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Course: Constitutional Law Nofar
School: University of Detroit
Year: 2002
Professor: Moore
Course Outline provided by
Also available: First amendment outline.
  1. Judicial Review Art 3

    1. Jurisdiction of Sct;

      1. Original; congress may neither enlarge nor restrict Sct original jurisd. Marbury

      2. Appellate; (1) by appeal; (2) by writ (conflicts btwn 2 fed cts). Sct may review decisions of the state ct on matters of fed law (No state sovereignty over const interpretation). Martin v. Hunter’s Lessee. To make sue that the states act in conformity to the US Const. Appellate jurisdiction as authorized in Art 3. Sct can hear cases arising under C. Congress has pwr to “ordain &establish inferior cts”. Fed juris is concurrent not exclusive. State cts may share smj. Fed cts have exclusive jur re treaties; fed statutes; where fed is a party.

        1. Marbury; C DOESN’T EXPRESSLY AUTHORIZE (IMPLIED) ScT TO REVIEW ACTS OF OTHER BRANCHES. Any conflict btwn leg & Const. are judged in favor of the Const.

        2. Marbury; In the interest of uniformity, state cts must not interpret statutes, treaties or Const differently. *Courts have the power to review acts of Congress & declare them unconstitutional if they are. Legislature cannot expand Sct jurisdiction; limited by the const.

    2. Limitations on Jurisdiction;


        1. Cases & controversy art III §2 “LEGAL RELATION”

        2. Problems of judgment or prudence.

      2. Case or controversy requ; i.e. must be real & substantial dispute

        1. No advisory opinions; PROPOSED ACTION

        2. Declaratory judgments are OK

        3. Mootness; actual case or controversy; matter cant be resolved; no longer a live issue. ALREADY RESOLVED.

        4. Ripeness; *specific harm or future harm. Objective test. Claim isn’t fully developed. No real threat or claim of harm. Must not be a hypothetical threat; must have an immediate adverse affect; can’t be remote or abstract.

        5. Standing; parties must have a personal stake in the outcome of the controversy. (1)Injury in fact.; (2)causation

      3. Political Questions; JUSTICIBILITY:

        1. Nonjusticiable

          1. Baker v. Carr Issues are too fact complicated; Misapportionment of congressional members. Leg had not been rebalanced due to increase in the population. Voices of many are unheard. Unequal. A political question; lack of stds nonjusticiable p q.

            1. Insufficient/lack of judicial standards for resolving the issue at hand

            2. Disrespecting another branch (intrusion) b/c they have the power/authority to review. Assigned to another branch. Specific language of the const

            3. Separation of powers; Goldwater v Carter; effect of judicial intervention on operation of other branches

              1. Nixon v US; Separation of powers; *nonjusticiable political question. Congress has the sole power under art II to try impeachment proceedings

            4. Difficulties with enforcing


  1. Legislative Power; Art I §8 (18)

    1. Source of legislative powers:


      2. SO TO BE LEGITIMATE FED ACTION M/BE AUTHORIZED can’t enact for general welfare alone, need an enumerated pwr.

      3. Specific enumerated leg. Powers Art I §8 (express powers) Congress always need authority to enact legis

        1. Declare war / Spend/tax / Regulate commerce / Raise & support the armies

      4. Amendments; 13th, 14th, 15th, 19th, limit state power and give congress the specific authority to enforce them by appropriate legislation.

      5. Necessary & proper clause (implied powers) Art I §8 (18)

        1. McCulloh v. Maryland (ct said that gov is not limited to its express power) Creation of a Nat’l bank; *Congress has the discretion to choose to enact law based on the Necessary (m/be indispensable b4 gov can pass the law) & proper clause. Not limited to the pwrs expressly enumerated in the Constit. Marshal broad view; of congress’ powers so long as the means employed are rationally related to an enumerated power of the fed gov. Congress can preempt state laws when acting within its powers.

  2. Chadha bicameralism = art I §5 cl 2. If both houses approve then goes to pres (presentment). If he signs it the measure becomes law. If he vetoes it then it is returned to the congress and requires an affirmative vote of 2/3 majorities of both houses to become law. If either house fails to override the veto then the proposal dies.

    1. Congressional regulation of Judicial power:

      1. Ex Parte McCardle; *Congress has the express power to make exceptions to the appellate jurisdiction. However, can’t take away Sct’s “essential Function.”

      2. US v Klein; can’t tell Sct how to decide a case. Told Sct there is a presumption of disloyalty.

      3. Sheldon v Sill; Congress can’t give more jurisdiction than the Const. Allows.

    2. Commerce Power Art I §8 CL(3) means used m/be reasonable



      3. Concern with business, economic & commercial matters.

      4. Gibbons v. Ogden; BROAD VIEW; *Commerce clause gives Congress plenary power to regulate commerce BTWN 2 OR MORE STATES. Commerce includes traffic & intercourse. Boat could have caught fire & impeded interstate commerce. Regulation of navigation. Ct never said congress had exclusive power.

      5. Areas in which Congress extended its reach of Commerce Clause.

        1. National economic problem;

        2. Disfavored local activities (gambling, prostitution, distribution of unhealthy foods, mislabeled drugs,

          1. Perez v US; Criminal Statute: loan sharking; subt affect IC).

        3. Other socially undesirable activities;

          1. McClung BBQ; Heart of Atlanta; discrimination; refused to lodge blks; based on sex, age (civil rights), labor relations or wages,

          2. Hodel; activities that are harmful to the environment -strip mining;

          3. NLRB v Jones; Congress may regulate even intrastate for any reason “affecting i/c” (economic- -appreciable effect that either has a direct or indirect effect on IC) congress to regulate unfair labor practices (substantial effect on IC), latter cased turned it into affectation doctrine.

          4. Champion v. Ames; moral- federal police power case! (deemed harmful) withholding Channels problem) (lottery tickets), safety) & only limited to prohibitions in the Const.

          5. McDermott; Can regulate the use of substances that have moved through commerce. (Requiring labels stay on goods) &

          6. Sullivan- (misleading pill boxes requires warning labels)

      6. Categories of activities;

        1. The use of channels of interstate commerce (hwy, waterway, air & traffic)

        2. The instrumentalities of IC (cars, trucks, ships, planes)

        3. Local activities having a substantial relation or substantial effect on IC. Shreveport; train fares in state.

      7. The Modern Doctrine; minimum scrutiny

        1. Darby; ex of affectation doctrine like NLRB. Substantially affects IC OR appreciable effect was expanded in; regulating hours & wages of ees. *Congress can exclude any item from IC that it determines to be injurious to the public welfare. Congress can regulate whole activities even if only partially some products have an effect on IC. Look at effect not location. EEs shipped goods across state lines; ct said it was injurious to the public welfare. Must be rationally related and reasonable to meet the achieved end. WILL NOT INTRUDE INTO THE MOTIVES OR PURPOSE BEHIND THE LEG AS LONG AS THE MEANS ARE REASONABLE.

        2. Local Matter; necessary & proper clause for intra/state comm. Wickard v. Filburn. Use Cumulative economic effect/aggregate effects to determine if substantial effect of home grown wheat consumption; can directly regulate activities that it believes to have a substantial effect on commerce. Even if activity is local it may be reached by commerce if there is a substantial economic effect on i/c regardless of whether the effects is defined as direct or indirect. Consumption of wheat removed demand for other commodities.

      8. Racial Segregation & Discrim; doesn’t matter how local; discrim in a motel affected interstate travel. Heart of Atlanta Motel. *b/c Congress wants to promote IC. “If commerce feels the pinch.”

        1. *Congress must find a rational basis that the discrimination by the hotel effected IC. Hodel v. Virginia Mining.

        2. McClung; if a substantial portion of the food consumed traveled in interstate commerce. Interstate travel was directly obstructed; business in general suffered & new business refrained from establishing there as a result.

        3. **14th amd §5 authorizes Congress to enforce the amendments by appropriate legislation.


        1. US v Southeastern Underwriters; congress has authority over i/s insurance business.

      10. Limitations on Commerce Power;

        1. US v. Lopez; No Jurisdictional Nexus (to connect to IC) btwn the proscribed activity (not commercial nor does it substantially effect/relation on IC) and IC. . Criminal Statute. (Tried to make possession of a gun a crime) Exceeds Congress’ authority. The effect on IC must be substantial. INTRUDING INTO TRADITIONAL STATE FUNCTION (SCHOOL & EDUCATION)

        2. Garcia; 10th Amd considerations; power not delegated to fed gov is reserved to the states (weak limitation). reg effecting state doesn’t affect 10th but can compel state to enact & enforce fed reg programs.

        3. Morrison case. Non-economic nature (no effect on the economy) of conduct was being regulated.

        4. Challenge the law:

          1. Law if unconstitutional on its face (invalid)

          2. The law as applied in this instance is unconstitutional

          3. Beyond the scope of authority; Congress never intended implemenation/application of the law.

    3. National Taxing Power Art I §8 cl 1. Minimum scrutiny



      3. Constitutional grant &limitation:

        1. Uniformity limitation;

        2. Purpose (dominant intent/objective test) is to raise revenue—(1) pay debts; (2) provide for the cmn defense & (3) general welfare of country;

        3. Regulate (encourage/discourage) behavior; As long as the dominant intent of the tax is revenue raising it will be upheld even though the tax has a substantial regulatory effect.

      4. Congress’ act is valid if they are addressing a legitimate gov concern (min scru).

      5. Steward Machine; fed unemploy insurance tax is valid b/c $ is not earmarked for a special group but goes into the general treasury.

      6. South Dakota v. Dole; must not be coercion, but a condition, which the state is free to disregard or fulfill. Spending clause case.


        1. Is the tax acting as a license? If so is it discriminatory or burdensome? Ex local license fee is not an i/c issue.

      1. Spending Power; minimum scrutiny



        3. Modern View; INVITATION TO THE STATES

          1. Does the tp have standing? Does statute violate a specific constitutional limitation?

          2. *Only authorizes Congress to spend to induce behavior (promote the General Welfare) it desires. Doesn’t regulate behavior.

          3. Steward Machine; Federal funds come w/ strings attached. *Required participant’s states to agree to take steps to assure the money would be responsibility handled and the states were not permitted to deny unemployment comp to individuals for reasons that the Congress deemed unfair.

          4. US v. Bulter How to define general welfare? Spending pwr is an independent pwr. Don’t have to effectuate other granted pwrs. General Welfare clause is a limitation on the spending pwr. & Not an independent source of congressional pwr. *Agriculture was local and not a general welfare problem. Spending must be for the general welfare. *Ct viewed invitation as coercion.

            1. Helvering v. Davis; *Social security act was for the general welfare; Deferential review-discretion belongs to Congress unless they are clearly wrong.

            2. Statute must not call for the surrender of an essential state function.

        4. Modern Test; Use of spending pwr to regulate; Hwy funds for states that require 21 & over age to drink. South Dakota v. Dole. Spending clause initiatives are less coercive than commands that a state perform a particular act.

          1. Test; South Dakota v. Dole Hospital v. Halderman;

            1. If the receipt of federal grants is conditional, it must be unambiguous.

            2. For general welfare

            3. Conditions must be reasonable/related to a legitimate national end and can’t ask one to sacrifice a fundamental right; must be related to a federal interest.

            4. Other Constitutional provision may bar spending of federal funds.

      2. Foreign Affairs Powers;

        1. Fed gov has exclusive pwr to create treaties but must comply with Const.

      3. Intergovernmental Immunities.

        1. (DIS?) AGREEMENT AS TO RULE; GARCIA cts agree that Congress can displace state or local rules of private behavior with federal rules, they are less agreed about whether Congress can use Commerce Clause to regulate the states or to mandate to state officials that they implement federal rules.

        2. DISAGREEMENT AS TO APPLICATION; PRINTZ—whether to command states

        3. Fed reg by state;

          1. Taxation;

            1. Immunity of federal gov; fed gov is immune from state taxation and state regulation. No bright-line rule as in; McCulluch v. Maryland (Overruled). No way to draw a line to determine if a state action is immune.

          2. Regulation;

            1. Can’t require fed ee to get a state drivers license.

        4. Immunity of state gov. interference with state sovereignty

          1. Limitations:

            1. 10th amd considerations

            2. NY v US; conscripting the states into a nat’l bureaucratic army.

          2. Congress uses §5 of the 14th (equal protection & due process) as authority to enforce “appropriate” legislation on the states.

            1. Univ v. Garrett; ct said congress prohibited actions that were not necessarily unconstitutional. With respect to disability, the C bars only “irrational” discrimination. It is C’l for a state ER to conserve scares financial resources by hiring Ees who are able to use existing facilities. However, congress has the power under §5 in areas of race discrim.

          3. Alden v Maine; Congress in exercising its art I powers may not abrogate state sovereign immunity by authorizing private actions for money damages against non-consenting states in their own courts. Decided under the commerce clause

          4. Kimel v Florida Board of Regents; Congress may abrogate the states constitutional secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute. Congress can authorize a lawsuit against the state when a persons 14th amd rt is violated. Decided under the 14th amd. Modern approach; congress may regulate states according to same standards as private citizens which is valid if it affects i/c.

          5. Broad Power: to delegate legis pwr to executive officials.

            1. Garcia v SAMTA; CURRENT PRECEDENT. protection of state sovereignty lies not in judicial enforcement of the 10th amd but in the political process. State s/not participate in fed spending program if it wants to preserve sovereignty. STATES CAN BE REGULATED LIKE PRIVATE INDIVIDUALS AS ALONG AS RATIONALLY BASED & REASONABLY RELATED TO LEGITIMATE GOV END. Dissenters said use National’s balancing test.

            2. National League of Cities; Overruled by Garcia; Balancing Test from dissent; fed’s needs v. local interest (financial impact, local accountability, ect.). SAID STATES HAVE PARTIAL IMMUNITY FROM FED REG WHERE THE STATES ARE ACTING IN THEIR CAPACITY AS STATES.

            3. 4 prerequisites are necessary b4 states activity may be immune from a fed reg: Hodel;

              1. Fed statute must regulate the states as states. Regulate states directly w/o reg. priv business.

              2. Statute must address matters that are indisputably attributes to state sovereignty

              3. state compliance with the fed obligations must directly impair states ability t structure integral operations in areas of traditional state gov functions.

              4. Relation of state and fed interest must not be such that the nature of the fed interest requires state submission

            4. FERC; dissent the states cannot be conscripted into a beaurocratic arm of the gov.

            5. 2 congressional methods;

              1. Congress may attach conditions on the receipt of fed funds.

              2. Hodel; Where Congress has power under Comm. Cl to regulate an activity, Congress has the power to offer states the choice of regulating that activity according to federal standards or having state law preempted by federal regulation.

          6. Commandeering State officials (police) to enforce fed laws.

            1. Printz v. US didn’t use commerce clause. Spending issue case. This is not forcing a state to enact a law but rather it makes state enforce a law. Unfounded mandates are disfavored. Brady bill, Gov can purchase behavior but cant mandate.

          7. Fed taxation;

          8. Powell v. McCormack Qualifications for membership in the US house dictated by Art I §5.

          9. States have no authority to alter Art I §5 qualifications. States would be invading fed sphere of sovereignty.



    1. Chapter 3 Distribution of Federal Powers-Separation of Powers.



      3. Purpose; to prevent accumulation of powers in the hands of a single branch and prevent control by requiring concurrence by 3 branches for many actions.

        1. Without delegation pres cant legislate w/o congresses approval. Commander in Chief has to be used in connection to war—otherwise to remote.

      4. Separation of Powers Problems are of Three Types.

        1. Delegation; Yakus v US; Can the power be delegated? Can congress give the executive the power to make laws; adjudicate? Congress (must give adequate guidance) may decide that it cannot make the necessary detailed decisions after it has legislated an issue; it may then turn to the executive or judicial branch to implement the details. *Did president have the authority to authorize an executive order? Constitution requires bicameralism & presentment.

          1. Schecter Poultry; BROAD PWR. Upheld & congress gave no stds. Compare with Yakus. Functional approach to delegation as long as Congress has articulated an intelligible principle (Mistretta std) to guide the entity given the power. Delegate legisl authority.

          2. Mistretta; BROAD PWR. Justy trying to assist congress. Created a sentencing commission. Flexible approach. As long as no interference with another branch. Delegate rule making authority upheld.

          3. Limitation;

            1. to be delegable the pwr must not be unique; confined to Congress (EX pwr to declare war & power to impeach).

            2. Clear std; intelligible std.

        2. Impairment; impair judiciary to perform Chadha (formalistic-adhering to the C) & Morrison. US v. Nixon; Actions by one branch may disable another branch from carrying out its constitutionally assigned duties. . Nixon’s assertion of an Executive privilege impaired the cts ability to perform assigned duties.

        3. Assumption; One branch may step out of its constitutionally assigned role and assume the duties assigned to another. Youngstown. Truman assumed legislative duties/Bowsher-Congress intrudes into executive.

      5. Judicial efforts to resolve separation of powers issues:

        1. Goldwater v Carter; The courts sometimes decline to involve itself in inter-branch conflicts. Ct called it a political question.

      6. Should cts be deferential or actively supervise?

        1. Active; Youngstown-Chadha-(one house veto)-Bowsher.

        2. Deferential; Dames & Moore-Morision.

      7. Should cts decision be narrow or broad?

        1. Broad; Chadha & Browsher

        2. Narrow; Dames & Moore

      8. Judicial Theories to Separation of Powers; these are policy issues & the courts waver btwn them.

        1. Formalism; Focus is on maintaining separation of powers & insisting on supervision. Youngstown (*Ct said that the Pres pwr cant be implied from the “Commander in Chief” clause. Pres has no implied emergency powers. Rt party (legislative) doing it but doing it wrongly; s/h done it bicameralism) Chada-Bowsher

          1. Youngstown v. Sawyer; Invalid presidential order for the Sec of Comm. To take over operation of the nations steel mills. LIMITATION ON EXECUTIVE PWR. Congress has already refused to adopt this method for settling labor disputes Jackson Concurring; Presidential power fluctuates depending upon their disjunction or conjunction with those of congress. Jackson analysis:

            1. Maximum Authority; Granted by Art I. Act pursuant to express or implied congressional authorization.

            2. Zone of Twilight; Both Congress & Executive have enumerated pwrs but no side has occupied the middle ground. Uncertain area each can claim & each side has an equal opportunity to fill space. Acts in absence of congressional grant or denial of authority.

              1. Dames v. Moore; congress by its silence has approved pres action. Authorized action by inaction.

            3. Minimum Authority; (constraints spelled out in enumerated powers) Measures incompatible with express or implied will of congress Pres. May only rely on his own Const. Powers minus and Congress has over the matter.


        1. Informal-Functionalism (*Balance powers; Intermingle powers as long as no one usurps the essential functions of the other branch. Flexible approach unless there is a harm to the working branch of gov; expansive view of pwr)-(checks & balances. Deviations of power are ok as long as there is a working balance); Jackson in Youngstown; Whites (dissent in Chada & Bowsher; Rehnquist in Morrison & Dames & Moore.

      1. Control & Removal

        1. Art II – President possesses an implied power to remove officer’s incident to his art II power of appointment and to see that the laws are faithfully exercised.

        2. Myers v US; pres executive pwr includes implied pwr to remove executive officers even when their appointment was subject to the advice and consent of the senate.

        3. Humphreys; Unanimously ruled that Congress can limit the grounds for removal of FTC. Function of FTC is quasi-leg quasi-exec. (Didn’t have a lot of executive power) not a part of the executive branch. Headless 4th branch. Delegation of judicial pwrs to non-art III tribunals. Pres pwr to remove threatened independence of the FTC.

        4. Buckely v Valeo; Congress can’t appoint (art II appointment clause) officers (in general) to make laws. Deals w/ appoint. vs. Bowsher deals w/ removal. Congress created spending caps for campaigns. Look at role of officials affected. Pres can appt ambassadors, public ministers, and judges of the Sct and all other officers of the US. Congress may appt inferior officers as they think proper.

        5. Clinton v NY; Act gave pres unrestricted authority to cancel certain spending &taxing benefits measured after he has signed them into law. Line item veto act. Gave pres more power than the C gives.

        6. Yakus v. US; 1942 wartime emergency price control act; Held unconstitutional. Bicameralism & Presentment are required for Congress to alter legal rts and duties of individuals. Delegation of power was upheld. Congress gave stds.

        7. Immigration v. Chadha; One house veto provision of immigration act held unconstitutional. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked. Art I requires bicameralism.

        8. Bowsher v. Olson; REMOVAL;FORMALISTIC APPROACH. Congress tried to reserve authority that was reserved to the executive. Congress implemented its own policies &tried to retained power to remove which was an executive function. Comptroller was subject to removal by congress & given executive powers. Majority look at the task (Formalism). Dissent- looked at the impact; does it threaten balance of powers. (More executive in nature than Humpreys) once an officer is apptd the only way congress can remove him is through impeachment. Congress can’t execute laws. (Keep deficit w/in max). Look at role of officials elected.

          1. Morrison v. Olsen; Independent Council to investigate the pres & executive in lieu of Watergate (dealt w/ perjury). Removal congress provided statutory limitations on removal for good cause on inferior officers. (Functional approach). *Congress can restrict Pres ability to appoint and remove officers as long as they don’t impair the presidents ability to fulfill his art II responsibilities. Exercise of discretion by Ind. Counsel not so central to the functioning of the Executive branch to require “at will” removal (att. General could remove for “cause”). Ct looked to see if congress had taken powers that prevented the executive from doing his core duties.

            1. Inferior officers not defined in the C. (ct said they usually have limited jurisdiction & duties). Reinterprets Humphrys; says

            2. Scalia dissent; no bright-line rule as to what is purely executive left w/ ad hoc decisions. Upheld provision of Act allowing appointment of indep. To investigate high-ranking gov officials.

          2. Metropolitan Airports v. Citizens for; like Chadha, congress is trying to direct behavior through a short cut instead of through bicameralism.

        9. Chadha bicameralism = art I §7 cl 2. If both houses approve then goes to pres (presentment). If he signs it the measure becomes law. If he vetoes it then it is returned to the congress and requires an affirmative vote of 2/3 majorities of both houses to become law. If either house fails to override the veto then the proposal dies. LEGISLATIVE VETO VIOLATED C REQUIREMENTS OF SEP OF PWRS & THEREFORE IS UN-C



      1. Foreign Affairs & War Power;

        1. Marshall; the pres. Is the sole organ of the nation in its external functions, and its ole representative with foreign nations.

        2. Executive Orders; const. Sometimes grants authority

        3. Curtiss Wight; green light case; acting at peek of pwr. Foreign affairs powers are more expansive than domestic. No enumerated powers

        4. Dames & Moore v. Regan; EO implementing agreement btwn Iran & US. Green light; b/c Pres action was taken pursuant to congressional authorization it is supported by the strongest of presumptions and the widest latitude of Judicial interpretation. Yellow light turned green. No bright-line answers.

            1. Congress did not prohibit

            2. In emergency situations pres can act fast

            3. History of the pres in these situations

          1. Exec Agreement: are agreements btwn US & a foreign nation. Substitution for a treaty. Not brought to congress.

          2. Exec Order: when does pres have pwr to use? Look at the C.

          3. Single house; short cut is impermissible—Chadha bicameralism = art I §5 cl 2. If both houses approve then goes to pres (presentment). If he signs it the measure becomes law. If he vetoes it then it is returned to the congress and requires an affirmative vote of 2/3 majorities of both houses to become law. If either house fails to override the veto then the proposal dies.

          4. Concurrent resolution; pres & Congress

          5. Joint house; War Pwr Resolution law(cts view this as political Q) (pres usually ignores it—viewed as an impairment of pres Commander in Chief pwr). Congress passed law over Pres Nixon’s veto by bicameralism & presentment to the pres.


      1. Executive Privilege & immunity;

        1. US v Nixion; the pres need for secrecy needed to be balanced with the courts need for information in a criminal trial. CRIMINAL TRIAL

        2. Nixon v Fitzgerald; pres has complete immunity over civil actions $ damages.

        3. Clinton case; act occurred prior to pres taking office.








        1. Ct review state laws affecting commerce to ensure that the commerce clause is upheld. Cts police the commerce clause when the Congress has not exercised its rt to regulate. Gibbons v Ogden. Plenary pwr of congress.

        2. Purposes behind judicial supervision: active scrutiny.

          1. To uphold the “free trade” principles of the Framers

          2. To prevent frictions from developing among the states over interstate trade disputes, thus preventing “balkanization: of the country. Country is an economic union. HP Hood v Du Mond.

          3. To protest outsiders unable to protect themselves in the political process of a state.

          4. To keep the channels of commerce free so that Congress can act

        3. Cts tend to actively scrutinize state laws affecting Commerce.

          1. This means that a state often is required to supply substantial justification for a law that imposes a barrier to or burdens the flow of commerce.

          2. Some cts argue that the cts s/be more deferential to state policy choices in the absence of discrimination. Justice Rehnquist.

        4. Techniques employed by the cts;

          1. Formal techniques; judicial inquiry:

            1. Cooley; (1851) whether subject is national or local in character; if national then uniformity of the fed regulation is necessary.

            2. DiSanto; (1927) whether the burden is direct or indirect; J. Stone’s dissent said look at balancing test.

            3. The cts largely have abandoned formalism in deciding dormant commerce clause disputes.

          2. Motives inquiries;

            1. Whether the purpose of the law is to discriminate against outsiders or against i/c

            2. How does a ct know

          3. Impact analysis; covert discrimination

            1. An attempt to measure the real impact of the law “realism”.

            2. Hunt; is an example of use of impact analysis.

            3. Dean Milk; finds a law to have a discriminatory impact or effect.

          4. Balancing;

            1. (1) Purposeful discrimination is invalid unless state can show some extraordinary justification. (2) Where state regulates even handedly to effectuate a legitimate local interest & its effects on i/c are only incidental, it will be upheld unless the burdens imposed are clearly excessive in relation to the “putative” local benefits. (3) If legitimate interest is found, the burden that will be tolerated depends on the nature of the local interest & whether it could be promoted as well with a lessor impact on i/s activities. Whether the benefits of a law to a state or locality exceed the burden the law imposes on the national interest in the free flow of goods in commerce. The modern ct has employed balancing repeatedly in dormant commerce clause cases.

        5. Questions involved in dormant commerce clause cases;

          1. Is the (1) PURPOSE or object valid/legitimate? START ESSAY WITH!

            1. Legitimate purpose involves protection of health, safety or welfare, environment. Consumer protection, environmental or natural resource conservation are all valid objectives for a law. Safety is often mentioned as a compelling interest.

            2. Illegitimate interest: isolation, hoarding, protection of locals from outsiders.

              1. Economic Protectionism is likely invalid if it creates barriers to prevent nonresidents from competing. Is it a law designed to protect or prefer a state’s goods, business or consumers from competition from o/s goods & business?

              2. Hunt; where the stated purpose of the law is legit may the ct look for or infer a hidden purpose?

          2. Are the (2) MEANS chosen to accomplish the purpose reasonable?

            1. A law may be invalidated even if adopted for a valid purpose; i.e. protect the health of its citizens—if the means chosen to implement the law are unreasonable. The means must bear a reasonable relationship to that purpose.

              1. Baldwin; illegal barrier to lower out of state milk. Means case; even if the purpose is valid, the means must be reasonable in relation to the ultimate purpose.


          1. Does the law (3) DISCRIMNINATE overtly or covertly; against i/c?

            1. Overt Discrimination (presumptively unconstitutional; strict scrutiny is applied & the initial burden rests with the challenger to get the ct to apply ss and then burden shifts for state to show that the discrimination is need for an IMPORTANT state interest.). A law overtly distinguishes btwn goods, which originate w/in a state, and those originating elsewhere or btwn buyers or sellers who are residents from those who are not. This is illegal. Statute will be invalidated unless the ct concludes that the means chosen by the legislature were essential to the accomplishment of the states legitimate purpose.

              1. If the ct concludes that such a barrier was erected by a state to achieve a protectionist purpose, the law will be invalidated as impermissible against i/c.

              2. Baldwin; (discrim against o/s competition) illegally required out of state milk co to adhere to price minimums. Means case; even if the purpose is valid, the means must be reasonable in relation to the ultimate purpose. Condemns restraint on i/c for local benefit. A state cannot position itself in a position of economic isolation. This is necessary for the maintenance of the union. THIS IS STILL GOOD LAW.

              3. *Philadelphia v New Jersey; (Discrim - hoarding local resources) ct-invalidated NJ’s ban prohibiting the importation of solid waste from o/s NJ. Statute draws a line: us v them. Ct didn’t care if discrim would create overall efficiency (cst of smell, sight). Compare Philadelphia with Maine;

                1. Maine justified discrimination on commerce. Quarantine case where new fish species crowded out native species of fish no other mean available can’t inspect all fish & no testing method. Quarantines have been upheld b/c they are viewed as essential means to protect the state from the spread of disease.

              4. Welton; its invalid to require out of state merchants to obtain a license to do business in the state.

            2. Covert Discriminatory impact or effect; statute say that “anybody” selling or doing the thing.

              1. *Hunt; (local beneficiaries case) Washington apples case forbidding state grades on containers. High burdens on outsiders vs. no or low burdens on insiders. Ct looked at benefits/burdens. Ct didn’t say strict scrutiny. E.g. all sellers of a product must comply with the law regardless of their residence. In form these laws are nondiscriminatory, yet the ct says that their effect is to discriminate against interstate commerce.

              2. *Dean Milk; (discrim against o/s competition) Municipality level; Statute made it unlawful to sell milk not pasteurized w/in 5 miles of the city and to sell mild unless from a source inspected by city officials. The “practical effect” was to exclude milk produced o/s the state. ct said that a law with a discriminatory effect would be closely examined by the ct to determine whether there are “reasonable nondiscriminatory alternatives” available by which the state’s legitimate objectives could be achieved. This is active scrutiny (that there are other reasonable means to achieve the purpose which are less burdensome on i/c). State cant impose local stds more stringent tan the uniform national std.

              3. RULE; look for nondiscriminatory alternatives that are adequate to preserve state alternatives. Pike; discriminatory effects case. Look at stated objective to benefits received

              4. *Kassel v Consolidated Freightways; applied to “any” trucks—neutral on its face. Balancing the benefits to burdens test. There was no evidence to support claim that twin trailers were less safe. Justice Rehnquist; is a proponent of state sovereignty. Said the legislature should lift the burden not the cts. No discrimination so look at balancing of benefits to burdens. States are free to pass regulations restricting the use of highways and railways. But if the safety regulation will be struck down when only a marginal increase in safety causes a substantial burden on i/c.

              5. Minnesota v Clover Leaf; (discrim against o/s competition) upheld state ban on selling milk in non-returnable containers, b/c it does not on its face or in effect discriminate against i/c commerce.

          2. Do the (4) BURDENS – BALANCING

            1. *Pike v Bruce Church; Arizona required instate packing of cantaloupes. No shifting of burden-it remains with challenger Modern balancing test: that a nondiscriminatory law w/ only incidental effects on i/c s/not be invalidated unless the burdens it imposes on i/c are clearly excessive in relation to the putative local benefits of the law. The balancing test has been diminished since Scalia has joined the ct. Pike focuses on laws that are discriminatory in effect & not on its face. 4 part test:

              1. Does statute regulate even handedly with only incidental (discriminatory) effects? Overt/covert?

              2. Whether statute objective serves a legitimate local interest.

              3. Less discriminatory means (means be reasonable) available?

              4. Application of the balancing test; the benefits of the locality v the burdens of interstate commerce. #’s 3 & 4 are more active forms of scrutiny.

              5. Compare with ss, See also *Hughes v Oklahoma; (Discrim - hoarding local resources) invalidated statute seeking to preserve minnows by preventing their removal from the state. Compare w/ Hunts discriminatory effects test. Pike says that a nondiscriminatory law with only “incidental effects” on i/c should not be invalidated unless the burdens it imposes on i/c are “clearly excessive in relation to the putative local benefits” of the law.

          3. Market participants exception;

            1. Reeves; state run cement plant. State was a participant in the mkt rather than in its governmental capacity. State proprietary functions are exempt from ss scrutiny.

            2. White; required k’s in Boston to hire local workers—Upheld

            3. South-Central; invalid to require purchasers of state run timber plant to process it in Alaska. The state could use its leverage as a proprietary to exert regulatory effects in that mkt. Ct held that the state can not regulate so far down the stream of commerce that it begins to condition sales on future acts of the buyer.

              1. Exception to market participant; Camden; state preferences for local residents in the disposition of state-owned resources may be attacked under Art IV even if the market participation exception immunizes them from scrutiny under the dormant commerce clause.

          4. Taxation on i/c;

            1. Complete Auto Transit v Brady; to satisfy the cc test, the tax must not be applied to an activity with substantial nexus with the training state, must be fairly apportioned, must not discriminate against interstate commerce, and must be fairly related to the services provided by the state.

          5. Four categories to interfering with i/c;

            1. Discrimination

            2. Unduly burdens

            3. Market participants

            4. Privileges & immunities Art. IV



      1. Art IV PRIVILEGES & IMMUNITIES cts use active scrutiny of states laws as in cc cases.

        1. Art IV: The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

          1. Article only applies to natural persons who are state citizens; neither aliens nor legal persons such as corporations may rely on Art. IV.

        2. Rule; a state may confer or withhold privileges and immunities but if it confers a privilege or immunity on its own citizen it must make the privilege available to outsiders unless it has an adequate justification for not doing so. Unlike the Dormant commerce clause; the P & I only applies if there is an overt discrimination.

          1. No market participant exception as in Dormant CC cases.

          2. (1) DCC ; (2) P & I requires substantial reason; (3) Pike balancing test.

        3. Modern view is that the P & I are fundamental rights that are protected in a commercial sense. Fundamental rts are P&I that consist of interest that are fundamental to the promotion of interstate harmony or to the maintenance and well being of the nation.

          1. fst ask is the privilege is fundamental the state has to show that the discrim is justified in order for the law to be upheld. If the state can show one of three factors of justified discrim then there is a compelling state interest to trump the federal priv.

          2. Justified discrimination; requires “substantial reason” for different treatment. P & I are not absolute.

            1. A specific connection btwn the state goal & the discriminatory practice (out-of-staters are a peculiar source of evil at which the statute is aimed.

            2. Substantial relationship btwn the discriminatory practice & the problem the law addresses

            3. A lack of workable less discriminatory alternatives to achieve the states’ goal.

        4. Hicklin; Alaska hire statute-local hiring preferences. Outsiders taking jobs did not cause Alaska’s high unemployment. So a law distinguishing btwn insiders & outsiders does not bear a close or substantial relationship to the problem. There was no evidence to show that non-residences were peculiar sources of evil that the statute was enacted to remedy.

        5. Baldwin; hunting licenses; not a fundamental (basic to maintenance or well being of the union) rt. Therefore Montana can discriminate bwtn outsiders & insiders.

        6. Corfield;(1823) unlawful for anyone not an inhabitant of the state to gather claims in the states waters. Ct said the P did not have a privilege or an immunity to gather claims. It would be like granting co-tenancy in the cmn property of the state. P & I are limited to fundamental rights, which belong to citizens of free gov’s. Among these rights is the rts of citizens of one state to pass through or to reside in any other state for the purpose of trade, agriculture, and professional pursuits or otherwise; the rt to take, hold & dispose of property.

        7. United Building; (1984) Ct upheld a statute which required that at least 40% of the ee’s of contractors working on a city construction project be Camden residents. P & I clause applies to municipal residency. Ct didn’t care that some in state residents were also disadvantaged.

          1. Two step inquiry:

            1. Whether the statute burdens P & I protected by the clause

            2. if so the city/state must show a substantial reason for the different treatment


        1. Piper; restrictions on bar admissions. Refusal to admit nonresidents to practice was invalidated b/c there were other nondiscriminatory ways to assure desirable attorney behavior other than limiting admission only to residents.

        2. Friedman;

        3. Jobs are fundamental privileges for Art IV purposes and therefore laws regulating employment are subjected to strict scrutiny. However they are not so regarded for equal protection and substantive due process purposes.



      1. PREEMPTION;

        1. Under the supremacy clause, congress can make laws that preempt state laws.

        2. Three situations in which state law may be preempted:

          1. Express preemption; Shaw; fed pregnancy law preempted Cal. maternity leave law.

          2. Conflict preemption; (inconsistency); where compliance with both is physically impossible. Florida Lime.

          3. Field preemption; from an absence of clear conflict btwn fed & state “congress implied intent to occupy the entire field. No room for the state to supplement it

        3. Pacific Gas; fed interest is so dominant that it precludes state laws from conflicting with it. Conflict occurs when compliance with state & fed laws is impossible or when state law stands as an obstacle.

        4. Gade; congress intends er’s to be subject to only one set of regulations. OSHAA




      1. Generally two parts to reviewing scrutiny:

      2. Ends (reasons) must be either:

        1. Min Scr; Legitimate/rational; cts begin with the presumption that gov laws are valid. Unless there is some reason to doubt that presumption, the challenger has the burden of proving that the law is not rationally related to a legitimate gov objective. Deferential to the political branches.

        2. IS; Important/significant; gov action has a taint of presumption but not SS

        3. SS; Compelling; gov actions are presumed to be invalid.

      3. Means: must be essential & no less restrictive means available.

      4. When the ct employs SS they do so b/c of a belief that the interest interfered with is among a group of interest explicitly or implicitly protected by the Bill of Rights or is a form of liberty protected by the 5th A or the 14th A which deserves special protection from the cts.




        1. SDP of 5th – fed gov; SDP of 14th – states same test for either.

        2. Rt to privacy:

          1. Marriage

          2. Abortion/ use of contraceptives; pre-viability rule; no undue burdens

          3. Rt to vote;

          4. Rt to read obscene material in your own hm. Osborne v Ohio.

          5. Keeping extended family together; Moore.

        3. Rt to vote; relatively short residency requirements (30 days) are ok.

        4. Rt to travel:

        5. Rt to refuse medical treatment.

          1. Right to travel

          2. Privacy

          3. Vote

          4. All 1st A rts.

        6. All other cases: MS: mere rationality; rationally related to any conceivable legitimate end of gov.

        7. The purpose of due process is to ensure that when a person is deprived of life liberty or property by the gov the procedure used is fair & accurate. Due process is also used as a way to hold gov accountable for its decisions, to prevent the gov from acting arbitrarily or irrationally.

          1. Calder (1978); J. Chase introduced the concept of natural/human-justice/rights that were never conferred by the gov but which exists in man naturally. J. Iredell disagreed & said that natural rts can’t truncate the C.

        8. Economic Interests: state blue-sky laws & taxation (as long as not discriminatory).

          1. Over inclusive: broader than it needs to be. Even burdens those who don’t cause the problem to the same/higher degree as others.

          2. Under inclusive: doesn’t solve the problem. Only imposes burdens to some who cause the problem. & not others.

          3. Slaughter-House (1873); gave slaughterhouses to blks. Fst Sct case to interpret 14th A. Ct construed the 14th A narrowly & upheld the law challenged as interfering with liberty to pursue a lawful occupation.

          4. Lochner; (1905) for the next 30 yrs the ct used SS/Active/Heightened Scrutiny; prohibited bakers from working more than 60hrs. This infringed on ee’s rights to K for a job. Basis for decision: There were less restrictive means available. Gov interest was leg but means were not reasonable. Fundamental form of liberty (rt to K & privacy). Could have complained that statute was under-inclusive: regulated only the bakery profession & other professions also had long hrs. & Over-inclusive b/c some ee’s could work more than 60 hrs & not have deteriorated health. Said an occupation is an important liberty.

          5. Nebbia; (1934) Modern Rule; Deference for economic relationships; Milk & bread case; case that set std for regulating the economy. Laws must not be unreasonable, arbitrary or capricious & the means selected shall have a real & substantial relationship to the objects sought to be obtained.

            1. Modern Test; law is sustained if ends are legitimate & the means are rational./reasonable.

          6. Carolene Products; (1938) filled milk case; ct refusal to review economic statute. J Stone footnote #4.

          7. Railway Express; case was about an economic statute and not a fundamental rt. Law was neutral on its face. Law was for a legitimate purpose: that is trying to forbid advertising on trucks. Trying to protect the people. Under inclusive – this was the main problem b/c of all the distractions they are singling out a certain group. Over-inclusive b/c some advertisers may not be contributing to the problem. Ct upheld a very flawed statute. Very deferential court. Said the legislature can solve the problems little by little. Even though its under-inclusive its not void.

          8. Dolan; (handout) (takings case). The court doesn’t use the Nebbia rule. But says that the legislature has to demonstrate factual basis for restrictions & to quantify the factual basis. State may not interfer w/o compelling objectives & essential means. The means must be closely related to the legitimate ends chosen. 5th amd requires a Rough Proportionality Test btwn harm caused & the benefit obtained in addition to showing a rational NEXUS btwn legitimate ends & rational means.

          9. Zoning; usually upheld if prohibiting a nuisance. Compare w/ Moore.

          10. Lucus;

          11. Art I §10 (contracts clause); higher scrutiny. Contains a separate protection for economic relationships in the contracts clause. This clause forbids states from enacting a law “impairing the obligation of contracts”. The clause has been extended to include contracts btwn private parties. Allied; as well as contractual obligations btwn a state & others (including purchasers of state issued bonds). US Trust.

        9. Right to Life; high-speed chase that results in death violates DP only when the chase is arbitrary.

        10. Right to Vote; enumerated pwr.

          1. Krammer; any property owner can vote regarding the school board elections as long as he lives in the school district. Favored are property owners; disfavored are non-property owners/everyone else.

            1. Property ownership is used as a proxy for “a stake in election”. Use SS but not for the i/c foot doctor case. SS b/c ability to vote is a fundamental right.

        11. PRIVACY/Non-Economic Rights & Substantive Due Process. PRIVACY-un-enumerated

          1. Skinner v Oklahoma; (1942) state mandated sterilization of certain criminals b/c criminal behavior was inherited. White-collar crime was not included. Ct invalidates law b/c the right to procreate is a fundamental right. Favored white-collar crimes; disfavored nonwhite collar crimes. Discrimination case also.

          2. Griswold; (1965) ct uses SS. law said the no one can aid or abbet the use of contraceptives (focus is on married couples-to prevent adultery & concealment of pregnancy). Rt to privacy is a peripheral right flowing from a penumbra of several other enumerated rights. Not-articulated rts. Statute prevented aid in providing contraception; there are other less burdensome means available by which the state’s objective could be achieved that are less burdensome or intrusive to protected rights. TC said no case in controversy b/c future harm. Non-justiciability. CT of App – P’s forced the gov to prosecute so there w/b a case in controversy.

            1. Penumbras Rights: implied

              1. 1st A rt to association./speech/religion.

              2. 3rd A prohibition against peace-time quartering of soldiers

              3. 4th A right against unreasonable searches and seizures

              4. 5th A self incrimination clause

              5. 9th A reservation to the people of non-enumerated rights.

            2. Opinions:

              1. J. Black & Stuart Dissent; said that the C does not protect privacy, should only uphold those liberties provided in the Bill of Rights. Black fears the return of subjectivity. Justicability: congress can make an amendment to the C. what constitutes a fundamental value is indeterminable.

              2. J. White Concurrence: s/h used DP.

              3. J. Goldberg Concurrence; there are other rights separate from the Bill of Rights.

              4. J. Harlan Concurrence; s/h looked at DP that this law is violative of basic values implicit in the concept of ordered liberty. b/c liberty does not have a fixed definition, it is fluid & changing

          3. Moore; Privacy interest extends to blood family; not non-blood frat family. Not-articulated rts. Zoning ordinance-prohibited extended family from living together. Family is a selective liberty interest. Dissent:

            1. Belle Terre v Borras; FRAT BOYS-students were prohibited from living together; no special protection b/c of economic & social statute was reasonably related to leg interest.

          4. Michael H v Gerald D; woman married to one man & living w/ another. Non-husband was the father by blood test. Statute said there is a presumption that child is from the marriage. Privacy issue. Ct said fundamental right b/c:

            1. history & tradition ; i.e. need of protection. No history of need.

            2. Immutable characteristics. None

            3. Stereotypes

            4. Ability (or lack of it) to participate in the political process.

          5. Bowers; statute criminalizes sodomy. Narrow focus-no fundamental right to engage in sodomy. Law based on morality. Dissent said there is a private rt to be left alone / private sphere of individual liberty










        1. Protects taking of life liberty & property w/o DP, requires an opportunity to object to a decision maker; judge.


        1. Requires individualized adjudication-Only permitted if there is a deprivation of life, liberty or property.

        2. Requires intentional deprivation. Negligence is not enough.

          1. Deprivation occurs when there is no remedy or inadequate remedies available.

        3. DP does not create property or liberty interest; but the purpose is to provide procedural safeguards against deprivation.

          1. DP Protects fundamental rts. Ex speech at work; property entitlement,

          2. Ordinary Liberties; MS; deprivation is C’l if rationally necessary to the public good

          3. Selected Liberties; SS; deprivation is C’l if extraordinary justification

        4. 1st Q. in all procedural due process claims is what fundamental right is being deprived? Property or liberty. If not then failure to state a claim upon which relief can be granted. FRCP 12(b)6.

        5. 2nd Q: how severe is the loss?

        6. 3rd Q: adequacy of procedures used; what procedures were lacking; ex an attorney or hearing. Were decision makers not impartial?

        7. 4th Q: how costly will it be for gov to ad the procedure? Balancing test.

        8. Cases:

          1. Casey;

          2. Palko; definition of a fundamental right.

          3. Adamson; whether the procedure in question was “fundamental” or necessary to a scheme of ordered liberty.”

          4. Property Interest:

            1. Goldberg; permanent loss of welfare benefits & lack of a prior oral hearing; ct used an open-ended balancing approach to decide due process, balancing the individual’s interest against the gov interest. One has a property interest in welfare benefits if he previously meets the statutory requirements. Requires a hearing b4 prior termination of benefits. Counsel need not be provided but is permitted.

            2. Roth; teacher had a unilateral hope of K renewal b/c under the terms of the K it was single yr. Defined liberty to include “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

              1. Modern rule: consists of 2 parts:

                1. What is the “nature” of the interest affected by the gov?

                2. Did the person suffering a loss of liberty or property receive the due process he was due.

            3. Mathews v Eldridge; no prior evidentiary hearing is required for termination of disability benefits as long as there is a prior notice to the recipient and an opportunity to respond in writing, and a subsequent evidentiary hearing. Disability benefits are not based on financial need, as in welfare benefits therefore are not vital. 3-part test to determine fair process:

              1. Seriousnessweight of the individual’s interest, is the loss permanent or temporary?

              2. Adequacy – likelihood of error & whether additional procedures would enhance the accuracy of decisions; what is lacking in the process (timing? Characteristics?)

              3. Cost – weight of the gov interest, how costly would it be to rectify that deficiency?

            4. Employment: if ee can’t be removed w/o “cause” (vs. at will ee) then he must be given notice a pre-termination opportunity to respond to the charges must be given.

            5. Public Education-disciplinary suspension; ``if suspension is 10 days or less then no evidentiary hearing is required. If more than 10 days then notice is required and an opportunity to respond.

            6. Public Education-academic suspension: no prior evidentiary hearing is required.

            7. Lujan; (2001) gov w/h $ as a penalty for unsatisfactory job performance. CT said that P was protected by his rt to sue in ct.

            8. Use restrictions;

              1. Denial of all economic value of land = a taking.

              2. Decreasing economic value = Balancing test. (1) Social goals (2) diminution of value (3) owner’s reasonable expectation regarding the property.

          5. Liberty Interest:

            1. Liberty is a loss of a significant freedom.

            2. or is denied freedom provided under the C.

            3. Paul; is an example of the gov inflicting damage to reputation on P by including him in a flyer containing a list of active shoplifters. The dissenters viewed this as a deprivation of liberty, but the majority concluded that an interest in reputation is neither liberty nor property.

            4. Meachum; prisoners interest in remaining in a minimum security setting was a “unilateral expectation” b/c of the discretionary authority the






        1. Limited to state action.

        2. Fundamental rt or suspect classification involved then use SS.

        3. P< = >S; P is the purpose & S is the statute

          1. Over inclusive: broader than it needs to be. Disfavored & favored groups.

          2. Under inclusive: doesn’t solve the problem.

        4. EP = all those similarly situated will be treated alike.

        5. Traditional approach is deference. (Rational basis). To include someone in a disfavored group is ok if legitimate means are reasonable.

          1. Economic Regulatory Statute:

            1. Railway Express v NY; (REA) purpose (health, welfare, safety) and whether the legislative statute has a reasonable (lose) connection to that purpose. Law was neutral on its face. Selling space for advertisers. The reg/law had no relation to traffic since violation turns not on the kind of advertisement but on whose trucks. WOULD YOU GET A DIFFERENT OUTCOME UNDER A DUE PROCESS ANALYSIS?

              1. Exception to deference Rule: when deference has some bite.

                1. NY Transit v Beazer; (1979); the rationality test was applied to exclude methadone users from working for the transit authority b/c this group may have a negitive impact on the health of the public.

                2. USDA v Moreno; (1973) hippe food stamp case; the rational basis is not toothless here. The case is an exception b/c it is an arbitrary discrimination. No legitimate basis for the law.

            2. Cleburne; J. Marshall concurring suggests that cts should sometimes use an IS (substantially related to gov’s purpose). Discussion as to what s/b considered suspect. Group home for the mentally ill. Is mental retardation suspect?

              1. J. Stevens; concurring: look at the relevance of the policy

              2. J. Marshal; dissent; thinks ct is using SS; he would use a flexible approach to assess SS or IS.

        6. Suspect Classifications: or fundamental rights is involved: usually evidenced by oppression so use SS.

          1. RACE (affirmative action is an exception to this) & NATIONAL ORIGIN: 1st consider EP v DP

            1. Legislation uses factors such as age, sex, residence & citizenship in determining how to allocate benefits & burdens.

            2. Strauder; (1880) exclusion of blacks from jury duty; jury duty is a legal right and race is a suspect classification. Facially discriminatory.

            3. Plessy; (1896) P was 7/8’s white. Ct said not a violation to EP. Ct said that legislation is impossible to eradicate racial instinct. Upheld law requiring railway cars to have separate but equal accommodations. J. Harlan’s Dissent said that the C is “colorblind”.

            4. Romer; In Supplement.

            5. Korematsu; (1944) American citizen of Japanese descent convicted of violating curfew. Upheld, rigid scrutiny. The exclusion is valid. Not based on hostility of race but b/c of war with Japan, invasion, espionage, congress & military war power judgment. Law was both under-inclusive (Germans & Italians were not included) & over-inclusive (painted all Jap’s as disloyal). Ct used language of SS but deferred to the military authority. Only case that applied SS and is still upheld.

            6. Brown v Board;(1954) Unanimously invalidated racist segregation. Overruled Plessy; Ct said that separation despite equal facilities deprives children of equal education opportunity. Education is a Fundamental right to which equal protection clause forbade racial discrimination. Ct looks beyond the text of the C & looks to precedent. Children assigned to schools according to race.

            7. Bolling v Sharpe; (1954) 5th amendment does not include equal protection right. Ct imputes equal protection b/c 5th & 14th amd serve the same purpose.

            8. Loving; (1967) law forbids mixed marriages; restriction of liberty right to marry. Legitimate purpose but the ct used SS b/c less discriminatory ways c/be used. Means chosen to protect children are “arbitrary”. Prevent the mongrel race. Ct looked behind the stated purpose of the statute.

        7. De Jure & De Facto Discrimination=(Intent & effect must prove intent)? 2nd consider De J v De F

          1. Discrimination:

            1. Overt; discrimination on its face. Strauder

            2. Neutral statute w/ unequal application, applied with an evil eye (Yick Yo).

            3. Neutral Statute w/ discriminatory impact or effect. Washington NO INTENT

          2. Discriminatory application

            1. Yick Yo;(1886) (Chinese laundry case) claim of unequal application. Facially neutral law applied with an evil hand & eye violated equal protection. . Statute was determined to involve racial classifications.

          3. Leading discriminatory effect/motive case.

            1. Washington; (1976) Police dept used a written test as criteria for hiring officers. Minority’s consistently scored lower. Sct upheld test despite disproportionate impact. Disproportionate impact alone is not sufficient to establish prima facie case requiring burden of justification to shift to the accused. Purpose & intent to discriminate necessary to find violation of EP. Discriminatory purpose may be inferred from all the relevant facts. ct said that proof of discriminatory effect or impact was not sufficient to obtain SS. To obtain SS in a case involving a claim of racial discrimination, a claimant must prove that the government had a discriminatory “intent”.

            2. Feeny;

            3. Arlington Heights; (1977) village refusal to rezone land to accommodate construction of multiple family integrated housing is valid. Absent stark patterns of discrimination Yick Wo. Impact alone is not determinative Washington v Davis. Other relevant evidence: historical background (legislative & administrative) specific sequence of events, substantive departures from usual procedures / factor considerations. Purpose was invidious. P failed to show evidence of an inference of invidious purpose/discrimination.

              1. P must show:

                1. Look at effect (harm on minority)

                2. Must prove intent to shift burden. Via evidence. Only if ct is persuaded will ct use SS. If gender policy not SS.

        8. Affirmative action:

          1. DeFunis; discrimination was a moot issue b/c applicant was allowed in school.

          2. Bakke; (1995) affirmative action; can race be considered. Any racial classification is suspect. Med school reserved 16 out of 100 places for minorities. Majority held admissions program invalid. J. Powell – said the race could be used as a means of achieving diversity among students. SS (1) Constitutionally permissible & substantial purpose; (2) use of racial classification necessary to accomplish purpose; essential, compelling.


          1. Fullilove; Federal Minority Business Enterprise set aside program is OK.

          2. Richman; City MBE set-aside program Invalid. No demonstrated compelling interest – no proof of discrimination in city. City’s true purpose questioned b/c it adapted exact Fullilove language without detailing history of discrimination in that city.

          3. Metro Broadcasting; OVERRULLED. Upheld Fcc affirmative action programs against 5th A challenge. Dissent (Kennedy w/ Scalia). From “separate but equal” to “equal but benign”. Ct used intermediate scrutiny.

          4. Adarand; (1995) affirmative action; can race be considered. O’Conner overruled Metro Broadcasting & held that *all governmental action favoring minorities is subject to SS b/c it is impossible to determine whether the racial classification is benign or means to discriminate negatively.

            1. Concurring:

              1. Scalia; individuals who have been wronged by unlawful discrimination s/ be made whole, but the concept of a creditor and debtor race is alien to the C. J. Scalia disapproving the use of racial “remedies” & says, “We are just one race here-American”.

              2. Thomas; gov sponsored racial discrim based on benign prejudice is just as noxious as discrim. Inspired by malicious prejudice. J. Thomas says “racial paternalism…can be as poisonous and pernicious as any other form of discrimination”.

            2. Dissent:

              1. Stevens: fundamentally different than a majority effort to exclude minorities. J Stevens states that” there is no moral or constitutional equivalence btwn a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination…btwn a “no trespassing sign and a welcome format”.

              2. Souter; stare decisis compels application of Fullilove. (Statutes are better tailored)

              3. Ginsburg; carefully designed affirmative action program may help realize, not inhibit, 14th A aims of equal protection.

          5. Alienage:

            1. Graham v Richardson; (1971); ct said that the states c/not, w/o substantial justification, deny welfare benefits to non-citizens lawfully present in this country. Classifications based on race are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of “discrete & insular minorities for whom such heightened judicial solicitude is appropriate.”

            2. Exception: states are allowed to bar non-citizens from certain state positions that are involved in the governance of the state as a political entity.

              1. Foley v Connelie;; (1978) the ct upheld a state law excluding non-citizens from the state police force. This is not an economic statute but rather is rationally related to reserving sovereign functions for citizens.

        1. Quasi – suspect classifications: important gov. interest must be “genuine.” – not hypothetical

          1. Gender:

            1. US v Virginia; gov. must prove that an “exceedingly persuasive justification in order to show that gender discrimination is substantially related to an important gov. interest.

            2. Kirchberg v Feenstra; gender classifications that intentionally discriminate against women will generally be invalid under the intermediate std b/c the gov is unable to show the “exceedingly persuasive justification” that is needed.

          2. Illegitimacy; (non-marital children) std of review is substantially related.

            1. Clark v Jeter; man dies in testate & heirs come forward.

            2. Gomez v Perez; state must provide non-marital children a meaningful opportunity to establish paternity.

        2. Non-suspect classifications: *******narrowly tailored doesn’t apply t to MS. Only SS

          1. Age:

            1. Mass Board of Retirement v Murgia; upheld mandatory retirement. Elderly are not a suspect class.

          2. Wealth; is not suspect.

            1. Harper v Virgina; poll tax to vote. Disfavored poor; favored wealthy. What about literacy? Apply it with an evil eye & unequal hand. Disproportionate effect was intended. Adverse effect on minorities & was done with the intent to discriminate.

            2. No fundamental rt to have the state pay for abortion.

          3. Poverty:

          4. Mental retardation:

            1. Cleburene; (1985) Texas city zoning would not allow for group home for the mentally retarded but allowed all other types of group homes. Although this case treats mentally retarded worse than other classifications; ct is not willing to extend suspect classifications to this new group b/c of the political process. However, under deference & rationality basis of scrutiny, the policy fails b/c it is wholly arbitrary.

              1. Ct says MR is not a uniform class with immutable traits and it is relevant for social security benefits to classify those that fall in this category. This group has access to the political process. If SS were used then would strip away all benefits for disabled.

              2. What makes someone suspect?

                1. History of discrimination

                2. Immutable characteristics.

                3. Stereotypes

                4. Ability (or lack of it) to participate in the political process.



      1. STATE ACTION:

        1. State action has been broadened by:

          1. Public functions doctrine

          2. State coercion or extreme encouragement

          3. Inextricable entanglement

        2. Marsh v Alabama; (1946) company owned town. Co. is functioning as a public entity so they cant discriminate against religion. This is a state actor b/c the purpose was to serve a public function & benefit the public.

        3. Hugens; a privately owned shopping ctr c/be treated as public when the property takes on attributes of a town.

        4. Evans v Newton;(1966) senator-devised land to be used by whites only. Ct said that parks are an integral part of city’s activities &is public domain.

        5. Jackson v Metro Edison; (1974) power co did not give choice b4 terminating service. There was NO STATE ACTION action b/c utility service was not an essential traditional function reserved by the states.

        6. Rendall-Baker; (1982) decision of private school to discharge teachers was not a state action even though the school got most of its funds from the state. Ct used the symbiotic method or review. NO STATE ACTION.

        7. Lebron v Nat’l Railroad; D refused to rent a billboard space to P. P claim Amtrak was a gov agency. Ct said that Amtrak was created to further gov objectives& gov retained permanent authority to appoint BOD

        8. Brentwood Academy; (2001); Brentwood School sued D. Ct said there was pervasive entwinement of state school officials in the D’s structure.














































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