Constitutional Law Outline

Professor Rosen
Constitutional Law, Fall 2003
Part I : Authoritative Interpretations of the Constitution

Judicial Review Marbury v. Madison (federal legislation)
Section 13 of Judiciary Act of 1789 is unconstitutional. SC provides 3 arguments to support
the conclusion that the SC (judiciary) is the final interpretation of the Constitution. In so
doing, the court establishes the principle of judicial review.
1. Textual Argument Surplusage argument there would be no point in setting out
the types of cases the SC could hear in the constitution (Article III, Section II, Clause
II,) if those limits could be allocated away by Congress. This would make the
language of the Constitution mere Surplusage.
Counter-Argument the Constitution establishes a floor that is an initial
allocation of power, and Congress can switch it thereafter.
2. Structural Argument Ct considers the govt institutions and how they relate to one
another (i.e. the relationship between courts, Constitution and Congress.) The SC
says the Constitution is supreme because, for it to be any other way would subvert
the nature of the Constitution. The Court must give more weight to the Constitution
than to a legislative act. This doesn't really answer the question about why the court
is more authoritative than Congress. The court's argument is for the supremacy of the
Constitution, but that does not really address the question of why the court's
interpretation of the Constitution should be deemed superior to any other
interpretation. This is the argument that resonates with most Americans it is the
inherent function of the judiciary to authoritatively interpret the Constitution.
3. Oath Argument Judges take oath to protect the Constitution, therefore judges
cannot give force to a statute that they believe violates the Constitution.
Counter-Argument Members of legislature and executive branch also
have to take oaths, so this still doesn't answer the question about which
interpretation of the Constitution should be the final one.
Martin v. Hunter's Lessee (appellate review over state court judgment)
Does the USSC have appellate jurisdiction over a ruling by the highest court in a state?
o There was an explicit federal statute that said the USSC had appellate review. The
question was whether that statute was constitutional or not.
o Answer YES.
Textual Argument focus on the word cases in the Constitution. It's not
about the court; it's about the type of case.
Federalism Argument can't trust the states b/c they have their own biases;
allowing USSC to have final say over state judgments promotes uniformity of
decisions. This argument can also be characterized as a consequences argument.
o This applies only to situations in which the state court is considering a federal right and
the state court has denied that federal right.
The end result of Marbury and Martin is that the USSC is vested with an enormous amount of power and
authority. Between Marbury and Martin, the USSC gets to make final judgment re: constitutionality of
federal legislation and judicial decision of state court.
Part II: Limits on the Judicial Power
Part A: Congress
Ex Parte McCardle
Addressed constitutionality of Congress' effort to remove appellate jurisdiction from USSC.
Professor Rosen
Court explained the exception clause and concluded that "the power to make exceptions to
the appellate jurisdiction of this court is given by express words."
McCardle did not answer the question of whether Congress could make any exception it
wanted. The court did not have to answer this question because in this case, there was
residual jurisdiction. But, neither did McCardle say that because of the residual jurisdiction,
the court would or would not uphold the statute.
Hypothetical Federal bill which says SC has no appellate jurisdiction over cases relating to voluntary
prayers in public schools and public buildings.
As a lawyer defending the bill (arguing it is constitutional):
Textual Argument use text of Article III, Section II, Clause II, which says the
USSC shall have appellate jurisdiction, with such exceptions as Congress shall
make. You would argue that this is an exception that Congress is making and it is
therefore constitutional.
Precedential Argument rely on Ex Parte McCardle.
As a lawyer arguing against constitutionality:
Tough to make a textual argument.
Argue that the historical context is very different than at the time Ex Part
McCardle was decided, so that decision has limited Precedential value.
Miller v. French
The issue in this case is what courts do once a final judgment is issued by the court. It cannot
be re-opened by another branch of government that would be a violation of separation of
powers. However, in the case of an injunction, it is permissible for Congress to re-work that
prospective relief. Injunctions are prospective; they are going forward and because it is ongoing in nature, it is more legislative than it is a final judicial decision.
Hypothetical Your client wins $10million reward and injunction against FBI for racial profiling. All
was upheld on appeal and no certiorari was filed. Congress then enacted "Policing Act" which caps
damages at $2million and allows injunctions that affect law enforcement only if a court finds the
injunction was "absolutely necessary" to prevent future violations. The court made no such finding before
the injunction was ordered for your client. What happens to your client's order?
Money damages are secure according to Plaut.
The injunction your client got is danger according to the Miller case. This is an easy question.
Part B: Constitution
Friends of the Earth v. Laidlaw (2000)
Focus is on provision of the Clean Water Act that allows private entities to bring a lawsuit.
o The 2 main issues at stake:
The constitutionality of provision that defines who can bring an action
How precisely does the provision have to be construed; the interpretation will be
informed by constitutional considerations.
Standing found in Article III, Section II, Clause I ("cases or controversies")
o Injury in fact
o Traceable to challenged action of D
o Redressable by a favorable decision
Professor Rosen
This standard is a creation of the court. There is no basis for it in the text of the
Constitution. The SC creates standards like this all the time and no one ever
disagrees with it. Standards are imprecise. Rules create specificity.
Standard: drive carefully
Rule: 60mph speed limit
o Laidlaw specifies what satisfies the standing test set forth in
Lujan and other precedents.
The majority and dissent disagree on what satisfies the three aforementioned criterion.
Specifically, they disagree on redressability.
o Dissent says because the $ (fine) will go to the government, the P has not received a
redress for his grievance and therefore there is no standing for the case.
o The majority says redressability is satisfied because the P is less likely to be injured
because of the deterrent effect of the $ fines.
Hypothetical GE pollutes Hudson River. Prospective law student considering going to Fordham. Does
she have standing to sue GE?
Some day intentions are insufficient to show injury in fact. Laidlaw.
Hypothetical Same hypothetical, but this time the person who wants to bring the suit frequently
observes its natural beauty, but won't go boating (etc) because of their fear of the water.
When aesthetic and recreational values will be lessened because of pollution, that amounts to
injury in fact. Laidlaw.
Baker v. Carr (1962)
Issue ways that states apportion their legislatures; apportionment concerns the size of
districts.
o Threshold Question Can the USSC even hear the challenge to the apportionment
schemes?
Opposition to TN apportionment schemes relied on 2 constitutional provisions:
o EPC
Weights of individual votes are different depending on whether they live in highpopulation district or low-population district.
o Guaranty Clause, Article IV, Section IV
Constitution guarantees a republican form of government and system where one
person's vote is heavier than anothers is NOT a republican form of government.
Prior to Baker, the judicial precedent of Luther v. Borden was that guaranty
clause issues were NOT to be decided by the courts. Luther said guaranty clause
issues were non-justiciable.
Luther analysis easy to square with Marbury v. Madison because
Marbury said that court is final arbiter of Constitution and all the court
did in Luther was decide that it would NOT decide something. On the
other hand, it may be one example that the judiciary is not the only entity
that gets to authoritatively interpret the Constitution. In refusing to hear
guaranty clause issues, it has removed itself as the final arbiter of the
Constitution and said that another branch of government gets to interpret
an element of it. This latter reading is the more popular.
The court holds that the case is justiciable under the 14th Amendment (EPC).
The court sets forth six criteria for what amounts to a political question; they may
not be clear, but this is the RULE for what a political question is.
Professor Rosen
Textually demonstrable constitutional commitment of the issue to a

coordinate political department
Lack of judicially discoverable and manageable standards for resolving it
Impossibility of deciding without an initial policy determination of a
kind clearly for nonjudicial discretion
Impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government
Unusual need for unquestioning adherence to a political decision already
made
Potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
o
This test (6 factors) comes from legal precedent. Historically, the

Ct has refused to hear cases of a certain nature. The court has
attempted to consolidate past cases, decisions and reasoning into
a 6-point definition of what a political question is.
The court says the list is exhaustive. The rule is that the issue has
to be in one of the six categories for it to be a political question.
Seminole Tribe v. Florida (1996)

New federalism case, where SC has re-allocated the balance of power between federal
government and states.
o An example of limitation on federal judiciary; defines nature and scope of judicial power.
The statute in question was the Indian Gaming Regulation Act (IGRA) which required states
to negotiate, in good faith, with tribes interested in opening a casino. The Seminole tribe
thought that FL was not acting in good faith. Seminole Tribe (Fla) v. Fla.
o This could be an easy question because the 11th Amendment only textually prohibits a
state from being sued by a non-resident. But the Hans v. Louisiana precedent makes this
a not-so-easy question.
Hans v. Louisiana Even if a citizen is from state that it is suing, that suit is still
barred by the 11th Amendment. Ct says it will interpret the 11A more
expansively and include citizens of the same state as the defendant/state.
This is a dramatic example of the unimportance of constitutional text.
The Ct says the Constitution doesn't stand for what it says; it stands for
the suppositions that we think it does.
The Seminole court comes up with a legal test.
o Did Congress clearly intend to abrogate state sovereign immunity? Is the federal statute
clear about Congress' intent?
Application: The ct concluded that the IGRA was not clear that it was Congress'
intent to abrogate state sovereign immunity. Ct wants to make sure that Congress
actually thought about it. If the statement is clear, that shows Congress did
actually think about it.
Remember that constitutional rights are not categorical and absolute.
There is always opportunity for Congress to regulate a constitutional
right. That is what happened here: the 11A says can't sue a state, but
Congress created a statute that said it was OK.
o If so, did Congress have power to do so --- the power to abrogate state sovereign
immunity?
When Congress acts pursuant to Article I [Congress has powers under Article I
and 14A], Congress does not have power to abrogate state sovereign immunity.
Professor Rosen
(But, when regulating pursuant to 14A, the state can abrogate state sovereign
immunity.)
In Seminole, the Indian Commerce Clause (from Article I) was being
considered, this is how we know that Congress was acting pursuant to its
Article I powers.
The result turns upon under which power Congress enacted the statute. Federal rights and
relief are determined, when it is an 11A issue, by what constitutional provision Congress
acted pursuant to.
Remember, this rule applies only when state has NOT consented; if state consents to suit,
then Seminole does not apply.
The day after Seminole:
o The 11A holding in Seminole is not about Congress' right to regulate; it is about
individual's right to remedy. The holding still allows Ps to seek relief in state court.
Comparing Dissent and Majority
Category/Level
Constitutional Provision
Goal
Standard
Rulification
Majority
11th Amendment
Nature of sovereignty is for a sovereign
to be immune from suit against its will.
(Protect sovereignty of states.)
Dissent
11th Amendment
To withdraw certain type of diversity
jurisdiction, where a citizen is suing a
state. (Withdrawal of narrow category of
diversity jx.)
Clear statement?
Only if Congress acted pursuant to
powers under 14A and not under powers
of Article I
The majority and dissent disagree as to the goal of 11A. The debate is not based on constitutional text or
precedent, it is about higher, intellectual debates about what states are, what state sovereignty is, etc.
Alden v. Maine
Takes away right of private individuals to sue states in state court.
The result of Seminole Tribe and Alden is that you can't sue a state in either state or federal court, when
you believe one of your federal rights have been violated. This means you have a legal right, without a
legal remedy. These decisions are part of "new federalism" and seem utterly bizarre.
Union Gas
State could be sued pursuant to legal claims under Article I. Seminole overrules this principle.
Hypothetical Pre-Seminole scenario. You represent FL. How do you handle the Union Gas precedent?
You have two options:
Distinguish it from instant case.
o You could argue that Union Gas applied to interstate commerce clause and this case
applied to Indian Commerce Clause.
The Seminole court rejects this argument and says it is not a viable distinction.
Ask court to over-rule it, (this is bold strategy.)
o In Seminole, the state argued in the alternative and said that the holding in Union Gas
should be overturned.
This is, ultimately, the winning argument for the court.
Professor Rosen
The court says under stare decisis it has power to overturn its earlier
decisions. It reasons that there was only one precedential case on point,
for which there was no majority opinion, only a plurality opinion.
Part III: Distribution of National Powers

Checks and Balances connotes image of one branch doing something and the other branch checking up
on what that 1st branch did. This means an intermingling of responsibility among the branches.
Separation of Powers suggests that the judiciary has powers that are separate from the legislative
branch, which has powers that are separate from executive branch. There are 3 separate boxes.
These are competing metaphors that are trying to explain the structure of government. Neither checks and
balances, nor separation of powers appear anywhere in the Constitution.
Youngstown (1952)
Steelworkers and management in unsuccessful negotiations. President issues order seizing
mills and an order to keep them running. The constitutional question that is raised is the
President allowed to do this? Is he intruding on Congress' power since there is no statute
authorizing the President to act this way?
o Answer: No, the President is not allowed to do this.
He is intruding on Congress' powers. The President executes the laws. (Ariticle
II, Section 3 says the Pres must faithfully execute the laws ..) But, if there is no
law for him to execute, then he is doing something beyond the scope of what the
Constitution says he can do. The Constitution sets up various branches of
government with differing powers. Without a statute, the President went beyond
the responsibility and powers afforded him.
o There is no black letter law that emerges from Youngstown because there is no majority
opinion. Justices have varying opinions as to why the President is not allowed to do what
he did.
Justice Black
Black is a text-based formalist; if there is no law, then the President
cannot act. He looks only to the text of the Constitution. If there is no
statute, then there is no authority. History does not matter, consider only
the text of the Constitution.
It is illegitimate for a President to act when there is no legislation
authorizing him to do so.
This is narrow approach.
Justice Frankfurter (Concurring)
Functionalistic and pragmatic; consider what is necessary; take account
of things beyond the formal legal materials.
The Constitution is a framework of government and we must consider
how that framework has historically operated because that historical
operation shows that it has operated according to its true nature.
Historical ways of conducting government do not supplant the
Constitution, but those ways can give meaning to the words of the
Constitution.
Too narrow to only consider text of the Constitution; better to consider
the gloss which life has written on the constitutional text. Gloss is
Professor Rosen
important because, as a practical matter, unforeseen situations arise, so

you have to have 'gloss' on the Constitution.
o Example of gloss systematic, unbroken executive practice
pursued with Congress' knowledge of it and never before
questioned by a President who has sworn to uphold the
Constitution, where the exercise of that power is almost a de
facto part of the structure of our government.
Frankfurter agrees that President (Truman) went too far
with the gloss.
o Counter-Argument the Constitution is worthless if it is subject
to re-work and change, depending on any situation.
The Constitution is a living, breathing document and should be
interpreted with the conditions of the time.
Implicit in Frankfurter's approach is that there is an unbroken chain of
government actively involved in Constitutional interpretation.
o Compare Marbury.
Justice Douglas (Concurring)
President may seize and Congress may ratify the seizure, but until
Congress acts the President's action is unlawful.
What the President did was a legislative action that means the
Legislature has power to pay compensation for a seizure and the power
to authorize a seizure or make one that the President has already done,
lawful.
Sanctioning what the President did would be to expand his powers under
Article II, and would alter the Constitution for this specific purpose. This
creates a slippery slope.
Justice Jackson (Concurring)
Lays out 3 categories
o Congressional authorization
Black: This is the only time the President can act.
o Congressional silence
Black: No, President cannot act.
Frankfurter: Maybe President can act.
Jackson: Yes, sometimes, the President can act.
The difference between F and J here is that F is
backward-looking is there historic precedent?
J's approach is based in the current situation;
focus is on imperatives of events and
contemporary imponderables.
o Contrary to Congress' will
President's action contrary to Congress' will because
Congress has considered this power of the President
before and refused to give it to the President. (TaftHartley Act.) Congress failed to act and because of this,
an inference was drawn as to congressional intent. That
is, Congress did not act on bill which would allow
President the authority to seize; that inaction shows
Congressional intent.
Presidential powers minus Congressional powers,
whatever the President is left with is his authority to act.
Professor Rosen
President's action falls into 3rd category it is only

lawful if it is within his authority and beyond Congress'
authoritative scope.
[Note that this means we know what the "rule" is
for category 2, but we don't know how to apply
it, since J says Youngstown falls into the 3rd
category.
Clinton v City of New York (1998)

Forest LIVA is unconstitutional.
Addressed Line Item Veto Act (LIVA), which did not apply to all pieces of legislation.
Rather, the LIVA applies to budget/tax acts passed post-LIVA. The statute gave President
power to cancel in whole, on a line-by-line basis. There were certain limitations as to what
President could and could not cancel. When President cancels line: 1) the text of statute
actually gets changed, 2) the $ that was cancelled goes to a lock box that is used to pay down
deficit.
Majority opinion:
o The constitutional provision involved Article I, Section VII, Clause II, the
Presentment clause.
The LIVA allows the President to do something not in conformity with the
Presentment clause. A canceling in whole is not the same as a return (veto), as
allowed by the presentment clause.
Return (veto) happens before bill becomes a law. Canceling in whole
happens after bill has become law. Thus, this does not comport with
presentment clause.
Dissenting opinion (Scalia)
o Disagrees about the constitutional provision involved. Scalia says this is NOT a
presentment clause issue.
Scalia says that what the statute gives the President the power to do is NOT a
veto; rather, the President is simply executing the law.
Scalia uses a non-delegation doctrine (at some point Congress can't delegate
authority; applicable in administrative agencies) argument. Scalia says
administrative law happens all the time, and so presentment clause is not the only
authority to make laws these days; presentment clause is not exclusive area for
generating law. Scalia says if you agree that administrative agencies can make
law in certain areas, then you have to agree that the presentment clause is not the
exclusive means of law-making.
This is the fundamental difference between the majority and the dissent.
Does the presentment clause lay down the exclusive way that laws can be
made? Scalia says you can't only look at constitutional text (presentment
clause), you have to look at history, traditions and practice. This is ironic
because Scalia is one of foremost formalists on SC.
o The relevant constitutional limitation is a structural one Congress cannot delegate too
much, it has to keep some.
Compare Field
Field addressed a statute which exempted certain items from import taxes. Provision of the
act allowed President to prohibit exemption (allow tax).
o Scalia thought Field was quite analogous to Clinton v NY.
Professor Rosen
Majority points to 3 critical differences between Clinton and Field to distinguish the
cases from one another.
See last paragraph on pp. 125.
Field dealt with conditions that were not known by Congress.
U.S. v Curtiss-Wright (1936)

Statute allows President to proclaim it unlawful to sell arms or munitions of war to the
countries now engaged in a conflict, if he finds that such a prohibition would assist in
resolution of peace. Question before the court: Did Congress have authority to give President
this type of authority? Can Congress allow President to make law?
The statute appears to be a delegation to the President of the power to essentially make law.
o Forest statute is permissible and constitutional.
Court makes distinction between domestic and foreign issues. But there is no
textual source for this conclusion.
In part, the justification comes from political theory states never had
foreign authority, so the formation of the union invested that power in the
federal government. But, which part of the federal government gets that
power? Congress or President?
o This argument only goes so far. It does not answer the separation
of powers issue.
So, the court moves to a functional/policy argument to justify investing
this power in President. The court concludes that it makes sense to have
these powers invested in one person.
o Black letter law President enjoys greater powers in foreign affairs than with domestic
affairs. The problem is that the line between a foreign issue and a domestic issues is often
blurred.
For example, Youngstown. Is this an example of a domestic issue (seizure of mill)
or a foreign issue (Korean War)?
Dames & Moore v. Regan (1981)
President nullified attachments and tried to transfer litigation to Tribunals. Can President do
this?
o Nullification Question
IEPPA (statute) provides clear authorization to nullify attachments. This was an
easy question for the court to answer. There was specific congressional authority
for the President to do what he did. Thus, it fell in category 1 of Jackson's
analysis in Youngstown (which the court cites.)
o Suspension of Claims Question
Statute did not specifically grant the President power to suspend claims in
American courts.
Forest Transfer of lawsuit to Tribunal is acceptable.
Court drew upon the Jackson concurrence in Youngstown. But, it did change
Jackson's formulation slightly. Instead of three hard and fast categories, there is
more of a continuum.
Court says this issue is arguably in a foreign context (as in Curtiss
Wright), but also could arguably be a domestic issue, in which the
Youngstown categories would be applicable.
o Court says when foreign affairs are at issue, we will apply a
looser standard from Jackson's opinion in Youngstown.
Professor Rosen
Prior to Dames, there was no precedent that would apply to the facts of this case.
Youngstown made it unclear as to limits/boundaries of Presidential powers.
Depending on who you represented in Dames, you would characterize the case as
a foreign case (giving President more deference) or as a domestic case.
Post-Dames, the analysis looked like this:
Jackson's approach softened in foreign context.
Hypothetical Pre-Dames & Moore, client did contract work for Syrian government. Govt did not pay,
so client sued Syria in US and moved to attach Syrian assets in this country. The ct granted the
attachment. President of US then issued and order nullifying the attachments and dismissing client's legal
claim.
Pre-Dames & Moore, what can you do for your client?
Nullification of attachments OK according to the statute, IEEPA.
Suspension of claims Unclear; statute does not address.
Post-Dames & Moore, whad can you do for your client?
Nullification of attachments OK according to the statute, IEEPA.
Dismissal of lawsuit Dames & Moore does not squarely answer the question
because D & M was about transferring the case, not dismissing the case. This
means you'd have to draw a distinction between transfer and dismissal one
creates an 'end' to possible remedy and the other simply moves the forum.
Clinton v. Jones (1997)
This is a separation of powers issue because the courts could potentially interfere with the
President's ability to carry out the functions of the Presidency.
Legal rule If the lawsuit would hamper or burden the President's official duties (the
Presidency), then the court has discretion to stay the case.
o The SC concluded that the President will not be hampered or burdened from his official
duties, and so the case can go forward.
Hypothetical President Bore has just been sued in his personal capacity in tort for a car accident that
occurred before he became President. He wants you to argue that he should have temporary immunity
from such suits during his Presidency. Do you have to argue that Clinton v. Jones must be over-ruled to
achieve the result your client wants?
Initially, Clinton v. Jones, is bad for Bore. But, you can make an argument that the Bore case
would take up a lot more time, and therefore would amount to a more significant interference
with the Presidency. You'd have to distinguish the case by arguing that the facts of Bore make
it clear that Bore's functions would be hampered or burdened.
The alternative is to try to convince the court to change the legal test, that the President
should have civil immunity in all situations.
INS v. Chadha (1983)
Concerned legislative veto and rule-making in administrative agencies. Decision affected 200
statutory provisions. EPA allowed to set pollution limits requisite to protection of public
health. This gives EPA a lot of latitude.
o The court rejects the whole mechanism of legislative veto (where the legislature has the
power to say 'no' to a decision made by an administrative agency) as unconstitutional.
House passed a "thing" (disagreement about what it is). Only one house of Congress passed it
(ordinarily, 2 houses and approval from President are required). So, what happened here was
that one house of Congress is making a determination on a decision made by an
administrative agency, which is part of the executive branch.
10
Professor Rosen
Berger's majority opinion Berger more similar to Black in YT; legislature and
judiciary have separate functions. Formalism.
The "thing" created by House is legislation, but it did not comport with
bicameralism and presentment clause.
The "thing" is legislative, but it fails constitutionality because it did not go
through bicameralism and presentment.
Legislation is something that has purpose and effect of altering legal
rights, duties, relations of persons. The "thing" is legislation because
Congress' decision altered Chadha's legal rights he was ordered to be
deported.
o The problem with this interpretation is that under this definition,
judicial appeals would be legislative because appellate decisions
alter rights of parties. One decision goes one way and an
appellate decision goes another way.
When agencies make rules, they do not have to conform to bicameralism and
presentment, but Congress always does.
Berger's position is consistent with Marbury. When Congress acts legislatively, it
has to follow constitutional requirements. The Constitution specifies how
Congress must act, but does not discuss the conduct of administrative agencies.
o Powell's majority opinion
The "thing" is not legislation; it is judicial in nature.
It is judicial because they're, in effect, reviewing INS' findings. INS says:
you comply with statute. Congressional Committee says: No, INS, we
don't agree with your statutory finding. This is a judicial action and
because Congress is not supposed to act judicially, it is unconstitutional.
o White's dissenting opinion White is more similar to Jackson in YT Functionalism.
The "thing" is a negation of an executive determination; it is executive because it
is contradicting an executive determination.
If Congress is going to delegate rule-making authority to agencies that do not
have to comport with bicameralism and presentment, then when Congress retains
some legislative power (that it originally delegated), then it does not have to
comport with bicameralism and presentment.
Per Rosen, it is difficult to see a difference between countering an
executive determination (White) and a judicial function (Powell).
The debate among the justices is on two levels. 1) What is the "thing" and 2) How important
is it to define the "thing"?
o Berger when you have distinct, separate branches of government, it is VERY
important to define the thing. Formalistic approach.
o White the branches of government overlap and are more interdependent, so it is LESS
important to define the thing. Functionalistic approach.
o
Bowshar v. Synar (1986)

Humphrey's Executor FTCA gave FTC significant rule-making authority re: fair rules of
competition. This was a big grant of law-making authority from Congress to FTC. Congress
wanted to insulate FTC from political pressures and it did so by limiting the circumstances by
which the President could remove the head of FTC (situations of inefficiency, neglect of duty,
or malfeasance in office.) Humphrey court said this standard was acceptable.
In Bowshar the ct addresses independent agencies. Agencies are part of the executive branch;
they answer to the President; the President has appointment power over heads of agencies and
11
Professor Rosen
the power to remove (fire) is vested in the President. Independent Agencies are agencies
whose head cannot be removed at will by President.
o The Comptroller General ("CG") was politically insulated as well. The Budget Act used
the exact language as the Humphreys Act, which the court upheld. But, in this case
Congress had power to remove, not the President.
After Bowshar, independent agencies are still constitutional. This is an easy question. The SC
answers this question clearly. Even though Berger says that legislative removal power is
constitutionally problematic, Bowsher does not stand for the principle that heads of agencies
are only removable by the President. Bowsher is about Congress' power to remove heads of
agencies, not about the President's power to do so. The end result is that Bowsher does not
spell the end of independent agencies because the court only held that congressional removal
power was unconstitutional.
Berger's majority opinion Formalism
o CG authority is really executive in nature, but
o CG is an agent of legislature (because of the L's power of removal). Can't have this
mixing and since this isn't impeachment, it is not allowed under the constitution.
o Stylistically, Berger is consistent with his formalistic approach in Chadha.
Steven's concurring opinion
o What CG is doing is legislative.
Legislative is policy that defines the nation. CG creates policy that defines the
nation, so what the CG is doing is legislative.
o CG is an agent of Congress and therefore has to abide by bicameralism and presentment,
which CG does not do in this act. In the act, he simply creates a recommendation and that
is made an order. This is, therefore, not constitutional.
White's dissenting opinion Functionalism.
o What CG is doing is really executive in nature; he is not an agent of Congress even
though Congress is vested with authority to remove because the removal standard is
difficult to reach and removal has to go through bicameralism and presentment.
Morrison v. Olson (1988)

Ethics in Government Act of 1988. Law created independent counsel. Attorney General
conducts investigation Special Division (3 X Article III federal judges) Special division
appoints independent counsel. Re: removal proceedings, the AG can initiate removal
proceedings for the IC or the special division (upon hearing from independent counsel that
duties have been discharged) can discharge the independent counsel.
o Problem with the executive branch (Attorney General) being allowed to remove the
independent counsel is that it
o Forest act is constitutional.
Reinquist's majority opinion a highly functionalistic argument.
o Appointments clause Senate gets say in appointment of heads of executive
departments. Was independent counsel a principal or inferior officer? IC is an inferior
officer because he's appointed by special division and not President.
o Article III Cts are over-reaching into another branch by doing this type of
appointment. (Basically, this is the same argument as the separation of powers argument.)
o Separation of Powers About President's powers. Whether the President's powers are
being so overly limited as a result of the removal process.
o
Legal rule Make sure, whatever the removal provision, there is no interference with
the President's exercise of executive power and his constitutionally appointed duties.
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Professor Rosen
But, this does not provide a lot of guidance as to what Congress can/can't do
only says don't interfere with exercise of executive power.
This is highly functionalistic argument because there are no concrete categories.
The rule is: just don't upset exercise of executive powers.
In THIS case, the court says that the "good cause" standard in the Act "unduly
trammels on executive authority."
The court is signifying a change in its approach with this decision and is rejecting the
formalistic approaches used earlier in Humphreys. The court has changed its mind.
Scalia's dissenting opinion formalist argument.
o The independent prosecutor is a purely executive power, so the presidential power to
remove cannot be limited. President's power to remove can only be limited in instances
where the removing party is performing a quasi-legislative, or quasi-judicial function.
Part IV: Congress' Powers

Part A: McCulloch v. MD ~ Necessary and Proper Clause
McCulloch v. Maryland (1819)
Did Congress have power to incorporate national bank?
o Addresses Congressional power. Article I, Section VIII defines all kinds of things that
Congress can do and creating a bank is not listed among them. The issue, then, is how
specific do the enumerated powers have to be? The issue is also, can implied powers be
derived from the enumerated powers? First holding Congress has explicit powers, as
well as implied powers that are not contained within the constitutional text that help to
accomplish the enumerated powers.
o The necessary and proper clause is the textual source for allowing Congress to do
things that are not specifically enumerated in the Constitution.
Counter-Argument necessary may have 2 different meanings.
Madison, Jefferson necessary = indispensable.
o Remember that Madison and Jefferson wrote the VA and KY
resolutions and promoted states having right to have final say on
what the constitution means. This approach is pro-states rights
and focus on limiting federal government.
o Textual support for narrow interpretation drafting of
constitution may support narrow reading because Congress'
powers are not broadly defined. Clause 5 says Congress has
power to coin money and define its value. Then, clause 6 says
Congress has power to punish counterfeiting. If powers were
broadly defined, there would be no need to be so specific in
clause 6, it would naturally flow from clause 5. The same would
be true of clauses 11 and 12 about declaring wary and having the
power to raise and support armies.
Hamilton necessary = useful.
o The useful approach won out on this case. This approach gives
Congress a lot more power!
o Hamilton considers where the necessary and proper clause is
placed in an area of the constitution that identifies affirmative
powers. (Not that powerful of an argument.)
o Constitution is not a legal code, but principles; we must never
forget that it is a constitution we are expounding. The nature of
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Professor Rosen
the constitution is that it must be read as a general outline

without great detail.
o Legal test 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.
This is clearly the Hamilton approach Congress has power to use the
necessary and proper clause in a way that is most beneficial to the people.
Does MD have power to tax bank?
o MD wanted to tax a federal bank. US Govt is claiming constitutional immunity from MD
state tax.
o Addresses limits on state power. Court said MD does NOT have this power because
states cannot do things that will undermine federal government's powers. Although states
have power to tax, they cannot do so against the federal govt entity.
Theme of 'no free lunch' if you have some rights, it may seem to be better to
have more rights. But, that is not necessarily true, because when you increase
rights of one entity, you take away power from another.
Representation Reinforcement argument:
o Congress could tax the bank because Congress represents all people in the union. If MD
were to tax, that one state would be taxing all others within the union. All taxpayers
within the federal union would suffer from taxation of the federal bank. But, if Congress
taxes it, then the cost would be borne by everyone.
o We trust Congress to create a regulation and that the democratic system will work if we
experience the benefits and detriments together. But, if we have an ability to pass a law
that benefits only us and imposes costs on others, we cannot trust that the democratic
process will work well.
o Constitution tries to correct failures in democratic process others without political voice
in community cannot impose burden upon those within the community.
These are not textual arguments; they are consequentialist/political
structure/political theory arguments.
Add notes here about questions from the syllabus.

Part B: The Commerce Clause
Ogden, E.C. Knight formalist approach to commerce clause
This set of cases is a highly formalistic approach in that it is concerned with exact language
of Constitution, and a highly specific and exact definition of the terms contained therein.
Wickard, NLRB functionalist approach to commerce clause
This set of cases is not concerned with the precise definitions of the terms. Rather, the court is
more concerned with consequences and effects.
Heart of Atlanta the ct reshapes the substantial test (NLRB, Wickard) to reasonable/rational basis test
which is essentially the same, but is even more deferential to Congress' powers.
These different approaches create different legal tests, which determine the outcomes of cases.
Formalist legal test did the "thing" have direct or indirect effects on commerce?
Functionalist legal test close and substantial relation test. The result of the functionalist test is
that it gives a great deal of deference to Congress, even if the activities are local, non-commercial and if
taken individually, have little impact on commerce.
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Professor Rosen
Gibbons v. Ogden (1824)

Issue before the court: does regulation of steamship lines amount to Congress' power to
regulate commerce? This case focuses on the words "among" and "commerce".
o Answer: Ct says it is commercial intercourse, and is therefore commerce. Ct says this
case qualifies as commerce among states because "among" means intermingled.
Ship was going from NY to NJ this is among states. If it were completely
internal in one state, that does not qualify as commerce among states.
o Ogden began by defining commerce commercial intercourse. E.C. Knight goes on to
say that manufacturing is not commerce itself; manufacture actually precedes commerce.
Carter says coal is not commerce because it is also a form of manufacturing. (See
handout 5.)
National Labor Relations Board (1937) ~ Handout 5.
Even things that are intrastate, if they have close and substantial relation to interstate
commerce, Congress can still regulate them.
o This is dramatic break in how SC analyzed commerce clause cases. It is a watershed case
because it signaled abandonment of formalist jurisprudence.
Wickard v. Filburn (1942)
"Even if appellee's activity be local and though it may not be regarded as commerce ",
Congress can still regulate it. (Obviously, this is a very different approach than in Ogden.)
o Wickard gives guidance as to how we know if something has a substantial relation to
interstate commerce. (See NLRB case.)
Congress is trying to stabilize wheat prices and it wants to regulate Wickard's
consumption of his own wheat. Congress' claim is that if you aggregate
Wickard's activity, then it will have an effect on interstate commerce. If so, then
Congress can regulate it.
Congress likes this standard because it gives a loose understanding of
substantial, and will give great deal of deference to Congress.
Heart of Atlanta Case (1964)
Challenged constitutionality of public access provision of Civil Rights Act of 1964.
o Congress relies on commerce clause in this part of the statute, even though the statute is
about equal protection. We know this because the language of the statute mentions
commerce to show its reliance on the commerce clause.
The commerce clause test was satisfied here because people travel to this hotel.
People come from different places to stay at the establishment; it serves interstate
travelers.
1960s 1995 when court applied close and substantial relation test/reasonableness standard. Every
piece of legislation that was challenged on commerce clause grounds was upheld. This shows incredible
deference to Congress. This changed with Lopez decision; this was the 1st time in 60 years that the court
found Congress had overstepped its bounds in regulating commerce.
Lopez (1995)
Criminal statute at issue; activity being regulated was about possession of handguns in a
school zone.
Watershed case; part of new federalism.
Legal test Court established 3 broad categories of activity that Congress can regulate.
o Use of channels of interstate commerce
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Professor Rosen
o
o
Protect instrumentalities of interstate commerce

Substantial relation to interstate commerce
The language from this last category is verbatim from NLRB.
The test for the 3rd prong Does regulated activity bear any substantial relation
to interstate commerce?
The entirety of the opinion is based on category 3. The court outlines the three
categories, but does nothing to help understand how to apply categories 1 and 2.
Ct creates more narrow interpretation of substantial relation.
Court advises Congress to include legislative findings as to the relation of the
legislated activity and commerce.
Morrison (2000)
Violence Against Women Act: the statute in question provided damages remedy for criminal
statute; when persons committed crimes based on gender.
o Did Congress have power to enact this statute? The basis for that power:
Commerce clause; Forest No.
Section 5 of 14A; Forest No.
o The Wickard aggregation approach is only operable when the activity being aggregated is
economic in nature. The court is not willing to put forth a categorical rule that you can
only aggregate in economic activities, but the court also says that cases in the past have
upheld regulation under the commerce clause only when the activity is economic in
nature.
Justices disagree about what amounts to an economic activity and what does not.
Dissents in Lopez and Morrison say that the lesson of history (of the commerce
clause) is that the courts can't police this; better to give it to Congress. (Similar to
political question doctrine argument.) The point of disagreement is about judicial
competency majority says judiciary can and should police line between
federal and state polities; dissent says judiciary not equipped to police that line,
as evidence by the events in 1930s.
Part C: Spending Clause (Article I, Section 8, Clause I)
Under the spending clause, Congress regulates by taxing and then returning the $ if the states do
something. It is incenting the states to do what Congress wants it to do, but what Congress lacks the
power to directly force the states to do.
Madison view The 'general welfare' is referring to the 17 clauses that follow.
Clause I says Congress has power to tax to do any of the enumerated powers listed in the 17
clauses that follow.
Hamilton view 'General welfare' is a broad, independent grant of regulatory authority.
Clause I says Congress can do other things beyond the 17 that are enumerated.
South Dakota v. Dole (1987)
Really this case is compilation of earlier spending clause cases and creates the black letter
law about the spending clause.
Legal Test
o Is what Congress trying to do an advancing of welfare [made in pursuit of general
welfare]?
This question has an easy threshold and is sufficiently broad. (Hamilton's view
won out.)
o Condition must be unambiguous
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Professor Rosen
Relatedness requirement
Is there an independent constitutional bar?
See hypothetical analysis for unspoken 5th prong: coercion. This must be included in any
Dole analysis.
O'Connor's Dissent about the relatedness prong. She wants to define relatedness in a more
narrow way.
o This would be a good way to limit Congress' spending clause powers create more
narrow interpretation of relatedness prong.
o
o
o
Hypothetical Congress taxed states 10K per student in public school and then rebated that money if the
state enacted a law banning the possession of handguns within 1,000 feet of all public schools. Is this
constitutional?
Lopez tells us that Congress does not have power to enact this legislation under the commerce
clause. But, this is structured as a spending clause analysis because it is structured as an
inducement and not as a direct regulation.
Apply the Dole test
o General welfare safety of students is certainly element of general welfare
o Conditions are unambiguous (per Rosen)
o Relatedness
o Independent constitutional bar
Is there an explicit one? No.
Can't be so coercive (i.e. too coercive) = 5th prong Coercion.
10K per student is a massive amount of money and may amount to
unacceptable coercion. This may make the hypo run afoul of the coercion
prong.
Policy discussion of Spending Clause:
Congress should be allowed to indirectly, through inducing great pressure, regulate state
when it doesn't have the power to regulate directly because ultimately states are the ones
making the decisions; they're big kids. Ultimately, all federalism concerns are vindicated
through the spending clause, because no one is holding a gun to the state's head to get them to
act a certain way.
o The alternative argument is that the coercion line can be quite dull. That is, Congress may
be allowed to put considerable pressure on the states and this threatens federalism
principles. States dont really have power if they're being coerced.
There is an on-going debate about the propriety of the spending clause. Some scholars say
that Congress should not be allowed to muck up federalism indirectly when it is barred from
regulating directly.
As a consistency matter, you could argue to the SC that the Dole test should be applied more
strictly in light of the more narrow interpretation of the commerce clause in Lopez. There is a
good argument to be made that the court's spending clause analysis should be reworked in
light of the more conservative approach to the commerce clause. The court could narrow the
rules, or it could create a whole new test.
Part D: Reconstruction Amendments
13th Amendment, 14th Amendment, 15th Amendment the enforcement provisions in these
amendments are additional powers granted to Congress.
The Civil Rights Cases (1883)
Statute enacted right after 14A barred discrimination in public spaces.
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Professor Rosen
Argument against the statute is that Congress does not have power to proscribe discrimination
of private citizens/businesses. The 14A is a limitation on states and governments and section
5 of 14A gives Congress power to enforce against states and governments, but Congress does
not have that power against private entities.
o If Congress had been targeting state-owned hotels and motels, that would have been
constitutional, but because the statute addressed private entities, the court held that
Congress did not have power to regulate.
This approach is still good law under section 5 of 14A.
The court says if sections 1 thru 4 of 14A are limited to the states, then Congress' power to
enforce is also limited to the states.
o Sections 1-4 are directed to the states; addresses what the states limitations are.
o Section 5 is directed to Congress; addresses what Congress can regulate, what its
power to regulate is.
Harlan's Dissent advocates deference to Congress and applies the differential approach of
McCulloch v. MD to an analysis of Congress' powers under Section 5. The majority took a
much more narrow approach.
Black letter law Congress can only regulate against states, not against individuals.
Congress' powers limited to states.
Katzenbach v. Morgan (1966)

Lassiter precedent (1959) states allowed to have literacy requirements for voting;
they're constitutional. This case preceded the Voting Rights Act of 1965.
Katzenbach involved Voting Rights Act; the provision at issue (section 4-e) said that can't
deny Puerto Rican Spanish speakers right to vote because of inability to read/write in
English.
o Congress relied on section 5 of 14A to enact this statute. Given the Lassiter precedent,
how can you say that 4(e) is an enforcement of the 14th Amendment when we've already
said literacy tests are constitutional?
Section 4(e) is an enforcement of the 14th Amendment from two different perspectives.
Either approach would be valid and would be basis to justify legislation.
o 1st approach: Prophylactic approach a fence around the constitutional requirement.
That is, literacy requirements themselves are not unconstitutional, but they could result in
unconstitutional results. Congress can disallow constitutional rights if it thinks those
rights could lead to unconstitutional results. i.e. Congress can disallow literacy
requirement (which is constitutional under Lassiter) if it thinks it will deny Puerto Ricans
the right to vote, etc (which would be an unconstitutional result.)
o 2nd approach: Perceive a basis approach If Congress thinks (regardless of what court
said) that literacy requirements are invidious discrimination that violates EPC of 14A,
then that is enough for court to uphold Congress' act. Lassiter said literacy requirements
are constitutional, but if Congress has basis to disagree with that, then we'll defer to its
judgment and uphold its statute.
Note the clear diversion away from holding in Marbury. This world is very
different than the Marbury world.
o The Katzenbach decision is very different than the Civil Rights Cases because K is saying
that Congress, under section 5 of 14A, can proscribe something that is already
constitutional under sections 1-4 of 14A. This means that the undercurrent of the K
decision is that there is a disconnect between the scope of 1-4 and the scope of section 5.
City of Boerne v. Flores (1997)
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Professor Rosen
Addresses free exercise clause (religion).

Undoes the "Perceive a basis" justification created in Katzenbach. Prophylactic powers
remain.
Creates congruence and proportionality test (see below.)
Form of Protection/Time
Period
Constitutional
Statutory Regs
Pre-Smith
Smith (Peote Case)
RFRA
1) compelling reason
2) regulation must be
narrowly tailored
None
1) Congress just have to

have rational basis; just
needs reason (can't aim)
None
Same
1) compelling reason
2) narrowly tailored
Post RFRA, Congress tried to statutorily protect religious freedoms the same way the constitution
protected them pre-Smith. The question about RFRA is whether Congress had the power to enact it.
Congress relied on section 5 of 14A in passing the statute.
o This is, structurally, analogous to what was happening in Katzenbach. In both cases,
Congress has statutorily proscribed activities that the court has already concluded are
constitutional.
In this case, the court has already concluded that reasonable religious regulations
are constitutional.
Legal Test Congruence and proportionality test. These terms are creations of the court
which the court says it creates based on past precedents and is just now labeling them.
o Court ultimately says that RFRA is neither congruent nor proportional.
The RFRA fails congruence and proportionality because 1) the statute is very
broad and legal precedent is limited to instances of bigotry (laws prompted by
bigotry are unconstitutional), and 2) there are no recent instances of state laws
prompted by religious bigotry.
Post-Boerne Congress' powers are being more limited.
o Dissent advocates a return to time when Congress received more deference to the
exercise of its section 5 powers. The dissent is re-iterating the 2nd holding in the
Katzenbach decision perceive a basis approach, that Congress should have
constitutional interpretation authority in this regard.
Kimel (2000) and Garrett (2001)
Statute at issue ADEA (age discrimination employment act)
o The court does not question whether Congress has power to regulate employers under
commerce clause. That was already decided in EEOC v. Wyoming. It's clear Congress has
power to regulate employers in this way, under the commerce clause.
The question is is there a remedy if the states ignore this right? No. Congress
does not have authoritym to say that someone can sue state if it violates their
right under Article I. (See Seminole Tribe.)
o Kimel's congruence and proportionality test:
Problem with ADEA is that there is no evidence of discrimination in public
sector that justifies congressional regulation under section 5 of 14A.
Compare Garrett (2001)
Garrett involved ADA. State refuses to do what federal government says.
Can you sue state for refusing to follow federal government?
o Answer No. No private damages for suit of states because
Congress did not have authority to enact ADA under section 5 of
14A.
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Professor Rosen
Fails C & P test because:

Legislative record shows pattern of
discrimination, but discrimination at sub-state
level (city) is irrelevant because the 11th
Amendment protection provides immunity only
to states, not local governments.
Court says pattern of unconstitutional conduct
must be shown in form of state unconstitutional
conduct.
Court says you need a higher percentage of state
unconstitutional conducts. A dozen incidents is
not enough.
Dissent in Garrett
o Provides good perspective on pre-Boerne and post-Boerne
world. Post-Boerne, Congress' powers are being more limited.
Justice Breyer does not agree with congruence and
proportionality test. He advocates return to time when Congress
received more deference to the exercise of its section 5 powers.
Breyer is re-iterating the 2nd holding in Katzenbach that
Congress should have constitutional interpretation in this regard.
Compare with Marbury.
The congruence and proportionality test:

o Unconstitutional activity must be occurring by the States
Kimel court said there was no unconstitutional activity occurring. This was the
basis for the court saying Congress' exercise of power is illegitimate.
If scope of unconstitutional behavior is much bigger than scope of regulation,
then regulation may not be proportionate. (Kimel).
No explicit number of unconstitutional activities must have occurred; there is no
magic number. But, the court has said that a pattern must be shown.
But, even that does not satisfy the C & P test because the court has not
defined what amounts to a pattern and the court has said that even when
a pattern exists, it does not necessarily satisfy the C & P test. (Garrett).
o Private sector showing
Kimel not enough
o Showing in cities, local governments
Garrett not enough
Thus, showing must be at state level.
1. Is there an unconstitutional activity?
2. Is regulation proportionate to unconstitutional activities?
a. Compare activities that are unconstitutional and those activities that are proscribed by
statute.
Part V: Federalism's Limits on Congress and States
Part A: Limits on Congress
10th Amendment is independent limit on Congress' powers; it says powers not delegated to U.S. by
Constitution nor prohibited by it to States are reserved to states or people.
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Professor Rosen
Garcia (1985) ~ this is good law to date.

Addresses Fair Labor Standards Act (FLSA)
Overturns National League of Cities, which held that FLSA does not apply to cities. Ps want
to overturn this decision and apply the same labor protections that the FLSA applies to
private sector, in the public sector.
o Court does flip National League of Cities.
The court abandons its effort to define "traditional govt function" it has been
unsuccessful in defining that in the last 10 years.
10th Amendment comes into play because this is a federal statute and under 10A, Congress
cannot regulate traditional areas of state/locality govt function. (This was the National
League) holding. But, Congress has not been able to define this and abandons the idea.
New legal test developed in Garcia None.
o We protect the 10A values by relying on political values. Congress will protect the 10th
amendment. Congress will take care of states interests.
The court trusts the political process because Congressional reps come from
states, so they are likely to protect state interests.
The majority agrees that the political process will protect the states.
New York v. U.S. (1992)
Statute gave states 2 choices re: radioactive waste
o States must enact legislation to accommodate radioactive waste or
o States must take title
The take title provision was deemed to be unconstitutional. Ct says Congress
cannot commandeer the state legislatures to do either of the aforementioned 2
things.
The court might have relied on the 10th amendment for this reasoning,
but it does not. Instead, it considers the Garcia precedent.
o The court says this case does not fall under Garcia and the anticommandeering principle comes from a political theory.
Court creates categorical constitutional rule that states
can NEVER be commandeered. This rule is not
grounded in the 10th amendment, even though it sounds
like a 10th amendment argument.
o O'Connor (who wrote dissent in Garcia) comes close to calling the 10th amendment
surplusage.
o The court considers this a spending clause analysis and says that the statute does not pass
the coercion element. The statute is sufficiently coercive to make states take title and this
was not something that Congress could have done directly, and the 10th Amendment is
not an independent constitutional check. (Dole test.)
Printz v. U.S. (1997)
Addresses commandeering of state executive; the portion of the Brady bill in question was
struck down.
Rule anti-commandeering rule extends to the state executive and is also categorical.
o Note: the state judiciary can be commandeered. See Testa v. Katt.
o Reasoning for court's rule:
Original understanding
Structural considerations
State sovereignty, federalism, separation of powers, etc.
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Professor Rosen
Part B: Limits on States

U.S. Term Limits v. Thornton
SC decision overturned voters' decision; this case pits democracy against constitutionalism.
o Precedential arguments:
Powell v. McCormick Congress sought to prevent Powell from sitting in
House of Representatives. The court held that the qualifications clause is
exhaustive (see Article I, Section 2, Clause 2.) Based on fundamental democratic
principles, Congress is not permitted to expand on qualifications that its members
must have. Thus, the qualifications list is exhaustive.
In U.S. Term Limits, the court similarly concludes that the term limits
amendments be stricken.
Powell was about Congress wanting to change the definition of
qualifications and in U.S. Term Limits, it's the states that want to expand
the definition of qualifications.
o Court says the source of the expansion is irrelevant vis a vis the
constitutional principle of democracy. That principle is that
people should get to choose their own reps.
The majority's analysis is an example of 'one size fits
all'. That is, what applied to one level of government
(Congress) should apply to another level (state
referendum.)
The dissent argues for a tailoring approach. Tailoring
makes sense because different levels of government are
sometimes not similarly situated. (This is the better
argument.)
The Powell principle makes sense in its own
context non-voters wanted to alter what the
voters, themselves, had already decided.
But, a tailoring approach does not violate a
fundamental democratic principle if a majority
of voters said this is the way we want
representation (even foregoing benefits of
incumbent Reps).
10th Amendment argument Majority concludes that 10A does not provide any grounding
for AR.
o USSC says there is no implied or reserved powers that states have with respect to election
regulation. This means the only way states can regulate federal elections is if it is
constitutionally enumerated.
Result states and Congress are on more equal footing, whereas , ordinarily
states have general powers and Congress has powers that are delegated to them.
The majority really got this wrong. It may have made sense at time of founding,
but now states typically accept and support existence of strong, federal
government.
Pre-Emption Under the Supremacy Clause
Premised on supremacy clause federal govt is supreme; federal law pre-empts state law
when two laws conflict. .
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Professor Rosen
o
o
Easy to deal with this principle when the conflict is between feds and state; not so easy to
deal with when it's between 2 states.
Pre-emption raises deep federalism concerns because you have to determine in what
circumstances the federal govt can elbow out the states.
Express pre-emption when a Congressional statute comes right out and says it pre-empts.
Implied pre-emption when federal law (usually statute) does not come out and say preemption. Analytically, implied pre-emption is a situation of dormant commerce clause. (See
below.)
Conflict pre-emption federal statute with no express provision; federal statute
conflicts with state statute and state must give way under supremacy clause.
Geier case is an example of conflict analysis.
Geier looks at federal goal; if what the state is doing conflicts with that
goal, then state statute conflicts with the federal one and supremacy
clause means federal law wins out.
Whether you have a conflict is determined by the purpose/goal of the
regulation.
Field pre-emption where feds want control over the entire field (area).
Overwhelming federal interest
American Insurance Association v. Garamendi (2003)

If CA thinks it is doing something in its citizens interests, can it do that "thing" if the federal
govt is involved in some way.
o Answer NO.
State law was disclosure law that insurer doing business in CA disclose information about all
policies sold in Europe between 1920 and 1945 by the company. Federal law was an
executive agreement (an agreement the President strikes with foreign countries.)
o Issue does the act interfere with the federal governments conduct of foreign relations.
Holding act does interfere and is therefore pre-empted.
Court analyzes this through implied pre-emption; conflict pre-emption.
o Majority says federal law trumps state law in this case on the basis of structurally
insulating the issues effecting foreign relations from state regulation.
o Majority considers the goal of the federal law (executive agreement.)
If the goal is about holocaust insurance claims, then the 2 requirements (state v.
federal) may be in conflict with one another.
The majority's argument blurs the line between conflict pre-emption and
field pre-emption. Based on the goal it puts forth, it would appear that
the feds are really trying to have regulatory control over the area of
holocaust insurance. This would be field pre-emption.
Court says there are instances where state law is pre-empted even when there is no federal
regulatory action in certain field pre-emption situations. Consider Zschernig. Zschernig
says even when feds don't regulate in certain fields, states are pre-empted.
o For example, in a case about foreign relations, even if feds don't regulate, state law can be
pre-empted. This is strikingly similar to structure of dormant commerce clause analysis.
Part VI: Judicial Protection of Interstate Commerce
Part A: Dormant Commerce Clause /Implied pre-emption (cont)
What is dormant commerce clause?
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Professor Rosen
Congress has been dormant; it has not acted, but it could have, and in acting, it could have
displaced the states. Even though Congress has not acted, the states can still be prohibited
from acting.
The dormant commerce clause is a mess, doctrinally. (Everyone agrees to this.)
Threshold Question Congress cannot regulate anything it wants; it has to relate to interstate commerce,
according to the commerce clause. Could Congress have regulated this "thing" if it had wanted to? If yes,
then we are in the world of the dormant commerce clause.
Wilson Case (1829)
The dam was damaged by sloop, but we're not responsible for the damage because you didn't
have right to build the dam. The river was deep enough for ships and DE gave license for
dam to be built. River would have allowed interstate commerce, so Congress could have
regulated under the commerce clause.
o This doesnt mean that DE can't regulate. Court says DE has an interest and can act even
though feds could have and did not.
This case definitively establishes concurrent legislative jurisdiction among federal govt and
states. That is, instances where both the feds and states can regulate.
Philadelphia v. New Jersey (1978)
NJ says 'no' to Philly garbage.
o Quarantine laws Ct says the quarantine laws about infested "stuff" were OK because
that provision dealt specifically with health issues. This means that courts are not
unequivocally prohibited from ever restricting stuff that comes from other states. But,
general principle is that you can't say no to things coming in from other states into your
state.
This is part of Reinquist dissent because he doesn't understand difference
between quarantine laws and NJ law that restricts solid garbage.
o Solid Garbage struck down.
Forest Court says law is bad. NJ can't keep Philly garbage out.
NY v. US does not overturn this case because NY was about law enacted
by Congress. The DCC is not applicable to Congress, rather it is a
limitation on the states and sub-state polities. If Congress wants to
discriminate against state's garbage, it can do that. But, states cannot
discriminate against one another's garbage under the DCC.
o Representation reinforcement Negative result occurs when
one political community makes decisions that impact rights of
another political community.
Congress is differently situated that the NJ legislature.
Congress represents all US citizens, whilst NJ legislature
is only represented of and responsible to NJ citizens.
Legal Test 2 categories that both lead to conclusion that a law is invalid under DCC.
o If state statute is example of economic protectionism, then it will virtually (almost
always), per se (categorically) be invalid.
This does not apply generally, but rather, only when states want to regulate and
Congress also has power to regulate the same "thing."
In Philly, the majority said the statute fell into the protectionist category.
This case rullifies what protectionism means.
o If statute regulates even-handedly and only incidentally affects interstate commerce, then
you apply Pike balancing.
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Professor Rosen
Pike Balancing test: weigh these 2 factors

Local benefits
Cost on interstate commerce
Note that this case is Pre-Lopez, where there is virtually unlimited understanding of Congress'
power re: the commerce clause.
Kassel v. Consolidated Freightways (1981)

State statute proscribes 65' doubles and IA prohibits those from being driven onto IA
highways.
o Forest statute is unconstitutional under the dormant commerce clause.
Majority this statute is an even-handed statute that fails the Pike test.
But, majority recognizes that there is evidence that the line drawn by the
statute (65' doubles) is silly since they are all equally safe.
The Pike test fails because the majority does not see much in the way of
a local benefit and sees a lot in the way of expense.
o Local benefits safety benefits (i.e. the lives of people in IA)
o Cost on interstate commerce truck drivers will have to switch
trucks or circumvent IA.
Can lives (safety) and costs be reduced to the same
metric? Can they be compared? This test calls for the
judiciary to balance and weigh things that are really
incommensurable. (They can't be compared and
weighed.) It's true that we make these decisions all the
time, but they are highly subjective. If we ask the court
to do that, then we're asking the court to make subjective
decisions: is this the role we want the court to play?
Concurrence statute fails protectionism analysis.
Dissent (Thomas and Scalia): this body of law is not best resolved in the courts;
it's just not judicially manageable.
The best way to determine if this statute is constitutional or not is to ask
whether the legislature had some reasonable basis for drawing the line
where it did.
o Dissent says that the legislature could have thought there was
some marginal difference in safety among the vehicles because
65' doubles are longer and it might take longer for someone to
pass that truck than a shorter truck.
o Dissent is giving a deferential view of this statute. This is
characteristic of rational basis review.
Carbone v. Town of Clarkstown, NY (1994)
This case rullifies the two DCC tests: protectionism and even-handed-ness.
Statute struck down on protectionism grounds.
The town argued that the waste is not interstate commerce because it stays within the state.
But, the court finds that its economic effects are interstate in reach. This means it's a
commerce clause issue.
The ordinance discriminates because it only allows the favored operator to process waste that
is within the limits of the town. In addition, the ordinance squelches competition. This means
that the first test (protectionism) is met.
o In reality, this may be an inadequate basis for concluding that the ordinance is
protectionist because all that we're being shown is that there are some interstate
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Professor Rosen
consequences to this ordinance. It's not there just to burden out of state competitors; it
also burdens in state competitors too. This makes it not so much a protectionist ordinance
as much as it is a monopoly. The DCC does not govern monopolies. A monopoly may be
stupid, but it's not unconstitutional.
This means that the dissent may get the better of the argument (see below.)
End Result The ordinance is protectionist and is unconstitutional, per the dormant
commerce clause.
o Exam Notation try to distinguish statute as protectionist, etc., but draw on concurring
opinion's approach or representation reinforcement. There's room to argue that the
Carbone definition of protectionism is problematic and does not reflect what
protectionism really is.
O'Connor's Concurring Opinion
o The ordinance fails because the ordinance fails the 2nd, even-handedness test.
o She argues that the party bringing the suit is a resident of Clarkstown and explains why
this is not properly characterized as protectionist regulation because it affects citizens of
the state as well as out-of-state citizens.
This point goes to representation reinforcement In-state citizens have political
process to protect them, that will in-turn benefit out-of-state citizens. When states
impose costs on outsiders, that is protectionist. When Congress does it, it is OK
because that cost is distributed amongst all.
So, courts should not step in where the regulation affects insiders
primarily, and its effects may impact out of state people.
Dissenting Opinion
o Dissent says the majority ignores the fact that private parties are not benefited by the
ordinance here, but the government is the beneficiary. Therefore, the ordinance falls
outside the protectionist measures that the commerce clause prohibits.
Here the beneficiary of the regulation is the govt and it benefits one processor it
does not discriminate against a class of competitors.
o There is no evidence that this ordinance has kept competitors from entering the market.
The only businesses that have suffered are within Clarkstown, so there is no
constitutional problem. The commerce clause was not passed to save the citizens of
Clarkstown from themselves.
o Dissent introduces idea of a rational basis test. There is a circuit split on the subject of
whether a rational basis test should apply in dormant commerce clause cases.
South-Central Timber Development v. Waunnicke

AK requirement dictated that lumber taken from its state be processed within AK before its
exported. The state statute said that if you buy lumber anywhere, then you get a discount if
you get it processed within the state. The purpose in enacting the statute was to get processing
done in state because that guaranteed more employment, etc.
Black Letter Law If a state is acting as a market participant rather than as a market
regulator, the dormant commerce clause places no limitation on its activities. The state may
not impose condition that have a substantial regulatory effect outside of that particular
market.
This statute doesn't seem really protectionist because you can buy lumber anywhere, but the
benefits to Alaska hint of protectionism. Alaska is enhancing its own welfare, not caring
about the other states. To the court, this amounts to protectionism.
o FOREST Ct finds the regulation unconstitutional because of dormant commerce
clause. The court says that the state can act as a market participant, but it can't act as a
market regulator.
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Professor Rosen
If the state is a market participant, then the DCC does not apply. So, if you're a
state, try to conceptualize the state as a market participant; this offers you
immunity from the DCC.
The logic behind the market participant immunity is that states and cities
frequently run businesses. When they are acting as businesses, they
ought to make decisions the same way as private businesses. Since the
DCC does not apply to private businesses, it should not apply to states
when they are operating in the same capacity as private businesses. This
puts states on equal playing field as private businesses.
o Counter-Argument But, states are never like private actors;
they are not similarly situated. A private individual/business can
make a mutual contract, but a state makes a unilateral contract.
In this case, the court decides the state is acting more like a regulator because it
regulates what you can do with processing the lumber. This helps rullify what a
market participant vs. a market regulator is.
Downstream restrictions (i.e. regulations on the lumber after it's sold to
be processed in AK v. when it's sold) have a greater regulatory effect
than do limitations on the immediate transaction because this restricts the
post-purchase activity of the purchaser, rather than just the purchasing
activity.
Brennan's Concurring Opinion
o AK in-state processing requirement constitutes market regulation which is not
authorized.
Power's Concurrence
o Should remand to consider whether AK was acting as market participant and whether the
regulation substantially burdened interstate commerce.
Rehnquist and O'Connor Dissent
o Line drawn between market participant and market regulator is unconvincing.
Market Participant doctrine
o How do you define the market? If the market is the raw timber market, then the state is
acting as a regulator because the raw timber market ends where processing begins. But, if
the market is the logging and processing of timber, then it could be acting as a market
participant because it is contracting with who can process the lumber. This entire analysis
can turn on how you define the market. The lawyers can formulate their arguments
around the scope of the market since that scope is not defined by the court.
White (1983)
The court decides this on dormant commerce clause grounds.

The court upholds an ordinance that required all construction projects funded in whole or in
party by city funds to be performed by a work force of at least 50% city residents.
Part B: Privileges and Immunities Clause of Article IV

Camden (1984)
The court decides this on Privileges and Immunities grounds Article IV, Section II, Clause
I.
o The phraseology of the P & I clause is a little puzzling. It is an anti-discrimination, equal
protection provision. It says that the inhabitants of each of the states are entitled to same
privileges and immunities that a citizen of an individual state is.
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Professor Rosen
A citizen of MA, while visiting IL is entitled to P & I that IL residents enjoy. This
guarantees that a visitor from another state is going to enjoy same P & I that a
citizen of IL enjoys, while that visitor is in IL.
Article IV deals with horizontal federalism deals with relations of
states.
o Differential treatment among residents is not categorically unconstitutional. The
protected privileges and immunities that trigger Article IV cover only a subset of
interests; it triggers only interests that are of fundamental concerns. (One category would
be things that affect employment, professional calling, etc.)
Bottom line regulation, even of protected P & I is permissible if it can be
shown that there is a substantial reason for the state's disparate treatment of
insiders and outsiders.
The 2 prong Legal test
Is the regulation affecting a protected privilege and immunity? One that is of
fundamental concern?
If the state regulates a protected privilege and immunity, it does not mean the
state is barred from doing that because P & I clause is not categorical.
40% set aside (compare with White)
Forest insufficient factual record to determine prong 2 (see below); court remands back to
trial court.
Part VII: Citizenship, Privileges and Immunities

Dred Scott v. Sanford (1856)
Threshold question Does Dred Scott have power to sue? The issue before the court is
whether Dred Scott is a citizen and can invoke jurisdiction of the federal courts via diversity
jurisdiction.
o Answer NO.
Court looked at an originalism argument and considered what the founders
intended.
This case illustrates how originalism can depart from textualism. If the
court had only been looking at text, it might have reached a different
result. This case brings up the point of whether originalism always
produces a bad result, as it did in this case. You could argue that
originalism is bankrupt because of the lousy way that Dred Scott came
out. On the other hand, you could argue that Dred Scott was decided
correctly according to the Constitution at that time and the democratic
process reacted properly through enactment of 13A and 14A, which
ultimately overturned the Dred Scott decision.
1st part of Dred Scott DS had no jurisdiction to bring the case.
o Court should have stopped there because this is the end of the story; but it doesn't.
2nd part of Dred Scott Court struck down the MO compromise. Arguably, this whole
issues could be considered dicta. Court's holding is pretty attenuated and is not an obvious
holding.
Slaughter-House Cases (1873)
The holding re: privileges OR immunities clause is still valid and is good law.
o The statute at issue was NOT a violation of the P or I clause.
o The court disagrees with argument that the right to make a living is a P or I. Compare
with Camden. (See below.)
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Professor Rosen
The court says the phrase from the 14A (P or I) means that US citizens are citizens of more
than one polity (i.e. USA, IL, Chicago). Article IV is about state P and I. But, under 14A, P or
I are about your national citizenship. This is the distinction.
Article IV ~ about state citizenship ~ Camden (common calling is protected)
14A ~ about national citizenship ~ Slaugterhouse Cases (common calling NOT
protected).
Case involved a monopoly question did the city, in trying to create a monopoly, violate the
Constitution?
Dissent
o Dissent argues that the list of P or I that the majority discusses may not be exhaustive.
Dissent says the ones that are listed by the majority were P or I even before the 14A and
if that's all P or I refer to, then there was no need for this clause in 14A in the first place.
It just confirms what already is; makes it a nullity.
This dissent accurately captures a flaw in the majority's logic.
Justice Field argues that P or I means what is referred to as bill of rights. P or I includes the
types of limitations on federal government contained in bill of rights. Under that approach, P
or I is not a nullity. Rather, it contains new P or I against the states.
3 interpretations presented in this case
o Majority P or I adds nothing.
o Field, Black Bill of Rights added against the states
These first two approaches are about the content of the P or I.
o P or I in 14A are actually state P or I. The state can't deny blacks P or I that are granted to
whites. P or I is not about national P or I (which is what the first two approaches hold),
rather they are about state P or I of any citizen of the national United States.
This is an equal protection concept. It's not about the content of the P or I, it's
about who they are applied to, and that they must be applied in a nondiscriminatory fashion.
Saenz v. Roe (1999) the traveling right to travel

Court identifies 3 components to right to travel.
Right to enter/leave states; right to cross borders. (Go from one place to another)
Court says it does not need to have textual basis for this right; court is
unwilling to identify the source of this right. Court only says that we
have it and we don't know where it comes from. (The source is really
precedential.)
Right to be welcome visitor whilst temporarily present in another state.
This is a non-categorical right; MI must have a good reason to treat me
differently. See the 2-pronged test in Camden.
Right, in becoming permanent resident, to be treated same as other citizens.
Non-categorical rule; invites showing of good reason for differential
treatments.
o The mere presence of a possible justification is not sufficient.
(Saving money will not suffice.)
This is structurally similar to #2 that state must have
substantial reason. The test is a good reason must exist to
justify the disparate treatment.
Compare Shapiro impermissible for state to enact rule
re: denial of welfare to residents who had been
domiciled there for less than one year. In that case, the
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Professor Rosen
court grounded its ruling in the EPC. In Saenz, the court

grounded in different constitutional provision the P or I
clause of 14A. This means that the court can create an
entirely different legal doctrine that does not extend to
the many EPC cases out there.
Shapiro legal test does the state classification
concern important rights and benefits? If so,
state must have strong reason for that
classification.
In addition to "good" reason requirement, the court also creates a
portability limitation. If the benefit is portable, that is, if you can take it
and then use it out of state then states have greater latitude in creating
disparate treatment for portable goods.
o Following Saenz, the portability rule means that portable goods
make it easier for state's "discrimination" to be upheld.
The statute at issue treats new CA residents different from established CA residents. This
means that the 3rd element of the right to travel is implicated.
Shapiro
EPC
Strong reason standard
Statute must impact important rights and
benefits.
Saenz
P or I clause
Good reason standard
Forest re: Saenz CA statute ran afoul of 14A. Court rejected tailoring argument that the
federal govt is differently situated than the several states and so the 1996 Amendment to
Social Security Act did NOT alter the court's decision.
o Saenz was 1st decision that addressed both state and federal regulation. The rule that
emerges is 1-size fits all because court rejected tailoring argument.
Part VIII: Due Process & Unenumerated Rights

Part A: Procedural Due Process
Loudermill
1st component of due process whether particular interest being deprived of is a life, liberty
or property interest.
o In Loudermill, the question before the court is whether continued employment is a
property interest.
2nd component of due process did government deny that interest without due process of
law?
Remember, the government is allowed to deprive you of your property, it just has
to do so with due process!
Matthews v. Eldredge (1976)
Question is about whether disability benefits are allowed to terminate before a hearing.
o 1st component all agreed that the benefits were a property interest.
o 2nd component this is where the disagreement was.
Parties disagreed about what the govt has to do before taking away the disability
benefits.
The Legal Test
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Professor Rosen
o
o
o
Private interest effected

Risk of erroneous deprivation
Government interest
These three things are difficult to weigh. This is
commensurable; some of these things cannot be reduced
to dollars and cents.
Part B: Substantive Due Process

Lochner v. People of New York (1905) ~ viewed as a really BAD decision.
NY law that limited number of hours bakers could work; limited to 60 hours per week.
o The court is saying there is something wrong with the substance of the law. The court is
assessing the merits of the substance of the case.
Forest court struck statute down; said law is unconstitutional.
Court considers due process clause of 14A.
What is the interest? There is a liberty interest that bakers ought to be
able to contract with his employer and set own employment terms.
Legal Test
o Is it a fair, reasonable and appropriate exercise of police power of state?
Court concludes the law is not a fair, reasonable or appropriate exercise of power
because bakers ought to be able to determine for themselves whether they will
take the safety risks or not; if they don't want to work those hours, they don't
have to.
If there is a difference of opinion as to whether the law is a fair, reasonable or
appropriate exercise of police power of state, then the court's opinion should
trump the state legislature's.
In this case, the court essentially ignores the legislature's opinions about
what was fair and reasonable.
o Lochner is conceptualized as having allowed court to hold any
law it thought was stupid as unconstitutional. This is why it is
considered a VERY bad decision in legal circles.
Holmes' Dissent
o The state legislature should decide the economic theory and the court should not 2nd
guess their policy arguments.
Parrish Case (1937)
Law creating minimum wage for female workers.
o Forest Law is OK.
Legal Test
o Regulation which is reasonable in relation to its subject and is adopted in the interests of
the community.
Parrish gives deference to the legislative judgment; as long as legislature is not
completely crazy, we leave the judgment to them. (Note big difference in this
holding as compared to Lochner.) The dissent's argument in Lochner ends up
winning the day.
The Lochner and Parrish tests are almost identical because they are both reasonableness
tests, but they produce very different results.
o Parrish decision made in same year as National Labor Relations Board (NLRB).
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Professor Rosen
State Farm v. Campbell (2003)

Addressed punitive damages; are they constitutional?
o Court says there was a problem with the way this jury made the award because it awarded
145 times the actual damages. The court concludes that the award is excessive and
violates DPC. Legal Test excessive ratio of punitive damages violates DPC. Court
says that 145 times actual damages is too excessive and is outrageous and this subjective
decision making is rejected by court.
Dissent argues that there is no substantive due process. Post-Parrish, this is not true; we do
have substantive due process.
Incorporation
The majority of the Bill of Rights (BOR), by its terms, applies only to Congress. USSC, in Barron v.
Baltimore, said BOR does not extend to states and applies only to federal government. Some framers of
14A thought that the P or I clause of 14A reversed the Barron decision. Some justices tired to ground
BOR protections in other language of 14A. The language that was agreed upon was due process clause.
The idea of incorporation is that the due process clause applies the Bill of Rights against the states. Three
elements of BOR are questioned as to whether or not they apply to the states. 2A (bear arms
undecided), 3A (quartering undecided) and 7A (grand jury No.)
Part C: Contraception and Abortion
Griswold v. Connecticut (1965)
Concrete illustration between incorporation and substantive due process approach.
The challenged part of the statute is the part barring use of contraception.
Majority opinion
o There is no single amendment that speaks to this issue, so the court looks at several
different amendments of BOR. The court finds a privacy principle in these emanations
and extensions. The court admits that privacy is not an express interest listed in the
Constitution.
o The majority opinion's scope re: right of privacy is expressly tied to marriage. The
decision is pretty narrow; it applies to married people (it is not applicable to unmarried
persons.) The entire rationale of this case is liked to marriage.
o Majority bases its decision on the incorporation theory BOR are incorporated against
states via 14A.
o Majority identifies protected liberty interest right to privacy. Justice Douglas then says
that the CT law sweeps to broadly and violates that protected liberty interest. But this
language (sweeping too broadly) is not very informative for lawyers; it's not a test that
lawyers can understand.
This means that another law about this particular protected liberty interest might
not sweep so broadly and might pass constitutional muster.
This means that the protected liberty interest is not a categorical right.
Harlan's Concurrence
o Justice Harlan considers whether the right to privacy is implicit in concept of ordered
liberty. This means that Harlan does not have to trace the right to privacy to any BOR
guarantee, rather, he just has to determine that the right to privacy is implicit in concept
of ordered liberty. His approach is not grounded in any specific text. Harlan conceded
that sometimes determining what is implicit in the concept of ordered liberty means
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Professor Rosen
looking to BOR there may be some overlap between BOR and implicit liberty. But,
there may be things implicit in ordered liberty that are not part of BOR.
Today's Theory: "Incorporation Plus" BOR, but also augmented by whatever
is implicit in concept of ordered liberty.
Roe v. Wade (1973)
Court says we have right to privacy; court does not identify where this right comes from, but
says we have it. (Very similar reasoning as that used in Saenz v. Roe regarding right to travel.)
Court does not identify any textual source for this right.
o This right to privacy gives rise to a protected liberty interest. This means that if you have
a fundamental right and a liberty interest, under a substantive due process issue, then the
state's ability to regulate the fundamental right attached to the liberty interest is limited.
This means that a fundamental right must come from a protected liberty interest.
TX says one constitutional right conflicts with another in this instance.
o Mother's liberty interest v. fetus' life interest
This is why it is legally relevant to determine whether the fetus is a person. But,
the court refuses to say when life begins.
The court says there is only one recognized constitutional interest here
mother's liberty interest. The fetus does not have a constitutionally protected life
interest.
That does not mean that the remaining constitutional interest prevails
alone, other competing interests may still remain.
Legal Test this is a strict scrutiny test.
o Trimester Scale
1st trimester no state regulation
2nd trimester reasonable regulation to protect woman's health
Roe does not answer what constitutes a reasonable regulation in the 2nd
trimester.
3rd trimester fetal viability; state has compelling (NOT constitutional)
interest.
o Strict scrutiny requires state to have compelling interest and regulation must be
narrowly tailored to that compelling interest.
o As a practical matter, in this trimester scheme, the woman's privacy (liberty interest) is
diminishing as trimesters progress, but really the state's interests become more
paramount.
Reinquist's Dissent
o This is Lochner-ism outside the economic realm.
Casey (1992)
Did not over-rule Roe. But, it did significantly change doctrinal framework. The trimester
system is abandoned.
o Whether or not you agree with this statement (about Casey not overruling Roe) depends
on how you define the central holding of Roe. If you consider the central holding to be
about the fundamental right, then the Casey court's position about upholding Roe is
defensible.
Creates undue burden standard, which is a less strict standard than compelling interest that
was used in Roe. If regulation creates an undue burden, then it violates the Constitution. (The
undue burden standard is specific to abortion cases.) See below for how the court applied this new
standard.
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Professor Rosen
The undue burden standard is applicable before viability. This is the big change from
Roe.
An undue burden is anything that is a substantial obstacle or a standard designed
to strike at the right of the woman.
Pre-viability, any standard that creates an undue burden is
unconstitutional.
If regulation is NOT an undue burden then it is constitutional (pre and
post viability.)
The language of Casey says that the constitutionality of a regulation is
focused on portion of those whose conduct it affects. (see below:
application)
o After viability, the state is still permitted to outlaw abortions completely (as in Roe; there
is no change here.)
Casey highlights competing interest of fetus' life interest. This interest is recognized,
doctrinally, in Casey. Casey gives weight to this interest, where Roe really does not.
Application of the undue burden test:
o 24 hour waiting period = OK
This is not an undue burden even though some women (poor women) may not be
able to get abortions.
o Spousal Notification = UNCONSTITUIONAL
Women in domestic abuse situations will be fearful of telling husbands, and
won't tell them and will not get abortions.
Suffering physical violence to get an abortion = undue burden, even if it
only happens to 1% of women. The focus is on the 1% of women who
will be impacted, not the 99% of women who won't be.
o Hawaiian Punch analogy
Ad 100% pure fruit juice; is the whole cup 100% fruit
juice?
Label 10% fruit juice; is the juice within the cup
100% fruit juice?
What is the relevant population to look at? The
effected women, or the entire population of
women?
Methodological inconsistency in Casey analysis:
o 24 hour waiting period some women will be denied NOT and undue burden = OK.
o Spousal notification 1% will not get abortions undue burden = NOT OK.
One way of harmonizing this opinion the problematic part of the spousal
notification was that it reduced women to status of children; demeaning to
women to make them get permission from their husbands. Thus, distinction
between spousal notification and 24 hour waiting period is that spousal
notification affected all women because it reduced them all to children.
On the other hand, it may be difficult to apply Casey because of this apparent
internal inconsistency. Unclear.
Scalia's Dissent
o Scalia says the undue burden standard is not a manageable standard; it cannot be applied
with any consistency. This is a similar argument that is made re: political questions.
o
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Professor Rosen
Hypothetical State A requires all abortion providers to provide booklet to women and booklet is
propaganda with pictures (etc) designed to discourage choice of abortion. Evidence shows that 7% of
women who look at booklet will decide against having abortion.
Casey decision says that states can enact measures that are just persuasive and not for
purpose of advancing health of women.
State A requires women to travel 100 miles to get an abortion. Evidence shows 4% of women will decide
against having abortion because of this requirement.
Look to the spousal notification requirement. If 1% of women will be discouraged and that is
not OK, then certainly 4% is not acceptable. This would be a precedent-based argument.
o Counter-Argument look to the way the court upheld the 24 hour waiting period. Court
acknowledges that some women (primarily poor women) may not be able to get
abortions, so it is OK that some women (those who can't travel 100 miles) may not be
able to get abortions. This is all OK and does not amount to an undue burden.
Stenberg (2000)
Statute prohibited partial birth abortion except to protect life of mother. Partial birth abortion
is defined as one where the person performing the abortion partially delivers vaginally a
living unborn child before killing the unborn child. Partial delivery is defined as delivering
into the vagina a living unborn child, or a substantial portion thereof for the purpose of
performing a procedure .
The statute is declared unconstitutional.
o D & X procedure A breach birth is induced; head is inside, legs in the vagina.
o D & E procedure most of the fetus is inside, one limb (arm, leg etc) is in the vagina.
Does "substantial portion thereof" apply to one or the other, or both of these
procedures?
Court considers which is the relevant population to look at. This helps us rullify the Casey
decision in terms of which is the relevant population to look at. It is not a landmark case, the
way that Casey was.
The court identifies the constitutional deficiencies in the NE statute
o Statute only creates exception for life of mother and it should be for the health of mother.
Absence of a health exception in a regulation on a woman's right to have an
abortion amounts to an undue burden.
This would be an undue burden both pre and post viability.
Relevant population Court looks to women who would benefit from a health
exception. A narrow population of women need the health exception. This means
the court is looking at the specific women affected and not the population as a
whole (similar to spousal notification consideration in Casey).
Based on uncertainty in how many women will be affected and what health benefit is had by
permitting the D & X procedure, the Court is willing to strike down the state statute.
O'Connor's Concurrence
o If statute had had health exception and had only addressed D & X procedure, the outcome
would have been different.
Partial Birth Abortion Statute
o There is only a life exception; no health exception. How can this be?
Stenberg majority analysis is a bit unclear; decision was 5:4, which means you
only need one swing Justice.
Part D: Family and Marriage
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Professor Rosen
Moore
Involved a location zoning ordinance that disallows one grandchild from living in the house,
but permits another grandchild.
Legal Test
Euclid test applied in Belle Terre (In Belle Terre, the court limited the number of
unrelated people that could live together but did not offend notions of family.)
rational basis (low scrutiny) test applies.
This language was used in Parrish.
This formulation almost always shows judicial deference to the other branches of
government.
o However, the court is NOT applying the rational basis test, but it instead says that it does
something more when the regulation affects family relations. This is a less deferential
perspective.
Family relations seem to have a special liberty status under substantive due process.
o Court concludes there was no compelling interest in existence here. A city cannot
standardize a family mold.
Troxel
State statute that allowed non-parents to petition for visitation rights.

o Statute was struck down. Court's reasoning:
There is a liberty interest that parents possess that is protected under DPC, to
make decisions with regards to the upbringing of their children. This means,
there is a protected liberty interest.
Court relies on precedents that parental interest in making decisions
about their child's upbringing is a protected liberty interest. The court
specifically tells us on pp. 600 that this is a fundamental interest.
o When the interest is fundamental, that triggers heightened
scrutiny.
The next step what standard should be applied to determine if the state can
interfere with that liberty interest.
Heightened scrutiny.
o It is clear that there is some form of heightened scrutiny going on
here, but it is unclear exactly what kind.
Court declares statute unconstitutional.
Scalia's Dissent
o Approaches this area of law in similar way as political question. It may be a right; but it's
not a right that the courts should enforce. Scalia says the courts ought not defend this
right; make your arguments to the legislature.
Scalia is saying that the courts are not the only protectors of the Constitution.
o This state statute gives too much discretion to the judge and allows him to substitute his
judgment for the parents. But, O'Connor doesn't really describe a legal test. She just says,
"this goes too far."
Lawrence (2003)
Challenged TX statute which prohibited only homosexual sodomy.
o Forest statute is unconstitutional.
Court's reasoning:
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Professor Rosen
Liberty Interest Protected liberty interest for people to make choices

for themselves with regard to their personal relationships. (Once you
identify if the interest is protected or not, you have to then determine if
the interest is fundamental. If it is fundamental, that is"magic" word that
triggers heightened scrutiny.)
Scrutiny Last line of opinion uses phrase "legitimate state interest"
which is a red flag for rational basis scrutiny; this means the court wants
to apply rational basis scrutiny for this liberty interest, which means it
does not consider this liberty interest fundamental.
Majority says morals are not a legitimate basis for the legislature to enact or enforce laws.
Majority says interfering with THIS liberty interest is not constitutional. Seems that majority
is applying heightened scrutiny because of its focus on the type of liberty involved. The court
seems to be saying that THIS liberty is so important that it not be interfered with. Thus, it is
unclear what the standard is here the court seems to be saying rational basis and apply
heightened scrutiny.
o This decision is best read as primarily being a reflection of the court's discomfort with
regulation of THIS particular liberty interest. The majority's concern is that the law in
question interferes with a particular type of liberty one that allows people to make
autonomous choices about personal relationships.
o O'Connor concluded that TX statute ran afoul of EPC, not substantive due process.
Under EP doctrine, the court should conclude that the statute is unconstitutional
because it makes illicit distinctions between groups. That is, it prohibits sodomy
between homosexuals, but not among heterosexuals.
A substantive due process challenge takes the issue off the table; and EP challenge does not.
It just says the regulation must be applied equally.
Dissent
o The SC does not declare that homosexual sodomy is a fundamental right under DPC, nor
does it subject the state law to the standard of review that would be appropriate if it were
a fundamental right (heightened/strict scrutiny.)
Part E: Right to Die

Cruzan
Involves MO law that requires showing of clear and convincing evidence that this
incompetent person would have wanted life-sustaining treatment removed.
o Forest statute is constitutional.
In the instant case, the parents cannot do this for Cruzan because he provided no such clear
and convincing evidence; no statement on this subject.
o The liberty interests at issue right to die; right to refuse medical treatment.
These are not the same; you can refuse medical treatment for purposes other than
wanting to die (i.e. religious reasons, etc.)
Majority does not say which liberty interest this case is about (right to die, or
right to refuse medical treatment.) The court says it does not have to say which
liberty interest is applicable here because the MO law passes heightened scrutiny
test, anyway. (See below.)
o Level of scrutiny
MO statute would pass a heightened scrutiny test. If it passes the more difficult
test, then it is certain to pass the rational basis test. Thus, if it passes the more
difficult test, then it is constitutional.
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Professor Rosen
Scalia's Concurrence
o Federal courts ought not be reviewing these type of state statutes.
o Protection against bad or stupid regulation comes not from substantive due process, but
from the EP clause.
Glucksberg
State statute which banned and criminalized physician-assisted suicide.
Court distinguishes between right to assisted suicide and right to refuse medical treatment.
One is about not getting something that will make you better and the other is about something
that will actually hasten your death.
This case gives us guidance about how we actually identify the right we're talking about.
o The liberty interest
Court creates the careful description requirement. Don't identify the right at a
high level of abstraction (i.e. the right to personal autonomy with regard to
fundamental decision.) Better to go to the concrete. (i.e. right to die; right to
physician-assisted suicide.) The court says the liberty interest is: right to
physician-assisted suicide.
This is rullification about answering the 1st question of substantive due
process: Is it a protected liberty interest? Is it a fundamental liberty
interest?
History is the proving ground of a liberty interest.
Protection of fundamental rights that are deeply rooted in history and
traditions and implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed.
o This is history-based way of rullifying question #1 in substantive
due process analysis.
o Court concludes that this is NOT a fundamental liberty interest.
This triggers rational basis scrutiny.
o The scrutiny test
Since this is not a fundamental interest, the court applies rational basis scrutiny.
Court concludes that statute does not pass rational basis scrutiny.
This case was decided before Troxel, but Troxel does not rely on history. Troxel uses
precedent for its analysis.
Part IX: Equal Protection
The tests
Rational Basis
Legitimate government interest
Rationally/reasonably pursued
Strict Scrutiny
Compelling government interest
Narrowly tailored
Re: rational basis

End you need a legitimate government interest
Means interest has to be rationally/reasonably pursued
Re: strict scrutiny
End you need a compelling interest
Means interest that is narrowly tailored
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Professor Rosen
Part A: Introduction
When the SC is interpreting the Constitution, do we expect it to be the rearguard of social change or the
vanguard of social change? Vanguard = cutting edge. Rearguard acts after ideas have changed. As the
vanguard, should these 9 people have that much control over society's mores?
Note the difference between equal procedure vs. equal outcome.
Part B: Early Cases
Plessy v. Ferguson ~ reviled case law.
Upheld state law that required RR companies to have separate but equal cars for black and
white patrons.
o Legislature is powerless to eradicate racial instincts and social attitudes.
Legislation is a reflection of society's racial attitudes and it will change when
social attitudes change.
Neither the majority nor the dissent is making any EP argument. There is language about
substantive due process under 14A. There is language about the 13A as well. The lack of EP
argument helps explain why Strauder was not used as part of court's reasoning.
o Strauder v. West VA
Involved blacks serving on juries.
Court easily struck down the statute based on EPC of 14A.
o Court says EP means that the laws that are out there will be
applied equally to blacks and to whites.
o This statute violates EP because all white jury not likely to apply
law equally to a black defendant.
These 2 cases raise the question about whether the SC is the vanguard or rearguard of social
change.
Part C: Brown versus Board of Education
Brown v. Board of Education (1954)
Overrules Plessy on EP grounds.
o SC must consider public education in the light of its full development and its present
place in American life.
Findings with respect to separate but equal:
o Separation generates a feeling of inferiority as to status in the community.
o Effect on school segregation on children.
o There is no way to make separate and equal, because of the various intangibles.
The reasoning behind Brown is a little sketchy because it relied on sociological studies with
significant methodological flaws. But, this is the basis the court used; separate but equal
violates EPC based on scientific studies.
The law created in Brown was about public schools, but the reasoning went on to apply to
other situations, as an anti-discrimination principle. This is how Brown gets used to
concluded that segregated swimming pools are unconstitutional as well.
Per Rosen, Brown got the result right, but the reasoning is suspect and the court did not create
a useful legal test.
Bowling v. Shark
Schools in Washington D.C. segregated by race was unconstitutional.
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Professor Rosen
Because DC is not a state, the SC applied the EPC of the 5th amendment (reverse
incorporation.)
Part D: Race-Specific Classifications

Korematsu v. United States
US army order about Americans of Japanese decent to leave the west coast, which impacts
110, 000 Japanese.
o FOREST statute upheld.
Shows the emergence of modern equal protection doctrine. Pre-Brown v. Board of Ed.
This was held to have a racial classification on its face. purposeful discrimination.
Case upholds detention of Japanese Americans.
o This shows majority's deference to the military, who is presumed to be better suited to
determine who poses threat to the US, than the Supreme Court.
Legal Test
o Most rigid scrutiny. Heightened scrutiny = strict scrutiny = rigid scrutiny.
The compelling interest safety and security of United States; pressing public
necessity may justify the existence of such restrictions racial antagonism never
can.
Narrowly tailored
SC notes that the curfew the army tried first did not work.
Statute was both under-inclusive and over-inclusive (under because it did
not apply to Italian or German Americans and over because it included
loyal Japanese Americans.)
Dissent
o Justice Jackson urges a rational basis test; uses language for lower level of scrutiny.
Dissent shows much less deference to the military than the majority.
o Last of dissent is talking the language of political question doctrine. Jackson can't rely
on Baker because that case has not been decided as of yet. He used the same argument,
but the recognized vocabulary had not been created yet.
Loving v. Virginia (1967)
Anti-miscegenation statute (prevents races from intermarriage).
o VA argues that statute is not discriminatory because whites and blacks were treated
equally.
This is a statute that has a racial classification on its face.
The constitutional deficiency is that statute only kept blacks and whites from marrying.
Blacks could marry Chinese, Latinos (etc); so the statute was basically for the purity of the
white race.
o This is NOT a compelling government interest.
Invidious race discrimination heightened scrutiny
o If the statute classes by means of a racial classification, which is deemed to be an
invidious racial classification, that triggers heightened scrutiny.
Part E: Classifications that are not Race-Specific
Yick Wo
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Professor Rosen
Municipal ordinance that made it unlawful for anyone to have a Laundromat without the
application being reviewed by member of board; review also contingent upon type of
building the Laundromat was in.
Facially neutral statute that was applied discriminatorily.
o If just Chinese are denied permits, then this is not acceptable.
o The court concluded this by looking to the statute's effects. On the basis of the
discriminatory effects, a discriminatory purpose was inferred.
On the one hand a discriminatory purpose is required to get heightened scrutiny
(see Washington below), but on the other the result of Yick Wo is that if you have
a situation where there are absolutely crazy discriminatory effects (as in Yick
Wo), then a discriminatory purpose can be inferred.
o In this case, the court concluded that the law is fair on its face and impartial in
appearance, yet, if it is applied and administered in
Washington v. Davis
Principle EP case within last 30 years; still good law.
Qualifying exam for police officers; many blacks not passing the exam.
Legal Test
o Court applies: Rational Basis scrutiny
This case is different than Korematsu and Loving because those cases had statutes
with racial classifications on their face! Facial, racial classifications mean you get
But, if you have a facially neutral statute, then you get rational basis scrutiny.
If you have discriminatory effects and discriminatory purpose then you have
heightened scrutiny. The legal rule from Washington is that you need both
(discriminatory effects and discriminatory purpose) of these in order to get
The court justifies this holding on the basis of consequences. If
heightened scrutiny applies whenever there is a discriminatory impact,
then the courts are going to be reviewing a lot of cases!
o It seems strange that this argument (it's a little attenuated) is
sufficient justification for the low level rule that the court adopts
in this case.
A discriminatory purpose exists only if it can be shown that the legislature did something
only because it would have a certain discriminatory impact. The discriminatory purpose does
NOT exist if the legislature did something in spite of the fact that it would have a
discriminatory impact. That is, government indifference to discriminatory impact is not
enough; they have to be intending to target.
o Therefore, it is VERY difficult to show a discriminatory purpose on a facially neutral
statute.
McCleskey
Challenge of a death sentence given to black man who had murdered white victim.
There was good social science that showed that if he had been white, he would not have been
sentenced to death.
Court says this type of evidence does NOT trigger heightened scrutiny.
Part F: Affirmative Action
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Professor Rosen
Nowadays, there are different types of facial, racial classifications. One area in which facial, racial
classifications are used all the time: affirmative action. In this area, the racial classification is used to help
the racial group; not harm the racial group. The result facial, racial classifications are treated the same
in affirmative action cases as they were in Korematsu.
City of Richmond v. Croson
The rule in Croson is the conical rullification of what strict scrutiny means. (compelling
government interest; narrowly tailored.)
o Crosen helps us to understand what a compelling government interest is and what
qualifies as a narrowly tailored interest.
Crosen says that when we have a government scheme that classifies on race
(even if it benefits), it is subject to strict scrutiny. The content of the rule
Compelling government interest required
o A compelling government interest exists only in remedying past
discrimination that has occurred in that jurisdiction.
Court concludes NO compelling interest in this instance.
Narrowly tailored
o Court does not really identify what is narrowly-tailored; rather, it
just discusses when something is NOT narrowly tailored.
Since the city did not use a race-neutral means of
augmenting minority businesses, it cannot immediately
turn to a race-conscious means.
This whole discussion is technically dicta, since
the ordinance loses at the compelling
government interest level.
Hypothetical You are giving advice to a local councilman. The councilman wants to enact an
ordinance that sets aside 20% of all public contracting dollars for needful groups (NGs). The NGs are
defined as African-Americans and Afghani-Americans. What advice do you give?
Facial, racial classification gets strict/heightened scrutiny.
o Application of heightened scrutiny test
Compelling government interest exists only where there is a history of past racial
discrimination. This means you'd have to get rid of the Afghani requirement
because there is not a history of past discrimination against this group of people.
With respect to the African-American set-aside, you'd have to show existence of
past racial discrimination in that city, and not just on a national level.
Are the means to remedy the discrimination narrowly tailored?
If there was no race-neutral means of remedying the discrimination
applied first, then it's possible that the ordinance is not narrowly tailored.
Fullilove Case
SC upheld set-aside program that was created by Congress. Court says when Congress acts to
create such a program, they are different than the states.
o First, Congress is acting under express constitutional authorizations, under the
enforcement provisions.
o Scalia's concurring opinion says that state and federal government are not similarly
situated.
Adarand Case
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Professor Rosen
Federal set-aside program giving general contractors on government projects a financial

incentive to hire subcontractors controlled by "socially and economically disadvantaged
individuals" and government's use of race-based presumptions in identifying such
individuals.
Introduces idea of congruence states and feds will be treated the same when it comes to
equal protection. This is another example of one-size fits all; not tailoring.
Establishes easier black letter law one rule for all levels of government.
Metro Broadcasting
SC turns away from Croson and held that intermediate scrutiny applies for "benign" federal
racial classifications.
o Creates INTERMEDIATE SCRUTINY serve an important government objective
within the power of Congress and are substantially related to achievement of those
objectives.
Grutter
MI law school used a race factor in its admission process; this is a state affirmative action
program.
Invokes strict scrutiny.
Application of test:
o Compelling interest Diversity of student body. This is legitimate.
o Narrowly tailored The undergrad system was not narrowly tailored enough; it
amounted to a quota system. The law school system was narrowly tailored enough.
As long as system was not a quota system, it satisfies the narrowly tailored
element of the rule.
Under Crosen, there seems to have been a requirement to apply a race-neutral
approach first. On race-neutral approach would have been to just open up the
admissions gates.
Court holds that narrow tailoring does not require an exhaustion of all
race-neutral alternatives.
o Open admissions is not considered a possible race neutral
alternative because it would be too much to ask a school to do.
o This means that this requirement is applied more neutrally in
Grutter than it was in Croson.
Thomas' Dissent
o MI does not have an interest in maintaining a diverse student body; MI's interest is in
having a top-notch law school. If the gates were just opened up, MI might get a diverse
student body, but the cost would be the selectivity of the student body. But, he says,
selectivity is NOT a compelling government interest because many states don't even have
a law school.
o The majority and the dissent disagree on how you characterize the government interest.
Summary of Tests
Rational Basis
Scrutiny
Legitimate
Reasonable
Ends
Means
Intermediate Scrutiny
Strict Scrutiny
Important
Substantial relations
Compelling
Narrowly tailored
Part G: Gender
Pre-Craig
Craig (Statute =
Bad)
Michael M
(Statute = Good)
43
VMI (Statute =
Bad)
INS
Professor Rosen
Rational Scrutiny
Intmd Scrutiny
Strict Scrutiny
?
?
?
X (Uncertain)
X
X (?)
X (?)
Intermediate Scrutiny
Important/substantial interest?
o Actual or hypothetical?
Restriction is substantially related to that interest?
Craig v. Boren
Landmark case in gender relations; men cannot drink under 21 and women cannot under 18.
o Forest law is unconstitutional because statute is not substantially related to the govt
objective. (The statute prevents purchase but not consumption.)
Court adopts intermediate scrutiny, by relying on precedent. Yet, pre-Craig, the court was not
clear about what type of scrutiny should be applied in gender cases.
o In reality, the court creates a new standard of review in this case intermediate scrutiny
with teeth.
Legal Test
o An important government objective that is substantially related to achieving those
objectives.
Important govt interest safety; traffic safety.
Evidence shown: males 18-20 arrested for DUI 18 times more than
women and males arrested 10 times more for drunkenness.
Substantial relation to govt objective
Not satisfied because the statute only bars the purchase of alcohol, not
the consumption.
Also, the statistics are so broad and are not being applied to the specific
prohibition on 3.2%
o A significant statistical requirement seems to be part of the
rullification of Craig.
The argument you would make in this case the safety issues about
consumption are substantially related to the statute because you have to
purchase alcohol to consume it. Therefore, there is substantial connection
between what the statute prohibits and what the safety concerns are.
Michael M
Statutory rape law; women not criminally liable, men are, if they have sex with minor.
Legal Test
o Sounds a lot like rational basis. This means there is some inconsistency among Michael
M and Craig.
Purpose of statute to prevent illegitimate pregnancies.
Court agrees this is an extremely important governmental objective.
o Court is extremely deferential to the legislature in this regard
because what was really behind the government goal was
protecting women's chastity, paternalism, religious reasons (etc).
Under Michael M, hypothesized goals suffice because
no express purpose of the statute was identified.
Sufficiently related to purpose (interest)
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Professor Rosen
Court says the means are substantially related because women have a
natural deterrent (the actual pregnancy) while men do not.
By the time Michael M comes around, even conservative justices agree that intermediate
scrutiny is the appropriate standard to apply in gender cases.
United States v. VA (VMI Case)

State school for men (VMI) and if they accepted women they would have to revamp the
entire curriculum.
Adversative system you have no privacy, subjected to physical punishment (etc)
o AS has certain benefits for women and men.
o AS would have to change if women came to VMI.
o VWIL is not the same as VMI.
Forest state statute was unconstitutional because just providing academic benefits to men
is not constitutional. Rather, educational benefits have to flow equally between the genders.
Legal Test
o Intermediate "plus"
The "plus" means that the govt must have an exceedingly persuasive justification.
It is fair to say that the majority muddied the waters by adding this
additional language to the test.
Need to have ACTUAL justifications (ends), not hypothesized ones as Michael
M held. This means that the government interest that the government puts forth,
has to be an ACTUAL interest and not merely a hypothesized one.
Note difference with Michael M.
This makes it more difficult for a state to justify its interest.
Scalia's Dissent
o The important govt interest is education and the AS system will have to be changed; this
system has benefit to some men and changes will effect that education.
o To keep AS, the school must remain single-sexed and keeping school single-sexed is
substantially related to that important govt goal (education.)
o The fact that VMI and VWIL are not equal is not relevant under an intermediate scrutiny
test.
If the test is just that it just has to be substantially related to the govt interest, then
the inequality in the schools is not relevant.
Counter-Argument There is no legitimate state interest in only
providing this education to men. The education has to flow to both
genders. Under this analysis, you don't get to the means inquiry because
you don't satisfy the legitimate state interest because it is illegitimate to
give it only to men.
Nguyen v. INS
Explicit congressional gender classification statute that treated citizen mothers differently
than citizen fathers.
The statute treats men and women differently on its face. Women's kids don't have to go
through certain procedures that citizen-fathers have to go through to naturalize their kids.
Legal Test
o Intermediate scrutiny.
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Professor Rosen
Court equates "exceedingly persuasive" justification with intermediate scrutiny.

This means, the court concludes that there is no such thing as intermediate
"plus".
Government interest
o Making sure child is actually biological child of citizen
o Making sure there is a relationship between child and citizenparent that will ensure the child has an affinity/allegiance to the
United States.
This 2nd govt interest is really a hypothesized interest,
not an actual interest. The dissent points this out and the
majority does not explicitly concede this.
Substantially related
o Dissent criticizes majority for not using a gender-neutral
"means" to get to the "ends" and says on this basis, the "means"
are not substantially related to the "ends". The majority
concedes the govt could have used a gender-neutral approach,
but says that doesn't matter because the substantially related
requirement does not mean that the govt must use genderneutral means whenever possible.
The majority is apply the substantial relation test in a
pretty relaxed and deferential way.
The end result of Nguyen is that it gives a lot of deference to the government.
Dissent
o Dissent says there was a gender-neutral way of accomplishing the government's goals:
you should just have to figure out if the child is a child of a citizen.
The fact that the govt used a non gender-neutral approach means that the
"means" the govt used are not substantially related to the govt interest or "ends"
the govt was trying to achieve.
Distinguishing Nguyuen If you are asked to challenge a state gender classification, you
can distinguish Nguyen because that case was about a federal statute, dealing with
immigration, where there is history of being very deferential to Congress. So, you could
make an argument to adopt a stricter scrutiny when a state is acting, than when the federal
govt is acting. (Could be an uphill battle, but it's a powerful argument considering the topic
of immigration law.)
Part H: Education
San Antonio v. Rodriguez
EP challenge to TX scheme that sought to narrow discrepancies among spending in various
school districts.
o Education is primarily funded at locality level through property taxes. This means
wealthier areas have more money to spend on schools than less affluent areas.
Forest statute upheld.
Post-Rodriguez, heightened (strict) scrutiny applies only when the statute leads to a complete
deprivation of a good; otherwise rational basis should apply.
Court rejects strict scrutiny as the legal test.
Court says if education is a fundamental right, then so is food, shelter, etc and this could lead
to socialism. Court holds that education is NOT a fundamental right and that poor people are
not a suspect class.
o Lack of resources does not amount to a complete deprivation.
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Professor Rosen
Dissent
o Under rational basis, this statute fails because poor people do not have a choice to move
to a wealthier district.
Plyler v. Doe
TX statute that said kids of undocumented citizens could not go to public schools.
o Forest statute deemed unconstitutional.
TX interest in this statute is to save money; it is expensive to educate kids. This would cut
down on kids in TX schools.
Language of case uses "substantial goal" language instead of traditional rational basis
language of legitimate state interest.
o The court may be advocating a rational basis (+) approach as the legal test.
Important interest requires good reason to have classification scheme.
If there is a lot more at stake, then you need a substantial reason to justify the
classification scheme.
Court agrees with Rodriguez holding that education is not a fundamental right; instead, it says
education has a fundamental role in our society. While the language may be consistent with
Rodriguez, this case is actually saying things differently. The court did not treat education as
anything special in Rodriguez. It is treating education differently here.
This statue is an example of absolute deprivation and therefore could be entirely consistent
with the decision and framework put forth in Rodriguez. This would trigger heightened
scrutiny in the instant case.
Part of the motivation for the Court was that it seemed particularly draconian to shut the door
to education for these children.
Here, the court did not overrule Rodriguez, but it did tweak it a little bit because the court has
changed its view on education a little bit.
Hypothetical Assume govt scheme post Plyler that led to different allocation of educational resources.
How would you defeat the govt scheme that led to differential spending for education?
You could make this argument post-Plyler and could not make it post-Rodriguez any govt
scheme that differentially distributes education has to pass substantial goal test (substantial
govt interest) which is a more heightened test than the test that was passed in Rodriguez.
Part I: Rational Basis and Hybrid Review
When using rational basis, the court is often highly deferential to legislative judgment.
Railway Express Case
NY law that disallowed people from posting ads on their own cars. But, companies can have
cars on which they advertise.
o You could allege that the regular guy with his own car is being treated differently than the
guy that owns Domino's pizza franchise and launch and equal protection challenge. That
challenge would be based on the fact that there are two groups being created with this
classification scheme.
But, this is not a suspect classification, so you don't get heightened scrutiny. This
is not a fundamental right, so you get rational basis scrutiny.
Under rational basis, there must be a legitimate govt interest that is
rationally/reasonably pursued.
o Legitimate govt interest cleaning up Times Square
This is an example of high deference to the legislature.
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Professor Rosen
Beazer Case
Example of highly deferential case. This case shows the court essentially rubber-stamping the
decision of the legislature.
NYC Transit Authority says the no methodone uses will be hired by TA.
o The EP challenge is that methodone users are outside the hiring pool.
o Forest statute upheld.
SC says methodone users are not a suspect class, and therefore they get rational
basis review.
The legitimate interest is public safety and efficiency.
Court does not think that there is an equal protection problem here even
though there is some evidence that some methodone users will still be
good employees, in fact, as good employees as non-methodone users.
Rational basis review is very often about rubber stamping.
City of Cleburne v. Cleburne Living Center (CLC)
Required issuance of permit for operation of a group home. When the permit was denied, the
home launched an equal protection challenge the mentally challenged are being treated
differently than the non-mentally challenged.
o Nursing homes do not require permits; this means that the mentally challenged are not
being treated the same as the nursing home people.
o Forest zoning ordinance is unconstitutional
Justice White (majority) refuses to classify the mentally challenged as a suspect class and
therefore refuses to apply strict/heightened scrutiny. Majority says it's not a suspect class
because there is no long history of discrimination, as there is with blacks.
o The majority applies rational basis because that's the language the opinion uses. But, the
rhetoric seems to be saying something more.
This is how you analogize caselaw; you argue to apply the test the same way that
courts have applied it in cases that support your case and your argument.
Justice Marshall (concurring) the legal test should be strict/heightened scrutiny. Marshall
says if you actually applied rational basis (as the majority says it does), then you would have
to uphold the ordinance. If you want to strike it down, then you need to apply strict scrutiny.
Romer v. Evans
Preceded Lawrence.
The law on the chopping block is one passed by state referendum (amendment to state
constitution passed by referendum ~ example of direct democracy.)
o The amendment prohibits any local ordinances or state statutes from giving preferential
treatment or status or allow protection of special discrimination, for homosexuals.
Prior to the amendment, different localities can do what they want. Denver can
apply its traditional perspectives and Boulder can apply its more liberal
perspectives.
After the amendment, the localities cannot make their own choices. The
amendment limits local self-governance. Boulder is limited from doing what it
wants and so is Denver.
o Forest amendment to state constitution = unconstitutional.
The issue before the court is whether the will of the democratic majority is trumped by the
Constitution.
48
Professor Rosen
Court analyzes this from an EPC perspective.

Classification scheme that classifies on basis of sexual orientation gets a rational
basis review standard.
There may be some wiggle room, because the court says that this state
amendment fails even the lowest standard of review (rational basis), so it
doesn't have to definitively answer whether or not any heightened level
of scrutiny should apply.
o Amendment is simply prejudicial against a single group based on their status
o Amendment is too broad and too narrow a the same time
It identifies a group by a single trait and then denies them equal protection across
the board.
o Majority says that animus against homosexuals is bad.
o The tension between the majority and the dissent is whether the law can proscribe animus
toward a particular group that is involved in a moral issue.
o Decision is relying on a little more than rational basis.
This is similar to Cleburne where the rhetoric of the court is at variance with the
way the court is actually analyzing the statute.
Scalia's Dissent
o Passes rational basis test.
o Scalia has something going in his favor fed statutes exist that disallow bigamy (etc), so
there is a question about whether it is legitimate for the law to take a position on
controversial moral issues. Scalia says it IS legitimate for the law to take a position on
controversial moral issues.
o
49

Constitutional Law Outline

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What are the main arguments in Marbury v. Madison that established judicial review?

What are the main arguments in Marbury v. Madison that established judicial review?

What are the two main cases discussed regarding limits on judicial power?

What are the two main cases discussed regarding limits on judicial power?

Professor Rosen

Constitutional Law, Fall 2003

Part I : Authoritative Interpretations of the Constitution

Textually demonstrable constitutional commitment of the issue to a

This test (6 factors) comes from legal precedent. Historically, the

Seminole Tribe v. Florida (1996)

Part III: Distribution of National Powers

important because, as a practical matter, unforeseen situations arise, so

President's action falls into 3rd category it is only

Clinton v City of New York (1998)

U.S. v Curtiss-Wright (1936)

Bowshar v. Synar (1986)

Morrison v. Olson (1988)

Part IV: Congress' Powers

the constitution is that it must be read as a general outline

Add notes here about questions from the syllabus.

Gibbons v. Ogden (1824)

Protect instrumentalities of interstate commerce

Katzenbach v. Morgan (1966)

City of Boerne v. Flores (1997)

Addresses free exercise clause (religion).

Smith (Peote Case)

1) Congress just have to

Fails C & P test because:

The congruence and proportionality test:

Garcia (1985) ~ this is good law to date.

Part B: Limits on States

American Insurance Association v. Garamendi (2003)

Pike Balancing test: weigh these 2 factors

Kassel v. Consolidated Freightways (1981)

South-Central Timber Development v. Waunnicke

The court decides this on dormant commerce clause grounds.

Part B: Privileges and Immunities Clause of Article IV

Part VII: Citizenship, Privileges and Immunities

Saenz v. Roe (1999) the traveling right to travel

court grounded its ruling in the EPC. In Saenz, the court

Part VIII: Due Process & Unenumerated Rights

Private interest effected

Part B: Substantive Due Process

State Farm v. Campbell (2003)

State statute that allowed non-parents to petition for visitation rights.

Liberty Interest Protected liberty interest for people to make choices

Part E: Right to Die

Re: rational basis

Part D: Race-Specific Classifications

Federal set-aside program giving general contractors on government projects a financial

United States v. VA (VMI Case)

Court equates "exceedingly persuasive" justification with intermediate scrutiny.

Court analyzes this from an EPC perspective.

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