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The Constitution
I. Articles of the Confederation
The Articles of Confederation set up a very weak federal government which provided
A. Unanimous consent of states for amendment
1. Weak federal legislature
B. No Supreme Court
C. States retained all the powers that weren’t ‘expressly’ delegated
1. gives states much more power
2. States are essentially sovereign within their sphere
D. No power to Congress to regulate interstate commerce
1. Resulted in trade wars between the states
II. Functions of the Constitution
The Constitution is important because it (all elements)
A. Creates a National Government, with separated power between branches
1. Creates a system of checks and balances
2. Lessens the possibility of tyrannical rule
B. Divides power between the federal government and state governments
1. Federalism is this vertical division of authority
2. Lack of clarity in Article I led to 10th Amendment
C. Protects individual liberties
III. Arguing about the Constitution
In arguing about the constitution, one may rely upon (all elements)
A. Plain text
B. History
1. Original intention of framers and ratification
a) But did they understand it themselves?
2. Historical practices
C. Structure
D. Moral Reasoning
E. Consequences (of decisions)
1. Government
2. American life
3. Stability of society
F. Ethos
1. Justice and fairness within the spirit of the Constitution
G. Formalist vs. Functionalist
1. Formalist
A formalist believes that (all elements)
a) A branch’s powers are completely defined within the Constitution
A branch may only share power with another branch to extent that Constitution allows
i) Any deviation from the structure is illegal
ii) Every power has got to be in some category (legislative, executive, etc)
b) No authorization in Congressional Silence
c) Historical practices have no legal consequences
i) History may only prove the unconstitutionality of that action over time
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2. Functionalist
A functionalist believes that (all elements)
a) A branch’s powers are not rigidly defined within the Constitution
i) Balance competing considerations
ii) Only disallow things which duly interfere the with ability of a branch to function
iii) Relationship at the top is formally structured, but what may occur below the top is
not set up in the constitution
iv) Practical – look at how the world works
b) Congressional Silence may have meaning
c) Historical practices may have meaning
i) The fact that something has consistently occurred over time could have meaning
IV. Overruling of Cases
A case may be overruled by (all elements)
A. Constitutional Amendment
B. NOT a statute
C. The Court
A case may be overruled by the court considering (all elements)
1. Wrong decision
A wrong decision must be present, but the court needs more so as not to risk stability of the law
2. EITHER
a) Proven to be unworkable
i) Garcia v San Antonio Metropolitan Transit Authority
b) When it is inconsistent or conflicting with another line of cases
The inconsistency of the law may damage reliance interests
c) Abandoned rule due to the evolution of legal principle
d) Change in factual underpinning or understanding of the facts
i) West Coast Hotel
Lochner’s recognition of implied right to contract flawed
ii) Brown v Board of Education
Facts fundamentally different
V. Justices changing their minds
A justice, who is no longer on the court, no longer wields the power of a supreme court justice. Therefore,
Unless willing to acknowledge that someone who is not on the court has influence on the court (strikes at
legitimacy of court) must recognize that a justice no longer on the court has no influence on the law
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Federalism
The people are the ultimate source of power for the government, but federalism is the basic
relationship between the states and the federal government. States are sovereign within their
sphere and cannot act within the federal sphere.
VI. Exclusive Federal Powers
A power is exclusively federal IF (any element)
A. The power of states is expressly limited
Powers which are expressly limited or prohibited of the states’ exercise thereof ARE (any element)
1. Treaty
2. Coinage of money
3. Duty on imports
B. Inherent Federal Powers
Powers which are exclusively federal because of their nature ARE (any element)
1. Declaration of war
2. Federal citizenship
3. Naturalization
4. Borrowing money on the credit of the US
5. Foreign Relations
VII. Exclusive State Powers
All powers not prohibited to the states by the Constitution are reserved to the states, but the expansive
interpretation of the federal powers leaves little state power that is exclusive.
VIII. Absence of Powers
Powers which are denied to both Congress and the States ARE (all elements)
A. Setting of qualifications for Congress
The Qualifications Clause in the Constitution, which sets the qualifications to serve in Congress, are
exclusive and cannot be altered by Congress or the states.
Powell v McCormack; US Term Limits v Thornton (Arkansas’ imposed term limit for members of
Congress was invalidated)
a) Precedent
i) Powell  federal can’t expand qualifications – so states shouldn’t either
ii) McCulloch  states may not use power to undermine federal institutions
b) History
i) Original understanding as exclusive source of qualifications – no fed/state power
ii) Historical Practices – states’ control over elections can be overwritten by federal
c) Text
i) No reserved powers – took time to specify time, place, and manner – no power
d) Democratic principles / Representation re-enforcement
i) The people of the US have a right to choose whether or not they want more
experience in Congress - benefit people outside of a state as citizens of the US
B. Default rules in silence
A justice must often rely on things outside of the text, including heart, character, political philosophy, to
resolve ambiguities and silence in the text and history of the Constitution to be either in favor of
1. Broad federal power - Resolve ambiguities in favor of federal power
2. Narrow federal power - Resolve ambiguities in favor of state sovereignty
IX.
Concurrent Powers
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The Judicial Power
X. The Judicial Power
A. Power of Judicial Review
Judicial review is the power or authority of the Supreme Court to assess or review the constitutionality
of certain actions.
The court has the authority to review
1. Other branches of federal government
The Supreme Court may determine the constitutionality of acts of other branches of government
as it is the province and duty of the judiciary to declare what the law is.
Marbury v Madison (argument over court’s authority to issue writ of mandamus)
a) Sources of Judicial Review
The source of power for judicial review of other branches exists within (all elements)
i) The written Constitution
The court must hold government to what it says so the Constitution has meaning
ii) The Court’s jurisdiction to cases ‘arising under the Constitution’
Denying the court the ability to interpret the Constitution in cases that arise under
the Constitution would be to deny their jurisdiction
iii) Oaths of office
Judges are obligated to uphold the constitution, but so are Congress & Pres.
iv) Structure of the Constitution
The Constitution defines the rules the courts must follow
v) The Court’s duty
The court must determine what the law is in order to determine what is legal
vi) Supremacy of the Constitution
A law not consistent with the Constitution is not part of the supreme law of the
land and as such the court may declare a law unconstitutional
Marbury v Madison
b) Modern Judicial Review of other branches
Where the modern court has a choice to read a statute to avoid constitutional problems, it
shall read it in such a manner.
c) Countering Supreme Court decisions
Other branches of government can counter Supreme Court decisions by (any element)
i) Under-enforcement
1) Non-enforcement is controversial
ii) Veto
iii) Appoint justices who disagree
iv) Impeachment of Justice
v) Attempt to amend the Constitution
vi) Ask the Supreme Court to overrule an opinion
vii) Federal Regulation of the Supreme Court’s jurisdiction
2. State acts
Judicial review of state acts are limited by statute to those highest state courts’ decisions that
reject and refuse to follow claims based on federal law decided by the Supreme Court
Martin v Hunter’s Lessee (VA court argues it does not have to follow the Supreme Court’s
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decision because its appellate power didn’t extend to that court and sovereignty diminished, but
the court holds it has review – sovereignty was diminished when joined the Union)
a) Sources of Judicial Review
The source of power for judicial review of state acts exists within (all elements)
i) Uniformity of federal law
A court must ensure uniformity in interpretation and enforcement of federal law
ii) Hostility of the states
The court must ensure that any hostility felt by state courts towards federal law
does not dictate the outcome of federal law.
1) Hostility may find its source in
a. Undermining of state sovereignty
b. Majoritarian / electoral pressure of state court judges
c. Structural matters of living in the state
2) Federal judges are insulated from hostility due to (all elements)
a. Life tenure
b. Undiminished compensation
c. Protection against political retaliation
d. BUT may argue insulation allows political acts – How do you
know something based on law and not politics?
iii) Federal judges’ expertise in federal law
The Court will be sufficiently knowledgeable about the federal law
iv) Damages due to different outcomes in different states
v) Finality
Avoid re-litigation in different states
3. Federalism Issues
Any claims that implicate the relationship between the federal government and the states are
resolved by the Supreme Court
McCulloch v Maryland (state bank charter)
US Term Limits (states vs. federal over setting of qualifications)
a) Representation-Reinforcement
Judicial review is necessary in order to make up for deficiencies in the political process,
which may deny citizens outside of a state any political redress.
4. Congress’ judging of qualifications of its members
The Supreme Court has the jurisdiction and power to oversee the Congress’ judging of the
qualifications of its members Powell v McCormack
B. Lawmaking Power
1. The Courts are NOT required to abide by the presentment or bicameral clause
Congress can delegate lawmaking power to the courts
a) Mistretta v US (Delegation of power to establish sentencing guidelines to a sentencing
commission of federal judges upheld because didn’t undermine the integrity of the
judiciary or usurp the powers of the other branches)
i) Formalist – court’s aren’t elected officials – violation of separation of powers
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The Legislative Power
Legislative power is power that has the purpose and effect of
altering the legal rights, duties, and relations of persons outside the
legislative branch. INS v Chadha
XI. Values of Legislative Power
The lawmaking process serves to ensure (all elements)
A. Deliberation
The legislature should deliberate carefully before its decisions.
B. Representation
The legislature represents elected officials to reflect that people and their will are being fairly reflected
C. Accountability
The legislature ensures that the lawmakers are held politically accountable (no secret laws)
D. Lawmaking which undermines one of these values CANNOT, standing alone, be overcome by
1. Efficiency
2. Convenience
3. Usefulness
INS v Chadha
XII. State Legislative Power
An action by a state legislature is valid under federal law IF (all elements)
A. Not violative of a specific limitation imposed by the Constitution
1. General police power
Only the state government possesses the police power, which allows state and local governments
to adopt any law that is not prohibited by the Constitution, to protect the health, safety, or general
welfare of state residents.
a) Exception
Congress has police power over Washington D.C., just as a state would
XIII. Federal Legislative Power
An action by the federal legislature is valid under federal law IF (all elements)
A. Not violative of any specific limitation imposed by the Constitution
B. Within one of the enumerated powers listed in the Constitution
1. Necessary and Proper / Implied “Power”
The Necessary and Proper Clause grants Congress the power to make all laws necessary and
proper for carrying into execution any already specifically granted power granted to any branch
of the federal government. Congress may use any means that is rationally related to an objective
that falls within the specifically enumerated powers and is not forbidden by the Constitution
a) Discretionary means
The Constitution allows the federal government discretion with respect to the means by
which the powers it confers are to be carried into execution IF
i) The end is
1) Appropriate
2) Within the scope of the Constitution
ii) The means are
1) Appropriate / convenient for achieving the end
The means are appropriate IF (all elements)
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a. No pretext
The means must be legitimate and not adapted to a pretext /
alternative reason (e.g. separate restrooms)
2) Plainly adapted to that end
3) Not prohibited
4) Consistent with the spirit of the Constitution
b) No state burdening of the means
The states have no power, by taxation or otherwise, to retard, impede, burden, or in any
manner control, the operations of the constitutional laws enacted by Congress to carry
into execution the powers vested in the general government.
i) States can’t do things that hurt federal institutions because they belong to all the
people – Representation Reinforcement
McCulloch v Maryland (Congress has the power to charter banks since that power is
appropriate to executing Congress’ enumerated powers to tax, borrow money, and
regulate commerce)
i) Historical Practices
1) Give special deference to the 1st Congress
ii) People of the US as ultimate sovereign, not the states
2) Representation re-enforcement – can't tax all of US for the state because
must move to Maryland to vote – judicial intervention to make up for
the deficiencies in the political process
iii) Nature as a Constitution
3) Interpret the powers granting provision broadly, in a manner to ensure that
it works as a Constitution
iv) Text of the Constitution
4) Necessary and Proper Clause meaning from
a. Public understanding
b. Intratextual analysis
c. Contextual / placement
5) No ‘expressly’ term gives more power to federal government
2. Commerce Power
Article 1 § 8 Congress has the power to regulate commerce with foreign nations and among the
several states if NOT prohibited by (all elements)
a) Internal constraints of the power itself – private activity
To be within Congress’s power, a federal law must either regulate (any element)
Lopez framework
i) Activities affecting at least 2 states – commercial intercourse
Congress can regulate matters occurring within a state, so long as the activity had
some commercial connection with another state.
Gibbons v Odgen (Congressional license to control waterway preempted NY
license under Commerce Clause)
1) All external concerns of the state
2) Those internal concerns which affect the states generally
3) NOT activities completely internal to the state
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ii) Channels of interstate commerce
Congress can regulate the use of channels of interstate commerce, which include
1) Highways
2) Waterways
3) Airways
iii) Instrumentalities of interstate commerce
Congress can regulate the instrumentalities of interstate commerce, which include
the people, machines, and other things used in carrying out commerce.
1) Regardless of being completely intrastate
iv) Activities ‘Substantially affecting’ interstate commerce
Court must be able to independently find that the regulated activity has a
substantial relationship, NOT that Congress must have a rational basis, no
longer much deference to Congress’ belief
1) Activity is commercial
Congress may regulate a commercial activity IF (all elements)
a. The activity itself is arguably commercial
b. The aggregation of many instances of such an activity would
substantially affect interstate commerce
c. Even if the activity is completely intrastate
Wickard v Filburn (law regulating the price and supply of wheat
on the national market upheld despite one instance of growers eating their
what not having substantial affect because aggregate would)
2) Activity is not commercial
Congress may regulate a non-commercial activity ONLY IF there is an
obvious connection between the activity and interstate commerce.
a. Aggregate impact of the activity on interstate commerce likely
to be insufficient
b. Potential problems with a federal regulation
Federal regulation not pass Commerce clause IF (any element)
1. Regulated activity is not economic
2. No jurisdictionally limiting element
No limiting law to instances affecting interstate
commerce – no connection
3. No congressional findings
i. BUT not sufficient if statute has congressional
findings U.S. v Morrison (Congress can’t
broadly regulate violence against women)
4. Attenuating relationship to interstate commerce
Too many steps to get to commerce
5. Creation of general police power
U.S. v Lopez (Gun-free school zone act not substantially affecting
interstate commerce)
6. Probable statutes struck down – no affect on commerce
i. Crime for felon to possess firearm
ii. Crime to interfere w/ efforts to obtain abortion
iii. Prohibits marriage license under 18
iv. Crime to physically injure spouse
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3) Activity is in the traditional domain of the states
If the regulation of the activity has traditionally been the domain of the
states, the court is less likely find that Congress is acting within its
Commerce Power
a. Education
b. Family Law
c. General Criminal Law
d. Exceptions
1. National Comprehensive Regulatory Framework
BUT the fact that an activity has traditionally fallen
within the states’ domain can be outweighed by
showing that a national solution is needed
i. Environmental laws
ii. National drug policy Gonzales v Rice (federal
law may disallow production and consumption
of physician ok’ed drugs – Wicker – can
regulate consuming something grown locally)
Scalia - If NCRF, combine Commerce clause
with Necessary & Proper = RBT, even if not
predicated on economic activity
b) External constraints – state activity 10th & 11th Amendments
To be within Congress’s power, a federal law must (all elements)
i) NOT compel states to enact or enforce a law or regulate in a particular way
Congress may not commandeer the legislative processes of the states
NY v US (Congress can’t compel states to dispose of hazardous waste according
to a federal regulatory program)
Garcia (BUT may be able to apply a generally applicable federal law that makes
no distinction between state and private actors)
1) Accountability
The federal commerce power cannot be used to corrupt, distort, or
restructure the political accountability within a state
ii) NOT compel state or local officials to perform federally specified
administrative tasks
Congress may not compel a state or local government’s executive branch to
perform functions, even if they are ministerial or temporary
Printz v US (Congress can’t force state officer’s to perform background checks on
gun purchasers in accordance with the interim and temporary provision of law)
1) Differences between state executive officers and state judges
Supremacy Clause would require state judges, but not state executive
officers, to require enforcement of federal laws
2) Accountability
Enforcement by state officials would shift accountability of standing in the
way of gun ownership from federal to state
3) Structure
Commandeering executive state officials undermines dual sovereignty and
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executive
iii) NOT regulate the states as states, only as actors
If states choose to conduct certain activities themselves, regulation of the states is
valid without commandeering IF it is done (all elements)
1) As an actor, not a state
2) In an activity that is (all elements)
a. NOT integral to state’s sovereignty
b. NOT a traditional governmental role
c. NOT commandeering the state processes
Reno v Condon (Regulation of state as a commercial actor and owner of a
database of information about drivers valid)
iv) NOT violate state sovereign immunity 11th Amendment
Congress cannot violate / abrogate a state’s sovereign immunity which prohibits
suit (all elements)
1) In
a. Federal Court
b. State Court
Congress may not subject a state to private suits in their own
courts, even where the right sued on is federal.
Alden v Maine (Congress had no authority to force Maine to
hear a worker’s suit, even though the suit was based on the Fair
Labor Standards Act)
1. Otherwise, National Government would have greater
power in the state courts than it its own federal courts.
2. 10th amendment – states had the right before the
Constitution was enacted and nothing in the
Constitution removes it
3. Dissent – if the sovereign is not the source of the law to
be applied, sovereign immunity has no applicability
c. Federal administrative agencies
Federal Maritime Commission v SC State Ports Authority
1. strong resemblance to civil litigation in federal courts
2. accord states the dignity that is consistent with their
status as sovereign entities
2) Against
a. The state
b. State Officials For equitable relief from violating state law
in state court – otherwise how else enforce?
Pennhurst State School Hosp. v Halderman
3) By
a. Citizens of another state
b. Citizens of its own state Hans v Louisiana
c. Foreigners
4) For
a. Monetary damages
1. Paid by the state
A state’s treasury is protected from being diminished
b. Equitable relief
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Edelman v Jordan (Money can come from the state because it costs
money to comply with prospective orders – e.g. desegregation)
• Suits against treasury officers, welfare officers, etc. are
state kinds of suits because state RPI
• Suits against police chiefs, governors, etc. are individual
suits because individual RPI
5) Based on
a. Diversity Jurisdiction
b. Federal Question Jurisdiction Hans v Louisiana
6) Under
a. Post-Civil War amendments
1. NOT The Commerce Clause
Seminole Tribe of Florida v Florida (Congress may not
abrogate the 11th amendment outside of the post-Civil
War Amendments and thus, cannot abrogate based on
the Commerce Power)
i. 11th amendment limits the Article III
jurisdiction of federal courts and Congress can’t
expand those limits
2. NOT The Patent Clause
Florida Prepaid v College Savings Bank (Congress
cannot abrogate based on the Patent Clause)
i. States may violate federal patent, copyright,
trademark, and environmental laws with
complete immunity from federal-court suits by
private businesses or individuals
3. Dissent
i. 11th amendment applies only to diversity suits
ii. May prevent Congress from providing a federal
forum for a broad range of actions
7) Exceptions
a. Actions NOT prohibited
A state’s sovereign immunity does not prohibit suit
1. Against
i. State Officials Ex Parte Young (When a state
officer’s official conduct violates the
Constitution or federal statute, he is acting
without true authority, and his conduct is not
really state conduct for the purposes of the 11th
– he is stripped of his authority)
ii. Local Governments
2. By
i. The Federal Government
ii. Other State Governments
3. For
i. Monetary damages NOT paid by the state
ii. Equitable relief from violating federal law,
EVEN if compliance will force the state to pay
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money in the future Ex Parte Young
b. State Consent to suit
A state may only waive its 11th amendment immunity if it does
so expressly and unequivocally
c. Suits under the post-Civil War Amendments
If Congress passes a statute pursuant to § 5 power to enforce
the 13th, 14th, or 15th Amendments and that statute gives private
citizens the right to sue state in federal court.
Seminole Tribe of Florida v Florida (Congress may not
abrogate the 11th amendment outside of the post-Civil War
Amendments)
1. Congress must make its intention unmistakably clear in
the language of the statute Atascadero State Hospital v
Scanlon
3. War Power
Congress has the power to (all elements)
a) Declare War
b) Raise and support armies
c) Provide for and maintain a navy
d) Organize, arm, discipline, and call up the militia
e) Make rules for the government and regulation of the armed forces Article 1, § 8
i) NO express textual emergency / war provision
As the Constitution contains no express exception during emergencies or war,
there are two views that the Constitution is
1) Invariant in times of war or emergency
The Constitution is invariant and continuous in its basic premises, even in
times of war or crises  formalist
2) Accommodating in times of war or emergency
During times of war or crises, all constitutional guarantees are off 
extreme functionalist
3) Intermediate View
The laws will not be silent in the time of war, but they will speak with a
somewhat different voice  balancing approach
ii) Judicial Review of Military Courts
The Article III courts have NO general power to review military proceedings.
1) Exception
a. Habeas Corpus Cases
In habeas corpus cases, Article III courts may make a limited
inquiry into the military court’s jurisdiction of the person and
offense or the validity of the court’s legislative creation.
iii) Military Courts and Tribunals Jurisdiction (Article I courts)
The Constitution, along with the Necessary and Proper Clause, permits military
justice of (all elements)
1) Enemy Soldiers
Enemy soldiers are treated as prisoners of war and can be detained without
trial until hostilities have subsided IF (all elements)
a. Have some uniform
b. Citizen of another country
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2)
3)
4)
5)
c. Captured on the battlefield
Requires the knowledge of the difference between war and peace, who the
enemy is, when the war is over, and if all enemies are incapacitated. This
limits the executive (e.g. Geneva Conventions) since there are established
laws, as opposed to enemy combatants.
Enemy Civilians
American Soldiers
Military courts have jurisdiction over all offenses (not just those
connected to the service) committed by persons who are members of the
armed services, both when charged and at the time of the offense. Solorio
v US. This is necessary because of the discipline necessary to the armed
forces, requiring other and swifter modes of trial than are furnished by the
common law courts. They are amenable to the jurisdiction which
Congress created for their government, and while serving, surrenders their
right to be tried in civil courts. Ex parte Milligan
NOT American civilians
Congress may NOT authorize trial by military courts of American
civilians, EVEN IF (any element)
a. Martial law
Even if martial law has been declared, by suspending the writ
of habeas corpus under Article I, §9, military jurisdiction
cannot be applied where the courts are open and their process
unobstructed, such that it is possible to administer criminal
justice according to the law. Ex parte Milligan
b. Member of armed forces when committed
c. Dependents of military personnel accompanying overseas
d. Civilian employees of military forces overseas
e. Exception - Actual warfare has forced Article III courts to
shut down such that (all elements)
i. Courts are actually closed
ii. Courts’ processes are obstructed, rendering it
impossible to administer criminal justice
according to the law
iii. Only until the laws can have their free course
Ex parte Milligan
NOT Enemy Combatants
a. Definition
An enemy combatant is an unlawful belligerent who (any
element)
1. Without uniform passes the military lines seeking to
gather military information or destroy life or property
2. Regardless of US citizenship
3. Regardless of actually committing or attempting to
commit the action
Ex parte Quirin (President, while operating at his strongest with a
formal declaration of war, lawfully subjected a US citizen, enemy
combatant to a military tribunal – admitted illegal aliens)
b. Held in a territory over which US is NOT ultimately
sovereign & outside territorial jurisdiction of courts
The privilege of litigation in civil courts does not extend to
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persons in military custody who have no presence in any
territory over which the US is sovereign. Johnson v
Eisentrager
1. Exception
i. Practical sovereignty by US
In territories where the US exercises exclusive
jurisdiction and control, although it may not
have ultimate sovereignty, federal judges have
jurisdiction to consider habeas petitions from
detainees who argue they are being held
unlawfully. Rasul v Bush (Guantanamo
prisoners)
c. Held in the US
A citizen held in the US as an enemy combatant is guaranteed,
at minimum, (all elements)
1. Notice of the factual basis for his classification
2. A fair opportunity to rebut the factual assertions
before a neutral decision-maker
3. Access to counsel
4. Exceptions
i. Hearsay
ii. Presumption in favor of the government’s
rebuttable evidence
iii. possibly appropriately authorized and properly
constituted military tribunals
Hamdi v Rumsfield (US citizen held in Charleston, SC at
least entitled to some hearing to contest the factual basis for
his detention before a neutral decision-maker)
1. The process due in any given instance is determined
by weighing
iv. Private interest affected by the official action
(Fundamental nature of a citizen’s right to be
free from involuntary confinement by his own
government without due process of law)
v. Government’s interest in the function involved
and the burdens the government would face in
providing greater process (Nation’s security and
freedom to wage a war without the distractions
of litigation)
Mathews v Eldridge
5. Wartime not that different
i. Even if the nation is effectively at war,
executive branch is not allowed to dispense with
basic due process requirements when it
imprisons one of its own citizens
6. Dissent
i. President has two choices with regard to US
citizen enemy combatants: 1) Criminal
proceeding or 2) Suspension of writ of habeas
corpus
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ii. Disagree that due something less than the full
protection given to other prisoners
f) Economic Regulation
i) During War
During wartime hostilities, Congress has regulatory power with regard to
economic matters and mobilization of troops in support of the war effort.
1) National price and rent control
2) Regulation of civilian / military production and services
ii) Postwar
The regulatory power of Congress extends to postwar times, and continues for the
duration of that emergency, IF it (any element)
1) Remedies wartime disruptions
Woods v Cloyd W. Miller Co.(Regulation of rents after termination of
hostilities, but before the end of the war, valid under the war power
because it does not necessarily end with the cessation of hostilities)
a. The war powers allow Congress to do things that it is not
otherwise allowed to do
b. Courts defer to Congress on how long the after-effects of the
war last, but cautioned about lasting too long
2) Copes with cold war exigencies
4. Treaty Power
Congress has the power to ratify treaties made by the President with a vote of 2/3 of the Senate.
A Validly ratified treaty is (all elements)
a) Equivalent to a federal statute – Supreme Law of the Land
Treaties made under the authority of the US are declared the supreme law of the land, and
all valid treaties are valid as a necessary and proper means to execute the power of the
government.
i) Valid treaty overrides a state law
Even on matters otherwise within state control
ii) Last enacted is effective
If a conflict arises between a valid treaty and a valid congressional statute,
whichever was enacted later controls because the last expression of the sovereign
will must control.
b) Independent source of authority
Even though a subject area may not otherwise be under congressional control, a valid
treaty will be a necessary and proper means to execute the treaty power
i) even if it limits state sovereignty
10th amendment is no barrier
ii) even on matters not of international concern Restatement
Missouri v Holland (Regulation of the killing of migratory birds, through a treaty
between the US and Great Britian, held valid (despite regulation struck down when
Congress enacted a statute) because individual states cannot stand in the way of a
solution to a national problem)
c) Limitations
i) May not violate constitutional guarantees
A treaty cannot be valid if it infringes the Constitution.
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Reid v Covert (no agreement with a foreign nation can confer power on the
Congress, or on any other branch, which is free from the restraints of the
Constitution)
ii) Executive Agreements
An executive agreement is a treaty made only by the President, without the
ratification by the Senate.
1) Cannot override congressional act
2) BUT is still superior to state law
Reid v Covert (Foreign country can’t subject an American citizen to their laws)
5. Foreign Affairs
The Courts have recognized that Congress (and the executive) have power over foreign affairs,
even where no enumerated power is applicable, because they are the proper province of the
federal government.
a) State action improper
Inference of the province of the federal government comes from explicit limitations on
states with interference with foreign affairs in Article I, § 10. Thus, all state action that
has a significant impact on the conduct of American diplomacy is void as an
unconstitutional infringement.
6. Money
7. Bankruptcy
8. Post Office
9. Copyrights and Patents
10. Federal Property
11. Immigration and Naturalization
12. Power to enforce Civil War Amendments
13. Constitutional Amendments
14. Congressional Immunity – Speech and Debate Clause
The Speech and Debate Clause, Article I, § 6, provides that “for any speech or debate in either
House shall not be questioned in any other place” and shields
a) Persons Covered
i) Members of Congress
ii) Aides who engage in acts that would be immune if performed by legislator
Gravel v US
iii) NOT state legislatures prosecuted for federal law
US v Gillock
b) From Suits relating to legislative actions
Conduct that occurs in the regular course of the legislative process and the motivation
behind that conduct are immune from prosecution.
i) Civil Suits
ii) Criminal Suits
iii) Grand Jury investigations
c) Because
i) Protects members of Congress against those who might seek to influence
congressional conduct
ii) Assures members of Congress aren’t distracted from their duties
15. NO Federal Police Power
17
16. NO Appointment of any executive officers
Congress may not actually appoint either superior or inferior officers of the US, but may only
prescribe the procedures by which the executive or judicial branch may make appointments,
thereby limiting the President’s right of appointment.
a) Exception
i) Supporting Employees (internal legislative staff)
Congress may make its own appointments of persons to exercise power
essentially of an investigative and informative nature Buckley v Valeo
17. NO Removal of any executive officers
Congress may not reserve to itself the power to remove an executive officer (at least where the
definition of cause is fairly broad) as such action converts that officer into an agent of Congress
who cannot perform executive power.
Bowsher v Synac (Congress could not give to the Comptroller General, removable by Congress,
the function of establishing the amount of automatic budget reductions)
a) Dissent – retention of right of removal doesn’t convert into agent of Congress, but
instead key question is whether encroaches one branch at the expense of another
b) Exception
i) Impeachment
18. NO Legislative Veto
A Legislative veto, usually included as part of a congressional statute delegating certain powers
to the executive, is unconstitutional because it violates (all elements)
a) Presentment
The Presentment clause requires a bill passed by Congress to be presented to the
President for his signature before it becomes law. If he does not sign the whole bill, he
must return it to Congress with his objections
Any legislative veto violates presentment because
i) Veto goes into effect without any presentment to the President
b) Bicameralism
The Bicameral clause requires a bill to be passed by both the House and the Senate before
it becomes law.
i) Exceptions
1) Power of the house to initiate impeachments
2) Senate’s power to conduct trials on impeachment charges
3) Senate’s power over Presidential appointments
4) Senate’s power to ratify treaties
The One House Legislative veto violates bicameralism because
ii) IF exercised by a single house, violates passing of a bill by both houses and does
not fall into one of the exceptions to bicameralism
c) Separation of Powers
INS v Chadha (One House Legislative veto over decisions by the Attorney General to suspend
deportation of aliens in certain situations unconstitutional because it was essentially a legislative
act which required and violated presentment, bicameralism, and implied separation of powers)
d) Every time Congress or the President acts they MUST comply with the presentment
and bicameral clauses
e) Efficiency/convenience, alone, will not save a law contrary to the constitution
f) Dissent – Justice White - functionalist
18
i) Enough that the initial statutory authorization complied with Article I
1) Efficiency tries to get at Formalist’s argument of ‘If don’t like it, pass
another bill’
ii) Supported by historical practices
iii) Departure from the status quo occurs only upon the concurrence of opinion
among the House, Senate, and President, and thus, no violation of separation of
powers.
iv) Preserves Congress’ control over lawmaking
1) Ensures that a representative is held accountable
XIV. Grabbing Power
A. Is X gaining power at the expense of Y?
Does it impede Y’s ability to perform his constitutional duty? Youngstown framework

Has Congress passed a statute regarding the action?
• If Yes, Does it authorize the action?
If arguing for Presidential power, argue authorized
If arguing for Congressional power, argue forbidden
o If Yes, C + P inherent
 No conflict
 P operating at constitutionally strongest
o If No, C – P inherent
 P operating at constitutionally weakest
•
If No, C / P
In congressional silence, the President is operating only on inherent powers and the
question becomes what these Article II powers are and whether there is any restraint
on them other than self-restraint.
o Argument for Presidential power  functionalist
 Text
• Article I enumerated powers vs. Article II implied powers – so
President has powers not enumerated
 Structure
a. branch’s powers are not rigidly defined within the Constitution
1. Balance competing considerations
2. Only disallow things which duly interfere the with
ability of a branch to function
3. Relationship at the top is formally structured, but what
may occur below the top is not set up in the constitution
4. Practical – look at how the world works
b. Congressional Silence may have meaning
• Sequence of legislation
o Powers that are given later tend to trump those that
were given before
 Prohibition amendments
 11th State sovereign immunity - can be
abrogated by 14th but not by Article I
o Article II (President) trumps Article I (Congress)
19

History
• Historical practices may have meaning
• The fact that something has consistently occurred over time
could have meaning – how we understand the nature of power
• BUT may have to be unbroken line of history
 Precedent
 Consequences
• Effect on power
 Ethos
o Argument for Congressional Power  formalist
 Text
• Article I enumerated powers vs. Article II enumerated powers
– so President has no powers other than those enumerated in
Article II
 Structure
b) branch’s powers completely defined within the Constitution
i) Any deviation from the structure is illegal
ii) Every power has got to be in some category
c) No authorization in Congressional Silence
1. A president can only derive power from (any element)
i. An act of Congress
ii. The Constitution otherwise gives the power
 History
• Historical practices - no legal consequences and only proves
the unconstitutionality of that action over time
 Precedent
 Consequences
• Effect on power
 Ethos

Is there a state of national emergency?
• Argument for Presidential power
o The President is justified in acting because the emergency nature of the
situation permits him to preserve the status quo until Congress can act
• Argument for Congressional power
o As Commander in Chief, the President, even in a time of war, must carry out
the laws already created by Congress
o Create the policy that he would be enforcing as commander in chief
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XV. Delegation of Legislative Power
A. Purposes of delegation
Congress may desire to delegate because it lacks (all elements)
1. Expertise
a) BUT decision made by a non-representative (formalist)
b) However, if had a legislative veto, would ensure accountability (functionalist)
2. Time
3. Interest
B. Nondelegation
The Constitutional grant of ‘all’ legislative powers to Congress means that Congress may NOT
constitutionally delegate its legislative power to another branch of the government. Article I, §1
C. Broad Delegation doesn’t violate nondelegation
However, Congress does not violate nondelegation merely because it legislates in broad terms, leaving a
certain degree of discretion to executive or judicial actors. Touby v US
Congress has broad discretion to delegate its legislative power to (all elements)
1. Executive Officers
2. Administrative Agencies
3. Courts
Congress can delegate lawmaking power to the courts
a) Mistretta v US (Delegation of power to establish sentencing guidelines to a sentencing
commission of federal judges upheld because didn’t undermine the integrity of the
judiciary or usurp the powers of the other branches)
b) The Courts are NOT required to abide by the presentment or bicameral clause
c) Avoids fatal problem in Chadha which was Congress acting outside the bicameral
and presentment clause because every time Congress and President acting they are in
compliance with bicameral and presentment clauses
i) BUT extreme formalist could argue that SC can't ever exercise lawmaking
authority
4. Limitations
To be delegable, the power must (all elements)
a) Not be uniquely confined to Congress
To be delegable, the power must not be uniquely confined to Congress
i) Power to declare war
ii) Power to impeach, etc
b) Provide clear, intelligible standards
Congress must lay down by legislative act an intelligible principle to conform
Touby v US
c) Violation of Other Constitutional Provisions
i) Presentment
The Presentment clause requires a bill passed by Congress to be presented to the
President for his signature before it becomes law. If he does not sign the whole
bill, he must return it to Congress with his objections
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ii) Bicameralism
The Bicameral clause requires a bill to be passed by both the House and the
Senate before it becomes law.
1) Exceptions
a. Power of the house to initiate impeachments
b. Senate’s power to conduct trials on impeachment charges
c. Senate’s power over Presidential appointments
d. Senate’s power to ratify treaties
5. Framework
a) Who is the power delegated to (X)?
b) What kind of power is delegated to X?
i) Legislative
Legislative power is power that has the purpose and effect of altering the legal
rights, duties, and relations of persons outside the legislative branch. INS v
Chadha
c) May X exercise that kind of power?
i) Violation of Other Constitutional Provisions
ONLY CONGRESS AND PRESIDENT MUST ABIDE BY
1) Presentment
The Presentment clause requires a bill passed by Congress to be presented
to the President for his signature before it becomes law. If he does not
sign the whole bill, he must return it to Congress with his objections
2) Bicameralism
The Bicameral clause requires a bill to be passed by both the House and
the Senate before it becomes law.
a. Exceptions
1. Power of the house to initiate impeachments
2. Senate’s power to conduct trials on impeachment
charges
3. Senate’s power over Presidential appointments
4. Senate’s power to ratify treaties
ii) Values of lawmaking
The lawmaking process serves to ensure (all elements)
1) Deliberation
The legislature should deliberate carefully before its decisions.
2) Representation
The legislature represents many elected officials to reflect that the people
and their will are being fairly reflected.
3) Accountability
The legislature ensures that the lawmakers are held politically accountable
(no secret laws)
4) Lawmaking which undermines one of these values CANNOT,
standing alone, be overcome by
a. Efficiency
b. Convenience
c. Usefulness
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INS v Chadha
6. Formalist vs. Functionalist
a) Formalist
A formalist believes that (all elements)
i) A branch’s powers are completely defined within the Constitution
A branch may only share power with another branch to the extent that the
Constitution allows
1) Any deviation from the structure is illegal
2) Every power has got to be in some category (legislative, executive, etc)
ii) No authorization in Congressional Silence
iii) Historical practices have no legal consequences
1) History may only prove the unconstitutionality of that action over time
b) Functionalist
A functionalist believes that (all elements)
i) A branch’s powers are not rigidly defined within the Constitution
1) Balance competing considerations
2) Only disallow those things which duly interfere with the ability of another
branch to function
3) Relationship at the top is formally structured, but what may occur below
the top is not set up in the constitution
4) Practical – look at how the world works
ii) Congressional Silence may have meaning
iii) Historical practices may have meaning
1) The fact that something has consistently occurred over time could have
meaning
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XVI.
The Executive Power
The Executive Power
The executive, entirely vested in the President by Article II, §1, has power over (all elements)
A. Domestic Affairs
1. Power of Chief Executive
The power of the President as Chief Executive is
a) Strongest in Congressional authorization
An express or implied authority of Congress gives the President maximum authority such
that his actions are likely to be valid
b) Uncertain in Congressional silence
Where Congress is silent, a President is acting with uncertain power such that his actions
are likely to be upheld as long as they do not infringe upon powers of another branch or
prevent another branch from carrying out its tasks.
c) Weakest in Congressional disapproval
An express will of Congress that prohibits an action by the President deprives the
President of authority such that his actions are likely to be invalid.
Youngstown Sheet & Tube CO. v Sawyer
2. Veto Power
The President has the power to veto any bill passed by Congress via (any element)
a) Within 10 days
b) Pocket Veto
If Congress, by its adjournment has prevented return of a vetoed bill, the statute cannot
go into effect unless the President signs it, and thus, the President is given an absolute
veto power which cannot be overridden
c) Exceptions
i) Expiration of 10 day time limit
The president must exercise his veto power within 10 days or it becomes law,
with the exception of a pocket veto
ii) Overridden by 2/3 of each house
iii) NO Line Item Veto
The President can only approve or reject a bill as a whole because otherwise there
is a violation of (all elements)
1) Presentment clause
The Presentment clause requires a bill passed by Congress to be presented
to the President for his signature before it becomes law. If he does not
sign the whole bill, he must return it to Congress with his objections
The line item veto violates presentment because
a. President’s return of the bill occurs after the bill is signed
b. President may cancel only part of the bill
2) Bicameral clause
The Bicameral clause requires a bill to be passed by both the House and
the Senate before it becomes law.
a. Exceptions
1. Power of the house to initiate impeachments
2. Senate’s power to conduct trials on impeachment
charges
3. Senate’s power over Presidential appointments
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4. Senate’s power to ratify treaties
The line item veto violates bicameralism because
b. The different bill produced after part of the original bill is
cancelled becomes law without being passed by either chamber
3) Separation of Powers
Separation of powers may be violated because it enhances the President’s
power beyond what the Framers would have endorsed by allowing him to
cancel spending on a particular group.
Clinton v City of NY (Line Item Veto Act held unconstitutional because violation of
Presentment and Bicameralism clauses, allowing the President to unilaterally change
the text of an enacted statute and produce a different bill whose text was not voted on
by either House nor presented to the President)
1) Dissent – functionalist view
a. not an enactment, repeal, or amendment of a law, but merely
discretionary spending
b. No violation of separation of powers because doesn’t violate
the doctrine of nondelegation
c. Otherwise, would require thousands of separate bills
3. Appointment of Officers
Article II, § 2, the Appointments Cl., gives the President the power to appoint (all elements)
a) Superior / Principal Officers
The President alone shall nominate (with the advice & consent of the Senate) and appoint
superior officers, which are (any element)
i) Any appointee exercising significant authority
Any appointee exercising significant authority pursuant to the laws of the US is
an officer of the US, and must be appointed in the manner prescribed by the
appointments clause. Buckley v Valeo (Congress’ creation of the FEC to appoint
federal officials unconstitutional because such executive power couldn’t be
exercised by non-officers of the US)
ii) Ambassadors
iii) Judge of federal court
iv) Cabinet Officials
b) Inferior Officers
But Congress may by law vest the appointment of inferior officers, as they think proper,
in the President alone, in the courts of law, or in the heads of departments. Such inferior
officers are (any element)
i) Special Prosecutors
Special prosecutors are inferior officers, as to whom the President need not be
given appointment power and to whom the judiciary may be delegated to appoint,
because (all elements)
1) Can be removed for good cause
2) Tenure
3) Temporary duration
4) Limited duties of office
Morrison v Olson
c) Exception
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i) Supporting Employees (internal legislative staff)
Congress may make its own appointments of persons to exercise power
essentially of an investigative and informative nature Buckley v Valeo
4. Removal of Officers
Main issues – congressional silence v conferral? Inferior or principal officer?
Article II, § 2, the Appointments Cl., is silent on removal of executive appointees from office,
except for impeachment. The President has the power to remove, without any interference from
Congress, (all elements)
a) Purely executive, principal officers
While the Constitution is silent, and no precedent has established otherwise, the Court
would probably be much less willing to allow Congress’ right to remove such an officer.
(e.g. Secretary of State, Secretary of Defense)
Myers v US (As his selection of administrative officers is essential to the execution of the
laws by him, so must be his power of removing those for whom he can not continue to be
responsible because the President has the inherent authority to remove purely executive
officers)
b) Exceptions
Congress can provide statutory limitations (e.g. removal for good cause) on the
President’s power to remove (all elements)
i) Purely executive, inferior officers
Congress may limit the President’s right to remove even a purely executive,
inferior officer IF the removal restrictions are not of such a nature that they
impede the President’s ability to perform his constitutional duty
Morrison v Olson (Act requiring the Attorney General to investigate allegations
of wrongdoing against high level executives and to set up a special federal court
for the appointment of a special prosecutor, who could only be removed for just
cause, held constitutional because gave the executive sufficient control to ensure
that the President was able to perform his constitutionally assigned duties)
1) Functionalist – if inferior and temporary, something for just cause – as
long no undue interference - ok
2) Dissent – Unitary Theory of the Executive
The President should be in control of all of the executive power
(investigation and prosecution of violations of the law) because all
executive power is unified in the person of the President.
a. Political accountability
The President should be politically accountable for all of the
executive decisions.
1. BUT what about 2nd term?
b. Uniformity of enforcement of the law
Only the President enforces and applies the executive power,
so the uniformity is ensured.
c. Efficiency
One person in the President is more efficient than 500 in
Congress.
d. BUT is the textual difference between ‘all’ and ‘the’ in Articles
I and II constitutionally significant?
ii) Quasi-legislative & Quasi-judicial officers
Congress may limit, or completely block, the President’s right of removal of
quasi-legislative & quasi-judicial officers, in order to preserve their independence
26
from the executive branch. Humphrey’s Executor v US (FTC Act, limiting the
right of removal of federal trade commissioners by the President upheld)
1) Exception
a. Explicit congressional conferring of right of removal
Wiener v US (Congressional silence as to whether the
President can remove a quasi-legislative or quasi-judicial
officer means that the President may not do so)
5. Pardons
The President may grant reprieves and pardons for offenses against the US Article II, § 2
a) Before, during, or after trial
b) Criminal suits
c) Cannot be limited by Congress
d) Exceptions
i) Civil suits
Involves the rights of 3rd parties
ii) Cases of impeachment
6. NO power to make the laws
The President may not make laws, even in a time of war, but may only carry out the laws already
created by Congress
Youngstown Sheet & Tube Co. v Sawyer (Executive order to seize steel mills before strike
during a time of war held as an unconstitutional exercise of lawmaking authority reserved to
Congress)
a) Dissent – Executive order constitutional because
i) Temporary seizure
ii) Emergency Power
iii) Preservation of the status quo until Congress can act
B. External Affairs
1. War
The President has the power (all elements)
a) Commander in Chief
The President is commander in chief of the armed forces. IF in actual hostilities against
the US, he may act without congressional declaration of war. However, every two years,
Congress has power to appropriate funds to the military.
b) NO declaration of formal war
The power to declare war is left to Congress
c) NO unilateral suspension of writ of habeas corpus
The President must have Congress’ permission to suspend the writ Ex parte Merryman
2. Foreign Relations
3. Treaty Power
4. Executive Agreements
C. Executive Privilege
Executive privilege is an inherent, qualified privilege for confidentiality of Presidential communications
in the exercise of Article II powers. US v Nixon (Nixon only qualified privilege to Watergate tapes)
27
1. Judicial Review
The court, not the President, must evaluate claims of presidential privilege. Marbury v Madison
2. Justifications
a) Sources
i) Text – peculiar silence
ii) Structure
1) Would subjugate the executive to the judicial – weaken Presidency
a. Allowing the judicial to monitor the President would sacrifice
the quality of advice that the President receives - weakens
b. Presidency is no longer able to protect itself from
encroachment by other branches and becomes less powerful
2) BUT NO ONE IS ABOVE THE LAW
3) BUT WOULD BE UNWORKABLE (FUNCTIONALIST)
a. Upset the constitutional balance of a workable government
iii) History
1) Every President has believed (starting with Washington) that the President
was entitled to keep any information that it wanted from anyone outside
the white house
b) Policy
i) Executive privilege of refusal to disclose information is justified because to deny
such a privilege would (all elements)
ii) Subjugate the executive to the judicial and weaken the Presidency
1) Allow the judicial to monitor the Presidency
2) Sacrifice the quality of advice given to the Presidents
iii) BUT an absolute privilege would prevent the court from ever getting information
or being in a position to determine the quality of information being kept
confidential
3. Balancing Approach
Executive privilege is a qualified privilege, in which the interests of both parties will be balanced
a) Need for disclosure
b) Need for confidentiality
4. Court Procedure
When a claim of executive privilege is made, the court will determine in an in-camera inspection
which communications are protected and which are subject to disclosure.
5. Qualified Privilege
Executive Privilege is a qualified privilege given great deference when relates to (all elements)
a) National Security Secrets
b) Diplomacy
c) Military
d) Exceptions
i) Criminal Proceedings
The criminal justice system may outweigh the qualified privilege, if national,
diplomatic, or military secrets aren’t involved.
D. Executive Immunity
The Executive grants immunity from suit to (all elements)
28
1. The President
The President has absolute immunity IF (all elements)
a) Civil Suit
b) For Official Acts
The official acts include responsibilities, even if the action was only arguably within the
outer perimeter of presidential responsibility.
Nixon v Fitzgerald
i) Unique position in the constitutional scheme
Because the President occupies a unique position in the constitutional scheme, an
absolute immunity to suits prevents the President from (all elements)
1) Crippling the executive branch
2) Rendering him unduly cautious in the discharge of official duties
3) Diverting his energies to concern for private suits
ii) Alternative Remedies
Alternative remedies and deterrents establish that absolute immunity will not
place the President above the law because alternatives are (all elements)
1) Impeachment
2) Media Coverage
3) Vigilant oversight by Congress
Congress can hold hearings on anything
4) Desire to earn re-election, at least in 1st term
5) Need to maintain prestige
In order to be effective, assuming President comes to office with an
agenda, need to maintain respect for his office and his actions.
6) Concern for historical stature
c) Exception
i) Explicit affirmative action by Congress
ii) Non-Official Acts
The President is NOT immune for acts the President takes that are completely
unrelated to the carrying out of his constitutional duties.
Clinton v Jones (Clinton not able to defer litigation until his term ends for
unofficial acts because not above the law)
1) No one is above the law
2) President will not be subjected to frivolous suits
a. No History of such
b. Protection by judicial process and sanctions
3) BUT a lawsuit could be a big problem for a President and the media will
likely keep the suit going – district judge not likely to be relied upon
iii) Criminal Indictment
See Impeachment below
2. Presidential assistants
E. Impeachment
1. An officer of the executive
Article II, § 4 sets who is subject to impeachment: “the President, Vice President, and all civil
officers of the US, shall be removed from Office on Impeachment”
a) President
b) Vice President
29
c) All civil officers of the US
2. Procedure
Removal from office shall be ONLY IF (all elements)
a) Majority of the House  impeachment / “indictment” subjecting to trial
b) 2/3 of the Senate  conviction Article I § 3
3. Arguments for/against Impeachment
a) Arguments For
i) Text
1) Only one impeachment clause
ii) History
1) Impeached federal judges for similar ‘high crimes’
iii) Precedent
1) Hastings - impeachment for perjury related to official acts
iv) Structure
v) Moral
vi) Consequences
vii) Ethos
1) Justice requires that no one is above the law
b) Arguments Against
i) Text
1) Different standards for judges and President apply for confirmation oaths,
so apply different standards for impeachment
ii) History
1) Attempt to distinguish unofficial/official actions
iii) Precedent
iv) Structure
1) Positions of judges are different because
a. Different duties
b. Political accountability
1. judges aren’t elected
2. need higher threshold or else risk elections being
meaningless such that easy to throw out of office
2) Impeachment is NOT designed to be a referendum on whether or not
someone should continue to hold office (NOT an election)
v) Moral
1) Judges have to have higher moral character as integrity essential to
responsibility, whereas Presidents’ lack of moral character is not
disqualifying and may in fact make them a better President (FDR)
vi) Consequences
vii) Ethos
1) Not good for the country
4. Standards of Impeachment
Article II, § 4 also sets the standards for impeachment  may be impeached “for, and conviction
of, Treason, Bribery, or other high crimes and misdemeanors.” Because the constitutional phrase
“high Crime and Misdemeanors” is rather vague, its meaning is arguable. Some impeachable
offenses aren’t crime (abuse of power) & some crimes aren’t impeachable offenses (jaywalking)
a) Treason
30
b)
c)
d)
e)
Bribery
Other Serious crimes
Offense against the state
Abuse of power
i) President’s unique power to
1) grab power from other branches illegitimately
2) break criminal laws
ii) May have to show
1) Deliberate falsehoods
2) Undertaken with bad faith
f) Sources
i) Original understanding
ii) Framers’ generation practices
iii) Historical practices
iv) Structure
1) 2/3 requirement ensures non-partisan – serious offense
2) Acclamation / oath – extraordinary moment
3) Chief Justice residing – Avoiding conflict of interest as in VP residing and
ensure solemn proceeding
a. BUT note that VP resides over his own impeachment trial
5. Punishment for Impeachment
Article I § 3 sets the limits on punishment as “judgment in cases of impeachment shall not
extend further than to removal from Office, and disqualification to hold and enjoy any office of
honor, trust or profit under the US: but the party convicted shall nevertheless be liable and
subject to indictment, trial, judgment, and punishment according to law”
a) Removal
b) Disqualification
c) Criminal Prosecution
Criminal indictment of a sitting President is controversial, in part, because the test is
unclear: Article I § 3 – “but the party convicted [of impeachment] shall nevertheless be
liable and subject to indictment, trial, judgment, and punishment according to the law”
i) Arguments For
1) Text
a. Impeachment is mutually exclusive from legal liability and it
fails to explicitly preclude criminal prosecution
2) History
a. Framers’ silent
b. Walter Nixon & Clayton - Judges are not immune (Clayborn &
Nixon indicted) – didn’t cripple judicial (gave cases to others)
3) Precedent
a. Clinton v Jones – civil liability could be extended to criminal
prosecution
b. Hastings - impeachment for perjury related to official acts
4) Structure
a. Legal system and impeachment are separate, such that
concurrent proceedings would not unduly interfere with or
cripple the executive branch
5) Moral
a. Bad conduct justifies prosecution
31
6) Consequences
a. The legal system requires ensuring the integrity of law
b. Dissallowing would undermine moral of others
7) Ethos
a. Justice requires that no one is above the law
ii) Arguments Against
1) Text
a. Criminal prosecution must follow impeachment because
impeachment transforms President civilian
2) History
a. Hamilton’s Federalist Papers – can’t indict President
3) Precedent
a. Clinton v Jones – distinguished because narrow question of
civil liability – criminal more distracting
4) Structure
a. Criminal prosecution would paralyze the executive branch due
to the unique position of the President
b. Re-election is still possible
5) Moral
a. Moral justification – conduct can't be bad enough to justify
devastating the government
6) Consequences
a. Absurd / harmful result in imprisonment and insulting the
people’s choice
b. Paralysis of the executive branch
7) Ethos
a. Not good for the country
6. Reviewability by the Court
Once the Senate has convicted in an impeachment trial, no precedents exist on whether the
Supreme Court may review the conviction.
a) Probably a non-justiciable political question Nixon v US
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Individual Rights
XVII. Constitutional Restrictions on Power over individuals
A. Bill of Rights
1. Nearly All Applicable to States
2. NOT applicable to states
a) Grand Jury Clause’s prohibition of criminal trials without a grand jury indictment 5th
Amendment
b) Seventh Amendment’s right to jury in civil trial cases
B. Commerce Clause
C. 13th Amendment
D. 15th Amendment
E. 14th Amendment
1. Privileges & Immunities
2. Due Process of Law
a) Substantive Due Process
i) Fundamental Rights  strict scrutiny
1) Right to Privacy
2) Right to Vote
3) Right to Travel
4) 1st Amendment Rights
ii) All Other Rights  rational basis
b) Procedural Due Process
3. Equal Protection
XVIII. Standards of Review
The court employs one of three tests in reviewing laws under Due Process and Equal Protection,
depending on the circumstances (any element)
A. Strict Scrutiny
Under strict scrutiny, a law will be upheld only if it is (all elements)
1. Necessary
A law has a very close fit / relation to the government objective such that it may be said to be
‘necessary’ to achieving that objective IF (all elements)
a) The Government overcomes its burden of proof
b) That the law is NOT too (any element)
i) Over-inclusive
A law must not reach more people or conduct than is necessary such that no less
burdensome means exist for accomplishing the same governmental objective
1) No political accountability problem
2) BUT unfair burdens
ii) Under-inclusive
The court rarely invalidates an under-inclusive law because ‘one-step-at-a-time’
A law must reach all of the people or conduct sought to be regulated.
1) Political accountability / discrete and insular minorities
a. Would allow officials to pick and choose only a few to whom
they will apply legislation and to escape political retribution
2. To achieving a compelling government objective
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B. Exceedingly Persuasive Justification
Claiming to be applying intermediate scrutiny, the ‘exceedingly persuasive justification’ appears to be in
between intermediate scrutiny and strict scrutiny.
C. Intermediate Scrutiny
Under intermediate scrutiny, a law will be upheld only if it is (all elements)
1. Substantially related
2. To achieving an important government objective
D. Rational Basis
Under the rational basis standard, a law will be upheld if it is (all elements)
1. Rationally related
A law is rationally related if it is a reasonable fit between means and ends.
A law is a reasonable fit UNLESS (all elements)
a) Challenging party overcomes its burden of proof
The court presumes validity as the court gives much deference to the legislature’s
decision that a law is rational.
b) That the law is (any element)
i) Unreasonable
ii) Arbitrary
iii) Capricious
iv) Discriminatory
2. To achieving a legitimate government objective
A government objective / purpose is legitimate IF (all elements)
a) There exists a conceivable purpose
The purpose must be a plausible reason for enacting the law, inferred from the language
of the law by the court, even if not an actual purpose of the legislature
US Railroad Retirement Bd. V Fritz (holding that there was a plausible basis for a statute
that accidentally left out a class of railroad workers from coverage)
i) Problems with conceivable purpose
1) Courts are manipulating the record differently than legislative history
2) Easier for courts to overlook pretext
3) Judicial legislation
ii) Problems with actual purpose
1) Court could strike down identical statute which didn’t state actual purpose
2) Discerning the actual purpose is difficult in light of different reasons
3) Legislative history is easily manipulated
4) Ease of fabrication
5) Give more deference to the legislature as job isn't to correct mistakes
b) Within the states’ police power
A purpose is within the states’ police power if its goal is to (any element)
i) Public safety
ii) Public health
iii) Other general welfare goal
c) Even if ‘one step at a time’ approach
Legislation will not be invalidated merely because it deals with only one part of a
problem (under-inclusive) Williamson v Lee Optical
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Due Process of Law
XIX.
Requirement of STATE ACTION
Due Process of Law guarantees that no person shall be deprived of life, liberty, or property without due
process of law, which shall be given by (all elements)
1. The Federal Government 5th Amendment
The 5th Amendment has been interpreted in an identical way as the 14th Amendment.
2. The State or Local Government 14th Amendment
3. Private Individuals ONLY IF (any element)
a) Perform traditional and exclusive public functions
b) Significant state involvement
c) NO OTHER PRIVATE INDIVIDUALS
XX.
Bill of Rights becomes applicable to the states
The 14th Amendment makes nearly all of the guarantees of the Bill of Rights applicable to the states
because the court has interpreted any violation of those guarantees as taking away an individual’s liberty
1. Not directly applicable
The Bill of Rights are not directly binding upon state governments because nothing before the
14th Amendment required states to recognize the ‘separate’, federal bundle of rights.
Barron v Mayor & City Council of Baltimore (Holding that a city which ruined the wharf of a
state citizen could do so without compensation because the 5th Amendment only restrained the
power of the federal government, not the states. Had the framers of the Bill of Rights intended
such, they would have expressed that intention in plain language like the rest of the Constitution)
a) Consequences - imposed almost no constitutional restrictions on state government action
Dred Scott v Sanford (holding that African Americans aren’t, nor could they ever be,
citizens of the US and thus slave owners had a constitutional right under due process of
the 5th Amendment to never have their slaves taken away by Congress)
b) Enactment of the Reconstruction Amendments after Dred Scott v Sandford
BUT arguments that amendments don’t do anything but outlaw slavery in Slaughterhouse
2. BUT incorporated
The members of the court have held two views regarding the scope of incorporation
a) Selective Incorporation of Fundamental Rights
A guarantee of the Bill of Rights is ‘selectively incorporated’ into the 14th Amendment IF
(all elements)
i) Of the very essence of a scheme of ordered liberty
Palko v Connecticut (ban on double jeopardy not found to be sufficiently
fundamental)
Argues that total incorporation (all elements)
i) Has weak historical support
ii) Deprives the states of opportunity to reform
iii) Not really less vague because shift judicial discretion from ‘liberty’ to individual
guarantees of the Bill of Rights
b) Total Incorporation
The minority holds all of the guarantees of the Bill of Rights are incorporated into the
14th Amendment.
Argues that selective incorporation (all elements)
i) Gives too much scope to the personal views of the individual justices
ii) Application is unpredictable to the states
c) Modern
The modern court incorporates nearly the entire Bill of Rights, those guarantees which
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are fundamental in the context of the judicial processes maintained by the American
States Duncan v Louisiana
i) Rights NOT applicable to the states
1) Grand Jury Clause’s prohibition of criminal trials without a grand jury
indictment 5th Amendment
2) Seventh Amendment’s right to jury in civil trial cases
ii)
XXI.
Substantive Due Process
The doctrine used to invalidate a substantive state regulation, as opposed to purely procedural
regulations, is the ‘substantive’ due process clause of the 14th Amendment.
If a right is denied to everyone, the right must be reviewed under substantive due process.
A. History before demise of Lochner in 1934
1. No substantive due process
Slaughterhouse (holding that Louisiana could give a monopoly on New Orleans slaughterhouses
to a particular company because the Due Process clause protects only against procedural process)
a) Privileges & Immunities Clause irrelevant, useless, and truncated
Court held that the clause only protects rights which owe their existence to the federal
government, all of which are already protected by something else in the Constitution,
rendering the clause useless because it doesn’t add any other protections.
b) Reconstruction Amendments only abolish slavery
Court implied that the Reconstruction Amendments weren’t meant to add other
protections to citizens, but simply to guarantee the equality of African Americans.
2. Rise of substantive due process
Substantive due process revived due to the rise of (all elements)
a) Natural Rights Theory
Certain rights were fundamental or natural rights which derived from the nature of things.
Calder v Bull (natural law-social compact-vested rights approach – since the initial
invalidation of the will had not created any ‘vested’ property rights in the heirs, the law
was consistent with ‘natural justice’)
b) Laissez Faire Economics
Minimizing government interference with business would maximize industrial growth
and national well-being.
c) Willingness to engage in substantive review in some circumstances
i) Regulation of private contracts
Munn v Illinois (Mentioned that if was a case of mere private contracts, the
judiciary would determine what regulations were reasonable, instead of deferring
to the legislature)
ii) Violations of fundamental law
Mugler v Kansas (legislation would be valid under the states’ police powers only
if it didn’t violate ‘rights secured by the fundamental law’)
d) Liberty of Contract
i) Allgeyer v Louisiana
Liberty protected includes the right to enter into any contracts necessary to
accomplish the goals of the right to live and work where one wishes and to earn
one’s livelihood by any lawful calling.
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ii) Lochner v NY
The court struck down a law limiting the hours which a bakery employee could
work to 10 per day and 60 per week as an abridgment of the liberty to contract.
1) Not a health or safety measure
Public health isn't affected and bakers aren’t a particularly endangered
group.
2) Not a valid labor law
Mere readjustment of bargaining power wasn’t a sufficiently public
concern.
3) Court’s test
a. Must be a real and substantial relationship between the statute
and its goals
b. NOT unreasonable, unnecessary, and arbitrary interference
with the right of the individual
iii) Criticisms of Lochner
1) Court read liberty wrong to include right to contract
2) Court read due process wrong to include substance
3) Court was too skeptical
a. Test is problematic because giving courts too much power at
the expense of deference to the legislature
b. Overestimating the court’s ability to know better than
legislature
4) Court believes it needs to intervene, but really just needs to defer to the
political process
5) Court confuses the status quo in assuming the way the world looks is
simply something the constitution has guaranteed
B. Modern Approach
The modern approach to substantive due process revolves around determining whether the right
regulated by the legislation is either fundamental or non-fundamental
1. Determining if a right is fundamental
A fundamental right may be impliedly recognized by arguing (any element)
a) Repeat or avoid Lochner errors?
b) Tradition
Those values deeply rooted in this Nation’s history and tradition, collectively
representing the conscience of the people, are protected as fundamental rights.
i) These values reflect ongoing, enduring practices or values in our culture
ii) Traditionally protected values are relied upon and give notice to citizens
iii) Scalia’s notion of tradition
1) Requires a ‘CAREFUL DESCRIPTION’ of the asserted fundamental
interest – choosing the right level of generality
a. The most specific level at which a relevant tradition protection,
or denying protection to, the asserted right can be identified
b. the most precise and detailed delineation of the interest at stake
c. Rejects specific original understanding as only guaranteeing
equality of Blacks  hostility towards all race-based
2) Requires an ‘ OBJECTIVE’ right
a. Tradition, to be meaningful, must be written down in text (law)
b. Originalism – must choose the least imperfect method
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c)
d)
e)
f)
3) Because limits the way tradition can be manipulated
a. Restrains judges from unchecked discretion
4) Criticisms
a. The choice of level of generality is always ambiguous, and
always goes beyond the text of the law
Ordered Liberty
Those values ‘implicit in the concept of ordered liberty (essential to ordered liberty)’ are
fundamental rights.
Ninth Amendment
The Liberty component of the Due Process Clause in the 14th Amendment was modeled
after the 9th Amendment, which implies that the Constitution protects some rights not
enumerated (“the enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people”)
Penumbras
Several of the Bill of Rights guarantees, cumulatively within their structure, protect a
fundamental interest and create a penumbra (zone) of that interest.
i) Criticism
The penumbra theory may be illogical because specifically enumerated aspects of
a right which are explicitly protected suggest that the intention was to not protect
those aspects of a right which were not mentioned.
ii) Never used since first application
Only rights explicit in Bill of Rights
Those aspects of a right which are explicitly mentioned are fundamentally protected, but
those aspects which are not mentioned are not protected because judges should be
constrained by text. Ought to be no substantive due process.
2. Non-Fundamental Right  Rational Basis
Legislation regulating non-fundamental rights includes (all elements)
a) Economic Legislation
Economic legislation must pass the rational basis test such that (all elements)
i) The court may not impose its own economic policy views upon legislature
Nebbia v NY (sustained a NY regulatory scheme for fixing milk prices using the
Lochner test of ‘real and substantial relationship’, but did not impose its own
economic policy views upon legislatures as a state is free to adopt whatever
economic policy may be reasonably deemed to promote public welfare)
West Coast Hotel Co. v Parrish (sustained a state minimum wage law for women
because freedom of contract isn't absolute / fundamental right, but can be taken
away provided the government gives due process of law – overrules Lochner)
ii) The court may presume constitutionality – Minimum rationality
US v Carolene Products Co.(sustained a federal prohibition on interstate shipment
of ‘filled’ milk because the existence of facts supporting the legislative judgment
is to be presumed)
iii) Conceivable Basis to support the legislation
Williamson v Lee Optical Co.(sustained a statute preventing opticians from fitting
eyeglass lenses into frames without a prescription because the legislature might
have concluded that prescriptions may be necessary to permit accurate fitting)
iv) Almost complete abandonment of scrutiny
As such, the modern court has withdrawn almost completely from the business of
reviewing state legislative economic regulation for substantive due process
violations and has not struck down a law since 1937.
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Ferguson v Skrupa (sustaining a law prohibiting non-lawyers from engaging in
the business of debt adjusting because the court refused to sit as a ‘super
legislature’ to weigh the wisdom of legislation)
b) Social Welfare Legislation
Whalen v Roe (sustaining a law to maintain computerized database of users of certain
prescription drugs)
3. Intermediate Right  undue burden standard
a) Abortion
The right of privacy includes the non-fundamental right of a woman to choose an
abortion under certain circumstances without undue interference
i) Privacy Right
A Woman has a privacy interest in
1) choosing an abortion
ii) State’s Countervailing interest
A state has a countervailing interest in (all elements)
1) protecting the potential life of the fetus
2) protecting the mother’s health
iii) Previously recognized as fundamental interest
The right to an abortion was previously recognized as a fundamental interest in
Roe v Wade
1) Trimester Framework
The trimester framework gives the state a compelling interest in
a. After 1st trimester
Protecting the health of the mother
b. After 3rd trimester
Protecting the viability of the fetus
2) Arguments for
Arguments which can support Roe are (all elements)
a. Consequences - would result in self-inflicted, harmful ones
b. Moral Reasoning - Law must remove moral viewpoint as basis
c. Structure - individual autonomy - state can’t take over people
d. Equal Protection – based solely on gender and burdens women
3) Arguments Against
Arguments which go against Roe are (all elements)
a. Consequences - Destructive consequences for the fetus
b. Moral Reasoning
1. Abortion is murder
2. Sex discrimination
3. Undervalues the state’s interest in potential life
c. Structure
1. judicial legislation weakens the democratic process
2. representation re-enforcement for fetus not women
d. History – Framer’s had no intention to protect abortion
e. Precedent – Griswold is more narrow
iv) Determining viability, NOT trimester framework
The question in determining the right to an abortion is the viability of the fetus,
NOT the trimester framework which overruled in Planned Parenthood v Casey
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A state cannot unduly interfere with a physician’s medical judgment as to the
viability of a fetus Colautti v Franklin
v) Pre-Viability
Before viability, such that there is no realistic possibility of maintaining the fetus’
life outside the womb, negating a state’s interest, the state may (all elements)
1) NOT completely ban
A state may not completely ban pre-viability abortions under any
circumstances, even to protect the mother’s health, because prohibition of
all non-medically-necessary abortions would be ‘unduly burdensome’
2) Regulate without unduly burdening the right
A state may adopt regulations on abortions to protect the mother’s health
and the life of the fetus unless an ‘undue burden’ is placed on the
woman’s right to have an abortion, such that it has the purpose or effect of
placing a substantial obstacle in the path of the woman’s right
Planned Parenthood v Casey (overruling strict scrutiny of Roe v Wade)
An undue burden will be recognized IF a law requires (any element)
a. Spousal consent or notice
It is an undue burden to require a woman to sign a statement
that she has notified her spouse because it places the veto for
abortion in the hands of the father or husband, on a small
percentage who do not voluntarily notify the spouse
Planned Parenthood v Danforth
Planned Parenthood v Casey
b. Forbids the safest type of abortion without exceptions
It is an undue burden to forbid the most commonly used and
safest method for pre-viability abortions without providing for
an exception for the health of the mother.
Stenberg v Carhart (holding that a state may not completely
ban partial birth abortions without allowing a maternal-health
exception to the ban)
An undue burden will NOT be recognized if a law requires (any element)
c. Informed consent
It is not an undue burden to require a physician to ensure a
decision that is mature and informed, even when the state
expresses a preference for childbirth over abortion, by
providing a woman with information about the
1. Nature of the abortion procedure
2. Health risks of abortion and childbirth
3. Probable gestational age of the fetus
d. 24 hour waiting period
A waiting period does not place substantial obstacles as applied
to all women despite possible increased cost or potential delays
1. BUT may burden women with few financial resources
on an ‘as applied’ basis
e. Parental consent IF bypass procedure
A state may require a minor to obtain her parents’ consent to
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have an abortion if there is a bypass procedure whereby the
minor may obtain the abortion with consent of a judge
f. ‘Physician only’ requirement
It is not an undue burden to require abortions to be performed
only by licensed physicians Mazurek v Armstrong
g. Forbids a type of abortion AND there are adequately safe
alternatives AND contains a maternal-health exception
h. Has an incidental effect of making it more difficult or more
expensive to obtain an abortion
vi) Post-Viability
After viability, such that there exists a realistic possibility of maintaining the
fetus’s life outside the womb, enforcing the state’s interest in such, a state may
(all elements)
1) Completely ban
A state may completely ban post-viability abortions except those
necessary to protect the mother’s health.
2) Regulate tightly
A state may adopt tight regulations on abortions to protect the mother’s
health and the life of the fetus because the state’s interest in the fetus’ life
outweighs the woman’s right to choose, but not the state’s interest in the
woman’s health.
vii) Funding Abortions
The government may use its funds to (all elements)
1) NOT fund any abortions, even those medically necessary
The government has no constitutional obligation to fund abortion because
the constitution only protects negative liberties
Maher v Roe, Harris v McRae
2) NOT provide for use of public facilities and staff
The government has no constitutional obligation to allow the use of public
facilities and publicly-employed staff in abortions.
Webster v Reproductive Health Services
3) NOT fund abortion counseling and advocacy
Rest v Sullivan
4) Fund other things like child birth
The government can even choose to fund child birth because it doesn’t
impose a barrier or burden to abortion that wasn’t there otherwise.
4. Fundamental Right  Strict Scrutiny
Fundamental rights which have been recognized include (all elements)
a) 1st Amendment Rights
b) Right to Privacy
i) ‘Reproductive autonomy’ / child-bearing / decisions on procreation
The right to privacy includes the right to be free from undue interference with
decisions regarding procreation such that a person may not be prohibited from
using contraception IF (all elements)
1) Marital and non-marital relationships
a. Marital
Married persons not prevented from using birth control
41
Griswold v Connecticut (striking down a law forbidding the
use of contraceptives or counseling in their use because too
broadly sweeps through married people who aren’t ready to
conceive)
1. Harlan’s Tradition Dissent
i. accepts that marital privacy is covered, but
NOT homosexuality, abortion, adultery
2. Criticisms
i. Penumbra theory is illogical
ii. Issue was counseling, not searching bedrooms
iii. Application of penumbras to personal rights,
but not to property or economic rights
b. Non-marital
Right of privacy includes the right of the individual, married or
unmarried, to be free from unwarranted government intrusion
in decisions whether to bear or beget a child
Eisenstadt v Baird (striking down a statute that only allowed
contraceptives for married persons)
Lawrence v Texas (recognizing a general right of privacy in
sexual or pro-creational matters outside the bounds of marriage
in homosexuals)
2) Private and non-private places
a. Private
b. Non-private
Right of privacy isn't concerned with a particular place, but
with a protected intimate relationship
Carey v Population Services, Int’l (noting that the right of
privacy extends to the doctor’s office, hospital, hotel room, or
otherwise to safeguard the right to intimacy)
3) Adults and minors
Carey v Population Services, Int’l (striking down a prohibition of the
distribution of contraceptives to minors under 16)
ii) Family Relations
1) Right to marry
The government may not place a “direct legal obstacle in the path of
persons desired to get married” or “significantly discourage” marriage
Zablocki v Redhail (striking down law requiring parents under court order
to support a minor child to obtain approval from court before marriage)
The fundamental right to enter into a marriage relationship extends to
a. Traditional marriage
The marriage of a male and a female is a traditionally
recognized fundamental right. Griswold v Connecticut
b. Interracial marriage
Loving v Virginia
c. NOT Prison Inmates
A law restricting the right to marry of prison inmates is subject
only to the rational basis test.
Turner v Safley (striking down on rational basis a law
prohibiting marriage unless approved by the superintendent)
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d. NOT gay marriage (NOT fundamental)
The court has not yet recognized the right of same sex marriage
as fundamental, but more likely since Lawrence v Texas
1. Arguments against gay marriage
i. Ban on gay marriage doesn’t criminalize
Without making it a crime, and simply not
recognizing gay marriage, lessens the force of
Lawrence v Texas and makes it more
questionable whether it ‘demeans the lives’ of
gay people who wish to marry.
ii. Conceivable basis
The fit between the availability of marriage and
the strengthening of paternal bonds satisfy the
undemanding standard, even if seen as ‘one step
at a time’ approach.
iii. Not deeply rooted in tradition
Historically, marriage has been defined as a
status that can only exist between a man and a
woman
2. Arguments for gay marriage
i. Lawrence v Texas
Extend to the right to have society recognize the
‘personal bond that is more enduring’ as an
‘element’ of ‘intimate contact’
2) Right to choose family living arrangements
The right of privacy includes the right of family members, even extended
ones, to make decisions concerning family living arrangements because
the institution of the family is deeply rooted in the nation’s history.
Moore v East Cleveland (holding the government may not pass zoning
regulations which impair the ability of family members to reside together)
a. NOT individuals
The right extends only to family relations, NOT to any
individuals to choose where to live
Belle Terre v Borass (upholding a zoning restriction which
excluded groups of unrelated persons from living together)
3) Child Rearing
The right of privacy includes the right of parents to make decisions
concerning the care, custody, and control of their children.
a. Education
A parent has the right to determine the education of their child
The government may not (all elements)
1. require that all children be education in public schools
Pierce v Society of Sisters
2. forbid education in other languages
Meyer v Nebraska
b. Visitation
A parent has a fundamental interest in determining which
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people outside the nuclear family will have access to their
children Troxel v Granville (holding invalid a law authorizing
courts to grant any person (including grandparents) the right to
visit a child, without giving special weight to the parent’s
judgment on visitation matters)
c. Adoption by homosexuals
1. Argument against
i. Enacted out of animosity
ii. Enacted out of moral disapproval
2. Argument for
i. Rational fit between means (banning adoption
by gays) and ends (children are better off being
raised by a married couple)
4) Right of a natural father out of wedlock
A natural father out of wedlock may have a constitutional stake in his
relationship with that child IF (all elements)
a. Biological father
b. Substantial parent-child relationship or lived with child
Michael H. v Gerald D. (resorting to tradition requires emphasis on the
most specific level of generality, the most precise and detailed delineation
of the interest at stake, at which history and tradition can be perceived
because it limits the ways tradition can be manipulated)
iii) Sexuality / Homosexuality
The right of privacy includes the right to engage in private, consensual adult
sexual conduct because the state has no legitimate interest.
Lawrence v Texas (invalidating a Texas law criminalizing homosexual sodomy
on rational basis review because liberty presumes an autonomy of self that
includes certain intimate conduct)
1) Overrules Bowers v Hardwick (holding homosexual sodomy is not a
fundamental right because it is not root in tradition or implicit in the
concept of ordered liberty, regardless of privacy in the home)
a. Historical analysis wrong – no ancient roots
b. Emerging recognition of liberty interest in sex
c. Other countries don’t bar private homosexual conduct
d. Non-enforcement of Bowers
2) A state cannot demean a persons existence or control their destiny by
making private sexual conduct a crime
a. Demeans the lives of homosexual persons because narrowly
tailored to homosexuals
3) Moral disapproval, animus, or prejudice of a group is an interest that
is insufficient to satisfy rational basis review under equal protection
4) Doesn’t cover
a. Minors
b. Persons who might be injured or coerced
c. Consent not easily refused
d. Public conduct
e. Prostitution
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f. Gay marriage
See above ‘Right to Marry’ for arguments for and against.
5) Dissent
a. Stare decisis does control
1. There has been social reliance on Bowers
b. Homosexual sodomy is not a fundamental right because it is
not deeply rooted in the nation’s history
1. To the contrary, there is a tradition of laws prohibiting
sodomy in general
c. Foreign nation’s approach is irrelevant and dangerous
1. Court should not impose foreign moods, fads, or
fashions on Americans
d. Statute has a rational relation in moral legislation
1. Just like laws against fornication, bigamy, adultery,
adult incest, etc.
2. None of these laws can survive now either
Evans v Romer
e. Allowing homosexuals to achieve judicially what they had been
unable to achieve politically
iv) NOT Personal Appearance  RATIONAL BASIS TEST
Kelley v Johnson (upholding a regulation of personal appearance of policemen
because there was a rational connection to the promotion of safety of persons and
property, due to the interest in keeping policemen readily recognizable to the
public and a sense of comradeship that comes from being similar)
1) Dissent –appearance is a means of expressing attitude and lifestyle
v) Right to Die
1) Right to refuse medical treatment
The right of privacy includes the liberty interest in not being forced to
undergo unwanted medical procedures, including artificial life-sustaining
measures, and extends to (all elements)
a. Competent adults
b. Incompetent adults IF clear and convincing evidence
The state’s countervailing interest in preserving life entitles the
state to require clear and convincing evidence that a now
incompetent adult would have voluntarily declined treatment.
Clear and convincing evidence may be established with
1. Previously expressed clear wishes
A state is constitutionally required to honor the
patient’s wishes clearly expressed in a living will.
2. Designation of other person to decide
A document establishing a health-care proxy
c. Children
Most likely, the parents or a court-appointed guardian must be
given the right to make such decision, so that the child’s
constitutional rights are not nullified.
Cruzan v Missouri Department of Health (holding that there existed no clear
and convincing evidence, until remand with more evidence)
d. Dissent
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1. Patient’s best interest should control
2. Equivalent of the right to commit suicide
2) NO right to commit suicide
There is no liberty interest in committing suicide or having a third person
assist in suicide, such that a state may forbid a competent adult from
taking active steps to commit suicide.
Washington v Glucksberg (holding that a state may ban persons from
giving individuals assistance in committing suicide)
a. No historical right and not rooted in tradition
b. Distinguishable from Cruzan
1. derived from forced medication as a battery
c. State’s interest rational in
1. preserving life
2. protecting integrity of the medical profession
3. Protecting the vulnerable from abuse, neglect, mistakes
4. Preventing a slippery slope toward euthanasia
d. Dissent
1. right to die with dignity
2. Personal control over the manner and time of death
3. Avoidance of unnecessary and severe physical suffering
e. Open to ‘as applied’ basis (right to be free from pain)
Some justices seemed would permit a terminally-ill patient
suffering great pain to a limited right to a prescribed
medication to alleviate suffering, even if would hasten death
f. States free to permit
g. Distinguished from withdrawal of medical treatment
Right to commit suicide is distinguished from right to refuse
medical treatment because of the intent involved
1. Assisted suicide
i. End of life
2. Withdrawal of medical treatment
i. Respect patient’s wishes
ii. Ease the patient’s pain
XXII. Procedural Due Process
Procedural due process does not prevent something from being taken away from a citizen, but just
requires that the citizen be given some process before it is taken away.
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Equal Protection
XXIII. Requirement of STATE ACTION
Equal Protection guarantees that no state shall make or enforce any law which shall deny to any person
with in its jurisdiction equal protection of the laws (people who are similarly situated will be treated
similarly), which shall be given by (all elements)
1. The Federal Government 5th Amendment
Though the 5th Amendment does not have a similar equal protection clause, the court has held
the 5th Amendment has an implied equal protection clause applicable to the federal government.
Bolling v Sharpe (holding that racial discrimination by the federal government, in Washington
D.C. violated due process / equal protection)
2. The State or Local Government 14th Amendment
3. Private Individuals ONLY IF (any element)
a) Perform traditional and exclusive public functions
b) Significant state involvement
4. NO OTHER PRIVATE INDIVIDUALS
XXIV. Determining & Proving Purposeful Discriminatory Classifications
While all laws make classifications and imperfect distinctions (over-inclusive / under-inclusive), a
classification can be proven discriminatory by showing an intent to discriminate resulting in ‘de jure’,
not ‘de facto’ discrimination, by (any element)
1. Facial Discrimination
A law may include a classification of its fact, and by its own terms, makes an explicit distinction
between classes of persons.
a) Even absent racial language
A law may be discriminatory on its face, even absent racial language, when it can not be
explained except in racial terms
Shaw v Reno (striking down a law establishing a bizarrely shaped district where minority
race voters resided)
2. Discriminatory Purpose shown by circumstantial evidence
A law, although neutral on its face and applied in accordance with its terms, may include a
classification because it was enacted with a purpose of discriminating as shown by (any element)
a) Evidentiary Hearing
i) Legislative history
ii) Historical background of decision
iii) Procedural departures
iv) Substantive departures
v) Statements made by the legislators
vi) Disparate impact
vii) Other circumstantial evidence of intent
viii) NOT Discriminatory Impact alone
Absent ~100% discriminatory impact, statistics alone of the law’s discriminatory
impact will be insufficient to prove a discriminatory classification subject to
heightened scrutiny
Washington v Davis (upholding a written test for police officers in which 4 times
as many blacks failed as whites)
b) If not enough evidence = neutral classification  RBT
c) If enough evidence = suspect classification  SS  burden shifts to state
The state must prove that the result would have come about even without the improper,
racially motivated purpose, such that it was adopted in spite of, not because of, the
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disproportionate impact
Arlington Heights v Metropolitan Housing (upholding a zoning request)
3. Purposefully Discriminatory in Administration
A law, although neutral on its face, may include a classification because of the purposefully
discriminatory manner in which it is applied, nearly 100% of the time.
The court can infer a racially discriminatory purpose, despite any other evidence.
Yick Wo v Hopkins (facially neutral law imprisoned only Chinese people who operated laundry
facilities, while all others were given exemption)
Gomillion v Lightfoot (unnatural shape of city boundaries violation of EP because can infer only
to disenfranchise blacks with a discriminatory purpose)
Griffin v County School Board of Price Edward (closing of public schools with grants of public
funds to whites to attend private school violation of EP because 100% disproportionate impact)
a) EXCEPTION – NO affirmative duty & other explanations
Palmer v Thompson (closing of swimming pools not violation of EP because can be
explained by more than one thing and no affirmative duty to operate pools)
XXV. Arguments for Suspect Classification / Strict Scrutiny
1. The only suspect classification is race (Scalia)
a) No analogizing to paradigm class  RBT
b) Only in clear cases should strike down tradition (Brown, Loving) because strike at heart
of text and original understanding of 14th Amendment (all race based unconstitutional)
2. All classifications are subject to a serious RBT – reasonable, actual relationship (Stevens)
a) Only 1 EP clause
3. Suspect classifications are disadvantaged classes analogous to the paradigm class by showing
a) Animus
b) History of discrimination
Suspect classifications that have a history of discrimination are more susceptible to
prejudice, so use strict scrutiny to uncover any prejudices
No way to tell if truly benign or motivated by illegitimate notions unless use SS
c) Representation Re-enforcement
Suspect classifications, consisting of discrete and insular (singled out) minorities, may
have a problem in the political process because they are so disfavored.
d) Stigmatization
Suspect classifications stamp a class as inferior, less competent, and can't succeed
without special protection
i) Affirmative Action – Individualized Assessment
Reinforces individual worth and ensures deserving of benefit
e) Prejudice
f) Stereotype
g) Immutable Trait
Suspect classifications hinder a class which is not subject to its choosing
h) Color-blindness of government / Constitution
Unless suspect classifications subject to SS, society will never become truly race-neutral
XXVI.
Arguments for Quasi-Suspect / Intermediate Scrutiny
1. Suspect classifications are disadvantaged classes analogous to the paradigm class by showing
a) History
Original understanding of the 14th Amendment only guarantees equality of Blacks
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b) Remedy Past discrimination
Fit between means and ends allows for a little imperfection for the sake of remedying
past discrimination
c) No Animus or prejudice
Legitimate government objective in trying to remedy past discrimination
d) No Representation Re-enforcement problem
Process theory of EP – if a majority is disadvantaging itself, less suspicious of pretext
XXVII. Suspect Classification / Fundamental Interest Strict Scrutiny
1. Suspect Classifications
a) Alienage
Strict scrutiny probably applies to aliens IF (all elements)
i) Legal
Strict scrutiny will probably not apply to illegal aliens
ii) EXCEPTION
Where the alien has applied for a job that goes to the ‘heart of representative
government,’ such as jobs that have a policy, law enforcement, or education
component, only mere rationality is used.
1) NOT sufficiently ministerial (secretary, meter reader)
b) Race and National origin
A government action involves suspect classifications IF (any element)
i) Intentional (‘de jure’) Segregation
The intentional maintenance of physical separation between races is a per se
violation of Equal Protection (all elements)
1) By federal government
Bolling v Sharpe (racial segregation by the federal government violates
the due process clause of the 5th Amendment)
2) By states
Brown v Board of Education (overruling Plessy v Ferguson  separate
educational facilities violate EP because the effect of segregation on
public education is to create a sense of inferiority affecting the motivation
of a child to learn, even though original understanding is inconclusive 
separate but equal is inherently unequal)
a. Court’s reliance on social science / empirical evidence
b. Also argue freedom of blacks to associate with whites, BUT
could argue freedom of whites to NOT associate with blacks
Different interpretations of Brown
c. Separate but equal unconstitutional
1. Only in public education
2. Always
d. Race based classifications unconstitutional
1. Only when disadvantaging a racial minority
EVEN IF EQUAL APPLICATION
Loving v VA (striking down such an interpretation by
holding that ‘equal application’ does not immunize a
classification from strict scrutiny)
2. Always
e. Individual, fundamental right to
1. Education
2. Attend integrated education
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f. Group, fundamental right to
1. Attend integrated education
Theories of EP / Responses to resistance
g. Process theory of EP  interest in ending segregation
Achievement of a fair political process that is free from racial
prejudice, regardless of outcomes = applied when don’t know
the purpose for the law
1. Injunctions
2. Ordering plans for implementing law
3. Citing for contempt of court
4. Fines
h. Substantive theory of EP  interest in requiring integration
A fair process may never be free of racial prejudice, so must
ensure that outcomes reflect substantive equality = applied
when know acting pursuant to racial prejudice
1. Busing Swan
3) Suspect Class survives strict scrutiny for National Security
Korematsu v US (A compelling need to prevent espionage and sabotage
permitted the government to exclude all Japanese from certain areas of the
West Coast, despite loose definition of ‘necessary’)
ii) NOT ‘de facto’ segregation
De facto segregation is segregation that results from private activity and factors
beyond the court’s control.
Keyes v School District No. 1 (no equal protection violation found where a school
system established attendance zones in a racially neutral manner, but racial
imbalance occurred because of housing patterns)
iii) Affirmative Action (‘benign’ discrimination)
Government action that favors racial minorities is subject to strict scrutiny and
will be upheld only IF (all elements)
1) Compelling interest
Compelling interests that meet strict scrutiny include (all elements)
a. Remedying past discrimination
There is a compelling interest in remedying past (all elements)
1. Public and Private discrimination
A public entity wanting to use affirmative action must
identify with specificity the discrimination
Richmond v J.A. Croson (0.67% of contracts given to
minorities insufficient – need to show that more than %
of qualified minorities to take the contract)
BUT state localities less empower to remedy b/c
i. Nature of legislative process – less fact finding
ii. Susceptibility of localities to factual control
2. NOT general effects of societal discrimination
Evidence of widespread discrimination by society as a
whole is insufficient – must be precise findings
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b. Educational Diversity
Diversity is a compelling interest because
1. Enriches the working & learning environment
i. Break down racial stereotypes for workforce
ii. Classroom discussions
2. Give deference to educational decisions by educators
Grutter v Bollinger
Expansion to other contexts
i. Faculty – deference, but not sure if faculty
ii. Non-educational employment (armed forces) –
probably ok for officer-corps diversity
iii. Hispanics treated less favorably than Blacks –
no as long as individualized treatment
iv. Asians get ‘minus’ to avoid too many – probably
distinguished from whites disadvantaging itself
to admissions (of any composition)
disadvantaging Asians
v. Private school receiving federal funds – Title VI
probably struck down – get no funds
c. NOT role models
d. NOT balanced work force
e. NOT increasing services to minority communities
2) Necessary
A suspect classification is necessary to achieving a compelling interest IF
a. Race as a factor in consideration of individual treatment
To be narrowly tailored, a race-conscious program must
1. Provide for individual assessment
2. In which race is one of many factors
3. Which does not unduly burden majority individuals
4. After serious, good faith consideration of raceneutral alternatives – note much deference
Grutter v Bollinger (upholds the plan which allows for
individualized assessment even under strict scrutiny)
b. NOT mechanical approaches resembling quotas
A racially based quota or automatic awarding of a fixed
number of points based on raced is NOT necessary or narrowly
tailored to achieve any compelling interest
Regents of Univ. of CA v Bakke (while student body diversity
is a compelling interest, quotas are not narrowly tailored to
achieving that interest, and as such a quota reserving 16 out of
100 seats for minorities was struck down)
Gratz v Bollinger (strikes down numerical, mechanical system
that assigns many highly influential points for race)
c. NOT set asides
Minority set asides will likely be struck when imposed by
1. Government / Private / local entities
City of Richmond v J.A. Croson (30% set aside for
minority construction companies not narrowly tailored
because non-race based alternatives)
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i. Scalia – more reasons for race classifications
than eliminating past discrimination
2. Congress
Federal government must satisfy the same strict
scrutiny standard for race based affirmative action
i. Congruence – 5th = 14th EP (BUT could argue
Congress is explicitly enhanced power)
ii. Consistency – black/white being disadvantaged
iii. Skepticism = strict scrutiny
Adarand Constructors v Pena (10% financial incentive
for hiring disadvantaged construction company)
2. Fundamental Interests
Fundamental interests protected by EP are those interests given by the government’s choosing
which cannot be taken away, burdened, or conditioned without a compelling justification. A
fundamental right must be explicitly or implicitly guaranteed by the Constitution.
a) Right to vote
While not a fundamental right, voting is an equal protection fundamental interest
i) A state cannot charge a person to vote with a poll tax because it would be
conditioning that right without any compelling justification Harper
b) Right to access courts
i) State imposed fees if have monopoly
A state cannot impose a fee over a subject it has a monopoly in
1) Divorce
2) NOT bankruptcy
ii) Right to counsel
A state that threatens to imprison someone must provide appointed counsel
Gideon v Wayneright
c) Right to travel
d) Right to be a political candidate – quasi-fundamental
A state cannot make restrictions that are unfair to new parties or based on wealth, but
minimum age and residing time seem to be upheld.
XXVIII. Quasi-suspect classification  Exceedingly-Persuasive-Intermediate Scrutiny
1. Gender
Gender based classifications are subject to intermediate scrutiny when they result in
a) Intentional Discrimination
i) Prejudicial
Craig v Boren (striking law providing a higher minimum drinking age for men
than women b/c statistics reinforce/codify stereotype that women don’t drink)
Miss. University for Women v Hogan (struck denial of admission to males)
US v VA (state military school’s policy of admitting women struck because no
evidence intended to foster diversity and evidence that some women could meet –
not allowed to reinforce stereotypes, despite adversity approach modification)
1) Scalia’s dissent – tradition
2) Response – some traditions are unconstitutional
3) POSSIBLE EXCEPTION for MILITARY / WAR
Goldberg v Roseland (Constitutionality of male-only draft upheld under
strict scrutiny because difficulty in expending additional resources during
wartime to accommodate for privacy, capture, etc.)
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ii) LAWS SURVIVING SCRUTINY
Michael M. v Superior Court (punishing males but not females for statutory rape
substantially related to preventing pregnancy of minors)
Goldberg v Roseland (male only draft related to preparing combat troops)
Nguyen v INS (automatic citizenship to nonmarital children born abroad to
American mothers, but requiring American fathers of children born abroad to take
specific steps to establish paternity substantially related to avoiding proof of
paternity problems)
iii) Benign
Classifications benefiting women that are designed to remedy past discrimination
against women will generally be upheld
b) NOT Disproportionate impact / unintended burden
If a governmental action has the effect of creating an unintended burden on one sex
greater than the other sex – no intermediate scrutiny  RBT
Personnel Admin of Mass. V Feeney (preference to veterans for civil service jobs where
males happen to be 98% of veterans)
2. Legitimacy
XXIX.
Non-suspect class / Neutral Class w/ disproportionate impact / Non-fundamental interest RTB
1. Non-suspect classification
a) Sexual Orientation
Although purporting to only apply RBT, court effectively applies middle level scrutiny
i) Arguments for heightened scrutiny
1) History of discrimination
2) Stigmatization – singling out of one class to have constitutional amend.
3) Stereotypes
4) Based solely on animus
ii) Arguments against
1) not immutable trait
2) no representation reinforcement – have great political power
3) Democratic process – no unique hurdles for homosexuals
Romer v Evans (striking down popular referendum that prohibited protecting the
status of persons based on sexual orientation because denies them the right to seek
protection of the laws unless constitutional amendment – based solely on animus)
4) Scalia’s tradition dissent – only race based classifications barred,
indistinguishable from polygamy – states can outlaw purely moral based
b) Age
Applicable test is RBT and a federal law that tries to regulate more than the RBT is
violative of the 14th Amendment because lacks congruence and proportionality
Kimel v Florida Board of Regents (must show a national problem, hard)
c) Wealth
d) Mental Condition
2. Neutral Classification
Neutral classifications that produce disproportionate impact on racial minorities will trigger only
the RBT, based on the process theory of EP
3. Non-fundamental right
a) Necessities
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i) No fundamental right to food, shelter, medical care, so the state may distribute
these things unevenly
b) Education
Education is not a fundamental right because it would be a positive right, requiring the
expending of resources to educational facilities.
The importance of a service performed by the state does NOT determine whether it
must be regarded as fundamental for Equal Protection
San Antonio Independent School District v Rodriquez (holding no fundamental right to
equality in public school education)
i) BUT MAY BE QUASI-SUSPECT AND QUASI-FUNDAMENTAL
Plyer v Doe (holding denial of education to illegal immigrant’s children
unconstitutional violation of EP on grounds of quasi-suspect and quasifundamental because punishing children doesn’t further important object)
c) Welfare
d) EXCEPTION WHEN COMPLETE DEPRIVATION
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State Action
XXX. Requirement of state action
A. Purpose of requiring
1. 14th Amendment’s text
“No state shall…” & § 5 limits Congress’ power to regulate the states
2. A realm of private activity is constitutionally protected
States are free to regulate private activity that relates to civil rights
3. Consequence of federalism
States have a realm of autonomy in order to limit the power of the federal government, allow
private citizens freedom to make choices, and to be in a better position locally
B. When Met
A state may be held accountable for seemingly private conduct IF the state is (any element)
1. Involved in the activity
2. Monopolizing the activity
3. Publicly entwined
Public and private actors jointly involved excessively in the activity
4. Approving the activity
A state officially or formally approving an activity
C. Limitation on Congress’ § 5 power
1. NOT to define the substantive scope of the Constitution
Only the Supreme court has this power
City of Boerne v Flores (Congress’ passing of the RFRA to attempt to restore strict scrutiny and
thereby overrule Smith unconstitutional because not congruent [defining different scrutiny for
state and federal] or proportional [provides more protection for federal than state than free
exercise clause does])
2. Abrogation of State Sovereign Immunity
A statute passed under Congress’ § 5 power may abrogate states’ immunity to create a valid
remedy against state violations of rights protected by Post-Civil War Amend IF (all elements)
a) Explicit abrogation
b) Congruence & Proportionality
There must be a congruence and proportionality between the injury to be prevented or
remedied and the means adopted to that end (goes beyond Congress’ remedial powers)
A Congruence & Proportionality may exists if (all elements)
i) Congressional finding that State major violator of EP
1) If heightened scrutiny  easier to find violations
Nevada v Hibbs (upholds national law predicated on protecting the right
to be free from gender based discrimination in the workplace [national
problem in stereotyping who is capable of leave time after birth of child]
because congruent and proportional with most states violating)
a. Scalia – if national problem, must show in all 50 states
2) If RBT Scrutiny  hard to find violations
Kimel v Florida Board of Regents (Congress exceeded § 5 remedial
powers when tried to make states acting as employers liable for age &
disability discrimination because not congruent and proportional response
to an EP problem as Congress didn’t find that states were major violators
of EP when discriminated)