My Outline
My Outline
We must never forget, it is a constitution we are expounding. Chief Justice John Marshall
Allocation of Power
Durability Statutes are easy to add, amend, or repeal; Constitutions are not
o Only one Constitution since 1789; Only 27 Amendments (10 of which passed at the same time)
Anti-majoritarian The Constitution is designed to prevent majority tyranny; Statutes represent the
will of the majority
o The Constitution protects the minorities who may easily be subjected to unfair treatment by
the majority as it exerts its voting power.
Supremacy Clause Constitution is the supreme law of the land. All other laws must be consistent
with it, or they are void.
Amending the Constitution
Congressional Initiative
o 2/3 approval of both houses
o of states ratify
Brandeis once said Courts should decide issues on sub-constitutional considerations whenever possible,
so that the legislatures may more easily overrule the courts decision by changing or fixing the
deficiency in the statute.
Bill of Rights
Baker v. Carr (J. Jackson) The purpose of the Bill of Rights was to remove certain subjects from the
political sphere, placing them out of reach of the majority and government officials. These rights are
fundamental and may not be made subject to a vote.
Cases of admiralty
Marbury v. Madison
o Issue: Do the courts have the authority to declare a statute unconstitutional (and therefore
void) if it concludes the statute violates the Constitution?
o Holding: Yes. The courts have the power of judicial review, and may review acts of the
Executive and Legislative branches and deem those acts void as violative of the Constitution.
It was not applied to a federal statute again until Dred Scott, 50 years later
o Judicial Review has become a major stabilizing force in American Law
o We ask judges to be the people we call upon to interpret the Constitution, and to tell people
they cant have everything they want merely because they have a majority vote.
o Judicial review influences how lawmakers create their laws get it right the first time, so it
doesnt get ruled unconstitutional
o These judges are not elected officials, which often causes tension because they have the ability
to overrule democratically enacted laws
Power to strip SCOTUS of its appellate court jurisdiction under the exceptions and
regulations clause
Exceptions Clause: the supreme Court shall have appellate Jurisdiction, both as to Law
and Fact, with such Exceptions, and under such regulations, as the Congress shall
make.
Ex Parte McCardle
Held: Congress may exercise its Article III power to decide what types
of cases SCOTUS may hear, but it may not expand the federal judicial
power
US v. Klein
This would require the passage of an amendment declaring a certain issue off-limits for
SCOTUS interpretation
Congressional Control of the Jurisdiction of Lower Federal Courts
o Congress, as created of the lower federal courts, may decide which lower federal courts may
exist, and what cases they may hear.
o However, they may not allow the lower courts to hear cases outside of the federal judicial
power granted in Article III
Additional notes on Congressional Control of Judicial Review
o Congress can give jurisdiction where it did not previously exist
State courts can still decide the case, which may be problematic in some situations
Rule
Supreme Court may review state court decisions, but only to the extent that the decision
was based on federal laws.
o Review is limited to decisions of the highest state court that made a decision
If intermediate court issues opinion, and state supreme court refuses to hear case,
SCOTUS may review the intermediate courts decision
o Note the Adequate and Independent State Grounds Doctrine
History
o Article III and the Judiciary Act of 1789
Congressional act provided for Supreme Court review of state court judgments
o Martin v. Hunters Lessee
Held:
SCOTUS has jurisdiction to review the final decisions of the state courts
J. Story used the Supremacy Clause to justify determination that federal courts
may determine whether state laws are consistent with the Constitution
o Cohens v. Virginia: Extended holding of Martin to apply to the decisions of state courts in
criminal cases a federal issue must still be implicated.
Additional Notes on Federal Review of State Court Decisions
o Following Marbury and Martin, SCOTUS has the power to hear cases coming from federal and
state courts.
o However, SCOTUS may only review issues of federal law
o SCOTUS has authority to review the decisions of the highest state courts where those decisions
implicate the federal constitution, a federal statute, or a federal treaty.
o SCOTUS has no jurisdiction to review a state court decision unless a federal issue is implicated.
o
This doctrine is a limitation on the ability of SCOTUS to review a state courts decision
Rule
o Even if there is a federal question in a state court case, SCOTUS may not review the state
courts decision if there is an adequate and independent state ground for the decision
Adequate (Procedural)
The nonfederal grounds for the decision must be adequate (dispositive) of the
case. Such that even if the federal issue in the case was wrongly decided,
reversal on the federal issue would not change the outcome of the case.
Independent (Substantive)
The state law provisions and their interpretations must be entirely independent
of federal law and its interpretations
Definition
o Limitation on the ability of federal courts (and SCOTUS) to hear cases.
o If the court cannot hear a case due to the restrictions within this doctrine, the case or issue is
nonjusticiable
Notion that a decision in the case might unduly intrude on the other branches of
government
o Policy (Prudential) Considerations
Make better decisions, because those decisions are based on real controversies
5 Sub-Doctrines of Justiciability
o Advisory Opinions
o Standing
o Mootness
o Ripeness
o Political Questions
Additional Notes
o These doctrines generally assume that subject matter jurisdiction and personal jurisdiction
exist
o Activist Court: Expand constitutional doctrines and narrow justiciability limitations
o Retrenchment Court: Tend to avoid reaching merits of case by construing justiciability
limitations more broadly
o A decision made on justiciability grounds never decides the case on its merits
o Those circumstances preventing justiciability may never be waived by the parties
Advisory Opinions
In General
o Art. III, 2, only allows jurisdiction over cases and controversies
o Federal Courts are prohibited from giving an opinion when no party before the court has
suffered or faces a specific injury
Rule
For a case to be justiciable, and not an advisory opinion, two criteria must be met:
2. There must be a substantial likelihood that a decision in favor of the claimant will
bring about some change or have some effect.
Examples
o Executive branch doubts a bill, and asks Court to determine bills constitutionality
o Collusive Suits The two parties appear to oppose one another, but actually seek the same
outcome
Differences from a Declaratory Judgment
o A DJ is a determination as to the legal positions of the parties when there is doubt as to their
positions
These resolve an actual case or controversy by providing legal certainty to each party
o Suits for declaratory judgment are justiciable so long as they meet the requirements for judicial
review (may not be hypothetical or abstract)
Flast v. Cohen
o The requirement of a case or controversy limits the questions of a case to those that may be
resolved through the judicial process
o Rule: SCOTUS cannot answer abstract questions posed to it. If the question is outside the
scope of the issue, the court cannot answer it.
Additional Notes on Advisory Opinions
o Some states permit advisory opinions in some situations
o Dicta does not constitute an advisory opinion, and is not prohibited by Article III
Article III is not concerned with what might be put into an opinion, but the entire
posture of the case
One might say that dicta should be discouraged from a prudential standpoint
Missouri allows advisory opinions of its state supreme court
o
Standing
Causation The alleged injury must be fairly traceable to the defendants conduct
Ds conduct must be the cause of the harm.
Redressability Must be likely that a favorable court decision will redress the plaintiffs
injury.
o Statutory Standing
If the case involves a cause of action created by statute, the plaintiff must be within
the class of people identified by the statute as a proper plaintiff.
Ex: If statute says spouses may sue for harm done to worker in workplace, and
the worker only has a girlfriend, the girlfriend lacks standing because she is not
his spouse.
Standing Analysis
o Does Plaintiff have Article III standing? If no, dismiss.
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If Constitutional Standing requirements are met, one of the prudential considerations for
standing may come into effect and prevent standing.
Injury-in-Fact Analysis
o Plaintiff must show that he himself has been injured by the conduct of which he complains, OR
that he will probably suffer some concrete injury if the conduct is allowed to occur.
o Individuated Harm: The injury cannot merely be the same as that suffered by every citizen
or taxpayer.
o Non-Economic Harm is sufficient to establish an injury
o Violations of statutory rights establish an injury-in-fact
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Even what Article III standing exists (or might exist), the courts may refuse to hear a case out of
prudence
Taxpayer Suits
Citizen Suits
Third-Party Standing
o General Rule: A party with Article III standing may not argue the rights and liabilities of third
parties not before the court. The party may only argue its own legal rights.
o Purpose: Improve the quality of litigation by ensuring that those litigating have something
personally on the line (their own rights and liabilities); Individuals are the best proponents of
their own rights; Third-persons may be bound by a judgment even though they never litigated
the issue
o Exceptions
Ex: Craig v. Boren (kids would age out of case and make it moot)
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19 year old Craig and saloonkeeper sue Oklahoma for discriminatory drinking laws
(gender discrimination girls = 18, boys = 21)
Saloonkeeper wants to maintain action, even though she would be arguing the rights of
men under 21 rather than her own rights
Saloonkeeper had Article III standing (loss of money, statute was case of harm, and
injunction would remedy)
Because of saloonkeepers connection to the harmed party in this case (men under 21
who want to buy alcohol), she could proceed with the suit
Generalized Grievances
o Taxpayer Suits
Plaintiff claims injury on the basis that they are paying taxes, and their taxes are being
use improperly.
As a general principle, taxpayers interests are too remote to allow them to proceed
with a suit, even if they have Article III standing. (Frothingham v. Mellon)
Occurs when a plaintiff claims that he can challenge the constitutionality of an act
based on the fact he is a citizen
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No standing for prudential reasons
Rule: Plaintiff cannot seek relief that no more directly or tangibly benefits the plaintiff
than it does the public at-large
A citizen suit may meet Art. III standing requirements, but not prudential concerns
Merely arguing standing on the basis of being a citizen will not be enough
There, although the citizens had statutory standing, they lost on the basis that
they lacked a concrete injury-in-fact, and therefore had no Article III standing
to sue.
FEC v. Akins
Held: Citizen had standing to sue when they alleged violation of law that
required group to file documents. The citizens had a specific injury in that they
had a right to see the document, but no document existed because the statute
was violated.
Hollingsworth v. Perry
Government officials cannot sue unless they have a discrete, personal injury in the
case
Example: House Rep. sue when Congress would not seat him simply because
they disliked him. He claimed act was unconstitutional. Held to have standing
because he was personally injured.
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Mootness
Definition
o A case is moot if it raised a live controversy at the time of the complaint, but events
occurring after the filing have deprived the litigant of an ongoing stake in the controversy.
Common example: Student sues school for violating establishment clause. Student
graduates while case goes through courts. Case is now moot because student no longer
has a stake in the controversy.
Mootness v. Standing
o Standing is a pre-trial issue
o Mootness is considered throughout. It is essentially the standing doctrine exercised throughout
the course of the case.
Applies when: Injury is of such a brief duration that the plaintiff would almost always
suffer it before the federal court litigation is completed.
Rule: There must be a reasonable expectation that the same plaintiff could be
subject to the same wrong again.
Example: Roe v. Wade Roe gave birth before case concluded, but it met this
exception because Roe could have become pregnant again, and been subject to
the same restrictions.
o Collateral Injuries
Applies when: The claim itself is mooted, but there is some collateral consequence to
the harm that continues
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Rule: A case is not moot if there are still collateral consequences that might be
adverse to the party.
Example: Criminal D serves entire sentence before appeals conclude, but the
conviction on his record can still harm him.
Voluntary Cessation of Conduct by Defendant
Applies when: P sues to obtain injunction against unlawful conduct, and the D ceases
the conduct. However, the D is capable of resuming the conduct in the future.
So long as a there is a member of the class that has not been mooted out of the case,
the case may go forward.
Simply need to replace the named plaintiff when the named plaintiff is mooted from the
case.
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Ripeness
A case is not yet ripe if it has not yet become sufficiently concrete so as to be easily adjudicated.
o Dismissal of the case on the basis that the facts are not clear enough to identify a dispute.
Hardship
o Sometimes, dismissal for ripeness puts one of the parties in a position that it must violate the
law before the case can be heard. This can result in a loss of job or reputation.
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Mitchell Group of plaintiffs said Hatch Act violates freedom of speech. Some plaintiffs were
fired for engaging in political activities, others wanted to engage in the activity, but had not yet
been fired.
Held: Those who have been fired may maintain the suit. Those who have not been
fired do not have a ripe case.
o Adler States passed a subversive organizations statute that made membership in certain
groups a basis for firing of public officials. Teachers filed suit under the 1st Amendment.
Held: SCOTUS took the case, saying it was sufficiently ripe, even though no one joined
the organization and had not yet been fired.
Reason: People should not be forced to exercise their rights at the peril of criminal
sanctions or loss of employment
o Mitchell and Adler are clearly inconsistent with each other
Uncertain Enforcement of Criminal Statutes
o When P attacks constitutionality of a statute he violated, but it is clear that the statute will not
be enforced against him, the case is not ripe.
Difference between Ripeness and Standing
o When a case is dismissed for lack of standing, the plaintiff is not the proper person to bring
the case.
If youre not the right plaintiff today, you wont be the right plaintiff tomorrow.
o When a case is dismissed for ripeness, then the plaintiff is the right person to bring the case,
but the facts have not become ripe enough to allow for judicial determination.
The plaintiff can bring the case when the facts develop.
Statute of Limitations tolls during the period the court says the case is not ripe.
o
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Political Questions
These are issues that the court believes should be left to the legislative and executive branches, even
though the court may have Article III jurisdiction.
o Example: Lawsuit claims Vietnam war was unconstitutional because there was no declaration of
war.
Reapportionment
o Reapportionment cases are justiciable under equal protection. All voters must have essentially
the same voting power. (Baker v. Carr)
o
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Incorporation of the Bill of Rights against the States did not occur until the adoption of the 14th
Amendment
Barron v. Baltimore
o Held: Bill of Rights only applies against the federal government, not the States
The Civil War Amendments
14th Amendment Privileges and Immunities Clause; Due Process Clause; Equal Protection Clause
Clause: No State shall make or enforce any law which shall abridge the privileges and immunities of
citizens of the several states.
Slaughterhouse Cases
o Facts: Hundreds of butchers operated in New Orleans. State passed a reasonable health
regulation, then gave a monopoly to one slaughterhouse. Plaintiffs, several butchers, brought
suit challenging the monopoly as violating their right to practice their trade.
o Held: Privileges and immunities clause not meant to protect individuals from state government
actions, and was not meant to be a basis for federal courts to invalidate state laws.
o This case has never been overruled, and this has precluded the privileges and immunities
clause from being applied to the Bill of Rights
o This case provided a list of rights that were protected under the Constitution under this clause.
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o This interpretation was intended to rob the clause of all of its meaning.
Revival of the Privileges and Immunities Clause
o Saenz v. Roe Privileges and Immunities Clause protects the right to travel and the citizens
right to be treated equally in her new state of residence.
Incorporation
Debate
o Total Incorporationists believed the Bill of Rights should be fully incorporated via the due
process clause
o Selective Incorporationists said only some amendments should be incorporated.
o Selective incorporation won out; Bill of Rights was incorporated one amendment at a time,
as the circumstances and cases came before the Court.
Palko v. Connecticut
o Dealt with incorporation, but it has since been overruled
o Involved double jeopardy
o Created a test for incorporation: Was the right implicit in the concept of ordered liberty/
Incorporation Today
o 1st Amendment = Fully Incorporated
o 2nd Amendment = Fully Incorporated
o 3rd Amendment = No SCOTUS decision
o 4th Amendment = Fully Incorporated
o 5th Amendment = Incorporated except for clause guaranteeing grand jury indictment
o 6th Amendment = Fully Incorporated
o 7th Amendment = Not Incorporated
o 8th Amendment = Cruel and Unusual Punishments Clause Incorporated; no ruling on
excessive fines or excessive bail clauses
o Unique exception: 6th Amendment requires 12 person juries, but the states are permitted to
use as few as 6
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States can provide greater protections with their own constitutional provisions than those
provided by the federal constitution.
Practical Usage
o When arguing an incorporated amendment, you can argue using federal precedent even when
in state court, because that precedent is applicable against the state.
o
Due Process
5th and 14th Amendments: Neither the United States not the state governments shall deprive a person
of life, liberty, or property without due process of law.
o
The government has the right to take the action, but violated procedural requirements
in taking the action.
o Examples: Notice, opportunity to be heard, impartial decision-maker
Remedy Sought
o Substantive: Plaintiff seeks to have action declared unconstitutional as violating a
constitutional right.
o Procedural: Plaintiff seeks to have action declared unconstitutional because of the lack of
adequate safeguards.
Important Concepts
o It is necessary to understand and define liberty and property for due process
considerations
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Slaughterhouse Cases deny use of Privileges and Immunited Clause to protect substantive rights
Industrialism develops, causing major advancements in economic thought and application of industry
to production of good
Increase in industry and production creates calls for regulation by the government for the purposes of
the public welfare, morals, and standards of living
Allgeyer v. Louisiana
o Facts: State law prohibited payment on insurance policies issued by out-of-state companies no
licensed to operate in the state
o Held: Law interferes with freedom of contract
o Significance: The Court invalidated a regulatory law as violating the substantive due process
rights of parties to a contract
Economic Due Process Lochner Era
Lochner Test
o Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an
unreasonable and arbitrary interference with the right of individuals to exercise liberty?
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o
o
Those involving women tended to be upheld because women were seen as the weaker sex
that needed to be protected (Muller v. Oregon)
Regulations on business were often seen as interfering with the rights of businesses to act
freely and to form agreements
Questioned notion that government can only regulate to serve the police purpose
West Coast Hotel v. Parrish (Overturns Adkins, which struck down a minimum wage law)
o Held: Upheld a state law requiring a minimum wage for women employees
o Court declares
US v. Carolene Products Co
o Held: Economic regulations should be upheld so long as they are supported by a
conceivable rational basis, even if that rational basis was not the legislatures actual intent
o Creation of the rational basis test
o FOOTNOTE 4
Court will generally show deference to legislature, but deference will not extend to laws
that:
Since Carolene Products, SCOTUS has not overturned a single piece of economic regulation on the
basis of substantive due process
This is because economic substantive due process is subject to rational basis scrutiny
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Carolene Products
o Rule
Laws regulating business and employment practices will be upheld when challenged
under the due process clause so long as they are rationally related to serve a
legitimate government purpose.
The result is that, after 1937, SCOTUS has never found an economic regulation to violate substantive
due process
The Main Tests of Substantive Due Process and Equal Protection
Strict Scrutiny
o Test: Government must show that the challenged classification serves a legitimate compelling
state interest and that the law is narrowly tailored to serve that interest.
o Restrictions resulting in Strict Scrutiny Analysis
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Inclusiveness
This question goes to the issue of whether a classification is narrowly tailored or substantially related.
Over-Inclusive A law is over-inclusive if it applies to some people who need not be included for the
government to achieve its legitimate purpose
Under-Inclusive A law is under-inclusive if it does not apply to some people who should be
included for the government to achieve its legitimate purpose.
Almost any goal not prohibited by the Constitution can be a legitimate state interest
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Example: Government infringes upon a right when it requires the citizen to give up a
constitutional right in order to receive a government benefit.
Is the government action justified by sufficient purpose?
o Strict scrutiny requires a compelling government interest
Government has the burden of showing that a truly vital interest is served by the law in
question
o Rational basis merely requires a legitimate purpose
Are the means sufficient related to the goal sought?
o Rational Basis
Merely means the government must act in a manner that is reasonably related to
achieving the goal
Government must show that the law is necessary to achieve the objective, and;
government could not obtain the goal with a means that was less restrictive of the right
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o
o
Note
o
The Court has not found the existence of a new fundamental right since Roe v. Wade, and is
not likely to do so anytime soon.
Right to Privacy
In General
o Griswold v. Connecticut
Privacy as a fundamental right: 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.
o Whalen v. Roe
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Other
o
Roe v. Wade
Held that women have a fundamental right to make personal decisions about
whether or not to terminate a pregnancy.
Strict Scrutiny
Created the trimester system determining when state may regulate abortion.
Planned Parenthood v. Casey
Held
SCOTUS decides what rights are incorporated into the 14th Amendment
This was not strict scrutiny, but its not clear what it is
Held
Congress had a rational basis to act in refusing to allow partial birth abortions
because there is uncertainty about medical necessity
Prof: There were a lot of ticking time bombs in this case, placing the right to an
abortion in a very precarious situation
Cases
Glucksberg v. Washington (right to die case)
Lesson: Failure to demonstrate a fundamental right will result in rational basis being
applied
Held: History and heritage show that right to die is not a fundamental right
Michael H (parental rights case)
Only answered the right to marry - did not address sexual discrimination
There is collateral from the decision, SCOTUS did not define this - just the marriage
issue
o
Could have been different if court would have found "suspect class" or "quasi
class" then would have given some answers. Would have gone a long way to later
equal protection cases
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Standing: Much like Craig v. Boren, case could proceed because the third-party
interveners argued the case well
Substantive Due Process: Court never said what level of scrutiny was applied. Just said
that a liberty interest was violated because the statute demeaned same sex couples.
Basic Explanation
Equal protection requires the government to treat similarly situated people in similar ways
People who are dissimilarly situated need not be treated in similar ways
The question is not whether there is discrimination the question is whether the government has
a sufficient basis for the discrimination
Reverse incorporation 5th Amendment incorporates the 14th Amendments equal protection clause
against the Federal Government
Basics
Equal protection cases test the validity of the classification, not whether the claimant belongs to
one group or another group
o To which group the claimant belongs is a question of fact, not of law.
The Tests
o Strict Scrutiny
o Intermediate Scrutiny
o Rational Basis
A law that burdens the ability of all persons to exercise a fundamental right will be
examined under SDP
The Claim
o Equal protection merely challenges the classification itself. If the challenge succeeds, the
legislature must decide to either apply the restriction to everybody or nobody (cannot restrict
based on the classification).
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Step One
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Step Two
o Does the classification distinguish among people who are similarly situated? (suspect?)
Step Three
o What is the appropriate level of scrutiny?
Step Four
o Does the government purpose meet the scrutiny tests requirements?
Facial Classifications
o The statute on its face creates a classification
o Example: No woman may serve as a police officer
Strict Scrutiny
o Test: Government must show that the challenged classification serves a legitimate compelling
state interest and that the law is narrowly tailored to serve that interest.
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Inclusiveness
This question goes to the issue of whether a classification is narrowly tailored or substantially related.
Over-Inclusive A law is over-inclusive if it applies to some people who need not be included for the
government to achieve its legitimate purpose
Under-Inclusive A law is under-inclusive if it does not apply to some people who should be
included for the government to achieve its legitimate purpose.
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Almost any goal not prohibited by the Constitution can be a legitimate state interest
Economic Regulations that establish Classifications
There must be some relationship between the law and the states purpose
Types of Discrimination
Racial Classifications
o Must determine the type of classification (Facial, Facially-Neutral), and type of discrimination
(Invidious or Benign)
o All racial classification get strict scrutiny, whether they are benign or invidious
(Adarand v. Pena)
There may be a compelling state interest to rectify past discrimination in some cases
(such as employment), but not in others
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Exceptions
Alienage
Rational basis
Immigration Laws
Congress discriminates against these groups with immigration laws, and those
classifications are given rational basis scrutiny
Gender Classifications
Must determine the type of classification (Facial, Facially-Neutral), and type of discrimination (Invidious
or Benign)
Given this level of scrutiny because this was one a huge issue, but states have moved away from these
laws (exception: intestacy laws still differentiate to avoid fraud)
Other Classifications (Rational basis)
Quasi-Suspect Classification
o Cleburn Some people wanted to build homes for the mentally disabled to live in. Statute
prohibited mentally disabled from living in group homes without a permit. Held invalid under
rational basis (with a bite as the dissent referred to it)
Wealth Classifications
o Given rational basis scrutiny
o Claim is made that discrimination based on financial circumstances should get a suspect
classification SCOTUS rejected
Age Classifications
o Most age discrimination claims are made under statutory or regulatory law
If covered by a statute or regulation, do not bring age discrimination claim under equal
protection
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Fundamental Rights
Voting rights
Introduction
o 15th Amendment Right of citizens to vote shall note be abridged on account of race, color,
or previous condition of servitude.
o 19th Amendment Womens suffrage
o 24th Amendment Outlawed poll taxes
o 26th Amendment Changed voting age to 18 for federal and state elections
Purpose: Prevent voter fraud with people coming in from out of state
o Held: Preventing voter fraud is a compelling state interest, but duration is an issue
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Held: No. Whether someone pays taxes on that interest or not, they have a general
interest in the community therefore, the community can vote.
Felony Disenfranchisement
o Richardson v. Ramirez Constitutionally permissible to disenfranchise those convicted of a
felony (14th Amendment, 2)
o Critics say this is racially skewed, but there is no equal protection claim to be made
First Amendment Protections for Voting
o 1st Amend.: Congress shall make not law abridging the right of the people to peaceably
assemble, and to petition the government for a redress of grievances.
o Primary Elections cases decided under right to assemble
Also constitutional
Compelling interest: Protect right to privacy no one has right to know who
youre voting for
o Issues:
Kusper v. Pontikes SCOTUS struck down law prohibiting a person from voting in a
primary election for one party on the basis that they voted in another partys primary in
the last 23 months
Access to the Ballot
o There is no constitutional right to run for election, but restriction of candidates infringes on
right to vote
o There are compelling state interests in restricting access to the ballot
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Impermissible
Petition System Require a certain number of signatures to get onto the ballot
Example issue: A family moves from one state to another, and is denied benefits under a statute
designed to impair interstate travel unconstitutional
McCarthy v. Philadelphia Firefighter fired from job of 16 years because he moved to New Jersey
o This was a bona fide residency requirement
o This gets rational basis
Martinez v. Bynum Does equal protection permit school districts to require students to be residents
of the school district?
o Yes. Bona fide residency requirement As soon as kid becomes resident, he can attend
1. Today, discrimination cases are decided primarily based on statutes, rather than the
Constitution
(Civil Rights Act, Anti-Discrimination Statutes, ADA, Age Discrimination Act, etc)
Cases interpreting these statutes and applying them are not engaging in equal protection analysis
2. Dont forget state laws
Remember, the adequate and independent state grounds doctrine may apply
States can provide greater protections for their citizens than those provided by the federal constitution
3. Some claims that might be brought under equal protection may be decided under collective
bargaining rights.
Ex: Title IX only applies to schools receiving federal funding. Would have to bring equal protection case
if school is not subject to Title IX.
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Procedural due process claims challenge the procedures the government used in reaching its
decision
o Normally, this means:
Notice
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Test
o Plaintiff must have a legitimate claim of entitlement to the property interest
o The legitimate claim of entitlement must come from the law or some understanding or
relationship with the state.
What are property interests?
Tangible
o Real and personal property
Intangible
o Employment rights (but not at-will employment)
o Tax refunds
o Social security benefits
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o
o
Property Cases
Arnett v. Kennedy Bitter with the Sweet Doctrine: If you take the sweet, you also take the bitter
(take job, you get whatever the employment contract gives you)
Bishop States can make employment at-will (thereby eliminating employment rights)
Cleveland v. Loudermill Once there is a property right, how much process is due is an issue of law.
What Constitutes a Liberty Interest?
Paul v. Davis
o If only claim to harm under procedural due process is loss of reputation, you must show some
tangible or financial loss in order to have a due process claim.
Deprivation of Due Process
In order for an act to violate ones right to procedural due process, there must be a deprivation
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If there is a state remedy available, such as a tort remedy, then there is likely no valid
procedural due process claim
Parratt and Hudson Ability to invoke state tort remedy means no PDP violation
Note:
State tort remedies only trump PDP if the action by the government was an
isolated, individual act
If the action is part of the governments policy or normal behavior within the
agency, then there is a 14th Amendment procedural due process claim
It is very difficult to show that a state has a policy that violates PDP
Failure to Protect while in Custody or Confinement
Those who are in state custody and cannot leave are entitled to a minimum level of
protection
Deshaney Facts: Failure by agency to take child into custody, he then gets hurt.
Held: No deprivation of a liberty interest when violence is committed against someone
who is not in state custody
Castle Rock v. Gonzalez Facts: Father violated protective order, and police did not
respond to 911 calls. Mother tried to claim a property entitlement to enforcement of
protective order. Held: No. There is only a property right if there is a legal entitlement.
If there is discretion, there is no entitlement.
General constitutional standard: You get minimal procedure before the decision is made, and you
have an opportunity for a fuller hearing after the decision is made
The risk of erroneous deprivation through the procedures used, and the probable value,
if any, of additional safeguards
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If issue turns on facts and will require testimony, more reason to have full hearing
o Fiscal and Administrative Burdens
So long as they promulgate rules according to proper procedures, they meet the
procedural requirements
o Adjudicatory authority
They have the authority to adjudicate cases and act like courts
General Framework
o Before enforcement of decision
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Government Function
o Private entity performs a function normally performed by the government
Entanglement
o Private entity works very closely with the government as it does something
Government Function Exception
If the private person or entity is performing a function that is normally or exclusively done by the
government, then the private person is a state actor and can be treated that way for constitutional
purposes
Other cases
o Marsh v. Alabama Company towns (entire towns created by corporations for their
employees) subject to constitution, because the running and maintenance of a town are things
normally done by government
o Evans v. Newton Running of parks left to government. A private trustee for a park is subject
to constitution.
Flagg Brothers
o Facts: Sheriff sent family to a storage company to store their belongings after eviction. Storage
company lost property.
o Held: Government function exception only applies to those things exclusively performed by the
government.
o Note: Court has moved to a very narrow interpretation of this exception, even though many
things have been privatized
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Government Entanglement
Activity by a private entity becomes state action when the private entity is so entangled with the
government that private conduct becomes government activity.
Cases
o Burton Coffee shop had lease from government in public parking garage. Held there was
entanglement
o Rendell-Baker Private school with 99% of funding from state. Held no entanglement
o Moose Lodge Private club had liquor license from the state, and was regulated by the state.
Held no entanglement, even though there was a stronger connection than in Burton.
o Brentwood I Privately run athletic association acts as organization for high school sports.
Held that there was entanglement. Remanded for determinations of constitutional violations.
o Brentwood II No violation. High school voluntarily joined association, must abide by its rules.
The Basics
Most (not all) 1st Amendment speech claims get strict scrutiny
If litigant can demonstrate Overbreadth, then the court will strike down the statute,
even if it can be applied to the litigant in a constitutional manner
It is the government action to forbid someone from speaking before they say anything
Normally, government can get an injunction preventing some action. But in speech
cases, it is almost impossible for the government to get that injunction.
Facial Challenges
o Total invalidation of the law Claimant asserts that the law cannot validly be applied to punish
anyone.
o Even if claimants speech could be regulated under the 1st Amendment, if the statute is
unconstitutionally vague or overbroad, it will be struck down as a facial violation
As-Applied Challenge
o Claimant says that the law may be constitutional on its face, but he cannot be convicted for his
actions
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Example: Statute prohibits obscenity (facially valid). Claimant says that his conduct does not
constitute obscenity, and therefore he cannot be punished for it.
o
Vagueness and Overbreadth in Speech
The statute must define the criminal offense with sufficient definiteness so that:
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A conduct statute may be struck down as to the defendant, but a speech statute will be struck down
entirely
Prior restraint occurs when the government prohibits or prevents someone from speaking before they
speak.
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Distinguish between expression based on what the speaker says, or what the speaker
wants to say.
The authority of local governments to determine the conditions under which a private
user may use public property (time, sound volume, must clean up, etc)
o Test
It establishes strict criteria for grant or denial, leaving almost no contentbased discretion; and
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Types of Forums
o Public Forum
Public property that the government must make available for expression
Schneider v. New Jersey Cities must shoulder the burden of costs of demonstrations
in public areas. Cannot refuse to allow demonstrations on the basis of cost.
o Limited (Designated) Forum
Public property that could be closed to expression entirely, but the government has
chosen to allow it to remain open
Examples: Meeting rooms in city hall and libraries; classrooms in public schools
Note: once a city opens a limited forum up to someone, they have to open it to
everyone on a non-discriminatory basis
If they want area to remain closed, they should have a policy indicating that,
and then enforce the policy
o Non-Public Forum
Public property that the government may close to all expression, or where the
government may restrict expression, provided the restriction is reasonable and
content-neutral
Upheld only where the government provides a regulation that is narrowly tailored to
accomplish a compelling interest
o Content-neutral restrictions are valid IF:
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Commercial Speech
Substantial government interest In commercial speech, focus is on recipient of the speech, and
how it effects them
o Example: Prohibition on advertising for cigarettes near schools
False or Deceptive Not a very important factor; cure for false speech is more speech (marketplace
of ideas)
o SCOTUS has never used this prong to strike down commercial speech
Materially advance Not a very important factor government acting against speech implies that
the act advances the governments interests
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Symbolic Speech
The name given to a doctrine that determined when conduct is expressive (conduct is protected as
speech)
Questions
o When is conduct expressive?
o When may government regulate expressive conduct?
Strip club owner claims violation of his 1st Amendment rights after ordinance is passed
to eliminate strip clubs
Court said this strip club was on the outer periphery of expressive conduct
After this, if there is something that seems like a close case for expressive conduct, it
seems like the Court would hold that there is expressive conduct (if theyre willing to
protect strip clubs)
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Obscenity
Child Pornography
Fighting Words
True Threats
Restricting dangerous speech (Incitements to Unlawful Activity)
The History
o Clear and present danger test reasonableness test risk formula Brandenburg
In order to determine whether something is obscenity, the judges actually have to view it.
o That can be awkward
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o
o
Child Pornography
Regular pornography is protected, child pornography is not protected (New York v. Ferber)
o Child porn does not qualify as obscenity, but it remains unprotected
Defined
o Non-obscene photograph and films depicting sexual activity by juveniles.
This holding required prosecutor to prove something they couldnt prove (that child was
real)
o Congress Response
Defined
o Fighting words are those by which their very utterance inflict injury or tend to incite an
immediate breach of the peace, and are not constitutionally protected.
Wisconsin v. Mitchell A physical assault is not expressive conduct protected by the 1st Amendment
True Threats
Defined
o Encompass those statements where the speaker means to communicate a serious expression
of an intent to comit an act of unlawful violence to a particular individual or group of
individuals.
o The speaker need not actually intend to carry out the threat.
o A prohibition on true threats protects individuals from the fear of violence and from the
disruption fear engenders.
Test
o Intimidation is the constitutionally proscribable sense is a type of true threat, where the
speaker directs a threat to a person or group of persons with the intent of placing the victim
in fear of bodily harm or death.
Wisconsin v. Mitchell A physical assault is not expressive conduct protected by the 1st Amendment
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The First Amendment does not explicitly grant the Freedom of Association
What is the Freedom of Association?
NAACP v. Alabama State passed a statute requiring publication of membership lists of foreign
corporations in order to intimidate people and keep them from joining NAACP. Held: There is a
freedom to associate. Reasoning: There is strength in unity. For freedom of speech to have meaning,
you must be able to associate with others.
What happens when someone files a lawsuit against a club that discriminates on the basis of race,
gender, religion, etc.?
o 1st Amendment Freedom of Association may overcome discrimination statutes in some
circumstances
A group has a 1st Amendment right to exclude so members can associate to express
their views on political, economic, cultural, or social affairs
Examples:
Rationale: Refusing to allow these groups to exclude would compromise the groups
entire purpose by requiring them to allow people to join who have positions
antagonistic to the group.
If it can be shown that a group has an expressive purpose, and having a nondiscriminatory membership policy would jeopardize the groups purpose, then a group
is permitted to discriminate in its membership.
o Cases
Rotary Club Requirement that group admit women to local rotary clubs did not deny
freedom of association or expressive association
Boy Scouts of America v. Dale Boy Scouts have anti-gay views, and may deny
membership to gays on the basis of expressive association.
Citizens United (the political contribution case) Held that corporations and labor
unions can spend unlimited amounts of money in a political campaign. Rationale:
People can associate with one another in the act of spending money to assist a political
position.
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Stands for: If Congress has express authority, that [authority] carries with it the implied authority to
carry the express authority provisions into being by any means not inconsistent with other provisions of
the Constitution.
o Explanation: Express grants of power to Congress are accompanied by implied grants of power
to effectuate is express authority
Also: Necessary and proper clause simply means convenient rather than actually meaning
necessary
o Debate: Jefferson said it mean indispensible, while Hamilton believed it mean
convenient/desireable
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Art. I, 8: Power to regulate commerce with foreign nations and among the several states & with the
Indian Tribes.
History
Gibbons v. Ogden Commerce means all phases of business activity, concerning more than one
state. Congress has PLENARY authority over interstate commerce
o This gave Congress authority to regulate commerce at all levels (manufacture, mining,
production, shipping, etc)
1887-1937 Restrictive reading of commerce authority
States may regulate their own intrastate commerce race to the bottom for regulation
Dagenheart Struck down statute that said father had no right to childs wages
Commerce Power Today
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These two prongs are often read together, and they come very close to creating a federal police power
Example: Congress can make federal crimes out of activities that utilize these means and
instrumentalities.
o Mail and wire fraud statutes make it a federal crime to use the means or instrumentalities of
commerce to transmit fraud.
o Most federal crimes are based on the commerce clause
Note: If the conduct to be regulated utilizes the means and instrumentalities of commerce, it need
not also have a substantial effect on commerce
Conduct having a Substantial Effect on Commerce
Civil Rights Act of 1964 was passed under this prong (racial discrimination in public accommodations
hurt interstate commerce because it affected travel)
Filburn Growing wheat for personal consumption in violation of a quota can be punished. This was on
the outer-limits of substantial effect prong. If everyone did it, this would be very bad for interstate
commerce.
Gonzalez reaffirmed Filburn. Dealt with growing medical marijuana for personal use.
Lopez Court strikes down a commerce clause regulation. Gun free school zones has nothing to do
with the means and instrumentalities of commerce.
US v. Morrison Court strikes down federal torts provision of Violence Against Women Act. Claim that
gender violence has a substantial effect on interstate commerce was flimsy at-best. Court will strike
down a statute if it is not truly based on commerce
Sebelius Commerce power does not extend to compelling people to enter into commerce (upheld
under taxing power instead)
Lopez Factors:
Commerce Clause Today
U.S. v. Morrison
Modern courts determine if Congress has exceeded their powers under the Commerce Clause by
utilizing the Lopez Test.
(1) Channels highways, railways, airports, canals, etc.
(2) Instrumentalities cars, trucks, planes, trains, etc.
o Also includes persons or things cargo or passengers.
(3) Activities, which in the aggregate have a substantial effect on interstate commerce.
o (a) Is it really commerce?
Commerce: Movement of goods and services
o (b) Jurisdictional elements?
o (c) Congressional findings?
About the effects on interstate commerce
Here, dealing with the Violence Against Women Act, which gave a victim an action for civil damages.
Not dealing with 1 or 2.
Is it really commerce? No. Gender-based violence.
Was there a jurisdictional element? No. Plaintiff did not have to show that defendant moved
her across state lines, etc.
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Congressional findings? Deterring people from traveling interstate, etc. Too attenuated from
what the Act is meant to bar!
National Federation of Independent Business v. Sebelius (Affordable Care Act)
o The Commerce Power
Differentiates from Wickard: Fundamental difference between telling them not to grow wheat anymore
and telling them to produce more.
Framers gave Congress power to regulate, not to compel commerce.
The power to regulate commerce presupposes the existence of commercial activity to be regulated.
Commerce Clause is about regulating activities, not individuals.
If individuals are to be regulated, theyre going to have to look under something other than the
Commerce Clause.
If young people remain passive and do not buy health insurance, their passivity, in the aggregate, has a
substantial effect on interstate commerce.
Would that means it fits with Wickard and the Lopez test?
No doubt that theres a substantial effect young not in the pool, so middle-aged and elderly
have to pay more.
Bolstered by the Necessary and Proper Clause.
o Necessary and proper means to force you into the market for purposes of keeping
costs low for middle-aged/elderly.
Commerce Clause assumes that there is interstate commerce, and then Congress can regulate that which
exists already.
Government of limited power v. government of plenary powers
Commerce power is to regulate goods and service in interstate commerce, including
individuals incident to that.
Cannot regulate people as people thats police power and reserved to the states.
o Necessary and Proper Clause
Dont actually have to have movement across state lines look at the aggregate.
BUT it is not a power on its own simply a mean to effectuate powers prior to that clause.
The government argued that under the N&P clause, the purpose was a comprehensive health care
regulating scheme, and Congress can use any reasonable means to do so.
Reasonable means to bring about a valid purpose.
Roberts disagrees.
o Has to be a purpose that the Congress has a power to bring about.
o If they dont have the commerce power, then they cant do it.
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Taxing Power
Art. I, 8: Congress shall have the power to lay and collect taxes, duties, imposts to pay the debts
and provide for the common defense and general welfare of the United States.
Sixteenth Amendment: Congress shall have power to law and collect taxes on incomes, from
whatever sources derived, without apportionment among the several states.
Uniform Taxation
o Taxing Power requires congress to tax all states the same way. All ports must be taxed equally,
all states must be taxed equally on applicable taxes
o Sixteenth Amendment: Allows government to tax based on individual income, rather than
taxing the states as a whole or taxing each person equally
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o
o
US v.
o
o
o
Held: So long as a tax raises some form of revenue, it is constitutional, even if it is intended to
regulate behavior
Sebelius Reaffirms holding. Even though failure to have health insurance was penalized, it
was still considered a tax because it raised some form of revenue, and because there was no
fault assigned.
Ptasynski Normally, taxation of states must be uniform (exception)
Oil shortage leads to high prices, and Congress increased taxes
Congress taxed Alaska oil less because of high cost of production in Alaska
Held: Lack of uniformity in taxing was okay because it took into account the increased cost of
production
Spending Power
Art. I, 8: Congress shall have the power to provide for the common defense and general welfare
of the United States.
Mandate Legislation
o Congress can create grants to give money to the states (block grants)
o Congress can condition receipt of the grants on the state doing something
3. The funding condition must be related to the federal interest in particular programs
or projects
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Coercion
o Coercion in the use of the spending power is not unconstitutional
General Welfare US v. Butler: The term is within the discretion of Congress, and it is not tied to
another other power
Other example of spending power: Title IX Schools dont get money if they dont have gender
equality in sports
Property Power
Art. IV, 3, Cl. 2: Congress shall have the power to dispose of and make rules respecting the
territory or other property belonging to the United States
o A lot of western states hate this point because so much land is used for federal parks
Fiscal Powers
o Art. I, 8, Cls. 2 and 5:
Congress shall have the power to borrow money on the credit of the United States.
Congress shall have the power to coin money, regulate the value thereof, and of
foreign coin, and fix the standard of weights and measures.
o Congress is not constitutionally obligated to balance the budget Has unlimited power to
borrow money.
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Naturalization
o Art. I, 8, Cl. 4: Congress shall have the power to establish a uniform rule of naturalization.
o Immigration is under congressional authority, not state authority
Admiralty
o Art. III, 2, Cl. 1: The judicial power shall extend to all cases of admiralty and maritime
jurisdiction.
o Admiralty is the law of the sae
Less important today because waterways are regulated by the commerce clause
Tenth Amendment
The power not delegated to the US by the Constitution, nor prohibited by it to the respective states,
are reserved to the States respectively, or to the people.
Debate Does 10th Amendment carry enforcement powers (brake on the federal government), or is
it merely a reminder to Congress not to overstep its bounds?
o 1792 1880 Mere reminder not to overstep bounds
o 1880 1937 Independent reservation of power to the states; Enforceable restriction on
government power
o 1937 Present Seen simply as a reminder to Congress, not an enforceable restriction
Exception: Printz
Printz v. US Gun Control Act required local sheriffs to perform background checks,
but did not provide funding to do it
Congress said states are liable for any harm caused by the waste within their borders
after that date
o Held
Congress cannot commandeer the states like this. If Congress attached funding
(mandate legislation), then this would have been permissible under the Commerce
Clause
Reno v. Condon
o Congress can regulate public entities (states) using the commerce clause. Additionally, no
violation of 10th Amendment because the statute at issue forbade the states from acting,
rather than forcing it to act.
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Held: 13th Amendment allows Congress to legislate against private conduct that
imposes slavery or the badges and incidents of slavery.
o Jones v. Alfred H. Mayer
Held: Congress may rationally determine whether something is, or is not, a badge or
incident of slavery
14th Amendment
o Cases Challenging Civil Rights Act of 1883 14th Amendment requires state action
o Congress may only enforce the 14th Amendment against state action
11th Amendment
This amendment does not confer sovereign immunity. It simply means that a state cannot be sued in
federal court without its consent. However, a plaintiff that raises a federal claim may be heard in state
courts.
Is the Congressional Act congruent and proportional to what the Supreme Court has
done in the past?
Summary of Congressional Power
13th Amendment
o Applies to private and public conduct
o Applies to wage slavery
o Congress has the power to rationally determine what constitutes a badge or incident of
slavery
14th Amendment
o Congress may not use its enforcement power to overrule a SCOTUS decision on the
Constitution
o Congress may pass legislation that enforces a holding of SCOTUS
o Congress may pass legislation on matters SCOTUS has not directly ruled on, so long as the
legislation is congruent and proportional to existing SCOTUS holdings
Often requires drawing analogies analogize the statute to past court decisions
15th Amendment
o Unknown whether the congruence test applies to 15th Amendment
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Last case on this Amendment was City of Rome held that plaintiffs had to show disparate
impact
o
Congress has broad plenary authority under the commerce clause
Dormant Commerce Clause: State and local laws may not unduly burden interstate commerce
Purpose
o Prevent protectionist behavior where a state favors its own commerce over that of other states
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1. Has there been unreasonable discrimination against out-of-staters (in favor of in-staters), or was
there similar treatment?
2. What was the state or local governments legislative purpose in passing the law?
Application of the Test
If the state law discriminates against out-of-staters, there is a strong presumption the law is
unconstitutional (must achieve important or even compelling government interest)
Fair apportionment
Since every state could tax the business, no state may tax in a way that would
create an undue burden if everyone taxed the business; must tax based on
their apportionment of business
Non-discriminatory
The tax must be related to how the services the business uses in the state
State Quarantine and Inspection
State police power allows state to protect health and safety of citizens
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Pike v. Bruce Church, Inc This Court has viewed with particular suspicion state statutes requiring
business operations to be performed in the home state that could more efficiently be performed
elsewhere.
Law Limiting Access to In-State Resources
Pennsylvania v. West Virginia WV passed statute saying in-state gas companies cant export until all
in-state entitled have their needs satisfied
o Held: The state cannot regulate in a way that discriminates between in-state users and out-ofstate users this is unauthorized protectionism
Preserving State-Owned Resources for In-State Use
Facts: South Dakota owned a cement company, and charged higher prices to out-ofstate purchasers.
Since the state owns the company, the state can be in the business to serve its
own taxpayers
So long as the state is not acting as a regulator, but acting as a participant, the
state can discriminate
o This is the basic principle of universities charging out-of-state tuition acting as a market
participant
Overruling a SCOTUS decision
If SCOTUS holds that the dormant commerce clause prevents a state from discriminating in its
regulation of commerce, Congress can overrule that decision by passing legislation that permits the
state to discriminate in that fashion.
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Common Scenarios
o Congress has not acted, but a state has
The question is whether the state can prevail in the face of congressional silence, when
congress could legislate on this area, or has legislated in an analogous area
o Congress and a state have both acted
The questions that arise is whether the state is simply supporting what congress does,
and if its legislating something different, are the two enactments congruent or in
opposition?
o Voter referenda and initiatives (this is the one that gets all of the attention in the media)
In many states, proposed statutory or constitutional provisions can be put to the voters
Express preemption
o Occurs when Congress, in the statute, expressly says that states may not act in the given
area
o Example: No state shall enact or enforce any law, rule, etc. relating to rates or services of any
airline carrier
Implied Preemption
o Occurs when Congress remains silent, but the Court decides that the congressional purpose
cannot be satisfied if the states legislate in the area as well
Congress does not expressly preempt, but the Court believes there was intent to
preempt.
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Field Preempion
Conflict Preemption
Types:
o Congress has legislated so much and so pervasively in a given field that there is no room for
state activity to legislate
o Congress has occupied the field
Example: Foreign policy and foreign relations (immigration and naturalization), bankruptcy, etc
Hines v. Davidowitz By express provision of the Constitution and by Legislation, Congress occupied
the field of immigration and naturalization
Conflict Preemption
Arises when the federal and state law on a particular matter conflict
Court must determine what the Congressional purpose is, and if the state law impedes the
achievement of that purpose
The field is not reserved, and there is no overt conflict but application of the state law would be an
obstacle to full implementation of federal law.
++++
The Treaty Power
If a treaty and statute are inconsistent, the latter in time prevails (normal canon of statutory
construction)
Note: Signing and ratifying a treaty are different things; we sign many treaties, but they dont become
law in the US until ratified by statute)
How can Congress overrule SCOTUS on Supremacy Clause Issue?
Normally, when SCOTUS decides a constitutional issue, that decision can only be overruled by a new
SCOTUS decision, or a constitutional amendment
Much like in Dormant Commerce Clause situations, Congress can amend a law or pass legislation
indicating their intent to preempt or not preempt.
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Preemption is based on congressional intent Congress can pass legislation clearly indicating
its intent, overruling a determination by SCOTUS regarding preemption
o
When is precedent overruled?
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Facial Challenge
o Claim that the statute is unconstitutional on its face
o The statute has no possible constitutional applications
o Example: No person may sell a newspaper within 100 yards of a school building
As Applied Challenge
o Statute may be constitutional when applied to other people in other circumstances, but it is not
constitutional as it was applied to this party.
o Example: City ordinance says it is a misdemeanor to behave in the street in a manner
annoying to other persons
A person arrested for handing out political leaflets can claim violation of 1st
Amendment
Notes
o More difficult to win facial challenges, because they require a showing that the statute is fatally
flawed
o If an as applied challenge is sustained, the statute remains on the books to be used in the
future (except in 1st Amendment cases)
Strict Scrutiny
o Test: Government must show that the challenged classification serves a legitimate compelling
state interest and that the law is narrowly tailored to serve that interest.
o Restrictions resulting in Strict Scrutiny Analysis
Intermediate Scrutiny
o Test: Government must show that the challenged classification serves a legitimate important
state interest and that the law is substantially related to serving that interest
o Quasi-Suspect Classifications result in Intermediate Scrutiny
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Gender; Non-marital children
Notes
Inclusiveness
This question goes to the issue of whether a classification is narrowly tailored or substantially related.
Over-Inclusive A law is over-inclusive if it applies to some people who need not be included for the
government to achieve its legitimate purpose
Under-Inclusive A law is under-inclusive if it does not apply to some people who should be
included for the government to achieve its legitimate purpose.
Taxing Power
Congress shall have the power to collect taxes, etc. for common defense and general welfare.
Limitation? No.
U.S. v. Butler: Not a limitation on the power to tax or spend. Left up to Congress as to what
that includes.
Congress decided that the purpose of the ACA is the general welfare.
All bills.revenueshall begin in the House.
This began in the Senate!
Sonzinsky v. U.S.
Revenue raising v. regulatory
Used the taxing power to achieve what they couldnt do under the Commerce Clause.
This is like a Sin Tax not interested in raising revenue, but in getting people to stop doing
it. (U.S. v. Sanchez marijuana tax; U.S. v. Kahringer wagering)
The limit on the taxing power is imposing a penalty.
The government CAN tax passivity.
What characteristics make it looks like a tax?
Collected through the IRS and done through the 1040.
If you dont pay federal income tax, you dont pay the fine. Have to have enough income such
that you actually pay federal income tax.
Going to go up or down depending on deductions and federal income tax liability.
If you dont have much income, then the fine is non-existent.
Drexel Furniture: 3 part test to determine if its a tax or penalty.
(1) Heavy burden? (10%+ of net income)
(2) Knowledge requirement
(3) Enforced by the Department of Labor
No knowledge requirement; enforced by IRS, not HHS; minimal fine. Looks like a tax, not a penalty!
Dissent
If this is a tax, its completely novel. (Not the best argument)
Congress called it a penalty 18 times didnt want to call it a tax because taxes are unpopular.
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Was 5% of federal highway money, and only .05% of the South Dakota budget.
Compared to the ACA Medicare withholding would lose all funds. Thats 20% of a
states budget on average. Of that 20%, 50-80% of that is federal money a large
amount. Suggestive of coercion
o What is coercion?
What were they asked to give up?
In Dole, had to pass a law that only allows 21+ to drink.
ACA is a huge deal wont be able to spend limited funds on other things if
they dont accept.
If the States buy into this, its no longer Medicare its completely changed.
Was a dog, now its a cow. Transformation of kind.
Ginsburgs Dissent
o Totally novel has never happened before.
o Percentage game, but which percentages matter? How do we draw a line?
o She thinks its a political question and non-justiciable.
Impossible to draw a line.
Preserving the Dole germaneness and notice tests.
Congressional Powers (Often Over Against State Sovereignty)
State Immunity from Federal Regulation
o New York v. U.S.
Low level radioactive waste
Whipsawing states
Forcing them to regulate at the threat of becoming owner of all of this waste huge liability.
Person responsible is Congress you dont get to regulate and then force states to take the blame.
Congress has to take the pushback of its own regulations.
Regulation without responsibility is unconstitutional.
The 10th Amendment is simply a truism the outer edge of Congressional power stops and
states take over.
o Printz v. U.S.
Brady Handgun Violence Prevention Act
Insistence by the Court that the regulator be fully exposed.
Take Care Clause (Art. II, 3)
Congress passes law, executive enforced it, BUT the country sheriffs are enforcing it.
o Lots of pushback and criticism directed at sheriffs.
o Sheriff doesnt answer to the President cannot order him to enforce it; cant delegate
the Take Care Clause.
The Solicitor General was trying to salvage the Act Yes, Congress used commerce power in excess,
but that should be balanced against the good its doing
Court: NO! This is not right. This is the power and structure of the government. This is
STRUCTURAL limit on Congress.
Concurrences by OConnor and Thomas (pg. 266)
o Residual state power NOT states rights.
o Reno v. Condon how do we reconcile this?
Congress tells the states they cannot sell the data collected by the DMV.
Congress can regulate the states, but they cannot tell states to regulate its citizens.
o
o
Enforcement of Federal Rights in Suits Against State Officers: The Eleventh Amendment
State sovereign immunity means that a state cannot be sued in its own name without its consent. Such immunity from suit
pre-existed the formation of the union and continues to inhere in the federalist system in the Constitutions structure.
11th Amendment recognizes that states generally have sovereign immunity when sued in federal court.
o 11th Amendment confirms, rather than creates, sovereign immunity.
o The scope of sovereign immunity is broader than set out in the 11th Amendment.
o The Bankruptcy Clause (Art. I, 8[4]) is said to be an exception whereby sovereign immunity is waived when a
state joins the union. (Central Va. Comm. College v. Katz)
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Does not apply to claims filed in state court. However, states often have sovereign immunity when sued in their own
courts as a matter of state law.
State sovereign immunity and the 11th Amendment do not apply to claims against local governments or other political
subdivisions of the state. Rather, the immunity applies only to claims against the state and its departments and agencies.
State sovereign immunity and the 11th Amendment apply whether plaintiff is a citizen of the defendant-state or of another
state. (Hans v. Louisiana)
Ex Parte Young
o Neither state sovereign immunity nor the 11th Amendment bars federal claims against state officials for
injunctive and/or declaratory relief.
o Although the official is sued in his own name, the claim must be for actions taken in his official capacity.
o The Court reasoned that a state could never authorize one of its officers to violate the Constitution, therefore the
officer must have been acting on his own.
o The Young Fiction: To be able to enjoin violations of federal law, and to allow federal courts to have a
definitive role in interpreting federal law.
o Only applies to prospective relief, not to damages (Edelman). That future compliance with an injunction will
cost the state money, however, make the claim one for damages (Milliken v. Bradley).
Neither state sovereign immunity nor the 11th Amendment bars a federal claim for damages brought against a state
official in his personal capacity. However, any monetary judgment in these personal capacity suits can be collected from
only the individual, not the state.
A state may waive its sovereign immunity and the 11th Amendment.
o Any such waiver must be clear and knowing.
o A state may waive its immunity from suit in its own courts without waiving 11th Amendment immunity when
sued in federal court.
o May refuse to waive its sovereign immunity when sued in state court, even when the claim is on a federal right
that cannot be pursued in federal court because of the 11th Amendment (Alden v. Maine)
o This may leave a plaintiff with a federal right but no judicial venue to enforce it.
Under its 14th Amendment powers, Congress may abrogate a states sovereign immunity and the 11th Amendment.
o Intent to abrogate must be clear in the text of the statute.
o Congress lacks power under Art. I to abrogate a states 11th Amendment immunity when sued in federal court.
Seminole Tribe v. Florida
o Congress also lacks power under Art. I of the Constitution to abrogate a states sovereign immunity when sued in
state court; and this is so even when the claim is on a federal right that cannot be pursued in federal court
because of the 11th Amendment. (Alden)
o 5 of the 14th Amendment: The Congress shall have the power to enforce, by appropriate legislation, the
provisions of this article.
Can use this to abrogate states sovereign immunity to allow them to be sued in federal courts for
damages.
One state can sue another no sovereign immunity issue.
Ex Parte Young
o Federal judiciary was mad because state courts were hearing federal constitutional rights claims.
o The Young Fiction: Allows individual with a constitutional harm to sue in federal court for injunctive relief.
Fear that state judges are hostile to federal constitutional rights.
Fiction: Can sue a state official in federal court for injunctive relief only under the theory that the state
would have never authorized their behavior, so youre suing them in their personal capacity for
injunctive relief and damages.
If suing in official capacity only injunction.
If suing in personal capacity injunctions and damages.
Sue individuals in order to get the benefit of the fiction.
o Only bars retrospective relief does not bar prospective injunctions which will require spending money.
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Criminally accused Due Process Clause is implicated because if he doesnt have access to the
courthouse, he cannot take advantage of his rights.
Equal Protection just gets rational basis review, but here we are dealing with the Due Process Clause.
Relates it the other rights of the Constitution!
Title II of the ADA is permitted only when you can link it with some other constitutional right.
o Remedies required from the states were not unreasonable they just had to make reasonable accommodations to
allow disabled persons to exercise their fundamental rights.
Reasonable, prophylactic measure, reasonably targeted to a legitimate end.
Only goes a little beyond; is in aid of a legitimate power.
Congress had the authority under the 14th Am. to regulate the actions of states to accomplish that end.
o CONSTITUTIONAL
o Scalias Dissent
The flabbier the test, the more power for judges.
They can make the outcome whatever they want it to be too malleable.
Anger is mostly direct at Hibbs
Nevada Dept of Human Resources v. Hibbs
o FMLA: In certain instances for mid-sized/large employers, get 12 weeks of paid leave and get to return to job.
o Passed pursuant to 5 of the 14th Amendment.
o Gender discrimination gets intermediate review.
Extends to men how can Congress protect men under the Equal Protection Clause?
If it doesnt apply to men as well, the employers would hire men in order to not deal with the FMLA.
Not only preventing discrimination, but giving 12 weeks leave goes beyond the Enforcement Clause.
o BUT Hibbs upholds the 12 weeks. Why?
Established that certain prophylactic, remedial provisions are okay.
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Yes: Unconstitutional
No: Go to Step 2
o (2) Discriminatory Impact Only?
Balancing Test
Is commerce burdened?
Almost always yes, because otherwise there wouldn't be a suit.
How bad is the effect?
Really bad: Struck down
Not bad: Upheld
If states reason is health or safety, it will be upheld.
Most challenges are going to try to win in Step 1. The balancing test is more rigorous than rational basis review.
Conceptual Problem
o Art. I, 8, 3 Negative Commerce Clause The Congress shall have the power to regulate commerce with
foreign nations, and among the several States
o Commerce power for Congress. Congress could have regulated but has remained silent.
o While this clause is about delegating power, but read into the clause is a right.
Right in industry to sue a State that is regulating interstate commerce detrimentally.
Right to industry not to be harmed by States in interstate commerce.
o Vested a right in industry so industry has standing to sue.
The cases where the state has intentionally or inadvertently created substantial burdens on interstate commerce fall into
types.
o Must first identify very carefully what the states restriction is on commerce.
o Intentional discrimination against interstate commerce
o Implied Restrictions Transportation
Instrumentalities of commerce
Navajo Freight Lines case: Iowa law was struck down because they were the only ones who had the
particular law, so it was a burden on interstate commerce.
o Implied Restrictions of the Commerce Clause Production and Trade
Restricting Importation and Insulating In-State Business From Out-of-State Competition
Mintz v. Baldwin
o Protectionist for cattle producers inside the state of New York
o Purpose: Prevent disease from being brought into the state
o Court: Good enough reason notwithstanding the increase in price for cattle
producers outside of New York, they sustain the law.
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