The Nature and Scope of Judicial Review

- Origins of the Power of Judicial Review – The power of the courts to review legislation to determine if
it’s consistent with the Constitution.
1. Art III, § 2, Cl. 2 – “The judicial power shall extend to all cases, . . . arising under this Constitution. . . .
In all Cases [where state is a party or affecting foreign officials], the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate
Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.”
2. Marbury v. Madison – power of judicial review to declare acts of Congress unconstitutional
o Background- The incumbent federal Adams lost Pres election of 1800 to Jefferson. Right be4
end of his term, Adams appoints a bunch of federalist judges. Marbury’s commission is signed
and sealed, but it’s never delivered (by Madison, secretary of state). Once he took office,
Jefferson tells Madison not to deliver the commission. Marbury sought a writ of mandamus to
get the commission delivered. [Took a long time to hear the case b/c Congress suspended the
Supreme Court for a term – Art III, Congress can regulate Judiciary (but not tell them how to
decide)].
i. Issue 1: Does Marbury have a right to commission. Yes because all appropriate procedures
were followed. the Pres granted it to him via an act of Congress (Organic Act). His right was
vested once it was signed and sealed.
a. Note: but it was never delivered – Prob Marshall does this so he can get to Judicial
Review
b. It was a commission and the fact that it must had to be delivered only to the person, but
the court stated that was only a tradition and a person can be appointed even when the
commission is not delivered personally to the person
nd
ii. 2 Issue: Does Marbury have a remedy at law available? Marshall says yes, the essence of civil
liberty is that there is redress to every denial of a legal right. (no person- not even the
president – is above the law)
- The judiciary could provide remedies agains thte executive when there is a specific duty to a
particular person, but not when it is a political matter left to executive discretion
- Can the Supreme Court Issue this Remedy? Is Mandamus an appropriate Remedy?
1. Nature of the writ of mandamus – an order to compel a lower ct or govt official to do his
duty. Madison has a duty to deliver the commission. Since it was signed & sealed, it’s
vested, so there’s a legal duty here. Therefore writ of mandamus is a proper remedy.
2. Note: Pres doesn’t like this – ct is undermining authority of executive by telling them what
to do. But if Marshall decided otherwise, would be undermining authority of Congress.
Either way, still undermining
th
i. 4 Issue: What’s the source of the court’s power to issue the writ of mandamus?
1. The Judiciary Act 1789, § 13: “"The Supreme Court shall also have appellate jurisdiction
[from lower & state courts], in the cases herein after provided for; and shall have power
to issue . . . writs of mandamus . . . to any courts appointed, or persons holding office,
under the authority of the United States."
a. So, Judiciary Act is interpreted to mean that since Marbury is person holding
office under authority of U.S., this give SC power to issue the writ. Interpreted to
mean that this is a source of original jurisdiction.
b. But there are other possible ways it can be interpreted:
i. “Appellate jurisdiction”- so court has jurisdiction to hear a writ under
appeal.
 ii. This is an available remedy only when the SC would otherwise have
jurisdiction.
1. If read this way, court would need to still have original
jurisdiction. But the SC doesn’t have original jurisdiction b/c it’s
only where state is a party or in cases against foreign officials.
- Can the Supreme Court Declare Law Unconstitutional- YES
- Marshall argues that it is inherent to the judicial role to decide the constitutionality of the
law that it applies. . The court’s authority to decide cases arising under the Constitution
implied the power to declare unconstitutional laws conflicting with the basic legal charte
- Since Judges take oath it will go against their oath to apply laws that are unconstitutional
- Ar. Vi makes the Constitution the Supreme Law Of the Land (Supremacy Clause) – Congress
should only enact laws if they are authorized by the Constitution

Judicial Review of State Actions

1. Martin v. Hunter’s Lessee (1816)

a. Background: Martin claimed title to land based on inheritance from Lord Fairfax, a British
citizen who owned the property. The US and England had entered into two treaties
protecting the rights of British citizens to own land in the US. However, Hunter claimed that
Virginia had taken the land before the treaties came into effect and, hence, Martin did not
have a valid claim to the property .
i. SC revereds, holding that the title was not perfected before treaty enacted, so the
confiscation violates the treaty, and treaty is the supreme law of the land (Art. VI).
The VA court refused to follow the SC arguing that the SC does not have the power
to review state court decision
b. The court held that where there is a federal question involved, it could review the decision
of a state court. This is knows as the Doctrine of interposition
i. The Purpose of this is to promote uniformity in the interpretation of the
Constitution
ii. The court also held that where a treaty conflicted with a state law, a treaty, as the
Supreme Law of the Land was controlling (Ar. IV – Supremacy Clause – the Federal
law is supreme over state judges. Therefore, state court will deal with federal
question. If Federal question is at issue, the SC shall have review otherwise, the SC
would never have appellate jurisdiction as per Art. II § 2
iii. Furthermore, since Congress has power to create federal courts, wouldn’t make
sense for Supreme Court to review state court decisions, but not lower federal court
decision. Therefore, Supreme Court has power of judicial review for both state &
lower federal court decisions.
1. Art III, § 2 – Textual Argument – Art III say, judiciary power extends to all
cases arising under the Constitution. So all federal questions, including the
ones that start in state court and are in SC under appellate jurisdiction.
Argues that jurisdiction is over the case not the tribunal – but Prof says this
doesn’t fly b/c federal court doesn’t have authority to review int’l court
decisions, even if a federal issue (treaty).
2. The Spirit of the Constitution argument – It’s the spirit of the Constitution to
limit state’s powers. State sovereignty is curtailed by the Constitution.
 3. Uniformity – necessary to have uniformity in constitutional interpretation
across the nation. Need SC to do this, b/c state’s only look out for own
interests. But we don’t necessarily need uniformity – a lot of other laws are
diff across states and that’s ok.
4. State bias problem – Conflict between states (bias for own state) so we need
a neutral party.
5. Historical Precedent – Historically, SC has told state courts what to do, and
states listened.
6. Argument of original understanding – everyone, incl. framers understood
that SC has power to review state court decisions.
7. Judiciary Act - Authorizes exercise of jurisdiction in the specific case. Since
framers of Constitution also wrote Judiciary Act, they intended what they
said in the Judiciary Act. This argument not used in Marbury b/c Marshall
was arguing that Judiciary Act and Constitution are in conflict, and this
argument would defeat what he was arguing.
8. Art I, § 10 – Limitations on State Sovereignty
2. Cohens v. Virginia (1821) – affirmed Martin and extending its ruling to give the Supreme
Court the right to review state criminal cases when federal questions
a. Two brothers were convicted in Virginia state court of selling District of Columbia lottery
tickets in violation of Virginia law.
b. The court emphasized that state courts often could not be trusted to adequately protect
federal rights because of the legislature
c. However the federal statute authorizing a lottery had no effect outside the City of
Washington, and therefore no right to review the Virginia rulling

Political Question
1. Baker v. Carter (1962) Six factors must be present to make an issue nonjusticable by way of it
being a political question:
a. 1. The issue is textually committed to a coordinate branch of gov.
b. there is a lack of judicially discoverable and manageable standards for resolving the issue
c. The issue is impossible to decide without making an initial policy determination
d. There is a need to unquestioningly adhere to political decision already made
e. The issue may potentially embarrass various departments or branches of gov. if the court
decides it
2. Nixon v. US (1993) – if a matter textually commited to another branch of gov. the SC will not
get involved.
a. Facts: Walter Nixon, a federal judge, was impeached by the convicted on two counts. A
committee of 12 senators was delegated to be the finders of facts who compile a report for
the rest of the Senate, who then votes on impeachment
b. Issue: Where this violated the provision of the constitution giving the Senate “sole” pwer to
“try” impeachment.
c. Nixon argues that Art. I §3 does mandate all of the Senate to sit and hear the evidence.
d. The Court held that this was a nonjusticable political question because it was textually
committed to a coordinate branch of gov. The Senate was free to devise its own rule of
procedure for trying to impeachment; and because there were no “judicially
 manageable standards” for the court to rely upon in determining whether procedure
was adequate
3. Art. I §3 C6 “Senate shall have the SOLE power to try all impeachments” WHAT DOES SOLE
MEAN? (Modern Dictionary – to try at your descretion) = intent of the Framer’s to let Senate
set their own rules (therefore Political Q.)
4. A controversy is non-justiciable if the constitution commits the issue to another branch of
gov’t
a. Political Question Doscrine: an impeachment conviction presents a question of politics and
cannot be reviewed by the judiciary, even as to the meanin of trial
b. Real ISSUE: Whether the Senate can “check” the judiciary? Impeachment is designed only
for a check on the federal judicial and executive power (Do not want judge. Checking
themselves)

Congressional Regulation of Judicial Power

1. Limits indicated by Article III- suggests that Congress may place certain limits on SC appellate
jurisdiction and on the jurisdiction of lower federal courts
a. Exceptions and Regulation clause of the US Constitution (Art. II §2 Cl. 2) grants Congress
the power to make exceptions to the constitutionally-defined appellate jurisdiction of the
SC
b. Congress may also limit Lower Federal Courts
c. Check and balances – Const. says judicial is co-equal to the other branches, but eithr SC or
lower fed courts can play the constitutionally contemplated checking and balancing… as
long as one does
2. Ex parte Mccardle – the Judicial Restrain in Allowing Congress to Limit SC Jurisdiction
a. Background: McCardle was a newspaper editor of Vicksburg, Mississippi, who was arrested
by federal officials for writing a series of newspaper articles that were highly critical of
Reconstruction and especially of the military rule of the S. following the Civil War. He
brought a petition of Habeas Corpus under an 1867 Congressional statute, authorizing the
Habeas Corpus cases to be expedited to the FC C and the SC. After the SC heard arguments,
but before they handed down a decision, Congress repealed the portion of the act under
which McCardle brought his Habeous claim. This limited the DC to hear Habeas Corpus
cases, and restore the limits imposed on Habeas Corpus by the Judiciary Act of 1789 and
the Constitutio
b. Holding: Art III says that SC's jurisdiction limited "under such regulations as the Congress
shall make." Since Congress first granted, but now stripped the SC's jurisdiction to hear this
appeal, the SC no longer has jurisdiction. Repealing act only took away jurisdiction from the
SC that was granted by the Congress in the 1867 Act, not any other jurisdiction SC had
before.
c. Note: SC could still hear an original writ of habeas corpus under the Judiciary Act; repeal of
jurisdiction was only for hearing it on appeal from circuit court. Only one source of habeas
corpus review was foreclosed by Congress, not all.
i. Ex Parte Yerger (1869) – same issue as McCardle, but court upheld jurisdiction, b/c
petitioner sought review based on the Judiciary Act, not the 1867 Act.
ii. McCardle was not reviewed under the authority of the 1789 Act because he had not
pled that Act as the basis for federal court jurisdiction and because the Court was
anxious to avoid ruling on the constitutionality of Reconstruction
 d. Felker v. Turpin (1996) (Anti-terrorism legislation eliminated Habeas Corpus appeals
beyond the first appeal. After Felker’s petition for a writ of Habeas Corpus is denied by the
District and Circuit courts, the US Supreme Court denies it a writ of certiorari. The could
holds that where channels exist to have your writ heard, in this case, 28 USC 2254-55, the
legislation is constitutional.)
i. The court will review the case to make sure that there are no violation of
constitutional rights. . The law did not repeal the Court’s authority to entertain
original habeas petitions
3. Congress can manipulate SC's jurisdiction, but there are limits to what they can do.
a. If you take away all avenues for someone to bring a case of civil rights (by taking away
jurisdiction from all courts), you are eliminating due process, in violation of the
Constitution.
i. Unconstitutional if Congress were to create an exception to SC jurisdiction for
appeals brought by blacks, limit abortion or permit school prayers
b. There are other Constitutional provisions that limit Congress’ ability to manipulate the
judicial branch.
c. United States v. Klein (1872)Limits on Congressional Power to Modify APP Jur. Of SC
i. (holding unconstitutional a Congressional statute dismissing federal court
jurisdiction in cases wherein pardoned Southerners sued the federal government to
regain land they had forfeited to federal soldiers during the Civil War, on the basis
that a stripping of jurisdiction such as this is not neutral, but rather is a guise
for Congress to decide cases that fall under the power of the judiciary to
adjudicate.)
ii. Congress’s power to create exception and regulations to the Court’s appellate
jurisdiction, the SC said that Congress can not direct the results in particular cases.
iii. Statute at issue in Klein, Congress was redefining the president’s pardon power. The
statute was arguably unconstitutional as an infringement of the executive power
under Article I of the Const. AND deprivation of due process
iv. Applying in a situation where Congress directs the judiciary as to decision making
under an existing law and not applying when Congress adopts a new law
4. Art III gives Congress power to establish the lower federal courts. Therefore, it also has broad,
discretionary power to prescribe & limit the lower federal court’s jurisdiction. Although lower
federal courts have general jurisdiction to hear cases arising under the Constitution, Congress has
never given them the full jurisdiction allowed by the Constitution

NATIONAL LEGISLATIVE POWER

I. Division of power between state and federal government

a. Why have state and federal governments?
ii. Benefits of having both – creates a system where each can check the other
1. State - Diff cultural interests can express themselves in forming government
accordingly
2. State - Like a laboratory - based on what people want
3. State - Closer to the people. Government more representative/responsive to the people
iii. Conflict exists between what the federal and state governments wants
 1. If this happens, federal law trumps state law – Sovereignty Clause
2. But if federal doesn’t have the power to act, state law trumps
II. The Vesting Clause: Federal government power is granted by the Constitution
a. Article I vests all legislative powers “herein granted” in Congress. Congress’s powers are only those
that the Constitution grants. If the power isn't listed in the Constitution, Congress cannot act.
b. When does the federal government have the power to act?
ii. First, determine whether the federal government has the power to act in the first place:
1. Federal grants of power
a. Art I, § 8 enumerates the legislative power
b. The Commerce Clause – source of most of federal’s power today
c. The Necessary and Proper Clause
iii. Then, look to see if there’s a constitutional limit or bar to the power to act
1. Limitations
a. Another constitutional provision that explicitly bars
b. Power expressly given to the states by the Constitution
c. The 10th Amendment - "The powers not delegated to the US by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively, or to
the people."
i. This might operate by cutting federal power before it reaches the full
extent of its breach. States stop the federal from acting, by exercising the
power – Checks & Balances scenario.
ii. Or it might operate by reserving for the states the particular sphere
where only states are allowed to act. Line separating who can act for what
c. State power – State government holds a general “police power”. An action by state gov. s valid
under federal law unless it violates some specific limitation impose by the constitution. Federal Power,
in congrast, must fall in one of the enumerated powers
d. Federal Gov’t Action to be Valid it must
o be specifically enumerated AND
o not violate any particular limitation (Bill of Rights)
e. Specific Powers = Congressional:
o Lay and collect taxes
o Provide for defense of the country
o Borrow money on the credit of the US
o Regulate commerce with foreign nations and amoug several states
o Regulate immigration and bankruptcy
o Establish post offices
o Control the issuance of patents and copyrights
o Declare war
o Pass all laws needed to gover DC and military bases
o “make all laws which shall be necessary and proper for carrying into execution the
foregoing powers…”
 f. The Necessary and Property Clause Art I, § 8 cl. 18 - Power of Congress “to make all laws which
shall be necessary and peper for carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Gov of the US, or in any Dep or Officer thereof”
o Even if no necessary & proper clause, it is implicit that if certain power are given to
Congress, you will have to establish an agency to do it. Congress has the express power,
but also have the implied powers necessary for carrying them out.
o Necessary – useful or desirable, not indepensable or essential.
o It is placed in Article I, § 8 which expands Congress’s powers, and not in Article I §9, which
limits them
o Congress decides what is necessary or proper, but court may step in if it violates
Constitutional rights
g. Doctrine of Implied Powers: Authorization of federal powers doesn’t have to be explicit
o Congress may validly exercise power that is ancillary to 1 of the explicit powers as long as
not conflict with another provision
h. Historical Views
o Hamilton View – laws nec. to carry out Congress’ powers meant laws needful and req to
such powers. Limiting Congress’ authority to strict necessity would curtail the gov’t ability
to act
o Jefferson/Madison View – a national bank in application ot the Necessary and Proper
Clause is in no sense essential to carry out the duties of the federal gov’t

Implied Power – The constitution’s structure suggests the existence of implied power beyond those
enumerated in the Constitution
a. McCulloch v. Maryland (1819) – MA taxing any bank operating in the state without state authority,
and penalized a federal bank located in MA for not paying the tax. Federal government says they have
a right to create a bank & not be taxed. State trying to tax them out of existence, stop operating within
the state. They thought federal bank was an intrusion, and federal would get too powerful.
i. Background: Bank existed for 21 years until charter expired in 1811- after War of 1812,
country experienced serious economic problem and bank was recreated. May states adopted
laws designed to limit operation of Bank. State gov. disliked Bank because it called in loans
owed by states. Maryland enacted law requiring any Bank not chartered by state to pay either
annual tax or 2% of its notes. The Bank refused to pay tax, James sued for the state to recover
money owed under tax.
ii. Question: Does Congress have authority to create Bank? Is State Tax Constitutional?
ii. Holding: Federal government has the power to create a bank. The constitution does not
explicitly grant this right. But, it is implied. In order for Congress to carry out its
enumerated powers, it is necessary and proper to create the bank. (Art I, § 8).
iii. Which enumerated powers? Specifically, under Art I, § 8, :
1. Need bank to collect taxes, borrow money, regulate commerce, raise & support
army/navy (the powers of the sword & the purse)
2. Necessary and proper was construed to mean that Congress could pass laws that were
legitimate, within the scope of the constitution, appropriate, and plainly adapted to the
end the gov. sought.
3. There are other ways to carry out these functions, but it doesn’t matter b/c it’s proper.
As long as it’s an efficient & useful way to do it. Also, court doesn’t really care if this is
the true purpose of the bank; all that matters is that Congress has the power to do it
iv. Federal gov has the power to regulate state and may delegate this power to private agencies
v. Once the Court found that creation of the bank was a Federal Power, the limitation of the bank
with high taxes was unconstitutional b/c of the Supremecy Clause
1. The state tax on the Bank essentially was a state tax on those in other states-
and states can not put a burden on commerce from other states
2. Power to tax includes power to destroy and the power to destroy may defeat
and render useless the power to create a bank which includes the power to
preserve the state existence
iii. Main Points:
1. Federal Gov is supreme over state and that states have no authority to negate
federal actions
2. Court expansively defines scope of Cong’s powers
3. Court limits ability of state to interfere with federal activities- such as by
imposing taxes/regulations on federal gov.
b. Discuss the scope of congressional power under Article I
ii. Marshal states “a constitution, to contain an accurate detail of all the subdivisions of
which its great powers will admit, and of all the means by which they may be carried
not execution, would partake of the prolixity of the legal code”
1. congress is not limited to whose acts specified in the Constitution
2. Congress may choose any means, not prohibited by the constitution to carry
out its lawful authority
iii. This was the expansion of Congressional Authority
iv. This question was reviewed before the necessary and proper clause
c. Meaning of the Necessary and Proper Clause Art I § 8
ii. this provision make it clear that Congress may choose any means not prohibited
by the Const. to carry out its express authority
iii. Marshall states that Necessary means USEFUL or DESIRABLE, not indispensable
or essential
iv. Further necessary and proper clause which expends the power of Congress, and not
in Art 9§ 9 which limits them
v. Marshall underlines that if Congress passes laws that are unconstitutional- the court
will overruled them- reaffirmed Marbury v. Madison
d. State DO NOT retain ultimate sovereignty because they ratified the Constitution
ii. Marshal rejects the view that the States ratified the Constitution and contended that
it was the people who ratified the Const. and thus the people are sovereign not the
states
iii. The court rejects the view that the Cont should be regarded as a compact of the
states and that the states retain ultimate sovereignty under the Const.
e. Specified Powers
ii. Kansas v. Colorado (1907) holding that where an act of legislation is not “necessary
and proper” to carry out one of the enumerated powers of Congress the legislation
can not be exercised
iii. Panama RR v. Johnson (1924) – holding Cons a substantive federal law pertaining
to the rights of injured seaman, b/c Congress was impliedly delegated the power to
make substantive martime and admiralty laws, by express portion of the
Constitution which delegated jurisdiction over maritime claims of the federal courts
 iv. Erie RR v. Thompkins (1938) in diversity cases, federal courts can not disregard the
state common law to apply federal common law

THE NATIONAL COMMERCE POWER

Art I, § 8, cl. 3: Congress shall have the power to regulate commerce . . . among the several
states.

a) 3 Types of Rights in Commerce Cluase

a. Intrastate= fed can not interfere; regulated by each individual state
b. Interstate= state can not interfear with this
c. Concurrent Jurisidciton = the 2 above collide and combine
i. These 2 can exist together as long as State not interferear with the interstate
commerce of the national gov’t
ii. Definition – it exists ut it is a myth = there may be concurrent jurisdiction but the
consitution envisions a role for the congres (A I §8, 1-17) therefore it can not be
concurrent if they are implementing these clauses. States have local control over
what they are doing, they are still just controlling something in the state – does not
effect the enumerated power in the constitution
b) Commerce Clause Gives Congress Power to Regulate Commerce w/in States
a. Gibbons v. Ogden – Congressional power to regulate INTerstate commerce may include
the ability to affect INTRAstate commerce as long as the activity has some commercial
connection to another state. Congress shall have POLICE power to regulate Commerce
i. Background- The NY legislature gave Ogden an exclusive right to operate
steamboats between NY and NJ. Gibbons, whose boats were licensed under a federal
statute, began operating his boats there, in violation of Ogden’s monopoly. Ogden
got an injunction to stop Gibbons from doing this.
ii. Issues:
1. Did the law of NY granting an exclusive right of monopoly conflicted with the
US paten rights of the US (Art I, §8)
2. Was this a regulation of commerce? What is commerce- are people in
commerce
3. If it is commerce did the NY possess concurrent rights with the federal gov?
Did they have the right to regulate commerce?
4. Does congress possess exclusive power to regulate interstate commerce
5. Did NY law conflict with any specific law of the US
iii. Held: Since Commerce Clause grands Congress the power to regulate “commerce
among the several states” the state statute is unconstitutional; Congress has
PLENARY POWER over interstate commerce
1. Among the several States- between NY and NJ. It is not the sale of tickets
that is being regulated which is done only in one states
a. Among = co-mingle with. Congress among the states can not stop at
the external boundary line of each state, but may be introduced into
the interior
b. Court made it clear Congress could regulate intrastate commerce
if it had impact on interstate activities
 2. Commerce – court says commerce includes navigation- it is intuitive. Can not
have commerce without navigation, so must include. BROAD VIEW OF
COMMERCE
a. It meant buying and selling, Gibbons broadened this to include
NAVIGATION. Paul v. Virginia (1869) held that insurance policies are
not commerce. And Kidd v. Pearson (1888) held that manufacture &
commerce are different. Manufacture takes place within the state; it is
a quintessential local activity, so its regulation is within state power
iv. Does state sovereignty limit Congressional Power”
1. NO- power vested in Congress can be exercised to utmost extend and has no
limits foreign nations being one of them, that power is vested in Congress
absolutely. Sole check on Congress is political process, not judicially enforced
limits to protect states
v. Plenary Power- this power is strictly vested with Congress, it gives Congress the
sole power to regulate interstate commerce. Full & complete, exclusive. This power
can not exist concurrent with state power under the 10A!
vi. Among the Several States
1. The Danile Ball (1903) – a ship navigating exclusively within a state can be
commerce among the states, when its purpose was to transport goods
destined for other states. The ship was part of a bigger commerce- part of the
flow of interstate commerce
a. Navigability = the small river connects to Lake Mich..the court can
regulate the wars coming in to Lake Michigan to protect the Lake =
“Among”. Lake was 20 mi inland from lake Michigan and only
connects occasionally
I. Cases Prior to 1936
1. Substantial Economic Effect- Shrevport Case (Houston, E&W Tx Ry v. US.) – upheld the ability
of the ICC to set interstate railroad rates of their direction on interstate commerce .
Congressional regulation is within Commerce Power so long as the activities being
regulated had a substantial economic effect.

i. Facts: Texas reilroads were discriminating in the rates they charged interstate traffic as
oppose to interstate traffic (favoring intrastate). The Interstate Commerce Commission
set rates on shipping from Texas cities to Shreveport, LA. Later, Congress sought to
regulate the shipping rates on railroad traffic exclusively within Texas on the grounds
that it was having an adverse effect on TX-LA shipment. There was a need for iniformity
of the rates for interstate & intrastate; this will affect interstate coomerce by inhibiting
it (musch more expensive, so more favorable to just distriute goods intrastate)

ii. Held- Congress does possess the power to foster and protect interstate commerce, and
to take measures necessary or appropriate to that end, although intrastate transaction
of interstae of interstae carriers may be controlled.

iii. Even thought Congress was not regulating but prohibiting, Court still said prohibition
was form of regulation
 1. Wisconsin RR Comm’n v. Chicago (1922)– holding that if Congress deems it
desirable or necessary, it may impose reasonable conditions on intrastate use of
interstate carriers- here railroads)
2. Stafford v. Wallance (1992) holding that regulation of intrastate commercial
activity is permissible where Congress reasonably believes it will have a direct
and under burden on interstate commerce, and is in – in itself part of the
current of commerce

2. Beginning the direct/Indirect test (starts with Shrevport Case)

i. Need to find a direct impact on interstate commerce
1. Indirect – Violates commerce clause
2. Direct- allowed by commerce clause
ii. Prove that the LOWER RATES in TX were an impediment to interstate commerce (same
as having a customs agent at the border- imped free flow of commerce)
1. If there were no tracks to another state then no chance of being INTERstate
3. Limitation on the Commerce Power to 1936
i. Hammer v. Dagenhart – Congress can not regulate child labor under Commerce caluse
1. Facts: Congress sought to regulate child labor in N. Carolina on the basis that
chairs produced by the children were destined to become part of the interstate
commerce
2. The court held that even if an activity was commerce and was among the
states, Congress still could not regulate if it was intruding into the zone of
activities reserved to the states 10A (mining, manufacturing, and production
to the state)
3. Direct /Indirect Test = this falls b/c the children do not have a direct connection
to interstate commerce
a. There is an intervening source that cuts of children work from being
interstate b/c the truck drives it interstate
b. In every case from this until 1918 there needed to be some intervening
cause before the state could regulate interstate commerce. If it is not in
commerce the FEDS can not regulate
4. Lottery reasoning does not apply b/c there was nothing wrong with the product,
Congress just wanted to regulate curtail child labor done intrastate
5. Court distinguished between manufacture and commerce. This is a regulation of
manufacturing done in the state, so Congress does not have power to regulate
II. Constitutional Struggle: New Deal v. The Great Depression
1. The new deal legislation sought to give the federal gov. more power In order to get the country
out of the depression
i. Schechter Poultry v. US (1936)- struck down a code adopted under the National
Recovery Act, to regulate the NY poultry slaughtering market (the code also regulated
employment by requiring collective bargaining, prohibiting child labor, and by
establishing a 40 H workweek and a minimum wages) , where 96% of poultry came
from other states, but the actual activities regulated all done in NY. The regulated
conduct had no direct effect on interstate commerce
ii. Carter v. Carter Coal Co, - Used the Schechter’s direct effect test, and held that the
Commerce Clause did not give Congress the power to regulate labor in coal production.
 The act was unconstitutional because it regulated wages of coal workers and this did
not directly effect the interstate commerce. But the coal will be used outside the state.
1. Court reasoned the word “direct the activity shall operate proximately – not
mediately, remotely, or collaterally- to produce the effect. The manner upon
which the effect has been brought about
III. Expansion of Commerce Power after 1936
1. NLRV v. Jones & Lauglin Steel Corp. – Substantial Economic Effect (End of Direct/Indirect
Test)
i. upholds the National Labor Relation Act that prohibits management from interfering
with the workers right to organize, on the ground that is has substantial effect on
interstate commerce, regardless of where it fell in the stream of commerce, be it before
or after the tream of commerce was entered. “The fact that employees were involved in
production is not determinative”
ii. As long as the activity has a substantial econimic effect on IC, that activity may occur
well before or well after the Interstate movement and still be regulated
2. US v. Darby – Prohibition of Interstate Shipment of Goods made offending federal Act
Constitutional (Overturn Hammer)
i. Facts: D indicted for violating the new Labor Act that prohinited shipment of goods
interstate that were made by employees. With wages below those stated. D asserts that
this is a state power not Congress
ii. The prohibition of the shipment is within constitutional authority: within the Congress
plenary powers, & it does not matter why Congress did it, even if just for a moral reason
1. Intrastate Regulation – b/c goods being produced locally will be sent into
interstate commerce. Congress is regulating the goods going out of state
2. There has to be a SUBSTANTIAL effect on interstate commerce. But it is for
Congress to decide whether this is the case- whether intrastate regulation is
appropriate in order to advance some legitimate commerce clause reason.
CONGRESS = BROAD POWER
iii. Substantial Relationship = Substantially affects = also called affect power (really the
necessary& proper clause power)
3. The test after 1937
i. Three cases above expansively defined scope of Congress’s CC power
1. Court no longer distinguished between commerce/other stages of business such
as mining/manufacturing, etc – Congress can instead exercise control over all
phases of business
2. NO more distinction between direct/indirect – Congress can regulate any
activity that taken cumulatively has effect on interstate commerce.
3. 10A is no longer limit on congressional power – federal law will be upheld as
long as its within scope of Congress’s power and commerce clause was
interpreted so broadly that seemingly any law would meet this requirement.
IV. Protection of other Interests through the CC –
1. Look for a Jurisdictional Predicate- something in the Act that brings the action into INTERstate
jurisdiction of Congress
2. Civil Right Protection
i. Heart of Atlanta Motel v, US (1964) – Substantial and Harmful Effect
 1. Facts: a motel that refused to sell to blacks. Titile II of the Civil Right Actiot bas
discrimination based on race, gender etc. in place of public accommodation. The
hotel was by interstate highway. Major guessed by out of state
2. The court held that racial discrimination in hotels discouraged members of the
black community from traveling and therefore the prohibition on racial
dicrimiantion in hotels would have a substantial and harmful effect on interstate
commerce
a. It does not matter that Congress was only trying to legislate against moral
wrong. Evidence that the discrimination impedes interstate travel,
interstate commerce, so within scope of the commerce power, b/c
intraste activity has a substantial effect on interstate commerce
ii. Katzenback v. McClung (1964) – Reach of CC to Seemingly Local Activity
1. Ollie’s Bar-B-Q could not discriminate based on race because some of the food it
purchased from a supplier had previously traveled in interstate commerce. The
court looks at whether there could be a “cumulative effect” on interstate
commerce if other similarly situated restaurants discriminated, deciding there
could be, and whether Congress had a rational basis for enacting the legislation
2. Affected interstate commerce b/c they did not serve minority, and so less good
bought from interstate commerce.
3. Discrimination also discourages those discriminated against from traveling,
affecting interstate commerce.
iii. Food Test : Substantial and Harmful effect to IC – means you can see the harm, any
harm to the economics
1. Jurisdictional predicate is that you can see the harm in interstate commerce
in ECONOMY
iv. Hodel v. Virginia Surface Mining and Reclamation Ass’n
1. Unanimously upheld the Surface Mining Cotrol and Reclamation Act of 1977
2. Rule: Congress findings must be supported by a rational basis and are
reviewable by the court
V. New Limitation at the End of the 20th Century
1. The impact on IC must be substantial and the cases below are the rare examples of when the
court actually find no substantial impact present
2. Rule 3 Modern Categories of Regulatable Activity
i. Use of the channels of interstate commerce (Heart and Darby)
ii. Regulate and protect the instrumentalities of interstate commerce, or persons, or things
in interstate commerce, even though the threat may come ONLY FROM INTRAstae
activities
iii. Regulate those activities having a substantial relation to interstate commerce
3. U.S. v. Lopez: (1995) Gun- Reee School Zones Act exceeds Congress authority under CC
i. Criminal statute that by its terms has nothing to do with commerce or any economic
enterpirce. Lopez a 12th grader arrested for carrying oncealed weapon and 5 bullets to
school- he was charged with vilating Act, and was convicted and sentenced to 6 months
in hail and two yyears of supervised
ii. No express jurisdictional predicate which could limit its reach to a discrete set of
possessions and connect to interstate commerce
iii. Link b/w gun possession and a substantial effect on interstate commerce was stretched
 iv. Court concluded presence of gun near school did not substantially affect interstate
commerce- therefore, federal law was unconstitutional
4. US v. Morrison (2000) Violence against Women Act provided civil remedies for victims of
gender-motivated violence
i. Facts: a woman raped at Virginia Polytechnic Institute, and brought a civil action against
her attacker in federal curt under the Violence Against Women Act
ii. No interstate commerce involved in gender-based violence. So focus in on whether the
regulated activity has a substantial affect on interstate commerce
iii. No Jurisdictional predicate - Gender based crimes are not economic activity. To
allow aggregate effect to be used here is to attenuate and would destroy the distinction
between state and federal gov by making everything fall under the police power to the
CC
5. Gonzales v. Raich (2005) Medical Marijuana Regulation
i. Facts: CSA prohibited local cultivatio and use of weed, but CA let use of medical prupose
ii. Reason: Activities in the CSA unlike Morris are ECONOMIC
1. Limiting activity to weed prossession and cultivation can not serve to place D
act. Beyond congression descression (Supremacy Clause)
2. Under NPC, Congress can reg. INTRA that are not part of the INTER even when
does not substantially affect INTER if they are an essential part of a larger
regulation of economic activity
iii. Holding: Depends only on whether there are appropriate means of achieving legtimate
and of nixing drugs from commerce (does not matter that possession is non-econimic in
itself)
6. Jones v. US – Avoiding the Issue
i. Dewey threw moltov cocktail into cousin’s house
ii. Held that the federal arson statute did not apply to an owner occupies residence not
used for commercial purposes, thus avoiding the constitutional question under the
Commerce Clause
7. Solic Waste Agenc of N Cook County v. US Army Corp of Engineers –
i. Facts: Allowed land with pit to lay dormant and migratory birds would hang out there.
City bought a solid waste management plant on a small part of the land. Determine
whether can give a license to use the land to get rid of Non-Hazadous waste
ii. No jurisdictional predicate exists and that 7 acres is not navigable – Congress intended
te jurisdiction of the court to extend ONLY to waters “Navigable in Fact” or reasonable
be made ot be Navigabel

8. After Interstate Commerce Ends

i. U.S. v. Sullivan (1948) – power to exclude from interstate commerce
1. Facts: violation of federal Food, Drug, and Cosmetic Act for selling two pill boxes,
in which he had placed 12 tablets, and failing to affix the required warning label
that was printed on the large bottle of pills brought from an in-state wholesaler,
who had secured them through interstate commerce
2. Act desiged to protect the consumer by applying the Act to articles from the
moement of their introduction into interstate commerce all the way to the
moment of their delivery to the ultimate consumer
 3. Upheld the act constitutional
9. Power over local activities affecting commerce - the local activity has to have a substantial
affect on interstate commerce. The instance may be trivial, but it still constitutional. The
court will aggregate the entire class of activities and decide whether in total it affects
interstate commerce
i. Wickard v. Filburn
1. Agricultural Adjustment Act set quotas regulating Inter/Intra state amount of
wheat and amount consumed on the same farm it is raised. Filburn grew all his
own wheat so he had lots above quota buy only used himself (still against Act)
2. Act upheld- P’s own conduct (by itself trivial) take together with that of many
others similarly situated is far from trivial – Qualitative statistical effect on IC is
just as good as a Quantitative measurable effect
3. What precisely is under interstate commerce is this case? – Nothin, it is a
statistical impact
4. If there is a cumulative impact on IC due to the regulated action, then it may be
regulated by congress
ii. Maryland v. Wirtz –
1. Holding that Fair Labor Standard Act can constitutionally be extended t all
employees engaged in commerce or in the production of good to commerce” to
all employees of any enterprise so engaged; and including hospitals, nursing
homes, and all educational institutions
2. Reasoning: if you do not pay people enough they strike, if not working,
institutions shut down and fewer good bought from interstate commerce
a. Very Teneous connection, but court allowed it
10. What is the TEST to use NOW? Reasonableness/ Qualitative/ Quantitative
i. If congress acts in interstate commerce we see if it is reasonable (has to be under
ii. Federal gov. can not interfere in acts that of state that declare immoral – states have a
role as long as they do not disrupt interstate commerce
iii. Commerce clause in and of itself has life “DOMANT COMMERCE CLAUSE”

State Power and State Protection

1. Printz v. US- Applying Nat Powers to State Govt – federal gov can not impose obligations on state
officers b/c it violates the separation of powers
a. As part of the Brady Bill, local low enforcement was required to conduct background check
on gun purchsers until a national computer system was phasez. Printz, a sheriff refused to
comply, stating it would take him too much time
b. Held: Congress can not compel the states to enact fed regulations and can not circumvent
that prohibition by conscripting State officers
i. No textual provision or historical practice covers it
ii. Violates the separation of powers horizontally within the FG- by taking away power
from the executive and giving it to state officials. Upsets balance between Congress
and Executive. Constitution vests all executive power in the president and that
Congress impermissibly had given the executive authority to implement the law to
state and local law enforcement personnel.
 iii. Violates the separation of power vertically between state and federal government.
Congress using state police power for its own use, telling them what to do to enforce
a federal program

State Power to Regulate – Dormant Commerce Clause

I. Dormant Commerce Clause- the term commonly used to refer to the Commerce Clause in cases
in which Congress possesses regulatory power but has not exercised it – though similar problems
arise under other grants of federal authority
a. When congress power is dormant the states retain concurrent regulatory powers
b. Exceptions/ Cooley Test: A matter of national concern should be regulated at a national
level (court makes the determination that this is a matter the state can not regulate)
c. Currecnt “Dormant CC” Doctrine:
i. State regulations that purposely discriminate against interstate commerce are
invalid unless supported by a special justification
1. Negative asect of CC prohibits economic protectionism
ii. When a state regulation only incidentally restricts the flow of commerce .. w/ a
legitimate public intererst … it will be ypheld
1. Unless the burden imposes on commerce is excessive
d. Colley Test (Direct/Indirect) – state are free to regulate those aspects of IC that were of
such a local nature as to require different treatment from state to state (A state action w/ a
direct impact on IC is not allowed while indirect impact is ok)
e. Modern Approach
i. The Regulation must pursue a legitimate state end
1. SC distinguishes b/w health protection and econ. Benefits
2. Health/Welfare Laws- likely to be legitimate b/c it is a police power- see
Black Bird Creek
3. Economic Law- state’s econ. Int. protection not considered a legitimate end
ii. Regulation must be rationally related to that end (Means to an end)
1. Give due deference to facts found by the state
iii. Regulatory burden imposed on IC and any discriminatorion against IC, must be
LESS THAN the state’s Interst In enforcing its regulations
1. Where a statute regulates even-handedly and effects on IC are only incidental
then it wil be uphel.. unless the burden is clearly excessive
a. Even in non-dicriminatory legislation the presumption of
constitutionality can be defeated by a clear showing of national
interest in uniformity
2. Less Restrictive Alternatives – if there exists court more likely to find that
national interest in free commerce outweighs
II. Intorduction
a. Crosby v. National Foreign Trade Council (2000)
i. Massachusetts adopted a law which prohibited the state and its agencies from
purchasing good or services from companies that do business with Burma.
 ii. holding state law is preempted by federal legislation when Congress intends a “law
to occupy the fields” or when state law conflicts with a federal statute and its
impossible to comply with both
iii. find preemption where it is impossible for a private party to comply with both state
and federal law, and where it is impossible for a private party to comply with bot
state and federal law, and where under the circumstance of a particular case, the
challenged state law stands an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress
b. Wyoming v. Oklahoma (1992) holding that state regulation that purposely or facially
discriminate against interstate commerce – such as laws banning the importation of goods
from other sttes, or economic protectionist” laws- are invalid unless supported by
extraordinary justification not related to economic protectionism
c. Pike v. Bruce Church (1970) holding that when a state statute affects a legitimate local
public interest, and its effects on interstate commerce are only incidental, it will be upheld
unless the burden imposes on such commerce is clearly excessive in relation to the putative
local benefits
III. State Regulation when Congress Powers is Dormant: History and Fundament Issues
a. Gibbons v Ogden – state can only regulate for non-economic reasons, b/c since the
commerce clause give Congress ower to regulate interstate commerce for economic
reasons
i. Congressional Silence: states could regulate commerce if there was a no actuall
conflict b/w state regulation and an Act of congress
ii. Actual Conflict: the federal licensing law conflicted with NY monopoly and NY
monopoly therefore falls under Supremacy Cl
1. State law that may also be created by CC gets its power from that which is
stills in the states, not from the CC
b. Willson v. Black Bird Creec – State’s Police Power Affecting IC
i. Upheld Delaware Statute authorizing a dam to be built that obstructed a navigable
stream. The purpose was to improve the health and property values – so not
economic power, but police power
ii. State has certain power where FG has not spoken in protecting its health safety and
welfare (General Welfacce Clause)
c. City of NY v. Miln (1837) Court says state regulation of interstate transportation is
permissible, even though it impinges on interstate commerce, b/c the regulation has a
police power purpose – regulating immigrants coming in and out of the state, and using
state’s welfare services
d. Cooley v. Board of Wardens – States may Regulate Local Commercial Concerns:
i. Facts: PA law requires ships using PA port to hire a local pilot, or else pay into local
pilot fund Money used for relief of retired pilots.
ii. Held: States are free to regulate those aspects of IC that were of such a local nature
as to require different treatment state to state. BUT they can not regulate IC that
requires uniform national treatment
iii. Court divides up the commerce clause into exclusive. concurrent:
1. Exclusive – when national uniformity is important (when national subject
matter), then uniformity of regulation is necessary
2. Concurrent – when diversity of regulation is desirable, than want local
regulation, rather than national uniformity
 a. Here we want diversity of regulation. Local pilots know the local
waters, so this type of regulation is desirable
b. Also Congress made it clear with the federal act that they though
diversity here is important, saying it is up to each state to figure out
how to regulate
iv. Cooley Test: Is the given regulation of subject matter alleged invalid of such a
nature if regulated at all is should be regulated at a national level at a single
uniform authorit?
1. If the regulation commons national attention the Dormant CC gives power,
without state action
2. Dormant CC will apply regardless if congress has spoken as long as it is
a. A. matter of national concern should be regulated at a national levr
(court makes the determination that this is a matter the state can not
regulate)
IV. An Overview of the Modern Approach to the Dormat Commerce Clause
a. Not based on the direct/indirect test, but rather, on the courts balance the benefits of a law
against the burdens that it imposes on interstate commerce
b. Note: courts have never overruled the any of the earlier tests and sometimes invokes them
in explaining a particular result
c. Whether the state or local law discriminates against out-of-staters or treats in-staters and
out-of-states alike.
i. If the court concludes that a state is discriminating against out of staters, then there
is a strong presumption against the law and it will be upheld only if it is necessary to
achieve an important purpose
1. If the Court concludes that the law is nondiscriminatory, then the presumption is in favor of
upholding the law and it will be invalidated only if it shown that the law’s burdens on
interstate commerce outweigh its benefits
2. When state regulation burdens interstate commerce, it’s per se illegal unless there is
some EXTRAORDINARY JUSTIFICATION, other than ECONOMIC PROTECTIONISM (strict
scrutiny)
1. Facially discriminatory – it discriminates, on its face, b/w in staters and out of staters
based on their purpose and/or effect
2. Regulation to Protect the Environment and Preserve Natural Resources for In-State Use
1. Philadelphia v New Jersey – Whether the State law discriminates against out-of-states or
whether it treats in-staters and out-of-staters alike
1. Facts: NJ barred importing of garbage because it would endanger the health of its citizens.
PA who had previously used part of NJ for garbage, sued. PA challenged the law with CC
saying that it burdened IC and discriminated
2. Holding: States may not ban importation of garbage from other state unless it is infectious
1. NJ measures was basically protectionist, and did not resolve legitimate local concerns,
b/c it discriminated b/w in-state and out-of-state garbage
2. Main v. Taylor – Lack of Less Discriminatory Alternatives: - Even when facially
discriminatory, court will uphold when there is a legitimate state interest, and there are
no les discriminatory alternatives
1. Holding that a Main law prohibiting the importation into Maine of live baitfish which
competed with its own baitfish industry did not interfere with the commerce clause, b/c
 Maine had a legitimate and substantial local purpose in prohibiting the importaion of live
bait fish b/c there was uncertainty as to the effect it would have on Maine’s unique
population of native fish,
1. and b./c less discriminatory means of protecting against these threats were currently
unavailable, and that future possibilities of less discriminatory means was of on affect.
2. Maine must make reasonable efforts to avoid restricting the free flow of commerce across
its borders, but it is not required to develop new and unproven means of protection at its
own cost
3. Minnesota v. Clover Lead Creamery Co. (1981) – Use of Clearly Excessive to Compared to
Local Benefits Test”- even if there is some evidence of protectionism, law will be valid if
it’s not facially discriminatory, there is a legitimate interest, and there is no less
discriminatory means
1. Upheld a state law that banned nonreturnable milk containers made of plastic but allowed
other nonreturnable milk containers of pulpwood, though the plastic originated out of state
and pulpwood instate
2. The law did not discriminate b/w interstater and intrastate commerce, and the question
that the court was faced with was whether the incidental burden imposed on interstate
commerce is clearly excessive in relation to the putative local benefit”
3. Court stated that the burden was not “clearly excessive” in light of the substantial state
interest in promoting conservation of energy and other natural resources and easing solid
waste disposal problems (the env. Benefits outwighted any harm to interstate commerce)
4. C & A Carbone v. Clarkstown – Protectionism vs. Non Protectionism
1. Facts: waste transfer station collects waste and built by Clarktown. Flow control ordinance
required all non-recyclable solid waste from town be processed at it at a higher fee than
market.
2. Clarkston is being a market regulator. CC was violated, but they used a Equal protection
review (discrimination) judging that they DID favor a certain class of people. State can
discriminate if the state can justify the discrimination.
3. Here the flow control ordinance discriminates, for it allows only the favored operator to
process waste that is within the limits on the town; it fovores a single local proprietor
4. A state law that discriminates against interstae commerce must be justified by a
purpose that is unrelated to economic protectionism (shielding in-state industries
from out of stae competition is almost never a legitimate local purpose)
5. United Haulers Ass’N Inc v. Oneida-Herkimer Solid Waste Mangement Auth (2007) –
Unlike private neterprise, gov’t is vested with the responsibility of protecting the health
safety and welfare of its citizens
1. Facts: Oneida and Herkimer counties adopted a local "flow control" ordinance requiring
locally-produced garbage to be delivered to local publicly-owned facilities. The United
Haulers Association filed suit in federal district court, arguing that by prohibiting the
export of waste and preventing waste haulers from using less expensive out-of-state
facilities, the ordinance ran afoul of the dormant Commerce Clause
2. Does an ordinance requiring delivery of all solid waste to a publicly owned local facility
impose a substantial burden on interstate commerce and therefore violate the Commerce
Clause?
3. Upheld the ordinace by distinguished the Oneida-Herkimer ordinance from previous
ordinances that were struck down by the Court by emphasizing that the favored waste-
disposal facilities were publicly operated.
 4. The majority found that "[t]he flow control ordinances in this case benefit a clearly public
facility, while treating all private companies exactly the same." After deeming the ordinance
nondiscriminatory, the Court balanced its burden on commerce against its financial, health,
and environmental benefits. The Court found that it imposed only an "incidental burden."
The majority declined to "rigorously scrutinize" the economic effects of the ordinance,
preferring to leave the policy analysis to local government.
6. Hughers v. Oklahoma – Preserving Natural Resources for in-stae use
1. Law limits catching minnows in natural waters, b/c they are being deleted. But the
limitation is that it prohibits out of state shipment of them. Courts says that even though
the purpose is legitimate, it is still invalid b/c it’s facially discriminatory
2. State must show that non-discriminatory alternative are not adequate to preserve state
interest (protectionism) Here no attempt was made to do so
3. State Regulation of Tendered Offers
1. CTS v. Dynamic – Stae can regulate tender offers, even if it burdens interstate commerce, as
long as its not discriminatory, and the laws apply to everyone the same
1. An Indiana law limited corporate takeovers by requiring that a purchaser who acquired
“control shares” in an Indiana corp would acquire voiting rights only if the transaction was
approved by a majority vote of the preexisting disinterested shareholders
2. State may discourage tender offers, if the law are not discriminatory and involves
domestic corporations having substantial resident shareholder. Not protectionism, but
just trying under Due Process to act in a fair manner
1. It had the same effect on tender offers whether or not the officer is a domiciliary or
resident of Indiana
2. The Staee has an interest in promoting stable relationship among parties involved in
the corp it charters, as well as in ensuring that investors in such corp have an effective
voice in corp affairs
2. Edgar v. Mite Corp (1982)
1. Law authorized secretary of state to adjudicate fairness of tender offers and to deny the
required registration if found inequitable, tended to work fraud or deciep of offerees.
Statute applied to all corporations, but majority owned by out-of-staters
2. If the state law has an extraterritorial effect and intent, it is unconstitutional as violating
the CC
3. Brown –Forman Distillers Corp v. New York State Liquor Auth
1. NY requires liquior distillers selling wholesale in state to sell at the lowest prices the
distiller charged in any other state for the same month
2. Held violation of the CC – a state may not require ont of state producers or consumers to
surrender any competitive advantage they may have
3. A state may not project its legislation into other states by regulating the prices to be paid
for in those states
4. Regulation of Transportation
1. Souther Pacific v. Arizona –
1. the AZ law limits the # of train cars for safety concerns. There is a legitimate purpose, but
this does not outweigh the burden – it costs more money court then says that actually,
smaller trains cause more traffic, so much safety gained.
2. Kassel v. Consolidated Freightways
 1. Iowa law banning 65-foot double trailers. The court weighed the asserted safety purpose
agains the degree of interference with interstate commerce
2. State failed too present any persuasive evidence that 65 foot doubles are less safe than 55
feet single. The law substantially burdens interstate commerce by forcing these trucks
to avoid Iowa or to detach the trailers and ship them separately
3. Law is Impermissible as Burden to IC if: The total effect of the law as a safety measure in
reducing casualties is so slight and problematical that it doesn’t outweigh the national
interest in keeping IC free form interferences that seriously impede it.
3. Bibb v. Navajo Freight Lines (1959) Inconsistency wth other states
1. Ill requires all trucks to have a new innovation of madflaps. But problem is that there are
multiple inconsistent burdens imposed on interstate transportation, and you can not
comply with all of them. The trucks would have to keep changing the mudflaps at each
border

SEPARATION OF POWERS

I. Presidential Action Affecting “Congressional” Powers

a. Youngstown Sheet v. Sawyer - Internal Matters: Domestic Lawmaking – President
Cannot Make Law
i. Facts: Truman issues an executive order to seize the mills and operate them under
federal direction (feared no supply b/c of labor strikes and needed the steel for wa)
This is a request the Congress had previously denied the President.
ii. Rule: Law making is a legislative function expressly given to the Congress and not
the President
1. Art. II = “Executive power shall be vested in a president he shall take care
that the laws be faithfully executed” “he shall be Commander in Chief of the
Army and Navy of the US”
iii. Jackson’s concurring opinion held that the President’s power fallin one of the three
categories
1. Whther the president acts pursuant to implied or express authorizations
from Congress, his powers are at the greatest
2. Where the President acts in the absence of a congressional grant or denial of
authority, where he and Congress may have concurrent authority, and the
distribution of authority is uncertain- the president may typically act until
Congress speaks. Although, acquiescence can give rise to implied powers
3. Where the President acts in contradiction to implied or express
authirizations fro congress, his powers are at their lowest (Youngstown)
b. Dames & Moore v. Regan (1981) – Implied Acquienscence by Congress
i. Facts: To settle a hostage situation President Carter (1) suspended all claims in
American courts and (2) nullified all prejudgment attachment against Iran’s assents
(3) ordered transfer of assets in US bank
ii. Power to Nulify rights to Iranian assets – this falls under 1st Youngstown category,
b/c Congress gave President this power
iii. Terminating litigation and requiring arbitration – falls under 2nd Youngstown
category, Congress is silent. After the court looks at the history, it finds that the
 President has done this before and Congress had acquiesced (agreed passively) =
Implicit consent
1. When Congress has acquiesced to similar claims and resolution of a
major foreign policy is required, then President does ot lack power to
suspend the claims
II. External Matters: Foreign Affairs and War
a. Generally: Constituion gives president great authority in foreign matters than in Domestic
ones (Art. 2 §2 – enumerates number of powers I this area Commander, Treaty, appoint
ambassadors
b. President has 4 Powers
i. International Law – if congress reatifies convention that is under Supremacy Clause
– leave alone
ii. Enter into Contract
iii. Enter into treaties with advice and consent of Congress
iv. Can president override customary international law- NO congress can
c. Only 3 ways to Authorize troops to fight
i. Declaration of Congress ( Art. 1 §8 C.1)
ii. Statutory Authority (AUDF- Auth to use deadly force)
iii. State of National Emergency (Japs in San Francisco Bay)
d. US v. Curtiss-Wright Export – President has broad Discretion over Foreign Affairs
i. Facts: Curtiss conspires to sell weapons to Bolivia, who was ivolved in Chaco war.
There was a joint resolution of Congress that gave the president borad foreign
affairs power, and prohibited what Curtiss did. Curtiss says this violates the non-
delegation doctrine. Congress delegated the power to the President to proclaim an
arms embargo between Bolivia and Paraguay if he found it would contribute to
reestablishing peace between the two contries
ii. Holding: Congress may delegate to the President greater lawmaking authority in
situation involving foreign affarins, including the power to ban arm sales abroad
iii. The deligation of powers to the Prsident can be more broad with respect to
international affairs than domestic
e. Campbell v. Clinton (2000) – President’s Military Actions are Generally Nonjusticiable
i. Facts: Clinton used US/NATO forces to bomb Yugoslavia, Congress did not authorize
nor forbad it and Congressmen (Cambell) wanted it to stop.
1. After Vietman War, Congress enacts War Power Resolution which says
President can send troops, tell Congress, & Congress decides whther to go to
war, if not troops come back. Conducting war needs speed, so President gets
power b/c he can act quickly decisively and efficiently; Congress takes too
long, but Congress still has final say on war. President wants to declare war.
But Congress says no (pursuant to WPR). President vetoes Congress; and
says WPR is unconstitutional b/c it takes away Pres’s power.
ii. Issue: Can a Pres continue American military action beyond the 60 dyas if Congress
has neither authorized or prohinited it?
iii. Reason: War may exist without declaration on either side .. if another declares war
Pres is bound to accept the challenge w/o waiting for Leg. Authory
iv. Holding: YES. Presidential military action under the WPR is nonjusticiable, and the
Pres may act military w/o Congressional autho. To conteract 3r parties aggression
 1. Pres can impelement Policy overseas one of 3 ways
a. Can recommend to congress that congress declares war
b. Can act based on statutory authority
c. Can act based on national emergency (executive order)
2. With 48 hours of sending military people to a place with hostilities, Pres
must submit a report to the Speaker of the house and Pres Pro Tempore of
the Senate, and troops must be withdrawn within 60 dyas unless Congress
has declared war on enacted authorization
III. Individual Rights and the War on Terrorism
a. Preliminary Case – Rumsfeld v. Padilla (2004) : American citizen and member of Chicago
Streetgang. SC rules in his favor, but remands and eventually goes to Civilian Court.
i. When dealing with Geneva conventions, the crime of conspiracy does not count as
an act of war b/c conspiracy is a Common Law concept
ii. Leaving open the question of whether the enemy combatant label could be applied
to an American Citizen, apprehended in the US
b. Art I §9 C.2 – privilege of HC can not be suspended UNLESS 1. Acts of Rebellion; 2. Invasion
is a Common Law concept
c. Hemdi v. Rumsfeld (2004)
i. Facts: After 9/11 Congress (AuMF) authorized Press to use all necessary &
appropriate force against nations, orgs, or persons he determines
planned/authorized committed/aided attacks. Hamdi, U.S. citizen was seized in
Afghanistan when the military went there; held him but never charged him
anything. His father files writ of habeas corpus; gov’t holding Hamdi in violation of
5th Am. Also violated non-detention act (can not imprison or detain citizen except by
act of Congress). Gov’t says pursuant to AUMF, they can hold him indefinitely w/o
bringing any formal changes
ii. Plurarity – Congress authorizes pres to do this pursuant to AUMF. But there is a
constitutional due process problem. Due process requires a trial so he can rebut his
status as an enemy comabatant. Once that status is established, he can be held
indefinitely. There could be emergency powers to hold someone without trial, but
only if authorized by Congress.
1. The Due process is determined by balancing the need for the gov’t to carry
out its role in war with the interest of the detainee in life, liberty and etc.
a. Wighting private interest affected by official action against gov’t
asserted interest and buden gov’t woutl face against providing greater
process
2. Geneva Convention DOES apply and force the gov’t to define Enemy
Combatant
d. Rasul v. Bush (2004) Holding that US courts have jurisdiction under the same habeas
corpus statute in Hamdi to consider challenges to the legality of the detenrions of detainees
at Guantanamo Bay. Did not decide what substantive rights they could assert
e. Hamdam v. Rumsfield
i. Facts: Salim Ahmed Hamdan, Osama bin Laden's former chauffeur, was captured by
Afghani forces and imprisoned by the U.S. military in Guantanamo Bay. He filed a
petition for a writ of habeas corpus in federal district court to challenge his
detention. Before the district court ruled on the petition, he received a hearing from
a military tribunal, which designated him an enemy combatant.
 ii. Issues: May the rights protected by the Geneva Convention be enforced in federal
court through habeas corpus petitions? Was the military commission established to
try Hamdan and others for alleged war crimes in the War on Terror authorized by
the Congress or the inherent powers of the President?
iii. Holding: held that neither an act of Congress nor the inherent powers of the
Executive laid out in the Constitution expressly authorized the sort of military
commission at issue in this case. Absent that express authorization, the commission
had to comply with the ordinary laws of the United States and the laws of war. The
Geneva Convention, as a part of the ordinary laws of war, could therefore be
enforced by the Supreme Court, along with the statutory Uniform Code of Military
Justice. Hamdan's exclusion from certain parts of his trial deemed classified by the
military commission violated both of these, and the trial was therefore illegal.
iv. Court rejects the claim that CA 3 only applies in actual war- Geneva Conv. DOES
protect the detainees. Court rejects theory that exec has the inherent authority to
interpret GC anyway he wants
f. Boumediene v. Bush (2008)
i. Facts: In 2002 Lakhdar Boumediene and five other Algerian natives were seized by
Bosnian police when U.S. intelligence officers suspected their involvement in a plot
to attack the U.S. embassy there. The U.S. government classified the men as enemy
combatants in the war on terror and detained them at the Guantanamo Bay Naval
Base, which is located on land that the U.S. leases from Cuba. Boumediene filed a
petition for a writ of habeas corpus, alleging violations of the Constitution's Due
Process Clause, various statutes and treaties, the common law, and international
law.
ii. US detaining a buch of foreign nationals designated as enemy combatants. Law give
DC district court habeas corpus jurisdiction to review lawfulness of those detained.
Congress also enacted MCA to strip all US courts of habeas corpus jurisdiction of
Guantanamo detainees. Congress then sets up CSRT (dep of defense) to review the
cases, & if they decide DC court can review, only then it will. Majority says this is
unconstitutional, b/c everything is going on in one branch.
iii. Held: stated that if the MCA is considered valid its legislative history requires that
the detainees' cases be dismissed. However, the Court went on to state that because
the procedures laid out in the Detainee Treatment Act are not adequate substitutes
for the habeas writ, the MCA operates as an unconstitutional suspension of that writ.
The detainees were not barred from seeking habeas or invoking the Suspension
Clause merely because they had been designated as enemy combatants or held at
Guantanamo Bay. The Court reversed the D.C. Circuit's ruling and found in favor of
the detainees
IV. Legislative and Line Item Vetoes
a. Legislative Veto – allows congress to monitor the exec branch. It is included as part of an
Act that gives an Executive Agency legislative power. If, after an agency takes a certain
action and congress disafrees, the veto provision in the original bill allows ½ houses to
cancel the admin. Action by meand of a resolution. The relosution ISN’R presented to the
president and the does not have the opp to veto it
i. Presentment Clause (Art I §7C2) requires that every bill be presented to the
president for his signature
1. INS v Chada – Congress is vetoing an Act, NOT a rule, therefore must go back
to the president – unconstitutional to impose INSA
 ii. Bicameral Requirement (Art. I§1 and 7) both houses must pass a bill before it can
become a law
iii. 4 unilateral Provision allowed
1. House: power to initiate impeachments
2. Senate: Power to try impeachments, approve Pres, Appointments, and ratify
treaties
b. INS v. Chada – No More Legislative Veto
i. Facts: Congress delegated the Attorney General, in the INAM, the authority to
suspend deportation of aliens. Congress reserved a legislative veto that could be
exercised by either house. And the Pres. Had not veto power
ii. Holding: uncostituional – a single house of Congress can not take legislative actions,
unless the constituion explicitly permits unicameral action
iii. No more legislative veto- while a unicameral veto is dead because it violates
bicameralism
c. Clinton v. New York
i. Facts: Line item Veto Act gave the president the power to cancel any provision
where there was 1. Any dollar amount of discretionary budget authority; 2. Any item
of new direct spending or 3. Any limited tax benefit
ii. President Clinton used the Act to cancel one provision of the Balanced Budget Act,
and two provisions of the Taxpayer Relief Act.  The portion of the Taxpayer Act
would have allowed the facilitation of transfers between refiners and processors to
farmers’ coops.  The portion of the Balanced Budget Act would have granted relief to
the State of New York for its unpaid portion of taxes related to their funding medical
care for the indigent.  NY submitted a waiver but received no answer from HHS.  NY
then applied under Balanced Budget Act which would have granted money for
disputed taxes.
iii. Holding: the Pres can not have have a line-item veto over spending issues, unless it
follows the presentment clause of the Constitution, whereby he can beto parts an
entire bill, prior to signing it into law. The court held that by canceling only selected
portionsof the bills at isues, under authority granted him by the Act, the Pres in
effect “amended” the laws before him. Such discretion, the court concluded, violated
the finely wrought legislative procedures of Art. I as envisioned by the Framers
V. Appointment & Removal of Officers
a. Old Rule – if a purely executive officer had been appointed by the President, Congeress can
not limit the Pre’s right to remove
b. New Rule = Congress may limit the president’s right to remove so long as the removal
restrictions are not of such a nature that they impeded the Pres’ ability to perform his
constitutional duty
c. Morrison v. Olson – Chaning the Old Rule
i. Facts: Congress made an Act to appoint a “Speicial Prosecutor” to investigate and
prosecute high-ranking gov’t officials upon receipt of info that the Attorney General
consideres “sufficient gorunds”
ii. Art. II §2 C2- Gives Congress the authority to encat certain types of legislation
regulating the president
iii. Holding: The court held that Congress may place limitations on the power ot the
Pres, so long as it did not impede his ability to perform his Pres duties.
 1. The attorney general could remove a special prosecutor left to the executive
branch, ample authority to decide whether the special prosecutor was
performing his duties
d. Mistretta v. US – Judiciary Ok Sent. Leg. Power
i. Facts: Sentence reform Act of 1984 created US Sentencing Commission change with
devising guidelines for federal sentencing in an independent commission of the
Judicial Branch
ii. Rule: Executive or administrative duties of nonjudicial nature ma bot be imposed on
Art.III judges ECECPT upheld an anct that conferred Judiciary the power to
promulgate Viv Pro Rules
iii. Held: The Act is upheld as an exception to the general rule that nonjudicial duties
may not be to the judiciary
e. Invalidated Acts) Myers, Buckley, Chada, Bowsher, and Airports - all violated SoP by
Congress seeking to reserve an executive power for itself
f. (Acts Allowed) Humphrey’s Executor, Wiener, Morrison, and Mistretta - all concerned cases
where Conress had lessened the President’s power (or increased the judiciary’s) without
reserving a corresponding power for itself.
g. SC has consistently focused on whether Congress has impermissibly aggrandized itself,
not on whether the Presiden’t nebulous executive power is being undermined.
h. In approaching an iddue concerning the removal power, anasysis can be divided into two
question
i. Is the office one in which independence from the president is desirable? If so,
Congress may limit the removal power, and Weiner indicates that the judiciary may
limit removal even in the absence of a statutory restrictions
ii. Are Congress’s limits on removal constitutional? Congress can not completely
prohinit presidential removal, but it can limit removal to where there is “good
cause” Nor can Congress give itself the sole power to remove an executive official.
VI. Executive Privilege and Immunity
a. Executive Privillege- refers to the ability of the president to keep secret conversations with
or memoranda to or from advisors. the privilege exists because confidential comm.. are
required under the Art. II to promote candor and quell concern for appearance when
President seeks help in decision making
b. US v. Nixon – No Absolute Executive Privilege
i. Facts: Indicted 7 Nixon aides on changes of conspiracy to obstruct justice in
Watergate scandal. Court wanted the actual tapes made, b/c Nixon was named an
unindicted co-conspirator. However, Nixon asserted Executive Privileges.
ii. Holding: Doctrine of Judical review is affirmed- in this ase the president does not
have an absolute immunity he has an presumptive immunity. This is because the
right to criminal justice outweighs immunity.
iii. Presumptive Immunity- means tha tit can be presented to the court in cameara. Go
in camera to determine whether the documents impact on national security.
iv. Absolute Immunity – no judicial review at all – no in camera
c. Nixon v. Administrator of General Services – Congressionally-mandated Congrol over a
former president’s papers
i. Materials preservation act passed after Nixon and the Admin wanted to take
possession of the Pres materials. Nixon still claims privileges in this matter
 ii. There were adequate justification in this and it is ALLOWED b/c it is to preserve the
materials for legitimate historical + gov’t purposes and restore public confidence
d. Nixon v. Fitzgerald (1982) President is immine from suits arising from his carrying out
his executive duties – Civil Actions
i. Facts: Nixon fires Fitzgerals, who sues. Pres carrying out exec duties, so immune
from suit.
ii. Holding: Counrt holds there is an absolute immunity of the Pres from being sued
from performing his job. Even if outer perimeter of his duties, can not sue. Even
litigation issue is too burdensome on efficiency. Otherwise, Pres will be hindered
whenever making any decision because of fear of being sued. A former president is
also shiled from suit for acts while being in office.
e. Types of Immunities
i. Absolute immunity, protecting an official even for egregious or interntional
constitutional violations – the exception
ii. Qualified or good faith immunity, permitting liability only for violation of clearly
established rights of which a reasonable person would have know
iii. It depends on the function of the performed when the allegedly unlawful conduct
occurred
1. Judicial, legislative, and prosecutorial function have been held protected by
absolute immunity
iv. Applies only to suit in damages and not injunction
f. Clinton v. Jones – No immunity if it is in connection to outside office conduct
i. Facts: Clinten sued for sexual harassment that allegedly occurred while he was
governer of Arkansas. Clinten moved for dismissal or stay while in office based on
immunity, but court said no
ii. Held: suit against a presiden should be neither stayed nor dismissed if it is baswed
on conduct that alllegely occurred prior to his taking office . The immunity
safeguards the exercise of discretion by an officeholder, here no such thing

Substantive Due Process: The Right of Privacy

It imposes certain procedural requirements on governments when they impair life, liberty, or
property. The substantive pwer of the states to regulate certain areas of human life. This
“sunstantive”” component of the Due Process Clause derives mainly from the interpretationof the
term “liberty” certain types of state limits on human conduct have been held to be unreasonably
interfere with important human rights that they amount to an unreasonable (and
unconsititutional) denial of livery

I. Early Expressions of the Notion that Governmental Authority has Implied Limits - There are
substantive rights that limit gov’t power. There are some in the constitution and some that are not
explicitly called out in the constitution.

a. Calder v. Bull (1798) – Natural Law Right. Chase expressed a willingness to strike down
legislation without regard to explicit constitutional limitation based on “natural law.”Although
 the ex post facto clause does not apply to civil law, the court will not hesitate to strike down
laws that infringe upon the fundamental right of citizens

b. Substantive Due Process – 5th Amendment – starts out as procedural limit (procedures
affecting life, liberty & property), but later evolves to where it limits the substance of laws.

i. 5th amendment – no punishment w/o due process of the law; can't be deprived of life,
liberty & property; government can't take property w/o just compensation

c. Fletcher v. Peck – Legislative power is limited by general principles of our political institutions
and the words of the const.

i. Act of State Legislature that purposorted rescind a sale of public land, resting there
authority on the ex post facto clause, bill of attainder, the prohibition against imparing
contracts, and general principles common to our free institutions.

II. Fourteenth Amendment – The Privileges & Immunities Clause of the 14th Amendment
a. Diff from 4th amendment P&I clause. 14th protects federal citizens.
b. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of
the US” – would appear to suggest essentially unqualified federal contituional protection for at least
some person rights
c. Slaughter-House Cases (1873) – LA legislature passes law allowing New Orleans to create a
corporation that centralized all slaughterhouse operations in the city. Purpose was to restrict
dumping of remains & waste in waterways & have it all done in one place. Πs claiming state taking
away right to earn a living, guaranteed by 14th amendment.
i. The court rejected not the 13th Am argument stating that it was to abolish slavery and
therefore the amendment had no application to this case
ii. But no, the 14th amendment was not the same rights as those given under the 4 th amendment,
and it doesn’t include the right of employment (only under 4th – can't raise claim under 4th b/c
in-state citizens). Also, this is not a deprivation of property within the meaning of the 5th
amend.
iii. 14th amendment only protects those P&I that are owed by the federal government:
1. Right to petition the government
2. Right of assembly
3. Right of hebeous courpous
4. Treaty rights
5. Right to use interstate waterways.

Prohibition on takings without just compensation

I. 5th Amendment – limits the federal government’s power of eminent domain: "nor shall private
property be taken for a public use without just compensation." But the question comes up,
whether a regulation is a taking, whether it’s for public use, and what is private property?

a. Purpose of the takings clause - Prevent government (majority) from exploiting the minority,
for the benefit of everyone

b. The SC often has declared that one person’s property may not be taken for the benefit of
another person without a justifiying public purpose, even thought compensation be paid.

c. Taking is for public use as long as it is an exercise of the state’s police power; It is for public use
so long as the gov acts out of a reasonable belief that the taking will benefit the public
 d. Principle purpose of the taking clause is “to bar the Gov from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by the public as a whole.

Analysis

Was there a “taking”

e. Possessory taking occurs when the gov confiscates a physically occupies property
f. A regulatory taking is when gov regulation leaves no reasonable economical viable use of
property

Is it property

g. Usually courts has relied on other sources of law, usually state law, in deciding whether there
is a property interest

If there is a taking of property, - Is the taking for public use

h. If the taking is not for public use, the gov must give the property back. Since the court has very
broadly defined public use so that almost any taking will meet the requirements. Taking for
public use so long it is “rationally related to a conceivable public purpose” – so long as it meets
the rational basis test

If taking for public use- is there a “just compensation”

i. Measured in terms of the loss of the owner, the gain to the taker is irrelevant

II. Purpose of Taking- PUblic Use Requirement of Taking Clause

a. Generally – SC has consrued Public Use quite broadly. As long as there the use is rationally
related to a conceivable public purpose it is ok and Property need not be open to the general
public after the taking (may be turned over to private users)
b. Berman v. Parker- The District of Columbia used its eminent domain power to acquire slum
properties and planned to sell or lease them to private interests for development. Fed
Authorized agency to get private prop. For redevelopment. Of blighted areas. But appellants, in
the blighted area, owned a clean store and maintained that their property “was being
condemned for a private purpose”
i. holding that the government could acquire private property in a blighted area for
redevelopment, even if the buildings were to be used by private individuals, because it was
being done for a public purpose- to benefit the community through aesthetics
c. Transfer to Private Owner- Hawaii Housing Auth. v. Midkiff (1984) –
i. Gov wants eminent domain to lessen the concetration of fee simple land ownership,
inherited from Hawaii’s early feudal land system. Did this by transferring over publicly
taking land to private interest
ii. (upheld the use of eminent domain, used to force landlords to sell large land holdings to
their tenants at fair market value, in order to contribute to the general welfare by the
destruction of an oligarchy, a classic example of a state’s police powers. The court held
that where the exercise of the eminent domain power is rationally related to a
conceivable public purpose, it is constitutional)
iii. There can be a satisfactory public use even though property is turned over to a
private user
d. Urban Renewal and Economic Dev – Kelo v New London
i. FACTS: Kelo was a city that wanted to revitalize itself. A plan was designed to do this
that would eat into some private homes. Pfizer soon after announced it would build a
 large facility there too. However, 15 owners argued that the City’s taking of their
properties would violate the “public use” restriction.
ii. RULE: State can’t take the property of A for the sole purpose of transferring it to
private B even if A is paid
1. Midkiff – above – got rid of any implication that the taking had to be for the
general public…just look to see if it serves a public purpose
iii. HOLDING: YES. The public use requirement can be met even though the gov’t is
pursuing the diffuse goal of economic development and even if it is doing so by
condemning non-blighted areas
1. The Plan meets Public Purpose b/c it was carefully formulated for economic
development that will have benefits to the community, including new jobs and
increased tax revenue.
e. Public Use vs. Private Purpose

i. Public Use by Framers – Public Use are public roads, RR,

ii. Public Purpose – may take from A and give to B if there is a public purpose (O’Conner in
Midkiff)
1. Redesignate public use to public purpose, allows to transfer ownership to
another private party
iii. **Above 2 cases change the definition from public use to public purpose
f. POLICE POWERS in Determining Public Purpose – all of these cases are police power case.
The states rights to promote public welfare  Reasonableness standard
i. Application – we do not second guess the legislature unless unreasonable…here it is
reasonable for it to be a public purpose
III. Taking/Regulation Distincion:

a. Generally: If the court find that private prot. Has been physicallytaken by the gov
compansation must be paid. But if the state merely regulates property use in a manner
consistent with the state’s POLICE POWER then no compendation needed, even if the owner’s
use/value has been diminished.

b. Land Use Regulations (common issue in the distinction)- for a land use regulations to not be
taking it muse 1. Substantially advance legitimate state interest and 2. NOT deny an owner
economically viable use of his land

c. Acceptance of Regulatory Taking: Pen Coal v. Mohon

i. Pennsylvania statute that prohibited the mining of coal in any manner that would cause
the subsidence of property. Prevent com from exercising certain mining rights; they
were require to leave columns of coal underground to support the surface. The gov. did
not confiscate, occupy, detroy or invade the property – only REGULATION

ii. Holding: The regulation impairs the rights to mine coal so much that it amounts to
a taking which can not carried w/o compensation.

1. Regulation is unanticipated, therefore it is a unconstitutional as a taking

d. Keystone Bitmunious Coal v. DeBene

i. Facts: 1966 Pen law prohibited cola mining that caused cave in damage to preexisting
public buildings. Regulation issued pursuant to the law requiring that 50% of the coal
beneath the structe be kept in place
 ii. Holding: This does NOT amount to taking. Distingushing from the above on grounds
that 1. We’re not balancing private v. private interst but arresting a public threat
and 2. All mines can still be mined for profit. “When the coal that must remain
beneath the ground is viewed in the context of any reasonable unit of petitioner’s coal
mining operations, it is plain that they have not come close to satisfying the burden of
proving that they have been denied the economically viable use of that property.
Gov regulation is not a taking simply b/c it decreases the value of a person’s
property so long as it leaves reasonable economically viable uses

e. Landmark Preservaton: Penn Central Trans v. NYC

i. Facts: P owns Penn Station which is a landmark of NUY under law. P wanted to bild a
high office building above the station but state would not approve it b/c clashes with
the façade

ii. Holding: So long as landmark preservation is carried out as art of a comprehensive

scheme, dev of individual landmarks may be curable w/o effectuating a taking b/c it is a
akin to zoning law. The restriction imposed are substantially related to the promotion
of the general welfare and not only permit reasonable beneficial use of the landmark
site but afford app

1. FACTORST TO CONSIDER

a. Economic impact of regulation and extent to which the regulation has

interfered with distrinct investment expectations

b. Cahracter of the gov/ action

2. Economic Impact on Investment Expectations- negligible b/c getting more

money now thatn before the historic.. Therefore it is a reasonable

f. SUMMARY: Penn Central Takings Questions (Pre-Tahoa)

i. What is the Character of the Gov’t Action (Valid Gov’t Interest?)
1. A physical invasion, or regulation we see everyday, where gov adjusts the
benefits andburdens of economic life for the public good
ii. What is the Economic Impact on the focused minority (on the plaintiff)
1. Investor’s Expectations – minority of ppl invest in land and expect a ROI
iii. Does the regulation unduly interfere w/ that Investor Backed Expectation?
1. Like Lucas case- invested in property with expectation f building a home. If state
comes along and changes the law so he can not build, then state interfered with
this.
iv. Were the Investors AWARE of the regulation prior to purchasing the house? Does this
look more like a classic appropriation of property or everyday reguation
g. Where Regulation renders the property completely, economically valueless – Lucas v.
South Carolina Coastal Council

i. Lucas bought property on the beach, which at the time was zoned for single-family
dwellings, intending to build houses there. Then state law prevented Lucas from
building any permanent habitable structures on his lots.
ii. Per se taking, b/c it renders it economically valueless. Only bought property to build
house on the beach, but law renders it economically valueless - can't sell it either.
What's the point of owning beachfront property if you can't build on it. As thought
government actually took the land, because it no longer has any economic use.
 1. If a reg deprives of all economically viable use compensation isn’t needed IF
banned uses of prop. were not part of the owner’s title.
2. An owner must EXPECT that some uses may be restricted by the state for the
stateto restrict them
3. Inquiry Requires: (1) degree of harm to public lands and resources, or (2)
proposed activities’ social value and suitability to the locality (3) ease harm can
be avoided
iii. The court held that regulation can be taking when either 1. Reg. compel the property
owner to suffer a physical invasion of his property or 2. Reg. deny all economically
beneficial and productive use of land. Also the 5th Am is violated when land-use
regulation does not advance legitimate state interest
h. LUCAS - Standard Used – Reasonable Expectations : If there is a complete loss (100%) of
value to the property owner you must give compensation under the 5 th (economic dim
value test)
i. ***Bar must fall w/in CL nuisance principles: Fact that the leg is able to prevent
harmful/noxious isn’t enough to ensure that the restriction is found NOT a taking.
It is a taking UNLESS state can show that the same result could have been achieved
by the use of CL nuisance.
ii. NOTE: If the gov’t regulates only 95%, then no compensation needed - See later case
where change to the substantial test
IV. Tight Means-Ends Fit – SC has recently req a very close fit b/t the means chosen by the state and the
governmental objective being pursued…Means chosen by the gov’t are not quite closely tailored to
advance that interest.
a. Substantially Advance Requirement – Nollan v CA Coastal
i. FACTS: Nollans wanted a permit to replace their cottage with a home nearly 5 times
larger. Permit only on the condition that the Nollans allowed the public an easement to
pass across their beach. N said this is a taking.
ii. 3 Rules in this Requirement…
1. (1) If the gov’t had just required the Ps to give the public an easement, it
would definitely be a taking (it would be a permanent physical occup.)
2. (2) Outright refusal by the gov’t to grant the permit wouldn’t constitute a
taking if it substantially advanced a legitimate state int and didn’t deny an
owner economically viable use.
3. (3)Conditions Attached to the permit must be evaluated by the same
standard so that only if those conditions “substantially advanced” the
legitimate state interest would the cond. be valid
iii. The permit condition (easement) has no relation to the governmental purpose
(maintain appearance of a beach). The easement won't change the appearance of beach
access. Still can't actually see the beach; all easement does is create access to the beach.
iv. Unconstitutional, b/c it’s an uncompensated taking of your property
b. Must also be a certain degree of connection - rough proportionality - more than
rationality necessary- Dolan v. Tigard (1994) –
i. FACTS: D wanted to 2x her store size into an area near the Creek.. Law was passed that
land adjacent to creek be used for “greenway.” City put condition on permit of bike
path and public greenway.
ii. RULE: 2 Part Test:
1. Essential Nexus between the alleged Taking and the Legitimate state
interest. (Nollan)
2. There must be a rough proportionality between the trade-off demanded by
the city and the burden to the public from Ps proposed development.
(Dolan)\
 a. Requiring the proposed restriction to actually affect the state’s objective…
not just the interest (in req. (i))
iii. HOLDING: When city conditions a building permit on some “give back” by the owner,
there must be a rough proportionality between the burdens on the public that the building
permit would bring about, and the benefit to the public from the give back.
c. Subsequent Owner Gets land w/ Notice of Restriction: Palazzolo v RI
i. FACTS: In 1959, P and others bought some wetlands. RI latter made commission that
limited development there. Title to the property later passed to P alone.
ii. HELD: A subsequent buyer who buys the property with the knowledge of the
restriction still may proceed under taking theory. b/c to hold otherwise would put an
expiration on the taking…future gen have right to challenge unreasonable limitations on
use as well.
d. Balancing Test – Temporary Delay on all Economically Viable Use – Tahoe/Sierra
Preservation Council v Tahoe Regional
i. FACTS: A Moratorium on dev was placed on land around lake tahoe for 32 months.
Owners filed suit as a taking w/o comp.
ii. RULE REVIEW ORIGINAL PENN CENTRAL:
1. What is the Character fo gov’t action
2. Economic impact of the TAKING on focused minority
3. Does the regulation unduly interfere w/ core property investment backed
expectations
iii. HOLDING: There is no automatic right to compensation in a case of temporary
regulatory stop to all economically viable use. If the circumstances considered
show a taking, then it would be (inc in land value during)
1. Lucas Categorical Rule – Lucas - Marginalized = A taking for regulation only can
be categorically decided in the extraordinary case of permanent deprive prop of
value…Otherwise it requires a balancing…
2. Distinction b/t Physical and Regulatory Takings that are Permanent/Temporary:
Even a temp phys occ of Ps property is a taking. But, a similar rule for temp reg
takings wouldn’t work. This is a power req. by the Gov’t.
3. Here, weighing the circumstance, this is NOT a taking, it is a mere
regulation.
Regulatory Takings

i. While government may regulate property to a certain extent, if it goes to far it will be recognized as a
taking.

o Ex. Pennsylvania Coal v. Mahon: It was a taking when legislation prohibited coal companies
from digging out beneath those who had surface rights.
 Court used an ad hoc test looking at public health, safety, welfare.

Historic Preservation is not a regulatory taking.

 Penn. Central: Government could prohibit Penn Central from building offices on top of landmark
terminal. The reasonable investment backed expectations were still met.
 Again, court uses an ad hoc test looking at economic impact,

Penn Central analysis

 Is there a valid governmental interest?

 What is the economic impact on the focused minority?
o Discriminatory Spot Zoning is a taking.
  Does the regulation interfere with reasonable investment backed expectations? (part of this is
were the owners aware when they bought it?)

If regulation denies all beneficial or productive use of land, it’s unconstitutional without just
compensation.

 Lucas: unconstitutional for state to prohibit lucas from building on his coastal land and not
compensate him
o This case uses the values test. 100% loss of economically beneficial or productive use of
land. In reality, this is just another ad hoc test.

No unconstitutional conditions: the gov. can’t require you to give up a right in exchange for a
discretionary benefit.

 Dolan v. Tigard: wanted landowner to give up a free easement for a bike path as a condition of her
business expansion. There’s no factually demonstrable relationship between these things.
Landowner wins

Temporary Moratoriums are not takings

 Ex. Lake Tahoe case not a taking, even with rolling moratorium.

Analysis for Exam

Is this a Lucas 100% taking or a Penn Central taking?

 If Penn Central style taking…

o (1) What is the character of the action (interest)?
o (2) What is the effect on the focused minority?
o (3) Does the regulation interfere with core, investment backed expectations?

THE CONTRACT CLAUSE: No State Shall…pass any…Law impairing the obligation of Congress
(A1S10)
a. Tiered Rule
i. Lower Std for private contract – Reasonable rationality
ii. Higher standard for alteration of contract when State is involve – Strict Rationality
b. Citizen – Citizen Cases – more likely to interefere
i. Protection of Public Interest – Home Building v Blaisdell
1. During the depression a Minnesota statute allowed local courts to give relief from mort
foreclosure sales. Intended to apply to mort issued prior to the date of the law.
2. State has at least the right to remporarily delay enforcement where vital public
interests would suffer
ii. 5 Significant Factors Upholding Public Interest Contract law:
1. Emergency need to protect the vital interests of the comm
2. Law wasn’t designed to favor a special group
3. Relief was appropriately tailored to the emergency
4. Conditions imposed were reasonable
5. Legislation was temporary and limited to exigency
c. Citizen – State Cases: Protection of Public Agreements: United States Trust v NJ – court will
closely scrutinize a state’s attempt to escape its financial obligations and will allow such escape where
a significant public need exists (Whent state is involve look at strict rationality)
i. FACTS: NJ and NY passed law that Port Authority wouldn’t be used to finance unprofitable RR.
They later repealed and P claims the repeal is unconstitutional b/c of the Contracts Clause.
ii. REASON: Can’t give complete deference to the state b/c this is a decision that would favor
them. If there is an alternative way of doing this it violates the contract clause to discriminate.
iii. HOLDING: An impairment of contractal obligations will be constitutional only if it is
reasonable and necessary to support an important public purpose:
1. Reasonable – only if the modification was induced by unforeseen developments occurring
after the original contract was made
2. Necessary – public interest objectives could not be met by less drastic modification…Here
alternative menas existed for improving mass transit.
d. Revival of the Contracts Clause in Private Agreement Cases – Allied Struct. Steel v Spannaus –
invalidated an attempt by minn to expand pension obligations the clause may now be used as a big
weapon against state police power regulations on contracts
i. FACTS: Minn statute provided that when certain Minn employers closed down their operations
any employee who worked for the firm more than 10 yrs became “vested” in any plan the
employer has. Allied had a plan that vested employees only after 10 yrs. Therefore they would
have to pay pension to ppl not expected to.
ii. Reaffirms US trust where it is a Corporation-Individual contract
1. (1) This is unanticiapated
2. (2) Not of general application
3. Therefore, it is NOT reasonable (don’t’ need to look at NECESSARY). Uncon.
4. **A substantial modification can be sustained if
a. There is an emergency
b. The measure enacted to protect a basic societal interest NOT a favored group
c. The relief is proportionately tailored
d. The modification is reasonable in scope
e. The statuet is limited to the duration of emergency
iii. HOLDING: The law is invalid b/c it attempts to substantially modify a contract that is
focused on a narrow group that imposes a permanent solution, and that solution is not
necessary to fix the problem.

SCOPE OF DUE PROCESS and the BILL OF RIGHTS

II. CRIMINAL DUE PROCESS:
III. 2 Conflicting Theories – States Incorporation of Bill of Rights through the Due Process
clause in the 14th Amendment
a. Selective Incorporation – denies that the entire BoR is made applicable through th 14 th.
Instead “liberty” is to be interpreted w/o regard to the BoR. Only those aspects of liberty that
are fundamental are protected against state interference…They are selectively incorporated
i. Cardozo view – (Palko v Connecticut)
1. BoR isn’t automatically incorporated through 14th
2. Ordered Liberty/Fundamental Fairness Test:
a. the BoR guarantee in question is of the very essence of a scheme of
ordered liberty and
b. it is one of those fundamental principles of liberty and justice which lie at
the base of all of our civil and political institutions
3. Palko v CN –right to trial by jury is not of the very essence of a scheme of
ordered liberty…the band of double jeopardy was not sufficiently fundamental
ii. Frankfurter view (same as above) – (Adamson)
 1. “Natural Law” has a much longer and much better founded meaning and
justification than such subjective selection of the 1st 8 to incorp in the 14th
2. Summarizing the BoR in the 14 th would deprive the States of the opp for reforms
in legal process.
3. Judicial judgment in apply the Due Process Clause must move w/in the limits
of accepted notions of justice and isn’t to be based on the idiosyncrasies of
merely personal judgment
b. Total Incorporation – all of the guarantees specified in the BoR are made applicable to the
states by the 14th ‘s due process stmt
i. Black’s View (Adamson v CA)
1. Procedural guarantees applied to the FED by the 5 th were automatically
rendered applied to the states via the 14th, this was the the intent of the framers
of.
2. Extend to all the people of the nation the complete protection of the BoR
c. Can be defined as the process that is due you
i. Yo cannot deprive one of life, livery, property without a procedngs, general in nature, and
applicable to everyon.
ii. It ensures the reliability of the guild determination process
d. Modern Approach
i. Distinguish Fedearl Due Process (5th) from State Due Process(14th)
ii. What is Due Process – Criminal? Separate Vitality (Ordered Liberty) – treat due process
anyway we want depending on the nature of the facts, but WILL NOT INCORPORATE
FEDERAL DUE PROCESS (state vs federal due process)
iii. Selective incorp approach has always held a majority
iv. Court today incorporates into the 14 th any guarantee which is fundamental in the
context of the judicial processes maintained by the States.
e. 1960s Change Due Process Rights Mapp vs Ohio –
i. FACTS – police comes to Mapp’s house looking for a bomber. Break in w/o a search
warrant and tear up a house…MUST search under the 4th amendement w/
particularity.
ii. Officers had no right to enter, didn’t present a search warrant…
iii. IMPORTANT – Court took the case in the first place and decided under the 4 th
amendment…Eventhough there was a case previously saying the 4 th isn’t incorporated
into the 14th…This case decided it saying it is.
f. Right to Jury Trial – Duncan v LA
i. 6th Amend. rt to jury trial is applicable to States
ii. WHITE’S OPINION – Since the 12th century there is a right to trial by jury of your
neighbors. Mandates a jury trial (due process), incorporate form the 5th? into the
14th, right to trial by jury.
iii. NEW RULE – whether the BoR provision is fundamental to the American scheme of
justice or fundamental in the context of the criminal processes maintained by the
American States.
iv. Trial by Jury IS a fundamental to Amer Scheme
g. Mapp v. Ohion
i. Ohio police officers forcibly entered the home of Dollree Mapp (a well-known
underworld figure) with what they said was a search warrant. Ms. Mapp had time to
phone her attorney and then asked to see the search warrant, which was waived in
front of her. A search of the house commenced with officers looking for a bombing
suspect but who came across several sexually explicit books, photographs, drawings,
and gambling records (all of which were considered illegal contraband).
 ii. held that the due process clause of the Fourteenth Amendment extended to the States
the Fourth Amendment right against unreasonable searches and seizures. And, as
necessary to ensure such rights, the exclusionary rule, which prohibited the
introduction into evidence of material seized in violation of the Fourth Amendment,
likewise applied to the State's prosecution of state crimes.
h. Terry v. Ohio
i. held that the due process clause of the Fourteenth Amendment extended to the States
the Fourth Amendment right against unreasonable searches and seizures. And, as
necessary to ensure such rights, the exclusionary rule, which prohibited the
introduction into evidence of material seized in violation of the Fourth Amendment,
likewise applied to the State's prosecution of state crimes.
i. New Jersey v TLO—
i. School search and seizure, the Court abandoned its requirement that searches be
conducted only when a "probable cause" exists that an individual has violated the law.
The Court used a less strict standard of "reasonableness" to conclude that the search
did not violate the Constitution. The presence of rolling papers in the purse gave rise to
a reasonable suspicion in the principal's mind that T.L.O. may have been carrying drugs,
thus, justifying a more thorough search of the purse.
j. Vernonia School District 47J v. Acton (1995)—
i. Students were not entitled to full Fourth Amendment protections as the state's interest
in preventing drug addiction among students was compelling, student athletes had a
decreased expectation of privacy, and the urinalysis and accompanying disclosure
requirements were not significant invasions of privacy. The Supreme Court in a later
case determines that this is allowed, but that police cannot report pregnant women who
test positive to police because they are not cops.
ii. Four ways for a warrant to search you
1. You give your consent.
2. Search incident to arrest
3. Crime committed in plain view of officer
4. Stop and frisk (Terry standard)
5. Administrative search (Heighted stop and frisk)
iii. In this case, they said that it was an administrative search. It was NOT a criminal search,
because that is not allowed. The school did not need to obtain a warrant, but it cannot
do criminal search and turn them in. They said that this was for rehabilitation and to
serve the school.
k. Safford Unified School District #1 v. Redding, 129 S.Ct. 2633 (2009)—
i. Another student's statement that forbidden prescription and over-the-counter drugs
came from the student was sufficiently plausible to warrant suspicion that the student
was involved in pill distribution. This suspicion was enough to justify a search of the
student's backpack and outer clothing. The judgment was affirmed as to the holding
that the strip search of the student was unjustified.
l. Gideon v. Wainwright, 372 US 335—
i. The court held (1) the Sixth Amendment guarantees the accused the right to the
assistance of counsel in all criminal prosecutions, (2) the court had construed the Sixth
Amendment to require federal courts to provide counsel for defendants unable to
employ counsel unless the right was competently and intelligently waived, (3) the court
looked to the fundamental nature of the Bill of Rights guarantees to decide whether the
Fourteenth Amendment made them obligatory on the states, (4) the Sixth Amendment's
guarantee of counsel is one of the fundamental and essential rights made obligatory
upon the states by the Fourteenth Amendment, and (5) Betts v. Brady, 316 U.S. 455
(1942), was overruled.
IV. Miranda v. Arizona, 384 US 436 (1966)— When an individual was taken into custody and
subjected to questioning, the U.S. Const. amend. V privilege against self-incrimination was
jeopardized. To protect the privilege, procedural safeguards were required. A defendant was
required to be warned before questioning that he had the right to remain silent, and that anything
he said can be used against him in a court of law. A defendant was required to be told that he had
the right to the presence of an attorney, and if he cannot afford an attorney one was to be
appointed for him prior to any questioning if he so desired. After these warnings were given, a
defendant could knowingly and intelligently waive these rights and agree to answer questions or
make a statement. Evidence obtained as a result of interrogation was not to be used against a
defendant at trial unless the prosecution demonstrated the warnings were given, and knowingly
and intelligently waived. Effective waiver required that the accused was offered counsel but
intelligently and understandingly rejected the offer. Presuming waiver from a silent record was
impermissible.

V. McNeil v. Wisconsin—. The Sixth Amendment ensures competent legal representation in courts of
law, whereas the Fifth Amendment ensures adequate counsel when confronting police. Because
the Amendments have different purposes, invoking the Sixth Amendment by retaining a public
defender does not invoke the Fifth Amendment when speaking with the police about an unrelated
criminal charge

VI. Texas v. Cobb, 532 U.S. 162 (2001)— The United States Supreme Court held that, regardless of
whether the murder charge was closely related factually to the burglary offense, the right to
counsel was offense specific. Since the two offenses required different elements of proof, they
were separate offenses, and prosecution was not initiated on the murder offense at the time of the
interrogation. Respondent thus had no right to the presence of his previously appointed counsel
during the interrogation concerning the murder charge, and the confession resulting from that
interrogation was admissible.

Bodily Extractons – Due Process and Selective Incorporation

a. Ordered Liberty (dist. Fed and State due process ) – Rochan
i. FACTS – whether or not they had a search warrant is irrelevant. Cop choked him when
he swallowed the morphine trying to hide. Got himt o throw it up and said it was
possession
ii. HELD – So shocking to his conscience that it Violates Due Process. Court is using
“equity rules” so not too helpful. Court has trouble distinguishing 5th and 14th due
process
1. Early on court’s view is the application of Ordered Liberty Don’t incorporate
into the 14th, just look at the provision and determine if it is an orderly system of
due process.
iii. Officer’s conduct violated 14th due process b/c it offends a sense of justice (narrow
to beating cases) (SHOCKING TO THE CONSCIENCE – equitable relief)
iv. Due process of law convictions can’t be brought about by methods that offend a sense of
justice. and this definitely does
 b. Breithaupt v Abram - Under the Rochin test state police had leeway even when the body of
the accused was invaded
i. FACTS: Blood sample was taken from unconscious person in fatal accident to affirma
manslaughter conviction
ii. HOLDING: Manslaghter upheld on the test b/c interests of society in the scientific
determination of intox is greated than the slight intrusion
c. Schmerber v CA Affirm the conviction for DUI from a blood sample taken from injured
person
i. REASON: (1) extraction didn’t offend that sense of justice (2) privilege against self
incrim protects an accused only from being compelled to testify against himself (3)
there was probable cause for arrest (4) officer reasonably thought it was an emergency
where delay threatened the destruction of evidence
ii. Difference from Briethaupt – violating 5th amendment self incrimination turn eth 5th
amendment upside down. (any samples self incrimination)
d. Shocks the Conscience test and Deprive LIFE – Sacramento v Lewis = police officer didn’t
violate subs. due process when…
i. Lewis is just getting of the bike when officer hits the back of the bike and kid dies
(following too close in a chase)
ii. REASON:
1. What is Shock the Conscience? Some say gross negligence others say reckless
disregard.
2. This case DOES NOT shock our conscience (Rochan doesn’t apply)…B/C it
wasn’t eh officer’s INTENT to violate the rights of the kid. (Right Deprived is
of LIFE)
3. 4th Amendment Can’t use excessive force when making an arrest– Did the
officer use excessive force? (Overcomes notion of actual intent)
iii. HELD: Only a purpose to cause harm unrelated to the legitimate object of arrest
will satisfy the element of arbitrary conduct shocking to the conscience (Equitiable
view), necessary for a due process violation

NON-CRIMINAL PROCEDURAL DUE PROCESS

1) Introduction:
a) No interest in governmental regularity Per Se – only when life libery or property are being taken is
gov’t req. to act w/ procedural
b) Therefore, definition depends on what types of interests are “liberty” or “property”
c) Difference from Substantive Due Process – Inividual Adjudication = the right of procedural due
process only exists where the gov’t action at issue involves an individual determination,,,(if a state
imposes req. against which each ind must carefully, and subjectively be evaluated …the need for
procedural due process is triggered)
i) **Due process is not itself a protected entitlement. It stands in relation to life, liberty, and
property as a cond to be observed as the state may move to imperil one of these name interests..
2) GENERALLY – First, you must actually have the interest before it can be protected (no right in
application?)
 a) Property Interests – are measured by a legitimate claim of entitlement of the individual to be
determined by State law.
i) UNLESS a person is already enjoying a benefit he has NO procedural due process right
b) Liberty Interests – is measured more broad (like the liberty in being able to be free from slander
– latter overturned)
3) (CLASS) Requirements for Civil Due Process
a) Legislation that violates must be generalized as a rule
b) Law or rule must be known to citizen
c) Liability Prospective NOT retrospective
d) Law Has Clear Convincing and correct in serving Standards – Issuer of Law has NO discretionary
power.
e) Implementation according to terms of legislation
4) Early ‘70s Liberal Approach – Goldberg v Kellet
a) The right to continue receiving a Gov’t benefit is within the protection of the due process clause
depends on the importance of the benefit to the individual
b) Welfare recipient must be given a hearing b4 his BENEFITS may be ended. Benefits here were
a right protected by the constitution from arbitrary withdrawal
5) LATER NARROWING- After the early ‘70s (these previous cases) the court began to cut back on the
types of public benefits it deemed to create an interest in liberty or property.
6) Benefit Interest In Job Cut Back – Board of Regents v Roth
a) FACTS: Roth, a professor, was told that he would not be rehired w/o reason.
b) HOLDING: Because there was no slander (state interest) and only a unilateral expectation of
job right, neither liberty nor property interests were sufficient. (saying if there was slander it
would be intruding on liberty…PAUL v DAVIS says this won’t work either)
i) Not Liberty ; Nor Property
7) Narrowing of Liberty MORE – Paul v Davis
a) FACTS: Paul was accused of shoplifting. Police circulated letter that labeled him as one. The
charge was dropped…sues saying that state deprived his right of Liberty by the slander as secure
under 14th amend.
b) HOLDING: Interests of liberty and property in the Due Process Clause attain this
constitutional status by virtue of the fact that they have been initially recognized by STATE
LAW.
i) Here, the interest in reputation is much different
8) Property Rights of Restraining Order Holder–Castle Rock v Gonzales
a) FACTS: P got a restraining order against her husband. It stated on the back “a person violating the
order may be arrested w/o notice…and …police shall use every reasonable means to enforce this. If
police see him near her must arrest him. Or if see coming near then must get order against him”
Husband took the kids, but when complained to police a number of times they did nothing. The 3
kids were killed by him.
b) RULE: Discretion Negates Entitlement: A benefit is not a protected entitlement if the gov’t
officials may grant or deny it in their discretion.
i) PROPERTY INTEREST – no, even when the warrant is sought it still remains w/in the judges
discretion wehether to grant it…P is assured NOTHING and there is discretion of the officers
ii) EVEN IF IT WAS “MANDATORY” a property protection would not exist b/c the power to
initiate and the mere ability to requiest are 2 different things
iii) NOT PROPERTY – right ot restraining order enforced doesn’t have a monetary value and the
interest arises only incidentally out of a function that the gov’t has ALWAYS perfoirmed.
c) HOLDING: The benefit that a 3rd party may get from having someone else arrested for a crime
generally doesn’t trigger protections under Due Process, neither in its procedural or
substantive form.
9) Mix Substantive Right with Procedures – Arnett v Kennedy
 a) FACTS: Civil servant was fired and statute said that he has a right to reply to the charges. P
instituted a federal suit asserting that the discharge procedures denied him procedural due
process b/c they failed to provide for a trial.
b) HELD: Where the grant of a substantive right is inextricably intertwined with the limitations
on the procedures which are to be employed in determining that right, a litigant in the
position of P must take the bitter with the sweet (Nothing was taken from him that he had an
entitlement to, not entitled to hearing)
10)Interests Limited to Those Named in Law – Bishop v Wood (see Paul)
a) FACTS: Fired a police officer w/o a hearing…Brought suit stating he was a permanent employee.
b) REASON:
i) Property – not deprived b/c held his position at will
ii) Liberty – stretches the concept to think that liberty is deprived when losing a job
c) HELD: We limit constitutionally enforceable protected property interests to those which exist
under an explicit provision of state law or contract.
11)Modern Look at Child Molestor DB - Megan’s Law – if you are a sex predator you have been
convicted. When you were being tried did you get a hear, rep by counsel, serve time…YES. But the
offendor reg. must have you in the DB when you release.
a) The register doesn’t say anything about being currently dangerous…can’t suggest this under
Megan’s Law
b) Megan’s Law vs Supreme Court: Violate Procedural Due Process?
i) SC said not calling him anything and he isn’t entitled to anything b/c they struck any
CURRENT STATUS information
ii) YES, it stigmatizes but not a matter 4 SC, maybe state law.
c) “Law merely lists persons of a triggering crime” – only right may have is an expectation of privacy
12) Educational Due Process – Goss v Lopez - As a general rule, b4 suspension is given to a student,
there is a due process right that requires te student be given his charges and a chance to explain them.
Due process forbids arbitrary deprivation of liberty.
13) No Disciplinary Due Process – Ingraham v Wright – disciplinary spanking in school
implicates a constitutionally protected liberty interest BUT, procedural due process doesn’t
require notice and an opportunity to be heard. Tort law will compensate those whose spanking is
wrong
a) At some point, the benefit of an additional safeguard may be outweighed by the cost of having to
Hear every case
14) Property Right in Education: Board of Curators v Horowitz – Declined to ignore the historic
judgment of educators and formalize the academic dismissal process by requiring a hearing…
a) FACTS: Girl was dismissed from Med School b/c of hygiene and bad grades but claimed a “liberty
interest” in pursuing her career.
b) HELD: Assuming a liberty interest in pursuing a career (not decided) The decision to dismiss is of
the school officials. Refuse to ignore historic judgment of educators and formalize the academic
dismissal process by requiring a hearing.
i) She does not win b/c there must be a bridge from the dismissal to the constitution.
(1) Her argument is Equal Protection – But, dismissed b/c her clinic grades are failing grades
(not a people person)
(2)Since she was not a good clinician due process and judgment of the counsel at the school
was exercised in making her leave…Failing grade in clinic for a number of ok reasons.
c) Court is not going to micromanage local gov’t. She got the process afforded her by the
school. All other remarks are irrelevant.

I. Fundamental Rights Analysis

a. Identify a Fundament right
b. Identify the Source of Constitutional Protection
 c. Subject state purpose for regulation or restricting this right to security

I. Introduction to the Right to Privacy

a. The right of privacy has been recognized as a fundamental for substantive due process. It
derives from the Bill of Rights guarantees, which collectively create penumbra
i. Including: marriage, childbearing, and child rearing. “Does it fall within the areas of
marriage, child-bearing, or child-rearing” If not – then most likely not fundamental.
ii. Its infringement is suspect and calls for strict scrutiny. A sate can still encroach on a
fundamental right as long as there is a COMPELLING GOV. INTEREST, and the law is
narrowly tailored to serve that interest
b. Griswold v. Connecticut (1966)
i. Facts: A Conn. statute forbid using, distributing, or counseling about contraceptives.
Griswold was convicted of counseling married persons in the use of contraceptives.
ii. This is the first modern-era case where a substantive due process-like approach was
used to protect a fundamental right.
iii. The court reasoned that there exists in the Bill of Rights a ‘penumbral’ right of
privacy, stemming from the 1st, 3d, 4th, 5th, 9th amendments. This right of privacy,
the court reasoned, extended to the bedroom of a married couple.
c. 4 Principles of the Prenumbral Right to Privacy
i. Right to be free from unwanted government intrusion into matters fundamentally
affecting a person
a. (EX Vaccinations – religion – there is a compelling government interest b/c
plague will come(note the compelling interest must be found b/c this right is
present))
ii. Those rights w/o which specific rights would be less secure. These rights are
needed to implement specific rights
b. (EX Right to receive information even if it is porno - illegal)
iii. Those rights whose existence is necessary to make express guarantees meaningful
c. Self incrimination
d. (5th amendment – making Miranda held)
iv. Making express guarantees fully operative giving them life and specific rights
e. (5th Amend – Substantive Due Process)
f. Government has right to tell you what your rights are
v. Valid Government Interests - Examples
g. Sterilization
h. Obscenity - this is permitted (Porno(sex) obscenity) in some forms is not)
i. Seatbelts and Helmets – protect us from ourselves Bank Accounts – no
secrecy in the account
j. Terrorism and Nat. Sec. (Government self preservation)
1. The penumbral guarantee is found in the due process clause in the 14th
and 15th amendment. Government can invade the right where these so
some compelling governmental interested
d. Griswold applied to Unmarried Couples - Eisenstadt v Baird - Invalidated a statute that
by allowing contraceptives to be distributed only by registered physicians and only to
married people…discriminated against the unmarried. Also there was NO GOV
PURPOSE
e. Contraception to Minors - Carey v Population Services Intern
i. A complete ban to minors of non-prescription sales of contraceptives violated right to
privacy (reasons split)
 ii. It doesn’t serve any significant state interest that isn’t present in the case of an
adult and therefore was invalid in the same way. The Constitutionality of blanket
prohibition of the distribution of contraceptive to a minor is fortiori foreclosed

SUBSTANTIVE DUE PROCESS - ABORTIONS

i. Can’t Ban All Abortions – Roe v Wade – held that a woman’s right to privacy is a fundamental
right under the 14th and therefore the legislature only has a limited right to regulate.
1. FACTS: Roe, was brutally gang raped and now pregnant, does not want to carry to full term.
Asks the doctor to perform an abortion, he joined the case but was kicked out b/c he had no
standing. TX law makes procuring an abortion a crime except by medical advice for the
purpose of saving the life of the mother.
2. RULE: WHERE CERTAIN FUNDAMENTAL RIGHTS ARE INVOVLED REGULATION LIMITING
THESE RIGHTS MAY BE JUSTIFIED ONLY BY A “COMPELLING STATE INTEREST”
3. REASON/HOLDING:
a. Generally – At a point in pregnancy, the states interest in health and safety DO become
compelling. The state interest in health of mother is “compelling” at the end of the 1 st
trimester. The state interest in potential life is “compelling” when the fetus can
survive outside womb.
b. First Trimester – a state may not ban or even closely regulate abortions – the
decision is left to woman and physician
i. Mortality rates for mothers having abortions here is lower than full term,
therefore state has no interest.
ii. **After this point the interest in the fetus becomes compelling allowing more
influence of the State
c. Second Trimetser – a state may protect its interest in the mother’s health by
regulating the abortion in ways that are “reasonably related” to her health.
i. A flat ban on 2nd trimester abortions isn’t permitted.
d. Third Trimester – At this time the fetus is viable (capable of meaningful life
outside the mother’s womb.”
i. Therefore, the state HAS a compelling interest in protecting the fetus. It may
regulate or proscribe abortion. But still be permitted to preserve the life of the
mother.
4. HOLDING: No complete ban allowed. Woman’s interest in deciding abortion for herself is a
fundamental interest which could be outweighed if (1) there was a compelling state
interest” AND (2) the state statute was narrowly drawn to address that interest
5. NOTE: Once you look at viability fetus the government has rationality standard and woman
has compelling interest…If you determine life at conception government has compelling int
std (Higher)
6. Questions:
a. Want to begin by defining the word born
b. Define tissue, under the federal law tissue means unborn
7. What is Compelling State Interest? It is an overwhelming interest to protect a person
place or thing classification
a. Who has the greater right to protection, fetus or mother? If the thing has NO voice, the
only voice it can have is the court (court rejects that it is a higher compelling interest
in expectation of privacy in woman in non-viable arena, once it becomes viable her
rights are diminished and fetuses rights are brought up)
8. Griswold 5 things to consider when dealing w/this type of legislation
a. Family
b. Marriage
c. Motherhood
 d. Procreation
e. Childbearing
ii. Roe’s Companion Case – Doe v Bolton: Sustained a GA provision that allowed doc to perform
abortion when based on his best clinical judgment that an abortion is necessary. Court won’t
restrict doc to only a limited number of situations
iii. Post-Roe Decisions: Public Funding Abortions
1. The Roe decision said that woman’s choice of whether to procure an abortion…not followed
for public-funded
2. SUMMARY – Gov may refuse to fund abortion in both non-therapeutic and medically
necessary cases.
3. Funding of Non-Therapeutic Abortions: Maher v Roe
a. FACTS: CN statute refusing Medicaid financing for non-therapeutic abortions
b. States may refuse to provide Medicaid funding for non-therapeutic abortions even
though it gave Medicaid financing for the expenses of ordinary childbirth.
i. Interpret Roe: Women don’t have a fundamental right to abortion…They have
a fundamental right to be free of unduly burdensome interference with her
freedom to decide
c. No Entitlement: Poverty isn’t a suspect class; therefore they can do what they want.
Therefore, it isn’t under equal protections..

Physician-Assisted Suicide
a. Washington v. Glucksberg, 521 U.S. 702 (1997)- WA prohibitions against causing or aiding a suicide.
Physicians challenge the law b/c they want to assist terminally ill, suffering patients in ending their
lives. They argue that it violates the 14th amendment b/c the liberty interest protected by the 14th
extends to the personal choice of a mentally competent, terminally ill adult to commit physician
assisted suicide. Majority (Rehnquist) held the prohibition doesn’t violate the 14 th Amendment.
a. Substantive due process analysis – Not a fundamental right
i. Glucksberg test - that a fundamental right be carefully described and that there be
objective evidence the right is deeply rooted in our nation's history and tradition.
1. There is a consistent and almost universal tradition in rejecting this right. Also,
almost every state has a prohibition against this.
2. The requirements of the Glucksberg test reflect an effort to ensure that the Court is
enforcing the kind of genuine social consensus that is required for provisions that
actually make it into the text of the Constitution. The test assures that rights
protected by substantive due process have long standing and overwhelming
support.
b. Standard of scrutiny - rational basis test
i. Rationally related to legitimate governmental interests. Court holds that the ban implicates
a number of state interests, which all are rationally related to the ban:
1. Preservation of human life
2. Protecting life
3. Suicide as a public-health problem - b/c the wish to commit suicide is often caused by
depression or mental illness, which may be difficult to diagnose, allowing physician-
assisted suicide would make it more difficult for the State to protect depressed or
mentally ill people from suicidal impulses.
4. Protecting the integrity and ethics of the medical profession - physician-assisted suicide
contradicts the physicians role as a healer.
5. Protecting vulnerable groups (poor, elderly, disabled) from abuse, neglect or mistakes -
protects people from coercion, prejudice, negative and inaccurate stereotypes, and
societal indifference, which might encourage them to end their lives
 6. Fear that this will lead to involuntary euthanasia - recognizing one due process right
might lead to recognizing the next.

The Autonomy of Private Sexual Choices

a. Bowers v. Hardwick, 478 U.S. 186 (1986) – statute criminalized sodomy. Δ violated statute by
having sex with another adult male in the bedroom of his home. Δ challenges the statute. The
Majority (White) held there is no fundamental right to consensual homosexual sodomy
a. Fundamental right - those fundamental liberties that are implicit in the concept of
ordered liberty such that neither liberty nor justice would exist if they were
sacrificed; those liberties that are deeply rooted in this Nation's history and
tradition.
b. (Defining the fundamental right narrowly) Neither of these formulations would extend a
fundamental right to homosexuals to engage in acts of consensual sodomy.
c. Bans on this have ancient roots - always has been criminalized.
d. Since it is not Fundamental- Rationale Basis needs to be met – Constitutional. Although
the law's only basis is that homosexual sodomy is immoral and unacceptable, the court
says that laws are constantly based on notions of morality.
b. The Level of Generality in Defining Rights
ii. In asking whether a particular right forms part of a traditional liberty, it is crucial to define
the liberty at a high enough level of generality to permit unconventional variants to claim
protection along with mainstream versions of protected conduct. The proper question is not
whether homosexual sodomy is a protected right, but whether private, consensual, adult
sexual acts partake of traditionally revered liberties of intimate association and individual
autonomy.
B. Bowers Overturned – Lawrence v Texas
i. FACTS – Police entered petitioner’s apt and saw him and another man having sex. Charged
with deviate sexual intercourse with law that said can’t have butt sex.
ii. ISSUE: Whether the gov’t may define the personal relationship and define the boundaries of an
institution the law is bound to protect
iii. HOLDING: NO. Texas statute against sodomy violated the Ds substantive due process
rights and Bowers is therefore wrongly decided
a.The Ds are entitled to respect for their private lives. The state can’t demean their existence by
making their private sex conduct a crime. The right to liberty under Due Proces gives them the
FULL RIGHT to egage in this conduct
b. The Texas Statute Furtheres NO legitimate state interest
1. NOTE – RATIONAL BASIS OF REVIEW – court did NOT find homosexual right as
being fundamental interest. But even under this lower std the statute should be
eliminated.
c. Emerging recognition of liberty interest in sex liberty giving substantial protection to
personal sex life decisions
iv. What is the liberty interest at stake? If there is one, the gov’t must come up with a
compelling interest. There is one.
a.Liberty – to form a personal relationship – yes
v. (Burden of Review)Protection of liberty in Roe – what Roe did was change the burden on
the state…if there is fundamental significance to liberty of a person there better be a
compelling (changed to significant in Casey) reason?
a.The law can’t survive compelling test…strict scrutiny test
vi. Strict Scrutiny is an equal protection burden applied to a liberty Substantive Due Process
context.
vii. Equal Protection Levels of Scrutiny
 1.(1) Invidious Discrimination – race based – gov’t has compelling burden to demonstrate
why not violation
2.(2) Non-Race discrimination Matters – Strict Scrutiny – state must come up with some
reason why they are discriminating and court determines validity
3.(3) Rationality – limited equal protection rights (employee?)

SUBSTANTIVE DUE PROCESS – CRUEL AND UNUSUAL PUNISHMENT

1. Introduction:
a. Cruel and Unusual Punishment – Define
i. Punishment can’t be shocking to civilized society
ii. Look at whether the crime is proportional to the act. If it was proportional it isn’t cruel
and unusual
iii. Doctrine of Proportionality – Does the crime fit the intent of the legislature? If they
have gone too far, then court determines it.
(a) Ex – put guy in prison fro bouncing a check (should have gotten 5 years) but since he
was recidivist he got life in prison…SC said disproportionate b/c punishment doesn’t fit
bad check crime…If legislature didn’t intend severe punishment can’t
2. ) Close Scrutiny of Death Penalty as Cruel and Unusual Punishment – Furman v Georgia
a. FACTS – At stake are all the death people that have been siting on death roe
b.HELD – The imposition and carrying out of the death penalty under the current
arbitrarily and randomly administered system constitutes “cruel and unusual”
punishment in violation of the 8th and 14th amendments. (A more specific system must be
imposed that takes both the circumstances of the crime and the defendant into account)
c. PRO - Douglas: Equal Protection argument = pregnant with discrimination b/c jury brings in
their own ideas which hold
i. Only saying that death penalty is currently being used in a discriminatoy manner, NOT
that we should have no DP
d.CON - BRENNAN – Four Principles allow judicial determination of whether the
challenged punishment is cruel and unusual:
i. (1) Not so severe as to be degrading to the human dignity
ii.(2) not arbitrarily inflict a severe punishment
iii. (3) Severe punishment must not be unacceptable to contemporary society
iv. (4) severe punishment must not be excessive (unneeded)
v. *Wouldn’t hesitate to hold that death is a cruel and unusual punishment were it not for
lonstanding acceptance and use
3. Acceptance of a Reformed Death Penalty System – Gregg v GA
a. FACTS – New GA sentencing procedure (Focus jury attention on particular nature of crime
and char of ind D, must find at least 1 of 10 statutory aggravating circumstances). Here they
found 3 aggravating circumstances to convict murderer.
b.HOLDING: YES. A death penalty imposition isn’t always cruel and unusual. A statute
that takes Furman into account by making a bifurcated proceeding to determine the
particular characteristics of the crime and D permits death penalty to be imposed. Also
there should be an immediate appeal to the highest court in the state in which the
punishment is carried out
i. Use of death penalty is consistent w/ contemporary values and public attitude toward
crime THEREFORE it can’t be cruel and unusual
4. Post-Furman Consideration of Mitigating Factors in Death Penalty
a. Can’t be Limited to Just a Few – Lockett v Ohio – Struck down statute that said DP was to
be found unless one of 3 narrow mitigating factors…sentence must not be precluded from
considering as a mitigating factor ANY aspect of Ds character or record.
 b.Confirm this view – Eddings v OK – emphasized court’s commitment to considering all
mitigating factors…Here the judge didn’t allow consideration and the court vacated the
death sentence (consistency produced by simply ignoring all mitigating factors is a false
consistent)
5. Incompatible Standards? – Fairness and Discretion – Callins v Collins
a. Consistency promised in Furman and fairness promised in Lockett are mutually exclusive.
b.Any statute that could eliminate arbitrariness from death penalty would also restrict the
sentencer’s discretion to such an extent that the sentence would be unable to give full
consiteration to the unique characteristics of each D
6. Racial Bias in Death Penalty – McCleskey v Kemp
a. FACTS – Black man convicted and sentenced to death for armed robbery and murder of
white police officer. A study was done showing that Black charged w/ killing White was
4.3x more likely to get death. Said this violates 8th and Equal Protection b/c it discriminates.
(Court is assuming the validity of the study).
i. His mistake was that he didn’t demonstrate or prove that this particular jury based its
decision based on race…Must prove that race is factor in decision in any case.
b. HOLDING: The constitution doesn’t require a state to eliminate any demonstrable
disparity that correlates with a potentially irrelevant sentencing factor in order to
operate a system with capital punishment
i. Absent a showing that the GA DP system operates in an arbitrary and capricious
manner, McCleskey can’t prove a con violation by showing that other Ds may who may be
similarly situated didn’t receive the death penalty
e. Executing the Mentally Retarded and Minors – Roper and Simmons
i. FACTS – At age 17, Simmons committed murder…sentenced to death. Old Decision,
Stanford v Kentucky – upheld death penalty for juvenile offenders younger than 18
ii. HOLDING: NO. Since the holding in Stanford that it is ok, the national attitude
toward minor execution has been against it. Therefore, it should be prohibited.
iii. VIEWS CONSIDERED in REASON
1. (INTERNATIONAL) International Consensus – all against
a. Looks at these laws and says no one kills children anymore
b. Is there any reason for the court to disagree w/ the authority presented
to the court which said no child death? He is overwhelmed by the num of
amicus briefs saying no one does this
c. Anglo-American Heritage – UK was first to prohibit child DP
2. (DOMESTIC) Polls of the Nation – against it
3. (JUSTICES) Court’s own analysis of the matter – history would order against the
execution
iv. This is an evolving standard of morality worldwide and we can say that the current
standard of morality sees death penalty of children as cruel and unusual punishment.
7.