I.

Judicial Review Federal Judicial Power defined by Article III

I. Judicial Review: Courts power to review actions of other braches/levels of government and power to invalidate actions that are
repugnant to the Constitution.
a. May invalidate acts of Congress, President, state and local governments if act is repugnant Marbury v. Madison
i. All state officials including judges must apply the Constitution to all laws made pursuant thereto b/c the Const. is
the Supreme Law of the land A6/1/c2 Cooper v. Aaron
II. Federal Judicial Powerjudicial power of the US vested in one supreme court and such inferior courts Congress will establish
A3/2/c1
a. Includes cases:
i. Arising under the Constitution or Federal laws
1. Cases posing a fed. Question
ii. Of admiralty
iii. Between two or more states
iv. Between citizens of different states
v. Between a state or its citizens and a foreign country or foreign citizen.
1. No power to hear cases where both parties are residents of same state and no federal question is posed.
b. 11th Amendment- Precludes federal courts from hearing cases prosecuted against
i. A state by citizens of another state
ii. Or by citizens or subjects of any foreign state
iii. Bars suits against a state brought by its own citizens but does Not bar suits by one state against another, or by the
fed. govt against a state. Hans v. Louisiana
1. Does not apply to suits brought against political subdivisions of a state
a. counties/cities/school boards not protected
b. Does not bar federal court action to enjoin a federal officer from enforcing a state law claimed to
violate Constitution. 11th Amendment bars only suits for damages. May get injunctive relief
i. Rationale: An officer of the state is enforcing an unconst. Statute, he must do so w/out
the authority of the state, and so acts as a private individual. Ex Parte Young

III. Jurisdiction of the Supreme Court A3/2/c.2

a. Exclusive: when controversy is b/w two or more states
b. Original/Nonexclusive: Cases affecting Ambassadors, public Ministers Consuls, when a State is a party, & all
controversies b/w the US and a State.
c. Appellate: Can review all controversies involving Constitution, Federal law and treaties where Court doesnt have original
jurisdiction (including State Supreme Courts) with exceptions and under such regulations as Congress shall make
i. Court has absolute discretion, will only hear cases it grants the writ of Certiorari to. (may grant cert for cases from
highest state court available as long as there is a federal question, & all cases from federal court of appeals)
ii. State Supreme Courts: State courts alone determine state law, SCs only power over state judgments is to correct
them to the extent that they incorrectly adjudge federal rights. Review limited to federal issues.
1. Will be bound by Constitution and rulings of Court Martin v. Hunters Lessee
2. State Court Cannot refuse to hear a case b/c it has a federal question. If state court relies exclusively on
federal cases to make a decision, in the absence of a plain statement of an adequate and independent state
ground, the SC has jurisdiction.
3. Where there is an adequate and independent ground for state decision, Court will not review b/c it
would be an advisory opinion
d. Congressional Regulation: Congress can limit appellate jurisdiction to cut back on the type of cases Court can hear (but
cannot make exceptions such as remove power to hear case that discriminated against a fundamental right). Ex Parte
McCardle
i. But Cannot expand Courts power beyond Federal judicial power (such as hear a case arising solely on state
ground w/ no diversity, or require them to issue advisory opinions) and cannot eliminate/ nor subtract original
jurisdiction
ii. Inferior Courts: Congress can define & restrict these courts however it wants, can even eliminate them, can give
them full range of AIII courts judicial power but cannot give it anymore authority not enumerated in AIII.
IV. Justiciability A3/2/C1Federal courts can only hear cases that pose real & substantial disputes that affect legal rights and
obligations of parties having adverse interests. Limitations on Justiciability created by the cases & controversies doctrine.
Preclude:
a. Advisory opinions- Muskrat
i. Actual Controversy: Court will not hear cases designed to test the constitutionality of a law
ii. Can make declaratory judgment which state legal effect of proposed conduct, but cannot be hypothetical or
abstract. Those seeking must show that they have engaged in or wish to engage in specific conduct & that that the
challenged action poses a real and immediate danger to their interest. However court will not determine the
constitutionality of a statute if it has never been enforced & there s no real fear that it ever will be.
1. Florida: A4/1/(c) of Fl Constitution allows governor to ask SC questions about his constitutional duties
a. VT Courts allow stat legislatures to ask about constitutionality before passing
 b. Mootness- Cases must present a live case or controversy, an ongoing injury, at all stages of the proceedings;
i. If events after filing of lawsuit end Ps injury, case will be dismissed
1. Exceptions:
a. Wrong capable of repetition but evading review- case is moot but different person may be
injured in same way; When injuries happen over and over but duration is so short that they are
over before court can rule. Ex: roe v. wade
b. Voluntary Cessation voluntarily halts offending practice, but can resume it at any time, case
will not be dismissed as moot.
i. Ex: discriminating employer stops discriminating when file suit is filed, he could
resume it whenever.
Distinguish Ripeness & mootness: Ripeness bars consideration of claims before they have developed. Mootness bars their
consideration after they have been resolved.
c. Ripeness- Whether Court has all facts needed to decide issue, is there an actual harm?
i. If a question of pre-enforcement review (declaratory judgment) of law ask:
1. Hardship P will suffer if law enforced
a. Greater the hardship, the more likely to hear
2. Would it be better to wait until an actual question before addressing the issue.
d. Standing- P must have stake in controversy Harm need not be economic in nature can be esthetic enjoyment 4
requirements:
i. Injury: must allege & prove that she has personally been or imminently will be injured. Does not have to be
economic in nature. Harm must be individualized
ii. Causation & Redressability: P must allege & proof that was the but for cause of the injury & that a favorable
court decision is likely to remedy injury.
iii. No Third Party Standing P cannot present the claims of others.
1. Exception: 3rd party standing allowed if there is a close relationship b/w P and the injured 3rd party. (Dr.
Patient ok)
a. Injured 3rd party unlikely/unable to assert their own rights
2. Association Standing if:
a. Members would have standing in own right
b. Interest are related to organizations purpose
c. Neither claim nor relief requires participation of individual members.
iv. No Generalized Grievances: If the harm to P is no different from that suffered by a very large group of people not
before the court, not allowed. Cannot sue just b/c your a citizen or tax payer & you claim your tax dollars are
being spent by the govt for in an illegal way. Same applies to state tax payer, but not to a municipal taxpayer who
can litigate the legality of his citys spending.
1. Narrow Exception: A Tax payer has standing to sue to overturn a federal tax or spending program that
violates the Establishment Clause.
e. Political Question- The relationship b/w the judiciary and the coordinate branches of the federal govt give rise to political
questions, not their relationship to the states Look for:
i. Textually demonstrable constitutional commitment
1. If constitution assigns duty or power to a specific branch
ii. "A lack of judicially discoverable and manageable standards"
1. If there is no standard or precedent for resolving the question
iii. "The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion"
1. Court must make a policy decision it is ill-equipped to handle
iv. "The impossibility of a court's undertaking independent resolution without expressing lack of the respect due
coordinate branches of government"
1. Court would be invading the separate power of another branch
v. An unusual need for unquestioning adherence to a political decision already made"
vi. "The potentiality of embarrassment from multifarious pronouncements by various departments on one question."
1. Ex: Court shouldnt make statements about foreign policy
a. Traditional Political Questions:
i. Foreign policy and defense matters Goldwater
ii. Constitutionality of congress amending Constitution
iii. Impeachment power of Congress A1/3/C6
1. Senate shall have the sole Power to try all Impeachments exclusive power,
judicial review would be inconsistent w/ checks & balances Nixon v. US
2. Exclusion not impeachment Powell v. McCormack- A1/s5/c1 Court said
House did not have power to exclude Rep., b/c it was clear that he met the
requirements of age, residence, & citizenship.
a. He wasnt seated therefore expel does not apply. Congress can only
judge the express powers set forth in the Const. to deal with
qualifications of members. Court has the duty to interpret the
Constitution to determine the existence and scope of such power.
 iv. Partisan Gerrymandering
1. Except if racially discriminatory
v. Reapportionment is justiciable
1. Guaranty Clause cases involve a political question and thus non-justiciable.
2. Cases brought on Equal Protection are b/c issue is whether the states activity
is consistent with the federal constitution Baker v. Carr
vi. Guarantee Clause A4/S4- no criteria which court could determine whether govt is
republican- lack manageable standards by which a court could resolve the issue Luther
v Borden A2S3 of Fl has an explicit separation of power, so it is stronger than US
constitution

II. Implied Powers Congress Authority to Act

I. Congress may only act if there is express or implied authority.
a. All legislative power vested in Congress. Power to make laws & do all things necessary to enact them, such as conduct
investigations & hold hearings. A1/1
i. A1 has many specific powers, but also broad provision in A1/8/C18-to make laws necessary and proper for
executing foregoing powers.
b. No General Federal Police Power Only states can regulate health, safety or general welfare of the citizenry. I
i. Federal legislation must come from either enumerated powers express or implied
1. A1/8/C1 Congress does have the right to lay and collect taxes and provide for the general welfare
a. No independent federal power to provide for the general welfare, taxes must be to primarily raise
revenue.
II. Necessary and Proper Clauseto make laws necessary and proper for executing foregoing powers A1/8/c18
a. The clause is broadly interpreted, otherwise the government couldnt function:
i. Congress may choose any appropriate means rationally related to a legitimate end that Congress is trying to
achieve that are
ii. not prohibited by Constitution or is consistent w/ the letter and spirit of it
Congress has discretion in choosing the best means to perform its duties in the manner most beneficial to the people
1. Ex: Congress can create a national bank, even though there is nothing in Constitution that directly says
that it can.
a. Supremacy clause says its instrumentalities cannot be taxed by states. Power to tax is the power
to destroy/control. A state represents only a part of the people of the nation & cannot control the
govt of the whole country. MCulloch v. Maryland
b. Marshall : Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate
which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are
constitutional.
c. Florida: has express power to make corporations (like bank), but 10th Am. Does not say express power, and creating a bank
is convenient, useful, and essential to performing fiscal operations

III State Powers to Regulate Commerce

Look to see if states regulation is causing a burden on interstate commerce, look for conflict b/w two or more states, regulations affecting
transportation (esp. trucking) Do burden analysis even if it looks like state is not being protectionalist, b/c health & safety regulations may
be a burden too. Is state intentionally discriminating against out-of-staters? Trying to protect its own economic interest? Look for when state
is trying to control goods coming into and out of the state. Is state a Market Participant? If so Dormant commerce clause will not apply
when state is operating a factory, purchasing goods, directly engaging in commercial transactions. Remember clause applies to cities.
even if allowed under the dormant CC, may violate Article IV P&I or barred by Pre-emption
Look for law whose purpose to regulate IC, or effect controls out of state transactions; laws that discriminate against IC or burden it
bewared of economic protectionism
Is State a Market Participant? If so, Actions are treated as if it were a private party is completely exempt from the Dormant Commerce
Clause

I. Use When Congress has NOT Passed a Statute on Point

a. States may regulate local transactions even though they affect interstate commerce, subject to certain limitations.
II. Dormant Commerce ClauseImposes limitations on states ability to enact state regulation that burdens/discriminates against
interstate commerce.
a. Check to see if Congress has exercised its power under Commerce Clause by enacting federal legislation if so, any
conflicting state laws will be struck down by supremacy clause or preemption. Other wise Clause remains dormant.
b. Courts determine whether state regulations are w/in scope of state authority
i. Test to determining validity of state regulation:
1. Must pursue a legitimate state purpose
2. Rationally related that that end; and
3. Regulatory Burden on interstate commerce must be outweighed by states interest in enforcing the
regulation
 ii. Congress may consent to state action that would otherwise violate the commerce clause- but still look for equal
protection claims
c. Invalid State RegulationsLook for:
i. Restricting flow of goods into or out of state
ii. Environmental regulations
1. Cannot conserve natural resources if it impacts out of state use unless
a. No less discriminatory way to achieve same result - protectionist, closely scrutinized,
iii. Pressure out of state business to perform certain work in state
III. Analyzing a State Regulation
a. Does the law rationally relate to a legitimate state purpose:
i. What is the states interest? What is it trying to do? How great is that interest?
1. Police Power: Allows states to impose burdensome regulations to promote public health, safety & welfare
a. Cannot be used to advance states own commercial interest by limiting movement of goods in
interstate commerce.
b. Cannot suppress competition HP Hood and Sons
b. Does the law have a practical effect on regulating out of state commerce?
i. Is it discriminatory? In what way? Better means available?
1. Discriminatory on its face: Never allowed because there is almost always a less discriminatory means of
regulation Hughes v. Oklahoma (local statute w/ valid conservation purpose, yet discriminatory on its
face, not allowed b/c less discriminatory means are available)
2. Discriminatory in Application: Statutes that are facially valid can be applied in a discriminatory fashion.
Usually a nondiscriminatory alternative is available. Dean Milk v. Madison- (local statute w/ valid
purpose on its face yet discriminatory in its application not allowed if reasonable nondiscriminatory
alternatives are available with the least burden on commerce)
c. How great is the impact- does state interest outweigh the burden?
i. If Not discriminatory, validity depends on its reasonableness
1. Unreasonable--Invalid: Regulation offers little benefit for the state and places a high burden on interstate
commerce. Southern Pacific v. Az (restriction on trains actually more dangerous and big burden on
commerce.
a. Impact on other states: State cannot enact regulation that offers negligible benefit but is
nondiscriminatory if it conflicts with regulations of most other states
i. Lack of uniformity seen as an undue burden
2. ReasonableValid: Regulation that benefits the state and places a burden on interstate commerce
deemed OK until Congress regulates SC State HW Dept. v. Barnwell Bros (restriction on size of tucks
beneficial for state but big burden for commerce. Valid)
d. Taxation: can violate commerce clause if it discriminates or is unduly burdensome.
i. If applied equally to both instate and out of state goods that are brought in, ok (WA Tax case valid b/c it helps
retailers compete with out of state vendors who have no tax at all)
ii. Test: Violates if
1. Applies to an activity that lacks a substantial nexus to the taxing state
2. Is not fairly apportioned
3. Discriminates against interstate or foreign commerce or
4. Is not fairly related to services provided by the state
e. Local Issues: When dealing with extremely local issues, states are better equipped to adapt the regulation to the local
peculiarities. Cooley v. Board of Wardens (PA has the right to require pilots for ships coming into Philly)
i. National Subjects: best governed by one uniform system, requires Congressional action.
1. Look to the Nature of the Subjects of the power rather than the nature of the Power itself. Many
Subjects are National in nature, but some are Local.
2. No need for a national voice on every issue
IV. When States Can Burden Interstate CommerceState as Market Participant
a. Market Participant: When a state enters market as a participant, nothing in the Commerce Clause forbids it from favoring
its citizens at the expense of out-of-staters. Reeves v. Stake(state run cement can favor instate buyers)
i. State cannot compel privately owned companies to favor in-state residents
ii. State cannot horde a natural resource however
V. LimitationsEven if legally operating under Commerce clause, OR as a Market Participant, state cannot violate Privileges &
Imunnities clause and/or expressly conflict w/ Federal law: premption Preemption by federal law
a. Privileges and Immunities Clause: The citizens of each State shall be entitled to all privileges and immunities of citizens
in the several states A4/2 To invoke litigant must be from out of state
ARTICLE 4 P&I FOR THE SAKE OF NATIONAL UNITY Applies only for a natural person who is a non-resident If someone not
included in this group affected (corporation, alien, in-state resident, must go through EP, also can go if person suspect class.
Triggered only if state discriminates against citizens of other states with respect to fundamental right, A4 protects P&I of state citizenship.
Distinguish from 14th Amendment which protects the P&I of national citizenship.
- Right to pass through or travel in a state - Do business there- Right to take hold and dispose of property- Seeking medical services,
Commercial activities or civil liberties- Licenses are not protected
 i. Prohibits discrimination against citizens of different city/states
1. Cannot deny essential rights that are fundamental to national unity:
a. Employment, taxation, transfer of /own property, access to courts, move freely P&I extends to
statutes/ordinances that burden in-State as well as Out-of-State residents.
i. Even when acting as a Market Participant:
1. State cannot discriminate against out-of-staters in hiring Hicklin v. Orbeck
(AK conditions opening oil reserves on employment of AK citizens)
2. City cannot discriminate against people who live outside city United Building
and Construction v. Camden (only wanted to employ construction workers that
lived in town)
ii. Doesnt apply to licenses.
1. OK to charge out of stater more to hunt
ii. For statute to be upheld Court must determine:
1. Non-residents are a peculiar source of the evil sought to be avoided by the statute, and
2. That the discrimination bears a substantial relation to peculiar evil the out-of-staters represent.
a. Must show there are no less discriminatory alternatives that would better address the problem.
iii. Privileges & Immunities v. Equal Protection.
1. EP can apply to corporations and aliens, P&I cant
b. Preemption The Constitution and Laws of US Shall be the Supreme Law of the Land A VI/2/c2
i. When Federal statute is on point, no problem b/c easy to see it trumps state law
ii. When NO federal regulation specifically preempts state law, the state law may still be preempted if it conflicts w/
federal policy. 2 ways:
1. Federal occupation of a field but NO state law on Point
a. Evidence that Congress intends to occupy an entire field (nuclear regulation), preempting any
state law falling within that field. Intent can be explicit in the statute or implicit through
legislative intent
2. Congress has not fully occupied entire field What did Congress intend?
a. State law preempted to extent that it
i. Actually conflicts w/ federal law OR
ii. Objectives behind the two sets of regulations are inconsistentcannot comply w/ both
IV. The Federal Commerce Power
Remember so long as regulated activity substantially affects interstate commerce, it falls under commerce power. Is it a Commercial or Non-
commercial activity? If commercial activity that is solely intrastate may be seen to be part of a class & have a cumulative effect on interstate
commerce. Congress can ban/regulate interstate transport to deal w/ local problems. Non-commercial activities have better chance to not
substantially affect IC. Ex activities that congress cant touch (public school curriculum, make it a crime to commit a gender-based violent
crime, bans marriage under age of 18) but make sure to look for a jurisdictional hook where item at some point was in interstate commerce
Remember 10th Amendment limits Congress ability to regulate the states
I. Commerce Powerto regulate Commerceamong the several states. A1/8 Probably Congress most important power is the
power.
II. Early CasesCourt construed commerce very narrowly.
a. Commerce does not include production/manufacture
i. Commerce succeeds manufacture and is not part of it U.S. v. E.C. Knight (Sugar anti-trust case)
ii. Looked at motive of Congress, if act sought to regulate an activity and it was not directly connected to interstate
commerce, it was struck down Hammer v. Daggenhart (Child labor case)
b. Power to regulate is the power to prohibit
i. Congress could prohibit transport of an unsavory item completely The Lottery Case
c. Interstate Commerce stops at the border
i. Once goods entered the destination w/in a state, Congress had no power to regulate. Schechter Poultry
III. New Deal CasesFDR threatened Court Packing & Court construed power more broadly
a. Congress, not the courts should determine the limit of commerce power Cardozo in Helvering
b. Power to regulate activity that has a close & substantial relation to flow of commerce.
i. Congress can regulate activity that burdens or obstructs free flow of commerce, including leading to a labor
dispute NLRB v. Jones & Laughlin
ii. Incentivizing states to act a certain way is not coercion, and is constitutional
Chas Steward Machine v. Davis
iii. If activity exerts a substantial economic effect on interstate commerce, regardless of whether the effect is direct or
indirect (or local) it can be reached by Congress Wickard v.Filburn (Congress can regulate the home production of
wheat)
c. Production is part of Commerce
i. Congress can make public policy judgments & choose appropriate means for accomplishing that policy US v.
Darby(overruled Child Labor Case, regulation of hours and wages constitutional)
IV. Modern Commerce Clause
 a. Enforcement of Civil RightsCongress may prohibit racial discrimination by private businesses that accept out of state
business. Heart of Atlanta Hotel
i. Catering to interstate travelers has an affect on interstate commerce
ii. Accepting goods that travel by interstate commerce allows Congress to regulate practices of business, including
segregation. Ollies BBQ(over half of food served comes from out of state, so congress can use commerce power
to forbid racial discrimination)
iii. Rational Basis Enough: Only limitation Court put on Congress was a showing that there was a legitimate reason
for the regulation.
b. ChannelsCongress can regulate use of the channels of interstate commerce
i. Use of highways, waterways, air traffic, internet
1. Presumably Congress can do so even if activity is completely intrastate.
c. InstrumentalitiesCongress can regulate persons or things moving in interstate commerce
i. Things like cars, plants, trucks, the internet even if they never leave the state.
1. As to persons and things in Interstate commerce, Marshall said in Ogden commerce is intercourse,
Congress can reach articles moving through interstate commerce(electricity, radio waves, stock,
insurance)
d. Substantial Effect on Commerce: Congress may regulate those activities that have a substantial effect on interstate
commerceusually only extend to commercial activities
i. Doesnt matter if particular instance of activity directly affects interstate commerce, as long as the instance is part
of a general class that collectively, substantially does.
1. Intrastate activities can be regulated if theyre directly commercial.
a. Congress can regulate intrastate activities as part of a National Plan or broad scheme.
i. If not an economic activity, congress cannot regulate on basis that it has a national
impact
V. Restricting Commerce PowerNo longer enough that Congress has a rational reason for implementing regulation. Court will
decide if regulation is valid. US v. Lopez(school violence act)
a. Little Deference shown to Congress
i. Court doesnt care if Congress believed activity has substantial effect on interstate commerce.
b. Must be some kind of Commercial Activity non commercial activities need some sort of obvious connection between
activity and commerce Lopez and Morrison
c. Regulated Activity Traditionally Been in Domain of the Statesif states have expertise in a given area, Court less likely
to let Congress use Commerce power
i. Watch for areas involving: education, family law, and general criminal law
1. But Need for a National Solution can outweigh traditional policy.
a. Ex: Where a states choice greatly affects other states, regulation of environment, drug trafficking
2. Watch for Jurisdictional Hook: when congressional act applies only to particular activities EACH of
which has a direct link to interstate commerce Then statute valid
d. Once activity determined to substantially affect commerceeven if wholly intrastatecongressional regulation needs
only to be rationally related to be valid
VI. Constitutional Limitation on Congress PowerThe powers not granted to the US or not prohibited to the states are reserved to
the states respectively, or to the people. 10th Amendment
a. Generally-applicable law: If Congress passes a generally applicable law, doesnt matter if regulation affects the states, , no
10th Amendment violation
i. If regulation would be valid if applied to a private party, its valid as to the state. Garcia v San Antonio Transit
(Congress can pass minimum wage and over-time provisions, which are applicable to all businesses of a certain
size. The structure of the const. gives Congress the power to regulate individuals, but not states)
b. Congress cannot compel state authorities to act on behalf of Federal government Printz v US(Tried to say states have
to do background checks before selling guns, court struck down.)
c. Congress can induce states to take actioncan grant money on condition of certain state action. But cannot directly
compel states to enact & enforce a federal regulatory program. Fed. govt can exercise its authority directly over
individuals rather than over states. Congress can create incentives by i) attaching conditions to the receipt of fed. funds and
ii) offering states the option of regulating private activity in interstate commerce according to fed. standards or having state
law preempted by fed. regulation. No matter how great the fed. interest, Congress cannot require states to regulate an
industry in a particular matter. Such a practice would be fundamentally incompatible w/ the constitutional system of dual
sovereignty.
i. Conditions valid so long as they are express and related to the program A1/8
VII. Other Ways for Congress to regulate activity
* On Test if Congress is regulating, it is not enough that it is doing so for the general welfare; must be regulating pursuant to some other
enumerated power (commerce or civil war amendments) Can only tax & spend for the general welfare as long as revenue is made & its
regulatory scheme seems rationally related to the collection of the tax itself
a. Taxing Power: Congress has power to lay and collect taxes A1/8/C1
 i. Exclusive to Congress and can be used to reach conduct that goes beyond other sources of congressional power
like the Commerce Clause.
ii. Under Taxing Power, Congress can:
1. Regulate through taxationtarget disfavored activity and tax to kill it.
a. The test for validity is whether the tax actually generates revenue, if it does, it is valid.
i. If the tax is strictly regulatory, no real revenue created, then it will be struck down.
2. Limits on Taxing Power
a. Direct Taxes A1/s9 One imposed directly against the property such as real property tax. must
be allocated among the states in proportion to the population.
b. Indirect Taxes A1/s8 One imposed for the privilege of doing business, such as a license tax,
or performing some act such as a sales tax, is generally enacted from a person other than the one
who is ultimately to bear the tax burden. Custom duties & excise taxes must be uniform
throughout the US. Ex: Congress may not put a $.10 per gallon excise tax on gas in NJ, and a
$.15 in OK.
c. No Export taxes Congress may not tax any exports from any state.
VIII. When a tax is not supported under some other specific const. power, its validity depends on whether it is intended as a revenue-
raising measure. Congress may impose excise taxes on things of value even if it results in incidental restraint or regulation. The
MOTIVE of Congress is important. Court looks at the taxing statute to see its purpose, its intended effect, & its effect in normal
operation (looks at it on its face). If the true purpose is to raise revenue, then tax is valid despite its indirect effect of regulation. But
if it is clearly regulatory in purpose and effect, its revenue raising effects are merely incidental.

a. Spending Power: pay the debts and provide for the common defense & general welfare of the US. A1/8/C1
i. Congress can spend to achieve a purely local benefit even one if it couldnt achieve by regulating under the
Commerce Power.
1. Congress may place conditions upon the use of its spending, even if its for the purpose to regulate.
Conditions usually justified by the N&P clause.
b. General Welfare Clause: only describes the circumstances under which Congress may use its taxing and spending power.
Is connected with its taxing & spending power. Clause can only be invoked when there is spending of money appropriated
by Congress. Congress must tax for revenue & not merely regulatory purposes, & it must spend for the general welfare.
i. Is not an independent source of congressional power, no statute is valid just b/c Congress is trying to promote the
General Welfare.
ii. If congress is regulating, rather than taxing and spending, it must go through a specific grant of power such as the
Commerce Clause.
1. Regulation of agricultural production is not a power granted to Congress; therefore left to the states.
Scheme cannot be under disguise of voluntary if in reality it involves purchasing with federal funds,
submission to federal regulation of a subject reserved to the states.
2. Congress may reduce private employers federal tax obligations by giving credit to payments only made
to federally approved state plans. As long as spending was for the general welfare
V. The President and Congress
I. The President: holds the executive power to carry out the laws made by Congress.
a. President cannot make laws, only carry out laws made by Congress.
i. It is his obligation to make sure the laws are faithfully executed
b. Congress can delegate some of its powers to executive (federal agencies
c. Wields broad powers as Commander in Chief of the armed forces, he directs and leads our armed forces.
i. Only Congress can Declare WarPresident can commit forces for an attack but cannot engage in a long-term
engagement w/out congressional declaration of war. A2/2/C1
1. President has 60 days to remove troops unless Congress declares war
a. President can ask for additional 30 days War Powers Act of 1970
d. Shall take care that the laws be faithfully executedkind of Presidential N&P clause
i. So long as the Presidents action is reasonably related to carrying out the laws made by Congress, Court uphold act
even if its not an enumerated power.
ii. Can issue an executive order to carry out the law, but cannot make a law.
II. Foreign Affairs PowerHe shall receive ambassadors and other public ministers A2/3gives him this power to control
foreign policy, power also implied from the nations need to speak with a single voice in foreign affairs (US v. Pink)
a. Congress can delegate legislative-type powers to President in realm of foreign affairs US v. Curtiss Wright(Congress has
authority to regulate commerce b/w foreign nations, but can delegate this power)
b. Presidents power to conduct foreign affairs nearly absolute
i. When president makes a decision in matters of foreign affairs, the supremacy clause is invoked
1. Cannot use foreign power to act domesticallyCongress must give him the power, even in an
emergency situation. Congress can give President power to do anything, very broad Youngstown
Sheet(Truman nationalized steel mills during Korea)
 ii. President can take property w/out 5th Am. due process so long as he is acting pursuant to foreign affairs Dames
and Moore v. Regan(Seize assets placed in escrow during lawsuit)
c. Look For: President acting in foreign affairs capacity or if it is a sham, we dont have an example of a sham.
i. Never has Presidents use of troops in a foreign country been declared unconstitutional
III. Treaties and Executive Agreements He shall have the powerto make treaties provided 2/3s of Senators present concur..
A2/2/C1
a. Executive Agreement: Does not have to be ratified by Senate - Cant override a prior act of Congress, but is superior to
state law can be used to address the same subject matters as would a treaty. EA valid so long as it does not violate the
constitutions guarantees of individual rights American Insurance Association v. Garamendi
b. Treaty: To be effective, must be ratified by 2/3 of Senators present
i. Because of supremacy clause, President and Senate can make laws that Congress would not have the power to
make. Missouri v. Holland migratory birds
ii. Most recent act/treaty trumps the preceding one, does not mean it abolishes previous treaty, just sets it aside,
b/c a treaty & a fed. Statute are on the same footing. Treaty has equal authority with statutes. Both Supreme law
of the land. However, Treaty is inferior to the Constitution. Valid treaty preempts state law.
1. If most recent treaty repealed, displaced treaty is good again Whitney v. Robertson
iii. Presidents decisions to repeal treaties are political questions not subject to
judicial review Goldwater v. Carter
IV. Veto Power Every Bill shallbe presented to the President. If he approve shall sign it, if not, he shall return itif it be approved
by 2/3s of each house, shall be law A1/7/C2
V. Beware of Congresss attempt to keep oversight over administrative process
a. President may veto any law passed by both houses, though this may be overridden by 2/3 majority of each House. If the
President doesnt veto the bill within 10 days
b. Pocket Veto: If President keeps bill for 10 days (excluding Sundays) w/o action, it becomes law.
Legislative Veto: Unconstitutional. Violates both the separation of powers and bicameralism. A1/S7/c2 (Congress attempts to
overturn Executive action w/out bicameralism (passage of both houses) and/or w/out Presentment (giving President opportunity to
sign or veto) - unconstitutional INS v. Chadha) (note: may severe the legislative veto from the rest of the law if congress passed law
without retaining the veto- but this is unlikely) President must be given opportunity to veto!
Applies only to legislative action on part of congress, include those whose purpose and effect of altering the legal rights, duties,
and relations of personsoutside the legislative branch
A Joint Resolution requires approval by the House, Senate & President
i. Anytime Congress takes actioneven for administrative purposesit must be passed by both Houses of Congress
and presented to the President
1. Even if it is a Joint Resolution, must still be signed by the President
c. Line Item Veto: A1/S7 attempt to strike out certain provisions of a proposed law. Unconstitutional,
i. President must sign or veto the bill in its entirety. Clinton v. NY
VI. Executive PrivilegeNot express in Constitution
a. Protects presidential papers & conversations, but such privilege must yield to important needs of information. US v. Nixon
(Nixon invoked executive privilege to keep tapes secret, but privilege is not absolute; need for evidence in a criminal trial
outweighs executive privilege)
b. Deference given to president in production of documents,
i. No general immunity: Judge can look at evidence in-camera, when not related to military, national security, court
balances whether countrys needs qualify the immunity
c. Absolute civil immunity for Official Actionsanything done while in office Nixon v. Fitzgerald President is absolutely
immune to civil suits for official acts done while in office (official actions). Criminal Immunity- generally no, but
impeachment may bar
i. Immunity does not extend to criminal liability but impeachment may bar
d. No immunity for un-official actswhen acting as private citizen or actions that took place prior to taking office Jones v.
Clinton
e. Qualified Immunity: Extends to all other Federal Officials in carrying out their official acts.
i. Disappears if officer acts intentionally or negligently in violating fundamental rights Harlow v Fitzgerald only
qualified immunity for presidents chief aids, so that only incompetents get punished.
VII. Appointment Power- A2/2/C2 Appointment of Officers He shall nominateand with advice and consent of the Senate appoint
[principal federal officers] and all other Officers whose appointments not herein provided for
a. Principal Federal Officers (high-level): President, not Congress, may appoint federal officers.
i. Cabinet members, federal judges, ambassadors, and people essential to the implementation of the presidents
policies and whom he owes some loyalty)
1. Senate must approve appointments by a majority vote
Inferior Federal Officers- Eeveryone else- Congress can allow President, judicial branch, or heads of departments (i.e. cabinet
members) to appoint federal inferior officers.
 b. Keys to see if an independent counsel is an inferior officer 1) limited to performing specific duties, 2) May be removed by a
higher executive branch official 3) No policy-making authority, must comply with Head of Dept., Inferior if these apply.
Morrison v
i. Who is an inferior officer: If all met, inferior Morrison v Olson
1. Limited to performing specific duties
2. May be removed by a higher executive branch official
3. No policy-making authority.
c. Congress cannot give appointment power to itself or its officers. Violates separation of Powers Bowsher v. Synar
(Congress cant assign Comptroller General function of deciding what budget items can be cut because they have the power
to remove him)
VIII. Removal of Officers: President alone has power to remove federal executive officers, can even do so without cause.
a. Congress cannot remove any executive officer,
i. Can limit removal power of President if:
1. Its an office where independence of the President is desirable
a. Ex: President cant fire independent special prosecutor)
2. If Congress specifies a term of office and then provides that removal is allowable only for good cause.
b. Impeachment: House of Representatives shall have the Sole Power of Impeachment A1/2/C5 The Senate shall have
the sole Power to try all Impeachments A1/3/C6
i. Congress may remove any executive officer by Impeachment (President, VP, Cabinet members, federal judges)
ii. House must vote by a majority to impeach (indictment), then Sentate conducts the trial which requires 2/3 vote of
the Senators present to convict.
1. Conviction can be for Treason, Bribery, & other high crimes and misdemeanors.
iii. Federal Judges: The judges, both of the supreme and inferior Courts shall hold their offices during good
behavior A3/2/C1
1. Cannot be removed by either Congress or the President, unless by Impeachment.
2. Non-Article III judges: Not protected by Life-Tenure.
IX. Congressional Power over Aliens- To establish an uniform rule of naturalizationA1/S8/C4
a. Congress power over immigration is more complete than any other
i. Has plenary power over admission, exclusion, and deportation of aliens
b. Courts may not impose due process standards on congressional policies relating to alien deportation (same goes for 1 st Am
or ex post facto laws) Galvan v. Press(deported b/c was a communist before it was outlawed) Fiallio v. Bell( Congress can
discriminate against unwed fathers in immigration)
c. Congress power to exclude aliens is broad. Non-resident Aliens have no right to enter the US and can be refused entry b/c
of their political beliefs Kleindiest v. Mandel. Resident Aliens are entitled to notice &hearing before they can be deported
X. Congressional Power over CitizenshipGoverned by 14th Amendment
a. Congress cannot strip a native born or naturalized citizen of citizen Afroyim v. Rusk (Citizen must clearly renounce it,
intent must be shown by a preponderance of evidence)
b. Congress can revoke citizenship of any person who have retained citizenship in other way than being born here or being
naturalized
i. Can place conditions on citizenship of non-14th Am. citizen (not born or naturalized), but cannot be unreasonable
or arbitrary. Rogers v. Bellei (based on a residency requirement) Alien/illegal or not working/living
ii. A person born in another country to US citizen does not have a constitutional right to become a US citizen.
Congress can grant citizenship to children born abroad condition on their return to live in the US within a specified
period of time or for a specified # of years. If fails to return may lose his grant of citizenship b/c he failed to meet
the staturory condition.
c. Exclusion of Aliens: Congress can exclude aliens altogether or make conditions upon which they may enter or remain in
the country.
i. Federal classifications based on alienage are NOT subject to strict Equal Protection scrutiny
1. Aliens are not entitled to all advantages of citizenship, Congress has broad power over naturalization and
immigration.
XI. Congressional Privilege-- Speech and Debate Clause Protects members of Congress For any speech or debate in either house,
shall not be questioned in any other place A1/6/c1
a. Gives members of Congress complete immunity so long as acting pursuant to legislative prcocess
b. Protects from
i. Civil/criminal suits relating to legislative actionseven when they act w/ malice
ii. Grand jury investigations based on actions
1. Extends to aids and assistants of Congress if their conduct would have been privileged if a member of
Congress would have done it.
c. Evidence of legislative acts may not be used against congressman in criminal proceedings, but promises for certain actions
are not protected, its just the actual act US v. Helstoski
d. Does not extend to republication of defamatory statements outside of members of Congress. Hutchinson v. Proxmire,
(Golden Fleece)
 XII. Congressional Term Limits
a. State may not impose term limits in addition to those provided in the Constitution,
i. 10th Am. doesnt apply because states never had this power US Term Limits v. Thorton
Further notes on Separation of Powers
President cannot make laws, only carry out laws made by congress.
Congress can delegate some of its powers to executive (federal agencies). Can delegate its power so long as the person or body
receiving it is directed to conform to an intelligible principle set forth by Congress. Congress can create an independent judicial
commission to establish sentencing guidelines that are binding on the federal courts. The commission was located within the
judicial branch but did not exercise judicial power. So long as Congress has not vested in the Commission powers that are i)more
appropriately performed by the other branches or ii) that undermine the integrity of the judiciary.
Impeachment House ImpeachA1S2c5, Senate trial A1S3c6
Federal judges cannot be removed by congress or President, except through impeachment (non=A3, administrative judges can be
removed)
Only Congress A1S8c11, not the President, can declare war- can commit troops, but no long-term engagement
Congress has no A1 Power to delegate its lawmaking powers to state legislatures

VI. DUE PROCESSLook for Govt taking away interest in Life, Liberty or Property
Substantive DP requires that laws will be reasonable & not arbitrary. EP guarantees that similarly situated persons will be treated
alike. Both require court to review the substance of the law, rather than procedure
-If law limits the liberty of ALL persons its a DP question. If law treats person/class differently, its an EP problem
14th Amendment requires STATE action (by state, local govt, govt officer, or private individual whose behavior meets the requirements
In any fact pattern where an individual or company is not permitted to do something, be alert for due process violation. Is the issue a
substantive or procedural one? For substantive: is the right at issue fundamental or not? F = right to marry,bear/raise children, decline
unwanted medical treatment, right to dress and personal appearance,. Strict scrutiny, state bears the burden. Non-F= economic regulation
and social welfare regulation (most health, safety)
Right to DP only when the govt acts to deprive an individual of L,L,orP. No right to individualized adjudification when the govt acts
generally, resulting in a burden.
I. Generally: Rights guaranteed by the Constitution protect only against government action not acts by private individuals
Exception: 13th Amendment which applies to private acts as well.
a. Incorporation: Bill of Rights does not directly apply to the states, but does through
i. 14th Amendment: Due Process Clause has been interpreted to incorporate nearly all of the BOR guarantees, prohibits
state (not the fed. Govt or private persons) from depriving Life, Liberty, or Property w/out DP & EP of law
1. Incorporated:
a. 1st Protections of religion, speech, assembly, free exercise, and nonestablishment of religion and
petition
b. 4th Am provisions regarding arrest, unreasonable search & seizure
c. 5th Am protections against double jeopardy, self incrimination, and bar on taking property
without just compensation
d. 6th Am speedy & public trial by impartial jury, notice & right of confrontation, compulsory
process, & right to legal counsel in all serious criminal proceedings
e. 8th AM prohibition cruel and unusual punishment, excessive bail
f. Additional Rights:
i. Criminal trial proof beyond a reasonable doubt
ii. Right to Privacy
2. Not Incorporated:
a. 2nd right to bear arms
b. 3rd protection from quartering troops
c. 5th right to grand jury indictment in criminal cases
d. 7th right to jury trial in civil cases
e. 8th protection against excessive fines

II. Substantive Due Process: A firm limit on power of states to regulate certain areas of human life. Comes mainly from the
interpretation of liberty
Determines whether the substance of state law or action can constitutionally take away a persons Life, Liberty, or Property. Looks to whether
there is sufficient justification for what the govt is doing. By substantive review we mean the judicial determination what the substance of
a law or governmental action is compatible with the constitution. The court is concerned w/ the constitutionality of the underlying rule rather
than with the fairness of the process by which the government applies the rule to an individual.
-A state may strictly control retail prices, even if such control inhibits the use of private property and making of contracts.
-State may impose a minimum wage on employer-employee contracts West Coast Hotel v. Parish
-No area is outside the province of state regulation for police power purposes, including the direct regulation of prices
i. Not concerned w/ processdoesnt matter how fair the process of deprivation is
1. ONLY w/ whether the deprivation can be justified by the Constitution.
 b. Fundamental vs. Non-Fundamental right
i. Non-Fundamental Rightregulation usually does not violate DP
1. Most economic and social welfare regulations are considered Non F. rights. Court hasnt struck down
one since 1937 (Lochner) (business & Labor relations, Taxation, Lifestyle (drugs, wear helmet, police
officers to have short hair), Zoning
2. Regulation of Non-Fundamental Right Valid if it satisfies Mere Rationality. 2 requirements:
a. State pursuit of a legitimate state objective.
i. Virtually any health, safety, or general welfare law w/in states police power and thus
legitimate.
b. Must be a rational relationship b/w the means chosen by the legislature and the state objective.
i. Court will presume validity unless legislature has acted in a completely arbitrary and
irrational way.
ii. Fundamental Right-- regulation almost always violates DP
1. Fundamental Rights: anything relating to right to privacy/autonomy
a. sex, birth control, marriage, child-bearing/rearing/education, right for relatives to live together,
right to travel, voting, all 1st amendment rights
i. Abortion no longer a FR
ii. Right to contract no longer a fundamental right
2. Regulation of Fundamental Right Valid if it meets Strict Scrutiny:
a. State has a compelling interest/objective and
b. Means chosen by the state is necessary to achieve that interest.
i. There must be no other less restrictive means that would do the job just as well. State
carries burden of proof
III. Procedural Due Process- Guarantees ONLY that there is a fair decision making process before the government takes some action
directly impairing a persons Life, Liberty, or Property
a. Always applied one case at a time and governs application of government action to a particular person in a particular
situationemphasis on case presented by particular person
i. Ask:
1. Has persons Life, Liberty, or Property been taken?
2. What process was due him prior to this taking?
b. Has a life, Liberty or Property Interest Been ImpairedIf not there is no general interest in having the government
behave with fair procedures.
i. Liberty--definitions are just a prediction of what court will doHolmes
Liberty not specifically defined, includes more than just freedom from bodily restraints, includes right to K & engage in gainful employment.
Deprivation if one loses significant freedom of action or is denied a freedom provided by the Constitution or a statute. Protects fundamental
rights
1. Physical liberty: imprisonment, or any restriction of free physical movement violates Liberty interest.
2. Restricting Freedom of Choicetwo parts:
a. Denying exercise of a right that has special constitutional protection (right to free speech or
privacy) or;
b. Prevents individual from engaging in activity everyone else can engage in w/out restriction. (Bill
can advertise, Tom cant)
i. No liberty interest in a good reputation (unless it causes you to lose employment
opportunities) Paul v. Davis
ii. Prisoners rarely have liberty interest
ii. Property Two Kinds
1. Conventional Property: Govt cannot impose a fine against a person or declare a persons car forfeited,
w/out complying with procedural due process.
2. Entitlements: Requires reasonable expectation of continued receipt of the benefit.
a. Government Benefits- May or may not constitute property rights.
i. If applying for benefits but hasnt yet received them no property interest & no need to
comply w/ due process
ii. If one already has benefits, theres a property interest in continuing to get them and
govt cant terminate w/o procedural due process Goldberg v. Kelly
1. But if state statute governing welfare benefits says benefits may be cut off at
any time, probably no PI in continuing to get those benefits, no claim to due
process.
b. Govt Employmentgovt job is similar to govt benefit
i. Applicant No property interest in it, unilateral expectation Roth
ii. Already Have Job--Look to state law to determine whether you had a property interest
in the job
1. Ordinary at-will: usually terminable at will, and no property right, no need
for due process.
 Legitimate claim of entitlement If a statute or the public employers practices give a person a
legitimate claim of entitlement to keep the job, then shes got a property interest. If P had an implied
contract that he would be rehired, then he has a property interest.
a. Ex: Public school has a publicized custom of never firing anyone
from a non-tenured position w/out cause except on one years notice,
then non-tenured teacher has a proper right to hold his non-tenured
job for a year following notice Sinderman
iii. Deprivation
1. Requires more than negligent conduct
2. Govt action that affects a person incidentally/indirectly is not deprivation
3. No deprivation by private individuals
c. If Deprivation, What Process is Required?
i. Court Proceedings: When right deprived by court state is required to give litigant:
1. A hearing
2. Right to call witnesses
3. Right to counsel
4. Right to a fair and objective trial,
5. Right to an appeal.
ii. Non-judicial proceeding: Property or liberty interest i impaired in something other than a judicial proceeding.
1. State does not have to give the individual the full range of procedural safeguards that would be need for a
court proceeding.
2. Balancing Test used to determine if it is sufficient:
a. Importance of the interest to the individual
i. More important the interest, more procedural protections court will require
b. Ability of additional procedures to provide more accurate fact finding
i. If additional procedures might make more accurate decision making, court will likely
require them.
c. Governments interest in convenience, efficiency, cost-saving
3. Welfare Benefits: interest in survival requires: 1)Evidentiary hearing b/c wrongful termination, even
temporarily, is likely to lead to extreme hardship without a large countervailing benefit to the govt.
2)Notice 3)Counsel not provided, but permitted 4)impartial decision-maker Goldberg v. Kelly
4. Disability Benefits: lesser economic interest Proceedings- 1) prior notice w/ opportunity to respond 2)
subsequent evidentiary hearing Mathews v. Eldridge
5. Public Employment: A tenured employee being needs 1) notice of the charges and 2) opportunity to
present some evidence, but not a full adversarial hearing or right to counsel. Govt interest in firing
unsatisfactory employees quickly. Loudermill
6. Social Security Benefits when terminated, there only has to be a post-termination hearing.
7. Student disciplined by a public school must be notice of the charges and an opportunity to explain, there
doesnt have to be a trial-type hearing.
8. Parents right to custody of a child before termination, must be notice and a hearing.
iii. Pre-Termination vs. Post-Termination ProcessPre termination process can be limited if there is sufficient poster
termination process
1. Often an opportunity to respond to charges prior to termination to avoid erroneous dismissal is all that is
required
a. If Courts find Pre Termination Process insufficient, but post-term was sufficient:
i. P can seek remedy for period of time where his property was taking away but before he
was terminated.
IV. 14th Amendment Privileges or Immunities Clause-
Prohibits states from denying their citizens P&I of national citizenship, see below. Corporations are not citizens and therefore NOT protected
(are in EP) Bill of Rights NOT included, nor are basic rights as the right to live, work, eat. Guarantees of the BOR are protected from state
action only by the Due Process and Equal Protection clauses of the 14th Amendment.
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States 14
Amendment
a. National Rights only: clause is very narrowly interpreted, govt restriction subject to strict scrutiny test to laws that
interfere w/ the rights of national citizenship
i. Only protects individuals from state interference with his rights of national citizenship that are unique to the federal
govt.
1. Right to interstate travel (also protected by the EP clause)
2. Right to change state of residence: clause most relevant where a state treats its newly arrived residents
less favorable than those who have been instate. This violates the right to travel, protected by the
clause.
3. Right to vote in national elections,
4. Right to petition congress,
5. Right to enter federal lands
 6. Right of protection from US at sea or abroad
7. Right of Habeas Corpus.
V. Bills of Attainder-No Bill of Attainder or ex post facto law shall be passed A1/9.C3,
a. Congress cannot pass act applicable to either named individuals or easily ascertainable members of a group in such a way
to punish them without a judicial trial.
i. Congress halts salaries to three named federal employees on ground that they are engaged in subversive activities.
VI. Impairment of Contracts-No state shallpass any law impairing obligation of contracts A1/10/C1 does not affect contracts
yet to be entered into
a. Applies only to state legislation, not court decisions. (does not apply to Fed. Govt unless flagrant impairment would be
forbidden by the Due Process clause of the 5th Amendment)
b. Different meaning depending on what kind of K govt is impairing:
i. Public Contracts: State trying to escape its own financial obligation, will closely scutinize.
1. Attempt to get out will be struck down unless modification is reasonable and necessary to support an
important public purpose (middle-level review)
ii. Private Contracts: State is re-writing Ks made by private parties, apply mere rationality.
1. Prevents only substantial impairment, Test: i) does the legislation substantially impair a partys rights
under an existing K? If it does not, valid under Contract clause. If it does, will only be valid if
ii) serves an important & legitimate public interest; &
iii) is a reasonable & narrowly tailored means of promoting that interest.
a. Only applies if states action is specifically direct at contractual obligation. If the state applies a
generally applicable rule of conduct that has incidentally impairs the K, Contract Clause does
not apply
VII. Ex Post Facto Laws- No Bill of Attainder or ex post facto law shall be passed A1/9/C3
a. Cannot punish conduct which at the time it occurred was not punishable.
i. Govt may not increase punishment for an offense over what it was at the time
STATE ACTION
14th Amendment requires STATE action (by state, local govt, govt officer, or private individual whose behavior meets the requirement.
Running a town and running an election for public office by private individuals count. If done by private individual, state must affirmately
facilitate, encourage, or authorize the discrimination. Judicial approval included, entwinement. Granting a Monopoly to a business or
granting License to a private club that imposes racial restrictions on its members NOT enough.
I. Govt has no power to regulate private behavior Ex: 13th Amendment
a. Due Process in 14th Amendment applies to state and local governments
i. Same Due Process analysis applicable to Federal Government based on 5th Amendment.
b. Cannot violate DP w/o state action. Ask:
i. Is there a state actor,
ii. Is there a liberty, property, life interest deprived w/out due process of law
c. How much State involvement required? Where govt is sufficiently involved in a private actors conduct, encourages,
permits, or benefits from conduct there is state action
II. When a private individuals act will be found to be state action 2 ways:
a. Public Function: If a private individual or group is entrusted by the state to perform functions that are governmental in
nature, private person becomes an agent of the state; education traditionally not the exclusive realm of govt
i. Political system: Electoral process is a public function and thus state action.
1. Primary Elections: even if they are directly carried out by private political parties Smith v.
Allwright(running of elections is traditionally a public function)
2. Political Parties: When their operation grows so intertwined with govt function that Constitution
provides. Terry v. Adams (dominant political group defeats purpose of 15th Am)
ii. Company Towns: operating of a company town is a public function Marsh v. Alabama- more property open to
public, restrictions
1. Shopping Centers: Not a public function, a person does not have any First Amendment rights in the
shopping center. Hudgens v NLRB
iii. Parks: usually deemed a govt function and state action.
1. Even if park is being operated by private persons, still must obey constitutional constraints Evans v.
Newton(segregation in the park)
b. State Entanglement Doctrine: When private individual is not doing something that is traditionally a public function, his
conduct may be state action if the state is heavily involved in his activities.
i. If state commands private action, encourages, permits, or benefits from private conduct it is State Action
1. Mere acquiescence not enough
ii. Enforcement of restrictive covenants based on race Shelley v. Kraemer (state enforced private agreement b/w
neighbors not to sell house to blacks, b/c state enforced this otherwise private contract, state action)
iii. Enforcement of a discriminatory Trust- reversion on its own when purpose not met okay Evans v. Abney but
allowing park w/ public character to discriminate=SA Evan v. Newton
iv. Mutually Beneficial Financial Relationship - private actor with many economic contacts w/ govt (leases govt
property) - symbiotic relationship may give rise to constitutional restraint
 1. Does not apply to government grants
v. Discriminatory use of Govt Property- Restaurant in Govt building didnt serve blacks Burton- SA b/c govt
approved
vi. Licensing Private Facilities
1. Liquor License to a club that discriminates: Not State Action Moose Lodge (NOT state action; need some
non-neutral act by stateif this would be SA, everything would be)
2. Utility License: State regulates all utilities & a private party cuts off Ps service without notice. Not State
Action. Jackson v. Metropolitan Edison
vii. Corporations- not state actors (unless GRU), BUT could put things in K
viii. Private Action facilitated by the State- State action where state affirmatively facilitates, encourages, or authorizes
acts of discrimination by its citizens, or becomes involved in private action,
ix. Authorizing DiscriminationCA. Constitutional Provision amounted to govt encouraging/authorizing
discrimination. Denied due process b/c it invalidated laws that prohibited discrimination based on race Reitman
x. Restructuring the Political Process busing statute violated the EP clause b/c it used the racial nature of an issue to
determine the governmental decision-making structure- took power away from school board). Washington v.
Seattle School District
xi. Amending State Constitution to eliminate busing Crawford (after allowing broader authoring over busing to stop
discrimination, CAN limit its power to requirements of federal law)
xii. State Authorizing Private Action UCC said can sell stored goods, NOT SA, resolution of disputes b/w private
individuals not an exclusively govt function, could have agreed on private arbitration Flagg Brothers
xiii. Use of Peremptory Challenge in Civil Suit to Exclude Race Edmonson(relies on govt for benefits, provides govt
function- jury =SA)
xiv. Private Action Influencing State Action NCAA, independent voluntary assoc. of govt entities is not state action
when one of members acts in response to associations request NCAA v. Tarkanian

VIII. Equal Protection

Substantive DP requires that laws will be reasonable & not arbitrary. EP guarantees that similarly situated persons will be treated
alike. Both require court to review the substance of the law, rather than procedure
-If law limits the liberty of ALL persons its a DP question. If law treats person/class differently, its an EP problem
-If presumption affects a fundamental right or a suspect or quasi-suspect class (gender), will likely be invalid. Remember having
mere discriminatory affect not enough, must have Intent to discriminate on part of the govt. (facially, application, or motive).
14th Amendment requires STATE action (by state, local govt, govt officer, or private individual whose behavior meets the requirements.
Federal govt is bounded by same rules but through 5th amendment

I. Nor shall any state make or enforce any law which shalldeny to any person within its jurisdiction the equal protection of the
laws 14th Amendment
a. A general restraint on the governments use of classifications of things including race, sex, alienage, illegitimacy, wealth,
etc
i. Only applies to state governments, but Federal govt is bound by the same rules of EP in the 5th Amendment Due
Process clause.
1. State Action: Both only apply to Government action
b. Most Economic and Social regulations are reviewed under the Traditional EP test, based on a rational basis analysis. Also
the classification must promote a proper governmental purpose. If classification meets both of these requirements, check
to makes sure that all persons within the established classes are being treated equally.
II. Ordinary Mere Rationality review: Easiest to satisfy
a. Courts asks: Whether it is conceivable that the classification has a rational relationship with the end sought by the
government which is not prohibited by the Constitution,
i. Standard Summarized: where Mere Rationality review is applied, the classification must satisfy two east
test: 1) govt must be pursuing a legitimate governmental objective; and 2) there must be a rational relation b/w
the classification and that objective. Not necessary that the court believe that these 2 requirements are satisfied,
enough if the court concludes it is conceivable that they are.
b. Applies to statutes that:
i. Are not based on a suspect classification
1. Non-Suspect Classes: Age, Wealth (poverty), Alienage, Mental Illness, Sexual Orientation (see mid-
level), Economic & Social Welfare, Residency
ii. Dont involve a quasi-suspect category
1. Principally gender & illegitimacy
iii. Dont impair a fundamental right
c. Mere Rationality Test:
i. Govt must be pursuing a legitimate state interest
ii. There must be a rational relation b/w the classification and that interest
iii. Cannot be arbitrary.
1. Only needs to be conceivable that these requirements are satisfied
 d. Examples
i. Alienage someone not yet a US citizen. Different that national origin
1. Apply mere rationality review if: (most likely able to discriminate)
a. Applying for a govt job and performance closely tied with politics, justice or public policy
teacher, law enforcement officer
* Statutes/Regulations challenged under this approach almost always survive unless that are patently
arbitrary.
b.
2. Apply Strict Scrutiny if:
a. Job is NOT closely tied in w/ politics, justice, or public policy (most low-level jobs)
ii. Social Welfare: Business owners can advertise on trucks they own, but cannot advertise on trucks they dont own
b/c of harmful affects of distracting advertising Railway Express Agency v. NY
iii. Wealth: Large families shouldnt get more welfare, program designed to incentivize employment. Daindridge v.
William
III. Intermediate Scrutiny/Middle-level review:
a. Test:
i. Classification must be substantially related to an important government interest
1. Interest must be important but not necessarily compelling
ii. Means of achieving end must be substantially related to classification
iii. Cannot be arbitrary
b. When Applicable:
i. Gender/Sex based classifications When act intentionally favors of one sex over the other. Can be invidious
(trying to hurt) or benign (trying to help)
1. Sometimes Court will require an exceedingly persuasive justification for any gender-based
classification and will review it with skeptical scrutiny
a. Taken to mean Intermediate Scrutiny US v. Virgini
ii. If one sex suffers an unintended burden greater than the other sex as a result of some governmental act, not enough
for MLR.
1. Examples:
a. Making military women but not men to show their spouse is actually dependent before claiming
them as so, not allowed.
b. Trying to have different drinking age requirements based on sex not enough relation b/w state
objective of safety and substantially related to sex.
c. State school could not exclude males from enrolling in state nursing school Mississippi
University for Women v Hogan-
iii. Illegitimacy disadvantaging illegitimate children.
1. State cannot deny unacknowledged illegitimate children from bringing wrongful death actions, from
having any chance to inherit etc.
a. Must be some reasonable opportunity to obtain a judicial declaration of paternity (e.g. in a suit
brought by their mother).
i. Once they obtain such a declaration, they must be treated equivalently to children born
to legitimate.
2. States may require a certain proof of paternity before allowing illegitimate children to inherent from their
fathers. May impose reasonable requirements in this area, cannot be overly broad, and state must have a
legit interest.
a. State can discriminate against illegitimate kids because of the states interest in preventing fraud,
encouraging efficiency/justice in disposing property after death. Lalli v. Lalli
c. Other groups that qualify: elderly, disabled, children of illegal aliens Plyer v. Doe gays Romer v. Evans

IV. Strict Scrutiny: hardest to satisfy

a. Applies to statute which is based on a suspect classification OR impairs a Fundamental Right. (race, national origin, or
alienage) Also used if govt is favoring a racial minority more
i. Classification based on race is a suspect class, or the right to vote is a fundamental right.
b. Strict Scrutiny Test:
i. Classification must be necessary to promote a compelling state interest
ii. Classification must be narrowly tailored to achieve interest
iii. Must be no alternative, less discriminatory means of meeting interest
c. First Way Statute Could Violate EP:
i. Discriminate Against Suspect Classes: Discrete and insular minorities
a. Race: Cannot discriminate on the basis of color
b. National/ethnic origin: distinguish from Alienage Natl origin is discrimination against
someone b/c he is a naturalized citizen who originally came from another country. National
Origin always triggers SS, Alienage only sometimes
c. Alienage: Alienage (for some purposes) - Apply Strict Scrutiny for aliens when
 o State cannot deny welfare benefits to aliens, cannot prevent resident aliens from practicing law,
cannot deny free public education.
* Actions that are racially neutral on their face AND rationally serve a permissible govt end do not violate EP just b/c they have
a racially discriminatory impact. Violation requires govt must intentionally or deliberately discriminate. Is enough to show
that the purpose was a motivating factor in the decision.
c.
2. Wording/Application of Statute:
a. De jure Discrimination: Strict scrutiny applied only when there is intentional differential
treatment of insular minorities. If the govt statute or regulation merely has an unintended
incidental effect of burdening, the court will not use strict scrutiny.
i. Must be invidious: prejudicial, in addition to purposeful, must also be invidious (based
on prejudice or tending to denigrate the disfavored class).
ii. Can use circumstantial evidence as proof
1. States cannot make laws that are facially discriminatory Strauder v. WV
Discrimination on Face: states may not est. qualifications based on race, law
must be the same for all.apply a valid statute in a discriminatory way
2. Yick Wo v. Hopkins- discrimination in administration: EP applies to all persons,
whether they are citizens of the US or not. Though fair on face, its admin.
creates unjust discrimination b/w people.
Rationale for using SS for suspect class: group under this class are often discrete and insular minorities so disfavored and out
of the political mainstream that the courts must make extra efforts to protect them, b/c the political system wont.
**Statutes/Regulations that are challenged under this approach almost always found VOID

b. De facto Discrimination: If the statute has an incidental discriminatory effect, it is not subject
to strict scrutiny Washington v. Davis(DC police officer case)
i. However, w/ regard to school segregation, if Ps can show de jure discrimination in one
district, a prima facie case of de jure discrimination is met in all of the districts. Then
school board must prove segregation was not intentional. Keyes v. School District #1
ii. Valid Racial Discrimination: Affirmative Action
1. Remember must be state action by the federal government, state, or municipality. AA by private entities
does not raise any constitutional issue.
a. Always use Strict Scrutiny to analyze an affirmative action program that classifies based on
race.
2. State must show its purpose is both constitutionally permissible & substantial, & that its use of the
classification is necessary to accomplish its purpose.
3. Past discrimination: AA is allowed to balance a work force, get racial diversity in a school, to make
blacks more economically successful,
a. Any objective NOT closely tied to undue clear past discrimination, Fails
iii. No Hard Racial Quotas: an inflexible number of admissions slots, dollar amounts, fixed point system, or other
goodies set aside for minorities.
1. Virtually all racially based quotas will be struck down even when the govt is trying to eradicate the
effects of past discrimination.
iv. Valid Admissions procedures:
1. one-student-at-a-time evaluation in which the students race is merely one factor among others
a. Considered sufficiently narrowly tailored
2. Pursuit of diversity in the student body can be a compelling interest
d. Second Way Statute Could Violate EP
i. When a Fundamental Right is burdened by a classification the govt has selected.
1. Doesnt require burdened people to belong to a suspect class.
ii. Fundamental Rights include:
1. Right to Vote: States cannot use poll tax, property ownership, residential requirement, to burden right to
vote
2. Political Candidacy: Restrictions on new, not yet established political parties violates EP.
3. Access to the courts: Cannot impose a fee that only rich people can afford to attain a criminal case.
Must provide free counsel on appeal for criminal case.
a. When Civil Litigation is involved, access to the courts is usually not fundamental. Exceptions:
divorce, paternity suits, termination of parental rights state barred from charging fees.
4. Right to travel: right to change ones state of residence is a FR.
a. If state imposes a long waiting period on newly arrived residents before they can get some vital
govt benefit, strict scrutiny applies
i. If govt benefit is not vital then state can impose a long waiting period. (1 year
requirement before getting instate tuition)
5. Necessities are not a FR no FR to public school education. State may
allow inequalities in the distribution of the public school education
 without violating any FR, or triggering strict scrutiny.
i. States may distribute food, shelter, or medical care. unevenly.

Congressional Enforcement of CIVIL RIGHTS

I. The Civil Rights Amendments:
a. 13th abolishes slavery and involuntary servitude
Not limited to govt action, the only clause that prevents one citizen from doing something to another (restricted to personal
servitude)
b. 14th requires states to give due process, equal protection, & privileges & immunities
c. 15th bars states from denying right to vote based on race, color, or previous condition of servitude.
i. Congress can make it a crime to interfere w/ a state official, but cannot reach purely private discrimination.
ii. Cannot make it a crime for one person to practice ordinary racial discrimination against another (can instead go
through the Commerce clause)
II. 14th Amendment-due process equal protection Privileges or Immunities
a. Enabling Clause- Congress Shall have power to enforce, by appropriate legislation, the provisions of this article 14th
Am.5
b. Limited to enforcing the rights that are created by the 14th amendment, police power only. Congress must make
determination that states are violating rights enacted by the 14th amendment and then impose legislation to stop violating
those rights. Power to adopt appropriate legislation, that does Not expand existing const. rights or create new ones.
Congruent & proportional. Congress has no power under Section 5 to broadly restrict age discrimination by state
employers Kimel v. Florida Board of Regents
i. Congress doesnt have to wait for a judicial determination of unconstitutionality before prohibiting the
enforcement of a state law.
1. Can enact any legislation that is appropriate.
a. Test for appropriateness:
i. The end is legitimate
ii. The means are not prohibited by & are consistent with the letter & spirit of the
constitution. Katzenbach v. Morgan
2. Cannot reach purely private discrimination have to go through interstate Commerce clause
ii. Scope of power under Enabling Clause:
1. Congress can only enforce the constitutional rights that are included in the due process clause
2. Cannot create new rights or laws.
a. Cannot create new rights or expand the scope of rights.
3. All Congress can do is prevent or remedy the violation of rights that the law has already recognized.
City of Borne (Congress cannot expand right protected by 1st Amendment )
III. 13th Amendment- Neither slavery, nor involuntary servitudeshall exist in the US
a. Applies directly to private & public parties
i. Great deference given to Congress
ii. Broad: all badges and incidents of slavery all racial minorities are protected.
b. Applies only when Congress has enforced its powers by passing a statute.
i. If a person discriminates against another on basis of race but the type of discrimination is not one that Congress
has outlawed, 13th wont reach it.
1. Unless actually keeping person a slave, barred regardless
ii. Civil Rights Act prohibits all discrimination against blacks involving the acquisition of property. Congress has the
authority to eliminate racial barriers Jones v. Alfred Mayer Co
iii. Private Schools: Congress may prohibit private, commercially operated, nonsectarian schools from denying entry
based on race. Runyon v. McCrary- 42 USC 1981 prohibits racial discrimination in making and enforcement of
private Ks. school advertised to general public and offered K
IV. 15th Amendment- The right of citizens of US to vote shall not be denied or abridgedon account of race, color, or previous
servitude
a. Congress may interfere with the voter qualification procedures of certain states to remedy discrimination. Involved
suspension of literacy tests SC v. Katzenbach
i. If Congress decides the problem is SC, Congress can pass act limited to SC
1. Once there is evidence of voting rights violation, Congresss has free hand to stop violation
2. Validity of legislation under the necessary and proper clause
a. Is the end legitimate?
b. Is it w/in scope of constitution?
c. THEN all means that are appropriate and plainly adopted to that end are constitutional
i. Remedial Powers of Congress: In enforcing Civil Rights Amendments, Congress may
prohibit certain actions that dont directly violate these amendments
1. Only if Congress reasonably believes that these actions would lead to
violations of the amendments. South Carolina v. Katzenbach
 2. When using remedial powers, must be proportional and congruent to the
threatened violation.
ii. States may not reapportion voting districts solely on the basis of race, this is an equal protection issues, not a
voting rights issue. Miller v. Johnson- race cannot be a primary factor in reapportioning districts
FREEDOM OF SPEECH
I. Generally: Court must balance govt interest in regulating speech against the strong interest of free speech
a. Rationale: Free speech promotes truth, exchange of ideas and is essential for democracy
b. Can regulate expressive conduct and speech
c. FIRST QUESTION: Is it action that burdens expression Content-based or Content-Neutral?
II. Content-Based Restrictions: - Ask if the expression protected by 1st Amend? - Subject to strict scrutiny. Restricting speech b/c of
what it says. Government regulates out of fear for how people will respond to the communicative impact. Govt motive important
Restriction must be a compelling state interest & narrowly tailored Doesnt need to be least restrictive means Two Types:
a. Unprotected: Categories where govt can ban expression completely based on its content, w/out almost any interference
from the First Amendment
i. Types of Unprotected Speech:
1. Obscenity:
a. To be obscene, must meet all 3:
i. Prurient Interest: Average person, applying todays community standards, must find
that the work as a whole appeals to prurient interest;
ii. Sexual Conduct: Work must depict or describe in a patently offensive way particular
types of sexual conduct defined by state law (or by community stnd) ; and
1. Must depict or describes hard core sex (mere nudity by itself not enough)
iii. Lacks value: Work taken as a whole, must lack serious literary artistic, political, or
scientific value.
b. Minors Different stnd. For minors - state has compelling interest in protecting minors against
sexually explicit materially.
i. Even distribution of Non-obscene but sexually explicit materials may basically be
forbidden to minors.
1. If measure to protect minors substantially impairs access of adults to material
thats indecent but not obscene, good chance it will be struck down
c. Private Possession by Adults: Possession of obscene material by an adult may not criminal.
i. There is a right to have porno for ones own home use, but not a right to import,
distribute, & exhibit it.
1. However, states may criminalize even private possession of child
pornography.
2. Fraudulent Misrepresentation
3. Defamation
4. Advocacy of imminent illegal conduct: Law offers broad protection for advocacy. No punishment for
mere advocacy or Assembly except:
a. If two requirements met:
i. Intent: Advocacy must be intended to incite or produce imminent lawless action; and
ii. Likelihood: Advocacy must in fact be likely to incite or produce that imminent lawless
action. Brandenburg v. Ohio
1. Strict Factual Scrutiny- Hess v. Indiana well take streets later is not
imminent
5. Fighting words: Speech which that tends to incite an immediate breach of the peace(violence)
a. Anger not enough, have to be so angry that they are likely to fight.
b. Must be the words, not the identity or lawful acts of speaker
c. Hate SpeechRULE:
i. Cannot ban speech intended to incite anger or violence based solely on a particular list
of topics/motives. RAV v. St. Paul- bans fighting words that evoke hatred based on race,
ethnicity, but not political affiliation- doesnt survive strict scrutiny, could ban all
fighting words though)
ii. Cannot ban speech to protect certain class of people
1. Even unprotected speech must be protected in content neutral way
iii. State may select a particular type of expressive act (cross-burning) and punish all
instances where that act is done with a purpose of intimidating or threatening someone,
even if they dont punish other types of intimidating acts VA v. Black
iv. Penalty Enhancement for crimes motivated by hate is valid Wisconsin v. Mitchell
b. Protected- Everything else, any government ban is presumed to be unconstitutional. Strict Scrutiny applies to any
regulationMust:
i. Serve a compelling governmental objective
ii. And is necessary (drawn as narrowly as possible) to achieve that objective.
 1. Offensive language IS protected: Fuck the draft, shit on Kibys head protected. Cohen v. CA (fuck the
draft statute is overly broad)
2. Messages or Images that are sexually oriented but NOT obscene, or that preaching racial or religious
hatred protected (as long as they do not incite violence).
a. Offensive language CAN be prohibited if:
i. Audience is a captive one (occurs on city bus/subway,
ii. Language is obscene.
3. If govt allows private speech in a particular forum, it may not treat religiously speech less favorably than
non-religiously-oriented speech.

III. Content-Neutral Restrictions: Government doesnt care what is said or what impact it will have when said, but government wants
to regulate speech anyway. Regualtion would exist whether eor not expression is there. May still burden expression
a. Tip to distinguish: Ask would the harm the govt is trying to prevent exist to the same degree if the listeners/readers did not
understand English? if no, probably content based
i. Motive is very important, question is what the state really intends to do. If court believe state is inhibiting certain
speech b/c of the message it will treat it as content-based (strict scrutiny) even though its neutral on its face. .
b. 3 Part Test Govt must satisfy before its regulation will be sustained: mid-level review
i. Regulation must serve a significant govt Interest
ii. Must be narrowly tailored to serve that govt interest. If there is a less restrictive way, govt must use it.
iii. State must leave open alternative channels for communicating the information.
c. Overbroad- A statute is overbroad if it bans speech which could constitutionally be forbidden but also bans protected
speech.
i. Exception to standing rule: doesnt have to be applicable to P to be unconst., can also be for persons not now
before the court
1. City ordinance prohibiting all live entertainment - prohibits constitutionally protected conduct
d. Vagueness if unclearly defined to point where reasonable person would have to guess at its meaning, unconstitutionally
vague. Must be clear about what is prohibited & whats allowed Winters v. NY: statute banning stories of bloodshed or
lust so massed as to become vehicle for inciting crime unconstitutionally vague Butler v. Michigan: Court found
statute invalid that prohibited sale of any book tending to the corruption of the moral youth
i. Distinguish Overbroad & Vague: Ex: statute prohibits
1. burning a US flag as a symbol of opposition to organized govt unconst. vague (no way to tell what it
means by symbols of opposition to org. govt
2. burning a UF flag for any purpose whatsoever unconst. Broad. (obviously not vague, clearly bans all
flag burning, but appears to also hit protected conduct such as burning flag intended as pol. Expression.
IV. Prior Restraint- Govt cannot normally control in advance what expressions may be uttered or published, even to guard against
speech or ideas that once expressed would be unprotected.
a. Refers to an act of govt that would in advance of a judicial determination that the speech is unprotected, restrain its
expression. Only few circum. where PR is allowed:
b. Except:
i. Military information-
ii. Political Speech on military bases
iii. Imported obscene materials
iv. Sensitive national security information
1. Any system of prior restraint has a heavy presumption against validity and
2. Govt has a heavy burden of showing justification for the enforcement of prior restraint. NY Times v. US
(publication of Pentagon Papers)
a. Policy is to prevent utterances that are so harmful to the public good that remedies after
utterance, are inadequate. Procedural & judicial safeguards still required
c. Non-Publication Agreements: Govt may, as a condition of employment agree not to publish any agency information
w/out first obtaining approval. Need
i. Actual agreement
ii. Significant govt interest in having the agreement
iii. Interests is truly unrelated to suppression of info and
iv. Agreement is a narrow means of promoting a govt interest unrelated to censorship goals. Snepp v US
d. Media in Courtroom: Strong presumption against prior restraints against the media reporting of criminal proceedings
(preservation of a fair trial for the accused).
i. To get injunction on media, court must find:
1. There is a clear & present danger that pretrial publicity would threaten a fair trial
2. Alternative measures are inadequate; and
3. An injunction would effectively protect the accused. Hard to get Nebraska Press v. Stuart
V. Time, Place and Manner Restrictions -A state may impose reasonable, nondiscriminatory regulations upon the time, place, and
manner of speech/conduct when such regulations are necessary to protect general societal interests; assume public forum.
a. Can be facially or as applied invalid. Must BALANCE state interest with First Amendment Interest:
 i. Has to pass three-part test to avoid violating the First Amendment:
1. Must be Content-Neutral
a. Govt cannot be using reg. as a guise to restrict speech
2. Narrowly tailored for significant governmental interest:
a. Must not be a less intrusive way that the govt could achieve its objective.
3. Alternative Channels:
a. leave open alternative channels for communicating the information. if a specific #, see if
majority are available, if not probably not sufficient)
ii. In implementing an injunction based on time, place, and manner, injunction must burden no more speech than
necessary.

b.Licensing- cant use to prohibit speech outright, permit requirement must be:
i. Applied in a content neutral way,
ii. Licensing scheme must set forth the grounds for denying a permit narrowly and specifically, so that discretion of
local officials is curtailed
iii. Permit mechanism must be closely tailored to the objective that the govt is trying to achieve
1. If all met, permit will be upheld if it is a reasonable means of ensuring that public order is maintained.
c. Exhausting State Remedies: cant just disobey court order Defend integrity of court and judicial process, not the statute.
Walker v. City of Birmingham
d. Ignoring an Unconstitutional Licensing Law- Can ignore permit requirement if it is facially invalid.
i. May decline to apply, speak, & then defend.
ii. If not facially invalid, but rather unconstitutional as applied:
1. Speaker must apply for permit first, then seek judicial review before speaking. Can ignore an ordinance
that gives unrestricted discretion to its officials in approving or denying permits.
e. Protection of Fraud and AnnoyanceState law: charity cannot spend more than 25% of amount raised on expenses.
Unconstitutional- charities solicitation of funds is speech protected by 1st AM. No connection b/w state interest in
protecting against fraud and high solicitation expense. Sec. of State of Md. v. Munson
VI. Defining the Public Forum- Where the expression takes place
a. First, check to make sure regulation is not content-based first.
i. Even when regulation is content-neutral, regulations on time, place, manner less likely to be upheld when
expression takes place in a public forum.
b. Non-Public Forum: Regulation merely has to be rationally related to some legitimate governmental objective, as long as
equally effective alternatives available.
c. Public Forum: when expression takes place here, reg. has to be narrowly drawn to achieve a significant governmental
interest. It is necessary, but not sufficient, that govt leave alternative channels available.
i. Traditional Public Forum- (Streets, Sidewalks, Parks)- designated public forums by custom and tradition.
1. Content-based exclusion must be narrowly tailored to compelling state interest.
2. May impose content-neutral, reasonable TPM restrictions which are narrowly tailored to legitimate state
interest
ii. Designated Public forum - public property govt has decided to open up to the public at large. Places where
government meetings take place, or where govt has decided may be used by a broad range of people (school
classrooms after hours)
1. Same rules apply here as ones for Traditional Public Forum, except govt can change its mind and remove
the designation
iii. Non-Public Forums: other places that are not at all associated with expression traditionally.
1. Govt regulation merely has to be rationally related to some legitimate govt objective, as longs the
interference w/ speech is not substantial. Alternative channels usually solve this.
2. (Airports, Jails, Military bases, insides of courthouses, govt office buildings)
iv. Limited Public Forum: govt property that the govt has decided to open only to a particular set of topics or
purposes. Treated just like a non-public forum.
1. May reserve for its intended purpose, just cant discriminate just b/c of an officials view.
VII. The Media
a. Prior Restraint: In general, the govt will not be able to obtain a prior restraint against broadcasters or publishers. (any
govt action that would prevent a communication from reaching the public. Not favored in our political system. Only
uphold for special circ.
i. Only in exceptionally rare circumstances may the govt obtain an injunction against the printing or airing of a
story, and the govt will almost never be allowed to require that a publisher or broadcaster obtain a permit before
they run story. NY Times v. US (no injunction for Pentagon Papers) (National Security, Preserving fair trial only if
its the only sure way to do so) (PR allowed if parties had a K agreement to not reveal)
b. Subpoenas by govt: the press does not get any special protection from govt demands that the press furnish information
which other citizens would have to furnish.
i. If the reporter has information that is of interest to a grand jury, the reporter may be required by subpoena to
disclose that information.
 c. Right of Access Press does not get any general right of access to information held by the govt. Does have right to attend
criminal trials, but this right is not absolute, govt can close off media for an overriding govt interest.
d. Disclosure of confidential or illegally obtained information: Govt normally may not keep media from disclosing info
that govt thinks should be kept secret.
i. If a media member lawfully obtains info about a matter of public significance, govt may punish disclosure of the
info only if the govt has a need of the highest order (rarely found)
ii. If the publisher itself has acted illegally in obtaining the info, the govt may make it a crime to publish the info,
not matter how newsworthy it is.
1. When a private party has acted illegally but the publisher has not, the fact that the info was originally
obtained illegally by a person acting independently of the publisher is not enough to allow publication to
be made criminal
VIII. Defamation: Truth is a defense, but not part of defamation, some say greater truth=greater def
To be defamatory statement must be viewed by a reasonable person as a statement of face, not just opinion or parody. Newspaper publishing
in opinion section does not protect however. P must prove D was at fault. Public Official or Public Figure must prove malice. Private person
must show at least negligence. Presumed or Punitive damages only allowed if Malice shown.
a. NY Times v. Sulllivan Test- where P is a public official or public figure, he may only win for a statement relating to his
official conduct if he can prove D had actual malice
i. Knowledge of falsity or w/ reckless disregard of whether it was true or false.
1. Dont want to chill legitimate criticism of govt, so we have to let some false stuff get by, P must prove
statement was false
b. Partial Public Figure someone who voluntarily injects himself into a public controversy will be a PF for just that
controversy, must prove statement was false
i. Thus an anti-abortion activist might be a PF for any news story concerning abortion, but not for stories of his
private life unrelated to abortion.
c. Involuntary Public Figure, one who achieves general fame or notoriety, cannot sue or recover for a news report about his
crime or trial unless he shows actual malice.
d. Private figure Does not have to show actual malice, but no SL, still need at least negligence, must prove statement is false
Gertz v. Robert Welch (free speech considerations not as strong, private individuals more susceptible to injury, cannot get
punitive damages unless he shows actual malice)

IX. Freedom of Association- Idea that if an individual has First Amendment right to engage in particular expressive activity, a group
should have the same rights.
a. Right not to associate: individuals & groups also have aright Not to associate. A Govt attempt to make person/group give
financial support to a cause they dislike or make a group take members whose presence would interfere w/ the groups
expressive activity, will be closely scrutinized.
i. Boy scouts cannot be forced to accept an openly gay scoutmaster, b/c this would significantly interfere w/ the
Scouts 1st Amendment protected message that homosexuality is immoral.
b. Illegal Membership mere membership in a group/association cannot be made illegal. Can only if:
i. The group actively engaged in unlawful activity, or incites others to imminent lawless action; and
ii. The individual knows of the groups illegal activity, & specifically intends to further the groups illegal goals.
X. Denial of Public Benefit or Job protection from govt from denying a public benefit or job based on a persons association.
a. If a persons activities with a group could not be made illegal, then those activities may generally not be made the basis for
denying the person the govt job or benefit.
i. cannot refuse to hire a teacher merely b/c he is a member of the Communist party, since a state could not make it
illegal to merely be.
ii. Republican may not refuse to hire Democrats for non-policy making jobs like police officer or clerk.
b. A state may not force production of private associations membership list NAACP v. Alabama (while state has an interest in
obtaining information from public entities, it must have an interest great enough to offset an infringement)
XI. Commercial Speech- speech advertising a product or proposing some commercial transaction gets First Amendment protection.
But protection is in some ways more limited than the protection given non-commercial (political) speech.
a. Truthful Commercial Speech: Govt may only restrict if the regulation:
i. Directly advances
ii. A substantially governmental interest
iii. In a way that is no more extensive than necessary.
1. Basically a mid-level review on commercial speech whereas we apply strict scrutiny to content-based
restrictions on non-commercial speech.
XII. False, Deceptive or Illegal Commercial Speech: may be forbidden by the govt. Also speech which proposes an illegal transaction
(ad for cocaine). no 1st amendment protection
a. But if the product or service if harmful but Lawful the state may not limit advertising about it anymore than it can
limit advertising about a non-harmful product.
i. No overbreath doctrine, a commercial enterprise that is protesting a regulation of speech must show that the
regulation infringes the enterprises own speech, not merely the regulation would curtail speech not now before the
court.
 1. False /deceptive speech, or speech that proposes an illegal activity may be banned
XIII. Lawyers have a limited right to advertise. Court often uses test above. Thus a state may not ban all advertising by lawyers or
even ban advertising directed to a particular problem.
a. Can advertise if youve been injured by a ford mustang, I may be able to help you
b. States may ban certain types of in person solicitation by lawyers seeking clients.
i. E.g. solicitation of accident victims in person by tort lawyers who want to obtain a contingent fee agreement
c. State may ban lawyers from direct-mail solicitation of accident victims, at least for a 30 day period following the accident.
i. States can bar lawyers from direct mail for 30 days after accident; free speech allows lawyer to advertise Florida
Bar v Went for It
XIV. Symbolic Expression- If the action really meant as speech, if so its protected.
a. Expression that consist solely of non-verbal actions. But:
i. An important govt interest where an act has both speech and non-speech elements (burning draft card) can justify
limits on first Am Freedoms US v. OBrien
b. Test:
i. Any attempt by govt to restrict symbolic expression b/c of the content of the message will be strictly scrutinized
& almost certainly struck down;
ii. Any restriction on the TPM of symbolic expression will have to be narrowly tailored to a significant govt
objective & will have to leave open alternative channels.
c. Public schools cannot regulate symbolic speech like anti-war arm bands w/o strict scrutiny Tinker v. Des Moines School
Dist
d. Flag Burning: When the act is overtly political, and there is no danger of the fire spreading, govt cant prosecute a person
for burning a flag.
i. BUT if purpose was to incite imminent violence, could be banned. If statute is directed only at particular
messages, it will be invalid. Texas v Johnson
ii. Only a Constitutional Amendment, not Federal law can ban flag burning US v. Eichman
XV. Freedom of Religion-Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
1st Amendment
a. When the two clauses conflict, the Free Exercise Clause dominates
b. Establishment Clause: prohibits any law respecting an establishment of religion. Main purpose of the EC is to prevent
govt from endorsing or supporting religion.
* Applies directly to actions of Congress, and interpreted to the states through the 14th Due Process clause.

i. Govt Action will violate Est. Clause unless: Lemon Test

1. Action has a secular legislative purpose.
a. Must have nothing to do with religion.
i. If there both a religious and secular purpose, then this prong is probably satisfied)
b. Ex: Statute giving public school students time for silent prayer or meditation. If the sole purpose
was to aid religion, thats enough to make govt action void.
2. Principal or primary effect must not be to advance religion.
a. Incidental effects that help religion ok
3. Must not foster an excessive governmental entanglement with religion.
ii. Official Church: Congress cannot establish an official religion of the US. Couldnt even declare that the America
people believe in God.
iii. Church Attendance: Cannot force or encourage people to worship.
1. Ex: Cannot give people a special tax deduction that applies to church donations but not to other charitable
donations.
a. Can give a general tax deduction for charitable contributions and let contributions to churches be
eligible.
iv. Preference of one religion over another: Forbidden
v. Participation: May not actively participate in religious affairs, or allow religious organizations to have a special
participation in government affairs.
vi. Religion and the Public Schools: If the govt tries to introduce religion into the public schools, it is probably
violating the EC.
1. Instruction: May not conduct religious instruction in public schools
2. Accommodation: Probably ok for govt to allow students to leave school early to attend religious
instruction somewhere else.
a. Also probably acceptable for govt to let religious groups have access to school facilities, as long
as non-religious groups are given equal access.
3. Prayer: The official reading of prayers in public school always unconst
a. Even at graduation.
 4.Moment of Silence: even setting aside a moment of silence at the beginning of the school day will
generally violate the EC, since the statute will usually turn out to have been solely motivated by the
legislators intent to advance religion
5. Curriculum: may not further religion at the expense of non-religion, or to further one set of beliefs over
others.
a. May not forbid the teaching of evolution.
vii. Religious Displays Where a display w/ religious themes is either erected by the govt, or put on by private
groups using govt property, there is a potential EC problem.
1. Ask: Would a reasonable observer seeing the display conclude that the govt was endorsing religion?
a. Context: If there is one religious symbol, but it is surrounded by primarily secular symbols, then
the display would be taken as a whole & probably does not violate the EC.
i. Ex: Nativity scene surrounded by reindeer, Santa Clause, Seasons Greetings banners
etc, then as a whole the display would be primarily secular.
1. But if the nativity scene or other primarily religious symbol stands by itself,
then that display probably will have a primarily religious effect, violate EC

b. History: Longer the display has been around w/out objection or controversy, the less likely it is
to violate EC
i. Ex: Display of the 10 commandments has existed for 40 years w/out objection before
the suit, originally donated as part of an anti-juvenile-delinquency campaign. No EC
violation.
1. But if it is recent display of the 10 commandments, replacing two other recent
displays that were from the beginning criticized on EC grounds, EC violated
viii. Sunday closing laws: laws requiring merchants to be closed on Sundays generally do not violate the EC.
1. State has a valid interest in setting one day aside for repose, recreation, & tranquility.
ix. Aid to Religious Schools: Always potential EC problem.
1. Benefit to all students: Program that benefits all students as public, private non-parochial, & parochial
schools alike, much more likely to be fine
2. Colleges: Aid to religious colleges is easier to justify than aid to high schools
3. Tuition Vouchers: State may give tuition vouchers to parents to enable them to pay religious school
tuition, if the vouchers may also be used to non-religious private schools.
a. Can cover cost of educating children in core religious doctrine, and even if the benefits
overwhelmingly go to the parents of religious school students.
b. Parents can deduct from their income tax cost of childs education, including tuition paid to
private school.
i. Limited to actual expenses incurred for the tuition, textbooks, & transportation of
dependents.
c. Aid to Parents: aid given to parents in a way that permits them to choose what school to use the
aid at is more likely to be sustained than aid given directly to the school.
4. Transportation: Programs that let parents children be transported to religious schools for free, ok.
a. State may pay bus fares for parochial school students as part of a general program of paying for
bus fares of all students who go to school. May not however pay for a field trips.
5. Textbooks and equipment: May be loaned to parochial school students as long as loans on the same
basis are made to public school & private non-parochial students.
a. But books and materials must be strictly secular No Bibles
6. Teachers state may send public school teachers into parochial schools, even to teach basic academic
subjects, as long as what is taught is free of 1) religious content and 2) influence from the parochial
schools administration
c. Free Exercise Clause: Prevents govt from outlawing or intentionally burdening a persons pursuit of whatever religion
(and practices) he chooses. govt action must not foster an excessive governmental entanglement with religion.
i. Intent: if interference w/ religion is intentional on govt part, subject to most strict scrutiny & will virtually never
survive.
1. Rule only applies to actual punishments/sanctions imposed for purpose of disfavoring religious practices
a. Not to govt conduct that merely withholds some generally applicable benefit.
i. Ex: State gives scholarships to inbound college students with certain GPAs, but
excludes anyone who wants to use scholarship to study ministry. This is allowed, b/c it
does not involve a criminal or civil sanction, merely a refusal by govt to grant an
affirmative benefit to subsidize.
ii. Unintentional Burden: States can enact regulations that incidentally interfere w/ religious practices,
1. Does prohibit states from adopting laws that target religious conduct.
a. If purpose or effect of law is to impede observance of one or all, or to discriminate b/w religions,
law invalid even though burden indirect.
 b. But a general law w/ a secular purpose that indirectly affects religion, valid unless state could
attain its purpose w/out imposing such a burden.
iii. Coercion required: FEC gets triggered where govt in some sense coerces an individual to do something (or not do
something) against the dictates of his religion.
1. If govt takes action that unintentionally happens to make it harder for you to practice your religion, FEC
does NOT apply
iv. Denial of Benefits: cannot deny person a benefit solely b/c of that persons religious beliefs or practices.
v. Exemptions Govt must give an exemption to avoid unintentional interference with religion, if this could be done
without seriously impairing some compelling governmental interest.
vi. What constitutes a religious belief: Only bona fide religious beliefs are protected by the FEC, but can be defined
very broadly.
1. Non-theistic: are protected. That is the belief need not recognize the existence of a supreme being
2. Unorganized religions: or obscure religions get the same protection as the major religions. E
a. Even if a persons religious beliefs are followed only by him, sill entitled to protect.
3. Sincerity: court will not sustain a FE claim unless it is convinced that the belief is genuine or sincere.
a. Court will not consider whether the belief is true or reasonable. Even a very unreasonable belief
is not deprived of protection, so long as its genuine.

V. Fundamental Rights-
VI. KEY: even if it is a fundamental right, strict scrutiny: is it a compelling state interest and does the state use the least
restrictive means to necessarily achieve that interest
VII. Right to Privacy- collectively created by a zone or penumbra of privacy in the Bill of Rights- includes marriage, child-
bearing, and childrearing (exs right to use birth control, live together with your family, direct upbringing)
VIII. Abortion- Planned Parenthood v. Casey- cut back Roe v. Wade as it stands today woman has a protected privacy interest
before viability(4-5 mos), state cant impose undue burdens. However, the state has a somewhat countervailing interest in
protecting potential life. State does not have the right to ban previability abortions, but it can substantially regulate them-
such as an elaborate informed consent, even from parents if under 18 and there is a judicial bypass. So abortion apparently
no longer a fundamental right? BUT spouse cant veto.
IX. Family Relations- state interference with a persons decision on how to live family life, live together, or raise children,
right to marry.
X. No fundamental right to adult consensual sexual activity, may outlaw adultery, incest, bestiality, bigamy, but not
homosexual sodomy or likely not fornication
XI. Fundamental right not to undergo unwanted procedures.
XII. Must be clear and convincing evidence that an incompetent patient would have declined life-sustaining measures because
of states interst in preserving life
XIII. NO fundamental right to commit suicide.
XIV. Non-Fundamental Rights- mere rationality test if state is pursuing a legitimate governmental objective by a means that is
rationally related, then its okaypresumed valid unless arbitrary and irrational
a. Almost all economic regulation, and most social welfare regulation, will implicate only non-fundamental rights and will be
upheld. Freedom to K does not implicate substantive due process (Nebia v. NY) NOTE: labor law, price controls, trace
practices, and business regulations immune from due process attack.
 b. Almost any health, safety or general welfare goal comes within the states police power and is a legitimate state objective
and must be minimally rationally related, not arbitrary and irrational.
c. Lawrence v. Texas- laws criminalizing sodomy struck down because they interefere with sexual autonomy- not a legitimate
state interest

First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
Article VI: No religious Test shall ever be required as a Qualification to any Office or public Trust under the US
Waltz: State can take a neutral position with respect to religion by offering a tax exemption. Favorable treatment to educational
facilities & charities a like. B/c the state is not involved in impermissible religious entanglement, statute cannot be set aside.
Zorach: Students may be released from school to attend religious holidays or observances, or as in here enjoy an early release time Yes
separation required by 1st amendment is not absolute, religion is an integral part of our society, and although the state may not coerce
religious observances, it may make provision for those citizens desiring retreat to a religious sanctuary for worship.
Regan: state had requirement that all children below a certain age go to school. ??
Muller v. Allen: parents allowed to deduct from their income tax the cost of their childrens education, even those at private schools. The tax
deduction has a secular purpose b/c it promotes education in all types of schools.

Random Quick Hits to Insert somewhere

ARTICLE 4 P&I FOR THE SAKE OF NATIONAL UNITY Triggered only if state discriminates against citizens of other states with respect
to fundamental interests
Right to pass through or travel in a state
Do business there
Right to take hold and dispose of property
Seeking medical services
Licenses are not protected
ART 4 protects the P&I of state citizenship
14Amend Protects the P&I of national citizenship

Summary of Congress powers

a) Power to regulate interstate commerce, as well as foreign commerce
b) power to tax and the power to spend
c) can regulate the District of Columbia
d) has power to regulate and dispose of federal property
e) can declare war, and can establish and fund the armed forces
f) can enforce the post-Civil War amendments (under its power to enforce the 13th amendments abolition of slavery Congress can ban even
private intrastate non-commercial conduct

New case did not impose on the womans right to have an abortion. Statute had limitations on partial birth abortions, but did not apply to
imparetial birth abortion.

b) Ceremonies & Displays: ceremony put on by the govt may not have the sole purpose or primary effect of advancing religion.
1. Ceremonies
a. Long-standing tradition: if a particular ceremony has a long historical tradition going back to the time when the
Constitution was enacted, then it will probably be allowable, especially outside of the public-school context. Ex: practice
of opening session of legislature with a prayer.
b. Incidental references: the EC probably is not violated when the ceremony has an incidental reference to God or to a
religious theme. (Ex: Pledge of allegiance, w/ the phrase One Nation Under God, probably allowable.)
District of Columbia Congress has special enumerated power to govern DC, it may regulate there in purely local matters which would not
fall under the commerce clause.
Federal Property Congress can govern all federal property. Has complete regulatory power. Congress can make it a crime to kill a boar in
any national park

Possible a statute written by congress under commerce clause saying here will be a private remedy against whoever is violated under it. Then
it has section that says it may only be enforced by the federal courts. Think about the Supremacy Clause which says state courts much
adjudicate federal actions. This statute says it cannot. Well if it went to local circuit court and judge says its unconstitutional, he does trial,
judgment, person appeals all the way up to Fl. Supreme court, they agree circuit judge was right and affirm. Person still objects, here
situation where state court is construing federal law, within power of SC, would file for writ, court could or could not take

Jurisdictional section title 28 (pg.40 or 50?) SC jurisdiction from the highest court in the state that had jurisdiction to hear the matter. In
Florida, every decision from circuit court will either be in the jurisdiction to the district court of appeals or the state SC. Every decision of the
district court of appeals in florida are not reviewable by State supreme court. Therefore case that ends in the state of appeals is under
jurisdiction of USSC.
If decisions is reviewable by the supreme court of florida

To decide which P&I clause to apply, or if t o apply EP

Ask what has the state done?
What effect has it had on the person?
Treating A diff than B - EP
Treating resident A different than resident B P&I A4
Treating me in a way that is not allowed by another substantive due process
Or you are taking something from me that you could do if you did it right procedural due process