally related means? (very
deferential, presumptively YES)
(a) If NO, then law is unconstitutional
(5) Pike balancing: Is the burden on Interstate Commerce clearly
excessive to the putative state/local benefits?
(a) If NO, then law is valid
(b) If YES, the law is unconstitutional

6) Executive Power

i) President’s delegated powers

(1) Executive power, Art II Sec 1 “Vesting Clause”
(a) Formalist model:
(b)Functionalist/Pragmatic model:
(i) no actions are inherently “executive” in nature, instead all actions/powers
not clearly defined/enumerated should be allocated on a functional
understanding of the doctrine of separation of powers. The purpose of the
doctrine is to separate the branches/powers and to create internal, structural
impediments to usurpation. The framers and their state predecessors
deliberately created checks and balances to minimize plenary powers, and
created a system of limited, enumerated powers rather than general powers.
Further, the American system was not created in conformity with the British
model, and did not intend to create a king-like executive. On this theory,
plenary powers are minimized in the executive, and it is recognized that
Congress has partial agency of many (if not most) of the President’s powers,
ie the President may have “inherent” powers to act, but those powers are
modified by the Congress, ie the President may act but must do so “under
the law.”
(2) Commander in Chief power, Art II Sec 2
(a) War powers are shared with Congress (eg, raise, support, & regulation of the
military, declarations of war, foreign commerce, treaty approval, etc.), BUT the
President has power to command the military in times of War
(3) Take care power (pure executive), Art 2 Sec 3
(a) Empowers the President to execute the laws of the US, ie to carry out the laws of
Congress and Constitution (may act as a limit on executive and commander in
chief powers)


(1) Youngstown Sheet & Tube v Sawyer (Steel Seizure Case)
(a) Facts:
1. During Korean War, Pres Truman sought to avert the effects of a strike in
the nation’s steel mills by ordering the seizure of the mills and operation
under federal prior to the executive order.
2. Steel companies sought injunction against seizure and challenged
constitutionality of the order.
a. Categorized and rigidly separated legislative, executive, and
judicial functions
2. “The President’s power to issue the order must come from an act
of Congress or from the Constitution itself.
a. No Congressional Act
b. Action is not warranted under any Constitutional Grant of
Executive Power
i. Not valid under Commander and Chief
i. Limited to theater of war
ii. President’s actions inherently legislative in nature which is
impermissible because President is merely given the job to
EXECUTE the laws
i. This act can ONLY be enacted by Congress
3. The order is unconstitutional.
(2) Jackson concurring (FUNCTIONALIST APPROACH):

(b)Executive Tripartite Scheme

a. Presidential acting pursuant to express/implied authorization
from Congress
i. President’s power is at its maximum when president acts
pursuant to express or implied authorization of Congress
because presidents power includes all power he possess plus all that
Congress can delegate

a. President acting in the absence of Congressional Grant or
i. When the President acts in absence of either a
congressional grant or denial of authority, he can only rely upon
his own independent powers BUT there is a zone of twilight in
which he and Congress may have concurrent authority or which the
distribution of power is uncertain
i. Congressional inertia, indifference, or
acquiescence may as a practical matter may
enable president to act.
a. Dames and Moore – Congressional
b. Hamdan - NO Congressional acquiescence
(iii) CATEGORY 3
a. President Acts Contrary to Congressional Act
i. When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its lowest
ebb, and he may only act where it can be shown that Congress
has exceeded its constitutional powers and the President is
acting in his own sphere of authority.
2. Jackson found that the case was in CATEGORY 3
a. Congress had rejected the plant seizure method as a means of
handling labor disputes when it failed to adopt an amendment allowing
the Pres to order such seizures.
b. As a result, the Pres acted contrary to Congressional will, and his
power is at its “lowest ebb.”
c. The Pres has not independent/preclusive power to order such seizures,
and therefore may not act in contradiction to the will of Congress.

c) President’s Authority over Foreign Affairs

i) Executive Agreements
(1) Executive branch utilized this tool primarily for foreign relations
(2) Used to circumvent treaties
(a) Functionalist Approach
(i) This is permissible if not contrary to the will of Congress and has a positive
(b) Formalist Objection
(i) This bypasses Constitutional requirement of Senates role of ratifying treaties

(3) Cases involving Executive Agreements

(a) US v. Belmont (Functionalist Approach to Executive Orders in Foreign
(i) Facts
1. In 1933 President Roosevelt issued an Executive Order recognized the
Legitimacy of the USSR and involved an assignment of legal claims
1. The negotiation and the agreement were within the competence
of the President

(4) Dames & Moore v Regan (Congress may implicitly authorize Pres
executive action-esp in foreign affairs-if it has long acquiesced to
(a) Principle:
1. President Lacks Inherent Constitutional Power to Unilaterally
Enter this Agreement
i. The President lacks the plenary power to settle claims
against foreign government through Executive Agreements
2. Congress did not Explicitly Authorize President to Act as he did
i. The IEEPA (Congressional Act) does not specifically
authorize president to carry out this executive order
3. Congress has ACQUIESCED (passively Agreed) to President’s
i. Acquiescence Found through:
1. Long History of congressional acquiescence to
international agreements settling claims
between citizens of the US and other nations
2. IEEPA granted president other vast power (grand
tenor of legislation)
3. Nothing in the act prevents president from acting as
he did
4. Following the Executive Order, Congress did NOT take
measures to defeat it
(b) Facts:
1. President Carter suspended all contractual claims against Iran pending in
American courts to be arbitrated in an international tribunal, in exchange
for American hostages
2. Dames had rec’d judgment against Iran and assets were attached, but
Reagan ordered void of attachments.
3. Order was challenged as unconstitutional.
(c) Holding:
1. Pres has the authority to suspend the claims b/c Congress had long
acquiesced to similar conduct by previous Presidents.
2. As a result of Congressional acquiescence, it had implicitly authorized the
Pres authority to settle to enter into executive agreements with foreign
powers to settle claims.

d) Presidents War Powers

i) Shared with Congress
(1) President
(a) Commander and Chief of the armed Forces
(2) Congress
(a) Declare War
(b)Make Rules on the Capture of Land and Water
(c) Raise and Support Armies
(d)Make rules governing the Land and Naval forces

e) Executive Detention and the Trial of “ENEMY COMBATANTS”


(1) Ex Parte Milligan (US citizens who are not in the armed forces and
are not captured as enemy combatants MUST be tried by civilian (non-
military courts)
1. Where the courts are open and unobstructed (as here), then
these courts and NOT military courts have jurisdiction, unless
they are enemy combatants or members of armed forces.
(b) Facts:
1. Pres Lincoln suspended habeus corpus nationally in 1862.
2. Milligan was a citizen of IN captured on suspicion of rebellious activity.
3. He never served in the armed forces and was captured in a non-rebel
state (IN).
4. He was convicted and sentenced to death by a military tribunal, even
though a grand jury did not indict him.
(c) Holding:
1. Citizens of the US are subject to the rule of law and the jurisdiction of the
US civilian courts.
a. Milligan was neither, and was arrested as a civilian not engaged in any
hostile activity.
b. The Pres may suspend the writ of habeas corpus BUT a citizen civilian
may NOT be tried in anything other than a civilian court so long as
those courts are open.

(2) Ex Parte Quirin (US citizens captured as enemy combatants may be

tried by military tribunals)
1. Anyone, even a US Citizen, may be tried by a military tribunal IF
they are a member of the armed services, OR if they are an
enemy combatant violating the law of war.
(b) Facts:
1. US Citizen born in Germany and returned to Germany.
2. He received training in Germany, and boarded a submarine with orders to
go to the US to destroy targets in the US in exchange for compensation.
3. Once landed, he was taken into custody by FBI.
4. President appointed a military commission to try the petitioner for
offenses against the law of war and prescribed regulations for the
5. (Pres sought to avoid a public trial exposing the FBI’s reluctance to
capture enemies).
6. Petitioner challenged Pres ability to order tribunals
(c) Holding:
1. Pres is commander in chief and has the power to wage ware once
declared by Congress, and is charged with executing the laws of the US
and the law of nations in times of war.
2. The Articles of War explicitly provided that military tribunals would have
jurisdiction against offenses against law of war, therefore the Pres acted
under Congressional authority.
3. The only limitations are those cases which require trial by jury, not
demanded in this case.


(a)Hamdi v Rumsfeld (Pres may NOT suspend petitions for habeaus

corpus, ie deny enemy combatants a minimum amount of due process)

(i) Principle:
a. President’s inherent constitutionally vested powers do NOT
alter the constitutional balance that requires judicial review
when the President imprisons a citizen, even an alleged enemy
combatant captured on the battlefield
b. Court REJECTED Governments Argument that military context
of imprisonment vests absolute authority to executive under
Commander and Chief and other vested powers over military
and national security
i. Court held that this would UNDULY AGGRANDIZE EXECUTIVE

c. Prisoners entitled to Due Process Protections

i. Due Process requires that a citizen held in the United States
as an enemy combatant be given a meaningful opportunity
to contest the factual basis for that detention before a
neutral decisionmaker
ii. A citizen-detainee seeking to challenge his classification as
an enemy combatant must receive notice of the factual
basis for his classification, and a fair opportunity to rebut
the Government’s factual assertions before a neutral
(ii) Facts:
a. A foreign citizen was detained by the US in Afghanistan and held in
South Carolina.
b. Bush Admn asserted that he was an enemy combatant, and that as a
result executive branch had the power to hold him indefinitely, without
charges or proceedings, so long as hostilities continued.
c. Hamdi challenged the order in order to challenge his enemy combatant
(iii) Holding:
a. The defendant has the right to challenge the designation, and a
minimum level of procedural process is due (although maybe reduced
b. A Balancing Test is used (Matthews) weighing the govt interest
(national security) and the defendant’s interest in the action (loss of
c. Even though US govt interest is significant, defendant is due a
minimum of process including notification of the factual basis of his
designation, fair opportunity to rebut the factual assertions before a
neutral decisionmaker, and access to counsel for the proceedings.

(b)Hamdan v Rumsfeld (Pres may not violate Congressional enactments

even in exercising executive/commander in chief powers without
explicit authority from Congress)
(i) Principle
1. Youngstown Sheet and Tube Approach Utilized
a. President at LOWEST EBB (Acting Contrary to Congressional
i. Congress’ ratification of the Geneva Convention AND the
Uniform Code of Military Justice specified that military
commissions must adhere to certain procedural safeguards
ii. Presidents Executive Order Establishing Military
Commissions did NOT apply these procedural safeguards
iv. President without inherent and sole authority to enact
military commissions
a. Shared authority with Congress
(ii) Facts:
a. After 9/11 attacks Congress passed the Authorization for the Use of
Military Force (AUMF), authorizing Pres to use all “necessary and
appropriate” force against any parties responsible for or aiding the
terrorist attacks.
b. Pres Bush issued executive order stating that all non-citizens he
believed to be a member of Al Qaeda were to be tried by a military
c. The exec order also stipulated procedures for the commissions which
gave defendants less protection than courts martial which were
controlled by Uniform Code of Military Justice (UCMJ).
(iii) Holding:
a. The executive order to hold military tribunals was valid, under the
b. However, the AUMF did NOT authorize the Pres to set the procedural
rules of such commissions at variance to the UCMJ.
c. The UCMJ requires that its procedures be followed UNLESS the
procedures were impracticable.
d. The procedures were not impracticable, and in passing the AUMF,
Congress did not intend to give the Pres such authority to override the
UCMJ without practical necessity.
(iv) Import: If Congress wants to authorize the Pres to exercise a particular
wartime power (such as altering UCMJ procedures), then it will have to do so
(v) Key Question: would the Congress reasonably have believed that it was
authorizing the action? (military commissions yes, altering a previous statute

f) Congressional Violations of the Separations of Powers

(1) Congressional Non-delegation doctrine:
(i) the Congress is limited in its ability to delegate legislative power to
branches/parties other than itself

(2) Separation of Powers and Judicial Review: Formalism vs


(a) INS v Chadha (Invalidation of the Legislative Veto on Formalist

(i) Facts:
a. An immigrant overstayed his student visa, and after a hearing was
ordered to be deported.
b. He applied for a suspension of the deportation order to the Attny
General, who granted the suspension under the Immigration and
Nationality Act.
c. The Act provided that the Attorney General was permitted to decide
whether to deport an alien – delegation of congressional power to
i. The Act also permitted either chamber of the Congress to veto the
Attny General’s suspension, which the House did.
(ii) Holding - Burger (FORMALIST):
b. The decision to override the Attorney General’s decision is
LEGISLATIVE in nature and thus is subject to the requirements
of BICAMERALISM (Art I §1,7) and PRESENTMENT (Art I §7, cl 3)
i. Legislative veto does NOT conform to this requirement
c. The Congress is required under the constitution, Art I Sec 7, to make
law by passing it through both chambers and presenting it the to the
President (presentment clause).
d. The Congress’ veto affects the rights, duties and obligations of people,
therefore it is legislative in nature (but administrative regulations are
also legislative in nature, but exercised by executive branch).
e. The legislative veto violates both the bicameralism and presentment
required under Art I Sec 7, therefore it is invalid.
(iii) Dissent -White (FUNCTIONALIST):

b. The legislative veto is practically identical to the constitutional
i. Either house or the president can prevent the passing of a
law, and under the Act, either the executive (Attny General)
or either house (per the Act) could prevent suspension of
deportation order.
c. Moreover, the legislative veto permits Congress to retain some
legislative control over executive discretion, thus serving as a check
and balance against abuse of discretion by the executive, a principle
adopted by the framers.
d. Though strictly violating separation of powers, the legislative
veto actually promotes the purpose of separation, which is to
prevent usurpation of power through checks and balances.

(b)Clinton v City of New York (Presidential powers & Line Item Veto)
(i) Principle:
a. The cancellation provisions authorized by the Line Item Veto
Act are unconstitutional
(ii) Facts:
a. Line Item Veto Act, seeking to reduce budget deficits, gave the
President power to cancel any of several types of provisions contained
in new statutes enacted by Congress.
b. The Act allowed the President to sign an entire bill into law, THEN
cancel any individual spending or limited tax benefit item he wished
within 5 days.
c. The vetoed item could be restored with a disapproval bill (subject
again to President veto).
(iii) Holding - Stevens (FORMALIST)
i. The line item veto is unconstitutional.
ii. Even though the constitution says nothing about the President
making law there is explicit language in the Constitution about law
making by Congress.
iii. The constitution requires that a bill pass both houses
(bicameralism) and be presented/signed by President (presentment
iv. The Act violates the Presentment clause b/c the cancellation occurs
after the bill has been signed into law, AND allows cancellation of a
part of bill rather than the whole thing.
v. In essence – president is making laws
vi. The Act was a framework Act that gave Pres an intelligible principle,
BUT it permitted exercise of that discretion COUNTER to
Congressional will and UPON Congressional law (not simply within
(iv) Dissent – Breyer (FUNCTIONALIST)
1. Has Congress given the President the wrong king of
power (non executive)?
Answer: NO – power is to exercise spending
2. Has Congress given the President the power to
“encroach” upon Congress’ own
constitutionally reserved territory?
Answer: NO because Congress reserves ability to state
that Line Item veto will not apply AND overrule
presidential line item veto
3. Has Congress given the President too much power
violating the non- delegation principle?
Answer: NO – Congress has provided “intelligible
principle” to follow
AND is power limited in nature

7)Congressional Control Over Executive Appointments

a) Appointments Clause (Art II, Sec 2, Cl 2)
i) “The President shall appoint Amabassadors, other public Ministers and Consuls, Judges
of the Supreme Court, and all other Officers of the US, whose appointments are not
herein otherwise provided for, and which shall be established by law; but the Congress
may be Law vest the Appointment of Inferior Officers in the President alone, in the
Courts of Law, or in the Heads of Depts.”
(1) Jusification: Pres can best take care to execute the laws when everyone is on the
same page (with President), and President is best positioned to evaluate executive
(a) General Rules For Appointments
(i) Principle Officers
a. President is constitutionally vested with the power to appoint
these individuals and Senate must decide whether the approve
the nomination
b. Congress cannot take away or limit the President’s right to
make such appointments
c. Senate must merely approve or disapprove of such
d. Examples
i. Ambassadors
ii. Cabinet Officials
(ii)Inferior Officers
a. Article II, Section 2
b. Congress cannot make inferior officer appointments
c. HOWEVER, Congress can give power to appoint inferior officers
i. President
ii. The Judiciary
iii. Heads of departments (cabinet officials)
(iii) Distinction between “Principle” and “Inferior” Officers
a. Morrison v. Olson
i. Special Prosecutors are inferior officers
(iv) Congress may NOT may any appointments of Federal Officials
i. Congress may make its own appointments of persons to

excise “powers…essentially of an investigative and
informative nature”
ii. Buckley v. Valeo
(b)Buckley v Valeo
(i) Principle:
a. Any appointee exercising significant authority (ie, “power”)
pursuant to the laws of the US is an “officer” under the
appointments clause, and MUST be appointed by the President
(formalistic approach due to express textual provision).
(ii) Facts:
a. Federal Election Campaign Act created Federal Election Commission to
investigate campaign finance violations, make rules and binding
advisory opinions, and bring civil suits against violaters.
b. Commission made up of 2 members appointed by President of the
Senate, 2 members appointed by Speaker of the House, and 2
members by President.
(iii) Holding:
a. Any appointee exercising significant authority (ie, “power”)
pursuant to the laws of the US is an “officer” under the
appointments clause, and MUST be appointed by the President
(formalistic approach due to express textual provision).
b. The commission may constitutionally perform investigative functions
(Congress may appoint members to legislative commissions), but may
NOT perform executive functions (ie, bringing court action) b/c doing
so requires exercising “power” outside of the legislative sphere, and
therefore they MUST be appointed by the President pursuant to
Appointments clause.
c. Congress may not appoint any person/party that may alter the
rights/duties of those outside of the legislative sphere.

b) Removal Of Executive Officers (Constitutionally vested in Pres.

by implication); the Power to Remove is the Power to Control
(i) President’s Right to Remove Appointees
1. Quasi-legislative and Quasi-Judicial Officers
a. Congress may limit or completely block the President’s right of
i. Humphrey’s Executor v. U.S.
2. Purely Executive Officers
a. Congress may limit the President’s right to remove even a
purely executive officer so long as the removal restrictions are not
“of such a nature that they impede the President’s ability to
perform his constitutional duty”
i. Morrison v. Olson
(ii) Removal by Congress
1. Congress may NOT reserve to itself the power to remove executive
officers UNLESS through IMPEACHMENT
a. Impeachment Process
i. Article II §4

ii. “The President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment for,
and Conviction of, Treason, Bribery, or other high Crimes and
iii. Requires:
1. House to vote (majority) to impeach
2. Two-thirds of present Senators vote to Impeach

(b)Bowsher v Synar (Invalidation of executive powers b/c of Congress’

power of removal, on formalist grounds)
(i) Principle:
a. Congress cannot reserve for itself by the power of removal of
an officer charged with the execution of the law (executive
offier) except by impeachment
(ii) Facts:
a. Gramm-Rudman Act sought to reduce federal budget deficits by
setting maximum deficit amounts for a period of years.
b. If deficit exceeded the maximum amount, the Act required cuts in
federal spending to be determined by the Comptroller General.
c. Statute had provided that Congress reserved the right to terminate
Comptroller for specified reasons.
(iii) Holding (FORMALIST):
1. Because Congress reserved in itself the right to remove the Comptroller,
he is an agent of the legislature, ie Congress cannot remove executive
2. The Comptroller was given executive powers under the Act, thus the
Congress violated the separation of powers doctrine.
(iv) Dissent (FUNCTIONALIST):
1. Simply reserving in itself the right to terminate the Comptroller for
specified reasons does not convert the position into that of an agent of
2. Instead, the question is whether there is any genuine threat of
encroachment or aggrandizement of one branch by another, and the
removal provision posed no threat to separation of powers.

(c) Myers v US (Limits on limits of Pres removal authority)

(i) Facts:
1. Federal statute provided that postmasters shall be appointed and
removed by the President WITH advice and consent of the Senate.
2. Pres Wilson fired a postmaster without Senate approval.
(ii) Holding:
1. Decision of 1789 (1st congress) held that Pres is constitutionally
vested (implicitly) with the “sole” power to remove federal
2. Pres is best positioned to evaluate the performance of officers.
3. Therefore, it is an unconstitutional violation of powers for Congress to
aggrandize itself (or limit the executive’s power) by requiring Senate
approval of removals.

(d)Humphrey’s Executor v US (overrules/limits Myers to “purely

executive” officers)
(i) Facts:
1. Humphrey appointed to Federal Trade Commission (regulates unfair
business practices by making rules, adjudicating disputes and rendering
judgment, and bringing lawsuits) by President Hoover, with confirmation
of the Senate.
2. FTC only allowed President to remove a commissioner for “inefficiency,
neglect of duty, or malfeasance in office.”
3. 2 years later FDR fired Humphrey for political reasons.
(ii) Holding:
1. The Pres removal authority may be limited.
2. The power to remove is the power to control.
3. FTC was designed to be non-partisan, expert body free of political control.
4. The actions of the commission were not “purely executive” but were
instead quasi-legislative (making rules) and quasi judicial (can adjudicate
5. The executive functions of the commission were merely incidental to the
other functions.
6. Under a functionalist/deferential approach to the Act’s creation of
the commission, the Congress may limit the Pres removal
authority b/c commission members not “purely executive”

(e)Morrison v Olson
(i) Principle:
1. The Congress may limit the Executive’s removal power so long as
“core” duty is not Prevented.
(ii) Facts:
1. Ethics in Govt Act required Attny General upon sufficient grounds to
investigate violations of criminal law by high ranking executive officials.
2. After preliminary investigations, if Attny General believed further
investigation was warranted, he was required to report to a Special
Division court made up of 3 Circuit Court judges appointed by the Chief
Justice, who then appointed an independent counsel to continue
3. Once appointed, the independent counsel could only be removed
by Attny General for “good cause”
1. The removal provision is constitutional b/c the test is NOT whether the
function performed is “purely executive” (overruling/modifying
Humphrey’s Executor), and instead whether the Pres ability to
perform his duties is “prevented.” (functionalism vs formalism).
2. The independent counsel has limited tenure/jurisdiction, and the Attny
General retains significant control over the independent counsel, therefore
the Pres executive powers are not “prevented.”
3. No Separation of Powers Violation
a. Not an attempt by Congress to increase powers at expense of
Executive Branch
b. The act does not allow judiciary to usurp executive powers
c. The act does not impermissively undermine the powers of the
Executive Branch or disrupt the balance of power between the
(iv) Dissent – Scalia (FORMALIST)
1. All executive power vested in President
2. The statute’s limiting the ability of the independent counsel to be fired for
good cause limits the inherent executive power
(f) Mistretta v United States, 1989 (flexible/functionalist approach to
separation of powers)
(i) Facts:
1. Sentencing Reform Act abolished indeterminate sentencing system for
federal crimes, and created the US Sentencing Commission to promulgate
binding sentencing guidelines for determinate sentencing according to
various specified factors.
2. The Commission was an independent commission within judicial branch.
3. A convict challenged the guidelines as violating separation of powers and
improper delegation of legislative authority.
(ii) Holding:
1. the guidelines are constitutional.
2. The SRA does not grant excessive legislative discretion to the Commission
(not violating non-delegation doctrine),
3. Instead, the commission followed Congress’ requirements re: hierarchies
of punishment and offense characteristics.
4. Moreover, the commission is not a court, ie has no adjudicative power,
and does not expand judicial power b/c establishing sentencing was a
power previously vested in the judiciary.
5. Also, judiciary branch regularly does combine rule making and substantive

c) Executive Privilege & Immunity

i) Nixon v Fitzgerald (civil immunity for official acts & general separation of
(1) Principle:
(i) President has ABSOLUTE IMMUNITY from CIVIL DAMAGES for all
(2) Facts:
(i) Fitzgerald was fired from a Defense Dept job for what he claimed was
retaliation for testimony he gave criticizing military cost overruns.
(ii) He sued Nixon for violating statutory rights.
(3) Holding:
(i) President is entitled to ABSOLUTE IMMUNITY from civil damages for all
OFFICIAL acts (very broad interpretation, ie anything done while in office),
although impeachment is still available from congress.
(ii) The reasons this such immunity include
1. 1) Allowing the Pres to act without fear of personal liability
(avoiding timidity of action),
2. 2) Limiting floodgates of litigation against President, and
3. 3) Avoiding distractions to President b/c office requires constant


(b)Clinton v New York (civil immunity for personal acts & general
separation of powers)
(i) Principle:
a. President has NO IMMUNITY from civil actions for NON-
(ii) Facts:
a. Jones filed suit against Clinton while he was in office for actions that
occurred prior to his election.
b. Clinton argued that he should have temporary immunity against civil
litigation while in office, under the holding in Fitzgerald.
(iii) Holding:
a. Unanimously held that President has NO IMMUNITY for NON-OFFICIAL
acts, even while in office.
b. Revising/clarifying Fitzgerald, court held that primary reason for
civil immunity is to promote decisiveness and avoid timidity of
official action, and civil suits for personal actions do not require
immunity (even though such suits may significantly distract President
and impair his ability to adequately executive his duties).

(c) US v Nixon (executive privilege & general separation of powers)

(i) Principle:
a. Absent a claim of need to protect military, diplomatic, or
sensitive national security secrets, an absolute, unqualified
presidential privilege of immunity from judicial process does
NOT exist
i. President has a constitutionally based presumptive executive
privilege, even for general communications, but that privilege is
conditional and outweighed by the Public & Court’s search for
Truth & Justice (in criminal proceedings). The holding does NOT
apply to Civil court or Congressional proceedings.

(ii) Facts:
a. A federal grand jury indicted seven Nixon aides on charges of
conspiracy to obstruct justice and other offenses under Watergate
b. President was an unindicted co-conspirator, and the prosecutor issued
a subpoena duces tecum to President requiring him to produce
white house tapes.
c. Nixon refused on the basis of executive privilege and violation of
separation of powers (by subjecting executive to judicial power).
(iii) Holding:
a. Although Constitution is silent, there is a constitutional basis for
an executive privilege to the extent that it relates to the effective
discharge of the President’s duties
i. (eg, state secrets and even general communications b/c of need for
candor in advice/communication).
ii. Even General Pres Communications are given a presumptive
privilege, however that privilege is CONDITIONAL.
iii. The executive privilege must be weighed against the fair
administration of (criminal) justice, and the court has the
POWER to assert control over the President in its search for
Truth & Justice.
2. Note: however, argument can be made that availability of impeachment
bars criminal prosecution of President BEFORE removal from office.

8) The Bill of Rights, Incorporation, and Determining if a Right


i) Before the Civil War Amendments

(1) Not applicable to the States directly
(i) Barron v. The Mayor and City Council of Baltimore
1. “Had the framers of [the Bill of Rights] Amendments intended them to
be limited on the powers of the state governments, they would have…
expressed that intention… in plain and intelligible language.

b) Enactment of the Civil War Amendments

(1) Led to the application of the Bill of Rights to the States
(a) Fourteenth Amendment
(i) “No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life, liberty,
or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the

(b) Due Process of Law and Differing Ideas of Incorporation

(i) Selective Incorporation/Fundamental Rights Approach
(Cardozo and Frankfurter) -MAJORITY
2. Palko v. Connecticut
a. TEST:
i. Whether the Bill of Rights guarantee is of “the very
essence of a scheme of ordered liberty… [and whether] it is a
fundamental principle of liberty and justice which lie at the
base of all of our civil and political institutions”
b. Rights that are Incorporated under this view
i. Most Bill of Rights
ii. Other Fundamental rights
c. Rights that are NOT incorporated under this view
i. Grand jury indictments
ii. Protection against self incrimination

(ii) Total Incorporation (Black Dissent) – MINORITY

1. Adamson v. California

a. Majority
i. Partial Incorporation Prevailing View
b. Black Dissent
i. “Due process requires total incorporation of the Bill of

(iii) Modern
Approach of Incorporation of the Bill of Rights and
other Fundamental Rights
1. Duncan v. Louisiana
i. The Court incorporatesinto the Fourteenth
Amendment any guarantee which is “fundamental in the
context of the [judicial] process maintained by the
American States”
ii. Portions of Bill of Rights that have been incorporated under
this test
1) Right to compensation for property taken by the states
(Fifth Amendment)
2) Right of speech, press, and religion (First Amendment)
3) Right against unreasonable search and seizures (Fourth
4) Right against self-incrimination (Fifth Amendment)
5) Right to counsel, a speedy trial, and confront witnesses
(Sixth Amendment)
6) Compulsory process to obtain witnesses
b. Principle
i. The Right to a jury trial in serious criminal cases punishable by
at least two years in prison is a fundamental right which must be
recognized by the states as part of their obligation to extend due
process of law to all persons within their jurisdiction
c. Facts
i. Duncan was charged with battery punishable by up to a 2 year
ii. Duncan requested jury trial which was denied
iii. Duncan sued claiming that fourteenth amendment required
d. Holding
i. Right to a jury trial in serious criminal cases is a fundamental right
which must be recognized by the state under the requirements of the due
process clause of the Fourteenth Amendment.
(i) Look to the Penumbras of the various amendments held to be
1. Determine if there is implicitly a fundamental guarantee which
falls into this realm
(ii)“Ordered Liberty”
1. Look to the history and tradition

14th Amendment’s
(3) Protection of Privileges and

(i) Protections of Privileges

1. Right to Travel
2. Right to Access Navigable Waters
3. Right to Petition Government

(i) The Slaughterhouse Cases
a. Principle
i. The Fourteenth Amendment Protects the privileges and
immunities of national, not state, citizenship AND neither
equal protection, Due Process, or Privileges and Immunities
Clause of that Amendment may be use to interest with State
control of the Privileges and Immunities of STATE CITIZENSHIP
ii. The effect of this decision was to essentially render the 14th
Amendment Privileges and Immunities Clause ineffectual as a means
of protecting individual rights from state abridgement
b. Facts
i. Louisiana gave monopoly to slaughterhouse company
ii. Butchers (P) who was not included in the monopoly challenged the law
on the grounds that it violated the 14th Amendment’s Privileges and
Immunities clause
c. Holding
i. The 14th Amendment’s Privileges and Immunities provision applies only
to national and not state citizenship
ii. Therefore, no protection provided to non-working butchers

ii) Saenz v. Roe

(1) Principle
(a) Durational residency requirements to receive state welfare funds
violates the fundamental right to travel by denying a newly arrived
citizen the same privileges and immunities enjoyed by other citizens of
the same state
(b) Privileges and Immunities provision of the 14th Amendment
provides that
(i) A citizen of the US can, of his own volition, become a citizen of
and State of the Union by residing therein, with the same
rights as other citizens of that state
(2) Facts
(a) CA set law which required 12 month residency to obtain the welfare benefits of
that state
(b) Until then – new residents were restricted to receive only the benefits their

former state provided
(3) Holding
(a) Right to travel is a fundamental right which is applied to states via 14 th
(b) State cannot pass strict scrutiny – compelling reason, narrowly tailored
(i) States only reason was to save money – this not enough

9) Economic Substantive Due Process

a) Before 1934
i) Initial Hesitance
(1) Slaughterhouse Cases
(a) Initial reluctance by the Court to conclude that the due process protection
provided by the Fourteenth Amendment might limit the state’s powers
(b) Court Concluded that the state-created butcher monopoly did not violate the due
process clause
ii) Rise of Substantive Due Process
(1) Reasons:
(a)Natural Rights Theory
(i) Doctrine which held that certain rights were “fundamental” or “natural”
rights which derived from the nature of things (and not the Constitution or
other legal authority)
(b)Laissez-faire economic theory
(i) Theory that national well-being would be maximized by minimizing
governmental interference with business
(2) Court began to increase scrutiny
(a) Munn v. Illinois and Mugler v. Kansas
(i) Court didn’t overturn state law but indicated underlying theory of
fundamental law
(3) Court Adopts Substantive Due Process
(a)Lochner v. New York (BAD!)
(i) Facts
a. NY law prohibited bakery employees from working more than 10 hours
a day or more than 60 hours a week
1. State law invalid because it violates right to contract which is
protected by the 14th Amendment
a. Incorporated under Amendment’s protection of “Liberty”
2. State’s defense of protecting the public is illfounded
a. Note: No deference to legislature
(b)After Lochner
(i) Supreme Court widely invalidated economic legislation on substantive due
process grounds

iii) Fall of Substantive Due Process’ Application to Economic

(1) Nebbia v. New York
(i) A state is free “to adopt whatever economic policy may be
reasonably deemed to promote public welfare, and to enforce that policy
by legislation adapted to that purpose”
(ii) Due process requires only that “the law shall not be unreasonable,
arbitrary or capricious, and that the means selected shall have a real and
substantial relation to object sought to be attained”
(iii) Law must have a rational relationship to a legitimate purpose
(i) New York passed law which allowed to fix minimum and maximum milk prices
(ii) Justified on police power to protect the public health
(c) Holding
(i) New York Law is valid
(ii) Deference given to legislature

(2) West Coast Hotel v. Parrish (Explicit Overrule of Lochner

(i) State passed a law setting a minimum wage for women
(i) State law is a valid exercise of state police power
(ii) Overrule the freedom to contract notion – overruled Adkins
(iii) Substantial weight provided to legislature’s determination that women had
inferior bargaining power and minimum wage necessary to redress this fact

(3) US v. Carolene Products

(a) Principle
(i) “The existence of facts supporting the legislative
judgment is to be presumed, for regulatory legislation
affecting ordinary commercial transactions is not to be
pronounced unconstitutional unless… it is of such a character
as to preclude the assumption that it rests upon some rational
basis within the knowledge and experience of the legislators
a. Presumption of Constitutionality applied for case of
economic legislation in instance of due process attack
b. Minimum rationality standard applied
(ii) Instances when the Court may applied more strict judicial
1. Caroline Products Footnote 4
a. Strict scrutiny appropriate “when legislation appears
on its face to be within a specific prohibition of the
Constitution, such as those of the first ten Amendments
i. Examples
a. Restrictions upon the right to vote
b. Restraints upon the dissemination of information
c. Interference with political organizations
d. Prohibition of peaceful assembly
b. Other instances where strict scrutiny is appropriate
i. Statutes directed at particular religious or racial
ii. Prejudice against discrete and insular minorities

(4) Williamson v. Lee Optical Co

(i) The Due Process Clause will no longer be used to strike down state
laws regulating business and industrial conditions because they may be
unwise, improvident, or out of harmony with a particular school of thought
(ii) Court willing to hypothesize reasons behind legislatures action even
though there is no evidence to suggest such
(i) Oklahoma had a statute that prohibited opticians from fitting eyeglass lenses
into frames without a prescription from an ophthalmologist or optometrist
(ii) No rational provided
(c) Holding
(i) Court upheld law against due process challenge
(ii) Court was willing to hypothesize that the legislature “might have concluded”
that in some instances prescriptions were necessary to permit accurate fitting, or
that “eye examinations were so critical, not only for correction of vision, but also for
the detection of latent ailments or diseases, that every change in frames and every
duplication of lenses should be accompanied by a prescription from a medical


(a) Principle
(i) Supreme Court has withdrawn almost completely from the
business of reviewing state legislative economic regulation for
substantive due process violations
(i) “Minimum Rationality”
a. State must have a legitimate Interest it wishes to Protect
b. Objective being pursued must fall within state’s police
i. Which is broadly defined to include virtually any health,
safety, or general welfare provision
c. There must be a minimally rational relation between the
means chosen and the end being pursued
i. There will be a presumption of constitutionality unless the
legislature has acted in an “arbitrary and irrational” way
d. Court may hypothesize an end which the legislature is

iv) Punitive Damages and Substantive Due Process
(1) BMW v. Gore
(a) 381
(2) State Farm v. Campbell
(a) 382
(3) Phillip Morris v. Williams
(a) 383

v) The Takings Clause and Substantive Due Process

(1) Constitutional Source:

(a) 14th Amendment’s Guarantee of Due Process which incorporates 5th
(i) Private property shall not be taken for public use without just compensation

(2) “Public Use”

Court has provided state legislatures with broad degree of
(i) Rules:
1. So long as the state’s use of its eminent domain power is
“rationally related” to a “conceivable public purpose”
the public use requirement is satisfied
i. Hawaii Housing Authority v. Midkiff
2. The property need not be open to the general public
after the taking
i. Kelo v. City of New London
(ii) Cases
1. Berman v. Parker
a. Principle
i. Public use merely requires a public purpose
ii. “The role of the judiciary in determined whether [the eminent
domain power] is being exercised for a public purpose is an
extremely narrow one”
b. Facts
i. DC authorized the taking of property for the purpose of redeveloping
blighted areas
ii. Government could rebuild on property and then lease or sell the
developed property
iii. Purpose: to make the community beautiful, clean, spacious and well-
c. Holding
i. Valid exercise of taking power

2. Hawaii Housing Authority v. Midkiff

a. Principle
i. “Public use” merely requires “public purpose” – literal reading
of constitution rejected
ii. “When the legislatures purpose is legitimate and its means are
not irrational, our cases make it clear that empirical debates over
the wisdom of takings…are not to be carried out by the courts”
iii. “The mere fact that property taken outright by eminent
domain is transferred… to private beneficiaries does not condemn
that taking as having only a private purpose”
b. Facts
i. A few land holders controlled 47% of state’s land (49% owned by gov)
leaving less than 4% of land for other private owners
ii. Gov took land under eminent domain and resold it
iii. Purpose: Correct residence market, curb inflating prices, and aid public
tranquility and welfare
c. Holding
i. Valid exercise of taking power

3. Kelo v. City of New London

a. Principle
i. Governmental development constitutes a “public use” under
the 5th Amendment
ii. “Our public use jurisprudence has widely eschewed rigid
formulas and intrusive scrutiny in favor of affording legislatures
broad latitude in determining what public needs justify the use of
the takings power”
b. Facts
i. New London, Conn. attempted to take private land to give to Pfizer for
$300 million dollar facility
ii. New London had faced decades of financial decline
c. Holding
i. Valid exercise of takings power
d. Dissent (Thomas)
i. Would return to literal interpretation of constitution – pubic use

vi) Regulatory Takings

(1) Rule:
(a) “While property may be regulates to a certain extent, if
regulation goes too far it will be recognized as a taking”
(2) Standard of Review
(a) Middle Scrutiny
(i) Inquiry depends on the nature of the regulation
(3) Taking v. Regulation
(a) If Taking:
(i) Compensation must be paid
(b)If Regulation:
(i) If regulation consistent with state police power, compensation need not
be paid

(4) General Rules for Taking

(a) Penn Central Balancing Test (ZONING/LANDMARKING)

(i) Each regulatory taking question involves an ad hoc analysis of the
factual circumstances presented
1. Some deference given to state’s legislative judgments, but court will
nevertheless examine the case itself.

(ii) List of factors to consider in balancing public gain against

private harm:
a. Economic impact of the regulation on the claimant
b. The extent to which the regulation has interfered
with distinct investment-backed expectations
c. Character of the governmental action
i. More likely to find taking when there is a
permanent physical invasion

(b)Physical Use
(i) Rule
1. If the government makes or authorizes a permanent
physical occupation of the property at issue, this will
automatically constitute a taking which requires
a. Per se Rule
1. Loretto v. Teleprompter Manhattan CATV Corp.
a. Principle
i. When the government authorizes even a minor “permanent
physical occupation” of an owner’s property, there is a taking
without regard to the public interest that the governmental action
may serve.
ii. No deference given to state legislature
b. Facts
i. NY law required landlords to allow cable providers to hook up wires
on landlord’s property
ii. Health and safety justification – news, emergency notification, etc.
c. Holding
i. NY law constitute a regulatory taking for which compensation must
be paid

(c) Diminution in Value

(i) Rule
1. The more drastic the reduction in value of the owners
property, the more likely a taking is to be found.
1. Pennsylvania Coal v. Mahon
a. Principle
i. While private property may be regulated to a certain
degree, a taking under the 5th Amendment will be found if
the regulation results in a severe diminution of value.
ii. While considerable deference is given to legislature’s
judgment, each case will turn upon its particular facts.
b. Facts
i. Penn passed a statute that forbade the mining of coal in such a
manner as to cause the subsistence of any structure used for
ii. Plaintiff’s land was being mined underneath house – and sued to
make defendant stop mining
c. Holding
i. State’s regulation constitutes a taking of land for which
compensation must be paid.

2. Miller v. Schoene
a. Facts
i. VA law provided for the destruction of cedar trees that might be the
source of a plant disease
ii. There were no other means of quelling the problems other than kill
the tree
b. Holding
i. Not a taking.
ii. Deference given to the legislature’s judgment that this was require
for the preservation of one class of property at the expense of
3. Keystone Bituminous Coal Ass’n v. Debenedictis
a. Facts
i. Penn passed a law prohibiting coal mining that caused damage to
houses above mining
ii. Required that 50% of the coal be kept in place to provide surface
b. Holding
i. Not a taking
ii. Unlike Penn Coal, this law involved protection of “the public health,
the environment, and the fiscal integrity of the area, and, the
amount of coal that the plaintiff’s could not mine was less than 2%
of its entire supply.

(d)Denial of all Economically Viable Use of Land

(i) Rule
1. Regulatory action is compensable (a taking) without
case-specific inquiry into the public interest advanced
in support of the restraint [where] regulation denies all
economically beneficial or productive use of the land
i. No deference given to legislative judgment
2. The only way a State can sustain a regulation that deprives all
economically beneficial use is if the individual did not have right in title to
begin with

1. Lucas v. South Carolina Costal
a. Principle
i. Regulatory action is compensable (a taking) without case-specific
inquiry into the public interest advanced in support of the restraint
[where] regulation denies all economically beneficial or productive
use of the land
b. Facts
i. Lucas paid nearly 1 million for two lots on which he planned to build
a single family home
ii. SC passed law which barred Lucas from building on the lots
c. Holding
i. SC’s action constituted a taking
(e)Landmark Preservation
(i) Penn Central v. NYC
1. Facts
a. NYC passed a preservation law which designated the Grand Central
terminal as a landmark and required the owner to keep the building’s
exterior in good repair
b. Owner wished to build above the terminal and NYC said no
2. Holding
a. Not a taking
b. The restrictions imposed are substantially related to the promotion of
the general welfare
c. The restrictions do not deny the owner of any beneficial use
d. The property still retains significant value

(f) Conditions of Development Permits

(i) Rules
1. The means chosen by the local government must
“substantially advance” a legitimate government aim
2. The “give back” required of the property owner must
be “roughly proportional” to the harm caused by the
new land use

1. Nollan v. California Costal
a. Principle
i. The means chosed by the government’s land use regulation must
“substantially advance” the governmental objective
b. Facts
i. Nollans were owners of beachfront property who sought to build
larger house
ii. City required that – to get permit to build – Nollans had to allow the
public access to the beach through their property
c. Holding
i. Conditions on beachfront building permit constituted a taking
ii. There is not a sufficient connection between allowing for Nollans to
build a bigger house and allowing the public to go thru their

2. Dolan v. City of Tigard

a. Principle
i. When a government conditions a building permit on some “give
back” by the owner, there must be a “rough proportionality”
between the burdens on the public that the building permit would
bring about, and the benefit to the public from the give back.
b. Facts
i. Dolan sought permit to increase size of store
ii. The city condition this permit on Dolan’s agreement to dedicate a
portion of her property for flood control and traffic improvement
c. Holding
i. City’s conditions on building permit were a taking
ii. There was not a rough proportionality between what the property
owner was giving back and the burden that was inflicted on the

vii) The Contracts Clause and Substantive Due Process

(1) Constitutional Source

(a) Article I § 10
(i) “No state shall… pass any…Law impairing the obligation of

(2) Exception to Contract Clause where a vital public interest

(a) Home Building & Loan Ass’n v. Blaisdell
(i) Principle
1. A state may effect the obligation between two contracting parties
so long as:
i. (1) an emergency exists
ii. (2) the legislation is addressed to a legitimate end
iii. (3) the relief afforded and justified by the emergency could
only be of a character appropriate to that emergency
iv. (4) the conditions upon which relief is granted do not
appear to be unreasonable
v. (5) the legislation is temporary in operation
2. Contracts clause is NOT to be interpreted thru eyes of
framers, but rather, must evolve to meet modern
1. In 1933 Minn enacted a statute authorizing county courts to extend the
period of redemption from foreclosure sales for such a time as the “court
may deem equitable”
2. Home Building and Loan challenged the law as a violation of the Contract
(iii) Holding
1. A state may effect the obligation between 2 contracting parties in
emergency situations
2. The prohibition embodied in the Contracts Clause is not absolute
3. Court does not adopt literal interpretation of Contracts Clause

(3) A law impairing a state’s own obligation is subject to

greater scrutiny
(a) United States Trust Co. v. New Jersey
(i) Principle
1. Court will closely scrutinize a state’s attempt to escape from its
financial obligations and will only permit such an escape where a
significant public need exists that cannot be reasonably handled
in any other way
1. In a bond issue, NY and NJ promised bondholders that certain revenues
pledged as security for the bonds would not be used to finance
unprofitable passenger railroad systems
2. 12 years later, NY and NY retroactively repealed this covenant so pledged
revenues could be used to improve rails service
(iii) Holding
1. The repeal violated the Contracts Clause
2. “An impairment of contractual obligations will be constitutional only if it is
reasonable and necessary to support an important public purpose”
a. Necessary:
i. Necessary only when the state’s public interest objectives could not
be met by less drastic modification
b. Reasonable
i. An impairment was reasonable only if the modification was induced
by unforeseen developments occurring after the contract was made
(4) Contract Clause and Private Obligations
(a) Allied Structural Steel Co v. Spannaus
(i) Facts
1. Minn. passed statute that required after an employee who had worked for
an employer for 10 years – he/she became entitled to benefits under any
pension plan the company may have
2. Allied pension plan took much longer than 10 years to vest
3. Allied closed down and was therefore obligated to pay pension for anyone
who had worked for more than 10 years
1. Acts imposition of new obligations on the employer was a violation of the
Contracts Clause
a. It did not respond to an emergency
b. Was not temporary
c. Expressly modifies the terms of a contract permanently

10) Substantive Due Process and Fundamental Rights

a) Rules
i) If a state impairs a fundamental right guaranteed through
substantive due process of the 14th Amendment, it applies
strict scrutiny:
(a) The state’s objective must be “compelling” (not merely
(b) The relation between the compelling state object and its
means to achieve it must be very closely tailored

ii) Abortion:
(1) A state act must have a rational basis to further a
legitimate state objective
(2) The state act must not impose a (undue burden)
substantial obstacle in the path of a woman seeking an
abortion before the fetus attains viability

b) Determining if a Right is FUNDAMENTAL


(a) Palko v. Connecticut
(i) TEST:
1. Whether the Bill of Rights guarantee is of “the very essence of a
scheme of ordered liberty… [and whether] it is a fundamental
principle of liberty and justice which lie at the base of all of our
civil and political institutions”
(ii)Rights that are Incorporated under this view
1. Most Bill of Rights
2. Other Fundamental rights


(a) Griswold v. Connecticut
(i) Look to see if the right can be found in “penumbras” and
“emanations” of other constitutional protections


(a) Although not specifically stated in any particular case, the vast
majority of the jurisprudence relative to the determination if a
right is fundamental has considered if the activity in question is
inherently personal

c) Early Application
i) Meyer v. Nebraska (Teach of a Foreign Language)
(1) Principle
(a) “Liberty” under the 14th Amendment incorporates the right
to teach a foreign language which is a “fundamental right”
(b) “Liberty” under the 14th Amendment ALSO denotes:
(i) Freedom from bodily restraint
(ii) Right of the Individual to Contract (scrapped)
(iii) To engage in the common occupation of life
(iv) To acquire useful knowledge
(v)To marry
(vi) To establish a home and bring up children
(vii) To Worship a God according to the dictates of one’s own
(2) Facts
(a) Nebraska law prohibited the teaching of German
(b) A German teach was convicted under this statute
(3) Holding
(a) This provision violated the 14th Amendment’s protection of Liberty

ii) Pierce v. Society of Sisters (Directing the upbringing of children)

(1) Principle
(a) It is a fundamental right, protected by the 14th Amendment’s
guarantee of due process, to direct the upbringing and
education of children under parents control
(2) Facts
(a) Oregon passed a law that required all children to attend public school
(3) Holding
(a) This state law violated the protection of the 14th Amendment

iii) Skinner v. Oklahoma (right to marry and reproduce)

(1) Principle
(a) The rights to marry and to reproduce are fundamental rights
(2) Facts
(a) Oklahoma passed a law that required for compulsory sterilization after a third
felony conviction involving “moral turpitude”
(3) Holding
(a) Such laws are invalid

d)Modern Cases
i) Griswold v. Connecticut (Married right to contraceptives)
(1) Principle
(a) The right of marital privacy is a fundamental right
(b) The right of married persons to use contraceptives is a
fundamental right
(2) Facts
(a) Conn. law forbade the use of contraceptives and counseling of married persons
to utilize contraceptives
(3) Holding
(a) The Conn. law violated a fundamental right of marital privacy and the state,
under strict judicial scrutiny, failed to demonstrate a compelling reason for this

ii) Eisenstadt v. Baird (Individual’s right to contraceptives)

(1) Principle
(a) Right of reproductive autonomy is a fundamental right
(b) The right to contraceptives is a fundamental right which
exists outside the marriage relationship and is a
fundamental individual right
(i) Although court declined to explicitly say this (because it decided the issue on
violation of equal protection– it can be deduced from the following statement:
(c) “Whatever the rights of the individual to access to contraceptives may
be, the rights must be the same for the unmarried and the married
alike… If the right of privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a
person as the decision whether to bear or beget a child”
(d) Right of reproductive autonomy exists in non-private situations
(i) Examples
1. Doctors office
2. Hospital
3. Hotel Room
(2) Facts
(a) Law required contraceptives to be distributed only be registered physicians and
pharmacists and ONLY to married persons
(3) Holding
(a) Law violates equal protection, even under minimum rationality standard

iii) Carey v. Populations Services, Intl. (Minors right to access

(1) Principle
(a) “Strict scrutiny is required for all restrictions on the access
to contraceptives because such access is essential to
exercise of the constitutionally protected right of decision in
matters of childbearing that is the underlying foundation of
the holding in Griswold, Eisenstadt, and Roe”
(b) The right to access contraceptives is a fundamental right for
(c) HOWEVER – although minors have constitutional rights, the
state has greater power over children than over adults
(2) Facts
(a) NY passed a law prohibiting the sale or distribution of contraceptives to minors
under 16
(3) Holding
(a) The court struck down the regulation
(b) It was unpersuaded that the state interest in discouraging sexual activity among
the young were sufficiently significant
(c) Further, court expressed substantial reason for doubt that limiting the access to
contraceptives will, in fact, substantially discourage early sexual behavior.

iv) Roe v. Wade

(1) Principle
(a) The right of privacy found in the 14th Amendment’s concept
of personal liberty and restrictions upon state action is a
fundamental right which is broad enough to encompass a
woman’s decision whether or not to terminate her
(b) A statute regulating a fundamental right, such as the right
to privacy, must be justified only by a compelling state
interest, AND the statute must be narrowly drawn
(2) Facts
(a) Texas passed a law which virtually abolished abortions
(3) Holding
(a) The state does have a legitimate interest in preserving the health of the
pregnant woman and in protecting the potentiality of life
(i) HOWEVER, this does not become “compelling” under later in the pregnancy
a. During the first trimester – no compelling state interest
i. Thus, the court may not ban or regulate abortions during this period
b. During the second trimester – state has compelling interest in
protecting mother’s health (but not fetus’ life)
i. State may place restrictions in ways which are reasonable related
to protecting mothers health
c. During the third trimester – state had compelling interest in
protecting life of fetus (because fetus is now viable)
i. State may prohibit abortions
ii. BUT – state must allow abortion to preserve the life or health of

v)Abortion Funding Restrictions

(1) Maher v. Roe
(i) Roe does not mean women have a fundamental right to an abortion
but rather has a fundamental right to be free “of unduly
burdensome interference with her freedom to decide whether to
terminate her pregnancy”
(ii)States may refuse to provide Medicare funding for non-therapeutic
abortions (those abortions which are not necessary for the health
and safety of mother)
(i) Conn. medicare gave full funding for expenses associated with childbirth BUT
gave no funding for non-necessary abortions (abortions which were not
necessary for health/safety of mother)
(c) Holding
(i) State’s funding places no obstacles in the pregnant woman’s path to abortion
(ii) Although the state has made it more financially advantageous to have a baby
rather than abort it, it does not place a restriction on the ability to have an

(2) Harris v. McRae

(i) A state or federal government may refuse to fund medically
necessary abortions
1. Exceptions – in the case of rape or incest OR where mother’s life
was in danger
(i) Federal funding scheme did not provide funding for medically necessary
abortions unless in the case of rape/incest OR where mother’s life was in
(c) Holding
(i) This funding scheme was constitutional
(ii) Women still retain the same “range of choice in deciding whether to obtain a
medically necessary abortion as she would have had if Congress had chosen
to subsidize no health care costs at all.
(iii)Just because parents have right to send children to private school or people
have rights to obtain contraceptives does not mean government has to fund

(3) Rust v. Sullivan

(i) “The government has no constitutional duty to subsidize an
activity merely because the activity is constitutionally
protected and may validly choose to fund childbirth over
abortions and implement that judgment by the allocation of
public funds for medical services relating to childbirth but not
to those relating to abortion”
(ii) Government’s decision to fund childbirth but not abortion does
not place obstacles in the path of a woman who chooses to
terminate her pregnancy
(i) A federally funding family planning project which providing counseling to
pregnant women was at issue
(ii) The program opted to educate family planning and birthing information
(iii)BUT was not allowed to educate, promote or advocate for abortion
(iv) If asked about abortion – program instructed doctors to state that it
“does not consider abortion an appropriate method of family planning”
(c) Holding
(i) This program was not unconstitutional because it does not place obstacles in
the path of women to choose abortion

(4) Webster v. Reproductive Health Services


(i) A state may prohibit all use of public facilities and publicly-
employed staff in abortion procedures
(i) Missouri law barred state employees and facilities from performing abortions
– even if the patient paid for the abortion herself
(c) Holding
(i) This is not unconstitutional in light of precedent that Due Process Clause does
not confer a right to governmental aid for abortions AND
(ii) This law does not impact the woman’s right to choose to have an abortion

vi) Altering Roe

(1) Planned Parenthood of Southeastern Penn. v. Casey

(a) Principle
(i) The State, from inception of the pregnancy, maintains its
own regulatory interest in protecting the life of the fetus
that may become a child
(ii) The undue burden standard is the appropriate means of
reconciling the State’s interest with the woman’s
constitutionally protected liberty
a. Only where a state regulation imposes an undue
burden on a woman’s ability to make [the decision
whether to abort] does the power of the State reach
into the heart of liberty protected by the Due Process
(iii) An undue burden exists, and therefore a provision of law
is invalid, if its purpose or effect is to place a substantial
obstacle in the path of a woman seeking an abortion
before the fetus attains viability

(iv) State action that does not constitute an undue burden

1. Informed Consent
a. A state may mandate that at least 24 hours before an abortion, a
doctor must provide information about the nature of the abortion, the
health risks of abortion, other non-abortion alternatives, and the likely
age of the fetus.
2. Waiting Period (incorporated in informed consent requirement)
a. A state may mandate that, before receiving an abortion, the woman
must make at least two visits to the doctor
3. Parental Consent w/judicial bypass
a. A state may pass a statute that provides that a woman under the age
of 18 may not obtain an abortion unless she and one of her parents
conforms to the informed consent requirement OR the minor-woman
obtains a judicial bypass.
4. General Record Keeping
a. A state may mandate that each facility that performs abortions file a
report identifying the physician, the facility, the referring physician or
agency, the woman’s age, the number of prior pregnancies and prior
abortions, medical complications that may have justified the abortion,
the weight of the aborted fetus, whether the woman was married. (In
state funded facilities – this information becomes public)
(v) State Action Considered to be an Undue Burden
1. Spousal Notification Requirement
a. A state may not require that a woman inform her husband and get his
signature OR sign a sheet that if she were to inform her husband, she
may have bodily injury inflicted upon her, in order for the woman to
get an abortion
b. Such procedure may prevent a significant number of women from
getting an abortion and thus, qualifies as an undue burden
(i) Penn passed a statute that regulated abortion in various ways
(c) Holding
(i) Court modifies strict scrutiny analysis to undue burden analysis
(ii) Court found the vast majority of the regulation not to constitute an undue
(d)Concurrence in part/Dissent in part
(i) Blackmun (wrote Roe)
1. The utilization of the undue burden standard is inappropriate
2. Woman’s right to abortion is a fundamental right and, accordingly,
abortion restrictions should be subject to the strictest of scrutiny
(e) Dissents
(i) Rehnquist
1. The right to an abortion is not a fundamental right
a. Rehnquist notes that the court’s adopt of the undue burden standard
recognizes and agrees with this contention
2. Abortion is different from fundamental rights such as marriage,
procreation, and contraception in that abortion involved the termination of
a life
3. The utilization of abortion is not rooted in the historical traditions of
4. Would apply Rational Basis Test
a. Is the legislation rationally related to a legitimate state interest
5. Accordingly, he would have upheld all provisions of the statute
1. The right to an abortion is not a liberty protected by the
a. No textual mention of it
b. No long standing traditions of American society to utilize it
2. Would apply Rational Basis Test

(2) Gonzales v. Carhart
(i) The Partial-Birth Abortion Ban Act does NOT place a
substantial obstacle to late-term, but pre-viability,
(ii) Where it has a rational basis to act, and does not impose
an undue burden, the State may use its regulatory powers
to bar certain procedures and substitute others, all in
furtherance of its legitimate interests in regulating the
medical profession in order to promote a respect for life,
including the life of the unborn.
(i) In 2003, Congress enacted an Act which criminalized doctors performance of
a partial birth abortion
a. Making the only late term abortion option that the doctor take the
fetus out piece by piece)
(c) Holding
(i) This procedure does not constitute an undue burden on a woman’s right to
control her reproductive destiny
1. Legitimate State Interests Furthered with Act
a. Some women come to regret their choice of abortion and suffer from
severe depression
b. A number of doctors might not fully discuss the “precise details” of the
c. Women who learn post-operatively that she basically birthed the baby
and then had the doctor basically kill it would struggle with grief and
d. A necessary effect of Congress’ act will encourage some women to
take the fetus to full term, minimizing the number of late term
e. The medical profession may find less shocking and horrid methods of
second term abortions
f. This act prevents what is rather close to infanticide
(ii) The Court found that there was inconclusive medical evidence to suggest that
the partial birth abortion was safer than the method by which the doctor rips
the fetus apart

(d)Significance of Gonzales
(i) Government’s desire to reduce the number of abortions is
recognized as a legitimate goal
(ii) Government’s desire to regulate the medical profession as to uphold
the “public’s perception of the appropriate role of a physician during
the delivery process” is a legitimate goal
(iii) Government may sometimes completely ban a particular method of
1. So long as a it does not constitute an undue burden – which essentially
will not be found if there is another reasonably-safe method of abortion
(iv) When Government decided whether to ban a particular type of
abortion – it may take into account the mental health of the woman

who might elect that method and then come to regret it.
1. Accordingly, government may be able to ban “more regrettable” in favor
of “less regrettable” procedures
(v) As long as the legislature makes credible findings that there is
medical uncertainty about whether the prohibited procedure is ever
necessary to safeguard a woman’s health, the government does not
need to provide a health exception

(e) Possible Legislative Responses Following Gonzales

(i) Provisions requiring that the woman be given extensive warnings,
including the description of how the procedure will be performed or
what its consequences will be
a. Example: SD has passed a statute requiring that a pregnant woman be
told that they will be aborting “a whole, separate, unique living human
being” and that they be warned in writing of the increased risk of
“depression and related psychological distress” and of “suicide
ideation and suicide”
2. This type of provision may be allowed because of Gonzales’s
acknowledgment of the state’s legitimate interest in protecting women’s
later emotional health and reducing the number of abortions
(ii)Mandatory ultrasound examinations for women who desire to have
an abortion
1. This type of provision may be allowed because of Gonzales’s
acknowledgment of the state’s legitimate interest in protecting women’s
later emotional health and reducing the number of abortions
(iii) Longer Waiting Periods
1. This type of provision may be allowed because of Gonzales’s
acknowledgment of the state’s legitimate interest in protecting women’s
later emotional health and reducing the number of abortions
(iv) More stringent Parental Consent Requirement
1. Perhaps have both parents consent
2. Stricter judicial bypass requirements
(v) Stricter Licensing Requirements for Doctors and Clinics
1. May now require that only hospitals can perform abortions
a. Note: Akron likely to be decided differently post-Gonzales
(vi) Ban on Abortion-Causing Drugs such as morning after pill
1. As long as Congress makes finding that there were alternative equally
safe methods of abortion available, and as long as Congress concluded
that the ban would help reduce the total number of abortions this may
passed the requirements set forth in Casey and Gonzales
a. (1) rational relationship to a legitimate government interest
b. (2) not causing an undue burden on the right to an abortion

11) Congress’ Power to Enforce the 14th Amendment

a) Restrictions
i) Only applied to State action


(a) State Action Where Private Entity is Performing a Traditionally Public
1. State action will be found in action of private entity
ONLY if private entity is exercising powers exclusively
reserved to the state
i. Rule significantly limited by Burger/Rehnquist
1. Jackson v. Metropolitian Edison Co.
a. Principle
i. A utility company is not exclusively a public
(b)Old Cases (Questionable Law)
(i) Company Town Performs a Public Function
1. Marsh v. Alabama
a. Principle
i. When private actor performs a public function, the
protections afforded by the Fourteenth Amendment will
b. Facts
i. Company town tries to restrict free speech
c. Holding
i. This is invalid because company is acting as a public function
(ii)Operation of a Park as a Public Function
1. Evans v. Newton
a. Principle
i. Services rendered by a public park were municipal in
nature, like fire and police departments, and traditionally
has served the community
ii. Thus, parks perform public function
(iii) Shopping Center as a Public Function
1. Formerly held as such
2. Overruled by Hudgens v. NLRB
(iv) Electoral Process as Public Function
1. Smith v. Allwright
a. Principle
i. Despite the fact that the political parties, the performed a
traditional public function
ii. Could not exclude blacks from such


(a) If there is a sufficient nexus between the government and the private
entities conduct, state action will be found
1. If the government is sufficiently “involved” in the
private actors conduct OR “encourages” that conduct
OR benefits from it, the private party’s acts will be
deemed state action and subject to constitutional
1. Shelly v. Kramer
a. Principle
i. Judicial enforcement of a restrictive covenant constitutes
state action
2. Evans v. Abney
a. Principle
i. Courts enforcement of a reverter of property because its
inability to uphold racially restrictive covenant was not
state action
3. Penn v. Board of Directors of Trusts
a. Principle
i. Board of trustees at College who were City employees and
acting in official capacity as such constituted state action
and they were not allowed to discriminate on the basis of
4. Burton v. Wilmington Parking Authority
a. Principle
i. State action found when lessee of government engages in
discriminatory conduct
ii. If government goes into business with corporation, they are
state actors
5. Reitman v. Mulky
a. Principle
i. State action present when a sate repeals a law barring
racial discrimination in the sale or rental of private
6. Moose Lodge v. Irvis
a. Principle
i. No State action where government has solely issued a
liquor license

(3) Modern Courts Limit the Reach of State Action

(i) Jackson v. Metropolitan Edison Co
1. Principle
a. State action will be found in action of private entity ONLY if
private entity is exercising powers exclusively reserved to the
b. The mere fact that a business is subject to state regulation
does not by itself convert its action into that of the State for
the purpose of the 14th Amendment
i. Despite that fact that entity has a partial monopoly, is
heavily regulated, and provides a public service, does NOT
demonstrate a sufficient nexus with the state to constitute
state action
(ii)Blum v. Yaret Sky
1. Principle
a. Merely because a private company (nursing home) receives
state subsidies for the care of its patients and is, in turn,
heavily regulated by the state, does not mean there is state
action in the hospitals conduct
b. The only way state action can be found in such an instance is if
the state is responsible for the private actors conduct by
exerting coercive power which forces the private actor to act

(iii) Rendell-Baker v. Kohn

1. Principle
a. A private school whose income is derived primarily from public
sources and which is regulated by public authorities cannot be
considered to engage in state action when it discharged
certain employees

(iv) Cases involving Lack of State Action

1. DeShaney v. Winnebago
a. The state’s failure to act to protect a boy from his violent
father did not constitute state action which would trigger 14th
amendment protections
b. Instances when Constitute imposes upon the State an
affirmative duty to act:
i. 1. If state is in custody of a child
ii. 2. If a person/child is involuntarily committed
iii. 3. If a special relationship exsists
i. Example: state arrests father – must take care of kids

12) Congress’ Power to Enforce the 14th Amendment

a) Congress’ Ability to Abrogate State’s Sovereign Immunity Protections with §5 of
the 14th Amendment
i) General 11th Amendment Rule
(1) Congress may not enact legislation under its Article I powers that
abrogates a state’s immunity to suits for monetary damages
ii) §5 of 14th Amendment as a way to abrogate 11th Amendment
(1) Congress may subject non-consenting states to lawsuits pursuant to its
powers under §5
(a) HOWEVER – must be a valid exercise of §5 power by Congress

b) Section 5 of the 14th Amendment

i) “Congress shall have the power to enforce, by appropriate legislation,
the provisions of this article”
(1) TEST
(a) Congress’ Legislation under Section 5 of the 14th
Amendment must show “congruence and proportionality”
between the end it aimed to reach (that it, the violations it
aimed to correct) AND the means it chose to reach those
ends (that is, the penalties or prohibitions it enacted to
prevent or correct those violations)
a. Requires an inquiry into see if there is a
i. A pervasive history and pattern of unconstitutional
behavior by the States relative to the conduct in
question such that the Congress’ legislation may
appropriately be remedial (correcting an existing
and pervasive problem) rather than defining what
the constitution should protect

1. Boerne's requirement of "congruence" demands that the congressional
statute, viewed as an attempt to prevent or remedy constitutional violations,
not be unduly overinclusive. Congress certainly need not limit itself to
individual violations of the Constitution. Boerne explicitly reaffirms
that Congress is free to write more general laws, explaining that
"[p]reventive measures prohibiting certain types of laws may be
appropriate when there is reason to believe that many of the laws
affected by the congressional enactment have a significant likelihood
of being unconstitutional." But if Congress adopts a law that
indiscriminately sweeps in a broad array of otherwise lawful state and
local practices, the very breadth of the law suggests that it cannot be
understood as remedial.
2. A remedy is "proportional" if it is justified by the magnitude of the
constitutional injury. "Strong measures appropriate to address one
harm," the Court wrote in Boerne, "may be an unwarranted response
to another, lesser one." Properly understood, however, the
requirement of proportionality is not an independent variable; instead,
it is closely related to the requirement of congruence. In particular,
the *nature and extent* of the constitutional problem being redressed
affect the *degree* of overinclusiveness that is permissible. A
extremely broad congressional prohibition may be rational if there is
evidence of serious and widespread constitutional violations by state
and local governments, especially if those violations would be difficult
to prove through case-by-case litigation. For example, as the Court
explained in Boerne, "strong remedial and preventive measures" have
been upheld when they have been designed to redress "the
widespread and persisting deprivation of constitutional rights resulting
from this country's history of racial discrimination." Conversely, if the
constitutional problem is less severe, Congress must proceed more
cautiously. Indeed, the less serious the constitutional problem, the
more likely it is that broad legislation is designed not to remedy that
problem, but instead to accomplish another end, such as the
substantive redefinition of constitutional rights.
4. NOTE: if congressional act fails the congruence and
proportionality test it is unconstitutional as applied to the state
BUT still applies to the federal government

(2) Questions to Ask in Exam

(a) 1. Is the Congressional Legislation designed to remedy infringement of
a fundamental right protected by the 14th Amendment
1. This will be nearly all of the Bill of Rights
2. As well as inherent fundamental rights the court has found to be
deeply rooted in our tradition or of a nature which is inherently
(b)2. Is there a history and pattern of pervasive unconstitutional
infringement of this right?
1. This is an inquiry into the nature of the interference to determine
if it is sufficiently present such that Congress’ exertion of power
can be considered remedial rather than congress defining what
the constitution says/means/is
(c) 3. If so, does Congress’ Legislation must demonstrate “congruence and
proportionality” between the end it aimed to reach (that it, the
violations it aimed to correct) AND the means it chose to reach those
ends (that is, the penalties or prohibitions it enacted to prevent or
correct those violations)?
1. Must be narrowly tailored
2. Must not be over inclusive; broad; or sweeping

c) Section 5 Grants Congress “Remedial Powers”

i) Early Cases
(1) Katzenbach v. Morgan
(i) Congress’ provision 4(e) which held that no person who has
successfully completed the sixth grade in Puerto Rico in which the
language was other than English shall be denied the right to vote for
failure to speak English, was a valid exercise of the 14th Amendment
(ii) Section 5 of the 14th Amendment is a
1. “Positive grant of legislative power authorizing Congress to
exercise its discretion in determining whether and what
legislation is needed to secure the guarantees of the 14th
(i) In the Voting Rights Act of 1965, Congress passed a provision which
prohibited any state from denying the right to vote of Puerto Ricans who had
completed the sixth grade in Puerto Rico even if they did not speak english
(c) Holding
(i) This was a valid exercise of Congress’ Remedial Powers
(ii) Congress’ act serves to extend the franchise in the spirit of the constitution


(1) City of Boerne v. Flores
(i) Under Section 5 of the 14th Amendment, Congress has the
power to enforce, not the power to determine what
constitutes a constitutional violation
1. Congress does not enforce a constitutional right by
changing what that right is.

2. The Judiciary is to determine the constitutionality of laws
(ii) There must be a congruence and proportionality between
the injury to be prevented or remedied and the means
adopted to that end
1. Lacking such a connection, legislation may become
substantive in operation and effect
(i) Congress passed the RFRA which prohibits the government from substantially
burdening a person’s exercise of religion, even if the burden is the result of
generally applicable law, unless the government has a compelling interest
and is using the least restrictive means
(ii) Borne enacted a city ordinance requiring approval for building on landmarks
(iii)Church sought a building permit to expand church and was denied
(c) Holding
(i) RFRA cannot be considered remedial because it is so out of proportion to a
supposed remedial or preventative object
1. Rather, Congress is trying to change the meaning of the constitution
(ii) RFRA was beyond Congress’ section 5 power to enforce due process of 14 th
(iii)The RFRA redefines the scope of the Free Exercise Clause of the Constitution
and nothing in our history justifies this action

(2) Florida Prepaid Postsecondary Education Expense Board

v. College Savings Bank
(i) Patent Remedy Act was not a permissible use of remedial powers
under §5 because it was “so out of proportion to a supposed
remedial or preventive object”
(i) Congress passed a law under section 5 powers which made state courts
subject to suits in federal court for an array of possible patent infringements
(c) Holding
(i) Patent Remedy Act was not a permissible use of remedial powers
under §5
1. Congress failed to show:
a. Pattern of patent infringement by the States
b. That the act was responding to a history of widespread and
persisting deprivation of constitutional rights of the sort
Congress has faced in action proper section §5 legislation
i. Rather, congress enacted sweeping legislation in response
to a handful of patent infringements
ii. Congress did not try to tailor the reaches of the act
(3) United States v. Morrison
(i) Violence against Women Act is not a valid exercise of Congress’
remedial power under §5 of the 14th Amendment
(i) Congress’ legislation provided a federal cause of action for a crime of
violence motivated by gender

(ii) Student brought suit against football player who sexually assaulted her
(iii)Gov. contended that there is a pervasive bias in state justice system against
gender motivated violence and often result in insufficient investigations and
prosecution of gender motivated crimes
(iv) Gov. contends that equal protection of law is violated and Congress is
entitled to enact a private civil remedy against the perpetrators of gender
motivated violence to remedy the States’ bias and deter future instances of
discrimination in state courts
(c) Holding
(i) Congress has overstepped its bounds with this litigation
(ii)Did not pass congruence and proportionality test
1. Congress did not demonstrate that discrimination against gender
motivated crimes exists in all, or even most states
(iii) The remedy is addressed at private actors – rather than state
(4) Kimel v. Florida Board of Regents
(i) Congress’ Age Discrimination in Employment Act, which allowed
state employees to sue for violations of age discrimination,
exceeded § 5 Powers
1. Failed congruence and proportionality test
a. “The substantive requirements of the ADEA impose on state
and local governments are disproportionate to any
unconstitutional conduct that conceivably could be targeted by
the Ac
(i) Congress Failed to
1. Identify any pattern of age discrimination by the States
(ii) Congress has no reason to believe the states were discriminating
against their employees on the basis of age
(5) Board of Trustees of the University of Alabama v. Garrett
(i) Congress was not permitted to abrogate sovereign immunity with its
§5 powers for state-employer violations of Title I of the American
with Disabilities Act
(i) Title I prohibited employers from discriminating against a qualified
individual on account of a disability and required employers to make
reasonable accommodations for disabled workers
(c) Holding
(i) Congress has failed to identify
1. “a history and pattern of unconstitutional employment
discrimination by the States against the disabled”
2. That that the pattern of discrimination rose to the level of
unconstitutional discrimination

(6) Tennessee v. Lane

(i) Congress has the power to abrogate state’s sovereign immunity with
its §5 powers for the purpose of access of the courts in Title II of the

(i) A paraplegic sued the state of Tennessee alleging he had to crawl up
2 flights of stairs to appear in court
(c) Holding
(i) Congress has the power to abrogate state’s sovereign immunity with
its §5 powers for the purpose of access of the courts
1. Access to the courts was a fundamental right protected by the
14th Amendment
2. This provision was more narrowly tailored than in Garrett
3. There were sufficient facts that the disabled were being denied
access to the courts
4. The remedy was narrowly tailored to addressed the problem
a. Remedy – require states to take reasonable measures to
remove barriers to accessibility of courts (reasonable
b. Does NOT require the states to employ any and all means to
make judicial services accessible to the disabled

(7) Nevada Department of Human Resources v. Hibbs

(i) Congress has the power to apply the Family Medical Leave Act to the
states under §5
(i) FMLA aims to protect the right to be free from gender-based
(c) Holding
(i) Woman’s right to be free from gender discrimination is covered by
the 14th Amendment
(ii) There is a pervasive history of state laws limiting women’s
employment opportunities which was sanctioned, until recently, by
the court’s opinions
(iii) The persistence of such unconstitutional discrimination against
women justifies Congress’ passage of §5
(iv) The remedy – the family care leave provision is congruent and
proportional to the targeted violation
1. Sweeping legislation
2. BUT – it is designed to combat against deeply engrained gender