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Constitutional Law Condensed Outline

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University of Virginia School of Law

Schauer, Spring 2014


Congress’s Power to Act 2

Implied Powers 2

Necessary and Proper Clause 2

Commerce Power 3

Taxing and Spending Power 4

Article 5 of the 14th Amendment 4

Separation of Powers Issues 4

10th Amendment Restrictions 4

Presidential Power 5

State’s Power to Legislate 6

Dormant Commerce Clause 6

Substantive Due Process 7

Equal Protection 9

Takings 12

Health Care 12



Congress’s Power to Act

If Congress is going to legislate, it must do so within its power to (what we focused on):

  • Historical Practice, i.e. Congress has successfully done it before

  • Implied Powers, i.e. those not specifically delegated in Art 1 Sec.9

  • Make laws which are necessary and proper for carrying out its enumerated powers [NECESSARY AND PROPER CLAUSE], OR

  • Regulate Interstate Commerce or Commerce With Foreign Nations, OR

  • Taxing and Spending Power

  • Article 5 of the 14th Amendment

Implied Powers

Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority [McCulloch v. Maryland]

Necessary and Proper Clause

Necessary & Proper Clause grants Congress the legislative authority to enact federal statutes that constitute a means that is rationally related to the implementation of a constitutionally enumerated power [Comstock]

Commerce Power

Congress is allowed to regulate intrastate if it has an impact on interstate activities [Gibbons v. Ogden]

  • Congress can also PROHIBIT things from being in interstate commerce [Champion]

  • As long as something is moving in between states, congress does NOT need a commercial motivation to regulate [Champion] (did it for morality)

    • However, if regulating solely intrastate activity, thumb on the scale if regulating non-econ activity [Morrison]

  • Congress may regulate the instrumentalities of interstate commerce [planes, trains, trucks, ships] or persons or things in interstate commerce, even though the threat may come only from intrastate activities [Shreveport RR]

Solely intrastate production was once seen as outside the scope of Congress’ commerce power [Dagenhart] (overruled by Darby)

  • However if a business itself is an interstate “enterprise”, its activities, although mostly intrastate when separately considered, necessarily usually have a close and substantial relation on interstate commerce (NLRB)

Then (before Lopez), even solely intrastate production (any intrastate activity) became within Congress’ power if they have a rational basis in believing the activity has a substantial effect on interstate commerce [Darby]

  • Even if the local effect on interstate commerce is small, if the aggregate or cumulative effect of such could in fact has a substantial relation on interstate commerce, Congress can regulate [Wickard]

    • Key to this argument is that such a good must be fungible and easily aggregated [Wickard]

      • Court has never allowed the aggregation of a non-economic activity [Morrison]

  • Congress can regulate non-problem causing members of a problem-causing class [Perez]

  • Congress can regulate the “channels of interstate commerce or activity within the channels” [HoA]

    • Can also legislate morality in the interest of commerce [HoA]

Before Lopez, Court deferred to Congress, even in obscure chains of inferences (lowest level of scrutiny, no evidence needed) [Katzenbach]

Lopez (cited in Morrison) Framework: (draws on the above principles)

Congress can regulate:

1. The use of the Channels of Interstate Commerce (HoA, Darby)

2. And protect the instrumentalities of interstate commerce, or persons/things in interstate commerce (Shreveport)

3. Activities that substantially affect interstate commerce (NLRB, Darby)

  • If intrastate non-economic activity, esp. if usually left to states, thumb on the scale against it (Mor. / Lopez)

  • Have never upheld an aggregation of a non-economic activity (Morrison)

  • Congress must have more than just a “rational basis” in believing activity sub. eff. int commerce and an extended chain of inferences will be looked unfavorably upon, even with congress. findings (Morrison)

When Drafting a Statute

  1. Make sure you are regulating an economic activity if aimed at intrastate (Lopez, Morrison)

  2. Put in an express jurisdictional element (Lopez)

  3. Provide detailed congressional findings showing interstate commerce effect (Lopez, Morrison)

    1. Less deference is going to be given to congress’ rational basis for affecting interstate commerce, make sure there is evidence that the link is close (prob no extended inferences)

Gonzalez v. Raich: Where a class of activities is within federal power to be regulated, congress can regulate intrastate instances of that activity in furtherance of the broader regulatory scheme. Congress can control the interstate drug trade and local cultivation affects supply and demand of interstate trade, resulting in a substantial effect on interstate commerce

Sebelius: Congress has the power to regulate existing commerce, not compel the creation of commerce

Taxing and Spending Power

The General Idea is Congress is free to tax and spend for the general welfare (U.S. v. Butler), but the line between encouragement and coercion matters (Dole, Sebelius) – congress cannot tax and [conditionally] spend to coerce behavior into essentially regulating something that they otherwise do not have the power to regulate [Bailey, Sebelius]

Any conditions on spending must be reasonably related to the program for which the money is given [Dole]

Article 5 of the 14th Amendment

Gives Congress the power to enforce the Equal Protection and Due Process Clauses by appropriate legislation (power beyond its enumerated powers

  • Civil Rights Cases held this power could only be used on state action, not private action

  • “any municipal golf course found to discriminate on the basis of race is fined $100 – permissible under § 5

Separation of Powers Issues

Congress does not have the power to delegate to themselves powers constitutionally given to another branch through legislation [Chada] (functionalist argument)

  • The formalist argument is that the background purpose of two house approval and presentment should act as a check in itself (on what congress does through legislation) [Chada Dissent]

Likewise, congress does not have the power to statutorily increase another branch of the government’s power (president here) [Clinton v. NY]

  • The functionalist argument is the converse to this, in that today the budget and other factors are so different that in the interest of legislative efficiency some powers may need to be moved around a bit [Clinton, Dissent]

Congress also technically does not have the power to delegate their powers to agencies pursuant Non Delegation Doctrine [Shectar Poultry]

  • Has not been enforced since 1937. Congress does this today (OSHA etc), but the argument still looms

    • Morrison and Mastretta suggest evolving SC views on delegation

10th Amendment Restrictions

“the tenth amendment states but a truism that all is retained which is not granted” (not a limitation on Congress’ power itself” [Darby]

  • Sole exception is when federal law attempts to regulate state enforcement/monitoring, federal law must regulate their own law [Printz]

Presidential Power

Article II Section 2. The president shall be Commander in Chief . . . shall have the power to make Treaties . . . appoint public officers not dictated by the constitution

1) Presidential Power is greatest when he is acting with explicit congressional authorization [Youngstown]

2) “Zone of Twilight” cases in which we are “unsure” (does not contradict anything in which congress has done), past practice makes a difference more so than it does in other areas [congressional acquiescence, even if not explicit approval, makes a difference] (ex. war, foreign policy, national defense etc) [Youngstown]

  • The two classes of power (foreign and domestic) are different, and the argument that the federal government (including the president) can exercise no powers except those specifically enumerated in the Constitution is true only in internal affairs [Curtiss-Wright]

    • The federal government’s power to wage war and maintain relations with other sovereignties is a power distinct from those enumerated in the constitution [Curtiss-Wright]

      • “Congressional legislation must often accord to the President a degree of discretion and freedom from statutory restrict which would not be admissible were domestic affairs alone involved” [Curtiss-Wright]

  • Presidential powers may be more broad during war time “the exigence of the circumstances may demand that . . . proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict” [Hamidi]

    • Normal levels of “scrutiny” may be changed during war time [Korematsu]

  • Enactment of legislation by congress that is closely related to the Q of the president’s authority may be considered to “invite” measures on independent presidential responsibility, when there is no contrary indication of legislative intent and when there is a history of similar conduct being acquiescence to by congress [Dames & Moore]

3) If in a plausible interpretation of acts of Congress they have said NO, that does not end the inquiry. President has power independent of Congress, but this is the area in which presidential power is the weakest. [Youngstown]

  • “No citizen shall be detained except pursuant to an act of Congress” suggests president CANNOT detain citizens without such authorization [Hamidi]

  • Whatever it is that congress could have done, given that they have not done anything, president’s powers are considerably narrower [Hamdan]


Although Executive Privilege has been historically recognized as an inherent Presidential Power, it is not absolute and must yield to important countervailing interests [US v. Nixon]

  • “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity” [US v. Nixon]

    • In this case, the need for evidence at a trial outweighed executive privilege


Formalism: Decision making according to rule – the screening off from a decision maker factors that a sensitive decision maker would otherwise take into account (Schauer’s Words)

Functionalism: Flexibility in decision making, invoking purposes or background principles to answer difficult questions of interpretation

State’s Power to Legislate

Does the legislation violate the Constitution?

  1. If not, the state may adopt the legislation pursuant to its police power

Dormant Commerce Clause

Say: Dormant commerce clause is as concerned with in state preferences and burdens on interstate commerce as it is with protectionism

Arguing Against a Statute:

  1. First, argue that it is a case of clear protectionism and that it should be subject to the highest degree of scrutiny, near impossible to overcome [Bacchus, West Lynn, Baldwin]

  2. If that is probably not the best argument, then argue that it either is explicitly discriminatory [Philadelphia v. NJ, Hughes, Maine v. Taylor] against out-of-staters or it smells of a discriminatory or protectionist motive, [Dean Milk, Hunt] which subjects it to still a high degree of scrutiny where state must show it is the least restrictive way to achieve its goal

  3. If you have a really bad argument, argue that it disproportionately impacts out-of-staters and the burden on interstate commerce outweighs the state’s interest [Clover Leaf, Kassel]

Designing a Statute that will not be Struck Down:

  • Statute should be across the board with no local exemptions or exclusions (Kassel)

  • Commission a study to show that the regulation will truly further the state interest (State did not provide evidence that the truck ban made the roads any safer in Kassel)

  • Commission a study that shows there is a minimal effect on interstate commerce so you can clear the even-handed balancing test

  • Stay away from regulating transportation, state regulations in this realm count heavily toward the state (Kassel)

  • Provide viable, non-restrictive alternative to what the statute prohibits

**Don’t Forget the Market Participant Exception

Case Type of Discrim State Justification Result


Bacchus Imports Economic. Protectionist Aid In-State Industry Unconstitutional
Baldwin v. Seelig Economic. Protectionist Health/Farmers skimping on sanitation Unconstitutional
West Lynn Creamery Economic. Protectionist Across-the-board tax Unconstitutional


Dean Milk v. Madison Smell Prot. Motive Health/Safety/Quality of Milk Unconstitutional
Hunt v. Washington Apple Smell Discrim/Prot Motive Protecting Consumer from Decep/Fraud Unconstitutional
Philadelphia v. NJ Explicit Discrim. Environmental Reasons Unconstitutional
Maine v. Taylor Explicit Discrim. Environmental/ecological Constitutional
Hughes v. Oklahoma Explicit Discrim. Environmental/Ecological Unconstitutional


Minn. v. Clover Leaf Disproportionate Impact Environmental/Energy Constitutional
Kassel v. Cons. Freight Disproportionate Impact Highway Safety Unconstitutional

Substantive Due Process


Courts are to decide the “liberties” that people are entitled to under the fourteenth amendment [Lochner] (not the current law, but make counterarguments of this nature) [Argue: THIS IS LOCHNER ALL OVER AGAIN!]

  • Subsequently destroyed by:

    • Nebbia: if the laws passed have a reasonable relation to a proper legislative purpose and are neither arbitrary nor discriminatory, the requirements of due process are satisfied

      • “proper legislative purpose”: reasonably deemed to promote public welfare [Nebbia]


NOW: Economic regulatory legislation is entitled to a presumption of constitutionality and should be upheld if supported by any rational basis [Carolene Products]; Three Exceptions:

  • Expressly Prohibited by the Constitutional (FUNDAMENTAL RIGHTS) [Carolene Products]

  • Deference to legislative judgment assumes legislative process works, so if there is a reason to believe it is not, courts can go in and police the process [Carolene Products]

  • None of this applies to discrete insular minorities (they are protected against the majoritarian process for obvious reasons) [Carolene Products]

  • What does a “rational basis” entitle?

    • Seems like anything may go, and courts are giving full deference to the legislature to answer questions of political/economic theory [Ferguson, Lee Optical]

    • Arbitrary, one step at a time, legislation is OK [Williams v. Lee Optical]

    • It was pretty clear at a time that regulating based on “morality” satisfies the rational basis test [Paris Adult Theatre] (1974)

      • Possibly now regulation by moral tradition does not even survive a rational basis test, or that the rational basis standard is higher than we thought [Lawrence] (if there is no fundamental right to private consensual conduct) (2003)

        • Or possible that Lawrence was about discrimination and this is irrelevant

Fundamental Rights

If you have an option to fight a statute under Equal Protection or Fundamental Rights/Due Process, go for the equal protection argument first and avoid the Lochner scrutiny

Infringement on a fundamental right, however, is met with strict scrutiny and the state must show a compelling interest that cannot be achieved with a “lesser restrictive alternative” [Carolene Products]

  • The “penumbras and emanations” around other fundamental constitutional rights imply that there is a fundamental right to “privacy” [Griswold] (probably just as it relates to conception, procreation)

    • Qualified by Roe to mean that there is a right to “decisional privacy” as it family, procreation, marriage (speaking specifically about abortions) [Roe]

      • Strict scrutiny w/r/t/ abortions is rejected in favor of whether legislation creates an “undue burden” on being able to get an abortion [Casey, Carhart]

  • There can be a fundamental right under the Due Process Clause only when it is supported by the nation’s history or tradition [Glucksburg-1997]

    • Possibly also means that rights that are supported by the nation’s history and tradition and inherently fundamental [Glucksburg] (or, conversely, in absence of fund. right state can determine what is safe for its citizens)

      • If Lawrence-2003 was about a fundamental right – potentially rejects this notion – “history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry” – PUBLIC OPINION MATTERS

      • It is key how you define the fundamental right – Bowers v. Hardwick narrow, no fundamental right to homosexual sodomy vs. Lawrence v. Texas basically same case, but defined it as private, consensual conduct

  • Possibly a fundamental right for adults to engage in consensual private conduct in their home (branch off of Roe/Griswold “decisional privacy”) [Lawrence]

    • What about bestiality or incest, how would Lawrence distinguish that?

      • Possible that courts identify rights through public opinion

        • Or possible that Lawrence was about discrimination and this is irrelevant

Arguing Against a Fundamental Right: Argue there are a number of non-irrational views about the beginning of X, all of which have some degree of adherence and support, and decisions about this should be made by a more representative body (Cite: Holmes now accepted dissent in Lochner)

Arguing that this is Different From Lochner: Say this is not Lochner because we are dealing with something more personal than commercial and that makes a difference – and not only are we dealing with something more personal than commercial, but we are dealing with a subset of the personal, making the cluster of things involving marriage a constitutionally relevant subset which makes this case different from Lochner

Equal Protection

Who Gets Rational Basis Review? Whoever is not deserving of heightened scrutiny. Factors for heightened scrutiny:

  1. Immutable Characteristics

  2. Ability of group to protect itself through the political process

  3. History of discrimination against the group

Non-Protected Classes

Distinctions/Discrimination between non-protected classes of individuals must be rationally related to the state’s legitimate purpose [Railway Express, Dukes]

  • The Railway Express standard for rational relation is VERY low, seems to just require that a distinction could rationally be a probabilistic indicator of the government interest

    • Rationally related may not be as loose as the earlier due process cases [Ferguson, Lee Optical, Railway Express] suggest, may actually need to convince court statute will further your interest [USDA v. Moreno]

  • May be able to be a “class of one” if the “class” you are a part of has no rational basis of being discriminated against [Village v. Olech]

But, if your “class” has a rational basis to be discriminated against [speeders, people who show up late to work, bad work], discretion is allowed in picking out particular people [Enguist v. Oregon Dept. of Ag]


Past Practice is Key in Determining if there is an Intent to Discriminate

Separate but Equal is Inherently “Unequal” [Brown v. Board of Education]

  • It is implied through the DP clause of the 5th Amendment that the fed gov must also be subject to the same Equal Protection standards as the states [Bolling]

The Federal Courts have the power to design a remedy to make desegregation happen in the public schools [Brown v. Board II]

  • Only going to look at outcomes to see if a jurisdiction that had dejure segregation in the past is complying with desegregation [Green]

    • If the outcome does not show the schools have been desegregated, district courts can order remedies to inflict it [Swann]

      • As a matter of federal constitutional law, the remedies in Green and Swann are only available if there has been a judicial finding of previous dejure segregation

      • As a matter of state constitutional law, the remedies may be available for finding of defacto segregation as well [since there is no fundamental right against being bussed]

Racial classifications must be narrowly tailored to further a compelling government interest [Grutter]/Loving

  • Shielding people from the effects of racial prejudice is NOT enough to be compelling [Palmore]

    • Statutes that are administered discriminatorily is treated the same as if the discrimination was on the face of the statute [Yick Wo]

      • Discriminatory Impact alone is not enough, must be intentional discrimination somewhere down the line [Washington v. Davis]

      • Even if it is REASONABLY FORSEEABLE that the statute will act in a discriminatory manner, not enough, need intentional discrimination [Feeney]

Affirmative Action

Employment: Race-based preferences are subject to strict scrutiny which requires that the state...

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