Introduction

1. Purpose of the United States Constitution:

a. It establishes the structure of the federal government and allocates power among its
branches
b. It allocates governmental power between the federal government and state
governments
c. It prescribed a mechanism for making and applying laws
d. Following the adoption of the Bill of Rights, it protects individual rights
e. It protects fundamental fairness by preventing majorities from unfairly oppressing
minorities

2. Cornerstones of Constitutional Government:

a. Checks & Balances
b. Federalism
c. Protection of Individual Rights
d. Judicial Review

3. Stare Decisis – “Let the decision stand”:

a. Once decided, should remain decided and should not be reopened.
Federal Judicial Power
1. AUTHORITY OF JUDICIAL REVIEW :
Marbury v. Madison:
The Supreme Court of the United States has the authority to review laws and legislative acts to
determine whether they comply with the United States Constitution.

a. Article III is the ceiling of the federal courts’ jurisdiction

b. The Court is the final arbiter of the Constitution – the final authority on what the
Constitution means
Martin v. Hunter’s Lessee:
Under Article III of the United States Constitution, the United States Supreme Court has
authority to exercise appellate review of state-court decisions.

Cohens v. Virginia:
The United States Supreme Court has jurisdiction to hear appeals from state courts over matters
arising under the United States Constitution or federal laws.

2. DUAL SOVEREIGNTY :
a. Personal freedoms and rights are protected by two constitutions – the United States
Constitution and the applicable state constitution
b. The United States Constitution provides the basic level of protection, but the states’
constitutions may provide even greater protection or protect different rights

3. ADEQUATE AND INDEPENDENT STATE GROUNDS :

a. The United States Supreme Court only reviews questions of federal law, not state law.
i. If the state decision rests on state law, there is no federal question.
 b. The Supreme Court will hear a case from a state court only if the state court judgment
turned on federal grounds.
c. Adequacy:
i. Adequate if the Court’s judgment on the federal issues would have no impact on
the state court’s judgment.

d. Independent:
i. Would the Supreme Court’s resolution of federal issues involved in the case will
affect the state court’s judgment?
ii. Did the state supreme court base is holding on state law that is insulated from
federal review, or are the state law issues dependent on and intertwined with
federal law?
iii. If they relied on federal case law interpreting an identical federal provision, it’s
not independent.
Murdock v. City of Memphis:
The United States Supreme Court has authority to review state court decisions only if (1) a
controlling federal question was decided erroneously, and (2) the decision lacked an
independent and adequate state ground
Michigan v. Long:
The US Supreme Court has jurisdiction to review a state court’s decision to provide a defendant
with broader procedural protections than those guaranteed in the US Constitution unless the
state court explicitly states that its decision is based on separate, adequate, and independent
state grounds
a. Four Part Test:
I. Did the decision rest primarily on federal grounds?
II. Is the independence of the asserted state ground apparent from the four
corners of the state opinion?
III. Did the state court feel compelled by what it understood federal constitutional
requirements to be?
IV. Is the non-federal ground so interwoven with the federal ground as not to be
independent?

4. LIMITS ON FEDERAL JUDICIAL POWER:

a. Interpretative Limits: raise the question of how the Constitutional should be interpreted
i. Factors to Consider:
1. Plain language of the Test;
2. Relevance of History;
3. Intent of the Framers, the Ratifiers, or the Public,
4. Precedents;
5. Intervening Chances in Circumstances
6. Moral and Social Policy Values
b. Congressional Limits: refers to the ability of Congress to restrict federal court jurisdiction

c. Justiciability Limits: refers to a series of judicially created doctrines that limit the types
of matter that federal courts can decide.
 District of Columbia v. Heller:
Subject to certain safety limitations, the Second Amendment to the United States Constitution
creates an individual right to keep and bear arms apart from any military purpose

McDonald v. City of Chicago:

A Bill of Rights guarantee applies to the states if it is fundamental to the nation’s scheme of
ordered liberty or deeply rooted in the nation’s history and tradition

5. CONGRESSIONAL LIMITS:
a. Article III, Section 2: in all other cases before mentioned, the Supreme Court shall have
appellate jurisdiction, both as to Law and fact, with such exceptions and under such
regulation as the congress shall make
Ex Parte McCardle:
Although the United States Supreme Court’s Appellate jurisdiction is derived from Article III of
the Constitution, it is conferred subject to whatever exceptions and regulations Congress
chooses to make

6. SEPARATION OF POWERS AS A LIMIT OF CONGRESS’S AUTHORITY

a. Congress has reacted to a Supreme Court decision interpreting a statute by adopting a
law effectively overruling the court’s ruling
United States v. Klein:
Based on the principle of separation of powers in the United States Constitution, the legislative
branch may not impair or direct the exclusive powers of the judicial or executive branches

Robertson v. Seattle Audubon Society:

The Supreme Court held the change in law that Congress made did not apply to findings of a
current case and the new law would only apply to issues going forward.

Bank Markazi v. Peterson:

Congress may amend preexisting law and make the amendment applicable to a pending civil
case, even if the amendment determines the outcome of the case

7. JUSTICIABILITY LIMITS – WHEN A COURT WILL HEAR A CASE

a. Article III, Section 2 contains limits on the federal judicial power
b. Two Types of Justiciability Limits:
i. Constitutional Doctrines: Congress cannot override them by statute
ii. Prudential Doctrines: Based on prudent judicial administration and can be
overridden by Congress

c. Five Justiciability Doctrines:

i. Prohibition against Advisory Opinions;
ii. Standing;
1. Is this the proper litigant in a case? Have they suffered a personal grievance
vs. a general grievance?
iii. Ripeness;
1. Whether the injury has occurred yet?
 iv. Mootness; and
1. Plaintiff must present a live case in controversy at all stages of a federal
case.
2. Moot: no longer a case in controversy
v. Political Question Doctrine

d. “Avoidance Principles”
i. Court should refrain from passing on the constitutionality of a statute unless we
are required to do so when the question is raised by a party whose interests
entitle him to raise it
ii. Court will not pass upon the constitutionality of a statute in a friendly, non-
adversary proceeding
iii. Court will not anticipate a question of constitutional law in advance of the
necessity of deciding it
iv. Court will not formulate a rule of constitutional law broader than is required by
the precise facts to which it is to applied
v. The Court will not decide a constitutional question if there is a non-
constitutional ground on which the case can be decided
vi. Court will not pass on the validity of a statute in a case brought by one who fails
to show that he has been injured by the statute’s operation
vii. Court will not pass upon the constitutionality of a statute at the instance of one
who has availed himself of its benefits.
viii. When the constitutionality of a statute is challenged, the Court will first
ascertain whether a construction of the statute is fairly possible by which the
question may be avoided

e. Prohibition against Advisory Opinions

i. Criteria to Avoid being an Advisory Opinion:
1. Must be an actual dispute against adverse litigants;
2. Must be a substantial likelihood that judicial intervention in favor of the
claimant will have some effect
Hayburn’s Case:
Congress does not have the authority to order federal courts to perform non-judicial acts

Plaut v. Spendthrift Farm, Inc.:

Congress may not pass retroactive legislation that has the effect of forcing the courts to reopen
final judgments, as this violates the separation of powers in the Constitution. Only way to
change the Constitution is via amendments

Nashville, Chattanooga, & St. Louis Railway Co. v. Wallace:

Declaratory judgment actions that satisfy the case or controversy requirement under Article III,
Section 2 of the United States Constitution are within the appellate Jurisdiction of the United
States Supreme Court

f. Standing: Whether a specific person is the proper party to seek an adjudication of the
controversy
i. Prudential Standing Requirements:
 1. Prohibition against third-party standing;
ii. Prohibition against generalized grievances (“taxpayer standing”).
iii. Standing Requirements:
1. Injury: Plaintiff must allege that he or she has suffered or imminently will
suffer an injury
a. Must show there is an invasion of a legally protected interest that is
concrete and particularized and actual/imminent
2. Causation: plaintiff must allege that the injury is traceable to the
defendant’s conduct
3. Redressability: plaintiff must allege that a favorable federal court
decision is likely to redress the injury
a. The relief plaintiff wants is the relief the court can grant.
b. It is likely that a favorable court decision will redress an injury
suffered by the plaintiff
iv. Prohibition against Third Party Standing:
1. Exceptions to Third Party Rule:
a. A close legal relationship between the plaintiff and the third party
b. If the plaintiff would have difficulty or is unable to assert their own
rights
c. Plaintiff’s injury adversely affects the plaintiff’s relationship with
third parties
v. Prohibition of Generalized Grievances
1. Prevents individuals from suing if their only injury is as a citizen of
taxpayer concerned with government following the law
vi. Two-Part Standing Test for Taxpayers:
1. Must challenge the enactment under the taxing and spending clause
2. Must claim that the challenged enactment exceeds specific constitutional
limitations imposed on the taxing and spending powers
Warth v. Seldin:
The essence the question of standing is whether the litigant is entitled to have the court decide
the merits of the dispute or of particular issues

City of Los Angeles v. Lyons:

Plaintiff must have standing in order to purse injunctive relief, which requires that the plaintiff
show that he would suffer from a repeat injury.
- No standing absent the likelihood litigant would suffer future harm or injury
Lujan v. Defenders of Wildlife:
Under Article III of the Constitution, a party does not have standing to litigate a generalized
grievance against the government in federal court if she suffered no personal injury other than
the harm suffered by all citizens
- Injury in fact test requires more than injury to a cognizable interest – party seeking review
be among the injured
Clapper v. Amnesty International USA:
Threatened injury must be certainly impending to constitute injury in fact for purposes of Article
III standing
 Linda R.S. v. Richard D.:
To have standing to bring an action before a court, an individual must have sufficiently alleged a
logical nexus between the status asserted and the claim sought to be adjudicated

Allen v. Wright:
To have standing to bring a lawsuit, plaintiff must sufficiently allege that they have personally
suffered a distinct injury, and the chain of causation linking that injury to the actions of a defendant
must not be attenuated
- There is no standing because litigant did not claim a “personally suffered injury”. The injury
was not traceable links in causation – too weak hence no standing
Massachusetts v. Environmental Protection Agency:
For standing to be appropriate, an actual case or controversy must be present, which is
characterized by a truly adversarial relationship
- The harm from global warming is a sufficient injury to give State standing to sue the EPA for
failure to adopt rules addressing greenhouse gas emissions
Duke Power Company v. Carolina Environmental Study Group, Inc.:
Plaintiff has standing to bring a claim before the court when the plaintiff can demonstrate injury
in fact, a casual link between the injury and the challenged action, and the ability of the court to
provide relief from the injury

Singleton v. Wulff:
Plaintiff has standing to bring a lawsuit on behalf of a third party’s right when that right is
inextricably bound up with the activity the litigant wishes to pursue, and when it is unlikely that
the third party can or will sue on his or her own behalf
 Such a close relationship between physician and patient so the third party can have
standing.
 looks at 2 elements to determine whether the rule should apply: (1) relationship of the
litigant to the person whose rights he seeks to assert; and (2) the ability of the third
party to assert his own rights

Flast v. Cohen:
Two Prong Standing Test for Taxpayers: (1) must challenge the enactment under the taxing and
Spending Clause of Article 1, Section 8; and (2) must claim the challenged enactment exceeds
the specific constitutional limitations imposed on the taxing and spending power

United States v. Richardson:

For a taxpayer to show sufficient personal, direct injury to justify his/her standing to challenge a
government action, he must challenge an enactment under the Taxing and Spending Clause of
the Constitution and must claim that the challenged enactment exceeds specific constitutional
limits imposed on the taxing and spending power

Hein v. Freedom of Religion Foundation:

Taxpayers do not have standing to challenge expenditures made by the executive branch of the
federal government solely based on their status as taxpayers

Arizona Christian School Tuition Organization v. Winn:

Plaintiff does not have standing as a taxpayer to sue for violation of the establishment Clause in
the absence of a direct and governmental extraction and expenditure of tax dollars in aid of
religion

g. Ripeness: when review is appropriate

i. Centers on whether the injury has occurred yet
1. A federal court cannot consider a claim before its fully developed
2. Seeks to prevent matters that are premature for review because at that
point the injury is speculative and may not occur
ii. Rationales of Ripeness:
1. Prevent the courts through the avoidance of premature adjudication from
entangling themselves in abstract disagreements
2. Protect agencies from judicial interference until an administrative decision
has been finalized

h. Mootness: Plaintiff must present a live controversy at all stages of federal court
litigation
i. If anything occurs while the lawsuit is pending to end the plaintiff’s injury, the
case is to be dismissed as moot
ii. Exceptions to Mootness Doctrine:
1. Wrongs Capable of Repetition but Evading Review
a. Some injuries of just short duration that inevitably they are over
before the federal court proceedings are completed.
b. Will NOT be dismissed IF:
i. There is an injury likely to recur in the future
ii. It is possible the injury could happen to the plaintiff
again
iii. It is of such short duration that it likely will always
evade review
2. Voluntary Cessations
a. If there is no reasonable chance the defendant could resume the
offending behavior a case may be deemed moot on the basis of
voluntary cessation
3. Class Action Suits

Roe v. Wade:
Pregnancy is capable of repetition and evading review – plainitff could get pregnant again

DeFunis v. Odegaard:
Pursuant to the limitations of Article III of the Constitution, an issue is moot, and not capable of
federal court review, if its resolution would no longer affect the right of the litigants at the time
they are before the court

Friends of the Earth v. Laidlaw Environmental Services, Inc.:

A controversy will be deemed moot on the grounds of voluntary cessation by the defendant if
the defendant proves there is no reasonable chance it could resume the offending behavior
 United States Parole Commission v. Geraghty:
A properly certified class action suit may continue even if the named plaintiff’s individual claims
are rendered moot

i. Political Question Doctrine: The court will not decide questions that are to be addressed
by the executive or legislative branches
i. Political Questions are:
1. Issues committed by the Constitution to anotehr branch of government;
or
2. Inherently incapable of resolution and enforcement by the judicial process
ii. Malapportionment and Partisan Gerrymandering:

iii. Six Elements of Political Question:

1. Textually demonstrable constitutional commitment of the issue to a
coordinate political department
2. Lack of judicially discoverable or manageable standards for resolving
problem
3. Impossibility of deciding the question without first making an initial policy
determination that is clearly non-judicial
4. Impossibility of the court undertaking to resolve the matter without
expressing a lack of respect for a coordinate branch of government
5. A usual need to unquestioning adherence to a political decision already
made; or
6. The potential for embarrassment caused by different pronouncements
from different governmental departments involving the same question
iv. Congressional Self Governance:
v. Foreign Policy:
1. Court has frequently held that cases presenting issues related to the
conduct of foreign affairs pose political questions
vi. Impeachment and Removal

Baker v. Carr:
A challenge to malapportionment of state legislatures brought under the Equal Protection
Clause is not a political question and is thus justiciable
 Establishes the 6 elements and concluded the complaint’s allegations of denial of equal
protection present a judicial constitutional cause of action

Vieth v. Jubelirer:
The issue of political gerrymandering represents a nonjusticiable political question incapable of
adjudication by the courts
Powell v. McCormack:
Congress did not have the authority to deny membership by majority vote on grounds not
included in the Constitution. Determining Powell’s right to sit is no more than an interpretation
of the Constitution

United States Term Limits, Inc. v. Thornton:

 The requirements for membership in the United States Congress are established by the
Qualifications Clause of the United States Constitution and may not be amended by individual
states
Goldwater v. Carter:
The constitutionality of a unilateral action by the president to rescind a treaty without Senate
involvement is a non-justiciable political question

Zivotofsky v. Clinton:
Courts are fully capable of determining whether this statute may be given effect, or instead
must be fully struck down. The President does have the sole power to recognize a foreign
government, hence the statute is unconstitutional because it tries to take over the President’s
power

Nixon v. United States:

Senate shall have the sole power to try all impeachments
- This case was a political question

8. ELEVENTH AMENDMENT:
a. Bars a federal court from hearing a private party’s or foreign government’s claim against
a state government
b. What is Barred?
i. Actions against state governments for damages;
ii. Actions against governments for injunctive or declaratory relief where the state
is named a party;
iii. Actions against state government officers for violating state law; and
iv. Actions against state government officers where the effect of the suit will be
that retroactive damages will be paid form the state treasury or where the
action is the functional equivalent of a quiet title action that would divest the
state of ownership of land
Federal Legislative Power
1. ARTICLE 1, SECTION 8 OF THE UNITED STATES CONSTITUTION :
a. Congress may only act if there is express or implied authority in the Constitution
b. States may act unless the Constitution prohibits the action (10 th Amendment)

c. Two Questions to be Asked when the Constitutionality of an Act of Congress is

Challenged:
i. Does Congress have the power under the Constitution to legislate?
ii. If it does, does the law violate another constitutional provision or doctrine?

d. Some Powers of Congress thought the Constitution:

i. Taxing Power and Spending Power
ii. Necessary and Proper Power
iii. Commerce Power
iv. Art. I Section 8, Clause 18 permit Congress to make all laws which shall be
necessary and proper for carrying into execution the foregoing powers.
 v. Necessary and Proper. Congress can use any means to carry out its authority
that is not prohibited by the constitution.

e. What Role Should Concern over Protecting the States have in Defining Congress’s
Powers?
i. How important is state sovereignty and federalism?
ii. Should it be the role of the judiciary to protect state prerogatives, or should this
be left to the political process?

McCullough v. Maryland:
It is unconstitutional for a state to tax the federal government. “We are unanimously of the
opinion that the law passed by the legislature of Maryland imposing a tax on the bank of the
United States, is unconstitutional and void” (Supremacy Clause)

National Federation of Independent Business v. Sebelius:

The individual mandate contained in the Patient Protection and Affordable Care Act of 2010 is a
valid use of Congress’s power to tax. (2) The Medicaid expansion provision of the Patient
Protection and Affordable Care Act of 2010 is an unconstitutional use of Congress’s spending
powers.

2. THE NECESSARY AND PROPER CLAUSE :

a. Can only be used in connection with a valid exercise of another power of Congress

McCulloh v. Maryland:
Court interpreted the Necessary and Proper Clause in Article 1, Section 8, Clause 18 as a grant of
power to Congress, rather than a limitation

United States v. Comstock:

Under the Necessary and Proper Clause, Congress has the authority to enact a law that allows
civil commitment of mentally ill, sexually dangerous federal inmates beyond the end of
prisoners’ criminal sentences

3. THE COMMERCE CLAUSE

a. Article 1, Section 8, Clause 3: Congress shall have the power to regulate commerce with
foreign nations and among the several states and with the Indian tribes
i. May limit economic activity that has a substantial effect on interstate
commerce, but it cannot regulate inactivity

b. Acts Under the Commerce Clause:

i. Congress can regulate the channels of interstate commerce (highways,
waterways, internet)
ii. Congress can regulate persons or things in interstate commerce as well as
instrumentalities or interstate commerce (trucks, planes, phones, anything that
crosses state lines)
 iii. Congress may regulate activities with substantial effect on interstate commerce
iv. Defined commerce as commercial intercourse between nations and parts of
nations including navigation

Gibbons v. Ogden:
If a state and Congress both pass conflicting laws regulating interstate commerce, the federal
law governs pursuant to Congress’s constitutional grant of power to regulate interstate
commerce.

Garcia v. San Antonio Metropolitan Transit Authority:

Congress has the constitutional authority to regulate the wags and hours of state employees
under the Commerce Clause

United States v. E.C. Knight Co.:

Congress may not use its general powers under the Commerce Clause to regulate manufacturing

Carter v. Carter Coal Co.:

Congress may not regulate a purely local act under its Commerce Clause powers

Houston, East & West Texas Railway Co. v. United States:

Congress may regulate operations in all matters having a close and substantial relation to
interstate traffic, to the efficiency of interstate service, and to the maintenance of conditions
under which interstate commerce may be conducted upon fair terms

A.L.A. Schechter Poultry Corp. v. United States:

Congress may not delegate legislative power to the executive without outlining strict standards
for how the executive is to exercise that power. Congress does not have the authority to
regulate wholly interstate activities that have only an indirect effect on interstate commerce.

United States v. Darby:

Congress may regulate the labor standards involved in the manufacture of goods for interstate
commerce and may exclude from interstate commerce any goods produced under substandard
labor conditions

Wickard v. Filburn:
Congress may regulate local activity if that activity exerts a substantial economic effect on
interstate commerce

Gonzales v. Rich:
Congress may regulate the use and production of home-grown marijuana as this activity, taken
in the aggregate, could rationally be seen as having a substantial economic effect on interstate
commerce
NLRB v. Jones & Laughlin Steel Corp:
 Congress may regulate labor relations under its Commerce Clause power because labor relations
have such a close and substantial relationship to interstate commerce that their control is
essential to protect that commerce from burdens and obstructions.
- Although activities may be intrastate in character when separately considered, if they have
such a close and sustainable relation to interstate commerce that their control is essential or
appropriate to protect that commerce from burdens and obstructions, Congress cannot be
denied the power to exercise that control.

Heart of Atlanta Motel, Inc. v. United States:

Under the Commerce Clause, Congress has the power to remove obstructions and restraints to
interstate commerce. Congress may enact regulations that prevent racially discriminatory
policies in hotel accommodations because of the negative effects of those policies on interstate
commerce.

***United States v. Lopez:

Congress may not, pursuant to its Commerce Clause Powers, pass a law that prohibits the
possession of a gun near a school
- What is the nature of the activity? If the activity the government is trying to regulate falls
into the first or second category of commerce, ask whether Congress has a rational basis for
doing so.
- What is the relationship of the activity? If it falls under the third category, ask whether the
activity substantially effects interstate commerce.

***United States v. Morrison:

(1) Congress does not have the authority under the Commerce Clause to regulate violence
against women because it is not an economic activity. (2) Under § 5 of the Fourteenth
Amendment, Congress may only regulate the discriminatory conduct of state officials, not
private actors.

Perez v. United States:

The court identified three types of activites that Congress can regulate under the Commerce
Clause.
1. Congress may regulate the use of channels of interstate commerce.
2. Congress is empowered to regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce
3. Congress’s commerce authority includes the power to regulate those activites having a
sustainable relation to interstate commerce

4. TENTH AMENDMENT OF THE UNITED STATES CONSTITUTION :

a. Powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.
b. Anticommandeering Doctrine: prohibits the federal government from commandeering
state governments. More specifically, from imposing targeted, affirmative, coercive
duties upon state legislators or executive officials
 Gregory v. Ashcroft:
If it is not irrational, and does not discriminate against different groups, the Court will not
intervene. The state has the authority to rule its own people outside the authority of the federal
government. This statute did not discriminate against a group of people.
New York v. United States:
Congress may not compel states to enact or administer a federal regulatory program
- Congress cannot use the states as administrative arms of federal regulator policy
- Congress may set standards that state and local governments must meet.
- Congress can attach strings to grants to state and local governments to induce them to act
in ways that the federal government could not directly compel

Printz v. United States:

Congress may not compel state officials to participate in the administration of federal programs

Reno v. Condon:
Congress may regulate states’ activities, using its Commerce Clause powers, provided that the
regulation does not require the state to enact any laws or regulations and does not require state
officials to assist in the enforcement of federal statutes regulating private individuals.
- Congress can use the Commerce Clause powers to regulate a state’s use of its citizens’
personal information

Murphy v. National Collegiate Athletic Association:

Congress may not issue direct orders to state legislatures. The federal government cannot tell
states how to legislate statutes if it does not violate federal law.

5. THE TAXING AND SPENDING POWER:

a. United States Constitution, Article 1, Section 8, Clause 1: Congress shall have the power
to lay and collect taxes, duties, imposts and excises, to pay debts and provide defense
and general welfare of the United States

b. Limits on Taxing Power:

i. Direct Taxes: must be allocated among the states in proportion to population
(little practical importance today).
ii. Customs Duties and Excise Taxes must be Uniform: all customs duties and
excise taxes must be uniform throughout the United States
iii. No Export Taxes: congress may not tax any exports from any state
1. Example: congress may not place a tax on all computers which are
exported from any state to foreign countries

c. A tax law MUST bear some reasonable relationship to revenue production

i. If Congress isn’t infringing on a person’s individual rights, it’s usually upheld.
ii. Congress does not have general police powers. General welfare must be tied to
one of their powers like taxing
 d. Two Questions:
i. What is the scope of Congress’s taxing and spending power?
ii. Whether the Tenth Amendment is a limit on Congress’s taxing and spending
power?

e. Spending Power: Congress also has the power to “pay the debts and provide for
the common defense and general welfare of the United States”
i. Use of Conditions: congress may generally place conditions upon use of its
spending power, even if the congressional purpose is in effect to regulate
ii. Conditions cannot amount to coercion

United States v. Butler:

Congress may not use its taxing and spending powers to obtain an unconstitutional result, such
as invading the reserved rights of the states under the Tenth Amendment

Helvering v. Davis
Congress has a broad discretion in the exercise of its taxing and spending power

Sabri v. United States:

Under the Necessary and Proper Clause, Congress had the authority to make sure that
appropriate funds were spent for the general welfare. The Constitution does not mandate that
Congress require proof of a logical connection between the elements of a regulated offense and
federal monies for the valid exercise of Article I powers.

Oklahoma v. Civil Service Commission

Congress has broad power to set conditions for the receipt of federal funds

South Dakota v. Dole:

Congress may condition the receipt of federal funds by states subject to the following four
limitations:
1. The exercise of the spending power must be for the general welfare
2. The conditions on the receipt of the federal funds must be unambiguous
3. Conditions must be related to a federal interest in a particular national project or program
and
4. Conditions must not violate any other constitutional provisions

Pennhurst State School & Hospital v. Halderman:

Conditions on grants of federal funds must be stated unambiguously.

National Federal of Independent Business v. Sebelius:

The federal government cannot withhold existing Medicaid funding from states that choose not
to participate. The Act does not offer the states a genuine choice because they need to accept a
basic change in the nature of Medicaid or risk losing all Medicaid funding
- Grant condition cannot be unduly coercive

6. CONGRESS’S POWERS UNDER THE POST-CIVIL WAR AMENDMENTS:

 a. Congress has special enforcement powers under the three reconstruction amendments
– the 13th, 14th and 15th amendments – contain provisions that empower Congress to
enact civil rights legislation
i. Thirteenth Amendment: prohibits slavery and involuntary servitude except as
punishment for a crime.
ii. Fourteenth Amendment: provides that states cannot abridge the privileges and
immunities of citizens, cannot deprive citizens of due process of law, or deny
person the equal protection of laws
iii. Fifteenth Amendment: protects the right to vote

b. Whom May Congress Regulate Under the Post-Civil Amendments?

i. The special enforcement powers let Congress reach a lot of private conduct that
it could not reach by means of any other congressional power
c. What is the Scope of Congress’s Power?
i. Federalist Approach: Section 5 only give Congress the authority to prevent or
provide remedies for violations of rights that have been recognized by the Court
ii. Nationalist Approach: Section 5 gives Congress authority to interpret the
Fourteenth Amendment to expand the scope of rights or to even create new
rights by statute where the Court has not found them in the Constitution

The Civil Rights Cases:

Congress cannot use its power under the Thirteenth Amendment to eliminate discrimination.
The Fourteenth Amendment only applies to government action.

Jones v. Alfred H. Mayer Co.:

Congress has the power under the Thirteenth Amendment rationally to determine what are the
badges and incidents of slavery, and the authority to translate that determination into effective
legislation

Runyon v. McCrary:
No race of individuals may be excluded from any offer or contract opportunity offered to the
general public.

United States v. Guest:

Congress may regulate private defendants pursuant to Section 5 of the Fourteenth Amendment
if those defendants are sufficiently involved with state officials.

United States v. Morrison:

The Thirteenth Amendment can be used to regulate private actors, but the Fourteenth
Amendment can only be used to regulate government action.

Katzenbach v. Morgan & Morgan

Congress may pass legislation under its powers in Section 5 of Fourteenth Amendment provided
that the legislation is (1) an enactment to enforce a provision of the Equal Protection Clause; (2)
plainly adapted to that end; and (3) consistent with the letter and spirit of the Constitution. Even
if it supersedes state law.
 City of Boerne v. Flores:
Congress may enact such legislation in an attempt to prevent the abuse of religious freedoms, it
may not determine the manner in which states enforce the substance of its legislative
restrictions. Can only act remedially, not proactively.

Shelby County, Alabama v. Holder:

A federal law that departs from the fundamental principles of federalism must be justified by
current needs. Has to be based on current date and rationale.

7. ENFORCING PROVISIONS OF THE FOURTEENTH AMENDMENT :

a. Necessary and Proper Clause: Congress’s power to enforce Civil War amendments is to
be judged generally by reference to the Necessary and Proper Clause. That is, as long as
the means chosen by Congress are rationally related to achieving an objective that one
of those amendments is designed to fulfill, Congress has not exceeded its enforcement
authority

Federal Executive Power

1. When the President acts exclusively in the Constitutional Powers:
a. Has the President acted within Scop of the powers granted?
b. Has the President violated some other U.S. Constitutional Provision
2. Whether the President is acting pursuant to a statute authorizing the President’s conduct:
a. Is the statute constitutional?
b. Is the President acting within statute?
3. When the President acts outside of the explicit powers of the United States Constitution?
a. Inherent v. Explicit Powers

Youngstown Sheet & Tube Co. v. Sawyer:

President may only act pursuant to express or clearly implied statutory or constitutional authority.

4. NON-DELEGATION DOCTRINE: Congress cannot give their law-making powers to others.

a. Congress can ask for help tackling an issue
b. Congress can grant limited powers to agencies, but they must have “discernable
standards”

A.L.A Schechter Poultry Corp. v. United States:

(1) Congress may not delegate legislative power to the executive without outlining strict standards
for how the executive is to exercise that power. (2) Congress does not have the authority to
regulate wholly intrastate activites that have only an indirect effect on interstate commerce

Mistretta v. United States:

The nondelegation doctrine does not prevent Congress from obtaining assistance from coordinate
Branches.

Whitman v. American Trucking Association:

In a delegation challenge, the constitutional question is whether the statute has delegated
legislative power to the agency.
5. APPOINTMENT : while the president appoints principal officers, Congress can appoint inferior
officers

Morrison v. Olson
Principal officers are selected by the President with the advice and consent of the Senate. Inferior
officers Congress may allow to be appointed by the President alone, by the head of departments,
or by the judiciary.

Lucia v. Securities and Exchange Communication:

The SEC’s administrative law judges should be considered officers of the United States

United States v. Arthrex:

The judges are not principal officers. Since they have overseers, with the power to reverse their
opinion, they are lesser.

6. GENERAL R ULES OF REMOVAL:

a. No explicit content on removal in the U.S. Constitution
b. Generally, the President can remove executive officials unless checked by Congress
c. Exceptions: Expert Agencies lead by principal officers, other limits
d. Congress can impose limits on the President’s power where the President’s
independence is not preferred
e. It’s a violation of the U.S. Constitution for Congress to pass laws that make multiple
levels of removal necessary (barricades the President’s authority)

Myers v. United States:

The U.S. Constitution grants the president the sole power to remove executive officers.

Humphrey’s Executor v. United States:

Congress could, for some officers and under some circumstances, limit the removal power

Wiener v. United States:

Even without statutory limit, the President could not remove executive officials where
independence from President is desirable

Bowsher v. Synar:
Congress cannot give itself the power to remove executive officials. Congress may remove an
executive official through impeachment.

Collins v. Yellen:
Nothing can limit the President’s constitutional authority to remove officers.

7. EXECUTIVE PRIVILEGE : Claim by the President to keep communication/information confidential

8. AUTHORITY OF CONGRESS TO INCREASE EXECUTIVE POWER :
 a. Separation of powers issues are appropriately resolved by agreement between
President and Congress
b. Separation of powers is constitutionally mandated, and the judiciary plays a crucial role
in its enforcement

Clinton v. City of New York:

President’s veto power does not authorize him to amend or repeal laws passed by Congress

INS v. Chadha:
Congress cannot use line-item veto on administrative agencies. Any legislative act requires
bicameralism and must to presented to the President for review/approval/veto. This veto does not
meet the requirements.

9. SEPARATION OF POWERS AND FOREIGN POLICY

a. The President has the power to:
i. Be commander in chief (Article II, Section 2, Clause 1)
ii. Makes treaties with the advice and consent of the Senate (Article II, Section2,
Clause 2)

b. Congress has the power to:

i. Regulate commerce with foreign nations
ii. Define and punish piracies and felonies on the high seas
iii. Declare war
iv. Raise and support armies
v. Provide and maintain a navy

10. ARE FOREIGN POLICY AND DOMESTIC AFFAIRS TREATED DIFFERENTLY ?

a. The President has the power to:
b. Treaties and Executive Agreements:
i. Article II, Section 2, Clause 2 authorizes the President to execute treaties with the
advice and consent of the Senate.
ii. Constitution does not mention executive agreements
iii. Executive agreements for foreign policy commitments are constitutional
c. War Powers:
i. What constitutes a declaration of war?
ii. When may the President use American Troops in hostilities without congressional
approval?
d. War and Defense - The War Powers Resolution:
i. Congress enacted the War Powers Resolution in 1973 in response to Viet Nam
War.
ii. Constitutionality of War Powers Resolution has not been tested
e. Military Tribunals:
f. Military Commission Act:
i. Restricts coerced and hearsay evidence
ii. Provides more resources to defense counsel
 g. Presidential Power over Immigration:
h. Checks on the President – Suing and Prosecuting the President:
i. Impeachment:
1. The ultimate check on presidential power is impeachment and removal in
accordance with Article II, Section 4
2. Two Major Unresolved Issues:
a. What are high crimes and misdemeanors?
b. What procedures must be followed when there is an impeachment and
removal proceeding?

United States v. Curtiss-Wright Export Corp.:

The Federal Government’s domestic powers were derived from the States while its foreign
affairs powers were ‘necessary concomitants of nationality’. The President retains much greater
power than in the realm of domestic affairs.
Zivotofsky v. Kerry:
Even though the Constitution did not address the issue directly, the President has the authority
to recognize foreign governments. The President’s recognition power is exclusive.

Dames & Moore v. Regan:

Congress gave the authority to the President to enter into executive agreements.

The Prize Cases:

The President had the power to impose a blockade on Southern states without a congressional
declaration of war.

Rasul v. Bush:
Federal courts may hear habeas corpus petitions filed by those being held in Guantanamo

Padilla v. Rumsfeld:
New York lacked jurisdiction to hear Padilla’s habeas corpus petition. The petition must be filed
where the petitioner is being detained and against the persons immediatley responsible for
detention.

Hamdi v. Rumsfeld:
The federal government had the statutory authority to detain citizens as enemy combatants. Congress
gave the President authority, so there is statutory authority to detain citizens.
- Due process included (1) notice of factual basis for his classification as enemy combatant
and (2) a fair opportunity to rebut this assertion

Boumediene v. Bush:
Non-citizens were not barred from filing for habeas corpus or seeking relief form the Suspension
Clause because of their status or their place of detention.

Ex Parte Quirin:
 Court adopted a deferential standard of review – the President has tribunal authority. Unlawful
enemy combatants are subject to trial and punishment by military tribunals.

Hamdan v. Rumsfeld:
In the absence of express Congressional authorization, the President’s commissions must
comply with the ordinary laws of the United States and the Geneva Convention

Trump v. Hawaii:
President has broad statutory authority over immigration decisions. Employs the rational basis
test to avoid inhibiting the President’s ability to respond to changing world conditions

Nixon v. Fitzgerald:
The President cannot be sued for money damages for conduct in office.

Clinton v. Jones:
A President may be sued for money damages for conduct prior to taking office. Allowing the
case to proceed while the President was in office was permissible.

Limits on State Regulatory and Taxing Power:

1. How does the United States Constitution limit the States’ power?
a. Preemption/Supremacy Clause: only occurs when Congress has acted lawfully
b. Dormant Commerce Clause: when Congress has not acted in X area but could
c. Privileges and Immunities Clause: Article IV, Section 2, Clause 1

2. PREEMPTION :
a. Express Preemption: when Congress clearly and explicitly says the preempt
b. Implied Preemption: preemption can be found on Congress’s intent
i. Conflict: conflict between state and federal law
1. If federal law and state law are mutually exclusive, so that a person
cannot that the regulation was intended to set an exclusive standard for
the ripeness of avocados
ii. Obstacle: where state law impedes federal goals
iii. Field: where Congress leaves no room for the states to act

Altria Group, Inc. v. Good:

Does not count as field preemption because there is no express or implied preemption. This is a
major state concern, and Congress showed no intent to preempt their interest.

Lorillard Tobacco Co. v. Reilly:

The primary task in construing express preemption provisions is to identify Congress’s intent.

Riegel v. Medtronic:
State tort law can be preempted by a federal regulation that prohibits a state from establishing
safety ‘requirements’ different from federal requirements.

Florida Lime & Avocado Growers, Inc. v. Paul:

 When both federal law and state law are on point, federal law preempts state law if there is a
conflict between the two laws such that compliance with both is impossible (conflict
preemption)

Pacific Gas & Electric Co. v. State Energy Resources Conservation:

Congress has preempted that States with regard to radiological safety aspects involved in the
construction and operation of nuclear plants.

Wyeth v. Levine:
State tort law products liability claims for failure to warn are not preempted by federal law.

Pliva v. Mesing:
If state and federal law directly conflict and make it impossible for a party to comply with both,
the Supremacy Clause to the U.S. Constitution dictates that federal law shall prevail.

Mutual Pharmaceutical Co. v. Bartlett:

Design defect suits against generic drug manufacturers are also preempted by federal law.

Hines v. Davidowitz:
Even if federal law does not expressly preempt state law, preemption will be found if there is a
clear congressional intent to have federal law occupy an entire field or area of law (field
preemption).

Arizona v. United States:

Immigration is solely in the control of federal government. Federal law is all-inclusive on this
matter.

3. COMMERCE CLAUSE :
a. Purpose of the Commerce Clause:
i. Create and foster the development of a common market among states;
ii. Eradicate internal trade barriers;
iii. Prohibit economic Balkanization of Union; and
iv. Protect the national community by acting as a limitation of the power of state
and local governments over commerce

b. Functions of the Commerce Clause:

i. Authorizes Congress to regulate interstate commerce; and
ii. Limits the power of state and local governments to regulate interstate
commerce (dormant commerce clause).

c. The Dormant Commerce Clause:

i. State and local laws are unconstitutional if they place an undue burden on
interstate commerce.
ii. Even if Congress has not acted or no preemption is found, the state or local law
can be challenged on the ground that it excessively burdens commerce among
the states.
 d. Shifting to a Balancing Approach:
i. Balancing the concerns of the locality to regulate against the extent to which
that regulation disrupts interstate commerce.

H.P. Hood & Sons, Inc. v. Du Mond:

The central purpose of the dormant commerce clause to prevent protectionist legislation –
helping in-staters at the expense of out-of-staters.

Tennessee Wine & Spirits Retailers Association v. Thomas:

Tennessee’s two-year residency requirement for a retail liquor license because it violated the
dormant commerce clause by protecting in-state interest against out-of-state competition

Gibbons v. Ogden:
When a state proceeds to regulate commerce with foreign nations, or among the several states,
it is exercising the very power granted to Congress, and is doing the very thing which Congress is
authorized to do. Federal power overrides power of the states.

Cooley v. Board of Wardens:

Regulating pilots was a local matter both because of the differences among ports and because a
1789 federal law expressly allowed states to regulate piloting.
- The modern approach is based on balancing the benefits of a law against the burdens it
imposes on interstate commerce

South Carolina State Highway Department v. Barnwell Bros., Inc.:

State has an important interest in protecting highway safety and preserving its roadways

Southern Pacific Co. v. Arizona ex rel. Sullivan:

The ultimate determination must be the burden to interstate commerce. The disruption exceeds
any benefit to Arizona. The regulation does not meet the balancing approach.

4. ANALYZING WHETHER A LAW VIOLATES THE DORMANT COMMERCE CLAUSE

a. Does the state/local law discriminate against interstate commerce?
i. The balancing approach varies depending upon whether a state or local law
discriminates against out-of-states or treats in-staters and out-of-staters alike.
b. If the Court concludes the statute is discriminatory against out-of-state citizens, there is
a strong presumption against the law.
i. Discriminatory laws will be upheld only if they are necessary to achieve an
important purpose (rarely found to be that important)
c. If the Court find law is non-discriminatory, there is a presumption in favor of the law.
i. The law will be invalidated only if its burdens on interstate commerce outweighs
the benefits.
d. Facially Discriminatory Laws
e. Facially Neutral Laws:

City of Philadelphia v. New Jersey:

 Any state regulation is subject only to Commerce Clause restrictions and may not burden
interstate commerce. States cannot regulate commerce by discriminating against articles of
commerce coming from the outside of the state.
Hunt v. Washington State Apple Advertising Commission:
A facially neutral statute still violates the Commerce Clause it if discriminates against interstate
commerce in practice.
Exxon Corp. v. Governor of Maryland:
A state may enact legislation that creates hardships for some interstate companies in the state,
provided the statute does not discriminate against or unduly burden interstate commerce.

Several factors are helpful when determining whether a statue impermissibly discriminates
against interstate commerce:
1. Creates obstacles for interstate dealers
2. Impede the flow of interstate goods,
3. Add costs to interstate goods, or
4. Create distinctions between in state and foreign sellers

C & A Carbone, Inc. v. Town of Clarkstown:

The interstate commerce at issue is not the waster itself but is rather the profit that could be
made from processing the waste. By requiring all waster to be processed by the same n-state
processor, Clarkstown was favoring its own processor and engaging in prohibited economic
protectionism.

United Haulers Association, Inc v. Oneida – Herkimer Solid Waste Management Authority:
A flow-control ordinance that favors the government but treats in-state and out-of-state private
businesses the same, does not constitute an excessive burden on interstate commerce in
violation of the Commerce Clause.

West Lynn Creamery, Inc. v. Healy:

The law is facially neutral – the money is used to support MA diary producers. A subsidy funded
entirely by taxes on the sale of milk produced in other states is unconstitutional and the benefit
derived is entirely conferred upon in-state diary farmers. The pricing scheme is unconstitutional
because it burdens out of state businesses with a tax that benefits only in state businesses.

Minnesota v. Clover Leaf Creamery Co.:

Minnesota’s statute regulates even handedly by prohibiting all milk retailers from selling their
products in plastic, non-returnable milk containers, without regard to whether the milk, the
containers, or the sellers are from the outside of the state. The inconvenience of having to
conform to different packaging requirements in Minnesota and the surrounding states should
be slight

5. ANALYZING IF A LAW IF DEEMED DISCRIMINATORY :

a. A crucial initial in dormant commerce clause causes whether the law is discriminatory
against out of staters.
i. Does it have a protectionist purpose?
ii. Does it have a substantial discriminatory impact?
b. Rigorous scrutiny will be used when the laws are deemed to be discriminatory
 Dean Milk Co. v. City of Madison:
The city cannot discriminate against interstate commerce, even if the exercise of its
unquestioned power to protect the health and safety of its people, if reasonable
nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available.

Maine v. Taylor:
Once state law is shown to discriminate against interstate commerce, the burden falls on the
state to demonstrate the statute serves a legitimate local purpose and that this purpose could
not be served as well by available nondiscriminatory means.

6. ANALYZING IF A LAW IS DEEMED NON-DISCRIMINATORY

Pike v. Bruce Church, Inc.:

Where statute is even-handed and its effects on interstate commerce are incidental, that statute
will be upheld unless the burden imposed on interstate commerce is clearly excessive in relation
to the local benefits. The extent of the burden that will be tolerated depends on the nature of
the local interest involved and whether it could be promoted as well with a lesser impact on
interstate commerce.

Bibb v. Navajo Freight Lines, Inc.:

The heavy burden the Illinois mudguard law placed on the interstate movement of trucks and
trailers seems to us to pass the permissible limits even for safety regulations.

Kassel v. Consolidated Freightways Corp.:

Under the principle of the Dormant Commerce Clause, a state law that heavily burdens
interstate commerce while only marginally furthering a state health and safety purpose if
unconstitutional

7. STATE TAXATION OF INTERSTATE COMMERCE:

South Dakota v. Wayfair, Inc.:

States may tax a commercial shipment of goods to an in-state consumer if the seller does not
have a physical presence in the taxing state. The focus should be on whether the tax applies to
an activity with a substantial privilege of carrying on business’ in that jurisdiction

8. EXCEPTION TO THE DORMANT COMMERCE CLAUSE :

a. Congressional Approval Exception
b. Market Participant Exception
I. When the government is a direct buyer or seller in the market being regulated
II. They can only regulate the given market, not the industry as a whole or areas
outside the market in which they are participating

Western & Southern Life Insurance Co. v. State Board of Equalization:

This implied limitation is the Dormant Commerce Clause. In exercising its authority to regulate
interstate commerce, Congress can allow states to restrict or burden interstate commerce

Lewis v. BT Investment Managers, Inc.

 Congress may confer upon the states an ability to restrict the flow of interstate commerce that
they would not otherwise enjoy. If Congress has acted, the commerce power no longer is
dormant.
Reeves, Inc. v. Stake:
Under the market participation exception to the Commerce Clause, when a state government
acts as a market participant rather than a market regulator, it may favor its own citizens in
commercial dealings. SD was acting a market participant.
- If the state acts as a market participant, it may favor local over out of state interest

White v. Massachusetts Council of Constriction Employers, Inc.:

When a state government enters the market participant, it is not subject to the restraints of the
Commerce Clause.

South-Central Timber Development, Inc. v. Commissioner Department of National Resources:

A state may impose burdens on commercial transactions within the market in which it is a
participant but may not go further and impose conditions that have a substantial regulatory
effect outside of that particular market.

9. PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV, SECTION 2:

a. “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens
in the several States.”
b. Discrimination against citizens of other states is a prerequisite for application of
Privileges and Immunities Clause
c. Dormant Commerce Clause v. Privileges and Immunities Clause:
i. Similarities:
1. Both can be used to challenge state laws that discriminate against out of
staters.
2. Discriminatory laws are more likely to be invalidated under the
Commerce Clause

ii. Differences:
1. Privileges and Immunities Clause may be used ONLY if there is discrimination
against out of staters.
2. The Dormant Commerce Clause may be used if state or local laws burden
interstate commerce regardless of whether they discriminate against out of
staters.
3. Corporations and aliens can sue under the Dormant Commerce Clause, but
NOT under the Privileges and Immunities Clause, which is limited to citizens
4. The two exceptions to the Dormant Commerce Clause (congressional approval
and market participant exception) do NOT apply to the Privileges and
Immunities Clause

d. Analysis Under the Privileges and Immunities Clause:

i. Has the state discriminated against out of staters with regard to privileges and
immunities that is accords its own citizens?
ii. If there is such discrimination, is there sufficient justification for the
discrimination?
 e. Privileges and Immunities of Citizenship:
f. Privileges and Immunities in Two Contexts:
i. When the state is discriminating against out of staters with regard to
constitutional rights; and
ii. When a state is discriminating against out of staters with regard to important
economic activities
g. What Justifications are Sufficient to Permit Discrimination?
i. Under the Privileges and Immunities Clause, states may discriminate against out
of staters, even with regard to constitutional rights or the ability to earn a
livelihood, only if there is a substantial reason for the difference in treatment
and only if the law is closely related to the jurisdiction.

Corfield v. Coryell
Under the Privileges and Immunities Clause, citizens of other states do not have the same right
under the common property of a state as citizens of that state.

Baldwin v. Montana Fish & Game Commission:

The Clause only applies with respect to those privileges and immunities bearing upon the vitality
of the Nation as a single entity.
- Privileges and Immunities in Two Contexts:
i. When the state is discriminating against out of staters with regard to
constitutional rights; and
ii. When a state is discriminating against out of staters with regard to important
economic activities

Toomer v. Witsell:
The protections of the Privileges and Immunities Clause are not absolute. The ability to earn a
living is protected by the Privileges and Immunities Clause.

United Building & Construction Trades Council of Camden County v. Mayor & Council of the City of
Camden:
A state may not discriminate against out-of-state interests if those interests are sufficiently
fundamental to the promotion of interstate harmony so as to fall within the purview of the
Privileges and Immunities Clause, unless the state has a substantial reason for treating out-of-
state citizens differently, and the discriminatory means it imposes are closely related to
accomplishing that reason.

Supreme Court of New Hampshire v. Piper:

The ability to practice law is protected by the Privileges and Immunities Clause.

The Structure of the Constitution’s Protection of Civil Rights and Civil Liberties:
1. The text of the original constitution contained few express limitations on the governmental
power to regulate life, liberty, and property.
2. The Application of the Bill of Rights to the States:
3. The Incorporation of the Bill of Rights into the Due Process Clause of the Fourteenth
Amendment
4. Incorporation Doctrine:
a. The court explicitly declined to incorporate three provisions applicable to the federal
government
i. 3rd Amendment: freedom from quartering of soldiers
ii. 5th Amendment: right to indictment by a grand jury
iii. 7th Amendment: right to a jury trial in civil cases, reexamination clause
5. The Application of the Bill of rights and the Constitution to Private Conduct:
a. The Requirement of State Action:
i. Private conduct generally does not have to comply with the Constitution.
6. Exceptions to the State Action Doctrine:
a. There must be some government action involved before the Constitution kicks in (if the
actor is a government party – application of the Constitution is triggered)

b. The “public function” exception

i. When a private person is performing a function is normally completed by the
government
ii. Public Function Test – Elections:
iii. Public Function Test – Private Property Used for Public Purposes
iv. Public Functions Test in the Context of Privately Owned Shopping Centers
c. The “entanglement” exception
i. Where the private conduct and the government conduct are so interwoven that
one cannot exist without the other. Under this exception, the Constitution
applies if the government affirmatively authorizes, encourages or facilitates
private conduct that violates the Constitution
ii. Areas of Entanglement:
1. Judicial and Law Enforcement Actions;
a. Two Areas Considered Judicial Enforcement as State Action
i. Use of the Courts for Prejudgment Attachments
2. Government Licensing and Regulation;
a. The entanglement exception also arises when the government
licenses or regulates an activity
3. Government Subsidies; and
4. Voter Initiatives Permitting Discrimination
iii. The Entwinement Exception:

Barron v. Mayor of Baltimore:

The Bill of Rights was clearly intended to apply only to the federal government. The 5 th
Amendment’s guarantee on the federal government taking for public use require just
compensation are only restriction on the federal government. It does not apply to state or local
governments.

The Slaughter – House Cases:

The privileges and immunities of the 14th Amendment are limited to protect the privileges and
immunities of citizens of the United States.
 Saenzz v. Roe:
The Privileges and Immunities Clause of the 14 th Amendment protects the right to travel by
allowing citizens to move freely between states, securing the right to equal treatment in all
states when visiting and securing the rights of new citizens to be treated the same as long term
citizens - The Incorporation of the Bill of Rights into the Due Process Clause of the Fourteenth
Amendment:
Twinging v. New Jersey:
The court expressly recognized the possibility that the Due Process Clause of the 14 th
Amendment incorporates provisions of the Bill of Rights and thereby applies them to the state
and local governments.
Duncan v. Louisiana:
The Sixth Amendment right to a jury trial applies to state court proceedings through the
Fourteenth Amendment. By precedent, the test for holding an amendment applicable to the
state through the Fourteenth Amendment is whether the right protected is among those
“fundamental principles of liberty and justice that lie at the base of all our civil and political
institutions”.
McDonald v. City of Chicago:
Under the process of selective incorporation, a particular Bill of Rights guarantee will apply to
the states if it is fundamental to the nation’s scheme of ordered liberty or deeply rooted in the
nation’s history and tradition.

Timbs v. Indiana:
The Eight Amendment’s protection against excessive fines applies to the states. The Fourteenth
Amendment’s Due Process Clause incorporates to the states those constitutional protections
fundamental to ordered liberty and deeply rooted in history and tradition. The Eight
Amendment (excessive fines clause) is an incorporated right that is applicable through the
Fourteenth Amendment’s Due Process Clause.

Ramos v. Louisiana:
Incorporated rights should apply to the States in the same way they are applied to the federal
government. The unanimity of a jury vote for conviction set by the Sixth Amendment must also
be an incorporated right against the states.
- A criminal conviction based on a nonunanimous jury verdict violates the criminal
defendant’s constitutional rights.
-
The Civil Rights Cases: United States v. Stanley:
The Fourteenth Amendment applies only to the state and local government action, not to
private conduct.
- The Equal Protection Clause of the Fourteenth Amendment functions as a restraint on abuses by
state actors of the rights and freedoms of the United States citizens and not private citizens.
The Fourteenth Amendment also gives Congress the power to pass whatever legislation is
necessary to enforce those restrictions on state actors.

Marsh v. Alabama:
The 1st and 14th Amendment protections of speech and religion still apply to individuals when
operating in a privately-owned town if the town is open to the public and used for public
purposes. In balancing the interests of the company as property owners, with the interests of
the people in freedom of press and religion, the latter are more important.
Running a city, whether by government or a private entity, was a public function and there must
be done in compliance with the Constitution.

Jackson v. Metro Edison Co.

For purposes of the 14th Amendment, an action of a private entity will only be treated as state
action if there is a sufficiently close nexus between the state and the challenged action of the
private entity so that the action of the latter may be fairly treated as that of the state itself.
- Focuses on whether the activity has been traditionally, exclusively done by the government.
“Sufficiently close nexus between the state and challenged action

Terry v. Adams:
Running an election for public office, even a primary election, is a public function.

Evans v. Newton:
Running a park was a public function and it had to comply with the Constitution even if
managed by a private entity.
- The nature of the service being provided is a significant party of the inquiry. It is a public
park and state action could be inferred because the state courts had aided the private
trustees to operate the park on a segregated basis

Manhattan Community Access Corp. v. Halleck:

A private entity can qualify as a state actor in a few limited circumstances: (1) when the private
entity performs a traditional, exclusive public function; (2) when the government compels a
private entity to take a particular action; or (3) when the government acts jointly with a private
entity
- The public function exception to the state action doctrine considered a private entity a
governmental actor only if it is performing a traditionally and exclusively public function

Amalgamated Food Employees Union, Local 590 v. Logan Valley Plaza, Inc.
The business (mall) is the equivalent to the public streets. Private shopping center may not
exclude peaceful protestors when they are protecting a business in the mall (OVERRULED BY
HUDGENS!)

Lloyd Corp. v. Tanner:

Did not follow Logan Valley because the picketing was not related to any of the stores in the
shopping center of the shopping center itself

Hudgens v. NLRB:
Overruled Logan Valley; privately owned shopping centers will not be constrained by the US
Constitution
Shelley v. Kraemer:
State court enforcement of racially restrictive covenants constitutes state action, which violates
the Equal Protection Clause of the Fourteenth Amendment. Judges are government actors and
the judicial remedies are state action.

Lugar v. Edmondson Oil Co.

 Two-part Lugar Test to determine whether state action exists that is now in common use: (1) the
deprivation must be caused by the exercise of some right or privilege created by the State or by
a rule conduct imposed by the state or by a person for whom the State is responsible; (2) the
party charged with the deprivation must be a person who may fairly be said to be a state actor.

Flagg Bros v. Brooks:

The 14th Amendment’s due process requirements apply only to actions fairly attributable to the
state.
- Use of Peremptory Challenges at Trial

Burton v. Wilmington Parking Authority:

There was a symbiotic realtionship between the parking authority and the coffee shop owner.
The state was participating in the operating of the coffee shop by accepting the lease payment –
this enabled discrimination

Moose Lodge No. 1077 v. Irvis:

A state must have significantly involved itself with invidious discriminations by a private entity in
order for the discriminatory action to be prohibited by the 14 th Amendment. The act of giving a
liquor license does not create the necessary relationship.

Norwood v. Harrison:
State action existed when the government gave free books to private schools that engaged in
racial discrimination.

Gilmore v. City of Montgomery:

Outside the context of state assistance to segregated private schools, the Court has been
unwilling to find government subsidy to be a basis for finding state action

Rendell – Baker v. John:

Government funding by itself is not a basis for finding state action.

Blum v. Yaretsky:
Neither the amount of state regulation nor the extent of state funding provided the basis for
finding state action

Brentwood Academy v. Tenn. Secondary Sch. Athletic Association:

A nominally private entity is treated as a state actor when it is controlled by an agency of the
state, when it has been delegated a public function by the state, when it is entwined with
governmental policies or when government is entwined in its management or control

Economic Liberties:
1. Economic liberties: constitutional rights concerning the ability to enter into and enforce
contracts; to purse a trade or profession; and to acquire, possess, and convey property

2. Economic Substantive Due Process:

a. The 5th and 14th Amendment provide that neither the federal government nor the states
can deprive any person of life, or property without due process of law
 b. Two Types of Protection:
i. Procedural Due Process: procedures the government must follow when it takes
away a person’s life, liberty or property
ii. Substantive Due Process: whether the government has an adequate reason for
taking away a person's life, liberty or property

3. Substantive Due Process of the Lochner Era:

4. End of Lochnerism:
a. The court began to invalidate every law FDR was passing to end the Great Depression.
FDR wanted to pack the court by adding 6 Supreme Court Justices
5. Economic Substantive Due Process Since 1937
a. No state or federal economic regulation has been found unconstitutional as infringing
on liberty of contract as protected by the Due Process Clause of the 5 th and 14th
Amendment
b. Courts have rules economic regulations will be upheld when challenged under the Due
Process Clause so long as they are rationally related to a legitimate government purpose
c. The government’s purpose can be any goal not prohibited by the Constitution
d. It does not need to be proven that the asserted purpose was the legislature’s actual
objective
6. Constitutional Limits on Punitive Damages
Allgeyer v. Louisiana:
The freedoms protected by the Due Process Clause of the 14 th Amendment include economic
freedoms and prohibit a state from preventing its citizens from contracting with foreign
insurance companies to insure property located within the state.

Lochner v. New York:

The freedom to contract is protected as a liberty and proeprty right under the Due Process
Clause of the 14th Amendment. The government could interfere with the freedom of contract
only to serve a valid police power purpose – to protect the public health safety or morals
- (1) freedom to contract protected by the 14 th Amendment; (2) government can only
interfere if it has a valid police power to do it; (3) court has a role to carefully examine
these laws to determine if freedom contract is being impaired; (4) court reviewed state
statute - no valid police power for it but is impossible for it to close its eyes.
Coppage v. Kansas:
It is not a legitimate exercise of the police power for states to attempt to equalize bargaining
power between employers and employees.

Muller v. Oregon:
State can limit hours to a special class

Adkins v. Children’s Hospital:

Government cannot enact a minimum wage. The state may only interfere with freedom of
contract in case of exceptional circumstances

Nebbia v. New York:

State may fix the price of goods sold within its borders without violating the 14 th Amendment.
 West Coast Hotel Co. v. Parrish
Overruled Lochner – government is not limited to regulating the public health, safety and morals

United States v. Carolene Prods:

The court will defer to the government and uphold laws as long as they are reasonable, but this
deference would not extend to laws interfering with fundamental rights or discriminating
against discrete and insular minorities

Williamson v. Lee Optical of Oklahoma:

So long as the court can conceive of some legitimate purpose, and so long as the law is
reasonable, the law will be upheld. Established the rational basis test.

Ferguson v. Skrupa:
No longer interpreted the Due Process Clause to protect the right to practice a trade or
profession or even the freedom of contract.

Pacific Mutual Life Insurance Co. v. Haslip:

Court upheld a punitive damage award 200 times the size of the actual loss. Punitive damages
had a long history and there were adequate procedural safeguards to protect against
unreasonable awards.

Honda Motor Co. v. Oberg:

Punitive damages pose an acute danger of arbitrary deprivation of property

BMW of North America v. Gore:

States cannot undertake to change a tortfeasor’s conduct in other states. Criteria for
determining whether a punitive damage award is grossly excessive: (1) degree of
reprehensibility of the defendant’s misconduct; (2) disparity between the actual or potential
harm suffered by the plaintiff; and (3) punitive damages award and the difference between this
remedy and the civil penalties authorized or imposed in comparable cases

State Farm Mutual Automobile Insurance Co. v. Campbell:

Reprehensibility is the most important consideration. Assessed the reasonableness of the
punitive damage award by considering the ratio between the harm and the award.

Phillips Morris U.S.A. v. Williams

The Constitution’s Due Process Clause forbids a state to use a punitive damages award to punish
a defendnat for injury that it inflicts upon nonparties or those whom they directly represent

The Contracts Clause:

1. Article I, Section 10, Clause 1: no state shall pass any law impairing the obligation of contracts
a. Applies only to state or local laws – not federal government
b. Contract Clause – assumes a contract has already been made
c. Applies only if a state or local government is interfering with the performance of an
already exisiting contracts
d. Does not limit the ability to regulate terms of future contracts
 2. The Modern Use of the Contracts Clause
3. Government Interference with Private Contracts
4. Government Interference with Government Contracts:

Home Building & Loan Association v. Blaisdell:

During an economic emergency or other exigent circumstances states can impose increased
limitations on the freedom to contract if limitations are held during the time of an emergency
- Contracts Clause is not an absolute bar in these circumstances
- The emergency & legislation was temporary.

Energy Reserves Group, Inc. v. Kansas Power & Light Co.:

Three Part Test for determining whether a state or local government has interfered with an
exisiting private contact: (1) is there a substantial impairment of contractual realtionship? (2) If
so, does it serve a significant and legitimate public purpose? (3) If so, is it reasonably related to
achieving the goal?

El Paso v. Simmons:
Law had a legitimate purpose which was to restore confidence in the stability and integrity of
land titles

Sveen v. Melin:
Under the Contracts Clause of the Constitution, a trial court may apply a revocation-upon-
divorce statue to a life contract signed before the enactment of the statute.

Allied Structural Steel Co. v. Spannaus:

A state may not pass legislation that retroactively and significantly affects the contractual
obiligation of an employer to provide a pension plan for its employees
- Has not been followed within the last four decades

United States Trust Co. v. New Jersey:

There is a different standard for review of government interference with government contracts
- Test: state’s repeal was both reasonable & necessary for the state but was there a less
drastic alternative?

The Takings Clause

1. Fifth Amendment: nor shall private property be taken for public use, without just
compensation
2. Purpose of the Just Compensation Clause of the Fifth Amendment:
a. Ensures the government will not take proeprty from some to give it to others
b. Loss spreading – if the government takes a person’s property to benefit society, then
all of society should pay
3. Four Questions that Must be Considered:
a. Has there been a taking?
i. Possessory Taking – when the government confiscates or physically occupies
property
ii. Regulatory Taking – when government regulation leaves no reasonable
economically viable use of the property
1. General Criteria for Regulatory Taking:
 a. Economic impact of the regulation on the claimant
b. Extend to which regulation has interfered with investment-backed
expectations
c. The character of the government action
i. Is property involved?
ii. Property is not defined in the Constitution, so we must look at
state law.
d. Was the taking for a public use?
i. Public use defined broadly – almost any taking will be a public
use as long as it is rationally related to a conceivable public
purpose
e. Has just compensation been paid?
i. Measured in terms of loss to the owner, not in terms of gain to
the taker
4. Zoning Ordinances as Takings:
a. Court has generally declined to find zoning ordinances are takings on the ground the
ordinances do not eliminate all other economically viable uses of the property
b. Zoning ordinances limit property owners’ use of their property and may diminish the
property’s economic value

Knick v. Township of Scott, Pennsylvania:

A property owner has not suffered a violation under the Takings Clause until a state court has
denied his claim or just compensation under state law

Loretto v. Teleprompter Manhattan CATV Corp.:

A taking for the purposes of the 5 th Amendment occurs when the government confiscates or
physically occupies property

Horne v. Department of Agriculture:

The Takings Clause applies to personal property in the same way it applies to real property

Cedar Point Nursery v. Hassid:

The essential question is whether the government has physically taken property for itself or
someone else – by whatever means – or has instead restricted a property owner’s ability to use
his own property
- A government regulation granting a right to invade another’s physically property
constitutes a per se physical taking

Miller v. Schoene:
A taking has not occurred when the government is required to destroy one class of property to
save another

Penn Central Transportation v. New York City:

The following criteria should be considered in evaluating whether a regulation is a taking. (list
below)

Lucas v. South Carolina Coastal Council:

A taking has occurred when a regulation renders the property valueless. A taking has occurred
unless there had been a similar restriction on the development of the property when it was
purchased.

No Regulatory Taking:
Village of Euclid v. Amber Realty Co.:
Municipal zoning regulations are constitutional, unless they are clearly arbitrary and
unreasonable, having no substantial relations to the public health, safety, morals or general
welfare.

Goldblatt v. Town of Hempstead:

The Court upheld a zoning ordinance that prevented further excavation of a stone and gravel
quarry because “there is no evidence which even remotely suggests that prohibition of further
mining will reduce the value of the lot in question.

Agins v. City of Tiburon:

A zoning ordinance constitutes a taking if it does not substantially advance legitimate state
interests

Keystone Bituminous Coal Association v. DeBenedicits:

When determining whether a regulation restricting the use of property constitutes a taking of
the property, courts consider the parcel of property as a whole rather than as a bundle of
discrete parts

Murr v. Wisconsin:
Where a landowner owns adjacent tracts of land, the tracts constitute one parcel for purposes
of the Takings Clause if the owner’s reasonable expectations about property ownership would
lead him to expect that his holdings would be treated as one parcel.
- The local law should be enforced.

Regulatory Taking:
Nollan v. California Coastal Comm’n:
Unless the permit condition serves the same governmental purpose as the development ban,
the building restriction is not a valid regulation of land use but an out and out plan of extortion

Dolan v. City of Tigard:

The government may not, without just compensation, place land use conditions on an approval
of a private property development plan unless there is a “rough proportionality” between the
conditions and the impact of the proposed development.
- Two Step Inquiry on Nexus: (1) essential nexus between the legitimate state interest and
the permit condition enacted by the city; (2) find nexus exists, then decide the required
degree of connection between the exactions and the projected impact of the proposed
development
- Rough proportionality test: compare conditions & impact of the proposed development

Hawaii Housing Authority v. Midkiff:

Defined the scope of public use broadly. Government must satisfy the rational basis test.
 Kelo v. New London:
Economic development is not a public use.
- Has just compensation been paid?
1. Measured in terms of loss to the owner, not in terms of gain to the taker

Brown v. Legal Foundation of Washington:

The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just
compensation. Just compensation is measured by the property owner’s loss rather than
government’s gain.

Due Process:
1. The Fifth and Fourteenth amendments both provide that neither the United States nor the
state governments shall deprive any person of life, liberty or property without due process of
law

2. Two Types of Due Process:

a. Procedural Due Process: procedures government must follow before it deprives a
person of life, liberty or property
i. Requires there be safeguards such as proper instructions to guide the jury’s
deliberations and judicial review to assure the reasonableness of the award
ii. Remedy Sought:
1. Person or group is seeking to have a government action declared
unconstitutional because of the lack of adequate procedural safeguards,
such as notice or hearing
iii. Three Components:
1. Has there been a deprivation or denial
2. Of life, liberty, or property
3. Without due process
b. Substantial Due Process: Asks whether the government has an adequate reason for
taking away a person’s life, liberty or property (sufficient justification for government’s
action)
i. Sufficient Justification depends on the Level of Scrutiny Used:
1. Rational basis scrutiny: will be satisfied so long as the law is rationally
related to a legitimate governmental purpose
2. If it is an area where strict scrutiny is used, such as to protect
fundamental rights, then the government will satisfy substantive due
process only if it demonstrates the law is necessary to achieve a
compelling governmental purpose
ii. Prevents excessive punitive damages awards regardless of the procedure
followed
iii. Remedy Sought:
1. When a plaintiff is seeking to have a government action declared
unconstitutional as violating a constitutional right
3. What is Deprivation?
a. Is government negligence sufficient to create a deprivation or must there be a reckless
or intentional government action?
 b. When is the government’s failure to protect a person from privately inflicted harms a
deprivation?
4. The government generally has no duty to provide protection from privately inflicted harms.
Only if the government literally creates the danger of the person is in government custody is
there any constitutional duty for the government to provide protection

5. The Rights-Privileges Distinction and Its Demise:

6. What is Deprivation of Property?

a. Goldberg suggests the importance of the interest to the individual determines whether
there is a property interest

7. What is Deprivation of Liberty?

8. Liberty Interests for Prisoners
a. What Procedures are Requried?
i. The basic due process safeguards include:
1. Notice of the charges or issue
2. The opportunity for a meaningful hearing and
3. An impartial decision maker
9. Government Employment

10. Family Rights:

11. Substantive and Procedural Due Process: The Relationship

Fuentes v. Shevin:
Procedural due process seeks to ensure abstract fair play to the individual and to minimize
unfair or mistake deprivations that may result from the government’s having acted on the basis
of erroneous information

Daniels v. Williams:
A showing of mere government negligence is not sufficient to state a claim for deprivation by
the government of an individual’s liberty interests under the Due Process Clause.

Davidson v. Cannon:
Simple negligence under Daniels does not implicate Due Process concerns

County of Sacramento v. Lewis:

Governments can be held liable for the conduct of their officers in emergency circumstances
only if the officers’ actions shock the conscience

DeShaney v. Winnebago County Department of Social Services:

Under substantive due process principles, there is no affirmative duty of the state to act to
protect individuals from deprivations of their life, liberty, or property by other citizens, unless
those citizens are prisoners held in custody against their will by the state.

Town of Castle Rock v. Gonzales:

Property interest entitled to Due Process protection exists only if there is an entitlement.

Goldberg v. Kelly:
When a state seeks to terminate welfare benefits, procedural due process requires the state to
provide the recipient with a pre-termination evidentiary hearing for the purpose of determining
the validity of discontinuing public assistance in order to protect the recipient against an
erroneous termination of his benefits.

Board of Regents v. Roth:

Roth did not have entitlement. Entitlement: a right granted by law or contract

Goss v. Lopez:
Student had a statutory entitlement to a public education. The Due Process Clause of the
Fourteenth Amendment requires a student facing suspensions of ten days or less to be provided
oral or written notices of the charges against him, an explanation of the evidence against him,
and an opportunity to rebut the accusations.

Paul v. Davis:
Harm to reputation alone does not support a due process claim

Sandin v. Conner:
Narrowed the scope of prisoners’ due process rights to proceedings that impose an atypical and
significant hardship in relation to the ordinary incidents of prison life.

Wilkinson v. Austin:
Placing a prisoner in a super-max facility was a deprivation of liberty

Matthew v. Eldridge:
Three-part analysis for how much due process is needed: (1) how important is it to the person?
(2) what is the likelihood of there will be a government error? (3) what is already in place?

Arnett v. Kentucky:
A public employee could be terminated without a full hearing prior to termination.

Little v. Streater:
The government must pay for blood tests for indigent defendants in paternity cases

Lassiter v. Department of Social Services:

Providing counsel to indigent parents in termination of parental rights proceedings may
sometimes be required.

District Attorney’s Office for the Third Judicial District v. Osborne:

The Due Process Clause of the Fourteenth Amendment does not provide a constitutional right to
postconviction DNA testing.