Constitutional Law I

THE SCOPE OF JUDICIAL POWER

The Authority of Judicial Review

Marbury v. Madison
 Marbury was a last-minute judicial appointee of outgoing President Adams, whose commission was not
delivered to him before Adams left office; Jefferson, the incoming President, declined to deliver the
commission.
 RULE: Where the constitution, as interpreted by the Supreme Court, conflicts with laws or actions enacted
by Congress, the Supreme Court may declare such laws or actions unconstitutional and invalid.
 Key Principles
o The Constitution is regulatory, meaning it regulates behavior and is binding. It is not to be treated
as something like the Declaration of Independence or the Magna Carta, which set forth non-
binding principles.
o Any executive or legislative action that is contrary to the Constitution will be found
unconstitutional and is therefore invalid.
o The Court has the power to review executive conduct to determine its constitutionality
o The Court has the power to review legislative actions for their constitutionality.
o Congress cannot increase the original jurisdiction of federal courts beyond what is specified in
Article III
Martin v. Hunter’s Lessee
 The Supreme Court has the authority to review the constitutionality of state court decisions in civil cases;
§25 of the Judiciary Act of 1789 is constitutional
 The Constitution gives the Supreme Court appellate review, and allows Congress to create lower federal
courts but does not require it. If Congress chooses not to create federal court, the Supreme Court would
only have appellate review over the state courts.
Cohen v. Virginia
 Two brothers are convicted in Virginia state court of selling D.C. lottery tickets. They challenged their
conviction claiming that the Constitution prevented them from being prosecuted for selling tickets
authorized by Congress
 RULE: Criminal defendants in state court can seek Supreme Court review when they claim their conviction
violates the constitution.
Review of Other Branches of Federal Government
 the Constitution does not explicitly state that the Supreme Court may determine the constitutionality of acts
of other branches of government. However, judicial review of other branches of the federal government
was established in Marbury v. Madison, 5 U.S. 137 (1803) (per Marshall, C.J.); the Constitution is “law”
and it is the province and duty of the judiciary to declare what the law is.
Federal Review of State Acts:
 Federal review of state acts (executive, legislative, or judicial) was established by the Marshall Court in a
series of decisions. Clear basis exists here in the Supremacy Clause of Article VI, which states that the
Constitution, Laws, and Treaties of the United States take precedence over state laws and that the judges of
the state courts must follow federal law, anything in the constitution or laws of any state to the contrary
notwithstanding.
Limits on Federal Judicial Power
The Exceptions & Regulations Clause
Ex Parte McCardle
 While appeal of a habeas corpus petition was pending on the Supreme Court’s docket, Congress passed
legislation eliminating the Supreme Court’s appellate jurisdiction in habeas corpus cases.
 RULE: Although the Supreme Court’s appellate jurisdiction is derived from the Constitution, Congress has
the power to make exceptions and regulations to this jurisdiction
 has been read as giving Congress full power to regulate and limit the Supreme Court’s appellate
jurisdiction. However, possible limitations on such congressional power have been suggested:

1
 Constitutional Law I

o Congress may eliminate specific avenues for Supreme Court review as long as
it does not eliminate all avenues. For example, in McCardle, two statutes had allowed the Supreme
Court to grant habeas corpus to federal prisoners. The Supreme Court upheld the constitutionality
of the repeal of one of the statutes because the other statute remained as an avenue for Supreme
Court habeas corpus review.
o Although Congress may eliminate Supreme Court review of certain cases within the federal
judicial power, it must permit jurisdiction to remain in some lower federal court.
o If Congress were to deny all Supreme Court review of an alleged violation of constitutional rights
—or go even further and deny a hearing before any federal judge on such a claim—this would
violate due process of law.
United States v. Klein
 Congress passed a law terminating federal court jurisdiction in cases in which a claim was made of
recovery of property seized by the United States during the Civil War and where the claimant used a
presidential pardon to show he had not aided the enemy.
 RULE: Congress violated the separation of powers by passing a law rescinding the Supreme Court’s
appellate jurisdiction in claims cases supported by a presidential pardon and by infringing the president’s
exclusive power to pardon.

LIMITS ON THE JUDICIAL POWER – JUSTICABILITY DOCTRINES

Prohibition Against Advisory Opinions

 RULE: In order for an issue to be justiciable rather than Advisory:
o There must be an actual dispute between adverse litigants; and
o There must be a substantial likelihood that a federal court decision in favor of a claimant will
bring about some change or have an effect.
Plaut v. Spendthrift Farm:
 Section 27A(b) of the Securities Act was unconstitutional because it impermissibly allowed Congress to
undo final judgments of the federal courts in violation of separation of powers principles that give only a
higher court – not Congress – the ability to overturn the judgment of a lower court.
 RULE: Legislation that directs the federal courts to reopen cases on which the courts have passed final
judgment unconstitutionally violates the separation of powers.
Constitutional Standing
 RULE: for a party to show that she has standing to bring suit, she must show three things:
o Injury: must be concrete, particularized injury or harm that is either actual or imminent; cannot be
generalized, speculative, or hypothetical
o Causation: plaintiff’s injury must be fairly traceable to defendant’s conduct; line of causation must
be direct, not attenuated.
o Redressability: If the court grants the requested relief, it must actually redress or mitigate
plaintiff’s injury
Allen v. Wright:
 An African American plaintiffs to a lawsuit challenging the IRS policies that encouraged and subsidized
the establishment of racially discriminatory schools did not have standing to sue because they could not
show concrete, particularized injury with respect to stigmatization and they could not show causation
because the link between IRS policy and the founding of private, segregated schools was too attenuated.
 RULE: Standing requires a plaintiff to allege a personal injury fairly traceable to the defendant’s allegedly
unlawful conduct and likely to be redressed by the requested relief.
Massachusetts v. EPA:
 Massachusetts had standing to sue the EPA for failure to implement provisions of the Clean Air Act
because Massachusetts could show that failure to prevent carbon emissions could lead to loss of coastal
lands.
 RULE: when a party has been vested with a procedural right, that party has standing if there is some
possibility that the requested relief will prompt the party causing the injury to reconsider the decision that
allegedly harmed the other party.

2
 Constitutional Law I

Prudential Standing
Third- Party Standing
 RULE: When deciding whether a third party has standing to bring a suit to champion the rights of another,
the court looks at two factors:
o How close the relationship is between the third party and the party whose rights are being
affected; and
o How likely it would be that the person whose rights are being affected would bring suit.
Singleton v. Wulff:
 Physicians who provided abortions had standing to sue on behalf of women whose abortions were not
covered by Medicaid because the physician suffered an injury since they were not paid for their services
and their interests were closely enough aligned with their patients to ensure effective representation.
 RULE: Persons may sue to protect a third party’s right only when (1) the relationship between the parties is
such that the person suing may advocate effectively for the right and (2) there are genuine obstacles to the
third party asserting the right in court.
Taxpayer Standing
 RULE: Generally, being a taxpayer does not give a person standing to challenge government action.
 The exception is that here MAY be “taxpayer standing” where the taxpayer is challenging the enactment
under the Taxing and Spending Clause AND claims that the challenged enactment exceeds specific
constitutional limitations outside of the grant of the power to tax and spend.
United States v. Richardson:
 Plaintiff challenging reporting of CIA expenditures did not have standing to sue because was not
challenging the constitutionality of Congressional authority under the Taxing and Spending Power.
 RULE: Taxpayer status is not sufficient to confer standing to challenge the constitutionality of federal
action unless the taxpayer alleges direct injury from the practice and not general grievances common to all
members of the public.
Flast v. Cohen:
 A plaintiff taxpayer has standing to sue the challenge expenditure of funds as violating the First
Amendment Establishment Clause.
 Taxpayer status is sufficient to confer standing on an individual to bring suit in federal court to challenge
the constitutionality of federal spending in violation of the First Amendment Free Exercise and
Establishment clauses.

PRESIDENTAL POWERS

Inherent Presidential Powers

Power as Chief Executive
 The President’s power over internal (i.e., within the United States) affairs as the chief executive is unclear.
Clearly the President has some power to direct subordinate executive officers, and there is a long history of
presidents issuing executive orders. Perhaps the best guide for determining the validity of presidential
actions regarding internal affairs can be based on Justice Jackson’s opinion in Youngstown Sheet & Tube
v. Sawyer, 343 U.S. 579 (1952):
o Where the President acts with the express or implied authority of Congress, his authority is at its
maximum and his actions likely are valid;
o Where the President acts where Congress is silent, his action will be upheld as long as the act does
not take over the powers of another branch of the government or prevent another branch from
carrying out its tasks [see, e.g., United States v. Nixon, I.E.7.b., supra—President’s invocation of
executive privilege was invalidated because it kept federal courts from having evidence they
needed to conduct a fair criminal trial]; and
o Where the President acts against the express will of Congress, he has little authority and his action
likely is invalid.

Youngstown Sheet & Tube Co. v. Sawyer:

3
 Constitutional Law I

 Although the President has inherent powers, there are limits on such powers, particularly when the
President acts contrary to Congress or usurps the power of another branch. The approaches in this case
provide a framework for analyzing whether presidential action is constitutional.
 Three Models:
Justice Approach

Black (Majority) The President may only act if there is constitutional or

statutory authority. If the constitution or Congress are silent,
the President's actions are invalid.

Jackson/Frankfurter When the Constitution and Congress are silent, the President
(Concurring) may act until Congress acts to restrain him. To put it another
way, the President may act unless he violates a statutory
provision.

Douglas The President may act without constitutional or statutory

(Concurring) authority until he usurps or interferes with the power of
another branch. If there is no usurpation or interference, the
President's action is permissible. If there is usurpation or
interference, the Court's role is to strike down this infringing
action.

Limits on Inherent Power- Executive Privilege

United States v. Nixon:
 The Supreme Court recognizes executive privilege as an inherent presidential power (one that is not
explicitly authorized by statute or the Constitution). However, this privilege does not always prevail
because, here, Nixon was usurping the power of another branch – the judiciary.
 Conversations between the President and his advisors is generally privileged, but the privilege is not
absolute
Congressional Authority to Increase Executive Power
Line Item Veto Unconstitutional
The veto power allows the President only to approve or reject a bill in toto; he cannot cancel part (through a line
item veto) and approve other parts. Rationale: The President’s veto power does not authorize him to amend or repeal
laws passed by Congress.
Clinton v. City of New York:
 Line Item Vetoes are unconstitutional. Even though the executive and legislative branches agreed on a
course of action, so there should be the strongest argument for constitutionality, the Court concluded
otherwise because it considered the line item veto a usurpation of the legislative power and contrary to the
constitutional order of legislation.

ADMINISTRATIVE AGENCY

Delegation of Legislative Power to Agencies (The Executive)

A.L.A. Schechter Poultry Corp. v. United States & Panama Refining Co. v. Ryan:
 Prior to 1937, the Supreme Court would strike down statutes that it deemed delegated Congress’s
legislative authority to the executive. In these cases, the Court held that the delegations did not contain any
directions or limits on the Executive’s power to regulate and therefore violated separation of powers.
 Congress may not delegate law making authority to an executive agency without prescribing specific
standards for exercise of that authority
Whitman v. American Trucking Association, Inc.:
 The decision demonstrates the modern approach by the Supreme Court in which it permits delegation of
legislative authority because of the need for agency expertise and specificity so long as Congress provides
an “intelligible principle.” No delegation to an agency has been found invalid since the 1930s.

4
 Constitutional Law I

Congressional Control of Agencies – The Legislative Veto

Immigration & Naturalization Service v. Chadha:
 The legislative veto – the ability to annul an agency decision by the vote of one house of Congress – is
unconstitutional because it constitutes legislation and violates bicameralism and the Presentment Clause.
 SEPARATION OF POWERS—THE REQUIREMENT OF BICAMERALISM AND
PRESENTMENT
 To pass a law, Congress must use bicameralism (passage of a bill by both houses of Congress) followed by
presentment to the President for signature or veto. Attempts by Congress to create laws or control the
enforcement of laws without bicameralism and presentment are invalid.
 RULE: Legislative action is not legitimate unless there is bicameral approval and presentment to the
President.
The Appointment Power
Appointment
 Under Article II, Section 2, the President is empowered “with the advice and consent of the Senate” to
appoint all “ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other
officers of the United States, whose appointments are not herein otherwise provided for . . . but the
Congress may by law vest the appointment of such inferior officers, as they think proper, in the President
alone, in the courts of law, or in the heads of departments.”
o Appointment of “Independent Counsel” (Special Prosecutor): A special prosecutor with the
limited duties of investigating a narrow range of persons and subjects (e.g., to investigate alleged
misconduct of a government employee) is an inferior officer. Therefore, under the Appointment
Clause, Congress is free to vest the power to appoint a special prosecutor in the judiciary.
[Morrison v. Olson, 487 U.S. 654 (1988)]
o No Appointments by Congress: Although Congress may appoint its own officers to carry on
internal legislative tasks (i.e., its staff), it may not appoint members of a body with administrative
or enforcement powers; such persons are “officers of the United States” and must, pursuant to
Article II, Section 2, be appointed by the President with senatorial confirmation unless Congress
has vested their appointment in the President alone, in federal courts, or in heads of departments.
Morrison v. Olson:
 The independent counsel is an inferior officer because it can be removed by a superior, has limited duties
and jurisdiction, and tenure. Because the independent counsel is an inferior office, the manner of selecting
the independent counsel – by using a panel of the judiciary, rather than appointment by the President – was
constitutional and did not violate separation of powers.
 RULE: Since the Independent Counsel is an inferior officer, a law giving judges the authority to appoint an
independent counsel did not violate the constitution

Recess Appointments
 The Recess Appointments Clause of the Constitution gives the President the power to make appointments
for vacancy without Senate approval during any Senate recess of “sufficient duration.” Under the Clause,
the Senate is in recess only when it states it is in recess. If the Senate does not declare a recess and it holds
pro forma sessions, the Senate is not in recess and the President has no power to make appointments
without Senate approval. [NLRB v. Canning, 573 U.S. 513 (2014)]
NLRB v. Noel Canning:
 A President may appoint officers without the advice and consent of the Senate during a recess pursuant to
the Recess Appointment Clause during inter-session and intra-session recesses and for vacancies that occur
prior to the recess. However, a recess must be at least 10 days long and pro forma sessions of one of the
Houses count as real sessions and therefore can prevent a recess to allow the President to appoint officers.
 The Recess Appointment power allows the President to make appointments to fill any vacancy whenever
the Senate declares that it is in recess for ten days or more.

5
 Constitutional Law I

The Removal Power

Removal
 As to removal of appointees, the Constitution is silent except for ensuring tenure of all Article III judges
“during good behavior.”
o By President
 Under the Court’s decisions, the President probably can remove high level, purely
executive officers (e.g., Cabinet members) at will, without any interference from
Congress. However, after Morrison v. Olson, supra, it appears that Congress may provide
statutory limitations (e.g., removal for good cause) on the President’s power to remove all
other executive appointees.
o By Congress
 Limitation on Removal Power
 Congress cannot give itself the power to remove an officer charged with the
execution of laws except through impeachment. A congressional attempt
through legislation to remove from government employment specifically named
government employees is likely to be held invalid as a bill of attainder.
 Limitation on Powers of Removable Officers
 Congress cannot give a government employee who is subject to removal from
office by Congress any powers that are truly executive in nature. For this reason,
Congress could not give to the Comptroller General (who could be removed
from office not only by impeachment but also by a joint resolution of Congress)
the function of establishing the amount of automatic budget reductions that
would be required if Congress failed to make budget reductions necessary to
insure that the federal budget deficit did not exceed a legislatively established
maximum amount.

Myers v. United States:

 The removal power generally resides with the President
Humphrey’s Executor v. United States:
 Congress may restrict the President’s ability to remove officers who serve quasi-judicial or quasi-legislative
roles or need independence from the President.
Weiner v. United States:
 Congress can impose limits on the President’s ability to remove officers who are supposed to be free of
presidential or congressional influence.
Bowsher v. Synar:
 Congress cannot assign the ability to remove an officer to itself, as this violates separation of powers.
Morrison v. Olson:
 Congress may limit the President’s removal power unless it impedes presidential constitutional authority,
or the officer is central to the functioning of the executive branch.
Free Enterprise Fund v. Pub Co. Accounting Oversight Bd.:
 Multi-level protection from removal violates the Constitution.
Selia Law LLC v. Consumer Financial Protection Bureau:
 Congress cannot create an independent agency with only one director whose term is longer than the
President’s and can only be removed for cause.

EXECUTIVE POWER & FOREIGN POLICY AND THE PRESIDENT’S EXPOSURE TO SUIT

Presidential Power and Foreign Affairs

United States v. Curtiss-Wright Export Corp.:
 Given the federal government’s inherent foreign affair powers, the Court will rarely disturb a balance
agreed upon by Congress and the President. The President is the sole representative to foreign nations and
has both Constitutional and inherent authority to conduct foreign affairs as the President sees fit.

6
 Constitutional Law I

 RULE: The non-delegation doctrine does not bar Congress from delegating great authority and discretion
to the President in the conduct of foreign affairs.
Power to Recognize Foreign States
 The power to recognize foreign states lies exclusively with the president. [See Zivotofsky v. Kerry, 135 S.
Ct. 2076 (2015)—legislation requiring the secretary of state, upon request, to designate “Israel” and not
“Jerusalem” as the place of birth on the passport of a U.S. citizen born in Jerusalem infringes on the long-
time executive branch policy of favoring recognition of Jerusalem]
Zivotofsky v. Kerry:
 The President has exclusive and preclusive power to recognize foreign nations and Congress cannot
interfere with this power.
Treaties and Executive Agreements
Executive Agreements
 The President’s power to enter into agreements (i.e., executive agreements) with the heads of foreign
countries is not expressly provided for in the Constitution; nevertheless, the power has become
institutionalized. Executive agreements can probably be on any subject as long as they do not violate the
Constitution. They are very similar to treaties, except that they do not require the consent of the Senate.
o (a) Conflicts with Other Governmental Action
 Executive agreements that are not consented to by the Senate are not the “supreme law of
the land.” Thus, conflicting federal statutes and treaties will prevail over an executive
agreement, regardless of which was adopted first. However, executive agreements prevail
over conflicting state laws.
o (b) Example—Power to Settle Claims of United States Citizens
 The President, with the implicit approval of Congress, has power to settle claims of
United States citizens against foreign governments through an executive agreement.
[Dames & Moore v. Regan, 453 U.S. 654 (1981)]
Dames & Moore v. Regan:
 Executive agreements are agreements between the United States and foreign countries that are effective
when signed by the President and the head of the foreign nation and are valid so long as they do not violate
a provision of the Constitution.
 RULE: The President has the power to settle claims by U.S. Citizens against foreign governments, even
without the consent of the U.S. citizens whose claims are compromised.
Checks on Presidential Power – Immunity from Suit
Executive Privilege
 The executive privilege is not a constitutional power, but rather is an inherent privilege necessary to protect
the confidentiality of presidential communications.
o Extent of the Privilege
 Presidential documents and conversations are presumptively privileged, but the privilege
must yield to the need for such materials as evidence in a criminal case to which they are
relevant and otherwise admissible. This determination must be made by the trial judge
after hearing the evidence.
 National Security Secrets: Military, diplomatic, or sensitive national security
secrets are given great deference by the courts.
 Criminal Proceedings: In criminal proceedings, presidential communiques will
be available to the prosecution, where a need for such information is
demonstrated. [United States v. Nixon, B.4., supra]
 Civil Trials: The Court has avoided ruling on the scope of executive privilege
in a civil case. Nevertheless, in Cheney v. United States District Court, 542 U.S.
367 (2004), the Court noted that the need for information in a criminal case is
“weightier,” and the Executive’s withholding of information in a civil trial
would not impair the judiciary’s ability to fulfill its responsibility to resolve
cases as much as in a criminal trial. Thus, it appears that an Executive branch

7
 Constitutional Law I

decision to withhold information will be given more deference in a civil trial

than in a criminal trial.
Executive Immunity
 Absolute Immunity for President
o The President has absolute immunity from civil damages based on any action that the President
took within his official responsibilities (even if the action was only arguably within the “outer
perimeter” of presidential responsibility). However, the President has no immunity from private
suits in federal courts based on conduct that allegedly occurred before taking office. Rationale:
The immunity is intended only to enable the President to perform his designated functions without
fear of personal liability.
 Immunity May Extend to Presidential Aides
o Presidential aides share in this immunity only if they are exercising discretionary authority for the
President in “sensitive” areas of national concern, such as foreign affairs. Other aides are entitled
only to a qualified immunity (a “good faith” defense).
Nixon v. Fitzgerald:
 The President has a broad grant of absolute immunity for acts that occurred during the presidency.
Clinton v. Jones:
 The President can be a defendant in a lawsuit during the President’s tenure for actions not related to the
President’s official duties.
Trump v. Vance:
 Article II and the Supremacy Clause do not prohibit the President from being subject to state criminal
process.
Trump v. Mazars USA
 Congress has the authority to issue a subpoena to the President for his personal papers, but courts must
carefully scrutinize the subpoena to ensure that the evidence requested will further a legitimate legislative
purpose.
 Factors that courts should consider in deciding whether such subpoena is proper:
o First, a court must assess whether Congress could reasonably obtain the information through other
means. If so, a subpoena to the President is not appropriate.
o Second, a subpoena must be “no broader than reasonably necessary to support Congress’s
legislative objective.”
o Third, in order to ferret out impermissible purposes, courts should look for detailed and substantial
evidence from Congress indicating information sought by the subpoena furthers a valid legislative
objective.
o Fourth, courts should assess the burdens the subpoena would impose on the President.

THE LEGISLATIVE POWER AND THE NECESSARY & PROPER CLAUSE

Congress and the State

Historical Approach to Congressional Power (Necessary & Proper Clause)
Congressional Power- The Necessary & Proper Clause
 The Congress shall have power … To make all laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by this Constitution in the government of the
United States, or in any department or officer thereof…" - Article I, §8
Congressional Power - The Tenth Amendment
 "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people."
McCulloch v. Maryland
What is the Meaning of the Necessary and Proper Clause?
 What does Maryland argue?
o Maryland argues that necessary means indispensable or essential as opposed to just convenient or
allowed.
 What is the court's response?
o The Court views Maryland's approach as too limited.

8
 Constitutional Law I

o If all exercises of power must be indispensable, then Congress could do very little. Instead, the
framers provided a clause that would give flexibility to Congress to deal with unforeseeable
events.
o The necessary and proper clause is in §8, which grants power to Congress as opposed to §9, which
limits congressional power, thus it must be read broadly to grant Congress power, not to limit it.
o Finally, if "necessary" meant indispensable, then the framers would not have also used the word
"proper," which implies that the framers gave Congress broad room to choose among the means it
would use to exercise its powers.
o "Let the end be legitimate, let it be within the scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the
letter and spirit of the constitution, are constitutional."
o Marshall says that:
 (1) if the law is not prohibited by the constitution; and
 (2) the law is calculated to accomplish any of the objects entrusted to the federal
government,
 Then: it is not the place of the judiciary to inquire into the degree of its necessity.
 RULE: Under the Necessary and Proper Clause, Congress may enact legislation so long as it ends are
legitimate under the Constitution and the legislation is appropriate and plainly adapted to those ends.
The Necessary & Proper Clause
Necessary and Proper “Power”
The Necessary and Proper Clause grants Congress the power to make all laws necessary and proper (i.e.,
appropriate) for carrying into execution any power granted to any branch of the federal government.
United States v. Comstock
 The Supreme Court held that the Necessary and Proper Clause grants Congress authority sufficient to enact
the statute for five reasons
o (1) The Necessary and Proper Clause grants broad authority
 The Court stays the rule is: "Whether the statute constitutes a means that is rationally
related to the implementation of a constitutionally enumerated power."
 THIS IS THE RULE FOR THE NECESSARY AND PROPER CLAUSE
 The Court further says that Congress has an implied enumerated power to enact federal
criminal laws arising out of the explicitly enumerated powers to regulate interstate
commerce, enforce civil rights, spend funds for the general welfare, etc.
 The Court holds that this civil statute "carries into Execution" the enumerated powers
vested by Congress
o (2) The Court recognized that Congress has long delivered mental health care to federal prisoners.
Note the Court's deference to Congress and to history follows McCulloch
o (3) Congress had good reason to pass the statute as it has the power to protect nearby communities
from the danger prisoners may pose. Thus, the law is reasonably adapted to Congress' power to act
as a federal custodian.
o (4) The Tenth Amendment does not reserve a zone of authority to the states in this context. And if
anything, the statute accommodates state interest
o (5) The Court recognized that the statute was narrow in scope and did not confer on Congress a
general police power, which is reserved to the states.
 RULE: The Constitution grants Congress the authority to enact such legislation as is necessary and proper
for carrying into execution the powers vested by the Constitution in the Government of the United States
Summary
 The Necessary and Proper Clause grants Congress broad authority to enact federal legislation
 The civil commitment statute is a modest addition to long-standing federal prison-related mental-health
statutes.
 Congress can reasonably extend its long-standing civil commitment system to cover mentally ill and
sexually dangerous federal prisoners.
 The statute properly accounts for state interests.
 The link between the statute and Congress's Article I enumerated powers are not too attenuated.

9
 Constitutional Law I

National Federation of Independent Business v. Sebelius

What is the Court's analysis regarding the Necessary and Proper Clause and the Individual mandate?
 The individual mandate cannot be sustained pursuant to the Necessary and Proper Clause as an essential
component of the insurance reform.
 In order for a regulation to come within the Necessary and Proper Clause, Congress must be first acting
within an enumerated power.
 Since Congress did not have power to enact the individual mandate pursuant to the Commerce Clause, it
cannot be upheld as a "necessary and proper" component of the insurance reforms.
 RULE: The legitimacy of Spending Clause legislation depends on whether a state voluntarily and
knowingly accepts the terms of such programs, and when Congress threatens to terminate other grants as a
means of pressuring the states to accept a Spending Clause program, the legislation runs counter to this
nations’ system of federalism.
Take-Aways
1. The Necessary & Proper Clause broadens or enlarges Congress's power.
2. The Necessary & Proper Clause alone does not provide Congress authority to act
3. Congress must be acting pursuant to a constitutionally legitimate Congressional purpose, for example,
pursuant to the Commerce Clause or the Spending Clause.
4. If Congress is acting pursuant to a constitutionally legitimate Congressional purpose, then under the
Necessary & Proper Clause, Congress can use any means that are rationally related to (or plainly adapted
to) that purpose.
5. The court may look to history and tradition to ascertain whether the means are acceptable and closely
related enough to the purpose

THE COMMERCE CLAUSE – HISTORICAL APPROACH UNTIL 1995

Historical Approach
Gibbons v. Ogden
 How does the Court define commerce?
o “Commerce” is all commercial intercourse, including regulation of the navigable waters. – still
good law
 What does the Court say “among the states” means?
o “Among the States” means between more than one state and another, affecting more than one
state, any commerce that is not completely internal to one state.
 Are there limitations on Congress’s power to legislate under the Commerce Clause?
o No, the Court says, the power is “complete in itself, may be exercised to its utmost extent, and
acknowledges no limitations other than those prescribed in the Constitution.”
 RULE: The federal commerce power extends to all commerce among and between the states and foreign
nations, with only commerce having connections solely within a single state being unreachable under the
commerce power.
Commerce Clause Power from 1890s to 1937
 How does the Court define commerce?
o "Commerce" is one limited stage of business, distinct from earlier phrases such as mining,
manufacturing or production (commerce = only stream of commerce)
 What does the Court say “among the states” means?
o “Among the States” means there has to be substantial, direct effect on interstate commerce;
Congress can also regulate the stream of commerce (Stockyard cases)
 Are there limitations on Congress’s power to legislate under the Commerce Clause?
o The tenth amendment reserves a zone of activity to the states (such as regulation of labor and
employment); BUT Congress can regulate in the area of morality.

10
 Constitutional Law I

Commerce Clause Power from 1937 to 1995

 How does the Court define commerce?
o “Commerce” is any activity that has a substantial effect on interstate commerce
 What does the Court say “among the states” means?
o “Among the States” – intrastate activities may be looked at in their aggregate, so that if the
cumulative effect of local or intrastate activity would have a substantial effect on interstate
commerce, it comes within the purview of the Commerce Clause.
o Even activity, that in its cumulative effect, has a negative or harmful effective on interstate
commerce can be regulated.
o Congressional regulation is valid if there is a rational basis for Congress to find that the regulated
activity substantially affects interstate commerce AND there is a reasonable connection between
the regulatory means and the asserted goals of the legislation
 Are there limitations on Congress’s power to legislate under the Commerce Clause?
o No, the Tenth Amendment does not reserve a zone of activity for state control; so long as
Congress has express or implied power to regulate, then Tenth Amendment is satisfied.
NLRB v. Jones & Laughlin Steel Corp.
 A steel corporation whose operations span the continent is being sued by the government for violating the
National Labor Relations Act for committing unfair labor practices
 RULE: Congressional power to regulate interstate commerce extends to the regulation of intrastate
activities that may burden or obstruct interstate commerce
United States v. Darby
 A Georgia lumber company violated federal minimum wage/maximum hour laws. Its defense is that the
federal government overreached its Commerce Clause authority in setting the standards
 RULE: Congress has the authority under the Commerce Clause, to exclude any article from interstate
commerce, in judgment that they are injurious to the public health, morals, or welfare
Wickard v. Filburn
 Wickard exceeded his allotted quota for wheat production, the excess amount to be used for his own
consumption. He was fined by the government and seeks to have the quota ruled unconstitutional.
 RULE: Congress’ commerce authority extends to all activities having a substantial effect on interstate
commerce, including those that do not have such a substantial effect individually, but do when judged by
their national aggregate effects.
The Meaning of "Commerce Among the States"
Heart of Atlanta Motel, Inc. v. United States
 An Atlanta, Georgia motel wishes to continue its racially discriminatory operations in spite of the 1964
Civil Rights Act barring racial discrimination in public accommodations
 RULE: Congress has the power, under the Commerce Clause, to regulate local activities that could
reasonably be seen as exerting a substantial and harmful effect upon interstate commerce.
Katzenback v. McClung (Ollie's Barbecue Case)
 The owners of a restaurant in Birmingham, Alabama continued to exclude African American patrons from
their restaurant dining area, in violation of the Civil Rights Act of 1964
 RULE: Congress’s commerce authority extends to any public commercial establishment selling goods that
have moved in interstate commerce and/or serving interstate travelers.

THE CURRENT COMMERCE CLAUSE

 How does the Court define commerce?
o The three categories: the use of channels of interstate commerce, the instrumentalities of interstate
commerce, and the activities that have a substantial effect on interstate commerce. In addition, the
court now states that commerce only involves economic activity.

 What does “among the states” mean?

o Interstate activities must be looked at in the aggregate when Congress is regulating economic
activity. Congress may not aggregate specific interstate noneconomic activity.

11
 Constitutional Law I

 Are there limitations on Congress’s power to legislate under the Commerce Clause?
o The Court does not reserve any zones of authority specifically to the state. Congress cannot
regulate noneconomic activity.
Commerce Power
Article I, Section 8, Clause 3 empowers Congress to “regulate commerce with foreign nations, and among the
several states, and with the Indian tribes.”
 Includes Basically All Activity Affecting Two or More States
o Chief Justice Marshall, in Gibbons v. Ogden, 22 U.S. 1 (1824), defined commerce as “every
species of commercial intercourse . . . which concerns more states than one” and included within
the concept virtually every form of activity involving or affecting two or more states.
 Includes Transportation or Traffic
o The Court has consistently regarded transportation or traffic as commerce, whether or not a
commercial activity is involved.
 Vehicular Transportation Not Required
 Any transmission across state lines, such as electricity, gas, telegraph,
telephone, TV, radio, and mail transmission (including educational materials and
sale of insurance), will constitute interstate commerce.
o “Substantial Economic Effect”
 The Supreme Court has sustained congressional power to regulate any activity, local or
interstate, that either in itself or in combination with other activities has a “substantial
economic effect upon,” or “effect on movement in,” interstate commerce.
o Power Not Unlimited
 The Supreme Court has recently made clear that the power of Congress to regulate
commerce, although very broad, does have limits so as not to obliterate the distinction
between what is national and what is local. To be within Congress’s power under the
Commerce Clause, a federal law must either:
 Regulate the channels of interstate commerce;
 Regulate the instrumentalities of interstate commerce and persons and things in
interstate commerce; or
 Regulate activities that have a substantial effect on interstate commerce.
Three categories may Congress regulate commerce
 First, Congress may regulate the use of the channels of interstate commerce.
 Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or
persons or things in interstate commerce, even though the threat may come only from intrastate activities.
 Finally, Congress’s commerce authority includes the power to regulate those activities having a substantial
relation to interstate commerce
Intrastate Activity
 When Congress attempts to regulate intrastate activity under the third prong, above, the Court will uphold
the regulation if it is of economic or commercial activity and the court can conceive of a rational basis on
which Congress could conclude that the activity in aggregate substantially affects interstate commerce.
[Gonzales v. Raich, 545 U.S. 1 (2005)—upholding regulation of intrastate cultivation and use of marijuana
(permitted by state law for medicinal purposes) because it was part of a comprehensive federal program to
combat interstate traffic in illicit drugs] If the regulated intra- state activity is not commercial or economic,
the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can
show a direct substantial economic effect on interstate commerce, which it generally will not be able to do.
[See, e.g., United States v. Lopez, 514 U.S. 549 (1995)—federal statute barring possession of a gun in a
school zone is invalid; United States v. Morrison, 529 U.S. 598 (2000)—federal civil remedy for victims of
gender-motivated violence is invalid]

U.S. v. Lopez
 A 12th-grade student was convicted of violating the Gun-Free School Zones Act of 1990, which makes it a
federal offense to possess a gun rear a school.

12
 Constitutional Law I

 Congress cannot use its Commerce Clause power to regulate non-economic, local activity – noneconomic
activity cannot be aggregated.
 RULE: Congressional authority to regulate pursuant to the Commerce Clause extends to only those
activities that rationally implicate (1) the channels of interstate commerce; (2) the instrumentalities of
interstate commerce; or (3) activities having a substantial effect upon interstate commerce.
U.S. v. Morrison
 An alleged rape victim sought to sue her accused attackers under the federal Violence Against Women Act.
The accused asserts that VAWA is an unconstitutional exercise of congressional authority.
 Congress cannot use its Commerce Clause power to regulate non-economic local activity, even if there are
legislative findings showing that the activity has substantial effects on interstate commerce (no rational
basis test/deference to Congress where Congress is regulating non-economic, local activity.
Gonzales v. Raich
 Raich sought an injunction against enforcement of the federal Controlled Substances Act, insofar as that
law prohibited her use of marijuana for medical purposes.
 RULE: Congress may regulate intrastate activity if there is a rational basis for concluding that the activity
may have a substantial effect on interstate commerce

THE TENTH AMENDMENT AS A LIMIT ON CONGRESS’S POWER TO LEGISLATE

Congressional Commerce Clause Power Limited by The Tenth Amendment
Garcia v. SAMTA
 Application of the Fair Labor Standards Act of a city’s mass transit system fuels a revisitation of National
League of Cities v. Usery
 RULE: Congress has full authority under the commerce clause to regulate the traditional, or core, functions
of state and local governments notwithstanding the Tenth Amendment.
New York v. United States
 Congress passed legislation requiring state to either provide for radioactive waste disposal or take title to
waste generated within their borders. The legislation is being challenged as an unconstitutional exercise of
federal power over the states.
 RULE: Congress does not have the authority to commandeer state governments by forcing them to
implement particular regulations.
Printz v. United States
 The federal Brady Act required local law enforcement officials to temporarily administer its background
check program. Two local law enforcement officers challenged the Brady Act’s impressment of local law
enforcement officials.
 RULE: Congress does not have authority to compel states to enact, enforce, or administer federal
regulatory programs, and cannot circumvent this prohibition by conscripting state officials directly
Reno v. Condon
 Congress passed legislation placing certain prohibitions on the dissemination of private information given
states by individuals in applying for a driver’s license. One State challenges the constitutionality of the
legislation as it applies to states.
 RULE: states are required to comply with constitutionally valid legislation regulating state activities, even
when compliance means incurring additional costs to be borne by the States
Murphy v. NCAA
 The case concerns the Professional and Amateur Sports Protection Act (PASPA), which makes it
"unlawful" for a state or subdivision that had not already legalized sports gambling to "sponsor, operate,
advertising, promote, license, or authorize by law … a lottery, sweepstakes, or other betting, gambling, or
wagering scheme… based on" competitive sports events.
 The law also prohibited private individuals from sponsoring, operating, advertising, or promoting those
same gambling schemes if done pursuant to the law or compact of a governmental entity.
 In 2014, New Jersey repealed its law prohibiting sports gambling. The NCAA and professional sports
associations sued, claiming that the repealed violated PASPA.
 Since PASPA only regulates the States or gambling pursuant to state law and prohibits the States from
authorizing gambling, it violates the anti-commandeering principle.

13
 Constitutional Law I

 Whether that regulation constitutes forcing the states to take action or prohibiting the states from taking
action is a distinction without a difference.
Tenth Amendment Limits on Congressional Power - Take-Aways
 The Tenth Amendment only applies when Congress is regulating the states as the states; it is not applicable
when Congress's regulation of the states is incidental to regulation of private actors
 The Tenth Amendment prohibits Congress from forcing the states to regulate their own citizens - or as the
Court has put it, it prohibits Congress from compelling the States to enact and enforce a federal regulatory
program.
 It does not matter whether the "commandeering" arises from a statute compelling action or prohibiting it;
what matters is if the legislation concerns only the states and forces the states to regulate private actors in a
certain way.
 The Tenth Amendment applies when congress legislates in a way that forces either state legislatures or the
state executive to take certain actions with respect to private actors in the state.

CONGRESS’S POWER TO TAX AND SPEND

Power to Tax
Taxing Power
 Congress has the power to lay and collect taxes, imposts, and excises, but they must be uniform throughout
the United States. [Art. I, §8] Capitation or other direct taxes must be laid in proportion to the census [Art.
I, §9, cl. 4], and direct taxes must be apportioned among the states [Art. I, §2, cl. 3].

United States v. Butler:

 Congress attempted to regulate the quantity of local agricultural production through use of the taxing and
spending powers. The regulation is challenged as being outside Congress’s enumerated powers.
 RULE: Congress may not use the taxing or spending powers to force compliance in an area where the
Constitution does not give Congress independent power to regulate.
 Congress can tax and spend for the general welfare
NFIB v. Sebelius:
 If it looks like a tax, the Court will treat it as a tax; Congress can tax for the general welfare; Congress can
tax to raise revenue or for regulatory reasons; a tax cannot violate another provision of the constitution; a
direct tax applies to everyone equally and regardless of circumstances, thus the penalty is not a tax.

Power to Spend
Spending Power
 Congress may spend to “provide for the common defense and general welfare.” [Art. I, §8] This spending
may be for any public purpose—not merely the accomplishment of other enumerated powers. However,
non-spending regulations are not authorized. Remember that the Bill of Rights still applies to this power;
i.e., the federal government could not condition welfare payments on an agreement not to criticize
government policies.

Sabri v. United States:

 Congress can prohibit bribery if federal spending programs through its spending power and the Necessary
and Proper Clause.
 RULE: Under the Spending Clause, Congress is authorized to appropriate federal funds for the general
welfare and use all rational means necessary and proper to further its spending power.
South Dakota v. Dole:
 A condition of raising the drinking age to 21 or risk losing 5% of federal highway funds was constitutional
because it was for the general welfare, the conditions were explicit, the condition was rationally related to
the purpose of the spending, the spending did not violate another provision of the Constitution; and the loss
of 5% of federal highway funds was not unduly coercive

14
 Constitutional Law I

 RULE: Valid use of the Spending power is subject to three requirements: (1) it must be used for the general
welfare, (2) any conditions on receipt of funds must be unambiguous, and (3) any conditions must be
related to the federal interst in the particular national projects or programs being funded.
NFIB v. Sebelius:
 The loss of 10% of a state’s budget for failure to enact the Medicaid expansion is unduly coercive and
therefore unconstitutional.
Five-part test
 Spending is pursuant to the general welfare - doesn't have to be good for everyone
 (2) the conditions on spending must be expressed unambiguously.
 (3) the conditions on spending must be related to the purpose of the spending for federal interest
o The question is whether conditions placed on spending have a rational relationship to the purpose
of the spending program
 (4) the conditions must be consistent with other constitutional provisions
o They can't violate another provision of the Constitution
 (5) state participation must be voluntary - it may not be coerced.
o The "coercion" inquiry looks at whether the amount of spending at issue is so much as to be
unduly coercive.
o Tenth Amendment analysis
o Look at the amount of spending at risk

CONGRESS’S POWER PURSUANT TO THE RECONSTRUCTION AMENDMENTS

What are the Reconstruction Amendments?

 The Thirteenth Amendment, which abolished slavery
 The Fourteenth Amendment, which provided a number of protections for the newly freed slaves and others,
including the right to due process and equal protection
 The Fifteenth Amendment, which guaranteed all men the right to vote regardless of race
Matters covered by the Post-Civil War Amendments
Civil Rights Cases:
 The Fourteenth Amendment applies only to state action as opposed to private individual’s conduct.
Jones v. Alfred H. Mayer Co.:
 Congress can pass laws pursuant to the Thirteenth Amendment addressing “badge and incidents of slavery”
that reach private conduct.
United States v. Morrison:
 Congress lacks authority to enact a law pursuant to Section 5 when the law does not redress harm caused by
the state. In other words, Congress cannot regulate private actors under its Section 5 powers.
 RULE: Congress’s authority to regulate under the Fourteenth Amendment extends only to states activity,
not activities of private individuals
The Scope of Congressional Power
Katzenbach v. Morgan:
 New York voters are challenging a federal law prohibiting New York from enforcing its English literacy
voting requirements
 RULE: §5 of the Fourteenth Amendment authorizes Congress to enact remedial legislation prohibiting
enforcement of state laws found to abrogate civil rights, even though such state laws are not
unconstitutional
 Congress can interpret Section 5 expansively (and even expand rights) so long as it does not dilute rights.
City of Boerne v. Flores:
 Congress no longer may determine the substantive rights protected by the 14th Amendment as in
Katzenbach v. Morgan, but instead may only enforce those substantive rights recognized by the Court, and
any remedy must be “congruent and proportional” to the goal of enforcing the 14th Amendment

15
 Constitutional Law I

 RULE: Section 5 of the Fourteenth Amendment gives Congress the power to enact laws as remedial
measures and to prevent constitutional violations, but does not allow Congress to define the substantive
scope of constitutional guarantees.

CONGRESS’S § 5 AUTHORITY & THE POWER TO ABROGATE STATE SOVEREIGN

IMMUNITY

Eleventh Amendment
Georgia v. Chisholm
 The Court held that the Constitution made clear that controversies between individual states and citizens of
other states could be heard in federal courts.
 This decision found that the Constitution did not bar a citizen of one state from suing another state in
federal court, creating the demand for the enactment of the Eleventh Amendment.
Hans v. Louisiana
 The Supreme Court held that the Eleventh Amendment prohibits a state from being sued in federal court,
although the state may be sued in its own state courts.
 the Eleventh Amendment has been understood to also prohibit a citizen from suing his or her own State in
federal court (no federal question jurisdiction over cases between a citizen and his or her own State,
alleging violation of a federal statute or the Constitution)
 Interpreting the Eleventh Amendment to bar a citizen from suing the citizen’s own state.

The Fourteenth Amendment as a Means for Congress to Authorize Suits Against the States
Fitzpatrick v. Bitzer
 Congress amended Title VII of the Civil Rights Act to allow a federal cause of action against state
government for employment discrimination. The provision is being challenged under the Eleventh
Amendment.
 RULE: No constitutional provision prohibits Congress from providing for a private cause of action in the
federal courts against a state government as a means of enforcing the guarantees of the Fourteenth
Amendment.
 Section 5 grants authority to Congress to abrogate state sovereign immunity
Seminole Tribe of Florida v. Florida
 Congress passed a law allowing states to be sued for failing to negotiate in good faith with Indian tribes
regarding the formation of gaming compacts between those parties. The law is challenged as a violation of
the Eleventh Amendment’s sovereign immunity.
 RULE: Congress may not, outside enforcement of Fourteenth Amendment Guarantees, authorize federal
lawsuits against states in abrogation of the Eleventh Amendment’s guarantee of state sovereign immunity
 Congress does not have power when legislating pursuant to its Article I power to abrogate states’ sovereign
immunity even though Congress manifested the necessary intent to do so.
Limits on Congress’s Ability under Section 5 of the Fourteenth Amendment to Authorize Suits
Against the States
Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank:
 The Patent Clause does not give Congress the power to abrogate states’ sovereign immunity even though
Congress manifested the necessary intent to do so. In order to legislate under § 5 to abrogate state
sovereign immunity, there must be a record of a pattern of constitutional violations by the State to show
requisite harm requiring remedy.
Kimel v. Florida Board of Regents:
 In the ADEA, Congress did not have the power to abrogate states’ sovereign immunity because the remedy
—a cause of action against the states for age discrimination—was insufficiently congruent and proportional
to any purported harm.
Board of Trustees, Univ. of Ala. v. Garrett:
 In the ADA, Congress does not have the power to abrogate states’ sovereign immunity because the remedy
—a cause of action against the states for disability discrimination—was insufficiently congruent and

16
 Constitutional Law I

proportional to any purported harm. The Court will not give deference to the Congressional record in
determining whether the “harm” identified is sufficient to justify the remedy.
Summary Thus Far of Congress’s Power to Abrogate State Sovereign Immunity
 The Eleventh Amendment gives the states sovereign immunity in federal court, meaning an individual
cannot sue a state in federal court
 Congress can abrogate state sovereign immunity and give individuals a cause of action against the states
when Congress uses its Section 5 power to enact a law that includes such a cause of action
 Congress cannot abrogate state sovereign immunity and provide individuals a cause of action against the
states when Congress acts pursuant to its Article I powers
 Even when Congress uses its Section 5 powers to abrogate state sovereign immunity and provide a cause of
action against the states, it cannot expand the substantive scope of the Fourteenth Amendment
 This means that Congress can only provide a cause of action against the states for discrimination against a
class of people that the Supreme Court has said is protected by the Equal Protection Clause of the
Fourteenth Amendment
 If Congress is seeking to provide a cause of action against the states for discriminating against a group of
people that the Supreme Court has said does not get special protection under the Equal Protection Clause of
the Fourteenth Amendment, the Court will find the cause of action outside the scope of Congress’s Section
5 powers and will find such a remedy not to be congruent and proportional to any constitutional harm

CONGRESS’S POWER UNDER §5 TO ABROGATE STATE SOVERIGN IMMUNITY

Section 5 Abrogation of State Sovereign Immunity

 When Congress legislates pursuant to Section 5 to give private citizens a right of action against the States,
o It must do so explicitly
o It can only do so to remedy a harm that constitutes a violation of the 14th Amendment; and
o The remedy must be congruent and proportional to the harm

Classes of Individuals that Receive Protection Under the Equal Protection Clause of the
Fourteenth Amendment
 Race
 National Origin
 Ethnicity
 Alienage
 Nonmarital Children
 Gender
Fundamental Rights that are Protected under the Due Process Clause
 The right to marry
 The right to procreate
 The right to purchase and use birth control
 The right to custody of one’s own children and to raise them as one sees fit
 The right to abortion
 The right to refuse medical treatment
 The right to travel freely among the states
 The right to vote
 The right of access to the courts
Congress’s Power to Authorize Suits Against the States Based on Classes of People or Rights
Protected by the Fourteenth Amendment
Nevada Department of Human Resources v. Hibbs:
 The Court applied heightened scrutiny in a case involving gender discrimination, concluding that state
employees may recover money damages in federal court based on a state’s failure to comply with the
FMLA’s family-care provision.

17
 Constitutional Law I

Tennessee v. Lane:
 Congress has the authority when it legislates pursuant to § 5 to enforce fundamental rights—here the
constitutional right of access to the courts—and the ADA’s regulation of public access was both congruent
and proportional. 
United States v. Georgia:
 Congress can abrogate state sovereign immunity pursuant to the 14th Amendment by establishing private
remedies against the States for actual constitutional violations.
Congress Cannot Authorize Suits Against States in State Court
Alden v. Maine:
 Congress cannot use its Article I powers to abrogate a state’s sovereign immunity from private suits in its
own state courts.
Summary of Congressional Abrogation of State Sovereign Immunity Under §5
 If the plaintiff alleges a constitutional violation, the state can be sued because Congress has authority to
authorize suits against states under § 5 to redress constitutional violations.
 If the plaintiff brings suit to enforce rights under a federal statute, if the statute deals with discrimination
against a class of people that receives special protection under the Equal Protection Clause or a
fundamental right that is protected by the Fourteenth Amendment, the lawsuit against the state will likely
be allowed because Congress can act prophylactically and authorize suits against states under § 5 to
enforce rights or protect classes of individuals that get heightened protection under the Fourteenth
Amendment.
 If the plaintiff brings suit to enforce rights under a federal statute and the case does not involve a
fundamental right protected by the Fourteenth Amendment or discrimination against a class of people that
receives special protection under the Fourteenth Amendment, the state can be sued only if Congress finds
pervasive unconstitutional state conduct, which is a very high burden, given the Court’s willingness to
scrutinize the record with a very narrow view of the constitutional right being violated.

18