Con Law
01/09/06
Constitution – final authority of US law
1. Primacy
2. Centrality – creates, defines our federal gov’t
a. Also creates our federalism
i. Allocates overall gov’t responsibility b/w state and fed gov’t
b. Is the chief protector of our liberty rights against gov’t intrusion
i. Freedom of press, speech, etc
c. Reflects our own developing social ideals
i. We use con law as the place to discuss how we should treat each
other, our beliefs, etc
Whenever a document is purported as the final authority, there are disagreements on
authority and interpretation
Should the judiciary have the final word on how the constitution is to be interpreted?
Is the framers’ intent important?
1. if their intent was to be taken into consideration, why did they keep their
deliberation secret?
There is also the idea of the unwritten constitution
1. We hold these truths to be ‘self-evident’
2. There are some liberties that should never be taken away, by any judicial decision
of gov’t action
Art I: federal legislative branch
Art II: executive branch
Art III: judicial branch
Art IV: relationship b/w fed gov’t and states
Art V: amendment clause
Art VI: miscellaneous laws
Art VII: ratification (?)
Marbury v. Madison: decided that the Supreme Court had final interpretation of the
constitution
Articles of Confederation
1. By 1781, after Yorktown, that the colonies of the US had some sort of
independence.
2. They joined the states together for relatively limited purposes:
a. Collective national defense
b. Resolving interstate disputes
c. Foreign policy (also w/ Indian tribes)
d. Power of coinage
e. Post office
i. Why post office?
1. uniformity – same postage, etc
a. getting letters across state borders is arguably a
national responsibility
3. Shortcomings of the Articles
a. Lack of central taxation
i. Why tax? The U.S. had just fought a very expensive war on debt
ii. Could ask states for revenue (taxes), but citizens of those states
didn’t always pay taxes
1. there was no coercive power against the states (can’t put
them into jail)
iii. Why didn’t states pay? They were broke
iv. Also, coining paper money did not sufficiently pay the debt
1. wasn’t backed up by anything
b. Lack of power to regulate interstate commerce
i. There was all sorts of rivalry among the states (fees against other
states’ products, etc)
1. there were fierce self-protecting state product regulations
c. No real executive authority
i. There was a rotating congressional executive
ii. There needed to be some single mind with some permanence
d. No real judicial authority
i. What’s wrong w/ deciding everything by Congress?
1. The states must have unanimously agreed upon anything
for it to be validated
e. Lack of coercive enforcement
i. Against states or individuals
In light of these shortcomings, there was the notion that we should modify the document.
1. Some even wanted to completely start over – get rid of the articles
a. They wanted to remedy and change all of the above shortcomings
i. Who would object to changes? (there had been 7 yrs of evidence
that system didn’t work)
1. There had just been a war against a sovereign, establishing
the people as the sovereign. They didn’t like the idea of a
central gov’t
a. Seemed to some as a betrayal of everything they
had fought for
b. Anti-federalist view
i. Smaller states may have less power
ii. Runs against the ideas of the revolution
IDEAS of the Anti-federalists (they were ‘republicans’)
1. “Civic Virtue” as an animated principle
a. to put the general public good above your private interest
i. the objective is to create a sense of common good over individual
good
1. this will motivate people to make up a “good” gov’t
ii. Education – will obviously be for education b/c it creates a greater
good
iii. Commerce/trade? – regulating commerce seems to be against this
type of gov’t
iv. Small gov’t better reflects the values and allows for direct
participation
The constitutional document is the product of 100s of years of political thought.
Con Law
01/10/06
The proposals to address the problems w/ the Articles of Confed apparently contradicted
the very reason for the revolution – the distant, central gov’t.
Anti-federalists: wanted to have as much of a pure democracy as possible (as few
representatives).
1. Also wanted to discourage great wealth
Madison: one of the driving forces of the constitution
2 threats:
1. Threats from below (Federalist No. 10)
a. From the people
2. Threats from above (Federalist No. 51)
a. From the institution
Federalist No. 10
Main problem – factions:
1. a number of citizens, majority OR minority, who are united and actuated by some
common impulse of passion/interest adverse to rights of other citizens, or to the
permanent and aggregate interests of the community (see pg. 15).
a. Tests of factions:
i. Is adverse to the rights of other citizens
ii. Adverse to the long-range interests of the country
b. Short list from pg. 18 of factionary interests
i. Rage for paper money
ii. Abolition of debts
iii. Equal division of property
How to deal with factions, according to the anti-federalists - rely on the civic virtue
Reasons for political differences:
1. Property interests
a. Differences in ability and foresight lead to differences in amount of
property
2. We reason differently
3. We follow different leaders
Two ways to deal with factions:
1. remove its causes
a. get rid of liberty
i. cannot do this: remedy is much worse than disease (liberty is
essential to political life)
b. give everyone the same opinions, passions, and interests
2. control its effects
a. if all we have is a minority faction, democracy will handle it
b. if it is a majority:
i. the larger the gov’t, the more heterogeneous the gov’t
1. thus, the less likely there will be a majority faction
a. anything in a national gov’t that reaches the minds
of the Georgian and the New Hampshire citizen will
be in the nation’s best interest
ii. representatives should be wise and filter ideas
1. with a larger nation, there is a greater chance that “fine
persons” will be available to become representatives
Madison’s argument: preservation against faction is better served by a larger
heterogeneous nation using representatives than by a smaller one.
Federalist No. 51
Basic strategy for protecting from governmental abuses of power:
1. Separation of powers
a. Deliberately fragment sovereign power of the gov’t
i. Must build it so that people in Congress, i.e., have a loyalty to
Congress (AND an ambition to rise higher in that branch)
1. ambition is set against ambition
ii. there will not be action unless there is concert – unless all three
branches agree
2. Checks & Balances
a. Gives additional power to each branch that allows it to trip-up other
branches – basically some sort of approval
i. Examples:
1. nomination of Supreme Court justices w/ senate approval
2. executive veto power over Congress
3. impeachment
Because power is so diffuse, anti-federalists need not be so worried.
Is diffuse power a good thing?
1. For reasons above, yes.
2. HOWEVER, there is inefficiency and delay
a. The inefficiencies help keep the status quo, which the already wealthy
prefer
b. Furthermore, inefficiencies correspond with the idea that the citizens don’t
want a monarch or an overarching super-strong central gov’t
Is the President Commander in Chief of the Armed forces or of the country as a whole?
Con Law
01/11/06
Marbury v. Madison (pg. 29)
Under the alien and sedition acts, newspapers who were critical of the president were
prosecuted.
 There was a bitter conflict at this point
By election of 1800, there was for the first time a strong opposition party, from which
Jefferson was elected
 Many thought this was the end of country
Timeline
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


Nov 1800
o National election
o Jefferson – popular vote
o Electoral tie:
 Jefferson (D/R)
 Aaron Burr (F)
Nov 12
o Chief Justice Ellsworth resigns
Jan 20, 1801
o Senate confirms Adams’ nomination for Chief Justice (Marshall)
Feb 4
o Marshall takes oath as Ch. J (holds over as Sec. State)
Feb 13




o Federalist Congress passes Circuit Court Act (Sup Ct drops from 6 to 5,
justices won’t ride circuit; 16 new circuit
Feb 17
o House of Rep goes for Jefferson (wins)
March 2
o Senate confirms Adams’ nominees for new circuit position
March 3
o Senate confirms Adams’ Justices of the Peace – 38 commissions delivered
March 4
o Jefferson inaugurated
Adams appointed Marshall as Ch. J (he was previously Sec. Of State)
Marbury appointed as Justice of the Peace by Adams, commission never delivered by
Madison (Jefferson’s appointee as new Sec of State)
3 Questions:
1. Has Marbury right to commission (justice of the peace)?
2. If so, and right has been violated, do laws afford a remedy?
3. If so, is it a mandamus from Supreme Court?
Why do we go through these steps if the writ of mandamus was inappropriate?
 He need only rule if the Act was unconstitutional if there was a violated right with
a remedy available.
o If there was a way to decide the case w/o ruling the Act unconstitutional,
he should do so.
Answer to Question 1:
 Argument against the right to the commission – it was not delivered
o He could also say that the commission was revocable
 Argument for – it was signed by Pres, confirmed by Senate, and seal was affixed
by Sec of State.
o The signature completed the appointment
Answer to Question 2:
 Although the acts of an officer, as an officer, cannot be examinable by the courts,
when the legislature imposes upon that officer other duties, when the rights of
individuals are dependent on the performance of those acts, he cannot sport away
the vested rights of others.
 When is the executive not answerable to the courts?
o When the President is simply acting upon his discretion w/o anything
imposed upon him by legislature
 I.e. President not being hard on FDA
 Pardoning, Veto, etc
 There is a Congressional check on Veto, but no judicial
check
 When is Pres answerable to courts?
o When the act is an obligatory one.
Answer to Question 3:
Writ of Mandamus – an order from the court to force an officer to complete an
obligatory duty.
 Is it appropriate to direct Mandamus to Sec. Of State?
o Yes… according to the Judiciary Act
 Marshall could have taken several ways out
 Could have used Art III, section 2, subsection 2, the last
sentence, saying that this was a Congressional exception
 Could also have used the Act, and interpreted it as only
giving writs of mandamus as an appellate matter, which
would not violate Const AND would dismiss case.
How does Marshall argue for judicial review?
 Looks at method of constitutionalism
o What role does the constitution play in the creation of our Country’s laws?
 We are a country that committed ourselves to a certain type of rule
of law – constitutional.
 It was not a creation of the framers, but rather the people.
 If the legislature fails to follow the people’s rules (Const), and the
matter comes before the Courts, the Courts must follow the
people’s rules over any repugnant Congressional action.
 COUNTERARGUMENT: who else would make the people’s rules
but the legislature – representatives of the people.
 Furthermore, where in the Const does it say that the
Judicial branch has greater power to interpret Const than
Legis?
 And what about Art III? It says that the Judicial Power shall extend to all cases
arising under the Constitution
o Shouldn’t the Sup Ct look at the Const in cases which rise under it?
Look at bases for judicial review on pg. 39.
“It is emphatically the province and duty of the judicial department to say what the law
is.”
Supreme Court rules in favor for Exec branch, but also rules that Sup court has power
over it.
 There’s not much Exec can do here – even if it delivers commission the Sup Ct’s
power has already been set
Supreme Court also refuses to accept Jurisdiction conferred upon it by Legislature by
ruling the Act unconstitutional.
 Not much Legislature can do either – “please take this jurisdiction?”
In Both instances, Judicial branch has extended its power.
Con Law
01/12/06
Why is the law of old people better than today?
When ppl commit themselves to a written const, and ratified it, it becomes a limit on
themselves in the future.
 It is one that judges must observe and enforce
o In a case where the const must be addressed
Reasons for judicial review
 Oath clause – why is it that the judges’ oath clause permits them to override the
legislature, who also take oaths?
 Supremacy clause – Const is supreme over laws and treaties and others…
o Thus, a statute must be subject to Const
 Although, presumably legislature had determined that statute was
const already
Marshall was acting in good faith, but as a federalist – we really need a strong central
gov’t w/ a const that acts to constrain the branches.
Countermajoritarian difficulty:
 How is it that life-tenured judges are able to overthrow the will of the people
o i.e. Congress passes statute, Sup Ct deems it unconstitutional (even if
Congress tries to re-enact it)
we did not create a pure democracy – judicial review is a check
 We have strapped ourselves to a const. “mast,” and no matter what comes we
continue to adhere to it
There are lots of easy cases – age limits for president, natural born citizens, etc
 Problem: most of the cases that come before the Sup Ct are not that simple
Where do you go to determine interpretation of Const?
 Framers intent
o If it is not clear on the face of the text on what it is about, look at the intent
of the framers of the const and hold ourselves to it
 If we are even able to do that: raises the problem of determining
the intent
Bush Sr told press jan 11, 1991, that he had been assured by a number of lawyers that any
action taken in Kuwait against Iraq would be const whether or not Congress declared war
by passing a resolution.
 Question today: did he have unilateral power to take actions against Iraq?
What are the sources used to answer this question?
1. The text of the Const
2.
3.
4.
5.
6.
7.
8.
9.
The intent of the framers
Tradition of Congressional and executive action
Precedents – decided cases of the court
Treaties – international law
Unwritten rights of people
Social policy
Morality and justice
President’s discretion – exigency
President’s side – he doesn’t need Congress’s permission to go to war
1. Art II, section 2: President shall be commander in chief of the army and Navy…
a. How does this help?
i. Since he is Commander in Chief, he should have final say on
where troops go
b. Counter: Simply being commander doesn’t confer decision making
power?
i. Better counter: Const gives Congress power to declare war (Art I,
Section 8, clause 11)
1. also, 12-16 bear on Congress’s power over military
Declaring vs. making war:
1. Did Madison, by keeping this conversation secret for 50 years, really mean for it
to be used in determining how judges should interpret the const?
2. Why should Pres be able to “make war,” to repel attacks and respond?
a. And how is it different than attacking?
b. EXIGENCY
Art I says legislative powers, herein granted
Whereas Art II says the executive power
What about treaties?
1. They are approved by the Senate – is that enough?
a. What about secret treaties, known to heads of committees, but that nobody
voted on
i. May Pres take action on a secret treaty?
ii. Or, if he started to, could the Congress ask the court to enjoin the
action as in Marbury, since the power to declare war is reserved
in Congress?
IT ALL DEPENDS:
 What you mean by declare/make; by Congress (just senate); etc
Precedent – Abe Lincoln blockading forts, allowed by courts. Is this something that
should be taken seriously in 2006?
Should there be, judicially, some order of these methods of interpretation? Should one be
more or less important than others?
 Clearly text is most important
1. should justices agree on which methods of interpretation is most important
ahead of time?
Con Law
01/17/06
Marbury: created a horizontal supremacy
Leg
Jud
Exec
Martin sets up something more like a horizontal supremacy
Fletcher v. Peck (1810)
First leg of GA has granted some of its land away via statute
Second leg determines it was fraud and corruption to make those first grants.
 So they wanted them back
Problem was, some of those grants had been resold
 Bona Fide purchase problem
Federal court ultimately decided that it had power to look at GA statute and render it
invalid
 Story determined that Art I, §10 went against the statute
o That states may not pass law impairing the obligation of contracts
Martin v. Hunter’s Lessee (1816)(p. 51)(Story)
Lord Fairfax invested heavily in N. VA, died in last quarter 1970s.
 Fairfax devised his property to Demy Martin.
VA law said that land from British subjects escheats to the state (1781)
 VA sold land to Hunter, and then there’s the lessee
The treaty to end the war included a non-confiscation clause (Treaty of Paris - 1783)
 Said we would not be hostile to those who sided w/ British
VA is saying, however, that they passed the law before the treaty.
 They agreed that they followed the supremacy clause, but that since they passed
the law before the treaty was enforced, this was a different matter
VA ct of App ruled for Hunter’s Lessee. The case was appealed to the Sup Ct, which
ruled the ct of App was wrong and that the treaty necessitated Martin to win. Case was
remanded to VA ct of App.
VA ct of App said that they need not comply w/ Sup Ct’s wishes.
SO, analyzing whether Fed Cup Ct has J and power over VA courts.
1. Let’s start w/ ART III §§1-2
a. §1 says that jud power shall be vested in one Sup Ct
b. §2 says that jud power shall extend to all Cases
i. ALL is the key word
1. If the Jud power shall extend to ALL cases, there are only
two possible ways that can happen: original appellate J
ii. Fed COULD have exclusive, original J over all cases that have
Const questions of federal law (this would satisfy the Const
provision)
1. OR Fed Sup Ct could hear it on appeal.
a. How do we know that this is what the Const
predicts and makes room for? What is the textual
answer?
i. ART VI Supremacy Clause: §2 says that
judges in every state shall be bound by
federal law
ii. This contemplates that federal judges will be
looking at state judges’ opinions
What Story has done here is to take two clauses of the Const and make an argument for
why Sup Ct should have appellate J over state courts.
VA arguments against Story:
1. That the const was never meant to act against the sovereignty of the states
a. But there is the textual argument: ART I §10, which says “no state shall”
i. However, this may prove that since the Const enumerates ways in
which the Const shall have power over states, it doesn’t reach to
anything else
1. that there is nothing in there prohibiting VA from refusing
to adhere to Sup Ct’s wishes
2. The Sup Ct J impugns the independence of the state court judges
a. Story says that they are really already bound by the Const, and thus are not
independent of the Const at all
b. Judges are obliged to respond to the laws of VA, but also to ART VI
supremacy clause
3. This makes a great abuse of power possible
a. Not much of an argument – there could be abuse either way
4. State judges already swear an oath to uphold Const
a. State prejudices have already been presumed by the Const, ART III §2,
which is diversity J
b. Also, there must be uniform interpretation of the Const… why?
i. There need be uniformity of executive action
1. if there were different interpretations of the const in each
state then how could any high up Exec officer make any
action, which needs 50 different variants?
Cohens v. Virginia (pg. 56)
There is a lottery in DC and in VA. VA passes a law making it a crime to sell a DC
lottery ticket (federal lottery ticket) in VA. They argue that the federal law should trump
the VA law, and that the DC lottery ticket should be valid.
Difference b/w this and Martin?
1. This is a criminal case
MARSHALL says that Sup Ct should have appellate power over state courts in criminal
cases as well as civil.
2. but with that said, he agreed w/ VA
a. so, although VA won, Marshall assumed Sup Ct power over state courts
Qualifications:
3. What does the state statute actually mean?
a. State sup ct has final authority on what it means (defining/articulating law)
1. Fed Sup Ct has authority on whether the statute is
Constitutionally valid
4. States may be more generous than what the Const allows
a. If Amend IV gives some sort of power to police to perform a particular
kind of search
1. State could further protect liberties of individuals and grant less
power to searching police
Cooper v. Aaron (1958)(pg. 57)
Brown v. Board had already been enacted.
Superintendent had come up w/ a plan to desegregate, sending some students each year.
However, Governor didn’t want this, so called national guard when desegregation began.
There was already a federal case claiming that the desegregation was too slow.
Issue: what is the power of the Fed Sup Ct to make a state governor to respond?
 All 9 justices signed the opinion, saying that Amend 14, as interpreted by Brown,
is the supreme law of the land, and Art VI makes it binding upon const and laws
of any state.
Is this true?
Where is the line drawn, b/w this governor, or someone that is disobeying a federal
decision, and someone that tests or questions a judicial decision?
View from the Presidency
Jackson, Jefferson, Lincoln, and Reagan express viewpoints on pgs. 58-59
We want presidents to be somewhat free from judicial decisions in cases they weren’t
involved w/, but also don’t want Sup Ct decisions to be viewed as simply private
litigation…. Kind of UNRESOLVED
Con Law
01/18/06
Bank of the US: early adopted during Washington’s admin
 Initially had broad support
The whole nature of money was different. There was only gold, silver, coinage, and bank
notes.
 A note would actually be to a bank in Charlotte asking the bank to pay someone
out of the account.
 Sometimes individuals issued notes, sometimes the banks themselves did.
Problem: there was no fed reserve or regulation
 Banks could issue notes for money that wasn’t there
 They could also fail
So, you had no idea if a bank note for a certain bank was any good, b/c you didn’t know
how good the bank was.
As the US moved west, where there was not much established wealth, the people there
needed to borrow a lot from the East.
 They wanted to be able to repay in as easy a way as possible
If there was a bank of US, presumably its notes were as good in VA as they were in GA
or DE. It created some sort of consistency
 Some liked this, some didn’t
By statute at around 1812, the bank sunsets. But people again decided they needed the
bank. Many didn’t like this, but couldn’t do anything about it.
 SO, they taxed it.
 MD taxed a % of each bank note, which obviously amounts to a large amount
The bank refuses to pay the tax, and MD argues that there isn’t even a power in the US to
create a national bank.
 The bank was actually a private bank in which US had a very substantial stake
McCulloch v. Maryland (1819)(Marshall)(p. 61)
The battle is sort of federal power vs. state power
A complete triumph for the fed:
1. fed has power to create power
2. States have no power to tax it
3. express legislative powers (Art I §8) are augmented by certain implied powers
4. Art I §8, cl. 18 augments Congressional power as well
5. 10th amendment is kind of brushed aside as not too much of a check on fed power
6. There is a direct relationship b/w people and US that doesn’t go through the states
7. The fed Sup Ct has power to identify the powers and define what they are
8. Congress should be subjected to a broad, “means to an end” test
This case does a good job articulating how our national gov’t works, and methods of
Const interpretation.
How does Marshall start his analysis?
 He asks if Congress has the power to incorporate a bank
o Usually, we would start with the text
 But there is no enumerated power
 So, where does he go?
o History/tradition – the national bank came from the first Congress (who
were the framers of the Cosnt)
 There was a thorough debate, it was accepted, it lapsed, then was
accepted again
 Since the bank was allowed by the framers, then the framers likely
wanted to include such a power in the Const
o So, this is a half-way intent of framers argument, and the second adoption
of the bank is really an argument of necessity
Now, MD argues that the powers created by the Const were granted by the independent,
sovereign state. HOW does Marshall respond?
 Basically a question of “who is the father” of the Const
 He says that the people are the father of the Const
o It was not the states who ratified the Const, through their legislatures, but
rather the people, who convened to deliberate and ultimately ratify
Marshall admits that the powers of Gov’t are limited, but that the Gov’t has unlimited
latitude to make choices w/in the powers granted
SO, is there such a power in the Const?
 Nothing express in Art I §8 (enumerated Congressional powers)
 However, there is a power to lay and collect taxes
o Once you collect the taxes you have to put it somewhere… why not in the
Bank of “Richmond?”
o B/c the US bank gives control to the national gov’t
o AND there was no regulation:


A national bank was needed to ensure the notes were worth the
same everywhere
 Also, there needed to be security that the bank would not fail
BUT, what about Amend X? Powers not delegated to US… are reserved to the
States
o Marshall compares it to the Articles of Confederation: that said “the
powers not expressly reserved”
 Difference: expressly means enumerated, where “delegated”
means that there may be sort of implied powers
 “expressly” was taken out likely b/c there should be some
implied powers.
So, Marshall describes the Const as having some concepts that should be filled in later
(implied powers).
 The nature of Const writing is to outline major points and to leave to the people
(through leg) the task of filling in the details
 To enumerate all the powers of the Const would make too complex and long a
document, which would likely confer insufficient powers to run a country
Why is a broader method of interpretation appropriate for Const over statutes?
 Exigencies that would likely not have been foreseen, and if so, not clearly.
 Since the Const is so difficult to change and is to last for “the ages,” it must be
mutable, somewhat, for it to accommodate changes in circumstances
Marshall finally comes to some text that helps him: the necessary and proper clause (Art I
§8 cl. 18)
 MD makes a counterargument – that the clause includes “necessary,” which
should be interpreted as indispensable
o And the bank wasn’t indispensable
 Marshall shows in Art I §10 that the framers included “absolutely necessary”
there, and that the framers would have included such language here if they meant
the same concept.
 HE also looks at the leg
o Congress creates ends or goals (laws)
o And then looks for a means of achieving those goals
 They do not look for the single, only indispensable means to do so
 But rather, make choices on which method is the best
 This is the exercise of will, Federalist 78
 Marshall also says that this clause is w/in the power granting provision, not
among the limitations
Marshall then makes analogies:
 Congress is expressly given the power to create post offices
o But they also create roads to deliver the mail, which is not express, but
rather implied
However, courts do not have unlimited power:


It is a means-ends test, marked on pg. 67
This is a very broad test, which gives Congress a great amount of power in
choosing its means to achieve its goals.
Another argument from Marshall
 We should interpret the Const with the idea in mind that the framers wrote it with
the intention that it work
o But, work to what end?
 It has “worked” to create a commercial superpower
 But, w/ different Const interpretation, it may have worked to create
an agrarian society
Con Law
01/19/06
77 through 96
Still on McCulloch:
MD says they have a right to tax
 The only real power is 10th Amendment
 The Const is added to a pre-existing federation of states
o By default, the States have those powers not taken away by Const
 Thus, there is concurrent power to tax
Marshall argues against this:
 Some sort of taxing restriction in Const
o Art I, §10, Cl 2: no State shall tax imports/exports
 Says that this is proof that the State power to tax is can be limited
o MD would say that this is not an export/import tax, therefore, since it has
not specifically been prohibited, the power to tax the bank is not
constrained
 The framers knew how to constrain tax-collecting, but didn’t do so
in this case
 Marshall says that the basic principle of Gov’t is that the federal gov’t is supreme.
o Implies the power to create which implies the power to conserve
o Congress has power to tax in order to pay debts, provide for common
defense and general welfare
 There is no limit to how much Congress may tax
 HOWEVER, the legislatures are held accountable by the electorate
 Isn’t this constraint still in place when MD taxes the bank
of US?
o NO – the only constituents MD is accountable to is
the citizens of MD
 The only protection the Bank has is the
electorate of the people of the US
 W/o this constraint in place, this is the power to destroy,
which is repugnant to Congress’s power to create
o SO: no MD’s bank may not tax the US bank
We STARTED by looking at judicial power
 Marbury said that the Sup Ct had the final authority in deciding Constitutionality
 Martin v. Hunter’s Lessee – set up Sup Ct having J over constitutional decisions
made by state courts (against “state sovereignty”)
 McCulloch – identified implied powers
 Calder v. Bull – leave the text altogether
Calder v. Bull (1798)(pg. 74)(Natural law case, Chase v. Iredell)
Justice Chase:
 Suggests that we have a written Const that really stands on a framework of
assumptions/natural law
o Says that he is compelled, as a judge, to declare something void if it
violates the natural law (the “self-evident,” inalienable rights)
o IF an act takes from A and gives to B, isn’t this really the legislature
organizing itself into factions?
Iredell:
 Says that judges should not be the arbiter of what violates the natural rights
 Says that not everyone agrees what exactly the natural rights consist of
NEW SECTION
Checks on Judicial Branch
 Appointment
Personnel
 Impeachment
 Change size of court
 Constitutional amendment (Art V process)
 Exceptions to J that Congress can make
Con Law
01/23/06
How much is the Sup Ct’s power checked by the Constitution?
1. Appointment
2. Impeachment
a. Art III, §1 – keep position for life “on good behavior”
b. Art II, § 4 – talks about impeachment of Pres and “high crime or
misdemeanor”
i. Which Ford argued to be whatever House thought it was
c. Not a very effective check
3. Number of Justices
4. Const amendment
a. Difficult to make an amendment (Art V)
Personnel
i. Either 2/3 of both houses or 2/3 of state leg’s must agree to
propose amendment
ii. Then must be ratified by 3/4 of states
b. Again, not a big check (only four have happened to overrule decisions)
5. Jurisdiction (McCardle, Yeger, Klein)
a. Art II, § 8, Cl. 9 and Art III
b. Can Congress just pass legislation that removes on any cases that involves
its legislation
i. Broad textual argument: Art II §2, Cl. 2: “W/ such exceptions as
the Congress shall make”
1. this implies that Congress make any exceptions to Sup Ct’s
appellate Jurisdiction
2. Narrow argument: Congress is only to make exceptions,
and an “exception” is something contrary to the general
rule
3. Another: Art II, §2 Cl. 1 says that Judicial power shall
extend to all cases arising under the … laws of the US
a. Which isn’t something Congress can take away
ii. Structural arguments: separation of power/checks and balances
1. if Congress could pass this type of Leg then they would
essentially write out the Judicial check on Congress
iii. AGAIN, methods of Const arguments
1. text
2. structural
3. historical tradition
4. intent of framers
5. Precedent of the court
6. Evolving standard/morality and justice
6. Justiciability (SEE BELOW)
a. Advisory opinions
b. Ripeness
c. Moot
d. Standing
e. Political question
Ex parte McCardle (1869)(pg. 83)
Post civil-war; it was kind of unclear what the state of things were after the war.
US passed reconstruction Act in 1866, which declared that the south was 5 military
districts to be run by a general.
 Until those districts allowed African Americans to be real citizens (accepted 14th
amend), there were no states, but only these military districts
Someone in Miss says that the reconstruction act is unconstitutional.
 He is then brought into custody, saying that his articles were libelous

So, McCardle used the new Habeas Corpus statute (1867) to bring his habeas
corpus case to challenge the constitutionality of the reconstruction Act.
What happens? After losing, while he is on appeal (before Sup Ct), Congress repeals the
federal J of the habeas corpus Act.
 Which would presumably remove Sup Ct’s J…?
But, does McCardle need the statute to be in front of the Sup Ct.
Art III gives J to Sup Ct… Congress added J under habeas corpus act, then takes it away.
 Chief Justice Chase says: Congress enacted judiciary act, which gives federal
question J and diversity J to Sup Ct. In a sense, they were creating exceptions
saying that anything they weren’t giving were not included in Sup Ct’s J.
o So, since this type of jurisdiction was not included in the judiciary act, and
it was given then removed, then this type of J still isn’t included.
Ex parte Yeger
Says that they haven’t said whether Congress may completely cut off someone from
reaching their court, but rather that Congress may only take away the habeas corpus
ladder… there are other ladders.
 Really doesn’t ask whether Congress can do it, but rather than they didn’t do it (it
being completely cutting someone off)
o Kind of dodging the bullet
US v. Klein
Klein wanted some property restored after the Civil War.
Law was that you couldn’t recover property unless you supported union.
 Court had ruled that if you received a presidential pardon then that meant you
supported union and not the south
 So Pres made a blanket pardon, including Klein
o Congress was so mad that they passed a statute saying that a presidential
pardon means that you supported the SOUTH
 Congress had passed this statute after case was already pending
Here, Congress is not restricting J, but rather making a statute that decides the pending
case.
 The difference is restraining J rather than deciding a case
What’s wrong with this?
 It’s a separation of powers issue: Congress’s power is to craft laws, not decide
Sup Ct cases
o But Congress will say that all they did was pass a law
 WELL, if they pass a law before a trial, then it is simply a law

But passing the law after the case is already pending in
essence decides the case for them
o Here, the Sup Ct pushed back
TYING all of these cases together:
There is power to make SOME exceptions to take some J away from Sup Ct
 However, Congress may not take away J of Sup Ct to try cases involving Const
rights.
 This is not really clear, however
JUSTICIABILITY
“we will not decide one way or another on the merits of your suit”
1. Advisory opinions
a. Jefferson asked Sup Ct for advisory opinion
i. But Sup Ct says that Separation of Powers require that they not
make advisory opinions
1. however, they may decide on the Constitutionality of a case
concerning the issue
ii. The Sup Ct is to hear “cases & controversies,” not to advise
b. How could it be good to have advisory opinions?
i. It would save money and time; is a good predictor on the outcome
of cases that might later come before Sup Ct
ii. Officials really do want to do right from the very beginning, so
they are going to want to know the Justices’ views
c. How could it be bad?
i. Might ask Sup Ct for advise on all sorts of issues, many of which
might never be challenged at all
ii. Sup Ct would have already pre-judged a matter before it came
before you
d. WHY are declaratory judgments ok then?
i. Sup Ct has upheld const of decl. Judgments where there are
adverse parties but they have yet to clash swords
2. Ripeness
a. The case is not quite ripe – if it comes before the matter has quite taken
shape
i. If statute said “men may not be drafted,” court will not entertain it
b/c there is no current draft
3. Moot
a. Opposite of ripeness – there is no longer anything to have a lawsuit about
i. Case is about succession of CEO of a corp, but the corp has gone
out of business
ii. But what about abortion? Cases take three years sometimes…
4. Standing
5. Political Questions
Con Law
01/24/06
Don’t read 131-136
Logic of the court:
There is a Const core, and if you are not in it then the Sup Ct does not have to hear the
case. The is a prudential outer ring, where the Ct may decide whether or not to hear the
case.
 W/ outer ring, sometimes dismisses case b/c of mootness… standing… etc
Standing



Must be a P w/ personal injury
Which is fairly traceable to D
And there must be some redressability
 if P wins there will be some relief of the injury
in the 1960s Standing involved social questions…
Allen v. Wright (1984)(Standing, black schoolchildren and IRS tax exemptions)
P – African American parents
D – IRS
The IRS was giving tax exemptions to private schools, who were still desegregated.
 The Private schools had 501(c)(3) status under the tax codes
Bob Jones University had held that if you base discrimination on race, then you do not
qualify as a charity.
 Thus your are not a 501(c)(3) organization
Why go after the IRS, instead of a particular school?
 You’d have to go after each school.
 Also, this forces the IRS to do their job – to stop treating discriminating
institutions as charities
So, was there standing?
 Personal injury
o Should they have standing just b/c a law was broken?
 No, although the court is not indifferent this type of injury… but
that should be addressed via the legislative branch
o What about stigmatic injury – that an African American has suffered an
injury b/c other African Americans were discriminated against?
 Not enough to be a member of the group unless they sought to be
included and were discriminated against
o The personal injury is this: their children are in a school that is not racially
desegregated b/c all of the white children are fleeing to the private schools
receiving the tax exemptions
 Traceable to D’s action
o We don’t know how many schools this is
o Nor can the court be sure that the reason the children’s schools are not
diverse is b/c of the tax exemptions the private schools are receiving
 Redressability
o What would happen if the tax exempt statutes [501(c)(3)] is lifted?
 Possibly, the way the school will meet the increased costs (taxes),
they may raise prices
 Furthermore, charitable contributions will likely be cut
down
 This might make white parents more reluctant to pay for
sending their children there
 O’Conner says that this scenario is way too attenuated
o Should P have to prove this line of reasoning on the pleadings??
 They might say – isn’t that what a trial is about?
 O’Conner then makes a separation of powers point:
o The court cannot make the IRS be more or less vigorous
 To redress the problem that the IRS should be doing a better job
and if they did then there might be more racially diverse schools.
 NO standing
So, is there a remedy to this problem?
 Not sure – could go to the legislature maybe
Examples:
Sierra Club
Plan to allow Disney to come into a sequoia valley and destroy some trees for Mickey
and Minnie.
Club sued b/c they didn’t like the plan.
Lack of standing b/c court found no members of Sierra Club had ever used the valley –
they were not personally injured by the plan.
On the other hand:
US v. Scrap
Plan to make it more difficult to recycle due to a rate increase.
The rise in railroad rates would make it more likely that people use non-recyclables
Held: there was standings
It is very difficult to reconcile these two cases
Lujan v. Defenders of Wildlife (1992)(pg. 97)
Parts of this opinions are in the majority, parts are not.
Endangered Species Act (ESA):
 If there is an endangered/threatened species
 AND gov’t takes action
 Then they must check w/ Secretary of Interior to make sure the action will not
adversely effect an endangered species
Originally this was going to be applied even w/ actions made overseas.
Later the Interior dept revised the regulation to only apply to actions in US or high seas.
STANDING
Two members of the group (D) say they have been injured.
 Put forth a ecosystem nexus: they use part of the ecosystem, so if it damaged so is
he.
 Puts forth some kind of affinity nexus – if elephants are hurt then they are too
 Vocational nexus: there is a job-related relationship and thus there may be injury
if the possibility of taking care of those animals is diminished
Redressability
 Even if P wins, the Interior cannot control the actions of organization or actions in
foreign nations;
But what about what Congress “did?”
 Congress said that anyone has a right to sue over this matter (in the ESA statute
o Scalia said that they could not have done this.
 What if Congress promised a bounty for winning?
o Now there is a cash prize
 Still no personal injury, and thus no redressability.
So, even though Congress has “given” standing, Sup Ct has said to do so would be
unconstitutional (separation of powers)
Con Law
01/25/06
Standing: 2 sets of considerations (Allen v. Wright)
 Art III considerations
o Injury in fact?
 Must an injury be tangible (car destroyed, bike stolen…)?
 NO – courts originally recognized standing where a
common law right had been violated
 OR, a Const right has been violated


Several years later (1960s-70s), a statutory right violation
satisfies standing as well
 An injury may be an emotional injury
 If you’re an African American and have been discriminated
against (personally suffered consequences of), then your
case satisfies standing requirement – this is known as a
stigmatic injury
 What about an aesthetic, or environmental injury?
 In Lujan, Court decided it was… although it must be
imminent in some way
o Must have tickets to go or real plans to go to the
certain are
 Lyons case – African American was put into a choke-hold
unlawfully, sues for injunction to stop this practice
o Court holds that he CAN sue for injury, but not
injunction b/c he couldn’t show that he would be
injured by the practice again
o There was no policy written down that told officers
to use a chokehold whenever they stop someone…
if there was, standing would have been satisfied
o Is your injury fairly traceable to conduct of D?
 In Wright, the connection b/w the IRS exempting the private
schools and whatever injury the parents of the black children
alleged was too attenuated
 Had the IRS been purposely taking white and black tax
returns, injury would have been directly traceable
 In Linda R.S. v. Richard D, woman wanted child support. State
allowed for enforcement of father paying support if the child was
legitimate
 But the child wasn’t, and P alleged discrimination under the
equal protection clause
o Court said that even if they could try the case, all
that would happen is putting the father in jail – no
more money for child and thus the injury isn’t
remedied
 FL General Contractors v. Jacksonville
 Gratz v. Bollinger P said he wanted to go to UMich, but that they
have a preference for minorities
 But he hadn’t actually even applied to the University
 Court said he was ready and willing to apply, so they gave
him standing
o Can a court do anything to rectify injury (redressability)?
 Linda R. S. v. Richard D
 Lujan – even if they could get the Interior to change practices,
there was no guarantee that the other agencies would follow along
Prudential considerations (self-imposed limits)
o Normally can’t raise the complaint of third parties – usually only your
own issues
 Exceptions: in abortion cases, doctors in close contact w/ their
patients, may have third party standing b/c of the intimate
relationship b/w the two… they let the doctor speak for the patient
 Associations: NAACP, NRA, Sierra Club – these groups
have hundreds of thousands of members… sometimes the
court will hear their cases even though it is only some of
their members that have been injured, sometimes they
WON’T
o Generalized Grievances: citizens/taxpayers standing – if they have a
problem and want to sue, Court will not allow it b/c they are no more
injured than anyone else
 W/ generalized grievances, they should talk to Leg branch and
representatives
 However, sometimes Court will hear these cases –
otherwise, the worse the gov’t injury is the less likely the
Court will hear the case
Elk Grove Unified School Distrtict v. Newdow (Standing case w/ Pledge of
Allegiance)(pg. 115)
Complaint: the state is imposing religion upon his daughter by making her recite the
Pledge of Allegiance – which includes “under God.”
 He argues this is an attempt to establish religion
It’s a tough case b/c “under God” was added in the 50’s… Court has held in other cases
that if Leg intended the phrase to be religious then it is a problem.
If Sup Ct denied cert, pledge would be unconstitutional.
If they granted, they would have to decide.
The Court grants certiorari, but says that the case should never have been heard.
 They say he has no standing b/c he is raising the interests of a third party
o Daughter was not in his custody… furthermore, MOTHER actually
SUPPORTED the Pledge
Father thinks he should have the right to keep others from enforcing religion on her.
Court says they have often denied to hear family issue cases… this should be between
mother and father.
But father says he is simply worried about his daughter.
 So, Court says this is a third party standing problem, which is under the idea of
prudential standing
o Probably to avoid a very contentious issue
POLITICAL QUESTION DOCTRINE
There can be a political question about something that is very different from politics.
Baker v. Carr (Tenn apportionment case (political question))(pg. 119)
This is really a redistricting case. The cities have likely grown by a lot. However, they
do not have as much power per vote as rural areas do, since the number of representatives
has not grown accordingly.
Why do we need to bring this to court?
 The rural people are not going to want to re-apportion, and thus it will be very
difficult to pass in the General Assembly
 The political process does not provide a remedy
Luther v. Borden had brought a similar issue under the Equal Protection Clause, but was
not heard b/c of the political question doctrine.
How does Brennan resolve this case, showing that it is a political question… first he
makes the list of political question cases.
A case is held to have a political question if one of these is present:
1. A textually demonstrable Const commitment of the issue to a political department
a. If an explicit task is given to another branch of Gov’t by the Const
b. Not only supposed to do it, but to decide it
i. In Marbury, the President’s power to choose his cabinet, etc, has
been committed to him by the Const
1. The only check is that of politics – impeachment, etc
2. A lack of judicially discoverable and manageable standards for resolving it
a. Sup Ct must issue a ruling that would guide all of the lower federal courts
3. Impossibility of deciding w/o an initial policy determination of a kind clearly for
nonjudicial discretion
a. The court usually makes factual determinations, NOT policy questions
i. Policy – i.e. should we be at odds w/ China… others…
4. Impossibility of court’s undertaking independent resolution w/o expressing lack
of respect to other branches of gov’t
5.
An unusual need for unquestioning adherence to a political decision already made
Prudential
6. Potential of embarrassment from multifarious pronouncements by various
departments on one question
1 does not apply here – this is only b/w a state and the Court
2 – the Court does not come up w/ a standard, but assures us one is out there
3 does not apply here either
Court decides that there is NO political question
Frankfurter’s Dissent:
He is concerned that if there exists a judicial remedy for every mischief then people will
just go to the courts instead of participating in a vigorous political process.
PROBLEM w/ his reasoning: how can a broken Leg fix itself… Brennan says that if
there is any remedy at all, it is through the courts.
01/26/06
Frankfurter wrote decision that said political questions should never be heard, he was
served by Brennan, but his other concern is that if there’s a judicial remedy for every
mischief people see, we’ll cease to have a vigorous political process.
Representation reinforcement issue here, when the political process is not able to
correct itself—how can a broken legislature fix itself if the only thing to fix it is a
broken legislature?
Nixon v. US –convicted felon is being removed from office—impeached and convicted
from the Senate. He brings up Article I, Sect 3, Clause 6—Senate says we tried and
convicted you—full senate did vote on his impeachment after a committee hears
evidence, makes a record, makes a recommendation…here former judge wants a criminal
trial. Rehnquist plays the textual game, says Senate has “sole” power, so the judicial
branch can’t try the case, it’s a justiciablility issue. It’s a political question because sole
power is with the congress. Why could the case still be won by the impeached judge—
still needs ‘trial,’ he’ll take it in the Senate.
Structural—if judges are the final judge of how the senate does its work, to some extent it
makes us able to determine how matters go forward
Framer’s Intent—insofar as they wanted restraints, there are some restraints, namely the
oath, the 2/3 vote and Chief Justice presides when the President is being impeached
Souter’s dissent—sometimes there might not be a political question, leaves the door
open—makes word beyond a final word—is there a check on the ludicrous fantasies?
Court finally decides no judicial review in the senate on impeachment process—We
the court pull away
Powell v. McCormack—Congress refused to seat him, even though he’d been elected.
They bring up Article I, Section 5—saying the Congress gets to exclude, he’s got the
qualifications but bad morals
Powell says look at Article I, Sec 2, Clause 2—look I’ve met all the requirements
Court says “we have to decide the textually demonstrable commitment”—here for the
House to be the judge
Nixon case v. McCormack? One appears to say text gives it to the Senate, one gives it to
Court to talk over the House
Goldwater v. Carter—for many decades it’s the lawful government in Taiwan—some
senators brought suit saying you can’t abrogate a treaty without the approval of the
Senate. Article 2, Sec 2—
Court should stay out of the field of Foreign Relations, it’s a senate and president issue—
one check on the Pres is making a treaty—Another thing is that the President has made a
choice, and it would be embarrassing to the pres
Powell—no ripeness here, in absence there’s no constitutional clash—Court should only
step in when there’s an impasse No final vote has been taken yet, so when it comes to
that the Court will step in.
Brennan’s dissent—we’re trying to lay down the rules about how the game is played, it’s
important for the actors to know what power they have
Vieth—Court intervenes in the political process in Baker case, unfair to have systems
with huge disparities…what ultimately comes out is the one person, one vote case—also
cases involving racial gerrymandering (Tuskeegee) b/c they violate the Equal Protection
Clause
Davis v. Bandemer—Republicans redrew lines that maximized strength, draw the
political lines—Justice White said he thought that challenger is subject to be heard by the
court—whole wave of litigation—Justice White had a murky standard here, “an election
scheme that consistently degrades,” yet the standard realized redistricting would be used
by a party in advantage.
In Vieth, the courts don’t have consistent guidance, and no one can agree on the standard,
prove positive because it lacks of judicially discoverable and manageable standards for
resolving it—means that there’s not enough testable criteria to make any consistent or
non-arbitrary decision…no way to make a test that would be binding—suggestion of
Scalia in Vieth is that there’s no manageable judicial standard. Have to be principle
standards
Justice Kennedy opens the future up and maybe in the future we can see some
advantages—say that today we haven’t been able come up with a standard
Scalia is very mad about the “fairness” standard, though that’s very similar to jobs that
justice’s always do
Bush v. Gore—Secretary of State in charge of revote, one week an no more—recounts
are not permitted—democrats say recounts are what we have to do
Eventually FL legislature wants to go with recount on a truncated basis—FL supreme
court requires complete count of all the votes—
Went to USSC—oral arguments, very brief, on a dramatic night—Court 5-4 with five
republican on one side, three democrat and one republican not there—violation of the
Equal Protection Clause—best thing to do was let the matter go forward, Bush was
elected.
Posner—order without law, saved the country, killed the constitution
Con Law
01/30/06
Bush v. Gore (p. 144)
Everyone thought the Supreme Court would not take this case.
They granted Cert, and everyone thought they’d go off on some justiciability doctrine.
Questions for us (legal issues at play):
1. Art II §1, CL 2 talks about electing: each state shall appoint electors…
a. Decided that the state Leg’s had the power to appoint electors
b. How a state handles an election is a matter of state law
c. If the judicial branch and leg branch disagree, judicial branch should
prevail
i. Leg passed statute, and judicial branch interpreted it, which
disagreed with what Leg wanted to do
ii. So, this normally isn’t really a federal law
1. But Court said Art II §2 Cl 1 says the Const gives power to
Leg power to elect – which should overcome state judicial
branch’s power
a. Which makes it a federal issue
2. Equal protection clause – once the power to elect had been passed down to the
people, their voting rights was to be protected by equal protection clause
a. Some people are counted – Dem or Rep
b. Then there are people whose votes are uncertain – their votes must be
recounted
c. FL supreme court sent it back to the counties and told them that the votes
were to be counted by ascertaining the “intent of the vote”
i. But didn’t tell them how to do this
ii. Argument was that there needed to be a uniform way of
ascertaining intent
iii. BUT, there were different ways of voting (w/ different error rates)
across FL
d. This doesn’t apply under the original voting, not under recount, but ONLY
under a recount ordered statewide by the authority of a single state judicial
officer.
i. This equal protection clause has never seen light before, and will
likely not see light again… “one day only”
ii. HOWEVER, court says that the equal protection cannot be
guaranteed in the time period given and thus the votes won’t be
recounted at all.
1. Time period? 3. 3 USC §5
a. says if there is a contest in Presidential election, then the matter will go to
Congress, which will resolve it
i. initially by recounting votes in the Senate
1. if there is dispute there, then by moving to House
b. If by then if there is no dispute 6 days before the meeting of the electors,
then their decision is deemed to be final
i. Sup Ct viewed this date as a deadline (which is contrary to what
many election law people thought)
4. WHO HAS STANDING IN THIS CASE?
a. Injury in fact to Bush? Directly attributable to the acts of Gore? Is there
redressability here?
b. The injury here is that those who have not be counted yet are not being
protected under the Equal Protection clause
i. We don’t know how those votes are going to turn out – for Bush or
Gore
c. Very odd kind of third party standing – to say Bush represents interests of
those people and their interest was best served by not having their votes
counted
SO, it seems like Sup Ct wasn’t following what Art II, Equal Protection, 3 USC, Court’s
general deference to local authorities or Standing doctrine would likely say in this type of
case.
Moving from “LEAST” dangerous branch to the “MOST” dangerous branch
CONGRESS
Really given power by enumeration in Const
Federalist 84:
Bill of rights not needed?
1. Hamilton didn’t want protection of freedom of press b/c that should be implicit
a. And to protect certain rights like this may be able to be used to argue that
Congress has power over more rights than they actually do
Art I, §8 Cl 3: Commerce power
2. We’re going to focus on the power to regulate commerce “among the several
states”
a. THIS concept raises the crucial relationship of powers of State v. federal
(powers of federalism)
Gibbons v. Ogden (p. 170)(the last decision by Marshall)
Fulton/Livingston own patent rights to steamboat in NY, and they license that right to
Ogden. He has power to go back and forth b/w Manhattan and Elizabethtown – NY and
NJ.
But Gibbons says he has power to operate costal trade given by Congressional statute.
Ogden is upset and brings case before NY courts, who has sympathy for him and awards
the injunction. Gibbons appeals to Sup Ct.
Why isn’t this a simple case – shouldn’t a federal statute just prevail when they are in
conflict?
1. Ogden’s argument: that the Congressional statute is unconstitutional – why?
a. There is a question over what “regulate interstate commerce” really is
i. Is this commerce? Particularly – is navigation commerce?
ii. And what does “AMONG” mean?
iii. And what does “REGULATE” mean?
b. Ogden argues that this ISN’T commerce, but rather navigation
i. Perhaps b/c this doesn’t involve buying and selling goods
ii. But COURT says clearly they (framers) didn’t mean purely
goods… services must also have been intended to be included
1. Also – if commerce only meant “buying and selling
goods,” Congress wouldn’t be able to regulate ships
coming over from other nations (which is explicitly laid
out)
c. What about AMONG? Argument of the New Yorker’s: there may not be
regulation inside the states, and the waters of NY go all the way to the
shores of NJ. Thus, Congress shouldn’t be able to regulate on NY waters,
which this case deals with
i. If what we’re talking about is the contiguous North American
continent – you are ALWAYS w/in some state when the regulation
need be applied
1. So, this means that the federal gov’t should be able to set
up a regulation system entirely w/in state of NY
2. does this mean that the Fed subsumes ALL of state power
to regulate commerce w/in their own state? NO
a. Two Tests of when commerce is completely
internal w/in a state:
i. If it doesn’t effect the market of the several
states (or others)
ii. And if it is not necessary for internal
commerce to be regulated for the purpose of
executing some of the general powers of
gov’t
d. What does it mean to REGULATE? Not to grant nor prohibit a grant.
i. It allows Congress to do anything it needs, subject to the votes of
the people (constituents)
2. Ogden also argues that they have power b/c of Art I, §10 Cl 2, which allows
taxation on imports/exports
a. But Marshall says the powers are concurrent, with the Fed power reigning
To what purpose may regulate commerce? JUST to regulate commerce?
1. Congress has used Congress to impose equal rights and all sorts of other things.
a. One civil rights Act was based on Commerce clause… congress used it to
battle racial discrimination… is this an abuse of the power???
i. Court seems to think so in McCulloch, pg. 67
ii. LATER, judges have said that Congress may not work under
pretext of commerce clause to police (or any other one, for that
matter)
1. Lopez is the modern test
Con Law
01/31/06
Course of the development of the Commerce Clause:
1. There was little in communication or Gov’t regulation
2. State Gov’t was by far most familiar
3. many people had never left their state, many even their county
4. The State and Federal spheres of authority were seen as very different
a. State had broad powers
b. Federal had few, delineated powers
c. And there was a PRIVATE sphere in which no gov’t could intervene
This was the setting of the late 1700s/early 1800s. It was also supported by American
Bar Assoc, a group of commercial attorneys in Chicago that created it to protect their
trade – led by Cooley.
5. supported limiting federal intervention on personal liberties
6. overall idea was: we’d rather suffer difficulties than the UnConst intervention of
the Fed gov’t into personal liberties
US v. East EC Knight – first case under Sherman Anit-trust Act
GIANT sugar Co had a monopoly. Said that if the purchase was to go on, as economist
thought, the price of sugar would rise too much.
Argument against was that there was no power to regulate: this isn’t commerce…
1. idea was:
Manufacture|||-------commerce---------> End user
2. believed manufacturing, agriculture, and mining comes before commerce
3. Also believed that some activities directly affected commerce – REGULATED
a. But that others indirectly affect commerce – Unregulated
i. The monopoly setting the price was held to be indirect
This formal approach characterized the Court up until the 1930s.
Cases show that Congress has the power to prevent interstate movement, regardless of the
motives of Congress.
Hammer v. Dagenhart(p. 173)(Child Labor Case)
Why didn’t Congress simply say “child labor is illegal?”
1. Didn’t have the power to do so – had to use Commerce Clause
o But cotton mills shouldn’t be regulated – EC Knight
Courts had power to regulate that which is moved across state lines (lottery, Mann law
case, eggs)
2. Day says that in those cases used morals or health as a motivation
o Cotton is not such an issue
3. ARGUMENT 1: Congress is simply attempting to use the idea that cotton is
shipped to regulate activities at the cotton mill
4. ARGUMENT 2: Another argument Congress made: if a lot of states are trying to
end child labor, and NC doesn’t, then NC will have a comparative advantage
against the other states
o And thus the child labor indirectly affects interstate commerce
o Court brushes this aside as well – overreaching Congress’ power into a
purely State issue: regulation of hours of child labor
First couple of Acts made by Roosevelt’s Congress were upheld by Court.
Eventually, one by one the national regulations were shut down.
Roosevelt was re-elected by a very large majority in 1936. He didn’t like what the Court
was doing and said that every justice who was over 70 needed “help”
1. this was an effort to pad the court
2. bring it from 9 justices to 15
Lots of opposition – many said this violated checks/balances
1. One judge retired (conservative) and another changed his vote
a. This was the “switch in time that saved 9”
From then on the Court began to reform – allow national regulation
Started with a National Regulations Board case (NRB)
2. Which was a federal regulation of wages and local employment
a. Had an indirect impact on commerce, and happened before
(manufacturing)
i. Kind of in the light of EC Knight jurisprudence
3. Court said that the company used all sorts of interstate commerce to create its
products and ALSO sells on a national and INTERnational level
a. Court would not close its eyes to the fact industry has organized itself on a
national level
THIS was the beginning of the switch from formalism to REALISM
Dramatic case was:
Wickard v. Filburn(p. 175)(wheat quota case)
The whole case is about whether the home-grown wheat affects the national wheat
market.
There was the wheat quota set up by the Agricultural Adjustment Act
Filburn’s argument:
1. At most his home-grown wheat indirectly affects national economy and are local
in nature
But Court says that this home-grown wheat is IMPORTANT factor in wheat price:
1. if all of the home-grown wheat is kept and the price increases enough, the homegrowers will SELL
2. But, even if they don’t, they won’t be buying the wheat sold on the national level
3. Court is allowing Congress to aggregate all of the Filburn’s and to look at it that
way
Court is NOT using a formula that gives controlling force to nomenclature like “indirect”
and “direct.”
1. But rather, it is looking at how substantially the production affects interstate
commerce
Court is RECOGNIZING that commerce is now a largely national concept and that
Congress can thus regulate it under the Commerce Clause.
United States v. Lopez (pg. 211)(Gun in School zone case)
Lopez’s attorney brings as his defense that there is no power for Congress under
Commerce Clause to bring charges against Lopez by using the Gun-Free Zones Act.
THOMAS says that he doesn’t believe in regulating Manufacturing, agriculture, mining,
etc, nor should Congress aggregate – BASICALLY he wants to go back to the
exceedingly narrow interpretation of the Commerce Clause like in the 1800s.
This case’s rule is now the modern test.
Court says that this is an inference on an inference on an inference.
Other major argument: if it didn’t work before it won’t work again.
2. Judiciary shouldn’t act as a referee
a. But Kennedy/O’Conner (Concurring) say that although they have made
mistakes, this is an issue that they should rule on.
Con Law
02/01/06
Lopez continued
Lopez brings a gun to school, arrested for violation of Gun-Free School Zones Act.
Renquist takes the history of the Commerce Clause Cases and tells us a summary.
Three principles which Congress has been allowed to regulate:
1. use of the channels of interstate commerce(Rule)
a. highways, radio frequencies, possibly internet…
b. What if Congress passed a statute saying “no one under 21 may use
internet?” they could do this
i. Although one could argue that someone was using it for 1st
amendment freedom of expression as opposed to commerce
2. instrumentalities of commerce(Rule)
a. not regulating the use of anything, but rather the factor of production that
has passed through commerce which will make something else
b. OR something that helps commerce – like railroad stock
3. Activities that substantially affects interstate commerce(Rule)
a. Have to decide whether the activity affects or substantially affects
commerce
b. Sub Rules:
i. Court allows commerce to aggregate those activities that are
commercial in themselves
1. Like Coal mining, extortionate credit transactions,
restaurants utilizing interstate supplies
Court says that there is no jurisdictional element of the statute that affects interstate
commerce.
1. The statute does not say “it is illegal to have the gun in a school zone (w/in 1000
yards of school) IF GUN HAS PASSED THROUGH INTERSTATE
COMMERCE.”
Court also says that the section is not a part of a larger, legitimate regulation of economic
activity.
This really adds another rule:
2. If the section is a central and essential part of a larger regulation of economic
activity, then it is valid. (Rule)
Gov’ts CASE:
1. Says that firearms in school zones does indeed substantially affect interstate
commerce
a. May result in violent crime
i. Which costs country a lot of money
1. through hospital bills, insurance, stolen cars, police costs
b. ALSO results in people not wanting to travel to a particular area
i. Which will limit economic activity there
This is a fairly attenuated connection, according to the court. Court says this is a slippery
slope – letting Congress regulate things that are one inference step away from affecting
interstate commerce might result in Congress attempting to regulate much more
1. one could argue, through multiple inferences, that almost anything affects
interstate commerce
Other Gov’t argument:
2. the violent crime handicaps the educational process which results in less
productive citizenry
a. which will in turn affect the national economy’s well-being
Again, Congress is making to many inference leaps. Furthermore, education is a
traditionally local activity.
1. if the activity is a traditionally local activity then Court is less
likely to allow Congress the leeway to make inference leaps in
what it affects
Don’t forget about the backdrops:
 Congress can’t police itself and thus the Court must step in and adjudicate
 OR; this is all a terrible mistake (applying the tests) b/c no clear line can be drawn
and thus there exists no real workable test
What about the “no child left behind Act,” which regulates public schools nationally?
--There is spending power behind it… only applies to states that accept federal funds for
educational
United States v. Morrison (p.222)
Court held remedy provision of the Violence Against Women Act as UnConst
Again, like in Lopez, gov’t is making the inference leap that violent, gender-based crime
will affect interstate commerce.
So, court says:
 gender based violent is not an economic activity
a. so the court says that they “need not aggregate”
1. which is a signal saying that they will come up with a rule that
allows for aggregation of economic/commercial activity, and not
others
 Also, that the activity is traditionally a local one
HOLDING: the provision was UnConst
Quick overview of State regulation of interstate commerce
Power to regulate interstate commerce is concurrent (Marshall)
If there is a conflict, like in Ogden, the federal statute wins
Even in the absence of a federal regulation, one can attack a state regulation of commerce
by using the commerce clause. – “dormant commerce clause”
1. i.e. if NY says only milk made here can be sold in NY
a. Court would say that you can’t have a rule that gives local people a leg-up
on other states.
NC had a statute saying that no apples may have labels that show point of origin.
 WA said they knew they had the better apples and that NC is simply trying to give
themselves an advantage
a. Sup Ct agreed – impediment on interstate commerce
TAXING AND SPENDING
Every power under Art I §8 is different.
 The Lopez test for commerce does NOT apply to the Taxing/Spending clause
Theme in this area is federal power intruding on state power.
Federal spending/taxing dwarfs that of the state.
Post-Hamer v. Dagenhart (Child labor case) discussion on taxing/spending is good.
 Congress was not deterred – they taxed all goods made by child labor 10%
 HOWEER, in Bailey v. Drexel, Court said that they knew what Congress was
doing.
a. Was not really a tax but really a regulation…
Con Law
02/02/06
Taxing and spending may be the most influential Congressional power.
Bailey v. Drexel Furniture (1922): W/ Child Labor Law was prohibited by Hammer v.
Dagenhart, so Congress made a new Child Labor Act that taxed all goods made by
children 10% of the profits from those goods.
Court struck this one down too.
1. Court said that the tax was really a penalty, not a tax
a. Purpose of a tax is to raise revenue
SO, look at:
1. Purpose of the tax
2. Tax vs. penalty
3. tax vs. regulatory structure
4. Primary vs. incidental purpose
THESE lines are exceedingly difficult to draw consistently
However, we tax tobacco and alcohol – why?
 Not really to raise revenue but rather a “sin” tax
a. For deterrence
We also levied excise taxes on imported goods – protectionism
Are these legitimate purposes for taxing?
Art I §8 Cl. 1: may tax for the common defense and general welfare.
HOWEVER, Bailey court is saying that the tax is setting up a regulatory structure, as
opposed to raising revenue.
Congress is really just trying to sidestep Court’s decision about the Child Labor Law
under Commerce Clause.
Doremus (pg. 282)( is using a tax to regulate “dope” to stop dope fiends from getting
drugs.
 Court here says that the tax is Const
Court looked at McCray v. United States, the margarine case.
 Placed a 10 cent pre pound tax on all margarine colored yellow.
a. Would have otherwise killed the butter industry
 SO, this was a trade industry tax – protecting the butter
 COURT upheld the tax in this case
United States v. Butler (p. 283)(taxing and conditionally giving revenue to
farmers)(1936)
Agricultural Adjustment Act of 1933 was passed b/c of the New Deal.
 Trying to keep production down and keep prices up
o It was costing farmer more to produce wheat than they sold it for
 Rescuing the farmer: if you stay w/in a certain limit of production you get benefit
payments
o The wheat processor who buys wheat from farmers were taxed part of
their proceeds.
o That tax was given to the farmers. The farmers could take it or leave it
 If the farmers netted more w/ the limited production and benefit
payments than they would have by producing more w/o the
payments, it made sense for them to do so
Court says:
 Their job is not to pass judgment on the wisdom of statutes
 But rather to see if the statute “squares” with the Const
The Court makes these statements due to criticism for striking down anything in New
Deal
Looking at Art I, §8 Cl. 1 – most radical reading is that the second clause could stand
alone: that Congress has the power to “provide for the common… general welfare.”
 If this were the case, then why would Const lay out the other enumerated powers?
REAL interpretation: Congress may tax and spend to provide for welfare.
Madison says this means: taxing and spending may be used to carry out the other
enumerated powers.
Hamilton the spending can be used to provide general welfare and that spending need
not be used to carry out the other powers.
 Court adopts this interpretation
The tax is ok: it’s not regulatory nor a penalty
But Rather, it invades upon the power of the states.
The tax pans out to be a regulation of agriculture, which is typically a State power.
 Says that the is coercion on the farmer – an “offer you can’t refuse.”
But can’t the gov’t put some conditions on the receipt of federal funds?
 Court says that if the spending is inducement then it is Const
 If Coercion then UnConst
The farmer was in the position where he had no choice but to take the funds, given the
national economic climate.
 This, along w/ the Federalism issues (treading on State powers) seriously troubled
Roberts
Self-contradiction of the case: the court is considering the commercial aspects, but the
commerce issues don’t really apply at all here if they adopt the Hamiltonian view
Steward Machine Co. v. Davis (p. 288)(1937)(Gov’t used taxing for State
unemployment law)
There was going to be a tax paid by employers to Fed. The tax was going to be used for
unemployment compensation at the federal level. HOWEVER, is States set up an
unemployment compensation system which was deemed adequate by Sec of Treasury,
and employers chose to make contribution to State unemployment system, 90% of the
money the employer paid to the federal system is a CREDIT on their federal income tax
SO, there were certain minimum conditions that the State systems had to meet in order to
satisfy the contribution benefits of the employers.
Difference b/w this and Butler: the latter was a deal w/ the farmers; this case is a deal w/
the States.
Cardozo upholds the statute.
In a way, this statute is much more intrusive on State powers than was Butler.
Steward Machine is really the model for most of the federal/state cooperations.
Are there MODERN constraints on the spending power?
DOLE TEST
South Dakota v. Dola (p. 291)(1987)(SUPER IMPORTANT)
Statute prohibiting under 21yr old drinking age by withholding federal highway funds
from state who refused to enforce it.
Rehnquist says there is a four-part test that we should use for spending power:
 Must be in pursuit of the general welfare
o But courts should defer substantially to the judgment Congress
o Congress has broad discretion to determine what general welfare is
 If Congress desires to condition States’ receipt of federal funds, it must do so
unambiguously
o State needs to know, specifically, what it needs to do in order to receive
the money
 This is a response to Pennhurst State School & Hospital v.
Halderman (1981): statute had a “whereas” clause, which was sued
on…
 Conditions must be legitimately related to the federal interest in the national
project/program
o Federal interest in this case was to get roads
o Connection was that people who are young and drink are new drinker; also
they are new drivers; the two don’t mix and Fed wants safe highways
o THERE MUST BE A RELATIONSHIP B/W ON WHAT YOU’RE
SPENDING THE MONEY AND WHAT YOU’RE REGULATING
THEN IT IS UNCONST


 Otherwise Congress is simply regulating general welfare
Can’t make a condition that is inherently UnConst
EXTRA: there can’t be a coercive penalty – a “you have no choice” penalty
o Echoes Steward Machine
2/6/2006
In the 1930s, two cases nicely define the older approach to the spending power and the
New Deal approach
US v. Butler Statute doesn t measure up with the Constitution because it coerces
farmers to comply. There is a separate power and a spending power and they don t have
to
be in aid of the others.
The very next year, Cardozo in Steward Machine begins the more modern treatment of
spending power there was no undue influence/coercion in encouraging states to
cooperative federalism.
Five part test in South Dakota v. Dole:
Today, a different source of Congressional power:
The Reconstruction/Civil Rights Amendments
They brought the most radical change ever to the Constitution
Asserted federal authority over the States
First ten amendments originally only constrained federal government, until Due Process
of
14^th made most of them binding on states
Congress adopted 13^th amendment to abolish slavery and involuntary servitude
14^th Amendment: No state shall make
This is the first time the Constitution was saying to the states that they may not make
laws that abridge privileges or immunities, etc
All three Amendments (13^th , 14^th , 15^th ) had enforcement powers in Section 5.
The 39^th Congress thought they needed a broad civil rights statute, and they passed it
in 1866 (see bottom of page 458).
Did the federal government have power to tell states how to write their contract law?
Did they have it in the enforcement clause of the 13^th Amendment? Yes. It wasn t only
servitude that was abolished by the 13^th , but the badges of servitude, servitude under
the law lack of equal protection and due process.
Congress rushed the 14^th Amendment through to give insurance to this idea, due
process,
etc.
How broad is that source of power given to Congress that is in the Reconstruction
amendments and their enforcement power?
_Katzenbach v. Morgan_
Voting Rights Act of 1965: if you ve been educated in an American-flag school (schools
in
US territories that aren t states. The people there have similar rights, they can vote,
but they have no congressional representation. So, what about Puerto Ricans that are in
New York?)
This part of the VRA states if they have completed the sixth grade, they have the power
to vote. NY Attorney General can respond: SC in 1959 said that an English language
literacy test did not violate the amendments. NY has passed a literacy test just like
those that had been approved in the Lassiter test. Purporting to act under '5, how can
Congress say that something validated by the SC is now unconstitutional?
So, what power did ' 5 give Congress? The power to disagree with the Supreme Court?
Even if it s not unconstitutional under ' 1, Congress can go beyond1 14^th Amend, ' 1
and
enforce higher standards of protection, because section 5 if an expansion of power
beyond
what the Supreme Court says is the federal minimum.
Congress can hold hearings, talk to constituents, and can make different takes on what s
happening in the world.
So, there s a conflict between the judicial and legislative branches (and there s also a
conflict between State and Federal, but we ll get to that later) (horizontal AND vertical)
Why is there the power in Congress to second-guess the courts?
Section 5, under Constitutional text itself, says that Congress can do something
different than and potentially more than the courts can do. It s simply augmentary, and
that s what Congress is doing here.
What did Congress think it was doing here? They saw discrimination in housing,
healthcare, education and that violates the Equal Protections Clause. One way to fix it
is to bring individual lawsuits under the EPC, but there s another way to remedy the
problem, which is enfranchisement. Puerto Ricans could call up their elected officials
and go from there. Congress is using this to vindicate equal protection rights of Puerto
Ricans.
Congress can identify the problem and find ways to fix it.
Supreme Court can ask only: is the end legitimate, and is it Constitutional? The Court in
Katzenbach v. Morgan is saying that that decision should be made by Congress. The
court s
question is only if Congress has exceeded its power to act reasonably under expansive
Section 5 powers legitimate ends and reasonable means to accomplishing it.
Important question: Congress is telling the Court and everyone else what Section 1
means.
That s not right, say the dissenters.
Hierarchy of things the Congress could be doing in the exercise of its Section 5 power:
1. Congress is limited to enforcing remedies for Section 1
violations, deferring completely to Supreme Court on what Section
1 permits or requires
2. Congress can create complex remedies that the Court won t be able
to do on a case-by-case adjudication
1. After 15^th Amendment, there was a strong disenfranchisement
effort in Southern states near the turn of the 20^th century
2. This was a result of creating other devices, such as poll
taxes, literacy tests
i. Gand v. Oklahoma literacy requirement to voting except for those that could vote
prior to 1870 white folks grandfathered in, black folks not
ii. All types of cases like this kept coming up
3. So, in 1965, Congress passed the Voting Rights Act: if there
was a screen to voting, that device is immediately
suspended, assuming that you have fewer than 50%
participation in the previous election (or something like that).
4. Allows federal preemption/enforcement
5. Is this act the same thing as the 15^th Amendment?
6. City of Rome said there had to be an intent to discriminate,
so where does the federal government get off now saying that
we can t do these things when there isn t an intent to
discriminate (prophylactic remedy to catch bad behavior
before it happens, Court in Katzenbach v. Morgan says this
is okay)
7. But they extend that not only to intentional discrimination,
but if something has discriminatory effect
2. Prophylactic remedy (see above)
3. Arguable remedy a right that ought to be there under Section 1,
even if no case has even been brought about it or there s no
evidence of discrimination against a certain group
4. Conflict with the court
_City of Boerne v. Flores_
First Amendment of Constitution guarantees the free exercise of religion
But what happens when a free exercise rights come up against a contrary government
expectation
Previously, the Court asked, are you sincere in your religion and does the government
regulation substantially burden your exercise? If yes to both, they d have to weigh the
government s interest.
Scalia says in Employment Division v. Smith, we re doing a new rule. If the statute is
neutral we re not gonna get into this balancing act at all.
People didn t like this, so Congress passed RFRA, saying that states cannot interfere
unless they can show that interest of the state outweighs the interest of the individual
going back to the old test! It restored the rule that the Court had abandoned.
The court said the RFRA was not Constitutional, because Congress cannot substitute its
constitutional judgment for the Court s. The Court gets to decide what all the federal
law means, including the free exercise clause of the first amendment. Congress can
ENFORCE, but Congress cannot DEFINE what is or is not constitutional.
Congress does not enforce a constitutional right by changing what the right is. It has
been given the power to enforce, not the power to determine what constitutes a
constitutional violation.
Congress responded that this is a */prophylactic/* remedy. Court says we ll allow you to
do this, as we did in the Voting Rights area, but it has to be congruent and proportional.
The key teaching of City of Boerne, Congress may only do prophylactic remedies to take
care of problems difficult to capture but by remedies that are congruent and proportional.
Court says RFRA is way out of proportion, because there is no evidence of systematic,
wide-spread discrimination against churches, etc.
In US v. Morrison (Violence Against Women Act), Congress had a huge legislative
record
and evidence, which compelled them to create a prophylactic remedy. But even then,
there
wasn t a wide enough picture to find it proportional. The court will now look to
remedies
passed under Section 5 and make sure they fit nicely to the scope and nature of the
violations. If they do, it s not outside of Congress power.
Tomorrow, 11^th Amendment
Wednesday, 10^th Amendment
Con Law
02/07/06
Focus on NY v. US, Printz case, and 351-352 (not so much discussion after)
Limits imposed on Congressional power as it relates to states’ sovereign power. THIS
court is interested in federalism.
11th amendment: one of the limits placed by early framers on the power of the courts.
Setting the context:
Several states had made bill of rights a condition of adopting constitution.
11th amendment is about Judicial power – saying that courts shouldn’t allow citizens of
another state to bring suite against a different state, nor a foreign citizen… why?
 Courts had a lot of debt
 And during revolutionary war they had commission people to do things (make
coats, cattle, etc)
o One person brought suit against GA in federal court b/c they had made
coats and GA hadn’t paid
 GA didn’t show up (it is a sovereign power), so court filed default
judgment
 Supreme Court agreed w/ lower court
 IN RESPONSE, states drafted 11th amendment in a matter of
weeks in order to give the states some protection
 These states really did not want to meet their creditors in a court of law where
they might have to pay w/ money they didn’t have
th
11 amendment is really quite limited: only applies to foreign citizens (states/nations)
 However, in Hans v. LA case, court decided that 11th really stands for something
more that’s behind it (sovereignty), so even though citizen was LA vs. Louisiana,
they wouldn’t allow claim in federal court.
o Many States had voluntarily given up immunity
Ex Parte Young: there is power of citizens to sue state for injunctive relief
 However, remedy is injunction, NOT damages
If the issue is to protect the treasury, as a sovereign, whether it be injunction to pay
welfare OR damages doesn’t matter… both adversely affect future treasury, but Court
said this was OK
42 USC §1983
Anyone acting under color of state law may not deny someone a right guaranteed by
Const – remedy is against officer, NOT the state
 May have private damages against the officer
 Under Ex Parte Young, could have injunctive or declaratory relief
 BUT COULDN’T have damages against the state
Congress might have power to require a state to give up sovereign immunity in a
particular case (under Art I §8 enumerated powers).
 Seminole holds that Congress did not have power to reach and require a state to
abrogate its sovereign immunity
o They read the 11th amendment for the presuppositions that back it up
 Each state is a sovereign entity
 It is inherent in sovereignty to not be amenable to suit w/o its
consent
 By private citizens
 EXCEPTION: 11th amendment does permit US as a
sovereign to sue
o Concern is they don’t want private citizens to raid
the treasury, even if they have valid claims
WHY are they so worried?
 There is the potential for a lot of liability
 AND they believe that states really are sovereign
ONE MORE EXCEPTION:
 Local gov’t is NOT “the State” for 11th amendment purposes
 SO, suits against cities, even though they are delegated authorities from the state,
are allowed b/c they DON’T have 11th amendment protection
Case that CLARIFIES what we’re talking about…
Art I sec 8 powers can’t force states to abrogate…
Cl 8 has to do with patents/copyrights/trademark
Florida Prepaid Postsecondary Education Expense Board v.
College Savings Bank
There was a patent put out on a savings device for college. Somebody had that patent,
and state of FL started to use that method. So, somebody sued FL b/c of patent
infringement.
FL’s response: they’re sovereign and private individual may not sue for damages in
federal court.
However, the only place you may go for patent claims is federal court.
Issue: Congress has power to issue patents and if you violate them you are answerable in
federal court.
 FL says no, according to 11th amendment, they are not subject to suit
 Response: 14th amendment says you may not deny property w/o due process of
law
o Court says there is no history of sates infringing patents
 So there is no need to hear this case
Rehnquist suggests that if there was a pattern of this infringement then there might be a
recourse.
Dissenters: if there is NO other remedy, this is a perfectly acceptable course of action
Alden v. Maine
Even if you have a Const violation, you may not have a recourse to the state courts.
 If sovereign is immune in federal court
o Sovereign is immune in its own court
Kimel v. Florida Board of Regents (ADEA – age discrimination in employment act)
Source of Congress’ power? – 14th amendment, §5 power to enforce §1.
Does Congress hve the power to pass an Age Discrimination in Employment Act?
 Yes, the privileges and immunities and due process clauses, but probably Equal
Protection clause of 14th amendment - §1
 This is an employment contract, these problems may be aggregated – Commerce
Clause power
o Substantially affects commerce since it is a commercial item itself
o Since 1930s Congress has been able to regulate employment in a number
of ways
What’s the problem, then?
The limits on Congress’ power – disproportionate remedy
 Disproportionate to any UnConst conduct that is targeted by ADEA
 Every law discriminates:
o There must be a legitimate end
o So we require congress to have some rational relationship b/w the law and
that end
 i.e. if it’s at least conceivable that age is related to driving safety,
16yr old license statute upheld
o Strict scrutiny:
 END would have to be compelling
 Means would have to be very narrowly tailored
Court says that at least when Congress is applying this to the states – allowing private
damages – you’ve gone too far
State would say that they are doing the peoples’ work – they shouldn’t have federal gov’t
telling them how to structure its own workforce.
Board of Trustees v. Garrett (p312)(2001)(current Court’s theory)(ADA – disability)
A few sad stories about Title I ADA 1990.
Title I requires states to make “reasonable” accommodations for disabled workers.
I.
II.
III.
the role of the court vs. the role of Congress
a. Court has authority to define substance of Const guarantees
b. §5 Leg
i. Create Remedies – looks at Const interpreted by court and creates
a remedy
ii. Create Complex Remedies – something the Court has yet to define
iii. Prophylactic – Congress knows about a lot of activity violating an
amendment or something, so it writes the statute that is larger than
the wrong but catches it
1. when using this remedy, it must be congruent and
proportional
a. if you don’t, then Congress is defining what the
right is (which is COURT’S responsibility)
identifies the scope of the Const right at issue
a. Court has said they only need rational-relation test w/ disability
discrimination
b. Since the Const wrong is relatively small, the remedy must be congruent
and proportional
c. And it is not, b/c of III below
Leg history shows that a lot of states are not discriminating based on disability
Con Law
02/08/06
will move into Presidential powers…Don’t spend too much time on Federalist papers
make sure to read the case YOUNGSTOWN
Congress has power:
 Under Art I §8
 14th amendment, §5
o has internal limits:
o While you have the §1 rights, there are also rights to us (privileges and
immunities, equal protection clause, due process)
o §5 enforcement possibilities from Congress (City of Boerne)
 Create remedies to enforce rights already established
 Create Complex remedies (implying a right to sue)
 Prophylactic remedies
 Forbidding a wrong (racial discrimination) w/o proving
intent
 Court has said they will allow these remedies


o But they must be congruent and proportionate to the
wrong
Congress can’t create new §1 rights
 i.e. can’t declare animals are entitled to equal protection
under 14th amendment
Congress can’t completely disagree w/ Sup Ct
11th amendment shows the external limits of federalism
 On its face is a rule of construction
 Looks like South Carolinian can’t sue GA
o But in Hans Court decided that it prohibited any citizen of any state to sue
any state w/o its consent
 Also concedes that there are ways for redress: sue the officer of the state via
injunctive relief/declaratory action
 ALSO have USC §1983 relief:
o Can sue the officer for damages
 Not a violation of sovereign immunity b/c you are asking for
damages from officer, not state itself
 Local municipalities are not considered sovereign for suit/damages purposes
Starts to get complicated, b/c Congress had assumed that it can abrogate state immunity
by using its Art I powers.
 In Seminole Tribe case, Court held Congress could not make state give up
sovereign immunity like that
 In Florida Prepaid Court held the same w/ patent laws.
HOWEVER, state could be stopped w/ injunctive relief or by having the US as a
sovereign bringing suit against a state
14th amendment
comes after 11th, so it supercedes it when there is conflict.
W/ 14th it is saying that the state DON’T have sovereign immunities in these cases.
 Congress can enforce through prophylactic Leg
 BASICALLY, state immunity can be abrogated unilaterally by using 14th.
Kimel v. Florida Board of Regents examines EPC (equal protection clause)
 If the legislation is about race/ethnicity, Court will broadly protect those people
o The END of Leg must be compelling
o And the MEANS must be narrowly tailored
 There is a large right to be free of race-conscious Leg (only about 5% of this type
of Leg survives)
o And court will uphold that against you
 On the other hand, there is the rational relation test (under which most issues
fall)
o The END must be legitimate
o The MEANS must be conceivably related
 NY passed ordinance that said they don’t want signs that move
through traffic on the sides of buses
 B/c they don’t want people to walk into the street while
watching the sign
 Exception: you can put signs on your own truck if you’re
selling merchandise
o The exception was challenged, but ultimately
upheld (even though it was very loosely tailored)
So in Kimel, they have age discrimination – deemed to be under rational relation test.
 But the wrong – age discrimination – is a much smaller wrong. However, they
made the remedy to large and thus it was not proportional/congruent
o There wasn’t a big pattern of age discrimination
o AND the remedy was overly broad – prophylactic
 Although 14th amendment §5 does trump 11th amendment, if the
remedy is prophylactic it must be congruent and proportional
ALL we’re really talking about w/ 11th amendment is if there is special limit on
Congress’ 14th amendment §5 power.
Garret
Dissent says this is nonsense:
The whole purpose…
Congress is a Leg, under rational relation test Court should leave Congress alone
 Court says no – with respect to abrogating State powers you must be careful
Hibbs
Congress passed act that made states give family medical leave
GENDER has an intermediate test:
 END – important
 MEANS – substantially related
B/C Gender rights are more important than age rights. He found that there is much gender
stereotyping that goes into employing.
THUS upholds statute.
DISSENT: says he is not looking at what states do at all
AND that there is no Const right to have leave
 CJ says the reason they don’t have leave is b/c of gender stereotyping
o And thus he can infer from absence of medical leave in those states that
there is gender discrimination
Tennessee v. Lane (p324)
Got somebody charged w/ criminal matter, comes to courthouse on arraignment, can’t get
to second floor b/c he is in a wheelchair.

Refuses to be carried upstairs
Could he bring a suit against TN for violating Title II of ADA?
Title I had already been deemed UnConst by Court.
Court upholds Title II, in part by showing rights on bottom of pg. 324
 If those rights are being withheld, Congress has a broad leeway to enforce
DISSENT: says we’re not just talking about access to the courtroom, but also to all sorts
of other facilities
 Court responds, they will uphold the statute as it applies to Courts, will decide on
other facilities later
11 amendmentlimit: We said earlier that Congress couldn’t permit state to be sued in Fed
Ct w/ Art I §8 powers, but only under 14th amendment stuff…(§5)
BUT this fall, O’Conner said you CAN bring states under bankruptcy procedures.
 5 members say this is an exception to Art I §8 powers under which a person may
bring a state into court
This is an area that is DIFFICULT to APPLY
 These principles are all in motion
There is yet ANOTHER limit imposed on Congress:
10th amendment
“Powers not delegated to the United States by the Const, no prohibited by it to the States,
are reserved to the Sates respectively, or to the people.
Missouri v. Holland (33)
Two thing at play
 Treaty power of US
o The PRES under Art II makes treaty, which are ratified by Senate
 NAFTA, for instance
 This is US as sovereign acting against other states
th
 10 amendment power
This treaty deals w/ migratory birds
Local hunting licenses, etc, weren’t sufficient to protect birds.
So, US and Canada went into treaty:
 passed hunting seasons and limits and imposed upon states
States said that is ridiculous – treads on State powers.
Congress had once attempted to pass national hunting season, was held UnConst
HOLMES says that it is possible Congress might do something under a treaty that it
couldn’t do otherwise.
Art I §8 Cl 18 says that Congress may do what is necessary and proper to enforce its own
power AND those of other branches of gov’t
 Treaty is under Exec’s scope of power
 So Congress can pass what is necessary in order to help treaty do its work
Court does not assume that 10th amendment keeps Congress from enforcing the treaty,
which must be something that Exec believed to be of national importance.
 And just b/c they don’t want local hunting issues to be infringed will not keep
Congress from exercising its power
Holmes ALSO says:
Framers created a Const that would modify a Gov’t that they couldn’t have possibly
foreseen. BASICALLY, Court must act in light of changing circumstances.
After 1937, there was no question as to Congress’ power to reach wage/hour laws in
states.
Was there anything in 10th amendment that shows that although Congress may impose
this power, States have a special protection.
One case said yes
Then National League of Cities said NO, you can’t.
 States operating their normal duties should be free of this Fed control
Garcia (334) changes mind AGAIN.
Says it is inappropriate as judiciary to police lines of what is protected by 10th
amendment and what is not.
Moreover, even if you have areas that are traditionally of state function, State should not
be infringed.
 But WHAT ARE areas of traditional state function?
o Zoos?
o Schools?
 If so, should those not be subject to Fed power?
Really, 10th amendment protection is the one they have in the structure of the gov’t.
Voting, representation – you don’t need Court’s protection too.
New York v. United States (337)
About radioactive waste – have to store it for like 1000 years
A lot of waste comes from private actors.
Act says states must dispose of waste in own states.
 Didn’t work, so came up with a compromise
Outlined in reading notes…
Court concludes that Congress had Commandeered the states.
Governors had said “please do this to us; this is what we want.”
Con Law
02/09/06
Const provision that bears on Congressional power (external) – 10th amendment
Always a waxing and waning of how much more it states than simple text
 We’re in an era where court is receptive to 10th amendment arguments
New York v. United States (p337)(1992)
Address Constitutionality of three provisions of the Low-Level Radioactive Waste Policy
Amendments Act of 1985
Act had three incentives to induce states to dispose of waste accordingly:
1. Monetary: part of surcharge was transferred to Sec of Energy, later to be returned
to state able to dispose of own waste by 1993
a. Art I, §10, Cl 2: No State shall, w/o consent of congress, lay any… taxes
on imports/exports
b. Part of the surcharge goes to DC, then goes back to states who are playing
ball
i. Also Const – Art I §8 cl. 1: taxing/spending power
2. Access: surcharges escalate over time, eventually denying access altogether
a. May congress stop this interstate commerce?
i. YES, commerce power (Art I §8)
3. Take title: if state couldn’t dispose of own waste by 1996 it had to take possession
of waste
a. Must take title of the waste
b. May regulate, but must regulate pursuant to fed dictates
Court says this is NOT Cont (number 3)
If there’s power of Congress (w/ commerce power) over radioactive states.. then…?
 States are sovereign – Congress may not simply commandeer the Leg process
o CANNOT force state to regulate
Fed may preempt the field – stopping the state from acting
 State couldn’t act b/c of Supremacy clause
 Would say state may no longer regulate
o Or regulate in a certain way if they so choose
Isn’t regulating directly more intrusive?
 O’Conner says this is all about how the institutions relate to one another
o Says Fed may not tell NY to enact a NY statute that really comes from DC
US argues:
 State had consented – Fed was simply acting how states wanted them to
o NY said they wanted to work w/ program, then when they didn’t want to
“pay up” they didn’t – they challenged Const of Act
o Why shouldn’t state be able to consent to this type of Act?
 State shouldn’t be able to consent to give up a right of the people
 The right of the separation of State and Fed gov’t
 Is a protection of liberty which states may not give up
Printz v. United States (p348)(1997)(Brady Act and CLEOs)
Act passed about registration of sale of firearms
Someone w/o record could get a gun, someone w/ couldn’t
Couldn’t put program into effect quickly enough.
So, Congress used state officers (CLEOs) to look at the record
Court says that CLEOs DON’T have to do this – UnConst
US argument:
 Not like New York b/c Act commandeered Leg
 HERE, Act is taking control of Executive (a couple local officials)
o Nothing express in Const about commandeering local officials
History:
 In 1900s Fed asked state judges to do certain things
o Like register resident aliens
 Also issue of whether a boat was seaworthy
o Fed required state judge to test it
Scalia says this is simply judges being judges.
Basic argument of Scalia’s of why this is inappropriate (commandeering exec officials)
 Accountability
 Fed SHOULDN’T be able to choose how state resources are allocated
o This one instance isn’t that intrusive – it’s really about principal
 A Fed forest protection Act could require all state forest patrol to
act as according to Fed wishes (if this type of commandeering was
upheld)
 Furthermore, the duty of CLEOs was fairly ambiguous
HOLDING: MAY NOT commandeer executive officers just by telling them to
Well, what about Reno v. Condon(p352)(2000)?
SC was getting drivers license info and sold the info to the highest bidder.
Fed statute told SC that they couldn’t do that.
 Asking SC NOT to do something, as opposed to DO something
Court says its one thing to tell state how to spend their time/resources
 It’s another to tell them they can’t do something
Source of power – Commerce Clause
 SC is simply another market participant
 And Fed is telling everyone in market not to do this
States do NOT have sovereignty concerning marketplace participation
 Toothpaste, autos, etc are regulated
ANALYZING:
Know
 Where the plug is
 Source of Power
 Whether there are limitations on that power
Before we talk about whether or not it’s a good idea
Examining Federal Executive Power
Strategy for limiting Congress is by enumeration (Art I)
Strategy for limiting Executive is by…?
What exactly is Const responsibility of Executive (Pres)?
 We can look at cases to try to figure that out
 But only a handful of cases
Youngstown Sheet & Tube Co. v. Sawyer (p361)(1952)(Steel seizure case)
Truman is Pres
Popularity had begun to sink (b/c of Korea – never a declared war)
10s of thousands dead.
Pres had gotten in huge trouble b/c of his popular General McArthur directly disobeying
an order – stripped of power, discharged
McArthy saying communists were w/in gov’t wasn’t helping
In the midst of all this, organized Labor (close ally of Truman) of steel and employers got
into wage debate – threatened to strike.
Strike would have ceased all operations in American steel (tanks, guns, bullets), and Pres
believed this could not pass.
Day before strike, Truman has Sec of Commerce (D) to take over Steel mills and operate
them
 Really hostility to the management in favor of labor
Next day sent message to Congress, sent another 12 days later
 Gave them option to tell him to do something different
P sued for injunction, got it. Whole process happened VERY quickly.
President LOST – very surprised
WHY?
BLACK
Said there was no power in Const that allowed for this.
Pres has two sources of power:
 Constitution
 Statute (power/obligation to enforce the laws)
Statute question – was there a statute?
 No – there had been a previous statute where Congress had looked at this issue
and rejected an amendment to Taft-Hartley Act of 1947
Const question:
 Commander in Chief
o Even though there was a war…
o To be the Commander in Chief of Navy/Army does not mean his is
commander of Nation
 His job is to insure victory on the field


But that does NOT mean he may do anything he thinks necessary
AT HOME
Take Care clause (to see law is faithfully executed)
o BLACK says this is your weakest argument:
 To perform LAW – which is territory of Leg
 What he has done, in effect, is write his own law and then enforce
it
Con Law
02/13/06
Central issue since roughly 1994: Congressional power under reconstruction amendments
and the power of individuals to use statutes to sue states.
Now and for a while, issue will likely be executive power when Congress does
essentially nothing (or ambiguous) and Pres claims power has been given to him.
 Art II will be main focus for a while
Art I is fairly clear
Art II gives about two powers: Commander in Chief and power to Take Care laws are
executed
Very little law made concerning Exec’s power.
Youngstown – everybody talks about Jackson’s concurrence
 In part b/c Jackson is an elegant writer
 In part b/c 3 part divisions is the most popular way of administering Const law
 Divides world into tripartite power:
o Pres
o Pres + Congress
 When power acts w/ Congressional authority, his power is at max
 Has Pres power plus Const power of Congress
o Student loans: Pres acted w/ authorization of Cong
o Pres – Congress
 When Pres acts against Cong will, his power is at lowest
 Has his inherent power minus Congress’ power to
circumscribe Pres’ power
o Bush doesn’t think Congress has much power to
limit him
 Pres seems to think Art II trumps Art I… but
they were passed simultaneously
11th amendment gives states sovereign immunity – b/c it comes after Art I, Congress
can’t abrogate State sovereignty (11th amendment) by using Art I power


11th amendment trumps Art I
HOWEVER, 14th amendment, §5 (due process) power trumps 11th amendment
o See Goodman (just recently decided two weeks ago)
 Ct unanimously held that if his claims show violation of due
process, 14th amendment trumps 11th amendment
Dames & Moore v. Regan (p327)
Rehnquist says Jackson’s framework is what shall be used
 Says Pres acting w/o Congressional authority can be pretty powerful (Congress
didn’t act)
Starts treating Pres’ own inherent power as an important category
Hamdi v. Rumsfeld (p383)
Captured Hamdi in Afghanistan, detained him in Guantanamo bay
 Got it from Cuba during Spanish American war
Why take them there?
 14th amendment is applicable to people subject to US jurisdiction
o no one else has sovereignty over Guantanamo (except Cuba, kind of, but
so what)
 wouldn’t bring people to Germany b/c then we’d have to deal w/
Germans
o So this is a practical holding bay, so to speak (gets around 14th amendment
laws)
Hamdi is found to be US citizen, removed from Guantanamo, brought to US naval brig.
 Father brings writ of habeas corpus
o Can’t deny liberty w/o due process of law (normally means a trial)
 They’d have to give a trial, or at least a civil commitment hearing
War-making power is divided b/w Exec and Leg:
 Leg has power to declare war
o How is this helpful?
 To target a specific enemy – limits Pres’ power
 Will create a specific beginning, middle, and end to the war
 Pres has power to carry out war and make some discretionary decisions
o Mainly on military decisions…
Gov’ts claim is that they are acting under their plenary power of Art II under Commander
in Chief power
 If Pres’ claim is that under his inherent power under war time is that he, and he
alone can make decisions about what will help the war effort
o Then his discretion would simply go way too far


Under this scheme, he doesn’t need Congressional authorization
AND if Congress passed Leg contrary to his decision, they wouldn’t be able to
circumscribe his power
This is aggressive position of Gov’ts argument
 ONLY Justice THOMAS adopts this
Why due process?
 B/C colonists distrusted gov’t
o Gov’t makes mistakes – Trial is way to show gov’t is right (or wrong)
Fallback argument: power comes from AUMF: authorization for Pres to do what’s
necessary to deal w/ Al-Qaeda
 O’CONNER (w/ Rehnquist, Kennedy, Breyer) says they need not look at Art II
question b/c AUMF gave authority, the type of which satisfies 18 USC §4001(a)
(Non Detention Act)
o Which was passed to repeal Emergency Detention Act b/c they didn’t
want Pres to be able to detain again (WWII Japanese internment camps)
w/o authorization
o Could possibly us AUMF to detain citizen helping Iraqis
o B/C they might be able to tie it to 9/11
 Couldn’t detain other terrorists
o WHO makes the decision to see if it is connected
 COURTS – have to decide if Pres is acting w/ Congressional
authority or not.
 W/o AUMF, arguably Pres couldn’t have done this b/c of §4001
They say it’s fine to hold him, but he has right to some sort of due process
 Some sort of hearing – the right to rebut the gov’ts claims
o Should be able to argue that he shouldn’t’ be there
 UNCLEAR how long he should be able to be detained
o Usually as long as the conflict continues – but war on terror is indefinite
 What if war shifts to different group? – we don’t know
SOUTER (GINSBURG) thinks that AUMF doesn’t overcome §4001, but they concur in
judgment.
 WHY?
o Well, if they dissent then he is held
 And he only gets all of the protections that they agree he has
 Which is NONE (THOMAS and SOC opinions disagree)
o THOMAS says EXEC can hold him for just about
any reason
o So, they make this internally inconsistent vote so they can attempt to
impose conditions on how Hamdi is going to be held
SCALIA (STEVENS)
 Const talk about two ways of locking people up
o TREASON: should have a trial in open-court
o Suspension Clause: w/ invasion or rebellion writ of habeas corpus may be
stripped
 Doesn’t say Exec can hold people
 But that Court is not allowed to intervene
 They are relying on a specific canon of statutory construction:
o If you have a list of ways that Const gives for dealing w/ people like
Hamdi, and the way you are dealing with him isn’t on the list
 It isn’t on the list b/c framers MEANT to exclude it
 BASICALLY, Const doesn’t allow this new method of dealing w/
Hamdi-type people
Case up at Supreme Court now: Hamdan (talks about military tribunals)
 Hamdan not US citizen – seized on battlefield (by bounty hunters who turned him
over to US)
o Proof problem – how do we know he is enemy
Military tribunals must comply w/ Geneva convention and US statutes
 Congress passed Act that purports to strip Fed J over people who are subject to
Military Tribunal concerning Habeas questions
QUESTION: has Congress authorized Pres to do stuff that’s UnConst
What are Pres’ inherent power to set-up military tribunals.
May be that new Act strips Sup Ct (or more likely, lower fed courts) of J
Con Law
02/14/06
SKIP ASSIGNMENT 22
Youngstown – The president has all powers that are under Art II and all power that
Congress may give him under statute (majority opinion of BLACK)
 Also, JACKSON’S opinion is the one everyone looks at
Art II powers - §1 vesting all Exec power to Pres does not mean all power
 As it relates to “Take Care” clause, §3, he must carry out the laws that
CONGRESS have made
o He may not make Leg acts himself
 Commander in Chief makes him in charge of Military, NOT the country
o Cannot simply take action that assist him in wartime duties outside theater
of war
The fact that Congress had basically said no to seizures (looked strongly like this to
majority) is important
 Under this situation, Pres can’t act like this
Majority of votes say that Pres DOES have some sort of EMERGENCY powers
There was really a paucity of cases on Exec power before Youngstown
Dames & Moore v. Regan (p372)(1981)(Iranian asset freeze/suspending claims)
Iranians seize American embassy in Tehran. They wouldn’t let US people out – went on
for a year. The question was really: “what are we going to do?”
When Reagan was elected, an agreement was made w/ Iranians – as oath was made to
make Reagan Pres the Iranians would let hostages go.
 In exchange, US wouldn’t keep Iranian assets seized
o Instead, money would be put in Bank of England
 And arbitration for damages (breach of k, etc) would be held, with
damages paid out of Bank of England
Dames and Moore had done work for Iran and sued for breach of k.
 Why was this a problem?
o Agreement said it superceded all cases already pending.
 The Act gave Pres a lot of power – power to cut off liens and holds on money
o But it did NOT give him power to cut off a pending action in a US DC
Act did not explicitly give Pres authority to do this – thus Congress is silent.
 And, according to Youngstown, silence means “no”
HOWEVER, silence here actually means yes.
How do we resolve?
 We look at the legislative history
o In Youngstown, Congress had really looked at the possibly of seizure and
rejected it
o HERE, it is like the things that Congress had given him in other statutes
 AND it would be an embarrassment to Iranian controversy
The HOLDING was pretty narrow (p375)
 The settlement was necessary to resolve major foreign dispute
 Congress acquiesced
 PLUS, Pres offered alternative forum for dispute resolution
Hamdi
Made up new category:
PREVIOUSLY, there were:
 Lawful combatants – troops lawfully fighting for other countries (like Germany)
(in uniform w/ regular troops)
o May hold them as POW’s until end of war
 Mail goes back and forth
 they have done nothing wrong
 simply detained
 Unlawful combatants – not in uniform, come ashore from a submarine trying to
sabotage something in NY
o They have committed a crime
o Actually have trial for these people (Sup Ct upheld)
 Given military trials – actually have punishments (even death,
sometimes)
NOW, there are:
 Enemy Combatants – people in the terrorist networks
o Not lawful combatants – Geneva Convention doesn’t apply
o Not unlawful – can hold them w/o trial (incommunicado)
Scalia and Stevens both say this is not appropriate for US citizens
 Should be tried for Treason (shouldn’t be lawful/unlawful combatants either)
o There is nothing else in the text!
Ginsburg and Souter create the distinction
 AUMF may have contemplated lawful/unlawful, but not the third category
o Thus is inappropriate here
Majority
 Enemy combatant is what AUMF targeted
o W/ citizens, however, they are entitled to due process
8 justices there is a judicial role
 Must decide that:
o There must be enough notice
o There must be reasonable opportunity to respond
o Must be before neutral magistrate
 Only after the battlefield – when actually trying to hold person
Might be able to use hearsay (otherwise evidence would be problematic)
 Burden may also shift – D has to rebut evidence presented by US
ALL of this rests on the assumption that Congress has approved this power by Pres by
enacting AUMF
United States v. Nixon (p405)(starts showing limits on Pres power)
9-0 vote for Nixon to turn the tapes over.
Nixon appeared by special appearance – said he didn’t need to be here
Four arguments
1. Intra-branch matter is not area of court’s J
a. The Pres, attorney General, and Special prosecutor are all intra-branch
matters
i. But there was an executive regulation that bound Pres to deliver
any tapes that were requested by Special Prosecutor – the Sup Ct
could resolve regulation (since it was law)
1. regulation could have been revoked by Pres, but he
DIDN’T do that
a. why not? – he would have been impeached most
assuredly b/c he would be obstructing
2. Presidential immunity
a. Should be able to say what he will turn over
b. Can’t issue a subpoena against Pres
i. Injunctive relief has before not been available against Pres
ii. Court has to decide whether the subpoena should be upheld
3. Executive privilege
a. Pres argues – he needs confidentiality in order to effectively perform his
duties as leader of the nation
i. He needs the candor of his advisors in order to appropriate act as
apex of Exec power as given by Const
ii. Court says there really is this need for unimpeded flow of
information
1. BUT, Pres is really using a generalized privilege argument
a. TEST: must balance his privilege rights against the
rights of the criminal defendant (right to obtain
evidence, etc)
i. Must balance the two interests very carefully
ii. Court should excise all parts of tapes that are
not relevant to this very case – even if there
was other incriminating discussion
1. material must be necessary
iii. PLUS, 6th amendment is much more specific
than Pres privilege
First case on Pres privilege
Nixon v. Fitzgerald (p.410)(1982)(civil case on Pres privilege)
Fitz was fired for being “disloyal”
Can’t sue Pres under these circumstances

Presidential immunity from civil suits
o Pres is such a lightening rod that he would be sued for so many things it
would bog down Pres’ performance
What about Clinton v. Jones (p410)(1997)?
Suit was allowed… why?
 Arose out of conduct occurring before term
o Wasn’t about his conduct as being Pres
What about diverting Pres’ attention?
 Stevens said this shouldn’t take much of his time…
o This STILL opens up possibility for many suits
 They are still a lightening rod… kind of like sham suits against
celebrities
Con Law
02/15/06
Fitzgerald
One qualification to civil Pres immunity: Congress could, by statute perhaps, give a
damage remedy against the President
Harlow v. Fitzgerald
This immunity does not extend to Pres aides.
Clinton v. Jones
Pres doesn’t have immunity to suit from civil actions based on conduct occurring before
Pres took office
 Nor will the Court delay the trial until after his term
Other holdings:
Secret service members do not have immunity – they can be required to testify
Another: attorney for gov’t may testify as well (since he is not the Pres’ personal
attorney)
Impeachment discussion
House of Rep has power to impeach (Art I, §2)
Based on treason, bribery, or other crimes and misdemeanors (Art II, §4)
Why not look to common law for “high crimes and misdemeanors?”
 Not a term of art – this term was evoked by the framers
o Perhaps we can look at the framers’ intent
 Madison’s quote on p. 415 shows they don’t want Pres to be
completely subject to Senate
 Since they replaced the language w/ “…against the State”
 Means that some private actions shouldn’t cause
impeachment
o But rather, something done against the United
States
 However, “against the United States” was removed by style
committee b/c it sounded redundant
And then there’s Ford, who thinks an impeachable offense is whatever majority of House
thinks. I’m not entirely convinced by this…
 He’s basing his statement on “high crimes and misdemeanors”
B/C there is the “Treaty and Bribery” language (the point of bribery being the taking of
money and in response subverting his duty), the “high crimes and misdemeanors” must
have something to do with problems with performing his duty appropriately or abusing
power.
Is this/should this be a justiciable issue?
 Well, Chief Justice does preside
o However, he did not give rulings or anything during Clinton impeachment
 More of a ceremonial role
So it’s really a counterbalancing: does power come from text or the people (or both)?
Administrative Law
Administrative agencies promulgate legislation – actually make rules that are laws.
All of this delegation of duties (lawmaking power) to administration agencies is beyond
the framers’ expectations.
Jud---------Leg---------Exec
Agencies
However, these agencies have added so much capacity to regulate complexities of
modern life – really make our lives better
 Come up w/ correct constraints on air quality
 Or correct constraints on drugs
The Federalist says that representatives are the ones who should make our laws
This administrative theory shows that we want grad students w/ Phd’s and experts in the
field to make the laws.
Some agencies are independent (don’t report directly to Pres), some are not (some quasi).
In 1930’s, people believed that these agencies are not w/in Const framework and thus
UnConst
However, litigation in 1930’s was about delegation of power.
 May be Const as long as Leg gives intelligible principle to Pres on how to act
o Cong must lay down a principle and then Exec may apply it to specific
facts
Panama Refining (p.419)
Involves Pres dealing w/ Hot oil
The only rule was that the standards were subject to Pres’ discretion.
Schechter (p419)
Industrial groups will decide what labor laws are
American Truckers Association
Clean Air agency
Must impose public health rules
And must impose public welfare rules
 All Cong said is that agencies must protect public welfare and public health
Court said standard was vague, but still upheld the statute (delegation)
Congress had later thought – we’ve let these administrative agencies go wild, so they
wanted a way to take power back from them. Thus, the begin inserting veto provisions in
the delegation statutes which create administrative agencies
INS v. Chadha (p423)(1983)
Issue is whether the veto violated the framers’ design.
The INS judge is not an Art III judge, but rather one created by Congress and statute
Basically:
 Congress had said automatic deportation
o Unless you can show INS judge reason to stay
 Which Chadha did
o THEN Attorney General (head of INS – in his department) sends report to
Congress and recommends that Chadha stay
 So, then Representative introduces resolution which opposes
granting permanent residence 6 aliens, including Chadha
 Passed easily (silent, non-recorded vote)
o And thus Chadha was ordered to be deported by
INS judge
Chadha’s argument:
 You passed a law (which makes Chadha leave)
o And passing a law requires that it goes to both houses of Congress
o And then the Pres sign
 So, he says this UnConst
Response: Congress passed a statute allowing it
 Rebut – but they don’t have authority to do this
There is a struggle b/w functionalists and formalists.
Functionalists:
 Congress knows it’s giving away a lot of power here
o But they have to here b/c of present realities
 Congress already has too much to do, so they should be able to
send it over to INS
o They either give away all the power and can’t check it, OR they deal with
it themselves (regardless of how many other things they have to do)
 Constitutional argument: Necessary and Proper Clause
o They have to do this b/c the nature of modern gov’t and nothing in the
Const prohibits this
o Something weaker – this is not a bill argument, and thus doesn’t meet the
test of Art I
Clinton v. City of New York (p421)
Congress has a hard time limiting its own spending.
So, the Line Item Veto Act was passed.
Pres will be presented w/ and appropriations bill – he can pass the whole thing and then
line out whichever appropriations he disagrees with
o ACT then puts the money saved from the cancellation into a lockbox
o Must be used to:
 Reduce budget deficit… see reading notes
Court held that this is, in effect, Pres creating laws.
o B/C the law that is eventually passed is one that Pres has tailored
o He takes out certain parts of it and then gives it back
 Like writing a book and then removing pages from it
Con Law
02/16/06
US v. Curtiss—American sales to Bolivia will be problematic, people who violate the
embargo will be criminalized…he took the delegated authority and indicted D here--D objects on the grounds that the charges were unconstitutional
Argument: legislative act is for congress, not president, congress cannot delegate this
authority to the president—Same year as the Panama Hot Oil cases and the Chicken
cases—the distinction is between the external and internal affairs. When states are
involved there’s less unilateral power but in external affairs there’s more?
President as Sovereign
1. Has almost exclusive foreign power through Constitution
2. As sovereign heads up all foreign affairs b/c of stability
In the Foreign Relations area, the president is the sole organ of legislative power,
authority to deal with the Bolivians
Court has already held that the president did have the power but Sutherland is
declaring that there is a preexisting right of an executive.
Congress and their Foreign Affairs
1. Treaties
2. Int’l Commerce
INDIVIDUAL LIBERTIES
--We’ve already started to deal with liberties in framing the constitution
BUT the framers thought the federal government would be the primary liberty-taker, not
states. The Civil War made the country acknowledge that the states might not always be
the best guardian of individual rights, and the Fed might have to create an overarching set
of liberties that the states had to follow.
Equal protection of the law
-Do not come up in the Constitution very much
1619-1776—Although there was an intellectual movement towards abolition in 1776,
there was still slavery in every state.
In Constitution, there is a 3/5 clause—Africans are only 3/5 of a person—Southerners
wanted slaves to be 3/5 because it gave them more votes in the House of Representatives
but slaves shouldn’t be counted as property because they would have to pay more in
property taxes. 3/5 was a compromise made in resolving these issues.
Did the Constitution Endorse Slavery?
It did endorse the status quo. It did take steps to make sure no one ratifying
Prigg v. US—Penn law that says unless you can show the person is a slave, then you
can’t take them back, also err on side of not taking blacks. Supreme Court says state can’t
have a statute that says you cannot remove blacks from their state, it is a Federal power,
not a state one.
Issue: Complicity with bad things? Complicit with Laissez-Faire economics, child
poverty.
State v. Post—NJ has a new constitution that says all men are by nature free and
independent and have natural and unalienable rights. Abolitionists say that all men are
free means ALL MEN!!
Court here says:
1. When does All not mean all? There is a modified sense of the word “all,” because of
society.
2. Also says “why didn’t they just put in some sort of provision that talked about ending
slavery huh?”
3. Also compares NJ constitution to the Declaration of Independence and the US
Constitution where it echoes the NJ Constitution and in that document there still is
slavery. Takes charter of liberty and turns it in on itself.
4. Also he relies on the 1804 Statute of NJ that states that after 1804 any child of slave is
free until they reach the age of 25—we already got rid of slavery. There is already a
process of gradual emancipation in NJ so why deal with it now?
5. Also he relies on the “taking care of old slaves” argument to say that Slavery might be
OK in some cases
Court: It is not the judiciary’s place to free slaves (the “More than men” section of
it). The legislature has passed this statute, and I’ve got to use it, and it deals with
slavery, so what else can we do?
State v. Mann—Person lends slaves to someone else. Slaves starts to run away and she
gets shot. Local DA indicts and prosecutes person who shoots the slave. USSC says you
can’t prosecute someone for shooting a slave because it would be giving the slaves some
rights against their master, it would be contrary to the master-slave relationship.
Dred Scott v. Sanford—Slaves could be either free or slave states. Louisiana Purchase
in 1803 made a territory but in 1820 Missouri seeks admission. North says we don’t want
another slave state so the Missouri Compromise was made that made Maine a state and
Missouri a state. Also there were forever free states in the upper Midwest.
Also the Mexican War and what to do with those states. California comes in as a free
state, then they passed a law to give jurisdiction to courts to hear issues of territorial
rights. The case that comes to court is not from the new territories, but from Missouri.
Con Law
02/20/06
Dred Scott (continued)
Scott argued: he was no long a slave b/c he lived in IL (free state) and Fed territory
(which was free), and under Fed Statute he was forever to be free, even if he went back to
a slave state.
He sued for wrongful imprisonment and assault
Defense: it’s true that this happened but it doesn’t matter b/c he is a slave
This is a diversity J case
 Citizen of one state v. another
Court decides it won’t look at the merits of the case b/c Scott is not really a citizen of the
state, being a state
 So case cannot go forward
 NOT a citizen b/c he is a slave
o But that’s exactly what Scott wants to talk about
Scott is not a citizen b/c he is a slave
 Slave cannot be a citizen
 Why not?
o Argument – African Americans cannot be citizens for Federal purposes
 But you CAN be a citizen for State purposes
o B/C Fed Const did not include this type of person when it was framed
We have a Fed Congressional slavery north of 36 degree and some minutes…
 Scott says that he has resided in free states, so he is free
 COURT says Congress didn’t have power to enact such a statute (Const speaking)
b/c it deprives on of property
o Which violates the 5th amendment – may not be deprived of
life/liberty/property w/o due process
o Only SECOND time Sup Ct rejected statute passed by Cong
Court’s analysis:
Looked at Framer’s intent
 Believed slaves not to be persons at all – certainly not citizens
o Really looked at the standard practice at the time:
 In some states, blacks had to pay $1000 to enter a state (which was
basically not possible)
 Does looking at practice make since:
 Well, standard practice does not imply intent
There were no clauses in the Const about citizenship
Anyway, since the black person was not meant to be under the Const, there was no
Jurisdiction
Why did Judge Taney include the idea that a freed slave is not nor never will be a citizen
 To say: even if he is wrong on the slavery question of citizenship and he is NOT a
slave
o That he still couldn’t be a citizen, Federally speaking
There was the whole idea of sojourning:
 A slave owner wants to travel to hear someone speak, and he takes his slaves
(property)
o He shouldn’t have to give up his slave just b/c he traveled somewhere
This case roused up a fury in the North NOT b/c one case was lost, but because Court
made a statement about the future of the Nation
 That freed slaves and blacks could not ever be citizens
Case had enormous impact leading toward the civil war:
 It was clear Court was going to bar slaves being truly free
 South was not happy about rest of country’s reaction
Was the war fought over the issue of slavery?
 For Lincoln, preservation of the Union was the primary purpose

o He would have done so leaving the slaves as slaves, or the way it really
happened – whichever worked
South was really upset b/c Fed was impeding on States’ rights
Emancipation proclamation:
 Told Southern states that if they do not come back and join Union then he will
free the slaves
o If they come back then they can keep slaves
Gettysburg Address:
 States that war is not only about Union
o But also about equality (adopting language of Dec of Indep)
After the war is over, and the guns cease – who is in charge???
 Congress passed Leg – if you ratify 13th amendment, civil gov’t is encouraged
o But immediately, like Ex Parte Cardle, states start passing things like
Black Codes
 Kind of peonage – a type of second or third-class citizenship
Northerners are furious – this is not why they fought and won the War!
So, they passed the Civil Rights Act of 1866:
 Everyone born in US, not subject to foreign powers, excluding Indians, are
citizens of US.
o This is basically Congress trying to overrule Sup Ct (Dred Scott)
o Since they’re uncertain about this part, they immediately start rushing the
14th amendment into law
HERE – Congress is making law for the states
 Isn’t telling the states how to make their tort laws or contract laws or whatever
o BUT that they must apply equally to whites/blacks
Does Congress have power to do this?
 Best argument: 13th amendment, §2
14th amendment, §1 not only gives blacks Fed citizenship, but also State citizenship
 Did not want any dispute about citizenship
o Did not want states attempting to deny black citizenship
 ALSO tells states that they may not abridge the privileges or immunities of
citizens of the United States
o Language comes from Art IV, §2 – comity clause guaranteeing equal
treatment in different states
 If a NC goes to VT, NC guy must have same privileges as those in
VT
 Guarantees interstate travel and such
o So, this just transfers the idea from state-to-state to Fed-to-state
Southern states are still extremely hostile
 Fed dissolves State Leg
 And has Union generals sit in charge of military gov’t
o Says Const conventions (where blacks can vote) must be held
 And it must pass the 14th amendment
 And only then (w/ some other conditions) will State be
allowed its Leg back
This makes South White states mad – political violence breaks out
 Like KKK dragging and killing blacks
Eventually the 15th amendment is adopted as well
 Wasn’t adopted immediately b/c many North states didn’t allow blacks to vote
o AND since there were so many slaves in the south, the Southern
population would outnumber the north
Anyway, states want control back:
 A depression occurs, so there is a huge shift in Congressional make-up
 Dem’s were about to win PRES, so a deal is struck
o There were disputed votes in 4 states
 South states said they would count disputed votes as Rep for Pres
(Hayes)
 IF they could count them as Dem for governor
 In return, all supervision must be withdrawn
Slaughter-House Cases(p460)
 Statute gave exclusive rights to slaughtering to a single company in a large area
o Really gave monopoly power
 Which was ridiculous – butcher would even have to pay the
company a premium
SO, butcher’s brought suit in Fed court, saying Statute was UnConst
 Said no privilege or immunity shall be abridged
o And that choosing your own vocation is a privilege (as in England)
Court says:
 The Amendment was made to protect the newly freedmen
o So, history of amendment: was MEANT to protect newly freed slaves
Butcher responds:
 The 14th amendment just flatly states the above, W/O any mention of race
o SO, why doesn’t the plain language of the amendment govern???
Which should?
 It seems as though the plain language should govern
Also, look at Federalism!!!
 This would let any unhappy person who thought a state was abridging their rights
to complain to Fed courts
o This would be a very big affront to Federalism
 COUNTER: but this is what the amendment drafters did – tough shit
Sup Ct didn’t want to become perpetual censors of State Leg
THIS is Sup Ct’s first attempt at interpreting 14th amendment
Several cases afterwards began reading it narrowly.
Most important (for our purposes):
Civil Rights Cases (p462)
2 Const theories:
 This statute is supported by 13th amendment
 Supported by 14th amendment
Justice Bradley strikes these arguments down
Most of the people who passed the 1875 Civil Rights Act were the ones who passed
13/14 amendment
What’s the problem w/ the argument?
 14th says no STATE shall deny you equal protection
o and Statute prohibited individual action
o And Fed statute cannot reach individual actions of discrimination
How could it be viewed as state action?
 If a State refuses to protect equal rights, then it is really state action
13th amendment – says slavery and involuntary servitude shall not exist
 Court here says to apply that idea here would stretch the idea too far
o This really doesn’t have anything to do w/ slavery
SO, we have a trend of more a more narrow readings since the adoption of the 14th
amendment!
Con Law
02/21/06
In aftermath of civil war, there was a bunch of Leg to “assure freedom of slave race…
make slaves citizens.”
In Slaughter-House court seemed to pull back a little bit.
How could Court have both said
 We’re going to recognize/assure liberty of freedman
 But we’re going to pull back
Answer – this is white butchers, not blacks.
Did framers intend to radically change the relationship b/w Fed and State?
 Was it in some respect, 13th, 14th, and 15th emergency Leg?
o At some point, doesn’t that power have to abate (since it was also initially
passed to control the states right after Civil war)?
It seems as though in Slaughter-Houses that Court was saying so much power shouldn’t
remain in Congress
 And w/ Civil Rights Cases power was reduced more
So, perhaps the white butchers (as opposed to freedmen) provided an opportunity to reign
in some of the power the three amendments gave.
And it seems like, on-by-one, Sup Ct was breaking the amendments in half via the cases.
Civil Rights Cases
Basic holding about 14th amendment?
 Denied that 13th/14th gave Congress pwr to prohibit private discrimination in
public accommodations
o Must have State action – this had NO state action
Plessy v. Ferguson (p464)(1896)
LA statute requires separate railway carriages
 Honestly, railroad was not happy about this Leg – had to double cars
 Wouldn’t this be automatically UnConst, since it is a State action (statute)
o In light of Civil Rights?
Nope, statute is Const – why?
Judge says the object of 14th amendment is equality before the law
 BUT Const does not impose social equality
o Having separate cars has nothing to do w/ equality
Says if blacks were bothered its their own psychological problem
 And if whites were separated they wouldn’t have a problem
This opinion treats itself as if it is the natural order of things
 But is really an imposed order of things
[Equality does not necessarily mean that everyone will be treated the same]
Rights:
 Civil rights – right to participate in public life
o Sue/be sued, make contracts, own property, go to court
 Political rights – be able to vote/stand for office
 Social rights – at the discretion of the citizens themselves
o Right of association – who’s in your church… club
 Radicals claimed law ought to reach social rights
 Natural rights
Is this case about social or civil rights?
 Court seems to think it is social
o And that they must separate b/c it is social rights
Defense argues;
W/ this type of Leg being upheld, we might run into crazy regulations
 Separating by blond/brunette
 Or having people walk on separate sides of the street
But Court answers that enforcing the statute is an exercise of their police power
 And that exercise must be reasonable
o The above scenarios would be unreasonable
 Reasonable?
o Must give a large amount of discretion to Leg when determining
reasonableness
 Based on: tradition, custom, comfort of people, preservation of
peace and good order
o SO, court thinks this exercise of statutorily granted police power is Const
In the end, J Brown says that this is a local option – if the people want it (as expressed by
Leg) then it shall not be denied to them.
HARLAN dissents:
Says this is about core civil rights, and thus this discrimination is invalid.
 Civil rights say we can’t look at the race of people, under law
If you create laws that validate racial division, you will enforce and Reinforce racially
charged inequality.
What we’re arguing about:
Which rights should be decided about the states…
Cumming (p467)
Richmond said they didn’t have enough money to keep the black high schools to keep
running. And that there is nothing for younger black children – no building
 Black parents had been paying taxes which were goin to white schools
Court said that even if they stopped funding the white school, Blacks wouldn’t be
benefited
 Maybe by requesting that taxes go from white school to black school would have
worked
o So court ruled no remedy asked for
Berea College v. KY
College, private institution, was convicted under statute for allowing blacks/whites to be
educated in the same state
 Court affirmed conviction b/c college was private institution – didn’t have the
same rights as individuals
NAACP’s legal strategy:
Focuses on graduate and legal education.
 If black masses aren’t getting anything …
W/ the amount of money they were given (p470), who should they litigate for?
Gaines (p471)(1938)
There wasn’t a law school available for blacks
 Attacking law schools is a brilliant strategy:
o People don’t care about someone else going to law school – almost no one
goes
o AND it gets the ball rolling as far as higher education
o AND there was no black law school available
The fact this was a 1938 case makes a difference – Roosevelt changed the court over to
those who believe in strong federal gov’t over state.
Sweatt (p473)
Says Court should look at intangibles of law school when deciding if the facilities are
equal
 If one of use was separated out and had own space, own table, have specific rules
(when all others have choice to do what they want)
Con Law
02/22/06
MOVIE
Con Law
02/23/06
W/ all the resistance to desegregation (as shown in the video), how do we get to Brown?
Some say it was a tactical response to the Cold War
 Communists would tell developing countries that we can’t even keep it straight w/
white and black
Also, we fought Nazi Germany b/c it had a racial gov’t (Jews), and then you come back
home to South Carolina and have something similar
 Moral responsibility
 Justice Jackson presided over Nuremberg trials
o Then comes back home to slavery
Eisenhower had appointed a new Justice – Warren
 VERY good about bringing together judges w/ votes and such
There was an increased interest in rights as opposed to power.
Everything above, together, culminated in Brown
Brown v. Board of Education Topeka (p473)(1954)(Brown I)
Court starts by looking at the framers’ intent (of 14th amendment) – by looking at history
 Showed thought that they wanted a broad interpretation
o Main problem for NAACP:
 Several states prohibited desegregated schools – framers didn’t
intend to desegregate
 SO, Court says that public education wasn’t a very central idea at that time
o The context in which segregation was allowed was quite different than it is
in the present day
Is Plessy overruled here?
 At one level, it is – Plessy said that separate was not necessarily unequal, and if
blacks thought it was it was their problem
o HERE, they use social science to show that there is actually some
disincentive to learning
 Many have a problem w/ social science deciding Const law
What if our job is to persuade the governors and women in the movie that their 75 yrs of
social behavior has been UnConst
 Instead of simply overruling Plessy, it seems more pragmatic to argue in a
different way
o Just look at education in a different light
 Helps explain why the practice that has for so long been tolerated
is wrong
So, education is incredibly important in the present
 And social science shows how segregation greatly hinders blacks’ education
So, Brown was all about education
 How was it that later parks and buses were mandated to be desegregated?
o Problem w/ inferiority – it’s not the psychological feeling itself, but really
putting up an obstacle against receiving a good education
 Feeling makes learning more difficult for the black child
Well, then Brown is really a Trojan horse (using education as an instrument)
 State enforced segregation is UnConst
What is the right that is announced in Brown?
 It doesn’t quite tell us
o It tells us what the WRONG is – keeping individuals out of school b/c of
their race
 Seems like that more than one demand for remedy might be
plausible
 Perhaps sentence at bottom of pg 474
Green v. County School Board (p486)(invalidating “freedom of choice” plan)(1968)
Gives clarity to Brown
Says if you have previously segregated by law (or practice)
 Then you the school board has a duty to take a reasonable steps that you can think
of to achieve a result (not just opportunity) where you can no longer distinguish
the white school from the black school
The freedom of choice plan was UnConst – it allowed parents to choose where they
wanted their kids to go
 But ended up w/ a “white” and “black” school
o Even though people were exercising choice, the result was not what was
proscribed
Similar to Tort duty theory – if the school had undertaken the duty to segregate (by law
or practice), then they must have the appropriate result.
This is kind of like some sort of affirmative duty
 Result must show in:
o Students, faculty, staff, transportation, facilities, and extra curricular
ALSO, this was UnConst b/c it could be solved easily – cut district down the middle
(dividing the county would have ended up in desegregated schools)
 Thus, school board did not have a “prompt and reasonable” start as Brown I
proscribed
What about busing?
Swann v. Charlotte-Mecklenburg Board of Education (p487)(1971)
The district was such that if you drew the lines by neighborhood then you would have
black and white schools
 So, they drew non-contiguous school zones
o Brought kids from black zone school to white zone school for a few years
 Then did the reverse thing other years (whiteblack)
This resulted in desegregated schools
However, this was tremendously judicially intrusive
 Required reports on all of these facts of desegregation
 Messes w/ school zones – something usually locally controlled
o BUT THIS IS NECESSARY
 After 10 yrs, if school are still segregated, there must be some
remedy
 So courts must finally step in
o Otherwise they are useless
Keyes v. School District No. 1 (p489)(1973)(section of Denver or whole city?)
At trial – no question that there was deliberate segregation in Park Hill
Question: was district-wide remedy appropriate
 YES – b/c the school board was acting w/ intent, there is likely the same problem
throughout whole district
o Changes assumption (b/c of mal-intent)
First time Latinos are recognized by the segregation problems
POWELL:
Whether or not segregation is the result of intentional action, that shouldn’t matter
 It ought to be enough to say school board assigns people to schools
AND it shouldn’t matter where in the country the problem is – the remedy should be the
SAME
So, what if the school board (of whatever state) hasn’t done anything wrong? If the
segregation is but a function of neighborhoods?
 POWELL says there should be enforced desegregation
o Other judges disagree b/c they think that is too much of a judicial exercise
of power
Milliken v. Bradley (p492)(1974)(Milliken 1)
Trial court finds Detroit is segregated. To desegregate it would make whites leave the
area and thus go back to segregation, in substance.
 So, they mandate an interdistrict remedy. Const???
NOPE
Sup Court says there is no idea more important than local control.
 This other district didn’t do anything wrong
o So it can’t be required to participate in the remedy
 Unless it set up its lines to keep blacks out
 Or denied blacks who applied b/c of race
o SO, cannot have an interdistrict remedy w/o interdistrict violation or
interdistrict effect
 This would have been the Court overstepping its bounds – moving
around 4 million people (as opposed to 2000 or 70000 as in some
of the cases before)
Con Law
02/27/06
Green decision began ending the tolerance of executive decision-making which
continued to permit segregation
Had to look at every aspect of school to determine that there is no real difference b/w
different schools (segregated vs. desegregated)
Carried over to a much larger problem w/ more students w/ Swann
Then carried over to Keyes to Denver…
And in Milikin the courts said there are limits
 May not bring in suburban schools to fix things
 Can’t have interdistrict remedy
Court said local control is an important consideration
 Must be honored unless they are acting to further or maintain segregation
Brown II (p481)(implementing Brown I)
First decision in 1954 was a liability decision
THIS one was an implementation decision
Why would an immediate remedy have been improper??
Real Problem: Brown I didn’t really tell us what the end goal looks like
 It told us what was wrong, but not how to fix it
Is 9 children in one school desegregation?
unsure
“All deliberate speed?” what does that mean?
If the court allows the extreme tension against decision to stop the remedy, then the right
isn’t a right at all
But isn’t there a practical limit on how far a court’s power extends – on what it can do?
Idea is perhaps the remedy should have been individualized – there were only 5 plaintiffs
before the court.

But then there would most definitely have been more and more cases before the
court
So, WHAT is the best way to provide a remedy?
Is this even a judicially manageable remedy? Perhaps… but we DO know what the end
result should look like
 The problem is getting there
There was not the executive enforcement of the court order that there could have been
 Eisenhower COULD have just thrown Ross Bernett in jail for closing schools
o But Pres really actually regretted nominating Warren for this reason
 Wasn’t prepared to take on broad-reaching social reform like
desegregation of schools
Why, then, did Pres intervene when Faubus of AK brought police to prohibit black
students from entering?
o B/c it was a DIRECT defying of court order
How much power as a court do I have?
How much should I care about federalism and local control?
And how much should I care about a right?
Eventually, affirmed by Green, system-wide desegregation is ordered
MODERN EQUAL PROTECTION CLAUSE TREATMENT
Discrimination…
 Not necessarily invidious
 Nor majority
It can mean just to distinguish, or to single out
Later on, people began complaining that laws had singled them out unfairly
But, all laws discriminate on some level
QUESTION: when are those discriminations allowed, and when are they not?
New York City Transit Authority v. Beazer (p502)(1979)(methadone classing)
Good reading notes
No narcotic users – including methadone
Problems w/ this prohibition:
Overinclusion
 You are reaching too many people
o The rule prohibits people from working that wouldn’t be dangerous
o And the scope of the issue is the people who wouldn’t be safe to work
Underinclusion
 there are other people – alcoholics and such, that would not be caught w/ this
prohibition
o you have not reached out to cover all of those people who would be
problematic
A possible way TA could have acted:
 say methadone is different
o and thus require further screening for users to determine whether or not
they are safe workers
DC rejects this plan, and instead:
 all methadone users are not to be hired when in first year of treatment
o then afterwards, it would be ok – this is because it shows consistency and
commitment to the program
 AND they are never to be allowed in safety sensitive positions
The real argument is that the legislation is not an efficient means to meet the Leg end
 B/c it treats some people who shouldn’t be excluded as excluded
o “shouldn’t be” relative to the Leg end
Justice Stevens, however, says that the conclusion is correct, the rule is too broad, AND it
is an unwise decision/rule.
Is it UnConst to make an unwise choice? NO
 the rule need not be perfect
o but merely rationally related
You can have a rule that is over or under-inclusive
 so long as the rule is rationally related to the end, which must be legitimate
IS the end legitimate?
IS the rule conceivably related to the end?
What’s the ground for making a “worried about” classification?
 Perhaps objects of hostility
We have to allow a lot of deference to policy choices by Congress
 Otherwise, court will have to act as police
Minnesota v. Clover Leaf Creamery Co. (p512)(1981)(milk containers vs. cartons)
P – plastic milk container makers
Leg end – worried about natural resource conservation, solid waste disposal problems,
and conserving energy
So why ban plastic containers?
 Plastic comes out of oil – which is non-replenishable
There is evidence that shows that plastic banning is not helpful for environment
BUT, it doesn’t matter if the Leg is wrong!
 Simply being inaccurate or wrong is not enough
P also says that the environment ends were not really the actual purposes of the statute!
Con Law
02/28/06
End
Means
Race
Compelling
narrowly tailored
Gender
Important
Substantially related
Rational Basis
Legitimate
Rationally related
(presumption of Const)
Beazer (cont)
White’s dissent:
Thinks this is problematic
 P has shown that there is evidence that some methadone users are safe
 Not a Leg body making this decision
o This makes a difference
 There is no study here
o No empirical evidence showing methadone users are unsafe
o Why no evidence needed?

We can’t permit Fed Court sit as a censor of every decision made
by Leg bodies or administrative bodies
 Fed Court can’t commit a study
White also thinks there is a racial element here
 Ex-drug users are disproportionally black/Latino
o HOWEVER, you have to show that there is intent to discriminate
IMPORTANT: footnote 9
Clover Leaf Creamery (cont)
Can’t sell milk in plastic, non-recyclable containers
Ends:
 Protecting natural resources
 Solid waste disposal problems
 Conserving energy
To do that, they made the statute
Respondents actually show that the statute is wrong – plastic is no more harmful for
environment than paper products
 Statute is overruled in both state court and fed court
IMPORTANT: footnote 7!
 Says that Fed Court doesn’t focus on actual purpose
o But rather presumes whatever purposes that have been written down w/
statute (if done so) are the true ones
 UNLESS it is impossible to do so
WHY would they just let any language w/ statute have presumptive correctness?
 Don’t want to open Fed Courts to review every choice made by the representative
process
o Every piece of Leg affects people in one way or the other
EVEN if you can show factually that the means will not actually achieve or help to
achieve the ends, you still won’t win
 You only win if the connection (b/w means and ends) isn’t even rational
Railway Express Agency v. New York (p519)(1949)(advertising vehicles)
See notes for facts
End: traffic safety
 Surely a legitimate end
Is removing those big ads related to achieving traffic safety?
 Sure, of course
BUT, there must be a rational relation b/w the choice of classification and the ends
(furthering traffic safety)
How can this distinction be justified at all?
 It’s conceivable that they may want to reward those engaged in commerce in NY
o Plus, if they simply want to put their name on a vehicle (and their name is
Ringling Bros, with typeface which includes lions/tigers) then it would be
difficult to prohibit (maybe some sort “commercial speech”)
SO, the distinction is b/w one’s own business and a hireling
 While it may not be a compelling distinction, it allows the two classes to be
treated different
o As long as it’s conceivable that this difference makes some sense, is at
least some way rational, then it will be upheld
Williamson v. Lee Optical (p520)(1955)(opticians and glasses)
Opticians couldn’t replace lenses w/o prescription
 Even when eyesight is obvious and clear
Same thing w/ new frames
What’s the possible legitimate interest here?
 Could be that your eyesight has changed
 Or that you have gotten glaucoma or some other eye disease in the mean-time
Is this protection of eyesight legitimate?
 Seems so…
 Could it not be?
o Perhaps…
Who wants this bill – optometrists and ophthalmologists
Who doesn’t? – opticians
EXCEPTION – ready to wear glasses… wha?!?
The means:
 Opticians are regulated
 But ready-to-wear are not
Doesn’t seem fair, nor rational.
BUT, justice Douglas says

It’s enough to do it one step at a time
Is this an equal protection violation?
 Seems like it could be
o They are treating two classes, who are the same, as different
But perhaps they are not the same
 The two classes may be distinguished on some level other than that of achieving
the means
Basic point, EVEN THOUGH the means doesn’t fit the ends very tightly, the law is still
upheld
Why would judges be so lackadaisical?
 They really know how legislation works
o Sometimes Congressmen have different motives for voting for a bill
 And if that different motivation would damn a law, then laws
would have big problem
US Dept of Agriculture v. Moreno (p507)(1973)(family-only food stamps)
To get food stamps, household must consist solely of related people
End of Leg:
 To promote better nutrition
o Probably legitimate
 And to strengthen agricultural economy (encouraging farmers)
o Also legitimate
Are these means related?
 Well, to promote these ends, it seems as though allowing more food stamps rather
then less would be better
P could argue that it couldn’t subsidize the entire country
 And it chose to subsidize families
o Which is a reasonable thing to do, but not related to the ends
So, perhaps there is an additional purpose – to promote the family
 Which also could be a legitimate end (as a policy choice)
This seems at end with the other cases.. what’s different?
There was a purpose in the Leg history that was NOT appropriate:
 Simply discriminating against hippies
Rehnquist’s dissent says that all you’re doing is creating what you’re against out of what
you’re for
 Saying you’re for families
o Could be seen as saying you’re against hippies
One of the things that is likely to be the case:
 W/ commercial regulation, equal protection/rational basis review is likely to be
exceedingly deferential
City of Cleburne v. Cleburne Living Center (p508)(1985)(keeping retarded out of TX)
Particular piece of land where lots can be built but not homes for the retarded.
Se reading notes for facts.
ENDS the ordinance reaches:
 Negative attitudes of people around
o NOT legitimate gov’t interest
 MERE hostility against people b/c of traits is not enough (cites
Moreno)
 Avoiding harassment from school close by
o Also legitimate
 School has retarded people too
 May be a bogus purpose
 500 yr flood planes (once every 500 yrs there could be an end)
o legitimate end
 but the distinction may not be rational
 old person homes or hospitals could be built there
o which would cause just as much of a problem if
there was a problem as retarded people would
 however, couldn’t you say that you can do things one at a time
(Lee Optical)?
Justice White might really be saying that the flood plane isn’t really the purpose
 has a overwhelming sense that the second two reasons are bogus
o that the first one is the real purpose
so, HERE we see that there is not as much deference as there was in the other cases
THIS looks more like heightened review than rational basis
WHY would this case have less deference than the other ones?
 Perhaps b/c it deals w/ people – actively discriminating against a class of people
due to an uncontrollable trait
 Perhaps b/c White is more sympathetic to P
 Or maybe their just using heightened scrutiny here when they usually would not
3/1/2006
Rational basis: legitimate end, rationally related means – not usually much of a demand,
P has huge burden either to show that end is illegitimate or that relation isn’t rational
State has a lot of help, because courts will try to find purposes, even if they’re not stated.
Won’t always look to actual or underlying purpose, but will accept stated purposes
sometimes. They will accept means that are under-inclusive and over-inclusive, doesn’t
have to be the biggest fit.
Is there a heightened rational basis review? It doesn’t have any specific agreed upon
content – changes not the overt language, but the sense of grip when those cases are
adjudicated.
Romer v. Evans
State initiative that prohibited local governments (Denver, Aspen, Boulder) from passing
legislation to give protected status to homosexual. Neither the state nor its political
subdivisions… p. 669.
Gays and lesbians subject only to rational basis review (at least at this time). This statute
doesn’t criminalize conduct, it prohibits a city or state from passing any ordinance. What
possible ground might there be for such.
If the conduct can be criminalized, says Scalia, this Colorado law is saying something
lesser, so it should pass constitutional muster. That is expressing the moral judgment of
the community and that could be a legitimate government interest.
Why was this statute likely to be passed? A lot of people rent their homes out and they
don’t want to rent to gay/lesbian people and they shouldn’t be forced to if they
disapprove of it. A statute protecting those who come before them to sue for
discrimination shouldn’t be permitted. Also, another purpose was to curb
gay/homosexual school teachers from teaching in schools.
Our criminal code is based on moral disapproval, and Scalia says that since we have a
criminal statute based on homosexual conduct, this is okay.
(difference between criminalizing sex act and criminalizes/takes away protection for a
relationship)
Is this really a special protection?
Is there a legitimate end?
Is there a rationally related means?
Kennedy: whatever rational basis there may be for this, this is way to big a solution, this
bans all sorts of protections and equal treatments. So there’s no rational means to the
legitimate end. The means are completely overbroad for the purpose, which we discussed
was preventing landlords and school districts.
Scalia is comfortable with someone saying that this is immoral conduct and we’re going
to criminalize it; indeed many of our laws are expressions of moral disapproval.
All we have is there’s a vague sense of discomfort like what we have in the methadone
users and in the mentally retarded cases.
(adverse to people vs. adverse to economic interests?)
Kennedy: this isn’t about a statute that takes away special rights, it takes away ordinary
rights that others have
After Romer v. Evans, some said sometimes when you see rational basis review applied,
what you have is an early warning signal that you’ll…
ISSUES OF RACE: STRICT JUDICIAL SCRUTINY
Demand a compelling government interest and narrowly tailored means – but this comes
later, not in our early cases.
Strauder v. West Virginia
Black man, Strauder, convicted by an all-white jury
Strauder argues: WV law forbidding blacks from serving on a jury is unconstitutional
Statute was written such that there wouldn’t ever be blacks on the jury
The statute completely discriminates against a particular race
Three main points the court makes:
1. The very fact that colored people are singled out and expressly denied by a statue
all right to participate in the administration of the law, as jurors, because of their
color, though they are citizens, and may be in other respects fully qualified, is
practically a brand upon them, affixed by the law, an assertion of their inferiority,
and a stimulant to that race prejudice which is an impediment to securing to
individuals of the race that equal justice which the law aims to secure to all
others...
2. It is well known that prejudices often exist against particular classes in the
community, which sway the judgment of jurors, and which, therefore, operate in
some cases to deny to persons of those classes the full enjoyment of that
protection which others enjoy…
3. It is not easy to comprehend how it can be said that while every white man is
entitled to a trial by a jury selected from persons of his own race or color, or,
rather, selected without discrimination against his color, and a Negro is not, the
latter is equally protected by the law with the former.
WV statute is claiming that a certain race is inferior. The text of 14th amendment isn’t
clear as to Mr. Strauder, it doesn’t say he has an absolute right to his jury to be composed
of blacks. This might be a purer case if it was a black person trying to get onto jury
service, but 2 and 3 above address how it’s relevant to Strauder himself.
But, it’s the racial character of this statute that is problematic, they uphold the statute’s
gender, age, education, property-ownership dimensions.
But if there was any purpose of 14th, it was to ensure the equal protection of the former
slave race. And this statute doesn’t permit that, because it excludes their participation and
thus their equal protection of the rights.
Strauder didn’t engage in a multi-tier analysis, but this next case does.
Korematsu v. US
General DeWitt issued a curfew, and then a call to Assembly Center/Relocation Center
Court: All legal restrictions which curtail the civil rights of a single racial group are
immediately suspect. Court must subject them to the most rigid scrutiny.
Justification is that there is a war. It’s possible that some Japanese on the west coast are
active supports and we don’t have time to sort out the guilty from the innocent. So, these
means are the narrowest means possible consistent with the military necessity to make
sure there are no saboteurs among us.
For Korematsu, you don’t need 4 years to sort through these suspects and keep them held.
So, if you’re using strict scrutiny, this is obviously not narrowly tailored to the
governmental end. A narrower tailoring could be made: there are several thousand who
want repatriation to Japan and 5000 who refused to swear unqualified allegiance to the
US.
Strict scrutiny applied here: the military told us it was important
In reality, white growers and grocers were unhappy with Japanese and they pressured
General DeWitt into undertaking this relocation.
In war-time, shouldn’t there be substantial deference to the military’s judgment? This
isn’t racial at all, it’s about our enemies!
The headlines of this case:
1. First case to establish strict scrutiny for racial classifications
2. Military judgments largely deferred to
Korematsu and Hamdi relationship?
Jackson’s dissent:
We shouldn’t put the stamp of legitimacy on this.
There is sometimes a disconnect between what happens and what should in principle
happen (realism)
If he were a general, he might have done this himself. But he’s a judge and it’s his role
and the court’s role to say that this is outside the scope of the constitution.
Loving v. Virginia
A lot of resistance to civil rights legislation was discomfort with sexual/romantic
relationships among the races.
The Supreme Court, by 1967, took up this type of case in Loving.
VA: Colored persons and whites can’t marry
Stated purpose: perverse the integrity of the races
This is a racial classification and a clear violation.
Due Process clause: a liberty interest in marrying who I want to
But here, the EPC is more important: strict scrutiny for racial classifications.
This end is not legitimate.
Hunter v. Ericson:
Akron, OH – ordinance passes prohibiting racial discrimination in housing
The populace passes a referendum saying that any type of
SC: This singles out ordinances that are based upon race and says that those have a harder
time getting passed. It’s plain that the motivation is to disadvantage non-whites and it’s
racial language on its face.
Tomorrow, reflect on why there should be strict judicial scrutiny – read language of
Carolene Products Foot note 4, page 767.
Con Law
03/06/06
Once a discriminatory purpose is found, then strict scrutiny is applied.
McCleskey v. Kemp (p569)(1987)(Racially challenges GA’s capital sentencing scheme)
Good notes on facts
Stats:
 B/Wv – 22%



W/Wv – 8%
B/Bv – 1%
W/Bv – 3/%
Isn’t this the “clear pattern” of racial discrimination (Yick Wo)
Decision-makers – individual juries
 But this is still state action, since it is so involved in the jury process
Here, who do you impute intent to?
Who’s right is this that is being violated?
 McCleskey’s – the right to have equal protection against the death penalty being
imposed
o But he’s being sentenced appropriately for the crime he committed
 Maybe something else… kind of tough
There are thousands of decision-makers – each of which makes a decision and disbands
 But the pattern seems pretty clear here
Prosecution argument:
 A lot of black on black crime is relational
o Bar-room brawls; relational
 Black on white was different, people didn’t know each other = more aggravation
o Like robbery and such
But Baldus held all of these factors constant, and found that the odds are 4.3 times as
likely that a black killer will be sentenced to death when the victim is white
What did Court think about these numbers?
 Court said what they are concerned with is D’s jury
o And whether they acted inappropriately
 AND that there are so many factors in a capital case that NO study could
accurately represent the real life situation
State’s real case was that all these studies were just confusion
Another problem w/ case – WHAT IS THE REMEDY?
 Maybe restrict capital punishment in GA in cases where it’s clear that juries made
racial distinction
In the end, Court said this is all about legislative matters – not something Court
can/should do.
 Really making a policy situation based on statistics
o Determining whether or not there is a racially discriminatory problem here
Court says: if it allows such statistics then you would be back w/ armed robbery; burglary
 But shouldn’t you be able to challenge racial discrimination cases still???
There was another case later w/ similar statistics concerning agricultural workers and
racial discrimination
 Court allowed stats, applied remedy
o Easier to provide remedy here
AFFIRMATIVE ACTION
Trying to remedy past discrimination
Detroit Police example:
For 50 yrs it was an all-white force
 How do you fix the discrimination?
o If you start to do remedial work and bring in blacks to be patrolmen, it’s
still going to take 20yrs for them to work up to captain
So, efforts in both hiring and promotion were being made to try to take past
discrimination into account
 Certain % of blacks to be part of police force at specific position w/in certain
amount of time
But whites would say this is unfair:
 Both have been in force the same amount of time but black is on fast-track where
whites aren’t
Question: is this type of thing open to a non-judicial actor?
 City Council; State university; etc?
University of California v. Bakke (p576)(1978)(set-aside seats for med school)
Med school; used program to set-aside seats for “disadvantaged minorities”
The other seats were regularly competed for.
But both categories were letting in blacks/latinos etc
Bakke said he should have gotten in, but b/c of set-aside seats he didn’t
 Const violation of equal protection clause
 AND Title VI claim – if you get fed funds you can’t racially discriminate
What does court think?
LIBERAL justices:
 Want to use “intermediate” scrutiny
o Since this is a benign, beneficial way of discriminating (for minority)
 NOT invidious like it used to be
o This is meant to give a new chance; uplift; to remedy
POWELL:
 Sure, if you have some prior problem you may use a racial classification
 BUT you should still use strict scrutiny
o It is difficult to tell what is benign vs. what is invidious
 Surely Bakke didn’t think this was benign
 Powell says that academic diversity IS a compelling State interest
o BUT, the remedy is not “narrowly tailored”
 B/C this program has a complete “do not enter” category
 No matter what, cannot get into the 16 seats that are
reserved
o As opposed to Harvard program, where race is a
plus
What about all this?
 Look at history of discrimination – civil war, slavery, school segregation, etc
o Perhaps there should be some kind of racial classifications which act to
uplift the disadvantaged minority
Should EPC, in principle, treat everyone the same?
 But we’re already created three different tiers of scrutiny
o Already treated differently
 BUT – we should at least treat everyone the same as it concerns
race
CONSERVATIVE justices:
 Won’t even reach what level of scrutiny should be applied
o B/C it is against the statue so it is illegal
 But if any should be, it would be strict
Cali’s arguments:
There has been past State discrimination
 Powell says you must show some evidence
There has been societal discrimination – we want to make up for it
 Court says you can’t just do this
We want to distribute medical programs throughout the state (in order to give barrios a
better chance)
 No good evidence of this being a problem either
So, what do we do with this?
 No majority opinion
 But there is a majority rationale
This case becomes a road map all the way up to 2003…
Fullilove v. Kluttznick (p578)(1980)(Congress; minority subcontracting)
Congress said 10% of subcontracting from prime contractors must be minority businesses
Why is this a problem?
 B/C there is no reason to believe these MBEs will have the lowest bids
Rationale?
 MBEs weren’t well-developed so gov’t was going to help it
 This was designed to jump-start them
o They hadn’t been able to gain reputation or credentials b/c of
discrimination
Court upholds program – WHY?
 Limited duration of program
 Congress has unique authority under section 5 of 14th to devise remedial
measures for racial discrimination
 No non-minority subcontractor was severely injured
 Waiver provision
Congress HAS acted before, aggressively, to remedy racial inequity.
Even despite all this, this isn’t a majority decision!
Although they are saying that there should be a strict scrutiny applied.
City of Richmond v. J. A. Croson Co. (p578)(1989)(city; same clause as Fullilove)
Except had 30% instead of 10% of minorities
 B/c there was a 50% population of blacks in Richmond
Why weren’t they treated the same as the federal gov’t here?
 Fed gov’t was given power under 14th amendment
o State were told THEY MAY NOT act under 14th
SO, they don’t get the same power
But, regardless, the Court says that ANY racial discrimination, be it benign, invidious,
whatever, must satisfy STRICT SCRUTINY (first time this announced)
So, must find a compelling interest – did they do this here?
 To engage in this kind of contract?
o This was the capital of the confederacy – certainly a history of
discrimination
BUT, Court doesn’t buy this argument:
 The claim that there was past discrimination against blacks isn’t enough
o Must show that there have been CONTRACTING practices that
discriminated against blacks
What about the fact that blacks were 50% of people there, but contracts only awarded to
.67%? why isn’t this enough?
 Another clear pattern??? (Gomilliom)
o Well, it may just be that black people just don’t engage in contracting
o Or perhaps there is some other causal factor
 SOCIETAL discrimination is not enough
o You must prove past SPECIFIC discrimination in the industry
SCALIA says: should not have a race-conscious remedial program
 Should instead have a race-neutral remedial program
Adarand Constructors, Inc. v. Pena (p581)(1995)(Fed contracting racial discrim case)
Con Law
03/07/06
Croson continued:
This is the State setting… why should Congress be held to the same high standard as the
states?
 Consistency, according to O’Conner
o So reads the 5th EPC the same as 14th
o And applies strict scrutiny
Remands the case for strict scrutiny review
O’Conner says they want to dispel the notion that strict scrutiny is strict in theory but
fatal in fact
 That although it is not easy to satisfy, it IS possible to survive
o But there have been no programs/whatever that have passed strict scrutiny
(OUTSIDE REMEDIAL CONTEXTS)
Grutter v. Bollinger (p594)(2003)(Mich Law school affirmative action)
Student says he’s been discriminated against in admission to the law school
 And the only programs that have passed strict scrutiny have been remedial
o When the institution has previously been found to have violated EPC… or
at least used to discriminate
Admission policy is to evaluate based on:
 Personal statement
 Letters of recommendation
 Essay
 LSAT
 Undergrad grades
Made clear no score led to automatic admission or rejection.
Also looked to “soft variables”:
 Enthusiasm of recommenders
 Difficulty of undergraduate course selection
Policy also reaffirmed Law School’s commitment to
 “racial and ethnic diversity w/ special reference to black, latino, native American
o who w/o this commitment might not be represented in student body in
meaningful numbers”
NOT like Bakke, but just uses race as a “plus” factor – Harvard plan
 sounds like what Powell said Bakke should have been like
UMich was trying to reach a “critical mass” of minority representation
 Law School’s assessment that diversity will yield educational benefits is
substantiated by respondents and their amici
o Policy promotes “cross racial understanding
o Helps to break down racial stereotypes
o Enables students to better understand different races
 All this results in:
 Classroom discussion is livelier, more spirited, and simply
more enlightening and interesting when students have
greatest possible variety of backgrounds
Also makes it so “you’re no longer the ONE native American voice in the room”
 When you have different native American voices, other students begin to realize
that as a community they are dynamic and diverse (native American is just an
example of minority)
SO, compelling interest: “Diversity” (interest which was upheld in Bakke)
 Court accepts this principle – it IS compelling
 WHY?
o (has nothing to do w/ discourse w/in university) – Law School is a
pipeline through which students and later leaders of the nation flow
 so it needs to be open to all races/ethnicity
 diversity is NOT seen as a remedy for past discrimination
 NOR for something that is going on in the law school
In Bakke, the Court wouldn’t assume that the med graduates would go to the barrios to
practice
 But here they assume that the students will become nation’s leaders – that
diversity will help ensure that underrepresented minorities won’t be so
underrepresented
Also not that the most important briefs for this case were the amici – businesses said they
are going to need people who are comfortable with diversity and who have been exposed
to it
 Same thing w/ briefs by former commandants of West Point
o It is a military necessity to have a diversity in the force
 And main place they recruit is ROTC, which comes out of
Universities
DIVERSITY:
 In Class (intellectual)
 Social Interaction
 Future Credibility of Leadership
INTERESTING that O’Conner defers to Law School’s judgment that diversity is
essential to its educational mission
 Is THIS strict scrutiny – to DEFER to their judgment?
o Maybe… let’s read Grutter as narrowly as possible – it’s about LAW
SCHOOL b/c of the leadership stuff
 And about university
o She was almost a protégé of Powell’s
o AND lots of Gov’t and Business pressures
o This IS striking
 Do we now have a new deference standard of strict scrutiny –
doubtful…
SCALIA doesn’t think this is a compelling interest at all
Let’s move to Narrowly tailoring:
 Usually, Gov’t must show that there is not a race-neutral way to achieve the ends
o And there is no more narrowly tailored means… something MORE related
to compelling interest
Mich’s point – everyone is qualified.. there are just too many applicants so they choose
people w/ racial consideration
Is there another race-neutral method other than lottery?
 Does court say that there are particular race-neutral methods that should be used?
o They say Narrowly tailoring does NOT require an exhaustive attempt at
race-neutral methods, but merely a good faith consideration of those
methods
TWO Main points:
Is Grutter the law?
 5-4 votes … would you bet on it?
o Is it still good law… if you want to have an affirmative action program
 Well, stare decisis would say it is.. but there are new justices now
What about w/ K-12 education? Is it the same? NO…
Gratz v. Bollinger (p608)(2003)(Grutter companion – helps w/ “tailored”)
150 points, 110 points for academic
University ranked applicants on 150 pt scale
 Students w/ more than 100 generally admitted
o Less than 75 usually rejected
 Received points based on factors like:
o Standardized test scores
o Academic quality of applicant’s high school
o In-state residency
o Alumni relationships
 Up to 110 pts for academic, 40 pts for other
o Up to 10 points for residents
o 4 for children of alumni
o 3 for essay
o 5 for personal achievement, leadership, public service
Applicant automatically received 20 point BONUS for one of these factors:
 underrepresented minority
 attendance at largely minority or disadvantaged high school
 recruitment for athletics
Court says this is NOT CONST
They individuate, but on a numbers basis
Was it b/c race was so big (20)? What if it had been 5… or even 1?
 Court probably would have upheld it
So here, although they say diversity may be a compelling interest, the TAILORING is not
NARROW enough
Con Law
03/08/06
Gratz (cont)
Really, the point system gave too much to race
 It creates a lack of individuation
SCALIA’s dissent in Grutter kind of invites more litigation to test the parameters of the
decisions of the day on pg 601.
So… it’s still acceptable to use race as a plus factor
 But can’t use these quotas… nor can you use too strict a system to give benefits to
race
Is there anything Constitutionally that would justify the Leg branch in specialized
treatment of Native Americans?
Art I, §8 cl. 3
Commerce clause ALSO includes “with the Indian Tribes”
Also
Art. I, §2, cl. 3 – Indians are excluded from population for representative apportionment
and taxation purposes b/c they are SEPARATE
The Native tribes are sort of domestic, independent sovereign states.
 Any treaties w/ tribes are negotiated by federal government
So, Indians don’t have to wrestle w/ EPC when trying to be considered separately.
Rice v. Cayetano (p612)(2000)(Office of Hawaiian Affairs; voting case – 15th)
Hawaii’s Const charged OHA w/ managing huge plots of lands held in trust for
descendants of Polynesians occupying islands before 1778 arrival of Captain Cook.
 Carries out duties of the trust relationship b/w indigenous peoples and US
o Compensating for past wrongs to ancestors of those people
o Helping to preserve the culture that existed before 1778
Issue: who are the trustees of the trust (=OHA), and how are they selected (=vote)?
 But the vote was excluded to only beneficiaries of the trust
Court decides that everyone in the state should be able to vote on OHA board
 This is a straight 15th amendment violation
Dissent says this is like our relations w/ Native Americans and they have tribal elections
all the time.
 Not like those b/c the tribal elections are for members who govern the quasisovereign lands
 Here, the subject of governance is Hawaii – this needs to be a public election by
the state
GENDER
Gender discrimination has a history in this country
Women couldn’t:
 Vote
 Hold office
 Be jurors
 Bring suit in own name
 Married women couldn’t
o Hold/convey property
o Serve as legal guardians of their own children
Reed v. Reed (p624)(1971)(succession, gender, EPC)
Issue: Son dies, mom and dad both want to administer estate… statute in Idaho says
males must be preferred to females w/in same category of hierarchy of intestate
succession
 Surviving spouse; then
 Children; then
 Parents
So, there is no absolute exclusion of women here.
Up to this case, gender discrimination requires only rational basis review
 Legitimate end
 Rationally/conceivably related means
End:
 Reducing court costs and needless litigation
 IS legitimate
Means:
 Preferring males over females (surely will work)
o But COURT (CJ Burger) says this is arbitrary – forbidden by EPC
 There is a stigmatization here… implying that women are inferior
 Perhaps also b/c gender is an immutable characteristic
The suggestion here is that the Court may be getting ready to heighten the standard of
judicial review for gender discrimination
The State could have argued that males had more business experience and were more
likely to have worked outside of the home.
KEY QUESTION about GENDER: is it the same as race or something different?
Frontiero v. Richardson (p624)(1973)(male/female military dependants)
Good facts in reading notes
Can make argument that no-one who is entitled to these benefits is denied.
 BUT, women have to apply
 So, statute is probably a little overbroad
UNCONST? First question is what is standard?
Brennan suggests it should be strict – but can only muster 4 votes.
However, 8 votes said that this classification should fall regardless.
Purpose:
 Administrative efficiency
Means:
 Assuming men are primary bread-winners
Court says administrative efficiency is NOT sufficient justification
 Whether you are dealing with a legitimate end or a compelling one, when dealing
with gender
Craig v. Boren (p629)(1976)(no beer to men (21) or women (18) )
FINALLY get 5 votes to apply intermediate scrutiny (sort of)
 B/C Powell says he joins the opinion of the court but has reservations concerning
the standard of review
Perhaps he has a problem like Rehnquist b/c this is about men, not women
But statistics look pretty good – men are several times more likely to violate
Con Law
03/09/06
Craig v. Boren (p629)(1976)(no beer to men (21) or women (18) )
Interaction of two sections of OK statute prohibits sale of “nonintoxicating” 3.2% beer to
males under age 21 and to females under age 18
END:
Enhance traffic safety – legitimate, important, and even compelling
THIS CASE first announces that gender won’t be rational basis, but it won’t be as much
as strict scrutiny either – INTERMEDIATE
MEANS:
Prohibiting men from buying 3.2% beer so that they wont drink and drive
 Men are over 10 times as likely to get arrested for DWI
Why isn’t that substantially related?
3.2% beer isn’t as alcoholic as others…
but Lee Optical says that you can take issue one step at a time
Court basically dismisses the statistics
 This shows that 98% of men DON’T get arrested for DWI
Would 20% to 2% be enough? Court doesn’t really say…
REHNQUIST dissenting:
Has a problem turning twp-tier system into a three-tier system.
 That this makes things more difficult
o BUT – this gives more breathing room for gender specific legislation
(when compared to strict)
POWEL concurring:
He has a problem w/ the standard of review… uses the terms “fair and substantial”…
which is really ambivalent
Why did they use intermediate, as opposed to strict?
 They tried strict w/ Frontiero but couldn’t get enough votes
HOW DO WE KNOW WHAT’S REAL about gender?
 Social difference real or just social construction?
o And what’s a court supposed to do with this?
Court tries to do this on pg. 648
J.E.B. v. Alabama ex rel. T.B.
Case is over who is the father?
Problem was in jury selection
 Some are dismissed for cause
 Some are dismissed by peremptory (for no reason)
o The state used its challenges to remove males
So, problem was that State used its challenge in a gender specific way…
What might be the State’s END?
 Assuring a non-biased jury (might pretend like this is)
o B/C men are biased toward men
 They want to win (actual purpose) – not an important means
Court actually has the problem with the MEANS (to reach the end of a biased/fair
representation):
 Means are obviously to strike male jurors
 Explanation?
o That males will be biased against the female.. not a very good one
Footnote shows that a shred of truth in a stereotype is irrelevant – that you must look
deeper than the surface
In the end, this case shows that neither side may challenge based on gender
 And that stereotypes may not be used as valid argument for gender
Rostker v. Goldberg (p649)
Made all men register for draft, but not women
Man challenges and says why aren’t women forced to register?
 But court upholds this statute
o This is for combat, and women aren’t in combat
END:
 In time of national emergency we have troops ready for combat
MEANS:
 Making men register for draft
Court says that since women aren’t allowed in combat this is fine.
The whole case is built on a stereotype – men may be in combat but women may not
What’s interesting here is that the court doesn’t even look at any justification for why
women aren’t in combat
 They just accept it as the state of things
Michael M. v. Sonoma County Superior Court (p649)(1981)(statutory rape)
Statutory rape statute: sexual intercourse w/ female not wife of perp under 18 yrs old.
Mike, 17, convicted under statute for having sex w/ 16 yr old girl.
He questions why law should only apply to men and not to women?
Claim END:
 To prevent illegitimate pregnancies
o Is legitimate, and important
MEANS:
 This statute
o Why is this substantially related?
 The whole deterrence thing in the reading notes
o Women get punished for pregnancy, men don’t
 So this provides equal deterrence
 BUT, this is a different type of deterrence… still satisfies
“substantially related”
 Another argument: in order to prosecute statutory rape, we need a witness… and
therefore, by making women not eligible for prosecution we have one
o But couldn’t you say that either side could produce evidence against the
other?
What if history of statute was that the original justification of the statute was to preserve
virginity of the woman?
 Is this legitimate?
o Not really – can’t hold this to our Victorian past
The woman said that she didn’t want to, that he said yes and he hit him a little and then
they had sex
 Rehnquist says that it is often difficult to tell when sex is consensual
o And this type of statute punishes the ones that aren’t…?
United States v. Virginia (p640)(1996)(can’t reserve military college for men)
Virginia Military Institute (controlled by VA) is incomparable military college,
producing military generals, Members of Congress, etc… with very loyal alumni
Use EXTREMELY rigorous program (adversative model)– completely deprive students
of privacy, like Marine Corps boot camp.
In 1990 US sued VA and VMI saying that admission’s policy violated EPC. DC said at
some women, at least, would want to attend VMI and be capable of all activities required
What’s the standard of review?
“Exceedingly persuasive justification”
 Trying to push the standard higher for gender classification
o Says “AT LEAST” important and substantially related… at least!
 Why not go to strict? – wouldn’t have gotten votes (Frontiero)
Con Law
03/20/06
Listened to US v. Virginia oral arguments
When are gender differences allowed to be relied on and when are they stereotypes?
Califano v. Goldfarb (p658)(1977)(widower must show evidence to receive benefits)
Under Federal program (OASDI) widow automatically received survivors’ benefits based
on deceased husband.
 However, Widower only receives benefits based on earnings of dead wife if he
had been receiving “at least one-half oh his support” from her
Who is discriminated against?
 Plurality (BRENNAN) says it is Mrs. Goldfarb – the deceased wife
o B/c she is not able to provide the same financial protection to her male
spouse as a similarly situated male would
 The logic is that this is similar to a life-insurance policy
This is somewhat similar to Frontiero (more benefits for housing as officer, auto if
you’re man, must prove 50% if woman).
Califano v. Webster (p661)(1977)(average monthly wage of SS, women helped)
Provision of Social Security Act provided that monthly old-age benefits were to be
computed based on the average monthly wake of a worker during certain statutorily
defined “benefit computation years.”
 Until its 1972 amendment, the formula permitted women to exclude more lowerearning years from the average than men could.
As a result, some retired female workers received higher benefits than similarly situated
male workers
This case upholds the rule that women get to through more of the lower-paid years out
when computing the average on which to base the monthly pay-outs
 The is to remedy past economic discrimination
Going to look at Nguyen and Nevada Department of Human Resources v. Hibbs
(p656)