I.

INTRODUCTION & JUDICIAL REVIEW

Introduction: Themes and Discourses

 Marbury v. Madison
 
II. THE JUDICIAL POWER: JUDICIAL REVIEW & JUSTICIABILITY
 
Interpreting the Constitution & Deciding the Constitutionality of Statutes
 District of Columbia v. Heller
 Bostock v. Clayton County
Case or Controversy Requirements: Standing
 Mass v. EPA
 LA v. Lyons
 Lujan v. Defenders of Wildlife
 Clapper v. Amnesty Int'l
Political Question Doctrine
 Baker v. Carr
 Rucho v. Common Cause
 Common Cause v. Lewis 

III. THE LEGISLATIVE POWER: FEDERALISM AND THE POWER OF

CONGRESS
 
What Can Congress Do?
 McCulloch v. Maryland
 NFIB v. Sebellius
The Early Commerce Clause
 Gibbons v. Ogden
 US v. E.C. Knight
 Schechter Poultry v. US
 Shreveport Rate Cases
 A Switch In Time That Saved Nine
 NLRB v. Jones & Laughlin Steel
 United States v. Darby
 Wickard v. Filburn
 Heart of Atlanta Motel v. United States
 Katzenbach v. McClung
The Evolving (or Eroding) Commerce Clause
 United States v. Lopez
 United States v. Morrison
 Gonzalez v. Reich
Fourteenth Amendment and National Power
 Katzenbach v. Morgan
 City of Boerne v. Flores
 Shelby County v. Holder

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IV. THE EXECUTIVE POWER: THE PRESIDENT & (SOME OF) WHAT'S
HAPPENED

Introduction to the Federal Executive Power

 Youngstown Sheet & Tube
 Hamdi v. Rumsfeld
 Boumediene v. Bush
Trump's Muslim Travel Ban and President Obama's DACA Program
 Trump v. Hawai'i
 Dep't of Homeland Security v. Regents of the University of California

V. THE CONSTITUTION (AND THIS CLASS) IN TRANSITION

Before (and After) the Civil War

 Slaughterhouse Cases
 Saenz v. Roe
 McDonald v. City of Chicago
Substantive Due Process: From Lochner to Carolene Products
 Lochner v. New York
 Muller v. OR
 West Coast Hotel v. Parrish
 United States v. Carolene Products

VI. RIGHTS: EQUAL PROTECTION

Rational Basis
 Romer v. Evans
 Railyway Express v. New York
 New York City Transit Authority v. Beazer
 U.S. Department of Agriculture v. Moreno
 City of Cleburne v. Cleburne Living Center
Race-Based Classifications
 Dred Scott v. Sanford
 Korematsu v. United States
 Loving v. Virginia
 Palmore v. Sidoti
Race-Based Classifications
 Plessy v. Ferguson
 Brown v. Board of Education
 Washington v. Davis
 McCleskey v. Kemp
 Swann v. Charlotte-Mecklenburg Board of Education
 Milliken v. Bradley

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Affirmative Action: Race-Based Classifications That Allegedly Benefit Minorities
 Regents of the University of California v. Bakke
 Grutter v. Bollinger
 Gratz v. Bollinger
 Fisher v. University of Texas, Austin
"On the Basis of Sex": The Life of RBG
 Frontiero v. Richardson
 Craig v.Boren
 United States v. Virginia
 Geduldig v. Aiello
"On the Basis of Sex": The Life of RBG
 Califano v. Goldfarb
 Orr v. Orr
 Mississippi University for Women v. Hogan
 Rostker v. Goldfarb
 Califano v. Webster
 Nguygen v. INS
 
VII. RIGHTS: DUE PROCESS

Love, Sex, and Contraception

 Buck v. Bell
 Skinner v. Oklahoma
 Griswold v. Connecticut
 Eisenstadt v. Baird
Love, Sex, and Pregnancy
 Roe v. Wade
 Planned Parenthood v. Casey
 Gonzalez v. Carhart
 Whole Women's Health v. Hellersetedt
 June Medical v. Russo
Love, Sex, and Marriage
 United States v. Windsor
 Zablocki v. Redhail
 Obergefell v. Hodges
 Pavan v. Smith
 
VIII. FIRST AMENDMENT
 
Weaponization of the First Amendment
 Janus v. AFSCME
 NIFLA v. Becerra 
Equality Act
 Employment Division v. Smith

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 Burwell v. Hobby Lobby
 Masterpiece Cakeshop v. Colorado Civil Rights Commission
 Little Sisters of the Poor v. PA
 Fulton v. City of Philadelphia

4
I. Introduction & Judicial Review
Introduction: Themes and Discourses
 Marbury v. Madison SCOTUS 1803
o Established judicial review
 

5
II. THE JUDICIAL POWER: JUDICIAL REVIEW &
JUSTICIABILITY
Interpreting the Constitution & Deciding the Constitutionality of Statutes
 District of Columbia v. Heller 2008 (handguns in the home)
o “Militia” phrase only announces the purpose of the 2A, therefore the
phrase does not limit the right
o Restricting handguns (the most popular gun) from the home (the area most
in need of protecting) makes no sense
o Stevens’s Dissent
 No right to firearms for self-defense
 “Militia” phrase is limiting
o Breyer’s Dissent
 Should be an interest balancing test
 2A protects militia interest, not self-defense interest
 Bostock v. Clayton County SCOTUS 2020 (P alleged sexual orientation
discrimination)
o Civil Rights Act of 1964 prohibits discrimination on the basis of sexual
orientation because it prohibits discrimination based on sex and one
cannot discriminate based on sexual orientation without discriminating
based on sex
o Lack of legislative intent is irrelevant
o Dissent: Act contains no language regarding sexual orientation
Case or Controversy Requirements: Standing
 MA v. EPA SCOTUS 2007 (EPA refused to regulate motor vehicle emissions)
o Lujan v. Defenders of Wildlife
o P Massachusetts had standing because of potential damage to its territory
by global warming
o EPA had power to regulate emissions because under the Clean Air Act,
the definition of “air pollutants” is very broad
o Dissent

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  “Relaxing Article III standing requirements because asserted
injuries are pressed by a state has no. basis in out jurisprudence
and support for any such ‘special solicitude’ is conspicuously
absent from the Court’s opinion”
 Injury, causation, and remedy here are unconnected
 Ps have not shown actual or imminent injury
 Unclear that the remedy will likely redress the alleged injury
 Judicial overreach
 LA v. Lyons SCOTUS 1983
o P, who was choked by LAPD, had no standing to seek an injunction
because he couldn’t show he was likely “to suffer future injury from the
use of the chokehold by police”
o Dissent: no can could meet this standard
 Lujan v. Defenders of Wildlife SCOTUS 1992
o Three standing requirements
1. “a litigant must demonstrate that it has suffered a concrete and
particularized injury that is either actual or imminent”
2. “that the injury is fairly traceable to the D”
3. “and that it is likely that a favorable decision will redress that
injury”
o “Someday” intentions do not meet the “actual or imminent” injury
requirement
o Dissent: other facts demonstrated Ps’ intentions to return and requirements
of specific plans is unnecessary/too high
 Clapper v. Amnesty Int'l SCOtuS 2013
o Speculative “future harm” ≠ imminent harm
Political Question Doctrine
 Baker v. Carr SCOTUS 1962
o Six factors for identifying political questions

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 1. Textually demonstrable constructional commitment of the issue to
a coordinate political department (e.g., issues of foreign affairs and
executive war powers)
2. A lack of judicially discoverable and manageable standards for
resolving it
3. The impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion
4. The impossibility of a court ‘s undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government
5. An unusual need for unquestioning adherence to a political
decision already made
6. The potentiality of embarrassment from multifarious
pronouncements by various departments on one question
o SCOTUS has jurisdiction over questions of legislature apportionment
because if courts can’t get involved, state legislatures would never fix
themselves
 Rucho v. Common Cause SCTOUS 2019 (partisan gerrymandering)
o SCOTUS can’t deal with partisan gerrymandering because…
 They have no basis to do so
 It is impossible to articulate workable, politically neutral standards
or rules
 There is no way of knowing how much partisan disproportionality
is unconstitutional
 There is no guarantee to proportional partisan representation
 This area is better left to the legislature
 “One person, one vote” is N/A
o Dissent
 Partisan gerrymandering is so incompatible with democratic values
that it demands redress

8
  Thanks to changes in technology, gerrymandering is more precise
and therefore more powerful than ever before
 “One person, one vote” is applicable
 Lower courts have already coalesced around a standard (intent,
effect, causation)
 SCOTUS might not be able to say when a map goes from fair to
unfair, but it can at least identify some maps that are clearly unfair
 Legislative initiatives are an inherently flawed solution because the
very politicians who benefits from gerrymandering will resist these
efforts
 Common Cause v. Lewis NC TC 2019
o Partisan gerrymandering violates NC constitution because it subverts the
Free Elections Clause
o If courts don’t intervene, who will?

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III. THE LEGISLATIVE POWER: FEDERALISM AND THE
POWER OF CONGRESS
What Can Congress Do?
 McCulloch v. Maryland SCOTUS 1819 (MD passed a law imposing a tax on the
branch of the US Bank located in MD)
o Commerce Clause: “The Congress shall have Power To regulate
Commerce with foreign Nations, and among the several States, and with
the Indian Tribes”
o Necessary and Proper Clause: “The Congress shall have Power To make
all Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this Constitution in
the Government of the United States, or in any Department or Officer
thereof”
o Supremacy Clause: “This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be bound
thereby, any thing in the Constitution or Laws of any State to the Contrary
notwithstanding”
o Congress has the power to pursue its enumerated objectives via their
chosen means and the word “necessary” does not limit the means because
1) it should not be taken literally because allowing Congress only to do
that which absolutely necessary would be too restrictive (Congress needs
the ability to deal with the unforeseen) and unwanted, and 2) the phrase “is
placed among the powers of Congress, not among the limitations on those
powers”
o MD can’t tax the Bank because 1) the Supremacy Clause and 2) the
citizens of MD, via their legislature, do not have power over an instrument
of the federal government, which is accountable to all the citizens of the
US

10
 NFIB v. Sebelius SCOTUS 2012 (Obamacare)
o “Every reasonable construction must be resorted to, in order to save a
statute from unconstitutionality”
o Direct Tax Clause: “any direct tax or capitation must be apportioned so
that each state pays in proportion to its population”
o Taxing and Spending Clause: “The Congress shall have Power To lay and
collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide
for the common Defence and general Welfare of the United States; but all
Duties, Imposts and Excises shall be uniform throughout the United
States”
o Individual mandate unconstitutional under the Commerce Clause
because “that Clause authorizes Congress to regulate interstate Commerce,
not to order individuals to engage in it”
o Individual mandate constitutional under the Taxing and Spending
Clause
 The “penalty” label is irrelevant
o Individual mandate is not invalidated by the Direct Tax Clause
because 1) a tax on going without health insurance does not fall within any
recognized category of direct tax, 2) capitations are taxes paid by every
person and not every person must pay this, and 3) it is not a tax on
ownership of land or property, which would need to be apportioned among
the states
o Medicaid expansion was unconstitutional because the ACA made “a
basic change in the nature of Medicaid” and tied it to existing Medicaid
grants. This created an unconstitutional false choice between either
accepting an essentially different program or losing all funding for the
new and old program
o Ginsburg’s Concurrence/Dissent
 The individual mandate should meet the Commerce Clause
because it is an essential part of the ACA’s entire approach to a
serious issue that individual states cannot address

11
  Uninsured do affect interstate commerce, it’s not merely a choice
to “do nothing”
 Even if the Commerce Clause did not grant Congress the power to
compel participation, everyone already participates in health care
 The Medicaid expansion is not such a dramatic change
 Would the Chief Justice have Congress repeal Medicaid
and repass it?
 Where does pressure turn into compulsion?
o Scalia’s Dissent
 Mandating insurance isn’t regulating commerce, it’s creating it.
This would fundamentally change the Commerce Clause and grant
Congress “unlimited power”
 Everyone receives health care, but not everyone participates in the
health care market, the real target of the individual mandate
 Taxes and penalties are different and this is a penalty
 States can’t reject the expansion because then they’d have to fund
their own system AND still pay for other states’ Medicaid
 Not sure where the line is, but this definitely crossed it
The Early Commerce Clause
 Gibbons v. Ogden SCTOUS 1824 (NY waterways monopoly)
o Federal law trumped state law because Commerce Clause
 “Commerce” includes navigation because that’s how people have
and continue to understand it and it makes no sense for Congress to
lack that power
 Can’t buy or sell something without moving it, and to move
something, you have to pay someone to move it
 *Marshall makes traditionalist, originalist, textualist, and living
Constitution arguments
 US v. E.C. Knight SCOTUS 1895
o Congress couldn’t regulate sugar monopoly because it was “production,”
not “commerce”

12
 o “Commerce succeeds to manufacture, and it is not a part of it”
 Schechter Poultry v. US SCOTUS 1935
o Chicken law was unconstitutional because it was insufficiently related to
interstate commerce because the buying and selling of chickens only
happened in NY (even though the chickens came from out-of-state)
 Shreveport Rate Cases SCOTUS 1914
o Congress could regulate intrastate railroads because they affected
interstate railroads
 A Switch In Time That Saved Nine
 NLRB v. Jones & Laughlin Steel SCOTUS 1937 (D, a massive, multi-state,
effectively vertically integrated steel manufacturer, alleged discriminated against
employees who attempted to self-organize. If true, that would be a violation of the
National Labor Relations Act)
o D’s activity was within Congress’s reach under the Commerce Clause
because 1) “although activities may be interstate in character when
separately considered, if they have such a close and substantial relation to
interstate commerce that their control is essential or appropriate to protect
that commerce from burdens and obstructions, Congress cannot be denied
the power to exercise that control” and 2) how can Congress not regulate
such a massive company that is so deeply integrated into the national
economy that their issues have immediate and substantial impact on the
national economy?
o Dissent: ignores precedent that production ≠ interstate commerce
 United States v. Darby SCOTUS 1941 (D, a lumber manufacturer, allegedly
violated wage and hour regulations)
o Congress can prohibit 1) the interstate shipment of lumber manufactured
by employees with illegal wages and hours, and 2) the employment of
workmen in the production of goods for interstate commerce at other than
prescribed wages and hours because Congress can regulate business that
affects interstate commerce using whatever means they want

13
  Wickard v. Filburn SCOTUS 1942 (D, a private citizen, exceeded his allotment
for growing wheat. D claimed he used the wheat only for his own needs)
o D’s activity was within Congress’s power under the Commerce Clause
because 1) “production” vs. “consumption” vs. “marketing” is irrelevant,
2) “direct” vs. “indirect” is irrelevant; the standard is degree of impact on
interstate commerce, and 3) “home-grown” wheat, taken collectively is
large enough to threaten national wheat price therefore within Congress’s
authority
 Heart of Atlanta Motel v. United States SCOTUS 1964 (P operated a motel and
wanted to exclude “Negros”)
o “If it is interstate commerce that feels the pinch, it does not matter how
local the operation which applies the squeeze”
o Unconstitutional because evidence demonstrated how national
discrimination of Negros by the motel industry affected interstate
commerce
o Concurrence: it would be better to rule it unconstitutional under the 14A
because 1) “the right of people to be free of state action that discriminates
against them because of their race…occupies a more protected position in
our constitutional system than does the movement of cattle, fruit, steel,
and coal across state lines” and 2) settles future controversies by
eliminating need to do decide what is and isn’t “commerce”
 Katzenbach v. McClung SCOTUS 1964 (restaurant refused to serve Negros)
o It’s not about any on service, but rather the entire industry’s cumulative
effect
o Unconstitutional because there was ample evidence that “restaurants in
such areas sold less (sic) interstate goods because of discrimination,
interstate travel was obstructed directly by it, business suffered, and many
businesses refrained from establishing there as a result of it”
The Evolving (or Eroding) Commerce Clause
 United States v. Lopez SCOTUS 1995 (D child brought a gun to school, which
was federally illegal)

14
o Three categories of activity Congress may regulate under Commerce
Clause
 The use of channels of interstate commerce (e.g., Darby, Heart of
Atlanta Motel)
 The instrumentalities of interstate commerce, or persons or things,
in interstate commerce, even if the threat comes only from
intrastate activities (e.g., Shreveport Rate Cases)
 Activities that substantially affect interstate commerce (e.g., Jones
& Laughlin Steel)
o Congress did not have power under the Commerce Clause to enact this
legislation because the activity was clearly not within categories 1 or 2,
and it was invalid under category 3 because 1) it was a criminal statute
unrelated to commerce, 2) it was not a part of a lager regulation of
economic activity, in which the scheme would be undercut unless the
intrastate activity was regulated, 3) no jurisdictional element to ensure that
the firearm possession affects interstate commerce (10A issue), 4) no
references to interstate commerce in legislative history, and 5) allowing
Congress power here would grant Congress unlimited power
o Kennedy’s Concurrence: another question is what areas are traditionally
left to the states; education, the topic here, is one of those areas
o Thomas’s Concurrence
 We’ve strayed from original meaning
 “Substantial effect” test is too broad, especially its ability to
aggregate isolated activity
o Stevens’s Dissent: “Guns are both articles of commerce and articles that
can be used to restrain commerce”
o Souter’s Dissent
 Rational basis should decide
 This is a return to an untenable principle//jurisprudence
o Breyer’s Dissent

15
  The question isn’t whether the regulated activity sufficiently
affected interstate commerce; it’s whether Congress had a rational
basis for so concluding
 “Could Congress rationally have found that ‘violent crime
in school zones,’ through its effect on the ‘quality of
education,’ significantly (or substantially) affects
‘interstate’ or ‘foreign commerce’?”
o Yes! The facts prove this
 Does not unreasonably expand Congress’s reach because 1) “the
statute is aimed at curbing a particularly acute threat to the
educational process” and 2) the connection between education and
the national economy is well documented
 “Commercial” vs. “non-commercial” is BS
 Majority creates uncertainty regarding Commerce Clause where
previously there was certainty
 United States v. Morrison SCOTUS 2000 (D raped a woman. Woman sued D (as
well as others) under section 13981 of the Violence Against Women Act, which
criminalized violence motivated by gender)
o It was not within Congress’s Commerce power to create this section
because 1) “gender-motivated crimes of violence are not economic
activity,” 2) allowing would give Congress to much reach, and 3) criminal
law is traditionally left to the states
o Disposition: “Congress may not regulate noneconomic, violent criminal
conduct based solely on that conduct’s aggregate effect on interstate
commerce”
o Dissent: rational basis should’ve applied, rather than Commerce Clause,
and it would have passed rational basis
 Gonzalez v. Reich SCOTUS 2005 (P, a resident of CA, where medical marijuana
was legal, had her personal medical marijuana destroyed by federal agents. P sued
government, claiming the Controlled Substances Act (CSA) exceeded Congress’s
Commerce Clause power)

16
 o CSA did not exceed Congress’s Commerce Clause power because:
 Parallels to Wickard
 Local, non-commerce activity still in Congress’s power if it
substantially affects interstate commerce
 Home-grown marijuana affects its market that same way
home-grown wheat affects its market; the fact that one
market is illegal is irrelevant
 This regulation is part of a broader scheme, which “we
refuse to excise”
 Congress met rational basis
 Lopez and Morrison are N/A because 1) those were about claims
that a particular statute or provision was outside Congress’s
Commerce Clause power, where this is about a request to excise
individual application from a valid statutory scheme and 2) the
activities here are clearly economic
o O’Connor’s Dissent
 Invades a state’s decision
 Encourages Congress to put stuff into “comprehensive regulatory
schemes” in order to protect it from scrutiny
 No proof of substantial effect
o Thomas’s Dissent
 Gives Congress unlimited power
Fourteenth Amendment and National Power
 Katzenbach v. Morgan & Morgan SCOTUS 1966 (P NY voters sought to
invalidate section 4(e) of the Voting Rights Act, which provided that no person
who has completed the sixth grade in a public school, or an accredited private
school, in Puerto Rico in which the language of instruction was other than English
could be disfranchised for inability to read or write English, because it conflicted
with NY law, which required the ability to read and write English in order to vote)

17
 o McCulloh v. MD: an act is a valid enforcement of the Equal Protection
Clause if it is “plainly adopted to that end” and “is not prohibited by but is
consistent with ‘the letter and spirit of the Constitution’”
o 14A, Section 5: “The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.”
o Government had the power to enact section 4(e)
 Law protects PRs right to vote (“the right that is ‘preservative of
all rights’”), which grants them “enhanced political power [that]
will be helpful in gaining nondiscriminatory treatment in public
services for the entire PR community”
 Within Congress’s authority to say PR right to vote > “any state
interest served by the English literacy requirement”
 “not for us to review…It is enough that we be able to
perceive a basis upon which the Congress might resolve the
conflict as it did”
 Congress has authority under sec. 5 to interpret the 14A so long as
Congress does not dilute rights
 14A, Section 5 is basically NPC for 14A
o Dissent
 Enfranchisement is state authority
 Wrong to let Congress, as opposed to the judiciary, interpret 14A
 City of Boerne v. Flores SCOTUS 1997 (P sought a permit to expand its church.
D denied permit under the Religious Freedom Restoration Act of 1993 (RFRA))
o RFRA: “prohibits ‘government’ from ‘substantially burdening’ a person’s
exercise of religion even if the burden results from a rule of general
applicability unless the government can demonstrate the burden is ‘1) in
furtherance of a compelling government interest and 2) is the least
restrictive means of furthering that interest’”
o 14A, sec. 5: Congress’s power “to enforce”

18
  Civil Rights Cases (1883): “Enforcement Clause did not authorize
Congress to pass ‘general legislation upon the rights of the citizen,
but corrective legislation”
o Voting Rights Act
o Oregon v. Smith: Free Exercise Clause cannot be used to challenge neutral
laws of general applicability; incidental effect is okay
o RFRA was unconstitutional:
 History regarding passage of the 14A and cases support the finding
that the Enforcement Clause grants Congress
corrective/preventative power, not definitional/ability to create
new rights
 Compared to the legislative history of the Voting Rights Act,
“RFRA’s legislative record lacks examples of modern instances of
general applicability laws passed because of religious bigotry” i.e.,
not remedial/preventative, therefore, “it appears to attempt a
substantial change in constitutional protections”
 So sweeping that it could appear at any level at almost any time
 RFRA is not designed to identify and counteract state laws likely
to be unconstitutional because of religious discrimination, but “in
most cases” it will likely be applied to state laws not motivated by
religious discrimination, therefore, not remedial and intrusive on
state authority
o Dissent
 Smith was wrong, therefore, this might be wrong
 Shelby County v. Holder SCOTUS 2013 (Congress passed the Voting Rights Act
of 1965 to deal with racially discriminatory laws in parts of the country. The Act
was reauthorized several times and its provisions were expanded)
o Section 5: prohibits eligible districts from enacting changes without
authorized
o Section 4(b): defines the eligible districts via a “coverage formula”

19
 o NW Austin Municipal District v. Holder: “the Act imposes current
burdens and must be justified by current needs”
o Supremacy Clause; Tradition of equal sovereignty among the States and
Federalism; 14A and 15A
o Sec. 5 was constitutional
o Sec. 4(b) was unconstitutional
 The formula relied on in Sec. 4(b) used old data that does not
reflect the changes of the last 50 years. It imposes current burdens
on old need and, therefore, is unconstitutional
 Congress violated 14A and 15A by subjecting a state to
preclearance based on past discrimination
 Accepting that these improvements are the result of the Act renders
the Act unacceptably “immune from scrutiny”
o Ginsburg’s Dissent
 Congress decided, well within its province, that the Act should be
reauthorized to continue gains and prevent backsliding
 Congress relied on tons of contemporary evidence that proved
effectiveness and continued need
 Likely to pass rational basis because 1) “Congress has already
assembled a legislative record justifying the initial legislation, 2)
reauthorization is necessary because it’s built in, and 3) demanding
contemporary evidence as bad as previous evidence is a Catch-22
 Section 2 is an inadequate substitution for preclearance because
“litigation occurs only after the fact”
 

20
IV. THE EXECUTIVE POWER: THE PRESIDENT &
(SOME OF) WHAT'S HAPPENED
Introduction to the Federal Executive Power
 Youngstown Sheet & Tube SCOTUS 1952 (Steel workers went on strike.
President Truman seized the mills. Congress has not passed a law enabling the
President to do this and had explicitly rejected an amendment to an act the
would’ve)
 President did not have the power to do this
o No authorization from Congress or the Constitution
o Can’t be sustained as Commander-in-Chief
o Can’t be sustained as enforcement of law; President can recommend or
veto
 Jackson’s Concurrence:
o Presidential power ebbs based on implicit/explicit acts of Congress and the
Constitution
 Douglas’s Concurrence
o Emergencies create need but not authorization
 Congress may be too slow but 1) that is its nature and 2) this isn’t
about who can respond fastest; it’s about authorization to respond
o Frankfurter’s Concurrence
 Congressional record supported the majority
 Restrictions are a feature, not a bug
o Vinson’s Dissent
 Korean War and Cold War for “extraordinary times”
 Work stoppage would immediately affect foreign and domestic
defense
 This is faithful execution of the law because Congress has
positively supported the war
 President not acting solely on his notions of public welfare or in an
attempt to exert unlimited power

21
 Hamdi v. Rumsfeld SCOTUS 2004 (9/11. Congress passed AUMF. D, a US
citizen, was alleged caught in Afghanistan as an enemy combatant,” which is why
he was being held indefinitely. D sought to challenge his designed via habeas
corpus. P argued limited role of courts here to only investigate legal authority for
the broader detention scheme because separation of power and courts’ limits
regarding military affairs during ongoing conflict)
o 18 USC 4001(a): “no citizen shall be imprisoned or other detained by the
US except pursuant to an Act of Congress”
o Matthews v. Eldridge
 Process due determined by 1) weighing “the private interest that
will be affected by the official action against the government’s
asserted interest, including the function involved and the burdens
the government would face in providing greater process,” and 2)
through an analysis of “the risk of an erroneous deprivation” of the
private interest if the process were reduced and the probable value,
if any, of additional or substitute safeguards
o AUMF: authorized President to deal with 9/11 instigators
o Government had the power to indefinitely detain an “enemy
combatant,” narrowly defined here as an US citizen who allegedly was
“part of or supporting forces hostile to the US or coalition partners”
in Afghanistan and who “engaged in an armed conflict against the
US”
o AUMF meets 18 USC 4001(a) requirement
o A legally detained enemy combatant who is a citizen cannot be denied
the right to habeas corpus
o Limited role argument is flawed because 1) the Constitution “most
assuredly envisions a role for all three branches when individual liberties
are at stake” and 2) too much power for Executive
o Freedom for fake detainment > burdens for government
 However, government may get relaxed evidentiary standards and a
rebuttable presumption for their evidence

22
 o D entitled to notice and counsel
o Souter’s Concurrence/Dissent
 History of the Non-Detention Act (Japanese Interment) is against
its application here
 Also, Executive should never have sole authority over
defining liberty, expect maybe in moments of genuine
emergency with someone posing an imminent threat, which
isn’t the case here
o Scalia’s Dissent
 The arrest is unconstitutional because there has been no suspension
of habeas corpus and if there was, it is wrong because it came from
the Court rather than Congress
o Thomas’s Dissent
 Federal war powers put this beyond the Court
 If not, balancing should’ve been in government’s favor
 Boumediene v. Bush SOCTUS 2008 (Ds were non-citizens being held at Gitmo
as enemy combatants. Ds sought habeas corpus)
o Suspension Clause (Article I, Sec. 9, Clause 2): “The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.”
o Johnson v. Eisentrager: no habeas corpus for non-citizen, self-
acknowledged enemy combatants in a Germany prison under Allied
control post-WWII
 Three factors for determining the reach of the Suspension Clause
 “the citizenship and status of the detainee and the adequacy
of the process through which the status determination was
made”
 “the nature of the sites where apprehension and then
detention took place”
 “the practical obstacles inherent in resolving the prisoner’s
entitlement to the wait”
23
 o Suspension Clause had effect at Gitmo
o Even if not literally US territory, Gitmo is de facto US
o Eisentrager against government because 1) procedures are insufficient, 2)
unlike German prion, Gitmo is solely under US control, which is absolute
and indefinite, and 3) although habeas corpus proceedings burden
government, “the government presents no credible arguments that the
military mission at Gitmo would be compromised if habeas corpus courts
had jurisdiction to hear the detainees’ claims”
o DTA procedures were inadequate and ineffective as substitute for
habeas corpus
o Detainees were not allowed to present exculpatory evidence that was not
part of the record in the CSRT proceedings
Trump's Muslim Travel Ban and President Obama's DACA Program
 Trump v. Hawai'i SCOTUS 2018 (Trump said a bunch of bigoted shit. Trump
wins and enacted EO-1, which placed travel restrictions on several countries,
several of these countries were Muslim-majority and had been highlighted as
posing national security risks by prior Congress and administration. EO-1
replaced by EO-2, which was very similar)
o 8 USC 1182(f): Presidential power to regulate alien entry that “would be
detrimental to the interests of the US” “whenever the President finds”
o 8 USC 1152(a): “no person shall be discriminated against in the issuance
of an immigration visa because of race, sex…”
o Rational Basis Review: plausible related to government’s stated purpose
 Void if affected by bigoted animus
o Had statutory basis
 EO-2 clearly falls within 1182(f) and 1152(a) is N/A because it is
about visa issuance and EO-2 is about admissibility
o Standard of review is Rational Basis
 Separation of powers delegate foreign affairs to Executive

24
  Courts aren’t great at collecting evidence and drawing inferences
regarding national security
 “Any rule of Constitutional law that would inhibit the flexibility of
the President to respond to changing world conditions should be
adopted only with the greatest caution”
o Constitutional
 EO-2 is expressly premised on legitimate purpose
 EO-2 makes no reference to religion
 Policy covers only 8% of world’s Muslims
 EO-2 targets previously highlighted countries
 Korematsu is N/A
o Kennedy’s Concurrence
 Even if there is no judicial remedy (and maybe even because of
that), government officials should make efforts to affirm their
commitment to the Constitution
o Breyer’s Dissent
 Evidence regarding how the EO’s exemptions and waivers have
been applied would be informative
o Sotomayor’s Dissent
 The extensive anti-Muslim bigotry of this action would clearly
lead a reasonable observer to find that the government action was
enacted for the purpose of religious discrimination (Establishment
Clause standard)
 EO-2 fails Rational Basis too because it “is divorced from any
factual context from which we could discern a relationship to a
legitimate state interest and its sheer breadth is so discontinuous
with the reasons offered for it that the policy is inexplicable by
anything by animus”
 Majority ignores Trump’s highly relevant statements

25
  Reminiscent of Korematsu because “an ill-defined natural security
threat [is used] to justify an exclusionary policy of sweeping
proportion”
 Dep't of Homeland Security v. Regents of the University of California SCOTUS
2020 (Trump administration terminated DACA)
o Administrative Procedure Act (APA)
 Agency action is subject to judicial review
 Agencies must supply “reasoned analysis” for its actions; arbitrary
and capricious actions are invalid
o Action was reviewable
 Because DACA was not merely a non-enforcement policy but
affirmatively created a program for conferring immigration relief,
it constituted agency action, therefore, reviewable
 Action was invalid: arbitrary and capricious
 Government offered no reason for terminating the forbearance of
removal policy
 Government did not consider alternatives within the ambit of the
existing forbearance policy
 Government failed to address whether there was legitimate reliance
on the DACA memo.
o No Equal Protection claim
 P failed to establish a plausible inference that the recission was
motivated by animus
o Sotomayor’s Concurrence/Dissent
 Premature to dismiss Equal Protection claim
o Thomas’s Concurrence/Dissent
 Original DACA was unlawful, therefore, recission was reasonable
o Kavanaugh’s Concurrence/Dissent
 Court should have focused on a later DHS memo that did provide
sufficient justificaiton

26
27
V. THE CONSTITUTION (AND THIS CLASS) IN
TRANSITION
Before (and After) the Civil War
 Slaughterhouse Cases SCOTUS 1872 (LA legislature granted D a monopoly to
the slaughterhouse business in NOLA. Ps were other butchers)
o 14A Privileges or Immunities Clause
o Article 4 Privileges and Immunities Clause: state rights of state citizens
o No involuntary servitude
 13A and 14A only applied to former slaves
 13A is about forced labor
o Did not violate 14A by abridging their privileges or immunities as
citizens
 P or I Clause protects rights of federal (US) citizens from federal
intervention, but does not protect rights of US citizens from state
intervention or citizens of a state from their state
 P or I Clause only applied to US citizens who weren’t citizens of
the state enacting the challenged law
 P or I Clause does not protect right to engage in your chosen trade
o Did not deprive them of their property without due process
 Ps could still work as butchers by working on D’s property
o Did not denied them Equal Protection
o Dissent
 13A and 14A apply to all citizens, not just former slaves
 13A and 14A protect rights from state action, for if not, what
would be the point? Why pass an A that only protects federal rights
from federal intervention, when such protection is already
enumerated in the Constitution?
 Saenz v. Roe SCOTUS 1999 (CA passed a law that limited newly arrived
residents’ welfare to the benefits they would have received in the state they came
from)

28
 o Unconstitutional; violated P or I Clause
o 14A protects right to travel
o Law unconstitutionally treated new citizens of a state differently than old
citizens of a state
o Thomas’s Dissent: P or I Clause needs reevaluation before application
 McDonald v. City of Chicago SCOTUS 2010 (Chicago law limited gun
ownership)
o Standard for incorporation: “fundamental to our scheme of ordered
liberty”
o 2A incorporated via 14A Due Process
o DC v. Heller and history of 2A and 14A made it clear that 2A was a
fundamental right
o Thomas’s Concurrence
 14A Due Process is N/A beause it’s about “process”; 14A P or I
Clause should protect the right
 What the heck is a “fundamental” right? We have no test
o Stevens’s Dissent
 “Firearms have a fundamentally ambivalent relationship to justice”
 Expansive right to keep arms is intrinsic to ordered liberty? Maybe
not, as demonstrated by like-countries
 Not clear that under regulation will be rectified by the democratic
process because pro-gun lobby is politically strong
 Question isn’t 2A incorporated via 14A; it’s is this asserted right
an aspect of 14A “liberty”?
Substantive Due Process: From Lochner to Carolene Products
 Lochner v. New York SCOTUS 1905 (NY passed a law limiting the hours bakers
could work. D was a bakery owner who violated the law)
o Right to contract
o Government’s Police Power: government’s right to pass laws relating to
“the safety, health, morals, and general welfare of the public”

29
 o Holden v. Hardy: UT law regulating mining and smelting was
Constitutional
o Unconstitutional law
o Inappropriately interfered with right to contract
o Baking wasn’t a particularly dangerous occupation
o Bakers, as a class, were not so lacking in intelligence or skill that they
needed special protection
o Government didn’t establish connection between hours or work and
employee or public health
o Allowing law would enable government to regulate basically all
professions
o Harlan’s Dissent: baking is a dangerous profession and this law was
designed to directly deal with that
 Muller v. OR SCOTUS 1908
o Limit on women’s labor was Constitution because of “(a) the physical
organization of women, (b) her maternal functions, (c) the rearing and
education of the children, and (d) the maintenance of the home)
 West Coast Hotel v. Parrish SCOTUS 1937 (law mandated minimum wage for
women)
o Constitutional
o Freedom of contract is not unlimited
o It is within the Police Power to protect women as a class that is susceptible
to economic mistreatment
o The exploitation of workers is detrimental to their wellbeing and creates a
direct burden for the community i.e., “what these workers lose in wages
the taxpayers are called upon to pay”
 United States v. Carolene Products SCOTUS 1938 (law prohibited filled milk)
o Constitutional
o Evidence showed filled milk was dangerous to public health

30
o “Regulatory legislation affecting ordinary commercial transactions is not
to be pronounced unconstitutional unless in light of the facts made known
or generally assumed it is of such a character to preclude the assumption
that it rests upon some Rational Basis within the knowledge and
experience of the legislators”

31
VI. RIGHTS: EQUAL PROTECTION
 Levels of Scrutiny
o Rational Basis: rational related to a legitimate government purpose
o Intermediate Scrutiny: substantially related to an important government
interest
o Struct Scrutiny: narrowly tailored to a compelling government interest
 14A, Section 1. All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
Rational Basis
 Romer v. Evans SCOTUS 1996 (CO law repealed and prohibited laws to prevent
LGBTQ+ discrimination)
o Unconstitutional because it served no legitimate state interest
o Dissent: majority isn’t protecting equal rights, but rather preferential
treatment
 Railway Express v. New York SCOTUS 1949 (Law prohibited trucks from
featuring ads from other companies, but allowed your own ads on your own
trucks)
o Constitutional
o “It is no requirement of equal protection that all evils of the same genus be
eradicated or none at all”
 New York City Transit Authority v. Beazer SCOTUS 1979 (NYCTA rule
prohibited methadone users from employment)
o May be overinclusive, but that did not make it unconstitutional
 U.S. Department of Agriculture v. Moreno SCOTUS 1973 (law prohibited people
living with unrelated others, aimed to go after hippies)
o Unconstitutional

32
 o “a bare congressional desire to harm a politically unpopular group cannot
constitute a legitimate government interest”
 City of Cleburne v. Cleburne Living Center SCOTUS 1985 (law restricted home
for mentally retarded)
o Unconstitutional because no legitimate purpose
o Mentally retarded aren’t a quasi-suspect class
Race-Based Classifications
 Dred Scott v. Sanford SCOTUS 1857 (Missouri Compromise)
o Unconstitutional
o “The right of property in a slave is distinctly and expressly affirmed in the
Constitution”
o Slaves can’t be people because then the Founding Fathers would be a
bunch of evil hypocrites
 Korematsu v. United States SCOTUS 1944 (Japanese internment)
o Constitutional
o It was within Congress’s and the Executive’s war powers to decide that
curfew wasn’t enough and, therefore, internment should be used (it was
impossible to distinguish “loyal” from “disloyal”) in order to deal with
alleged espionage and sabotage
o Murphy’s Dissent
 This is a massive violation of several Constitution rights without
proof backing up the alleged purpose, with lots of evidence of
racism, and without any explanation for why individual process
couldn’t be done, as it had been done with German and Italian
ancestry
o Jackson’s Dissent
 The only thing explaining the treatment of the D is his race
 Loving v. Virginia SCOTUS 1967

33
 o “We reject the notion that the mere ‘equal application’ of a statute
containing racial classifications is enough to remove the classifications
from the 14A’s proscription of all invidious racial discrimination”
o “There is patently no legitimate overriding purpose independent of
invidious racial discrimination which justifies the classification”
 Palmore v. Sidoti (Mother, daughter, and new black husband)
o “The reality of private bias and the possible injury they might inflict are
[not] permissible considerations for removal of an infant child from the
custody of its natural mother”
Race-Based Classifications
 Plessy v. Ferguson SCOTUS 1896
o Separate treatment did not imply the inferiority of African Americans
o “Legislature is powerless to eradicate racial instincts”
o “If one race be inferior to the other socially, the Constitution cannot put
them upon the same plane”
o Dissent
 Government should not be able “to regulate the enjoyment by
citizens of their civil rights solely upon the basis of race.” Our law
is “color-blind”
 Brown v. Board of Education SCOTUS 1954
o “To separate children from others of similar age and qualifications solely
because of their race generates a feeling of inferiority as to their status in
the community that may affect their hearts and minds in a way unlikely
ever to be undone”
 Regardless of equal “tangible” factors
 Washington v. Davis SCOTUS 1976
o A facially neutral law that results in disproportionate impact is
Constitutional unless it also has discriminatory intent/purpose
 McCleskey v. Kemp SCOTUS 1987

34
 o Despite the presentation of empirical evidence that demonstrated racial
disparity in the application of the death penalty in GA, aggregate evidence
is insufficient to invalidate an individual’s death sentence
o No evidence of discriminatory intent
 Swann v. Charlotte-Mecklenburg Board of Education SCOTUS 1971
o Once violations of previous mandates directed at desegregating schools
had occurred, the scope of DC’s power to remedy past wrongs were broad
and flexible
 Remedial plans were to be judged by their effectiveness and the
use of mathematical ratios or quotas were legitimate “starting
points” for solutions
 Although predominately or exclusively black schools may
inevitably occur, given certain circumstances, and “the existence of
some small # of one-race, or virtually one-race, school within a
district is not in and of itself the mark of a system that still
practices segregation by law,” “the court should scrutinize such
schools and the burden upon the school authorities will be to
satisfy the court that their racial composition is not the result of
present or past discriminatory action on their part”
 Non-contiguous attendances zones were within the court’s
remedial powers, as interim corrective measures
 No rigid guidelines could be established concerning busing of
students to particular schools
 Milliken v. Bradley SCOTUS 1974 (One school district (Detroit) out of 54 in the
metro area showed signs of racial segregation)
o Consolidation plan here is impermissible
o Consolidation of separate and autonomous school districts imposing a
cross-district remedy are permissible when “there has been a
Constitutional violation within one district that produces a significant
segregation effect in another district”
o White’s Dissent

35
  “deliberate acts of segregation and their consequences will go
unremedied, not because a remedy would be infeasible or
unreasonable in terms of the usual criteria governing school
desegregation cases, but because an effective remedy would cause
what the Court considers to be an undue administrative
inconvenience to the state”
Affirmative Action: Race-Based Classifications That Allegedly Benefit Minorities
 Regents of the University of California v. Bakke
 Grutter v. Bollinger SCOTUS 2003 (D U of MI Law School included race as a
diversity factor because of “the educational benefits that flow from a diverse (not
quotas! Just a “critical mass”) student body.” P was a white applicant who was
rejected)
o Strict Scrutiny
 Compelling state interest + narrowly tailored
 Applies to policies involving race
 Requites compelling state interest and narrow tailoring
o Quotas/”racial balancing” are unconstitutional
o Constitutional
o In the contract of higher education, student body diversity is a compelling
state interest
 Exposure to diversity necessary for education, working, and
citizenship
 Diversity is important for legitimacy
o Narrowly tailored
 No quotas
 Race is only one kind of diversity D recognized
 DC’s belief that D could’ve used alternative, race-neutral methods
“would require a dramatic sacrifice of diversity, the academic
quality of all admitted students, or both”
o Thomas’s Concurrence/Dissent

36
  If D could not remain a top law school and admit students under a
race-netural system, the “Law School should be forced to choose
between its classroom aesthetic and its exclusionary admissions
system”
 No compelling state interest in maintaining an elite law school
 This is plainly racial balancing
o Rehnquist’s Dissent
 Not narrowly tailor to the “critical mass” goal because of
disparities among minorities accepted i.e., why is 90 Black
students, 47 Hispanic students, and 13 Native American students
equally sufficient to reach “critical mass”?)
o Kennedy’s Dissent
 Too much deference to D for this to be legitimate strict scrutiny
 Gratz v. Bollinger SCOTUS 2003 (D U of MI had an admissions policy that
automatically gave applicants 20 out of 150 points for meeting one of several
potential diversity categories. Ps were white applicants who were denied)
o Unconstitutional
o Although the policy was a valid compelling state interest, it wasn’t
narrowly tailored because it did not provide for individual consideration
and had the effect of making the factor of race decisive for virtually every
minimally qualified underrepresented minority applicant”
o “the fact that the implementation of a program capable of providing
individual consideration might present administrative challenges does not
render Constitutional an otherwise problematic system”
o O’Connor’s Concurrence
 Automatic points are bad; individualized consideration is good
o Ginsburg’s Dissent
 Policies that advantage minorities are not inherently
unconstitutional because America has recently and barely even
begun to remedy its extensive history of discrimination against
minorities

37
 Fisher v. University of Texas, Austin SCOTUS 2016 (TX had a “Top Ten
Percent” law. D UT of Austin considered race in admissions too. Pw as a white
student whose applications was rejected)
o Grutter v. Bollinger: diversity’s effect on education is a legitimate interest
o Fisher I
 “Once a Uni. gives a reasoned, principled explanation for its
decision, deference must be given…”
 “No deference is owed when determining whether the use of race
is narrowly tailored”
 Uni. must demonstrate that available and workable race-
neutral alternatives don’t suffice
o “A Uni.’s goal cannot be elusory or amorphous–they must be sufficiently
measurable to permit judicial scrutiny of the policies adopted to reach
them”
o D articulated its compelling state interest with sufficient clarity
o Can’t be number specific because that’d be quotas
o D provided clear evidence its goal hadn’t been met via race-neutral
policies
o D could consider race because it had not yet achieved “critical mass”
using the 10% plan and race-neutral review
o Evidence showed considering race had more than a minimum impact
in advancing the interest
o There were no other, race-neutral methods
o Uncapping the % plan and admitting more students via a % plan
didn’t work
o Such a plan would exclude other kinds of diversity and “create perverse
incentives for applicants”
o Thomas’s Dissent
 “A state’s use of race in higher education admissions decisions is
categorically prohibited by the Equal Protection Clause

38
 o Alito’s Dissent
 Insufficient clarity
 Too much deference
"On the Basis of Sex": The Life of RBG
 Frontiero v. Richardson SCOTUS 1973 (*4/4 split therefore no precedent
established) (US military automatically gave dependent wives benefits, but did
not automatically give benefits to dependent husbands. P was a female Air Force
Lt. with a dependent husband, who was denied benefits)
o Reed v. Reed: sex discrimination without basis = unconstitutional
o Unconstitutional
o History of discrimination against women
o Like race, sex is immutable and not made by choice
o D demonstrated no benefit of policy
o Powell’s Concurrence
 Law here in unconstitutional, but let’s not yet designate sex as a
suspect classification
o Laws that discriminate by sex should face Strict Scrutiny
 Craig v. Boren SCOTUS 1976 (OK law prohibited the sale of “nonintoxicating”
3.2% beer to males under 21 and females under 18. This was based on various
empirical studies. I think it was about young adult drunk driving?)
o Unconstitutional; “classifications by gender must” face Strict Scrutiny
o Studies offered insufficient justification
o Rehnquist’s Dissent
 Rational Basis should apply, which it would pass
 Majority created a standard “out of thin air” that is difficult to
analyze
 Plenty of empirical studies to support this
 United States v. Virginia SCOTUS 1996 (D VA Military Institute (VMI) was a
single-sex college that featured an “adversative method” to develop “citizen-
soldiers.” After the 4th Cir. found for P, D developed a parallel but separate

39
 program for women, claiming single-sex education has benefits and modifying
their program for women would effectively “destroy” it)
o “A remedial decree must closely fit the Constitutional violation; it must be
shaped to place persons unconstitutionally denied an opportunity or
advantage in ‘the position they would have occupied in the absence of
discrimination’”
 “A proper remedy for an unconstitutional exclusion aims to
‘eliminate the discriminatory effects of the past’ and to ‘bar like
discrimination in the future’”
o “Parties who seek to defend gender-based government action must
demonstrate an ‘exceedingly persuasive justification’ for that action”
o “‘benign’ justifications proffered in defense of categorical exclusions will
not be accepted automatically; a tenable justification must describe actual
state purposes, not rationalizations for actions in fact differently
grounded”
o Unconstitutional
o No evidence the policy serves the alleged purpose or that the goal of
citizen-soldiers can’t be fulfilled with women
o Unacceptable remedy
o Alternative school wouldn’t be as good
o Scalia’s Dissent
 Majority denied value of an all-male higher education
 Wrote modern day preferences into the law
 Geduldig v. Aiello SCOTUS 1974 (CA disabled workers law did not cover
certain disabilities resulting from pregnancy. Covering these disabilities would
substantially increase costs and require changes to the program, potentially
upsetting its self-supporting nature by requiring state subsidies)
o “a state ‘may take one step at a time, addressing itself to the phase of the
problem which seems most acute to the legislative mind. . . . The
legislature may select one phase of one field and apply a remedy there,
neglecting the other’”
40
 o “with respect to social welfare programs, so long as the line drawn by the
state is rationally supportable, the courts will not impose their judgement
as to the appropriate stopping point”
o Constitutional
o “The state has a legitimate interest in maintaining the self-supporting
nature of its insurance program”
o “There is no risk from which men are protected and women are not.
Likewise, there is no risk from which women are protected and men are
not”
o Brennan’s Dissent
 “By singling out for less favorable treatment a gender-linked
disability peculiar to women, the State has created a double
standard for disability compensation: a limitation is imposed upon
the disabilities for which women workers may recover, while men
receive full compensation for all disabilities suffered, including
those that affect only or primarily their sex such as…In effect, one
set of rules is applied to females and another to males”
"On the Basis of Sex": The Life of RBG
 Califano v. Goldfarb SCOTUS 1977 (a law provided full social security benefits
to a widow but conditional full benefits to a widower)
o Frontiero v. Richardson
o Weinberger v. Wiesenfeld
o Violated 5A
o “archaic and overbroad” generalizations regarding the “old notions” of
gender roles that a wife is more likely to be dependent on her husband
than vice-versa were not sufficient to justify the different treatment of
widows and widowers”
 Orr v. Orr SCOTUS 1979 (AL law required husbands, but not wives, to pay
alimony open divorce)
o Unconstitutional

41
 o Even though providing help for needy spouses and remedying past
discrimination against women are both important government objectives,
the distinction between husbands and wives created by the law was 1) not
substantially related to achieving either of those objectives and 2) based
on sexual stereotypes that cannot justify the discrimination
 Mississippi University for Women v. Hogan SCOTUS 1982 (Congress authorized
the registration of men, but not women, under the Military Selective Service Act)
o Constitutional
o “The purpose of registration was to prepare for a draft of combat troops”
and the Navy, Air Force, Army, and Marines preclude women from
combat roles, therefore, no need to register women
o White’s Dissent
 “I perceive little, if any, indication that Congress itself concluded
that every position in the military, no matter how far removed from
combat, must be filled with combat-ready men”
 “I cannot agree with the Court, that Congress concluded or that the
legislative record indicates that each of the services could rely on
women volunteers to fill all the positions for which they might be
eligible in the event of mobilization”
 Rostker v. Goldfarb
 Califano v. Webster SCOTUS 1977 (Social security rule benefitted women by
allowing them to “eliminate additional low-earning years from the calculation of
their retirement benefits”)
o Constitutional
o “allowing women, who as such have been unfairly hindered [(by male-
dominated job market and culture)] from earning as much as men, to (do
the thing) works directly to remedy some part of the effect of past
discrimination”
 Nguygen v. INS SCOTUS 2001 (Immigration law imposed more burdens, when
attempt to gain citizenship, on a child born outside the US to an unwed male

42
 citizen and a female noncitizen, than a child born outside the US to an unwed
female citizen and a male noncitizen)
o Constitutional
o It advanced the important government objectives of 1) “assuring that a
biological parent-child relationship exists” and 2) ensuring “that the child
and the citizen parent have some demonstrated opportunity or potential to
develop not just a relationship that is recognized by the law, but one that
consists of real, everyday ties that provide a connection between child and
citizen parent and, in turn, the US”
o O’Connor’s Dissent
 No evidence that either of these goals were contemplated by
Congress
 Is the second interest actually important?
 Why is it only the opportunity for a relationship? Shouldn’t it be
the existence of a relationship?
 “The idea that a mother’s presence at birth supplies
adequate assurance of an opportunity to develop a
relationship while a father’s presence at birth does not
would appear to rest only on an overbroad sex-based
generalization”
 

43
VII. RIGHTS: DUE PROCESS
Love, Sex, and Contraception
 Buck v. Bell SCOTUS 1927 (VA law allowed for the sterilization of the mentally
enfeeble)
o Constitutional on public welfare grounds (enfeebled were a drain on
resources and a threat of crime)
 Skinner v. Oklahoma SCOTUS 1942 (OK law required the sterilization of
“habitual criminals” (two or more convictions for “felonies involving moral
turpitude”))
o Unconstitutional
o Procreation is a “basic liberty” and the law discriminated without basis
i.e., what is the biological difference between one who commits larceny
and one who embezzles?
 Griswold v. Connecticut SCOTUS 1965
o A right to privacy can be inferred from several Amendments in the Bill
of Rights (“specific guarantees in the Bill of Rights have penumbras”) and
this right prevents states from making the use of contraception by married
couples illegal
o Goldberg’s Concurrence
 9A protects rights not enumerated
 “The inquiry is whether a right involved ‘is of such a character that
it cannot be denied without violating those “fundamental principles
of liberty and justice which lie at the base of all our civil and
political institutions”’”
 Even with the legitimate state interest in discouraging extra-marital
relations, this law isn’t narrowly tailored
o Harlan’s Concurrence
 Law violated the basic values implicit in the concept of ordered
liberty
o White’s Concurrence

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  Law has no relation to state goal
o Black’s Dissent
 No written right to privacy
 Reading-in rights is judicial overreach
 If the Constitution needs to be changed to fit modern times, let it
be done via Amendments
o Stewart’s Dissent
 Up to the legislature
 Eisenstadt v. Baird SCOTUS 1972 (MA law provided contraception to married
persons in certain circumstances and contraception to unmarried persons in
difference circumstances)
o Unconstitutional
o Right to privacy extends to both groups and it violated Equal Protection
o Burger’s Dissent
 This law validly regulated who could distribute contraception i.e.,
medical personnel vs. non-medical personnel
Love, Sex, and Pregnancy
 Roe v. Wade SCOTUS 1973 (TX law criminalized abortion, except in order to
save the life of the mother, without regard to the stage of the pregnancy or other
interests)
o A state cannot outlaw abortion
o The fundamental right to privacy, based on either 9A or 14A, “is broad
enough to encompass a woman’s decision whether or not to terminate her
pregnancy. The detriment the state would impose upon the pregnant by
denying this choice altogether is apparent…”
o A state can regulate abortion
o “a state may properly assert important interests in safeguarding health in
maintaining medical standards, and in protecting potential life. At some
point in pregnancy, these respective interests become sufficiently

45
 compelling to sustain regulations of the factors that govern the abortion
decision”
 First trimester: unlimited right “because of the now-established
medical fact that until the end of the first trimester mortality in
abortion may be less than mortality in normal childbirth”
 Post-first trimester: logically flowing from the above fact, post-
first trimester “the state, in promoting its interest in the health of a
mother, may, if it chooses, regulate the abortion procedure in ways
that are reasonably related to maternal health”
 Post-viability: “because the fetus then presumably has the
capability of meaningful life outside the mother’s womb,” “the
state in promoting its interest in the potentiality of human life may,
if it chooses, regulate, and even proscribe, abortion except where it
is necessary, in appropriate medical judgement, for the
preservation of the life or health of the mother”
o The unborn are not “people”
o The Constitution doesn’t define “person” as such and “throughout the
major portion of the 19th Century prevailing legal abortion practices were
far freer than they are today”
o IDK when life begins
o “When those trained in the respective disciplines of medicine, philosophy,
and theology are unable to arrive at any consensus, the judiciary, at this
point in the development of man’s knowledge, is not in a position to
speculate as to the answer”
o Rehnquist’s Dissent
 This is not privacy
 If this is a form of 14A “liberty” “from unwanted state regulation
of consensual transactions” then it is only protected from
“deprivation without due process of law” and, therefore, would
face Rational Basis
 Breaking pregnancy into these three terms is “judicial legislation”

46
 Planned Parenthood v. Casey SCOTUSS 1992 (PA imposed a 24-hour waiting
period and required spousal notification before abortion)
o Three “essential” holdings of Roe
1. “a recognition of the rights of the woman to choose to have an
abortion before viability and to obtain it without undue
interference from the state”
2. “a confirmation of the state’s power to restrict abortions after fetal
viability” with health exception
3. “the principle that the state has legitimate interests from the outset
of the pregnancy in protecting the health of the women and the life
of the fetus that may become a child”
o “not every law which makes a right more difficult to express is, ipso facto,
an infringement of that right”
o Essential holdings of Roe affirmed
o Roe 1) is still workable, 2) couldn’t be removed without injurying those
who have relied on it, 3) is not “a doctrinal anachronism discounted by
society” because “no evolution of legal principles has left Roe’s doctrinal
footings weaker than they were in 1973,” and 4) is premised on facts that
have not so far changed “as to render its central holding somehow
irrelevant or unjustifiable in dealing with the issue it addressed” i.e.,
viability at 28 weeks vs. 22 or 23 weeks doesn’t affect the soundness of
viability as the line for State’s interest
o Unenumerated rights
o Stare decisis
o No more trimester framework
o Viability > trimester because it’s more workable and the above advances
in medical facts
o From conception, state has interest in ensuring those seeking an abortion
are “thoughtful and informed”

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o Pre-viability abortion regulations should be analyzed via undue
burden
o “Appropriate means of reconciling the state’s interest with the woman’s
Constituionally protected liberty”
o Restrictive ≠ improper
o New framework
 Post conception: “To promote the state’s profound interest in
potential life, through pregnancy the state may take measures to
ensure that the woman’s choice is informed” but no undue burden
 Pre-viability: unlimited right
 Post-viability: state can limit, except for health
o 24 hour waiting period is not an undue burden; spousal notice is
o Blackmun’s Concurrence/Dissent
 Regulations violate woman’s right to privacy by 1) compelling
continuation of a pregnancy, which infringes on a woman’s right to
bodily integrity by imposing substantial physical intrusion and
risks of physical harm, and 2) deprives her of right to make
decisions regarding reproduction and family planning
 Gender discrimination
 Strict Scrutiny > undue burden
 Compelled childbirth and motherhood have negative consequences
 This right should not need to “seek refuge at the ballot box”
o Rehnquist’s Concurrence/Dissent
 Roe should be overturned
 Right to abortion is different than other rights to privacy because it
involves another life
 This right isn’t “fundamental”
o Scalia’s Concurrence/Dissent
 Should be left to the legislature
 This right isn’t in the Constitution and there’s a history of
proscribing it

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  Roe made abortion debate louder, not resolved
 Gonzalez v. Carhart SCOTUS 2007 (Congressional Act prohibited the “brutal and
inhumane intact dilation and extraction (D&E) procedure (partial-birth abortion)
in order to avoid “further coarsen society to the humanity of not only newborns,
but al vulnerable and innocent human life.” No medical consensus regarding
intact D&E)
o PP v. Casey
 No pre-viability restrictions
 No undue burdens
 “Regulations which do no more than create a structural mechanism
by which the state…may express profound respect for the life of
the unborn are permitted, if they are not a substantial obstacle to
the woman’s exercise of the right to choose”
o Constitutional
o “The state has an interest in ensuring so grave a choice is well informed”
o (A lot of logically questionable moral grandstanding)
o “It was reasonable for Congress to think that partial-birth abortion, more
than standard D&E, ‘undermines the public’s perception of the appropriate
role of a physician during the delivery process, and perverts a process
during which life is brought into the world”
o “Medical uncertainty des not foreclose the exercise of legislative power in
the abortion context any more than it does in other contexts. The medical
uncertainty over whether the Act’s prohibition creates significant health
risks provides a sufficient basis to conclude in this facial attack that the
Act does not impose an undue burden”
 “The Court has given state and fed legislature wide discretion to
pass legislation in areas where there is medical and scientific
uncertainty”
o Ginsburg’s Dissent
 “The Court blesses a prohibition with no exception safeguarding a
woman’s health”

49
  Law affects adolescents and indigent women, who are less likely to
get a first trimester abortion
 Congress’s factual findings were crazy wrong, especially their
finding that D&E is never necessary
 DCs disagreed with Congress
 Law doesn’t further alleged interest in “promoting fetal life”
because “the law saves not a single fetus from destruction, for it
targets only a method of performing abortion”
 Why is intact D&E less “brutal” than nonintact D&E?
 In dealing with the allegedly difficult choice women must make,
“the solution the Court approves is not to require doctors to inform
women. . . . Instead, the Court deprives women of the right to
make an autonomous choice”
 Getting an abortion > “delivering and parenting a child that
she did not intend to have”???
 Majority used pejorative
 Majority focuses on all women, but abortion restrictions “must be
judged by reference to those women for whom it is an actual rather
than irrelevant restriction”
 “The very purpose of a health exception is to protect
women in exception cases”
 Court leaves Act open “to a proper as-applied challenge in a
discrete case” but women suffering complications require
immediate care
 Whole Women's Health v. Hellersetedt SCOTUS 2016 (TX law imposed an
admitting privileges requirement and a surgical-center requirement)
o PP v. Casey: undue burden
 “a statute which, while furthering a valid state interest, has the
effect of placing a substantial obstacle in the path of a woman’s
choice cannot be considered permissible means of serving its
legitimate ends”

50
  “unnecessary health regulations that have the purpose or effect of
presenting a substantial obstacle to a woman seeking an abortion
impose an unburden on the right”
o Both were unconstitutional undue burdens
o Evidence demonstrated the requirements did not improve healthcare, they
would have imposed significant costs on providers, they would reduce the
number of providers, thus increasing distances and wait times for patients,
etc.
o Thomas’s Dissent
 Majority made undue burden test harder than PP v. Casey
o Alito’s Dissent
 Should’ve just severed the unconstitutional parts
 June Medical v. Russo SCOTUS 2020 (Robert’s Concurrence)
o “The LA law imposes a burden on access to abortion just as severe as that
imposed by the TX law [in Hellersetedt], for the same reasons, therefore,
LA’s law cannot stand under our Precedents”
o Get rid of demonstrable evidence standard entirely
o No balancing interest test because no way a court can adequately balance.
So we’ll look at the restriction and decide if it’s a substantial obstacle
Love, Sex, and Marriage
 United States v. Windsor SCOTUS 2013 (Section 3 of DOMA defined marriage
as “a legal union between one man and one woman as husband and wife”)
o Unconstitutional
o The states had historically/traditionally defined marriage
o Law violated Due Process and Equal Protection because “the avoid
purpose and practical effect of the law here in question are to impose a
disadvantage, a separate status, and so a stigma upon all who enter into
same-sex marriages made lawful by the unquestioned authority of the
states”
o Roberts’s Dissent

51
 1. Need more proof of “malice” and lack of legitimate interest
o Scalia’s Dissent
2. “The Constitution does not forbid the government to enforce
traditional moral and sexual norms”
3. “The Constitution neither requires nor forbids out society to
approve of same-sex marriage”
4. Creates legal uncertainty e.g., married gay couple moves from
Albany to AL
 Zablocki v. Redhail SCOTUS 1978 (WI law prevented individuals from marrying
without court approval if the person had a minor child not in his or her custody for
whom there was a court order to pay support)
o Unconstitutional
o Marriage is a fundamental right
o While “ensuring that child support was paid for minor children” was a
substantial state interest, the law wasn’t narrowly tailored (prevented
marriage “without delivering any money at all into the hands of the
applicant’s prior children”) and there were less intrusive alternatives
o Reframed Loving v. VA as affirming the sanctity of marriage, as
opposed to just Equal Protection
 Obergefell v. Hodges SCOTUS 2015
o Same-sex marriage is Constitutional
o “The Court has long held the right to marry is protected by the
Constitution (fundamental)” e.g., Loving v. VA, Zablocki v. Redhail,
Turner v. Safley
o Four principles and traditions that demonstrate marriage is fundamental
under the Constitution and that right applies with equal force to same-sex
couple
1. “the right to personal choice regarding marriage is inherent in the
concept of individual autonomy”
 “The Court has noted it would be contradictory ‘to
recognize a right to privacy with respect to other matters of
52
 family life [(contraception, family relationships,
procreation, childbearing)] and not with respect to the
decision to enter the relationship that is the foundation of
the family in our society”
2. Marriage “supports a two-person union unlike any other in its
importance to the committed individual (Griswold v. CT)
 Lawrence v. TX: “same-sex couples have the same right as
opposite-sex couples to enjoy intimate association”
3. Marriage “safeguards children and families, and thus draws
meaning from related rights of childbearing, procreation, and
education”
 “By giving recognition and legal structure to their parents’
relationship, marriage allows children ‘to understand the
integrity and closeness of their own family and is concord
with other families in their community and in their daily
lives”
 “Without the recognition, stability, and predictability
marriage offers, their children suffer the stigma of knowing
their families are somehow less”
4. “Marriage is a keystone of our social order”
 “For that reason, just as a couple vows to support each
other, so does society pledge to support the couple, offering
symbolic recognition and material benefits to protect and
nourish the union”
 “Yet by virtue of their exclusion from that institution,
same-sex couples are denied the constellation of benefits
that the states have linked to marriage”
o “the dynamic of our Constitutional system is that individuals need not
await legislative action before asserting a fundamental right. . . . An
individual can invoke a right to Constitutional protection when he or she is

53
 harmed, even if the broader public disagrees and even if the legislature
refuses to act”
o Roberts’s Dissent
 This is a legislative issue, for which there are compelling policy
arguments, not a judicial issue, for which there are not compelling
arguments
 Wouldn’t Majority’s reasoning enable polygamy?
 “The purpose of insisting that implied fundamental rights have
roots in the history and tradition of our people is to ensure that
when unelected judges strike down democratically enacted laws,
they do so based on something more than their own benefits”
 No Equal Protection basis offered
 Judicial intervention provokes conflict, not resolves it
o Scalia’s Dissent
 Judicial overreach
 Court is creating rights
 The Majority “have discovered in the 14A a ‘fundamental right’
overlooked by every person alive at the time of ratification, and
almost everyone else in the time since”
o Thomas’s Dissent
 Due Process Clause is only about process, not substance
 This is not included in “liberty”; there has been no restrictions
 “liberty has long been understood as individual freedom
from government action, not as a right to a particular
government entitlement”
 “one’s liberty…was something to be shielded from–not
provided by–the state”
o Alito’s Dissent
 No “deep roots” and contrary to tradition
 This will cause opponents to be labelled bigots

54
  Enables Court to “invent a new right and impose that right on the
rest of the country,” limited only by “their own sense of what those
with political power and cultural influence are willing to tolerate”
 Pavan v. Smith SCOTUS 2017 (Gorsuch’s Dissent)
o Obergefell was limited to recognition of same-sex marriage and did not
extend to the constitutionality of biology-based birth certificate rules, like
the one at issue here
 
 

55
VIII. FIRST AMENDMENT
Weaponization of the First Amendment
 Janus v. AFSCME SCOTUS 2018
o Forcing public employees to subsidize a union, even if they chose not to
join and strongly objected to the positions the union took in collective
bargaining and related activities, violated the free speech rights of
nonmembers by compelling them to subsidize private speech on matters of
substantial public concern
 NIFLA v. Becerra SCOTUS 2018 (The CA Reproductive Freedom,
Accountability, Comprehensive Care, and Transparency Act (FACT Act) required
unlicensed crisis pregnancy centers to notify women that CA has not licensed the
clinics to provide medical services, in order to ensure that pregnant women know
when they are receiving health care from licensed professionals)
o Unconstitutional
o The licensed requirement was under-inclusive in relation to the stated goal
of the FACT Act, and thus, petitioners who sought to enjoin enforcement
of the FACT Act were likely to succeed on the merits of their First
Amendment challenge to the requirement that licensed covered facilities
give notice regarding publicly provided family planning services
o Moreover, the FACT Act's requirement that unlicensed covered facilities
give notice of their unlicensed status was unjustified and unduly
burdensome, even if subject to deferential review. Even if CA had offered
more than a hypothetical justification for the notice, the FACT Act unduly
burdened protected speech by imposing a government-scripted, speaker-
based disclosure requirement that was wholly disconnected from CA’s
informational interest
Equality Act
 Employment Division v. Smith SCOTUS 1989 (Two counselors for a private drug
rehabilitation organization ingested peyote as part of their religious ceremonies as

56
 members of the Native American Church. As a result of this conduct, the
rehabilitation organization fired the counselors)
o A state can deny unemployment benefits to a worker fired for using
illegal drugs for religious purposes
o Religious beliefs do not excuse someone from complying with law of
general applicability (a law aimed at something other than promoting or
restricting religious beliefs)
o  The Court has never held that an individual's religious beliefs excuse him
from compliance with an otherwise valid law prohibiting conduct that
government is free to regulate. Allowing exceptions to every state law or
regulation affecting religion "would open the prospect of constitutionally
required exemptions from civic obligations of almost every conceivable
kind"
 Burwell v. Hobby Lobby SCOTUS 2013 (Ps, family that organized their business
around the principles of the Christian faith and explicitly expressed the desire to
run the company according to Biblical precepts, argued that the requirement that
the employment-based group health care plan cover contraception violated the
Free Exercise Clause of the First Amendment and the Religious Freedom
Restoration Act of 1993 (RFRA))
o RFRA allows a for-profit company to deny its employees
contraception to which the employees would otherwise be entitled
based on the religious objections of the company's owners
o RFRA exception applies to for-profit corporations & contraception
requirements create a substantial burden that is not the least restrictive
method for satisfying govt interest
o Congress intended for the RFRA to be read as applying to corporations
since they are composed of individuals who use them to achieve desired
ends. Because the contraception requirement forces religious corporations
to fund what they consider abortion, which goes against their stated
religious principles, or face significant fines, it creates a substantial burden
that is not the least restrictive method of satisfying the government's

57
 interests. In fact, a less restrictive method exists in the form of the HHS’
exemption for non-profit religious organizations, which can and should be
applied to for-profit corporations such as P
o This ruling only applies to the contraceptive mandate in question rather
than to all possible objections to the ACA on religious grounds
o Ginsburg’s Dissent
 Employment Division v. Smith: there is no violation of the
freedom of religion when an infringement on that right is merely
an incidental consequence of an otherwise valid statute
 Judicial precedent states that religious beliefs or observances must
not impinge on the rights of third parties, as the sought-after
exemption would do to women seeking contraception in this case
 Because for-profit corporations cannot be considered religious
entities, the burden the respondents claim is not substantial, and the
government has shown a sufficiently compelling interest
 Masterpiece Cakeshop v. Colorado Civil Rights Commission (Wedding cake
maker refused to make cake for gay couple because of religious beliefs)
o Cannot compel to perform
o Religious objections to same-sex marriage are also protected forms of
expression
 Little Sisters of the Poor v. PA (Nonprofit religious employer brought RFRA
challenge against requirement that they provide contraception in health care
coverage)

o Federal government exemption for religious reasons was proper

o Don’t quite reach RFRA, but say that right to religious exercise is
unalienable, should analyze a burden under strict scrutiny framework, and
clear on the face of the statute that contraceptive mandate is capable of
violating RFRA

58
 Fulton v. City of Philadelphia 3rd Cir. (Catholic Social Services argued that Free
Exercise and Speech clauses allowed it to reject qualified same-sex foster parents)
o Insufficient evidence that City violated Free Exercise clause
o Ask whether CSS was treated differently because of its religious beliefs,
following in the logic of Masterpiece Cakeshop

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