Constitutional Law I: Prakash Outline No. 2

Constitutional Outline


Role of the Supreme Court in Constitutional Order


I)      Creating a Constitution that is Binding

a)      Why do people adopt a Constitutions?

i)        Rules of how society functions

ii)      Allocation of power

iii)    Defines the relationship between government and people

iv)    Limits governmental power

b)      What is unique about a constitution compared to statutes?

i)        The constitution has a bill of rights that set out the rights of the people.

ii)      Harder to change than a statute

iii)    They are meant to last a long time

iv)    Set out powers of government and states

v)      Constitution is meant to constrain us

vi)    Constitution Limits power

(1)   Congress cant pass ex-post facto law

c)      Who can amend the Constitution?

i)        Art. 5

(1)   2/3 of both houses of the constitution or 2/3 of states needed for constitutional convention to propose.

(2)   ¾ of all the states legislatures for ratification.

(a)    Very difficult to change.

ii)      English Constitution

(1)   Changed by ordinary legislation.

(2)   It is a series of customs that can be changed by statute.

d)      Why should we be bound by this constitution?

i)        It binds us because we feel a loyalty to it, even people who don’t like it go along with it.

ii)      Its not clear why, but it has something to do with reason above.

e)      What does the Constitution mean?

i)        Look at Text

ii)      Look to Originalism

(1)   Framer’s intent

(2)   Ratifier’s Intent

(3)   Public/Semantic Meaning at the time

iii)    Historical Practice

iv)    Precedent – Look at what courts have said in the past.

v)      Moral -We should look at it by moral standards today.

vi)    Prudential – What works best for us today.

vii)  Structural Argument

(1)   In Marbury v. Madison, Marshall said that for us to carry out the function we have to do this, its how to manage this beast.

(2)   Look at how words are used in other parts of the constitution to get the meaning of the words.

f)       Problems with the Articles of Confederation

i)        Did not have the power to tax.

ii)      Every state needed to agree to have an amendment.


II)   The Basic Framework

a)      Marbury v. Madison

i)        Facts

(1)   William Marbury wants to get his commission, nominated by president, affirmed by senate, signed by president, Seal fixed by Secretary of State, John Marshall.

(2)   Madison, the new Sec. of State refused to give the commission.

ii)      Issue

(1)   Does Marbury have a right to the commission?

(2)   If so, and if that right has been violated, does Marbury have a legal remedy?

(3)   Is the legal remedy a writ of mandamus issuing from the Supreme Court?

iii)    Black Letter:

(1)   Where the Constitution of the United States, as interpreted by the Supreme Court, conflicts the laws enacted by Congress, the Supreme Court may declare such laws unconstitutional and invalid.

iv)    Court

(1)   Issue 1: Does Marbury have a right to the commission?

(a)    Yes, because the president signed the commission and the secretary of state sealed it.

(b)   The constitution does not say when an appointment is complete

(i)     Article 2, Section 2, Clause 2: discusses appointments.

(c)    Marshall says the appointment is made when the commission is signed. So Marbury was a Justice of the Peace right when the Pres. Adams signed the commission.

(d)   Arguments against this view:

(i)     Nowhere in the constitution does it say that the commission is complete when the president signs it.  There is no support besides Marshall’s own reasoning.

(2)   Issue 2. If so, and if that right has been violated, does Marbury have a legal remedy?

(a)    Marbury has a right to remedy because he had a legal right (entitled to the commission) that was violated.

(i)     Marshall says that there are some duties of the executive branch that the court will not review because they are at the discretion of the Pres. (e.g. political questions)

(b)   There are legal duties of officers that the courts can review to see if they have met the legal duties.

(i)     Delivering a commission is a legal duty, not a political duty.

1.      Marshall says; If you have a right to something, it can’t be a political duty, b/c political duties don’t concern the rights of others.

2.      Legal duty: concerns the rights of an individual

(3)   Issue 3: Is the legal remedy a writ of mandamus issuing from the Supreme Court?

(a)    Court cannot issue this writ of mandamus b/c the constitution lists specific categories for original jurisdiction and the court does not have jurisdiction over this case. 

(i)     Judiciary Act of 1789 allows the court to issue writs of mandamus in original actions.

(b)   BUT, the constitution gives the Supreme Court limited original jurisdiction  (Article 3, Section 2: “ambassadors, public ministers and consuls and where the state is a party”).

(i)     In all other cases the S.C. has appellate jurisdiction.

(c)    So why isn’t Madison considered a public minister (and thus making this okay for original jurisdiction)?

(i)     Ambassadors and consuls are foreign officials, so people assume that public ministers are also foreign.

(ii)   So the constitution does not give jurisdiction in this case.

(4)   Marshall’s comments on the conflict of the Act and the Constitution.

(a)    Construction of section 13 of the judiciary act. Marshall saw a conflict with the constitution where none was intended. The act of congress is arguably not in conflict with the constitution.

(b)   There is nothing wrong with SC issuing a writ of mandamus where they otherwise have original jurisdiction. The statute does not confer original jurisdiction, as Marshall had read it, so it was not doing something unconstitutional, it jus mentions that the SC has that writ right.

(5)   Arguments in Favor of Judicial Review

(a)    Oath

(i)     Article 6, Section 3 – Judges must take oath to support the Constitution, so they must prefer it over contrary statutes.

1.      Counterargument – We all take the same oath, doesn’t follow you alone interpret.

(b)   Supremacy Clause

(i)     Article 6, Section 2 – “this constitution, and the laws of the US which shall be made in Pursuance thereof”

(ii)   Marshall takes it to mean that laws consistent with the constitution are part of the supreme law and laws inconsistent must give way to the constitution.

(iii)  “Pursuance thereof” could be read to say: A law is not made in pursuance to the constitution if it is repugnant. OR

(iv) Could be read to mean that laws made under this constitution are the laws of the land, and not the laws made before this Constitution under the Articles of Confederation.

(v)   Supremacy Clause says that 

1.      constitution is supreme

2.      laws made under the constitution are supreme

3.      all treaties made before and after the const are still binding.

(c)    Written Constitution

(i)     Permanency

(ii)   The fact that it is a text makes it enforceable

(iii) isn’t supposed to change overtime, except through its own provisions for change – Article 5amendment process

1.      Marshall’s argument is weak – it doesn’t necessarily follow that b/c a written constitution isn’t meant to change “willy nilly” that the judiciary has the job of enforcing the constitution.

2.      There are nations with written constitutions without judicial review – so it doesn’t follow obviously.

(d)   Jurisdiction over All Cases

(i)     Article 3, Section 2 - grants jurisdiction in all cases “arising under”

(ii)   Marshall says if we have jurisdiction over cases arising under the constitution it seems reasonable that we have to interpret the constitution.

1.      Argument is weak: This still doesn’t explain why the court has the specific authority to say why statutes are unconstitutional. This language doesn’t necessarily mean that the court has authority to decide whether or not a statute is unconstitutional.

(e)    Congress Needs to be Checked (similar to written const argument)

(i)     Still not obvious even if Congress needs someone to check them that it should be the Supreme Court

(f)    Judicial Role of the Courts to Interpret

(i)     Marshall argues that it is logical for this interpretive role to extend to the constitution

(ii)   Everyone agrees Courts interpret and enforce statutes

1.      Prakash says that it is not obvious that the constitution is law for the Courts to apply as opposed to something for only Congress to apply.

(g)    Treason Clause

(i)     Article 3, Section 3

1.      Cannot convict on treason unless they confess or 2 people testify.

(ii)   Marshall says: this speaks directly to the Courts.  If they are supposed to enforce one part of the constitution, why should they ignore the rest of it when confronted with unconstitutional matters.

1.      If partial enforcement of constitution, then full enforcement is required.

(iii) Still not obvious Marshall is right. An alternative conception would be that the court is allowed to look at the whole constitution, but when the legislature enacts a law that reveals its interpretation of the constitution the court should follow it.

(6)   Does the Jud. Act of 1789 really conflict with the constitution?

(a)    Article 3, Section 2, Clause 2: jurisdiction granting clause

(i)     Original jurisdiction in cases with 1) foreign officials 2) states

(ii)   “w/ such exceptions and under such regulations as Congress shall make”

(b)   So why can’t Congress alter some of the jurisdictions and grant the S.C. original jurisdiction in this case?

(i)     Marshall says: what would be the point of assigning appellate and original jurisdictions if Congress could just change it however they wanted.  The clause would just be extra words.

(ii)   We can read the language to express a default rule – a rule to be applied if no other rule is established by Congress.  When Congress changes the jurisdictions, then that’s fine and we should follow it.

(iii) The text doesn’t explicitly say.

1.      Marshall doesn’t analyze whether Congress can add to S.C. original jurisdiction

(c)    Does the S.C. continue to believe that it must have original jurisdiction in cases enumerated by the constitution?

(i)     No. Congress has passed statutes that have given the lower courts original jurisdiction in cases Marshall would say the S.C. is supposed to hear. 

(ii)   S.C. no longer reads the grant of jurisdiction to be written in stone and unchangeable. S.C. doesn’t want to hear cases involving the states. No one thinks of lower courts being biased towards one state or another.


b)     Judicial Exclusivity in Constitutional Interpretation?

i)        Cooper v. Aaron

(1)   Facts

(a)    Arkansas failed to comply with a district court order requiring desegregation.

(2)   Issues

(a)    Will Brown decision apply to Ark even though they were not a party to the case? YES.

(3)   П

(a)    Argued that state has not allowed desegregation to take place, passing laws and calling out troops to prevent it.


(a)    Argued that desegregation will lead to a breakdown of law and order, and action has been taken to preserve it.

(5)   Court

(a)    Constitution is Supreme Law of land.  Art. VI.

(b)   We say what the law is and what the constitution means for everybody. 

(i)     Syllogism has been respected since Marbury and everyone else has to listen to us. 

(ii)   State legislatures take an oath and they must listen to us.  You have to act as if the const says X if we say it means X.  Thus they must enforce our decisions whether or not they are actual parties.

(c)    Why can Supreme Court decide meaning of Constitution for Ark and the governor?

(i)     They just say this is and has been our role since Marbury; it has gone unchallenged for 150 years, so we win. 

(ii)   Obviously peculiar because Marbury isn’t explicit in claiming that it is superior.  It is sort of like saying you should listen to me because I told you too already or because you have been, you should continue to listen to me.

1.      Assuming the Supreme Court actually said in Marbury that we are number one, it still doesn’t make it right.

a.       George Bush in Guantanamo Cases

i.        Judgment; have to have some right to some process, which implies it doesn’t have to be Art. III court and okay to do military commissions. 

2.      You would expect the Court to make a self-serving claim to its authority.  You would think the whole issue is whether you were right the first time.


c)      Authority of SC over decisions of State Courts

i)        Martin v. Hunter’s Lessee

(1)   Facts

(a)    US and Britain sign treaty to not confiscate lands of British subjects.

(b)   VA Confiscates land owned by Martin, a British subject.

(c)    Hunter purchased land from VA in 1789.

(d)   Martin brought suit for his land.

(e)    VA trial court ruled for Martin (person claiming from Fairfax)

(f)    VA court of appeals reversed construing treaty strangely

(g)    US SC reverses Court of Appeals and remands.

(h)   VA CoA refuses to enter judgment in favor of Martin claiming SC does not have appellate jurisdiction.

(2)   Issue

(a)    Does the SC have appellate jurisdiction over constitutional decisions by state courts?

(3)   VA CoA

(a)    Section 25 of the Judiciary Act was unconstitutional. Federal appellate review was inconsistent with constitution because Constitution did not create an umpire to police disputes between federal and state.

(b)   One sovereign cannot review the decisions of another sovereign.

(4)   Held

(a)    They ruled they have appellate jurisdiction over cases in state courts

(5)   Court

(a)    Subject Matter Jurisdiction

(i)     SC says Virginia is wrong. The cases are what determine who hears it, it doesn’t matter where the case began. “The SC has appellate jurisdiction over all cases.”

(ii)   Article 6:

(b)   Sovereignty

(i)     One sovereign subject to review by another sovereign is odd; but that is not US system - states are under all sorts of duties and provisions in the Constitution that deprive them of their absolute sovereignty.  Thus, there is nothing wrong with state judicial decisions being subject to review by Supreme Court when federal courts have jurisdiction over all cases arising under Constitution

(c)    Possibility of abuse by Supreme Court

(i)     Story says this is pretty candid: last resort must rest somewhere, wherever that be it is subject to abuse.  The fact that it might be abused, doesn’t mean we don’t have it.  (We can equally argue that you would abuse this discretion).

(d)   Pragmatic Reasons

(i)     State Court Bias: We might suppose State Courts would follow constitution (oath, supremacy clause, learning integrity & wisdom) nonetheless Constitution fears bias of State Court judges so it doesn’t make sense for them to have exclusive right.  (Diversity jurisdiction specifically arises out of fear of home court judges - some wariness of bias).

(ii)   Uniformity: Also a need for uniformity; if VA is right then every law brought to attention of court could be interpreted differently in different states. Maybe in same case another Supreme Court would come to a different decision and there would be no way to impose uniformity.  That is a recipe for chaos, potential multitude of understandings of what federal law provides.

(iii) (Not in our Notes) Counter-Arguments:

1.      VA can say uniformity is fine, but if you want it, don’t give state courts jurisdiction in these cases; make federal jurisdiction exclusive.

a.       This is insulting to have us do it and then tell us we’re wrong; just take it away from us and require it to be filed in federal courts and then you won’t be reviewing us.  You can’t have it both ways.

2.      We take oath too and that is a reason for judicial review, see Marbury, so don’t think you are the final arbiter.

a.       If you go down Marbury, many of Marshall’s arguments could be made on behalf of VA court of appeals to suggest that it was the final decision maker when a case started in VA court.

d)      Supreme Court Review of State Courts and State Laws

i)        Possible Bias: State Courts do not have Article III salary protections so they are more likely to side with the states.

ii)      Review of State Law: Should the SC be also able to review state laws? Consider Unprotected Salaries, and Limited Sovereignty.


III)Power of Political Control over the SC

a)      External and Internal Checks

i)        In General

(1)   Why have checks on the judiciary?

(a)    It promotes judicial restraint.

ii)      External

(1)   Amendments – you don’t like the SC decision you can have an constitutional amendment. SC has been overturned 4 times.

(a)    The reason why it’s so low because it is very difficult to amend the constitution. The power to check judiciary by amendment is there in theory, in practice it isn’t.

(b)   The court is always doing what it wants, but stops at ridiculous things because it knows it’ll get overturned. 

(2)   Appointment

(a)    How many SC justices must there be? It’s up to statute, and Congress decides that.

(i)     How effective is this process at checking the SC? Appointments alone are not enough to change the view of the court. To change the number of judges has not worked in the recent passed, but this is pretty much not considered done anymore.

(ii)   Limitation: Senate can reject appointments. Art. 2.2.2

(3)   Impeachment

(a)    You could impeach a justice for things mentioned in Article 2. High Crimes and misdemeanors. We don’t know what this actually means. Only checks justices on extreme behavior. You cant use this as a check on the justices because unpopular decision is not a high crime or misdemeanor so this would not check them.

(4)   Public Opinion

(a)    This is possibly a check on the SC because they may be unwilling to issue opinions that fly in the face of public opinion.

(i)     The 1st problem is that some people would say that public opinion should not be regarded in decision making.

(ii)   The 2nd problem is other people would say that it would take a lot of public opinion against you for it to even matter.

(iii) Justice Scalia says he does not care about Public Opinion.

(iv) Court may be concerned with upholding a good public image.

(5)   Good Behavior Clause

(a)    Some say that misbehavior is separate from high crimes and misdemeanors mentioned in Article II. If that’s the case, then they can be removed.

(6)   Jurisdiction Stripping

(a)    Congress can strip the lower federal courts of its jurisdiction. And to the SC they can say we have the power to make exception to the powers of the SC and take certain subjects away from you.

(i)     This is controversial.

(ii)   Some say if the SC’s jurisdiction can be taken away then there would not have uniformity, and all it would do is make some lower court the SC in that realm.

(iii) Another thought says that certain essential function cant be taken away.

(iv) Another thought says that Congress can make exceptions, but it cant use that power to say that it cant hear cases involving blacks and Hispanics. They can do it as long as the act s not contrary to the constitution.


(b)   Ex Parte McCardle

(i)     Facts

1.      McCardle is convicted for condemning reconstruction and the Federal Court denied writ under 1867 rule.  Before the appeal, Congress passed a statute denying him a writ of habeas corpus under a rule pretty much stripping the Supreme Court of jurisdiction to hear these cases.

2.      The Supreme Court under J. Chase accepted the jurisdiction of the Appealer’s Act saying that you can create exceptions to our appellate jurisdiction

(ii)   Issue

1.      May Congress repeal appellate jurisdiction in cases where they had previously given jurisdiction?

(iii) Court

1.      Yes under Article 3 section 2, the court can give and take away jurisdiction.

2.      The court says that they do not have jurisdiction because Congress took it away from them. They repealed Act of 1868, which took power from Act of 1867.

3.      Court could also be implying that they don’t have a problem if you take away a statute that gives us jurisdiction, as long as there is another statute which gives us jurisdiction. The Judicial Act of 1789 meant that they could still hear the case through normal channels of Certetori.

4.      So maybe the court is saying that you can take away duplicative grants to jurisdiction.

(c)    Ex parte Yerger:

(i)     Just because Congress repealed a branch of jurisdiction, it didn’t mean a prisoner couldn’t use another method of getting to the court, so Supreme Court had jurisdiction to hear the case.


I)      Case or Controversy

i)        Internal Checks

(1)   In General

(a)    Courts say that we have to follow these doctrines because they

(i)     are in the constitution, “Cases and Controversies”

(ii)   promotes judicial restraint,

(iii) We want courts to resolve concrete disputes and not hypos.

(iv) Promotes individual autonomy by only allowing individuals actually harmed.

(v)   Some say these are not actually in the constitution but are used to avoid hard cases.

(2)   Advisory Opinions

(a)    Opinion on the constitutionality of legislative or executive action that did not grow out of a case or controversy.

(i)     The courts will not issue these until a case comes up regarding it.

(ii)   This is because if we say something is tentatively right, then you may feel we have to decide your way when the case comes to court even if the other side is right.

(iii) Article II section 2 clause 1 says that the president can get advisory opinions from the cabinet.

(b)   The plus of advisory opinions is that we can have the answer and it will save litigation time. Problem is that this will make the SC legal advisors to the president. Truthfully, the SC justices often give private opinions to the President.

(c)    If the President is not going to enforce the decision of the SC, then that would make the opinion an advisory opinion which would be unconstitutional. So this either means that the President has to listen to it, or if the President says he will not follow the decision of the SC, then the SC couldn’t issue it.

(d)   State courts give them all the time. They do not view the constitution as barring them from doing so.

(3)   Standing

(a)    Three Constitutional Requirements

(i)     П must allege a personal injury (in fact)

(ii)   Fairly traceable to ∆ unlawful conduct (causal)

(iii) Likely to be redressed by the request for relief.

(b)   Prudential Requirements

(i)     3rd parties cant act on your behalf

(ii)   You must be within the zone of interest contemplated by the statute.

1.      The statute had your protection in mind.

(iii) Can’t bring generalized grievances.

1.      Must be a grievence particular to you.

(c)    Reasons for Standing

(i)     Want to have a concrete case, no bystanders.

(ii)   We want to have 2 parties, with party was is best able to bring the case, we want true adversaries.

(iii) We want to limit litigation, certainly by bystanders.

(iv) Promote the notion of Judicial Restraint


(d)   Allen v. Wright

(i)     Facts

1.      Parents of black students brought suit against IRS for granting tax exempt status to segregated schools.

2.      IRS statute did not permit schools to be charities.  Bob Jones.  You would like to be a charity if you are school, helps subsidize the school.  IRS according to parents of children, the IRS wasn’t complying with decision by allowing schools to continue status as charitys.                           

(ii)   П

1.      Injuries alleged:

a.       Harmed by the mere fact that government financial aid to discriminatory private schools.

b.      Federal tax exemptions to racially discriminatory private schools in their communities impaired their ability to have their public schools desegregated.

(iii) Held for Standing

1.      Injury: Court divides into two sub-claims

a.       amounted to federal support segregation

i.        Not enough to say there is a violation of the law, there must be something more.

ii.      Also, no standing based on stigmatizing injury. Not because it can’t be a standing in fact.  It is because causal chains are too weak, didn’t apply and get denied access.  Stigmatic injury accords only when denied equal treatment.  They weren’t denied, simply stigmatized and aren’t claiming they were discriminated against. 

b.      Diminished ability to receive integrated education:

i.        Court says that this is concrete interest and harm in some circumstances.  Brown v. Bd. of Educ.  It is an injury in fact.

c.       Question: is there substance to the distinction?  Decide for yourself.

2.      Fairly Traceable (Causality)

a.       Not fairly traceable because it is too speculative; only if there were enough schools in the community to make a difference in public school integration.

i.        if you are in a city where there are no private schools; can you possibly show fairly traceable, no way to show suffered an injury.  (Traceable to third parties; they are the ones sending kids to segregated to schools).

ii.      Same if private schools that don’t discriminate on basis of race.

iii.    Whether schools will change practices or whether parents will respond in same way.

3.      Problem will be Redressed

a.       It is not clear that interest will be furthered at all if executive stops granting tax exempt status. 

b.      Redress should be sought from Congress not the courts.

(iv) Dissent

1.      Brennan:

a.       Argues that there isa direct causal relationship. The SC uses causation as a poor disguise for merits and this adding to criticism.

2.      Stevens:

a.       Economic Argument - If you deny tax exempt status, it makes these private schools more expensive; makes segregation cheaper, and for parents to send children there, and thus less likely to be desegregated schools.  Simple economic argument.

b.      “The purpose of the standing inquiry is the measure the purpose of the stake in the outcome, not whether court has the authority to provide it with the outcome it seeks.”


(e)    Lujan v. Defenders of Wildlife

(i)     Facts:  

1.      Endangered Species Act - Regulation interpreting this to only apply in US and on high seas and not to US action overseas.  

a.       The species are not bringing suit

b.      Standing is more difficult to establish in this type of case

(ii)   П Alleged injuries in fact:

1.      Animal Nexus Argument :

a.       We can’t see animals because of failure to extend regulation to overseas.

i.        Scalia says no real imminent injury because no concrete plans of people going to Sri Lanka or Egypt.  We don’t allow people to just come and make a claim, they need to have tickets to actually go.

2.      Ecosystem Nexus Argument;

a.       We’re harmed because ecosystem is harmed.

i.        there is no such thing; too generalized “pure speculation and fantasy”

3.      Vocational Nexus Argument

a.       Animal Trainers and those who’s work related to this ecosystem or these animals are harmed because the environment they work with is diminished.

4.      Procedural Injury Argument

a.       The П says that Congress has given us the right to sue in the ESA when it said that anyone can sue.

b.      The court says that the congress can’t create an injury in fact when there isn’t one. You may have a cause of action, but you do not have an injury in fact.

i.        Prof – if they had said anyone who brings suit for a procedural violation will get $500, this might have given them enough interest to give them standing.

c.       It is entirely permissible for congress to give a right and bring a cause of action, but you still have to have a personal injury.  (Congress can’t give you a personal injury).  You need both cause of action and personal injury.

i.        e.g. where you have personal injury and no cause of action; if in D.C. no civil battery law; someone punches you, but you don’t have a cause of action.           

ii.      e.g. where you have a cause of action but no injury in fact.  Lujan; congress says you can sue but you need an injury in fact.  Congress is limited in ability to confer standing upon you.

(iii) Redressability: Plurality

1.      If agency won’t give money to AID, it does not follow that other governments will stop with these projects.  (Actions would be traceable then to foreign government, and people can’t sue these people). 

2.      A 10% reduction for AID isn’t going to make a difference

a.       Stevens Response: Who knows; not at all clear what will happen.

(iv) Concurrence

1.      Kennedy

a.       There is no standing here but Congress can define an injury in fact.

2.      Stevens

a.       There is injury whenever a species or habitat is harmed and someone wishes to see or study that.

b.      Not Redressable arguments are not persuasive, Possible that other governments would also pull out.

c.       Respondents have standing, but government is right that it does not apply to foreign countries.

(v)   Dissent:           

1.      Blackmun: 

a.       Court is harping on empty formalities, there is standing here.

b.      Would have been an injury if they alleged they had bought tickets they would have had standing; this is silly to deny standing on this.

c.       Animal nexus is sufficient; animal trainer depends on supply of animals so trainer is potentially harmed when animal he or she trains is harmed somewhere in the world.

d.      This is a “slash and burn expedition through the law of environmental standing.”

e.       This opinion harms Congress;

i.        Congress wanted judicial review of executive action and the court is saying tough because they didn’t suffer an injury in fact.  Congress wants judicial check and they are saying we won’t get involved even if you want us to get involved; doesn’t follow congress’s statute.

ii.      Scalia’s response; that is right; there is a constitutional requirement of injury that is fairly traceable so it doesn’t matter if Congress wants us to get involved.  Has to be a case or controversy. Thus, Congress can’t just confer standing.

(f)    History of Standing

(i)     Originally

1.      Showing a cause of action or a legal injury would get you standing.

(ii)   Data Processing Case 1970

1.      They interpreted the administrative procedure act as applying the injury in fact test and it was meant to be relatively lenient and broadening standing. It could include economic, environmental and other aesthetic harms.

(iii) Sierra Club Case

1.      Standing denied on injury in fact grounds saying did not meet Data Processing requirements; party seeking review must himself have suffered injury. They took the broadening in Data Processing and said although there are more categories of harm, there still has ot be actual harm.

(g)   Threatened Injury

(i)     SCRAP and Duke Power case

1.      Standing can be shown by a sufficient threat of future injury.

(ii)   City of LA v. Lyons

1.      Threat must be real and immediate rather than merely speculative and hypothetical.

2.      Could not get an injunction on No Chokeholds, because he could not show he was likely to get one again. Unless if he could show that:

a.       All police officers Chokehold all citizens

b.      The city authorized police officers ot act in such a manner.

(h)   Harm Widely Defused

(i)     Schlesinger v. Reservist to Stop the War: (Incompatibility Clause)

1.      Some provision of Constitution can’t be enforced by anybody.

a.       Members of Congress can’t be members of executive as well.  Reserve officers were officers of U.S. and members of Congress.

b.      Court said only interest is shared by all citizens and is abstract, not personalized injury.  Means that no one could sue for incompatibility clause.

c.       No one is particularly injured; everyone is generally hurt.

i.        Unless; crazy hypos.

ii.      General point: with respect to standing it is possible that no one could challenge an alleged violation of constitution and true even if everybody agrees it is a violation of the Constitution.

iii.    This upsets people; but standing inquiry makes it possible that no one will be able to go to court.

(i)     Is There Another Way to Confer Injury:

(i)     Vermont Agency of Natural Resources v. United States:(Bounty Hunter)

1.      Suggests Congress can provide an injury in fact; if US assigns part of interest to legal bounty hunters - thus assert rights of somebody else and it is okay.  Thus Congress could give public a right to enforce a statute if it gives them a fine (key-tamable) even if no actual injury.

a.       П in Lujan; if statute said P’s should get $500 for every failure then there would be an injury in fact; money is always a clear injury. 

b.      in Vermont, Congress said injury in fact and will allow a bounty type system. Prosecutorial bounties; if you know of violation and bring a suit, you will get a percentage of the money.  

c.       this is perfectly fine because you are acting as atype of government agent; government always has standing and they are just assigning third parties a right in order for them to vigorously prosecute a case.

i.        You could imagine where people didn’t have injury in fact, Congress could give a bounty for bringing suits, and then they would have an injury in fact which would be the United States injury in fact.

(j)     Congressional Power and Citizen Suits

(i)     Elk Grove Unified School District v. Newdow

1.      Facts

a.       Father of elementary school student sued on the “under god” provision of the pledge of allegiance. This was religious indoctrination in violation of the 1st amendment.

2.      Court

a.       Newdow lacks standing because he is not the custodial parent. His wife makes the final decision on things if the two do not agree.

b.      Having been deprived the right to sue as next friend in California, Newdow lacks prudential standing to bring this suit in federal court.

c.       Court used prudential concerns in order to avoid deciding this case.

(4)   Political Questions

(a)    Six Political Questions

(i)     Textually demonstrable commitment to a coordinate branch.

(ii)   Lack of discoverable and manageable standards to decide the case.

(iii) Impossibility to decide this without making policy judgment.

(iv) Impossibility of deciding without disrespecting another branch.

(v)   Unusual need for unquestioning adherence to a political decision already made; or

(vi) Potential for embarrassment due to conflicting pronouncement from various branches.

(b)   Doctrine supposedly precludes you from getting to merits:

(i)     But some of these branches of political questions actually are decisions on the merits.

1.      To say something is demonstrably committed in effect says you lose; you can read it and says we looked at constitution and you don’t have a case, it is committed to the other branch.

a.       Although categories appear to suggest court won’t decide merits, it suggests that court is deciding the merits. 

(ii)   Some dislike the doctrine because of reticence of court to decide difficult questions on grounds that it is politically charges.  Argue that these considerations don’t matter; the key is that once you have judicial review, you will have some disrespectful. (Some think doctrine is used too often)

(iii) Some say it would be better if court decided more cases than not; i.e. Bush v. Gore, is a political question for Congress - Supreme Court shouldn’t be involved in standards for the Florida recount.  (Some think doctrine isn’t used enough; good idea for court to take back seat to political branches.)


(c)    Baker v. Carr: (Redistricting)

(i)     Facts

1.      the Tennessee voters filed suit challenging the voting districts that had not changed since 1901 apportionment 

2.      Claim of violation of Equal Protection Clause in the XIV Amendment

(ii)   П

1.      Did not use Guaranty Clause for their argument because they knew they would lose, so they used Equal Protection claim.

(iii) Held:   

1.      The court distinguishes Luther v. Borden which says guaranty clause is a political question, and the court decides that this is an equal protection case which they have decided on many times.

2.      The court does not say this is a guaranty clause case those are political questions and thus non-judiciable.

a.       In Luther v. Borden, Court was faced with contesting legislatures and court didn’t want to or feel it appropriate to determine who was authenticate government, so this is a question for Congress.  It is textually committed to Congress. 

3.      Court decided to hear the case because of Equal Protection Clause; which guaranteed equal protection;

4.      Equal Protection is supposed to be interpreted by the Court and Guaranty Clause is by the Congress.  Nothing in Constitution that says Court has a general role in enforcing XIV amendment.  It is a general background that Courts enforce decisions.

a.       Thus limits Luther v. Borden to the guarantee clause

5.      The 6 Political Question

a.       No constitutional commitment ot another branch.

b.      No risk of embarrassment abroad

c.       There are well developed judicial standards for Equal Protection

d.      There is no policy question raised.

e.       No question already decided

f.       There is no question that is to be decided by another branch of government.

(iv) Dissent:

1.      Frankfurter

a.       This is the guranty clause case (Art. 4.4) disguised as a 14th amendment case.  There are no standards here to apply, and that means it is a political question.


(5)   The Basis for Finding a Political Question

(a)    “A textually demonstratable commitment.”

(i)     Nixon v. United States (Removal of Federal Judge)

1.      Facts:

a.       Former judge seeking judicial review for problem with trial by Senate.  Said his hearing wasn’t a “try” as specified under Art. I §3, cl. 6.  Said it was just a report by committee and senate has to try me.  Claims it violates impeachment procedures.

2.      Held

a.       Controversy was nonjusticiable.                                 

3.      Rationale

a.       Senate has the sole power to try impeachments, not the judiciary.  Textual commitment to another branch.

b.      “Try” lacks judicially manageable standards for review and there is nothing about try that suggests precision.

c.       Suggest judicial review of impeachment manners would be odd because it is a manner to discipline judges. Inconsistent with checks and balances.

4.      Concurring:          

a.       White, Blackmun:

i.        They would have dismissed the case not as a political question, but because it the case lacked merit. i.e. He was tried in the senate.

b.      Souter:

i.        Agrees but also thinks the court may intervene under certain circumstances. For example, if someone was convicted on a coin toss.                                  

(ii)   Powell v. McCormack: (Shady HoR not allowed to take office)

1.      Facts

a.       Powell met all the requirements to be on the House of Reps but had done some shadiness. House passed resolution prohibiting him from taking his office because of said shadiness.

b.      Art. 1.5.1 Allows the house to decide qualifications for its own members

2.      Court

a.       The court says that you are adding qualifications not in the constitution and that Powell cannot be excluded because he has met the requirements in the constitution and the people elected them

b.      The court could have decided a different way by saying that we are not going to judge the additional qualifications that you may deem necessary.

(b)   Political Question Doctrine and Foreign Affairs

(i)     Goldwater v. Carter: (Tiawan Treaty)

1.      Facts

a.       1954 treaty in Taiwan. In 1970s trying to normalize relations with China which required they recognize only one China, them. So he terminated the mutual defense pact.

b.      Members of Congress said you can’t do that without our Congressional Approval.

2.      Lower Courts

a.       District Court found they had standing and in favor of Legislators.

b.      CoA agreed they had standing but on the merits said President was entitled to terminate treaty without congressional approval.

3.      SC

a.       Non-judiciable because President has the authority to conduct foreign affairs so this is a political question.

4.      Concurring Opinion

a.      Powell

i.        The issue was not ripe for review. Prudential concerns that Congress hasn’t taken official action so there is no conflict between Congress and President.

ii.      It is judiciable because it is a constitutional question of the division of power between congress and the president.

b.      Marshall

i.        Concurred without Explanation.

5.      Dissent Opinion

a.      Brennan

i.        CoA should have been affirmed on the merits because the issue is one of decision-making authority which falls within the competence of the courts.

b.      Blackman and White

i.        The case should have been set for plenary consideration after full briefing and oral argument.

(ii)   Japan Whaling v. Baldridge: (Whaling Violations)

1.      Facts

a.       Conservation groups tried to get president to certify Japanese violations of whaling quotas.

b.      Statutory requirement to have secretary certify to President of any violations of fishing quotas.

c.       Secretary does not certify it.

2.      Court

a.       This is a legal question of statutory interpretation and not a political question.

b.      Held that secretary’s decision to not certify did not violate the statute.


(c)    Judiciable Standards. (Political Gerrymandering Cases)

(i)     Baker v. Carr 1962

1.      Judically manageable standard did not exist to decide this case.

(ii)   Wesberry v. Sanders (Congressional Districts)

1.      There is a requirement of one person one vote.

(iii) Reynolds v. Sims (State Legislative Districts)

1.      Same holding as above

(iv) Davis v. Bandemer

1.      Court

a.       Claims of partisan gerrymandering are judiciable

b.      There are judicially discernable standards now that we have the one person one vote rule.

2.      Dissent

a.      O’Conner, Burger, Reinquist

i.        This is non-justicable.

(v)   Vieth v. Jubelier: (Penn Congressional Redistricting)

1.      Facts

a.       Gerrymandering in the Penn redistricting for House of Reps. process.

b.      Gerrymandering - Legislature redraws the lines to make sure they can win a re-election. You make certain districts 100% democratic this way some districts would always vote democratic, but then the others would have much less and Reps would always win there.

c.       The size will always be the same, but drawn in a way that helps their party.

2.      Court

a.       Court says that the only requirement is that the districts be contiguous and Congress has the right to deal with this problem.

b.      The constitution doesn’t even require there to be districts.

c.       Citing Baker v. Carr says there is no justicable standard that we can apply.

3.      Standards

a.       Powell (in Bandemer Case)– Fairness, Totality of the Circumstances.

i.        Scalia is not a judicially manageable standard

b.      Stevens  (Dissent)– Racial gerrymandering

i.        Scalia says those are judiciable, this doesn’t mean that political gerrymandering is judiciable.

c.       Souter  (Dissent)– 5 part test, fresh start

i.        Scalia says you need to know what you are testing for.

d.      Breyer  (Dissent)– Unjustified use of political factors to entrech minority in power

i.        Scalia says unjustified is not defined and will become hard to administer and know.

e.       Kennedy (Concurrence) – Says that this is unconstitutional, and lower court should look at the test offered up and then decide if it is judiciable after you hear the test. Also says that since 5 of us think there is a judicially manageable standard, there should be one.

i.        Scalia seems to suggest that lower courts should find it not judiciable.

(vi) Bush v. Gore

1.      Facts

a.       Florida Supreme Court ordered a manual recount of undervotes.

2.      Court

a.       Florida would not be able to fix a standard for the recount, and complete the recount by the deadline so it was stopped.

b.      The right to vote is protected by Equal Protection.

c.       A recount will violate Equal Protection because there was an absence of specific standards to ensure equal application, so state SC is ratifying unequal treatment.

3.      Dissent

a.      Stevens

i.        The federal questions presented here are not substantial and do not require us to second guess the judgment of the state supreme court. State judges are competent and we do not have a reason to second guess them .

b.      Souter

i.        Equal protection clause does not forbid different types of voting methods within a jurisdiction

ii.      It is entirely possible that Florida could comply with the requirement of having a standard method of recount by the deadline.

c.       Ginsburg

i.        States should be able to organize itself as it sees fit.

ii.      The recount by the Florida Court is not any less fair than the certification process preceding that recount.

d.      Breyer

i.        There are no legal concerns or practical concerns related to legal questions that require us to hear this case.

ii.      Political Question and is non-judicable because it selects the new president.

iii.    Congress is the better institution to deal with this.

iv.    Would permit Florida recount under uniform standards.


(d)   Prudential Concerns

(i)     Can a case be non-justicable under the political question doctrine where there are judicially cognizable standards?

1.      There is a risk that in some cases the court’s decision may affect such political areas such as the cessession on a war, relations with a foreign government and substantial expenditures of federal funding.


(e)    Constitutional Amendments

(i)     In General

1.      Constitutional amendments are considered to be political questions.

(ii)   Coleman v. Miller: Child Labor Amendment)

1.      Facts

a.       A child labor amendment to the constitution was proposed.

b.      Kansas senators were evenly divided on the amendment.

c.       Lt. Governor placed the deciding vote.

2.      Court

a.       Court divided on the political question issue

b.      Non-justicable on the reasonable time requirement. Reasonable time includes consideration of relevant conditions such as political, social, and economic which is far outside the range of the court.


(f)    Misc Cases

(i)     In many cases the Court has reached the merits of the constitutional controversy even though there are implications for foreign affairs, the high stakes, or the fact of inter-branch disagreement.


(g)   Republican Form of Government

(i)     In general, the guaranty clause is non-judiciable.

(ii)   Luther v. Borden: (Rhode IslandJ

1.      where two groups claimed to be the actual government of Rhode Island was considered a question for Congress.

(iii) Pacific Telephone Co. v. Oregon

1.      Facts

a.       An citizens intuitive provision allowed a submission to go to popular vote which would then be enacted into law if passed.

b.      They voted to pass a tax telephone and telegraph companies.

c.       They sued saying that this initiative procedure violated the republican form of government.

2.      Court

a.       Deciding this case would lead to an “inconceivable expansion of the judicial power.”


(6)   Questions of Timing – Ripeness and Mootness

(a)    In General

(i)     Not obvious that these are constitutionally required.

(b)   Ripeness:

(i)     Too premature, speculative. (not ready to be heard, not enough facts to decide case)

1.      Example: Challenging a statute before a prosecution is initiated.

(ii)   Idea, you don’t want to decide a case until you have enough before you to decide it right.

(iii) Factors:

1.      Look at potential harm to П.

2.      Look at potential  hardship they will suffer if no review; and

3.      Look at adequacy of the record for resolving the dispute

(iv) You may want to wait and see if statute is applied in a bad.

(c)    Mootness

(i)     Prevents courts from hearing a case when events subsequent to the filing of the lawsuit deprieve П of a stake in the action.

(ii)   Remedy has already been granted, has already been sought, or is impossible to receive.

(iii) Standing must remain through the case

1.      i.e. if case settled before judgment, don’t decide the case.

2.      Admission to school; person already graduated, there was no controversy, why bother deciding the case.

(iv) Roe v. Wade

1.      Person already had the kid, so case would be over, not ripe for the next time around and moot because already had the kid.

2.      However, special exception to Mootness Doctrine:

a.       Capable of repetition yet evading review;

b.      Appellate review will be effectively denied, so need an exception.


b)      The Jurisdiction of the Supreme Court

i)        Jurisdiction, Certiorari, and US Supreme Court

(1)   Jurisdiction in General

(a)    For constitutional purposes the jurisdiction of the SC is set out in Art. 3.

(b)   Mandatory Jurisdiction

(i)     Generally it is said that the SC’s appellate jurisdiction is mandatory.

(ii)   2 classes of cases which are mandatory appellate jurisdiction are judicial regulation of the political process.

(2)   The Cert Process

(a)    Certiorari Jurisdiction

(i)     Cert is discretionary

(ii)   4 justices need to agree for plenary consideration

(iii) They hear 80 cases per session

(iv) People file writs of cert. to show either there is a circuit split or it is an important case of federal law.



The Distribution of National Powers


II)   Executive Power

a)      Introduction: Separation of Power

i)        The Federalist No. 47 (Madison)

(1)   There should be a separation of powers to prevent tyranny, but you do not need absolutely separate and distinct

ii)      The Federalist No. 48 (Madison)

(1)   There should be a limit on power. The boundaries of power should be limited and checked by other branchesof government.

iii)    Note: The Theory of Separation and Checks and Balances

(1)   Separation of powers in not rigid

(2)   Purpose of separation and checks is:

(a)    Efficiency, division of labor

(b)   Prevention of Tyranny; diffusion of power, and decreases possibility than any one branch will use governmental power against the citizenry.

(c)    Accountability; cuz then you know who to blame

(d)   Balance; No one entity becomes too powerful.

b)      Presidential Seizures

i)        Youngstown & Tube Co. v. Sawyer (Steel Mills Siezure)

(1)   Facts

(a)    Nationwide steel strike which leads Pres to seize plants; informs congress of actions, and says he doesn’t want a crisis in the war effort.

(2)   Issue

(a)    Does the President have the constitutional power to sieze possession of steel mills?


(a)    President has the executive power Art 2.1.1

(b)   Presidential executive order is authorized by his role as the Commander in Chief. (Art 2.2.1)

(c)    Take Care Clause (Art 2.3)

(4)   Court

(a)    No, he does not, this situation is too removed from the theatre of war.

(b)   Legislative Authority

(i)     He does not have that power in the constitution, and Congress has not given him that power since authority has to come from a legislative act.

(ii)   There are two statutes that authorize the President to sieze personal and real property, but the president does not claim his power derives from them.

(iii) Taft-Hartly Act: There was a rejection of an amendment to this act which would have allowed government seizes in an emergency.

(c)    Traditional Executive Power

(i)     Presidential Power:

1.      Presidential power derives from a legislative act or the constitution.

2.      Legislative Act

a.       There is no legislative act here to execute and Congress specifically refused to give this authority when it did not accept the amendment to Taft-Hardly Act.

3.      Commander-in Chief Clause

a.       This isn’t executive power situation because this situation is too removed from the theatre of war.

(ii)   Take Care Clause

1.      There is no law here, so he is not executing a law.

2.      He cannot cite to a statute or the constitution so he is legislating. He issued an executive order that reads like a statute, preamble, and also because it looks like a statute, justification,

(5)   Concurrence

(a)    Frankfurter

(i)     President has traditionally never had this authority. Congress has already legislated in this area and expressly withheld this power from the President when rejecting the amendment ot the Taft-Hardly Act.

(ii)   A systemic, unbroken, executive practice may be treated as a gloss on executive power vested in the president

(b)   Jackson

(i)     There are three categories that express how much power the President has to act.

1.      Legislative Authority:

a.       Where Congress delegates authority to President expressly or implicitly; President power is at its apex. 

b.      President is only wrong if neither branch can act on it.

2.      Lacks Legislative Authority.

a.       Where Congress is silent, it is possible that Pres and Congress have concurrent authority. 

b.      Maybe President acts on his own interpretation; in this “twilight zone” we don’t know what is the best answer.

3.      Measures Contrary to Express or Implied Legislative Will

a.       Where Congress prohibits Pres’s act, Pres only has much power as the constitution permits.

b.      He can only rely on his own Constitutional powers, minus congressional powers on this matter. 

c.       Presidential power at is lowest.

(ii)   Our Case

1.      This case is a Category 3 case because congress has expressly or impliedly refused to give legislative authority.

2.      Presidential Power

a.       President has allocation of generic executive powers, and not all conceivable executive powers. So some things may not fit here that maybe considered an executive power.

b.      Emergency powers were not given by the forefathers who knew of the possible need and we should not grant them now.

3.      Commander in Chief Clause

a.       Congress expressly is suppose to “raise and support the Armies” and “provide and maintain a Navy” so they are suppose to supply the armed forces.

b.      He is Commander in Chief of the army and navy, not of the country and its industries, no monopoly of war powers.

4.      Take Care Clause

a.       Compares to 5th amendment. He says that the taking care clause gives the President the authority “to reach as far as there is law” but the 5th amendment protects a private right, so the government could go as far as there is law, and this is stopped by the 5th amendment.

(c)    Douglas

(i)     He agrees on the fact that Emergency Powers does not give this power to the President. This would be expanding Article II to fit the political convenience of the present emergency.

(6)   Dissent

(a)    Vinson

(i)     Congress has basically approved of this war, they want war to continue, and you need steel to fight a war; thus if necessary congress allows president to seize the steel.

(ii)   Majority fails to allow president to allow war to succeed; why fund war if they don’t war to succeed, thus they must want President to have whatever powers are necessary for the war, and if that includes seizing steel plants, so be it.

(iii) Also suggests there are precedents for this, so no big deal for this to happen again.

(7)   Discussion

(a)    Sikrishna says there is a tension throughout American history in interpreting executive powers as broad or specific, this is an example of that.

(b)   Truman was close to Labor, and may have taken the factories in order to help his labor friends who were crucial to his re-election by getting them all raises.

ii)      Dames & Moore v. Regan

(1)   Facts

(a)    Carter declared a national emergency in the wake of the Iranian embassy hostage crisis and he blocked the transfer of any property of the Iranian government. President makes Executive Agreement  to get hostages back.  Will decide outstanding claims in a tribunal between US and Iran.  A statute IEEPA (Int’l Emergency. Econ. Powers Act) gives Pres right to void, prohibit, prevent, etc... any attachments or transfer of frozen assets by statute. The president did prevent attachments and suspended claims pending in American Courts between US and Iranian citizens. Danes had sued against Iran for a contract that had been breached.

(i)     Executive Agreement - Something that is less significant than a treaty and tradition suggests a president can do it unilaterally and bind the government.  There is no constitutional permitting this, but traditionally has been done where they didn’t think it was necessary for Senate

(2)   Issue

(a)    Does the president have the power to suspend the claims of its citizens which are pending against foreign governments?

(3)   Court

(a)    President is authorized to suspend pending claims.

(b)   Congress implicitly gave him the power through the IEEPA. This was passed when Carter was President.

(c)    This is a Jackson Category 1. Congress gave express power to the President to nullify attachments and order the transfer of Iranian assets. The ending of claims in American courts are not expressly granted by IEEPA. This does not mean that Congress has impliedly rejected authority to the president (Cat. 3), Congress can’t enumerate everything they want to give the President in the area of Foreign Affairs and they have given so much related authority, it is implied thy gave him authority here.

(d)   The Court says to apply this holding narrowly and not a open plenary power to settle claims

(4)   Discussion

(a)    Political Question doctrine: This looks like a political question where there is potential for embarrassment for the President, and this case creates new law.

iii)    Notes: Iran Claims and Executive Power

(1)   Dames and Moore inverted the holding of Youngstown where congressional silence was there interpreted as disapproval and also condoned legislative inactivity.

c)      Executive Authority (Domestic Affairs)

i)        United States v. Nixon

(1)   Facts

(a)    Special prosecutor subpoenaed the President for tapes, he gave some and not others. President Nixon says he does not have to give over those cases because of Executive Privilege.


(a)    Court lacks jurisdiction to issue the subpoena.

(i)     The President has executive authority and no other branch of government can come in on this. I have the exclusive authority to determine the scope of the privilege.

(ii)   This is an intra-branch dispute. The Special Prosecutor is appointed by the Attorney General and this is a disagreement between the SP and his boss.

(3)   Issue

(a)    Is presidential privilege absolute, or at least enough to beat the subpoena

(4)   Court

(a)    Marbury gave us the authority to say what the law is. “It is emphatically the provence and duty of the judicially department to say what the law is.”

(b)   President says he has a complete presidential privilege and separation of powers prevents judicial review.

(i)     President should have Executive Privilege even though it is not in the constitution it is there implicitly because he needs this privilege to carry out his duties but he does not have absolute Executive Privilege

(ii)   Court says yes there is and there should be great deference to Presidential Privilege. The court does have jurisdiction here. The SP was given the authority to contest the invocation of executive privilege. The Executive Branch should respect the power of the SP, and all three branches of government should enforce this. Absent a claim to protect diplomatic, military and sensitive national security secrets we cannot accept that the protection of the District Court is not enough.

(c)    President claims he at least has the privilege to beat the subpoena

(i)     Here the SP was given the power to override the Presidential Privilege. The truth in a criminal case can override policy and it can overcome Executive Privilege.

(d)   Criminal Justice Argument

(i)     The 6th amendment guarantees ∆ right to confront witnesses against him, and 5th amendment gives right ot due process of law. If we allow Executive Privilege, due process of law would be violated and impair the function of the courts. The needs here are specific, whereas the Presidents interest is broad.

ii)      Note: Executive Privilege and Presidential Immunity

(1)   In General

(a)    The President is not immune from the judicial process.

(b)   Immunity from injunctive relief

(i)     Mississippi v. Johnson

1.      The court concludes that courts did not have power to issue an injunction against the President

(c)    Damages for misconduct while in office

(i)     Nixon v. Fitzgerald

1.      President is immune from cases of action arises from out of his official duties.

(d)   Damages for claims unrelated to service in office

(i)     Clinton v. Jones

1.      Private cases will not be allowed to be delayed until out of office. President likely not immune from cases of action for private acts.

(e)    Why do we distinguish here?

(i)     Court feels that private conduct

(ii)   Jones arose out of misconduct before President in office,

(2)   The scope of the privilege

(a)    Cheney

(i)     Doesn’t need to be invoked, but look to see if permitting discovery will impair the branch in the performance of their duties. This is a civil case.

iii)    Note: The Politics of Impeachment

(1)   The Nixon

(2)   High Crime and Misdemeanor

(a)    Clinton’s false testimony unrelated to office

(b)   Nixon’s alleged misconduct even if not criminal

(c)    Must be a political crime

iv)    Note: The Law of Impeachment

III)The Legislative Power

a)      Legislative Authority

i)        In General

(1)   Formalists have separate spheres of powers, Functionalists have some overlap.

(2)   Formalists say that court has good reason to follow this way modern legislative action although historical

ii)      Note: The Nondelegation Doctrine and “Quasi-Constitutional” Statues

(1)   Introduction

(a)    Currently there are very few constitutional restraints of Congress’s power to delegate.

(b)   Previously Congress was required to lay down a legislative act that gave a intelligible principle to which the person or body to take action is directed to conform.

(c)    Congress gives authority to administrative agencies under vague standards which gives them vast discretionary power amounting to lawmaking.

(2)   Panama Refining and Schechter

(a)    Roosevelt creates the National Industrial Recovery Act of 1933 (NIRA) which brings labor and industry together to design codes of fair competition.

(b)   Panama Refining

(i)     Court invalidates provision of code that give President too much discretion. The statute did not supply standards that would tell the President when to exercise that power.

(c)    LA Schechtler Poultry Corp

(i)     There were max and min wage provisions, and the types of chickens to be sold.

(ii)   Schechler was prosecuted.

(iii) Court said that this statute was an impermissible delegation of legislative authority. Congress is not permitted to delegate. There is a need for regulatory authority.

(3)   The purported demise of the non delegation doctrine

(a)    Today this doctrine is no longer is use, and there have only been two successful cases against it.

(b)   Congress no longer need “intelligible principles” and can give broad authority.

(c)    Modern Approach – Meat Cutters Case – standards is “broad fairness and avoidance of gross inequity” Ok because it was temporary, President could not decriminate between industries, and implicit requirement that President limit himself.

(4)   Nondelegation Redux?

(a)    Schechter has never been overruled

(i)     Some have argued for this doctrine to be revived.

(ii)   Schoeonbrod – (For) Legislators enhance their power by delegating: they retain the ability to influence events by pressuring agencies, while they shed responsibility for the exercise of power by avoiding public votes on hard choices.

(iii) Posner – (Against) This doctrine is no where in the constitution no matter how you look at it. A statutory grant of authority to the executive isn’t a transfer of legislative power but an exercise of legislative power.

(b)   The fear of a broad delegation may provide a reason to construe administrative authority narrowly.

(c)    Clinton v. City of NY

(i)     Invalidation of the line item veto act.

(ii)   Court says this is a violation of Art.1.7. How a bill becomes a law. They are not considering separation of powers clause.

iii)    Ins v. Chadha

(1)   Facts

(a)    INS ordered guy deported.  Judge allowed person to stay; AG agreed, sent it to Congress, and members of House Judiciary General moved to pass a one house resolution to legislatively veto the IJ’s decision.  House passed legislative veto pursuant to a statute that allows IJ to decide, then AG to decide, and then Congress can overturn these decisions; Chadha challenged the resolution.

(2)   Held:   

(a)    Legislative Veto is unconstitutional

(b)   Unconstitutional resolution to overturn the decision allowing Chadha to say in US.

(c)    It is okay for congress to delegate authority, but if Congress wants to change legal rights, it has to go through process of bicameralism, but can allow others to do so without going through the process.

(3)   Rational          

(a)    House failed to meet requirements of bicameralism; approved by both Houses, and presented to President).

(i)     Not everything has to go through this process. Art I, sec 7, cl 2; only things that may be necessary. 

(b)   The rationale is that art 1.7.2 doesn’t require everything to go through bicameralism, but any exercise of legislative power has to go through bicameralism.

(c)    House can’t act legislatively and unilaterally

(i)     There are only limited instances where House or Senate can act alone; House impeachments; Senate try impeachments; pres appointments, enact treaties, but here House is trying to change Chadha’s legal rights. 

(d)   Art 1.7 commands that Congress doesn’t have right to delegate to part of itself the power to change the status quo.  (Only can act unilaterally when provided for in Constitution).

(i)     this argument is somewhat supported by Art 1.7.3, which tries to prevent Congress from calling a bill something else.

(4)   Counterarguments for why Congress should maintain this power:

(a)    Pretty much if Congress can delegate, why can’t they maintain power to make sure the branches they delegate to are using it correctly.  Thus Congress can delegate authority to agencies and so forth, but they can’t retain power over them.

(b)   court doesn’t tackle the question about how Regulations can change people’s legal rights all the time and stuff isn’t required to go through process of bicameralism.

(5)   Effect

(a)    This case is an example of the tension between how to analyize separation of power. One side, formalist (Burger) you follow what the constitution says on how a bill becomes a law on the other hand, finctional take (White) legistative veto is necessary way of carrying out delegation.

(b)   Writing is on wall for any legislative veto provisions; continue to be struck down; overturns more statutes than ever before in courts entire history combined.

(c)    Creates big severability problem; what happens to the rest of the statute if veto is unconstitutional.  Maybe congress wouldn’t have delegated without the veto.  This ruling could thus upset many legislative compromises

(d)   If wouldn’t have granted authority without provision, then whole statute is invalid.

(e)    Congress may provide for instructions if some part of a statute is deemed unconstitutional.

(6)   Concurring

(a)    Powell (Congress can’t exercise judicial power)

(i)     pretty much says that Congress couldn’t do this because it was a judicial power to determine if a single person could be deported.  (Note that it can’t pass bill of attainder art I sec 9 to single out person for special treatment - maybe this singling out idea informs Powell’s opinion).

(ii)   but what about passing special bills granting citizenship; have power to set uniform rules of naturalization, but can pass specific grants of citizenship if somebody wants to pass a bill.  This has gone on for a long time - probably okay constitutionally.

(7)   Dissenting,

(a)    White, J.  (Necessity argument for constitutionality - pretty much a defensive measure)

(i)     Over 200 statutes have this legislative veto provision; should be justified in making sure there delegation is not being abused.   Pretty much this is a useful innovation - need flexibility to accommodate US laws. Also in keeping with Necessary and Proper clause.  Congress also dominates legislation with respect to immigration. 

(ii)   Congress would be left with two choices:

(iii) Also preserves checks and balances; mirrors what goes on in Art. I, section 7 where all three branches has check on each other, but here president proposes things, and if both don’t agree, the change of laws don’t take place.  So what if all three branches don’t agree, doesn’t pass.

(b)   Counter argument: Chadha cares about the set up a lot; if Congress has to pass a law when it disagrees with AG, then good for him, but if just needs to pass a resolution or all three need to agree, then he has to go.

(8)   Discussion

(a)    Severability Clause: There are two options here where there is a clause that is unconstitutional. In this case the Immigration Act had a Legislative Veto clause. You could either cut out the clause and keep the act, or through out the entire act because Congress wanted the act to have that restraint and they may not want the act otherwise.

iv)    Note: Legislative Veto

(1)   In context, Congress has constitutional ways of doing a legislative veto, so they don’t really need the legislative veto and the courts decision keeps everything formalist.

v)      Note: Where do Administrative Agencies Fit in the Separation of Powers Scheme

(1)   Introduction

(a)    Considering there is no more nondelegation doctrine, and legislative vetoes are unconstitutional so are they sufficient checks of administrative agencies.

(2)   Myers and Presidential Supremacy

(a)    Myers v. United States

(i)     In General

1.      Any congressional limits on the removal power are unconstitutional.

(ii)   Court

1.      Congress passes a law saying that the President can remove postmasters with the advice and consent of the senate.

2.      Wilson tried to remove a postmaster without consent. Court said the statute was unconstitutional because it attempted to place a limitation on the President’s removal power.

a.       The act of removal is executive in nature

b.      Under the take care clause, it is the President who must take care that the laws be faithfully executed.

c.       Art. 2 gives executive power to the President not subordinates.

3.      The only place the constitution gives senate the removal is during impeachment

(b)   Dissent

(i)     Congress created the office of the Postmaster and has power to destroy it, so why shouldn’t they be able to also control the tenor of the Postmaster?

(3)   Humphrey’s Executor

(a)    Humphrey’s Executor v. United States

(i)     In General

1.      The court unanimously upheld the ability of congress to limit the removal of a commission of the federal trade commission.

2.      From a functional perspective this distinction between cabinet members and admin officers makes sense because they admin agencies were suppose to be insulated from regulatory control.

3.      From the Formalist approach this is problematic because they are people in the Executive not controlled by the President.

(ii)   Court

1.      Myer’s holding applied only to purely executive officers. Officers in quazi-legislative roles like those in administrative agencies

(b)   Wiener v. United States

(i)     Both Humphrey’s Executor and Wiener recognize a congressional power to create independent agencies, free from presidential removal power.

(4)   Buckley v. Valeo

(a)    In General

(b)   The Case

(i)     Facts

1.      Federal Campaign Act created a federal elections commission. They set up a system of appointment for the 8 officers.

(ii)   Court

1.      Held that vesting a commission whose members were appointed in this manner with some of these functions violated the appointments clause of Art 2.2.2.

2.      An Officer of the United States is any appointee exercising significant authority pursuant to the Laws of the United States. All officers must be appointed in accordance to the appointment’s clause. Inferior officers can be appointed by

3.      The Commission here is not “merely in aid of the legislative function of Congress” like other administrative agencies, but they have significant enforcement and discretionary power to make their appointment by the President alone necessary.

vi)    Bowsher v, Synar

(1)   Facts

(a)    Congress assigns to Comptroller General of US function under Balanced Budget and Emergency Deficit Control Act (Gramm–Rudman-Hollings Act) that give the Comptroller general ability to investigate reports and make approvals of budget means to ensure budget stayed within spending caps that the President would have to perform.  CG was removable by Congress for impeachment on grounds of “inefficiency”, “neglect of duty”, or “malfeasance”, and joint resolution.  CG was appointed by Pres from list of three candidates given by House

(2)   Issue

(a)    Whether an officer of Congress, removable by Congress can be given the power to execute a statute.

(3)   Court

(a)    The act is unconstitutional.

(b)   Congressional role in the removal process made the comptroller an agent of congress.

(c)    The functions assigned are executive powers and congress cant give their officer executory powers.

(4)   Concurrence

(a)    Stevens

(i)     This is not a case of his role or his removal power. It is the fact that he is creating policy that binds the nation, and if you are changing legal rights, then that can only be done


(5)   Dissent

(a)    White

(i)     Congress cannot reserve executive role for itself or its agents but Comptroller is not an agent even though he has executive functions or is removal by congress.

(ii)   Court overlooks or difference with Chadha, in this case the process of removal of the Comptroller does meet the requirements of bicameralism and presentment.

(iii) The fact that Congress is attempting to control an officer does not in of itself make it unconstitutional, they control administration through legislation.

(6)   Discussion

(a)    Takes Chadha a step further; not only can you not delegate to yourselves power to change legal rights, you can’t delegate that power to your own agents either - has to be to an independent person.  Can’t give power to yourself, part of yourself, or your agents either

vii)  Morrison v. Olson

(1)   Facts

(a)    Ethics of Government Act allows for appointment of independent counsel to investigate and prosecute high level government officials.  Act requires AG to conduct preliminary investigation and appoint counsel if no reasonable grounds that investigation is necessary. 

(b)   Olsen lied to an exec committee (illegal); Congress subpoenaed info, he didn’t comply; an AG appointed special prosecutor.  Court would then appoint somebody, set limitations on investigation, and IC could do by himself whatever the DOJ could do until removed, resigned, or special division (judges) determines job is done.

(2)   Issue

(a)    Whether the independent counsel is constitutional;

(3)   Court

(a)    Is he an inferior officer?

(i)     The line between an inferior officer and a principle officer is not clear, but it is clear here that this is an inferior officer for the following reasons.

1.      Removable by AG

2.      Had only limited duties

3.      Office limited in jurisdiction and tenure

(b)   Violation of Separation of power?

(i)     Act Restricting AG to remove only for Good Cause

1.      Congress here is not trying to reserve removal powers for itself like in Bowsher or Myers. The removal provisions are more like Humphrey’s Executor and Wiener

(ii)   Act reduces the power of President to control prosecution powers.


(4)   Dissent

(a)    Scalia

(i)     He is independent and is not subordinate to anybody. This means that he is not an inferior officer.

(ii)   President has all the executive power, prosecuting people is under the power of the President.

1.      IC has an unlimited budget, and they are considered successful if they find something wrong. If they do not they are not considered successful, there is a systemic problem with the IC looking for problems to justify expenditure.

(5)   Discussion

(a)    We can’t trust the department of justice to investigate their boss so we need a independent council.

(b)   Is it constitutional to create an independent council arm that is not responsive to the president

(c)    3 claims

(i)     1. Morrison is not an inferior officer, she is a non-inferior officer.

1.      Why does this matter? The constitution says that the President is suppose to nominate non-inferior officers and so she is improperly appointed. inferior officers do not have to be appointed by president

2.      Inferior officers

a.       She had limited duties

b.      Office limited in jurisdiction or time

(ii)   2. Does it violate separation of powers?

1.      Court says there is nothing that says congress can’t give power to judges to appoint.

2.      This was done because the President CAN’T appoint someone to investigate himself or his close friends.

(iii) Does this violate the President’s power to remove officers?

1.      The court says that the Congress doesn’t interfere with the duties of the President so

viii)            Note: Congressional Control over Administrative Officals

(1)   Chadha and Bowsher

(a)    Court says that in Chadha they were exercising legislative authority and needs to go by presentment and bicameralism.

(b)   Courts says here that Congress was NOT legislating, but was controlling an officer with executive powers which is also unconstitutional.

(2)   Morrison and Bowsher

(a)    Statutory Scheme Designed to Assert Congressional Control Prohibited

(i)     Myers, Chadha, Bowsher

(b)   Statutory Schemes Designed to protect admin officials from Executive Control Allowed

(i)     Humphrey’s Executor, Morrison

(ii)   Congress can make some executive officers independent, but it may not itself control them.

(3)   Mistretta and the Twilight Area

(a)    Mistretta v. US

(i)     The US Sentencing Commission was created and placed in the Judicial Branch. This was created to equal out sentencing.

(ii)   The court rejects separation of powers arguments and says that the commission was given “intelligible principles” and so they had detailed guidance.

(4)   Justice Scalia’s Position

(a)    Clinton Impeachment

(i)     Scalia proposed these views before Clinton’s impeachment, and he

IV)           The Intersection of Legislative and Executive Powers

a)      In General

i)        Clauses Related to Foreign Affairs

(1)   Art I

(a)    8.3, 5, 10, 11, 12, 13, 14, 15, 16, 18; 9.2

(2)   Art. II

(a)    1.1, 2.1, 2.2, 3

(3)   Congress can do the following things with respect to foreign affairs

(a)    regulate international commerce

(b)   declare war

(c)    grants letters of marque or reprisal

(4)   President can do the following things with respect to foreign affairs

(a)    Receive ambassadors

(b)   Can decide which countries to recognize

(c)    Can make treaties w/ advice and consent of the senate

(d)   Grant executive orders – used to implement authority he already has

(5)   Some say, Constitution does not expressly give many foreign affairs duties to any branch.

(6)   Others say that Article 2 grants the President all the executive power and the executive power in 1789 included foreign relations authorities.

(a)    Exceptions given to Congress are exceptions to the General Grant, so the President has all the rest of the powers.  

(b)   In practice, the President is authorized to have the authority; the cases try to see if he took it or if he had it?

b)      Foreign Affairs - Executive Authority

i)        United States v. Curtiss-Wright Corp.

(1)   Facts

(a)    Company indicted for conspiracy to sell weapons to Boliva against a Joint Resolution authorizing the President to Prohibiting the sale of arms if he found that ban would bring peace to the region. Lower court held that it was an unconstitutional delegation of legislative power.

(2)   Issue

(a)    Is this a unlawful delegation of legislative authority to the President?

(3)   Court

(a)    The broad statement that Federal Government has only enumerated powers is true when it comes to internal affairs.

(b)   The foreign affairs powers, however, came from Great Britain and passed straight to the Union and not the states. Even if the Constitution did not enumerate the power to wage war and conclude peace or make treaties, it would be given to the Fed Government by the nature of nationality.


(4)   Discussion

(a)    Ramsey and Prakash Article

(i)     The president has residual foreign affairs power from Art1.1.

(ii)   Residual foreign affairs power cannot be checked.

(b)   Disagreements with “All Foreign Affairs power to President”

(i)     States could have some of that FA power

(ii)   President shouldn’t have all that power, Congress should have some or more.

(c)    Critized for two reasons.

(i)     Inconsistent with written constitution - if Courts view was correct, there would be no reason to enumerate powers in Foreign Affairs.

(ii)   Historical Reasoning – The framers intended like the presidency have limited powers, and not the expansive authority in Curtiss-Wright.

ii)      Note: The President and Foreign Affairs

(1)   Text, History, and Presidential Powers

(a)    The text does not make the President the sole organ of the Federal Government in FA.

(b)   Historical practice is uncertain, many Presidents have asserted a leadership role in FA, but members of Congress have sometimes tried to reject this assertion.

(c)    Why should History control when the text clearly is different?

(2)   Functionalism and the autonomy of constitutional interpretation

(a)    Court makes a functional argument that the President alone would know the conditions of foreign nations, and has confidential sources of information, we need to give this to the President to avoid embarrassment and achieve our aims.

iii)    Note: The Allocation of Warmaking Authority

(1)   In General

(a)    Congress is given the power to declare war, but the President is made the Commander in Chief and plays the principle role as the representative of the United States in relations with other nations.

(2)   The Original Meaning

(a)    Make War was changed to Declare War. This was because they wanted to give the President the power to repel a surprise attack quickly, but they didn’t want the power to declare war to happen as quickly so gave it to the senate.

(3)   The Meaning of War and Sudden Attack

(4)   The Four Case Studies

(a)    The First Iraq War

(i)     The House and Senate passed resolutions that supported defensive operations but didn't declare war.

(ii)   President doubles troops to build a offensive capability

(iii) Members of Congress file suit saying he needs to come to Congress to get a declaration of war before he proceeds. Thrown out for ripeness, but the premise is supported by Court

(iv) President then comes to congress to get resolution

(v)   Later the House Joint Resolution 77 gave the President the ability to use “all necessary means” to achieve the goals of the UN resolution

(vi) President then invades Iraq.

(b)   The War in Kosovo

(i)     US got involved in Kosovo.

(ii)   There was no formal congressional declaration of war

(iii) After air strikes begin, Clinton informs congress as “part of my efforts to keep Congress fully informed consistent with War Powers Resolution.”

(iv) He said he attacked consistent with his constitutional authority.

(v)   House rejected a resolution calling for declaration of war.

(vi) House files suit against Clinton

(vii)     Clinton ends hostilities within 60 days pursuant to War Powers Resolution.

(viii)   Court rejected suit for lack of standing.

(c)    The Second Iraq War

(i)     On Oct 16, 2002 Congress gives President Authorization to use armed forces as he determines to be necessary and appropriate.

(ii)   Is the congress delegating legislative authority? Are they giving a declaration of war, or giving the President that ability?

(d)   The War against Terrorism

(i)     On Sept 18, 2001 Congress authorized

iv)    Hamdi v. Rumsfeld

(1)   Facts

(a)    Hamdi was seized in Afghanistan by the Northern Alliance and given to the US Military.


(a)    Government says he is an enemy combatant and this status entitles them to hold him indefinitely without charges or proceedings. Habeas corpus was brought by father.

(b)   Undersecretary Mobbs in his declaration says that that because al Qaeda and Taliban are hostile forces against the United States and was a member, he is a enemy combatant.

(3)   Issue

(a)    The legality of the detention of a United States citizen on US Soil as an enemy combatant. Does the Executive have the authority to detain citizens who qualify as enemy combatants?

(4)   Court

(a)    Held that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given meaningful opportunity to contest the factual basis for that detention before a neutral decision maker.

(b)   The Mobbs declaration was not enough to hold.

(c)    Government is right that Congress has authorized Hamdi’s detention because it happened by an act of congress, the Authorization of Use of Military Force (AUMF)

(d)   Government can’t hold him indefinitely for purposes of interrogation, but can as long as there are military operations going on to prevent him to return to the battlefield.

(e)    We do not have to decide this as a matter of law only, because it is not determined just because someone resides in Afghanistan, it does not mean that he is Captured in a zone of active combat or that he assisted forces hostile to the United States.

(f)    Since facts are to be brought in, the proper judicial process for enemy combatants is not a full criminal trial like DC thinks nor is it what government thinks that if is only if it is legally mandated detention then ok, it is that “a citizen detainee seeking to challenge his classification as an enemy combatant must receive notice of factual basis for his classification, and a fair opportunity to rebut the governments factual assertions before a neutral decisionmaker.

(i)     This will not apply to those people captured on the battlefield, only to those who are held continuously.

(g)   Reject government’s separation of powers principles.

(5)   Concurrence

(a)    Souter and Ginsburg (Dissenting in Part)

(i)     Do not agree that the government has shown that that the AMUF authorizes his detention so he should be released.

(ii)   It is questionable that the Executive is acting in accordance with the laws of was it claims as authority since they are claiming they are entitled to Geneva Protects but have held him not in accordance with it.

(6)   Dissent

(a)    Scalia

(i)     If you are a citizen of the United States, you have the right for Writ of Habeas Corpus.

(ii)   Try them for Treason, or congress can suspend Habeas Corpus.

(iii) If civil rights are to be curtailed during war, it must be done openly and democratically as the constitution requires rather than by the court.

(b)   Thomas

(i)     Defer to executive branch.

(7)   Discussion

(a)    Authorization to hold him is a part of going to war. You hold people when you go to war.

(b)   Can you hold him indefinitely?

(i)     No, there has to be some due process.

(c)    Can they review his detention?

(i)     He is not entitled to a full blown judicial proceeding, but he does need due process.

v)      Note: Unanswered Questions

(1)    Padilla

(a)    He filed a habeas corpus petition, and they said he filed the petition in the wrong venue and so did not reach the case on the merits.

(b)   In Dissent Stevens said he is entitled to a hearing on the justification for his detention.

(2)   Guantanamo

(a)    Rasul v. Bush

(i)     Held that the federal court had habeas corpus jurisdiction to review the legality and condition of the confinements of the detainees.

(3)   Military Tribunals


(4)   Torture

(a)    President Bush claimed he could not be restricted in his methods of interrogation in a couple of memos. He then disavowed it when it came became public.

(5)   The relevance of Constitutional Law

(a)    Thomas argument in Hamdi is that if Congress were to suspend the writ of habeas corpus the President would still be under Constitutional obligations to release.

(b)   Jackson’s dissent in Korematsu v. US is that it doesn’t matter if exclusion was wrong, when military is in charge its more about being successful than being legal, and the courts who are to uphold the law should not be hearing this case because it can’t support military when unconstitutional.

c)      Foreign Affairs – Legislative Authority

i)        War Powers Resolution

ii)      Note: The War Powers Resolution

(1)   Constitutionality Issue

(a)    One View: The War Powers Resolution is an unconstitutional infringement on the powers of the President.

(b)   Another View: This brings the constitutional balance that has been upset over the years, and it allows congress to ensure that there is no undeclared war. If there is a constructional defect, it is that the President can attack in far to many situations without a declaration of war.

(c)    Either way the SC is likely not to decide on this case and call it a political question.

iii)    Note: Congressional Control over Agreements with Foreign States

(1)   Treaties

(a)    A treaty is held as the same regard as a statute. With regard to domestic law, a later act of Congress can repeal a treaty, but this may violate international law.

(b)   A treaty made between the US and another willing country only to be able to effect local domestic law like Gay Marriage would be unconstitutional if it is an attempt to circumvent the House of Reps.

(2)   Executive Agreements

(a)    Presidents have created executive agreements through the indirect assumption of Art 1.10. This gives them the power to have agreements with other countries without the senate or the house.

(b)   In American Insurance v. Garamendi the court said that the “historical gloss” talked about by frankfurter in Youngstown helps us here to see that for the last 200 years the President has been doing this and can do this.





Gives individual COA as opposed to asserting as defense


Complex remedy

South Carolina v. Katzenbach (literacy tests can be suspended)

-          VRA upheld

-          Congress can prescribe remedy for proven violations of 15A


Preventative or prophylactic remedies

City of Rome v. US (VRA preclearance provisions challenged)

-          City’s proposed changes found to have discriminatory effect by AG under VRA

-          Ct rejected city’s argmt that Congress could not prohibit changes

-          Congress can prohibit actions it determines to be discriminatory

-          Broad reading - Ct went further – Congress has authority under enforcement clause to interpret meaning of 15A




1. Nationalistic perspective – Congress may independently interpret Const. even overturn SC

Katzenbach v. Morgan

-          VRA Sec4(e) – any person who completed 6th grade in Puerto Rico can vote even if fail English literacy test

-          Precedent was Lassiter v. Northhampton Election Board, which upheld const. of English literacy requirement for voting

-          Ct upheld 4(e) as proper exercise of Sec5 of 14A

o   This was remedy for discrimination

§  Congress could conclude it would empower Puerto Ricans and help eliminate discrimination

o   Congress could find literacy test denied equal protection

§  Ct broadly interpreted Congress’ Sec5 pwrs à Congress can indep interpret Constitution

§  Sec5 similar grant of power to Congress as Necessary & Proper Clause

-          Harland DISSENT – concern about Congress diluting/negating Const. right

-          Brennan’s response to dissent – Congress can only enforce const. guarantees, cannot restrict/abrogate/dilute


2. Federalist Perspective – Congress may not use its Sec 5 powers to expand scope of rights or create new rights


City of Boerne v. Flores (no unemployment for Native Amer. Guy smoking peyote)

-          BKGRD

o   Emplymt Div of OR v. Smith

§  OR law prohibited consumption of peyote

§  Native American challenged law as infringing on free exercise of religion

§  HELD – neutral laws of general applicability not unconstitutional

§  RATL – OR law neutral b/c not trying to interfere w/ religion and applied to everyone

o   Congerss responded to Smith w/ FRFA

§  Required courts considering free exercise challenges to uphold const. only if govt action necessary to achieve compelling purpose

-          FACTS – local authorities denied church bldg permit

o   Church sued under RFRA

o   City challenged unconstitutionality of RFRA

-          HELD [Kennedy] – Act unconstitutional

o   Impermissible b/c expanded scope of rights

o   Limitation not proportional or congruent as preventative or remedial measure

o   Under Sec5 Congress enforce, but cannot determine when is const violation

o   Ct says what the law is (Marbury)

§  Sounds like Cooper

o   **Congress is limited to preventative remedy violation of rights already recognized by SC

-          DISSENT – revisit Smith opinion

-          CRITICISM 

o   Debate involves:

§  Meaning of Const. text

§  Intent of 14A

§  Basic policy questions concerning separation of pwrs, federalism, individual rights

o   Warren Ct – expansive, broad Congress. Sec5 pwrs

o   Rehnquist Ct – narrowly interpreted authority


11th Amendment – State Sovereignty


Chisolm v. Georgia – no state sovereignty

-          States passed 11A in response


Hans v. Louisiana – state citizen can’t sue own state


Pennsylvania v. Union Gas – Congress can take away state sov immun under Commerce Clause


Seminole Tribe v. Florida – Congress can authorize suits agst state govts & override 11A when acting pursuant to Sec5 of 14A


Subsequent cases – Court applied Boerne test and held invalid exercise of Sec5 power

-          Florida Prepaid Postsecondary Expense Ed Bd

-          Kimel v. Florida Board of Regents

-          In deciding whether a state can be sued under a federal statute, court must decide whether the law is a valid exercise of Congress’ Sec5 powers

-          Board of Trustees v. Garrett

o   FACTS – nurse took leave for cancer treatment


§  Can state discriminate?

§  Is ADA a remedy?

o   HELD – private party cannot sue state govt for violating fed law

o   RATL – court applied Boerne test of congruence and proportionality

§  Rational basis review – must show state is making irratl decision

§  It is ratl for state to conserve scarce resources by hiring people able to use existing facilities

§  Does not meet C&P test – ADA goes beyond what is const. req.

-          Nevada Department of HR v. Hibbs

o   HELD – upheld abrogation of state sover immune under FMLA

o   Applied heightened scrutiny test

§  Easier than congruence and proportionality test





Article 1, Section 8


Important questions to ask in this power

1.      What is commerce?

2.      What does “among the several states mean”?

3.      Does the 10A limit Congress?


Doctrine of implied powers – although fed govt may act only where it is affirmatively authorized to do so by the Constitution, the authorization does not have to be explicit

-          Federal government (esp Congress) may validly exercise power that is ancillary to one of the powers explicitly listed in the Constitution, so long as this ancillary power does not conflict with specific Constitutional prohibitions

-          implied powers is explicitly stated in Necessary and Proper Clause (art1, sec8)


McCulloch v. Maryland

-          FACTS – Second Bank of the United States chartered in 1816

o   MD Act – anti-bank statute that imposed tax on all banks operating in MD and were not chartered by the state

-          HELD – Bank charter was constitutional but tax was constitutionally invalid

-          RATL

o   Constitutionality of Bank came directly from the ppl, not from states qua states

§  States delegated powers to natl govt

o   Constitutional grant of pwr need not be explicit

§  Power to raise revenue

§  Necessary and proper clause

·         As long as means is rationally related to constitutionally-specified object, means is also constitutional

§  Analogies to other implicit powers for constitutional grants of power

§  Separation of powers – courts shouldn’t review congressional act

o   Modern use - Courts will not strike down congressional action if means is not prohibited by Constitution and rationally related to objectives that are w/n constitutionally-enumerated powers


Gibbons v. Ogden

-          FACTS – NY legis gave exclusive steamboat rights to Fulton/Livingston, who licensed to Ogden

o   Congress gave rights to Gibbons

-          HELD – fed law authorized Gibbons to operate ferry

o   NY monopoly was impermissible restriction of interstate

o   Commerce includes navigation





Hammer v. Dagenhart (Federal Child Labor Act)

-          HELD – act unconstitutional b/c controlled production

o   Court saying you’re trying to regulate sthg not in your power

o   It’s not a commerce statute, it’s moral legislation

-          Holmes DISSENT – it’s regulation of commerce

o   Motives objectives don’t matter

Wickard v. Filburn (wheat farmer grows too much wheat)

-          FACTS - Farmer claimed extra wheat was for home consumption

o   Agri Adjustmt Act – set quota for wheat production

-          HELD – upheld federal law b/c cumulative effect of wheat on natl mkt

-          RATL – prodxn is commerce b/c substantial effect on IC

o   Did away w/ formal categories (direct, indirect effect)


EC Knight – sugar refinery monopoly

-          FACTS - Sherman Act said no monopolies

-          HELD - Court said mfg not commerce

o   Sherman Act does not apply to this monopoly

§  This is limitation on commerce power

§  Narrows Gibbons

Houston East West

-          FACTS – TX train hauls overpriced, discriminated agst routes going out of state

-          HELD – court said intrastate favoritism was discrim agst IC

o   Close and substantial relation to IC

o   Direct effect


-          FACTS – fed law prohibits transporting lottery tix interstate

-          HELD – upheld law

-          RATL – Congress can prohibit items from being in IC

o   State can protect its citizens by prohibiting lottery


Schecter Poultry (sick chickens case)

-          FACTS – wage and work hour stds law

o   Schecter violated statute and challenged const.

-          HELD – unconstitutional b/c not sufficiently “direct” relationship to IC


Carter v. Carter Coal (butinous collective bargaining agrmt)

-          HELD – overturned statute b/c indirect effect


National Labor RB v. Jones (Natl Labor Rel Act allowed unions)

-          HELD – unconstitutional b/c steel business was part of stream of commerce and labor relations w/n had direct effect on IC


US v. Darby – prohibited shipment b/n interstate commerce of goods


Heat of Atlanta Motel v US (hotel says no black ppl)

-          FACTS – hotel says CRA Title 2 is unconst

-          HELD – constitutional b/c affects IC not to allow black ppl to travel b/n states and stay freely at hotels


Katzenbach v. Blung (restaurant says no black ppl)

-          FACTS – similar to Heart of Atlanta

-          HELD - constitutional


United States v. Lopez (gun-free school zones act) [Rehnquist]

-          HELD – statute constitutional

-          RULE/TEST – Congress can regulate commerce under:

o   Channels of interstate commerce

o   Instrumentalities of interstate commerce

o   Activities having a substantial relation to IC

-          If say substantial effect here, then Congress’ power would be limitless


United States v. Morrison (VAWA)

-          HELD – suggests Commerce pwr only valid when economic activity

-          RATL

o   Congresl findings not enough to establish effect of conduct being regulated on IC

o   Distinction b/n local and natl activities

-          Breyer and Souter DISSENT

o    critical of majority’s rejection of Congress’ factual findings

o   Also critical of majority’s view that where an activity is basically non-commercial its aggregate affects on commerce cannot suffice







-          Enumerated – Article 1, Section 8, Clause 1

-          Article 1, Section 2 – direct taxes must be apportioned among states



US v. Butler (subsidies to limit crops)

-          HELD – broad spending power for general welfare

-          Adopts Hamiltonian view (general welfare)

o   Compare Madisonian view that says only enumerated powers


Steward Machine

-          HELD – upheld const of fed unemployment compens sys created by SS Act

-          RULE – aff’d Congress’ expansive authority (tax and spend)

-          Incentive not coercion


South Dakota v. Dole (highway funds conditioned on 21-year old drinking age)

-          HELD – statute constitutional

-          RULE – Four-part test of spending (very easy)

o   General welfare

o   Unambiguous act

o   Related to federal interest

o   Does not violate other constitutional provisions




Two views on 10A

-          Independent limit on legislative power

o   Reserves zone of activity to states

-          Reminder that Congress may legislate only if there is authority in Constitution


Why state power is important?

-          Lessens chance of federal tyranny

-          Enhances democratic rule by providing govt that is closer to ppl

-          Allows to be laboratories for new ideas


Missouri v. Holland (migratory bird treaty)

-          10A is not a limit on Congress’ treaty powers (diff b/n statute or treaty)

-          Treaty power is expressly delegated to Congress/President in Constitution

-          Art VI: treaties are supreme law of the land

-          NO limit


Gibbons v. Ogden

-          So long as Congress is acting w/n scope of its Commerce Clause power, law will not be unconstitutional as violating 10A


10th Amendment history

-          19thc – reminder, not limit (Gibbons)

-          1900-37 – Protect state sovereignty (Hammer)

-          1937-1990s – reminder (US v. Darby et al)

o   Only one case violated 10A (Natl League)

-          1990s and beyond – resurrection of 10A as limit on Congress power (NY, Printz)




National League of Cities v. Usery

-          FACTS – Fed Labor Stds Act requires min wage to be paid to state and local employees

-          HELD – application of act was unconstitutional

-          RATL - Congress violates 10A when it infers w/ traditional state and local govt functions

-          This is a LIMIT

-          Note – overruled by Garcia (state does not need protection)


New York v. United States (fed law makes state “take title” to waste)

-           HELD – unconstitutional for Congress to compel state legislature to adopt lawsor state agencies to adopt regs

-          Congress can bribe states

-          Congress can set min stds to state, local actions

-          RATL

o   10A

o   Undermines govt accountability

o   Rejected argmt that compelling govt interest can permit 10A violation



-          FACTS - Brady Handgun Violence Prevention Act – gun purchase req. bkgrd check

-          HELD – expands NY to state execs



-          FACTS fed law prohibits states from disclosing personal info

-          HELD – constitutional under CC b/c many states sold info for $

-          Distinction b/n prohibition on conduct and affirmative duty (NY, Printz)





-          State possesses all power not delegated to fed govt or limited by Constitution



-          Congress passed law using its lawful constitutional powers

-          Congress has not acted but state/local laws would place undue burden on IC

o   Dormant commerce clause – article 1, section 8

-          TYPES – ask what did Congress intend?

o   Express – Gibbons

o   Implied – congressional intent to preempt

§  Conflict – can’t satisfy both state & fed law

§  Field – infer Congress meant to preempt state/local

-          Under CC, Congress always has authority to preempt state/local

o   Congress may also consent state action that would otherwise violate CC




-          DCC is judicial intervention

-          TEST – state reg which affects IC must satisfy each of the following three requirements in order to avoid violating DCC

1.      regulation must pursue a legitimate state end;

2.      regulation must be rationally related to that legit state end; AND

3.      regulatory burden imposed by state on IC must be outweighed by state’s interest in enforcing its reg

-          Intentional discrimination disfavored

o   Promoting own state’s economic interests is not legit state end

-          Market participant exception – if state acts as mkt participant, it may favor local over out-of-state interests

-          State taxation - may be found to unduly burden or discriminate agst IC and violate DCC

-          Justification

o   Historical – framers intended to prevent state/local from interfering w/ IC

o   Econ – economy is better off

o   Pol – state/citizens don’t have representation in other states

-          Arguments against DCC

o   Framers could have included it but did not

o   Congress has authority to invalidate state laws unduly burdening IC not judiciary

-          Two major problems

o   What is the source of court’s authority?

o   What are criteria for determining when state/local law improperly interferes w/ IC?


GibbonsMarshall said Congress has exclusive power to regulate IC


Cooley v. Bd of Wardens – distinction b/n natl and local subject matter

-          Natl SM – invalidated under DCC

-          Local SM – event state laws are allowed

-          HELD – upheld PA law req ships to use local pilot or pay $

-          Local b/c diff among ports and fed law expressly allowed states to regulate piloting


DiSanto v. PA – distinction b/n direct and indirect effects

-          State law req state-issued license to sell tix for foreign travel

-          State argued purpose to prevent fraud

-          HELD – unconstitutional b/c direct effect on IC


è These cases used rigid categories

o   Courts now use balancing approach

§  Weigh benefits of law agst burdens that it imposes on IC


Philadelphia v. NJ (NJ law: landfills only for NJ trash)

-          HELD – law struck down b/c facially discrim

-          No public safety


C & A Carbone v. Clarkstown (city ordinance req using particular waste station)

-          Facially neutral law but discrim effect on out-of staters

-          HELD – unconstitutional b/c city’s purpose to pay for station was inadeq purpose

o   There are other ways to pay for station such as taxes

-          O’Connor – not discriminatory but burden is too high

-          Souter – city hasn’t done anything wrong

West Lynn Creamery v. Healy (MA tax on all milk)

-          Facially neutral but discriminatory effect

o   State imposed taxes on everyone but then returned $ to in-state dealers w/ subsidy from special fund

-          HELD – unconstitutional statute

o   Pure subsidy from general revenue imposes no burden on IC and would be constitutional

§  Everyone could oppose, including in-state

o   Subsidy from special fund could not be effectively opposed by out-of-state (no political clout)




Article, section 10 – no state shall..pass any…law impairing the obligation of Ks

-          Only applied to state/local interference

o   NOT federal govt (where COA under due process)

-          Applies only to interference w/ existing Ks

o   Does not limit regulation of future Ks

-          Public Ks – if state is trying to escape from its own financial obligations, court will closely scrutinize this attempt

o   State’s attempt to “weasel” will be struck down unless the modification is reasonable and necessary to support an important public purpose

-          Private Ks – but when state is re-writing Ks made by private parties, state merely has to be acting reasonably (much easier to satisfy standard)

o   If state’s action is a generally applicable rule that has only the incidental effect of impairing Ks, the K Clause does not apply at all



-          Framers intended to prevent states from protecting debtors

-          Then depression happened

-          Debtor relief laws went unchallenged

-          IMP – used to be one of most imp part of Const and lots of laws were struck down, but Blaisdell got court out of business of striking down laws



-          HELD – MN debtor relief law upheld b/c emergency measure of limited duration to protect the vital interests of the community

-          Limits scope of K clause

-          Govt can interfere w/ existing Ks if it has a valid police purpose

-          Court is deferential to govt when private Ks are involved

-          3-part TEST – govt interference in private Ks

o   Substantial impairment of K relationship?

o   If so, does it serve a significant and legitimate public purpose?

o   Is it reasonably related to achieving goal?


US Trust Co. v. New Jersey (rail transit)

-          Court is not deferential to govt when case involves state as a party to K

-          Heightened scrutiny TEST – impairment both reasonable & necessary to serve admittedly important purposes claimed by state


Allied Structural Steel (MN pension benefits)

-          Only case since 1934 where SC has declared unconst a state law interfered w/ private Ks

-          In the future, it is possible to resurrect K clause, using Allied as precedent




-          Govt authority to take private property when necessary for govt activities

-          5A requires 1) public use and 2) just compensation

-          Eminent domain pwr is implied, and 5A is limitation on pwr



1)      Is there a taking?

a.       Possessory taking – occupy property, take title

b.      Regulatory taking – leaves no reasonable econ viable use of property

2)      Is it property?

3)      Is the taking for public use?

a.       No, then govt must give back

b.      However, broad definition of public use so that almost any taking will meet the requirement

                                                              i.      Must meet rational basis test

4)      Is just compensation paid?

a.       Measured in terms of loss to owner

b.      Gain to taker is irrelevant




Hawaii Housing Authority

-          HELD – public use defined as public benefit

-          Original meaning was use by public

-          Property redistributed to private property



-          Economic development is public benefit




TEST – for land use reg to avoid being a taking, it must satisfy two requirements

1.      It must substantially advance legitimate state interests and

1.      Legit interests – broad

2.      Tight means-end fit (Nollan)

2.      It must not deny an owner economically viable use of his land

1.      Deprivation of all use (Lucas)

2.      The more drastic the reduction in value, the more likely a taking


Distinction b/n taking and regulation

-          Extent of intrusion

-          Nature of intrusion

-          Balancing

-          Legitimacy of state’s interest


Zoning regs generally do not req just compensation b/c burdens everyone and benefits everyone


Pennsylvania Coal v. Mahon (coal mining prohibition)

-          HELD – govt regulation was taking

-          While property may be regulated to a certain extent, if reg goes too far it will be recognized as taking

-          Brandeis DISSENT – it’s a noxious use if you mine under the street, so govt should be able to prohibit mining


Miller v. Schoene (VA red cedar trees v. apple orchard)

-          FACTS – state ordered destruction of cedar trees to prevent spread of cedar rust

o   State acted to protect apple orchards

-          HELD – upheld state action, so no compensation

o   Govt was forced to choose b/n two properties

o   State govt doesn’t exceed const pwrs to decide to destroy one property to save another, which it finds to be greater value to public


Penn Central Transportation Co. v. NYC (historical landmark)

-          HELD – govt reg was NOT taking

-          P argued 1) airspace rights infringed and 2) diminished value

-          HELD – 1) can still build, 2) reasonable rate of return

-          TEST – regulatory taking

o   Economic importance of regulation on claimant

o   Extent to which regulation has interfered w/ distinct investment backed expectations

o   Character of governmental action

-          Rehnquist DISSENT – owners prohibited from doing stuff and required to maintain it

o   If NYC wants landmark, then let them pay for it


Keystone Bituminous Coal Assn v. DeBenedictis (50% coal req’d kept in land)

-          Law had effect of preventing some mining

-          HELD – no taking b/c law served legit state interests & allowed econ viable development of property

-          Similar facts to PA Coal but result is diff


Nollan v. CA Coastal Commission (easement across beachfront property)

-          Permit for rebuilding conditioned on granting public easement

-          HELD [Scalia] – three options

o   Requirement of easement would be taking/physical occupation

o   If deny permit, condition must substantially advance legitimate state interest and leave econ viable uses

o   If grant w/ condition, then condition must substantially advance legit state interest

-          Brennan DISSENT –

o   Condition is related to legit concern

o   Limit case as saying can’t condition rebuilding


Lucas v. South Carolina Coastal Council (can’t build on beachfront property)

-          Prohibition rendered property valueless

-          HELD – regulation is taking if deprives owner of ALL econ beneficial use and requires just compensation

-          Footnote 7 – if 90% taking, it’s uncertain if requires just compensation

-          Blackmun DISSENT – apply ad hoc test all the time

o   Don’t worry – could be nuisance today but may change

-          Stevens DISSENT – this is arbitrary


Palazzolo v. Rhode Island (wetlands property, regs in place when purchased)

-          RULE – subsequent owner can challenge reg takings

-          HELD – remanded for Penn Central analysis

o   owner not deprived of all econ use of property b/c value of upland portions is substantial







More 1A protection à you can say more stuff



1A was rxn against suppression of speech and of the press that existed in Eng. Society

·         Prior restraint-licensing regime - until 1694, England had elaborate sys of licensing & no publication w/o govt license

·         Framers’ intent – 1A was meant to prohibit licensing of publication (like in Eng) and to forbid punishment for seditious libel (criticize govt)

o   Seditious libel – the more true sthg was, the more dangerous it was considered

·         Before Bill of Rights adopted

o   Federalist argmt – Congress has no pwr to regulate FOS, so it doesn’t need to be protected

·         Fight b/n Federalist and democratic Republicans

o   1798 – Congress adopted the Alien and Sedition Acts of 1798

§  Crime to criticize govt

§  Truth would be a good defense

o   Pres Adams (Federalists) used law against their rivals, the Republicans

o   In 1800, after his election Pres Jefferson pardoned those convicted under law

o   Alien and Sedition Act was repealed

o   SC never ruled on its constitutionality

·         Ever since then, 1A is broader than prior restraint


Why is Speech Protected? Justifications

·         Self-governance – people have to be able to speak about their govt

·         Controversial b/c saying it’s about political speech and that’s what we’re going to protect

·         Marketplace of ideas/search for truth – good ideas will thrive, but bad ideas die

·         Autonomy – people get satisfaction from saying what they think, expressing individuality

·         Tolerance – purpose is to develop and demonstrate social capacity to control feelings evoked by a host of social encounters


Content-Based Restrictions: Dangerous Ideas and Information


Definition - A content-based restriction on speech is one in which the applicability of the law is triggered by the substance or content of the message being conveyed.



-          Begin w/ presumption that content-based restriction on speech is suspect

o   Strength of presumption may diminish if less protected category of speech

-          Three different types of tests

o   Application of specialized/doctrinal test created specially for that type of speech

§  Clear and present danger test – assess restrictions on speech that advocates unlawful

o   Determination that speech is constitutionally unprotected or proscribable speech

o   Ad hoc balancing test – Can restriction be defended on the ground that it is narrowly tailored to achieve a compelling governmental interest?


Content-based restrictions are considered a most serious infringement of First Amendment liberties, since the government is using the force of law to distort public discourse by suppressing, through either prior restraint or subsequent punishment, those messages perceived by the government to be somehow objectionable.


Speech That “Causes” Unlawful Conduct


Clear and present danger (CPD) test is the original First Amendment (1A) doctrine

-          Applies to advocacy of unlawful conduct, social protest, commentary on public issues

-          Strict scrutiny – permits restrictions only when necessary to advance substantial, overriding governmental interest and only when danger presented by speech is such that govt has no other option but to punish speaker

-          Notes about modern test

o   Values freedom of expression over even very weighty govt interests

§  Need specific facts proving imminent danger to such an interest

§  Restriction only to prevent extremely serious evil and only if evil is imminent

§  Law must be narrowly drawn in least restrictive/intrusive manner

o   CPD test and any 1A protection is intensely fact driven—context is everything

§  What is said in any case must be filtered through facts of that case

Basic value questions of incitement

-          How should society balance its need for social order against its desire to protect FOS?

-          When, if at all, may speech that advocates criminal activity or overthrow of govt be stopped to promote order and security?


Clear and Present Danger Test

Schenck v. United States (violations of Espionage Act of 1917) [HOLMES]

-          FACTS – Ds distributed leaflets encouraging potential conscripts to resist the draft

o   Act punished certain acts of hindrance against US during WWI

o   TC convicted

o   SC affirmed, not really considering their 1A defense valid

-          RULE – Can restrict “when words used in such circumstances and of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent”

o   “Character of every act depends upon circumstances in which it is done”

§  No 1A protection for falsely shouting fire in theatre and causing panic

o   Ct did not apply any clear and present danger stds to the facts before it

o   Ct simply assumed the circumstances warranted conviction and punishment

§  Apparently it was enough that leaflets may have had a bad tendency


Hand’s analysis of express incitement

-          Contrast Shaffer and Schenk analyses

-          Hand focused on content of speech rather than intent of spkr or consequences of speech

-          Dispositive factor – whether spkr employed express words of incitement

-          Criticisms

o   Underprotective of express incitement

o   Overprotective of “clever” inciter – spkr specifically intends to incite but is clever enough to avoid use of such language

o   Overprotective of dangerous speaker


Risk Formula Approach

Dennis v. United States (conspiracy to create Communist Party of US) [VINSON]

-          FACTS – TC D convicted under Smith Act to create org that advocated unlawful overthrow of US govt

o   Act

-          HELD – (HAND test) - Gravity of evil to be discounted by improbability of its occurrence to determine whether justifies invasion of free speech as nec to avoid danger

o   Plurality opinion (has been treated as authoritative by SC)

o   Under modified CPD, the more substantial the potential evil is, the less likely its realization must be for govt to restrict speech promoting that evil (balancing test)

o   Vinson’s formula was more deferential to govt interests

-          RATL – If harm is so big, can restrict speech w/o balancing imminence & probability

o   Violent overthrow of govtl and social institutions is a substantial evil

o   Any lack of immediacy was far outweighed by combo of subst. evil and perception that illegal action would occur whenever time for action was deemed propitious

-          BKGRD – emerging Cold War and perceived threat posed by worldwide commy mvmt

-          Frankfurter CONCUR – deference to legislature

o   Congress has primary responsibility to adjust interests

§  We don’t have role in this

o   Congress already determined danger created by overthrow advocacy is justified

-          Jackson CONCUR – CPD is inapplicable to “well-organized, nation-wide conspiracy”

o   CPD is too protective of speech

o    “Verbal trap” of CPD would req. appraisal of “imponderables”

o   CPD is useful to measure const. of prosecutions of discrete acts of protest

-          Black DISSENT – Ds not charged w/ saying/writing anything designed to overthrow govt

-          Douglass DISSENT – need immediate injury to society that is likely

o   Communism is not CPD; US people don’t like commies


The Advocacy of Doctrine and Advocacy of Action Distinction

-          Kingsley Intl Pics Corp v. Regents of New York – morality is not basis for suppression

o   Movies are w/n scope of 1A protection

o   RULE – 1A guarantees freedom to advocate ideas

-          Yates v. United States – overturned convictions of individuals for conspiracy to violate Smith Act

o   RULE – govt may punish advocacy of unlawful action but many not punish advocacy of doctrines, even if those doctrines, if carried out, would be illegal

o   Did not overrule Dennis, but distinguished it

o   Distinction – ppl must be urged to do smthg, not just believe in smthg

-          Court still willing to uphold convictions under Smith Act

-          Scales v. United States (Commy membership) – upheld conviction for being member in an organization which advocates overthrow of govt

o   RULE – must have proof that individual actively affiliated w/ group, knowing of its illegal objectives and w/ specific intent of furthering those goals

o   HELD – suff. evidence to make case for jury on issue of illegal party advocacy


Brandenburg Test – shift to more speech protective approach


Bond v. FloydHeld GA legis could not refuse to seat Bond b/c support for statmt strongly critical of VN War and draft

-          Bond’s statmts were advocacy of ideas protected by 1A


Brandenburg v. Ohio (KKK) – key case defining when govt may punish advocacy of illegality

-          FACTS – KKK leader convicted of violating state law that made it unlawful to advocate “the duty, necessity or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform”

o   TV news report was aired broad broadcasting speeches made by petitioner.

o   Conviction was upheld on appeal by the Supreme Court of Ohio

o   D made two speeches

§  “if Pres, Congress, SC, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengence taken

§  He made racist comments about blacks and Jews

-          RULE/Test - Conviction for incitement is const. only if:

o   Imminent harm

o   Likelihood of producing illegal action

o   Intent to cause imminent illegality

-          HELD - SC reversed conviction b/c based on unconst. statute

o   Statute unconstitutionally intruded on FOS

o   Advocacy of unlawful conduct couldn’t be punished “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”

o   This is THE test on incitement.

o   This seems to be SC’s most speech protective formulation of incitement test

§  Tough test to apply b/c harm must basically happen

·         Otherwise can argue that not likely to occur b/c it didn’t happen

·         COUNTER – this is a weak argmt

o   Compare w/ earlier incitement tests

§  Earlier tests did not have intent reqmt

§  Earlier tests did not so clearly state reqmt for likelihood of imminent harm

o   Did not overrule Dennis; said it was following Dennis

§  But it was actually substantial expansion in protection of speech

§  Dennis ct expressly denied reqmt for proof of imm. danger of likely harm



Hess v. Indiana

-          FACTS – Individual convicted of disorderly conduct

o   Said, “we’ll take the fucking street later,” after police cleared demonstration from street

o   HELD – Speech was protected by 1A

o   RATL

§  At best, statement taken as advice to be moderate

§  At worst, was advocacy of illegal action at some indef. future time

§  Did not meet Brandenburg test b/c no proof of intention to produce imminent disorder or likelihood


NAACP v. Claiborne Hardware Co.

-          HELD – overturned judgment agst NAACP for boycott of allegedly racist white-owned business

-          NAACP official’s speech: If we catch any of you going in any of them racist stores, we’re gonna break your damn neck

-          HELD – speech was protected by 1A under Brandenburg, so no liability

-          Mere advocacy of use of force/violence does not remove speech from 1A protection


Court redefined test for incitement in much more speech protective terms

-          Individual can only be convicted for incitement if it is proved threat there was likelihood of imminent illegal conduct and if speech was directed at causing imminent illegal conduct

-          Diff b/n Brandenburg, Hess, NAACP and earlier cases (Schenck, Dennis) – social climate

o   Prior cases were at times when there were strong pressures to suppress speech


EE p. 316 ???

Public and overt speech – apply Brandeis’ Whitney concurrence

Covert speech (part of organized, clandestine conspiracy) – apply Dennis majority balancing test

Brandenburg  did not involve covert or clandestine ops, rather they were premised on D’s public declarations of his org’s philosophy made in presence of TV film crew



Speech That “Threatens”

Bridges v. California (threat to strike, shutting down Port of LA) [Black]

-          FACTS – involved dispute b/n two unions

o   One union was unhappy w/ court’s judgment

o   Threat – telegram threatening strike to tie up Port of LA

o   D found guilty of contempt of court for publishing copy of telegram he sent to Sec of Labor criticizing judge’s decision and threatening a labor strike

-          HELD – publisher can be held in contempt for out-of-court statement only if CPD to legal system

-          RULE – Under CPD, “min compulsion” of 1A req. “substantive evil must be extremely serious & degree of imminence extremely high before utterances can be punished”

-          RATL -

-          Frankfurter DISSENT – was intended to intimidate judge & shouldn’t be protected

o   Freedom of expression cannot nullify constitutional guarantee of impartial trials

Watts v. United States (hands on LBJ)

-          FACTS – During public rally, D said he wanted to get his hands on LBJ if they ever made him carry a rifle

-          RULE – It was political hyperbole and not a threat.

-          RATL – D’s only offense was crude offensive method of stating pol. opposn to Pres

Planned Parenthood v. American Coalition of Life Activists (wanted posters of abortion docs)

-          FACTS – D established anti-abortion website (Nuremberg Files) w/ wanted posters of abortion doctor names and addresses


-          RULE – While advocating violence is protected, threatening violence is not

-          DISSENT – Diff b/n true threat and protected expression is that true threat warns of violence or other harm that spkr controls

o   Statement is not true threat just b/c instills fear in listener

o   To be threat, must send msg that spkrs or partners will engage in phys violence

o   Statements communicated directly to target are more likely to be threats than those communicated as part of public protest


Speech That Provokes a Hostile Audience Reaction

Definition - Fighting words are defined as those words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky

-          Presumed to play little or no part in exposition of ideas

-          Fall outside protection of 1A umbrella

-          Application of fighting words doctrine depends largely on context in which presumably harmful or provocative words are used

o   No words automatically fall into this category

o   Words not normally considered fighting words may warrant label if particularly volatile circumstances and in a manner likely to cause a violent rxn

-          FW doctrine may be thought of as merely a specific application of CPD test

-          Test – use of offensive or provocative language will be punishable accdg to FW only if words delivered in manner & under circumstances likely to cause immed & serious harm

o   Typical harm – violent rxn stemming from face-to-face confrontation

-          Critics of FW – argue should fall under 1A umbrella, but is nonetheless punishable where CPD reqmts met


Terminiello v. Chicago (hostile audience rxn)

-          FACTS – T convicted of disorderly conduct based on his speech

o   Full capacity auditorium (1800 ppl) w/ 1000 ppl outside

o   T condemned various pol & racial groups and goaded his opponents

§  “slimy scum,” “snakes,” and “bedbugs”

o   There were several disturbances

-          HELD – Overturned conviction b/c not shown that speech posed CPD of lawlessness

o   Jury instruction was not sufficiently protective of speech

-          RULE – Speech may not be restricted b/c ideas expressed offend audience and cause inconvenience, annoyance or unrest

o   FOS not absolute, but nevertheless protected ag censorship/punishmt unless CPD


Cantwell v. Connecticut (Jehovah attacking Catholics)

-          FACTS - Jehovah’s Witness prosecute for playing phonograph on street corner that attacked Catholic religion

-          HELD – overturned conviction for disturbing peace b/c absence of proof of CPD

-          RULE - Govt may punish or prevent speech which incites hostile audience and poses CPD of riot or disorder or poses such a threat to public safety, peace or order

-          RATL - State may not unduly suppress free communication of views, religious or otherwise, under guise of conserving desirable conditions

o   D’s activity aroused animosity but was not the personal abuse unprotected by 1A

o   D was attempting to persuade others of his apparently unpopular views

o   D avoided actual confrontation, therefore he did not breach the peace


Feiner v. New York (protective suppression)

-          FACTS – individual convicted for speech he gave that criticized pres and local pol officials for their inadequate record on civil rights

o   One man said he would stop D if police officer didn’t

o   Police asked spkr to leave

o   Spkr refused to leave, and police arrested him for disturbing the peace

-          RULE – Speech which engenders hostile rxn by audience may be punished

-          HELD – upheld conviction under CPD

o   Quoting Cantwell - govt may prevent or punish speech that poses CPD

-          Black DISSENT – appropriate police response should have been to control crowd

o   Only if controlling crowd was impossible and threat to breach of peace imminent could police arrest spkr

o   Police has duty to protect public spkr, in preserving order

o   Here police did not even pretend to try to protect petitioner


 “A far cry from Feiner

-          Later cases appeared to follow approach in Black’s Feiner dissent

o   Did not overrule earlier cases using CPD

-          Edwards v. South Carolina ( )

o   FACTS – civil rights protestors staged march on South Carolina state capitol

§  Significant hostile crowd gathered, but no violence or threats of violence

§  Spkrs arrested after they ignored police threat to disperse

o   HELD – overturned conviction

o   RATL – Distinguished Feiner b/c no threat of violence [on part of petitioners] or on part of any member of crowd watching them

§  Police protection at scene was at all times sufficient to meet any foreseeable possibility of disorder

-          Cox v. Louisiana ( )

o   FACTS – Individual convicted for giving speech objecting to racial segregation of lunch counters and urging sit-in

§  Some audience found speech inflammatory

§  Speaker arrested a day after demonstration

o   HELD – overturned conviction

o   RATL – emphasized ability of police to control crowd

-          Gregory v. City of Chicago ( )

o   FACTS – group of civil rights demonstrators were arrested when angry group threatened marchers

§  Protestors were marching to mayor’s house

§  Opposing group reacted angrily, threatening demonstrators & threw rocks

o   HELD – overturned convictions for disturbing of the peace

o   RATL – law did not limit convictions to instances where there was threat of imminent violence, police made all reasonable efforts to protect demonstrators and police requested demonstration be stopped

-          Perhaps ct applied CPD test and concluded not sufficient evidence under circumstances to justify conclusion of imminent threat to BOP


Chaplinsky v. New Hampshire (other religions are “racket”)

-          FACTS – Jehovah’s Witness was distributing JW lit on street corner on Sat PM and gave speech denouncing other religions as “racket”

o   Epithets “God damned racketeer” and “damned Fascist” delivered in face-to-face confrontation w/ police ofcr held to be fighting words

-          HELD – upheld Chaplinsky’s conviction for this speech

-          RULE – “fighting words” are category of speech unprotected by 1A

o   Suggests two situations where speech constitutes fighting words

§  Where it is likely to cause violent response agst spkr

§  Where it is insult likely to inflict immediate emotional harm

-          RATL – FOS is not absolute at all times and under all circumstances

o   Prevention and punishment of certain well-defined and narrowly limited classes of speech has never been thought to raise any constitutional problem

§  Classes of speech that may be prohibited:

·         Lewd and obscene language

·         Profanity

·         Libel

·         Insulting or fighting words

o   Utterances are not essential to exposition of ideas; their social value is slight and clearly outweighed by social interest in order and morality


Speech That Discloses Confidential Information

New York Times Co. v. United States; United States v. Washington Post Co. (Pentagon papers)

-          FACTS – US sought to enjoin publication by NYT of a classified study (Pent. papers)

-          HELD – court order stopping publication violated 1A (10 diff opinions)

o   Per curiam opinion – Govt failed to meet burden of rebutting heavy presumption agst prior restraints

-          Black CONCUR – strongly condemned any prior restraint

o   Injunctions should have been vacated and cases dismissed

o   B/c would be impossible to find that Pres has inherent pwr to halt publication of news by resorting to courts

-          Douglas CONCUR – strongly condemned any prior restraint

o   Serious stuff but secrecy in govt is anti-democratic

-          Brennan CONCUR –

o   1A tolerates absolutely no prior judicial restraints of press based on speculation that bad consequences may result

o   Only possible govt pwr to restrict publication by press of sensitive material arises from govt’s inherent pwr to wage war successfully

o   Here Congress has not declared war, so govt cannot exercise this pwr

-          Stewart CONCUR – pres had pwr to seek injuction to protect natl security

o   Concluded that pres failed to justify need for prior restraint in this case

§  “I cannot say that disclosure of any of [documents involved] will surely result in direct, immediate, and irreparable dg to our Nation or its ppl

-          White CONCUR – govt failed to meet burden of high std needed for prior restraint

o   Congress can allow prior restraint

o   Here no statutory authority for courts to impose such an injuction

-          Marshall CONCUR – Congress failed to give pres pwr to seek injunction to stop publication of info

o   Two scenarios

§  Govt has pwr under statutory grant to use tradtl crim law to protect US

§  If Congress has not made the activity a crime, Congress has specifically refused to grant authority govt requests

o   Court does not have authority to grant requested relief

-          CJ Burger DISSENT – court did not have sufficient time to gather and analyze facts

-          Harlan DISSENT – Jud review of exec branch in foreign affairs is narrowly restricted

o   Ct should inquire if subject of dispute lies w/n pres’ foreign rel pwr

o   Ct may req. head of dept determined disclosure of subject matter would irreparably impair natl security

-          Blackmun DISSENT – Case is too imp to be handled in rush, should be remanded


United States v. Progressive (how to build H-bomb)

-          HELD – fed district ct enjoined mag from publishing how to build h-bomb

-          Distinguish Pentagon Papers case

o   Provision in Atomic Energy Act appeared to authorize injuction

o   Govt claimed preventing nuclear proliferation was justification sufficient to warrant prior restraint

-          Note case was dismissed on appeal b/c others published same info in other places


Haig v. Agee (passport revocation of former CIA agent)

-          FACTS – Former CIA agent threatened to identify CIA officers and agents and to take measures to drive them out of countries where they were operating

-          HELD – upheld authority of Sec of State to revoke passport of former CIA agent

o   Rejected Agee’s claim that passport revocation was 1A violation

o   Declared purpose of Agee’s disclosures was to obstruct intelligence ops and recruiting of personnel

-          RATL – emphasized ability of govt to regulate intl travel to further its foreign policy obj


Content-Based Restrictions: “Low” Value Speech


False Statements of Fact

New York Times v. Sullivan () [Brennan]

-          FACTS – full-page ad in NYT soliciting support for civil rights mvmt

o   Ad also described certain anti-civil rights actions said to have taken place in Montgomery, AL, under auspices of local sheriff’s dept

o   In response, P-Sheriff of Montgomery sued NYT for defamation, alleging he had been libeled by certain factual errors contained in the ad

o   AL law – libelous per se if publication was “of and concerning” P and if it tended to injure P “in his reputation” or “bring [him] into public contempt”

§  Only defense to PF case of libel per se was proving publication was true

o   Ad did contain factual errors about events said to have occurred in Montgomery

§  Ad said MLK arrested 7 times, but was really only four

§  Ad said 9 students were expelled for demonstration, but suspension was for a different protest at lunch counters

§  Ad mistakenly said dining hall had been padlocked

o   TC – jury awarded P $500K in dgs

o   SC reversed

-          RULE – 1A limits ability of govt to impose tort liability

-          HELD – 1A prohibits public official from recovering dgs for defamatory falsehood relating to his official conduct unless he proves statement was made with “actual malice”

o   “Actual malice” means w/ knowledge that it was false or w/ reckless disregard of whether it was false or not

o   Actual malice element must be established w/ “convincing clarity” (tough std)

o   SC rejected entrenched jud assmp that CL defamation was categorically exempt from limits of 1A

o   Concise test requires:

§  P must be public official or running for public office

§  P must prove his or her case w/ clear and convincing evidence

§  P must prove falsity of statement

§  P must prove actual malice

·         D knew it was false or acted w/ reckless disregard of the truth

·         TOUGH standards

-          RATL - SC proclaimed profound natl commitment to principle that debate on public issues should be uninhibited, robust and wide-open

o   Criticism of govt and govt officials was at core of protected speech

o   To achieve this public debate, participants must be free to risk publication of factual error in their exploration for truth or consensus and in their quest for democratic accountability

§  To conclude otherwise would have dangerous chilling effect on public discourse

§  Risk of transient error was far outweighed by risk of enforced silence

o   It may include vehement, caustic, and sometimes unpleasantly sharp attacks on govt and public officials

o   Note expanding const. law of free speech

-          Critics maintain Ct went too far in protecting false statements and in not providing adequate protection for political speech


Hustler Magazine v. Falwell (parody of well-known televangelist and mom)

-          FACTS – Falwell sued for international infliction of emotional distress b/c he knew he wouldn’t meet libel standards

-          HELD – recovery for tort of intentional infliction of emotional distress had to NYT stds

-          RULE – public officials and public figures who are targets of parody cannot recover for IIED unless there is proof of actual malice

-          RATL - Any other result would have meant defamation Ps could circumvent rigorous NYT standard simply by suing for IED

o   Reflects strong 1A protection for speech about public officials and public figures, even when it is caustic and offensive



Definition – Obscenity test from Miller v. California

1)      Whether avg person, applying contemporary community stds would find the work, taken as a whole, appeals to the prurient interest;

a.       Stds of avg person residing w/n local (not natl) community

2)      Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

a.       Appeal to prurient interest connotes promotion of lasciviousness or lustful desire

3)      Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

a.       Measured by natl reasonable person std for which expert testimony is permissible

Note legal distinction is drawn b/n obscenity and pornography

-          Obscenity is completely unprotected by 1A

-          But pornography, i.e. sexually explicit speech that is not legally “obscene,” is entitled to const. protection


New York v. Ferber ( )

-          HELD – distribution of child porn, i.e. sexually explicit motion pictures or photos that are not legally obscene, but that depict actual children engaged in sex acts, could be subject to criminal prosecution

-          RATL – no 1A protection for child porn b/c modest if not de minimus value of the speech and substantial harm and abuse suffered by the actual kids photographed

o   State’s interest to protect kids is compelling

o   Child porn is intrinsically related to sexual abuse

§  Permanent record increases effect

§  Need to control distribution

o   Ads and sale of child porn is an economic incentive for conducting illegal activity

o   Value of child porn is exceedingly modest if not de minimus

o   Decision is not incompatible w/ precedent on 1A

-          Distinguishes Miller’s obscenity test, child porn is really different

o   gets rid of Miller’s first two prongs

o   only must lack serious literary, scientific or artistic value

-          O’Connor CONCUR – Const. may permit ban on kid porn w/o assessing lit, pol, art value

-          Brennan, Marshall CONCUR – say opposite of O’Connor

o   Application to serious literary, scientific, artistic or political material would violate 1A

Ashcroft v. The Free Speech Coalition ( )

-          FACTS – Child Porn Prevention Act prohibits child porn and kid-like images

-          HELD – statute is unconst. b/c it is overbroad

o   Statute covers more than actual kids, includes computer-generated kids

o   Computer images are not child porn or obscene and do not fall outside 1A

-          RATL – Distinguishes Ferber, which was concerned about protecting actual children


The Lewd, the Profane, and the Indecent

Use of indecent or vulgar language is protected, as long as no trigger of limiting 1A principle

-          If material, taken as a whole, is obscene under Miller test à no protection

-          If indecent language is likely to cause public disturbance, then maybe FW

-          If merely offensive or deemed socially inappropriate, then full 1A protection


Cohen v. California (Fuck the Draft jacket) [Kennedy]

-          FACTS – D convicted of disturbing the peace for wearing jacket w/ “Fuck the Draft”

o   D was in county courthouse corridor w/ women and kids around

o   Some observers may have been offended, but no evidence of any potential fight

o   SC reversed

-          HELD – state is not empowered “to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us”

o   “fuck” may not be excised from the lexicon on the theory that it is “inherently likely to cause violent reaction”

o   Not obscene

o   Not fighting words b/c not directed at anyone

o   It’s protected speech b/c we don’t want to get in business of saying you can express idea but can’t use particular words

-          Blackmun, Black DISSENT – It’s conduct and not speech

o   Seems like fighting words, so should be proscribed as such


Ashcroft v. American Civil Liberties Union () [Kennedy]

-          FACTS – Child Online Protection Act makes it a crime to knowingly post, for commercial purposes of WWW content that is harmful to minors

o   Reno v. ACLU – SC 1st considered Internet and invalidated key provisions of Communications Decency Act

§  Fed crime to transmit obscene or indecent material over Internet in manner likely to be accessible to a minor

-          HELD – COPA unconstitutional

-          RATL – Ct says you should use filtering software instead, so that it doesn’t impose restrictions on adults’ access to websites

o   Can req. ppl to use credit card, verify age or other reasonable method

-          Breyer DISSENT – “Act, properly interpreted, imposes burden on protected speech that is no more than modest”

o   Filtering software isn’t good b/c it will filter out protected content

o   No way to require people to use filtering software

o   Not least restrictive; not a means at all



Pornography, i.e., communicative material that is sexually explicit but not legally obscene, is speech w/n meaning and protections of 1A


Virginia v. Black (cross burning statute)

-          FACTS - Statute made cross burning w/ intent to intimidate a felony

o   Govt argued cross burning has a negative meaning

-          HELD – upheld statute banning cross burning w/ intent to intimidate, but struck down statute’s prima-facie-evidence provision

-          not all cross burning is bad

-          RULE – cross burning is not prima facie evidence of intent to intimidate

-          RATL – there are situations where ppl burn cross and are not trying to intimidate

-          Thomas DISSENT – Flag burning is conduct, not expression, so should not be protected

o   Conduct is meant to intimidate


Content-Neutral Restrictions: Limitations on the Means of Communication and the Problem of Content-Neutrality


Time, Place and Manner (TPM) Test – Govt regulates speech indirectly by imposing limitations that do not pertain to content of speech, but affect circumstances under which expressive activity may occur

-          TPM restrictions are constitutional if they are:

o   Justified w/o reference to content of the regulated speech

o   Narrowly tailored to serve significant governmental interest AND

o   Leave open ample alternative channels for communication of the info

-          Look out for (potential problems)

o   Content

§  Inclusion of content-based trigger, i.e., 100ft ban on distrib of campaign lit

§  Granting of excessive discretion to administrators

o   Fact-driven considerations of means/ends analysis (mid-level scrutiny)

§  Nature of speech activity being regulated;

§  Perceived significance of governmental interest;

§  Scope of restriction;

§  Availability of effective, but less restrictive alternatives; AND

§  Court’s judgment as to actual effectiveness of restriction in advancing proffered interest


General Principles


Schneider v. State

-          Ordinance banned distributing leaflets in street

-          Govtl interest is to prevent littering

-          HELD - invalid – nothing w/ leaflets

-          RATL - not least restrictive – could punish ppl who litter


Martin v. City of Struthers

-          Ordinance prohibited person from ringing door bell to distribute leaflets

-          RULE – prohibiting door-to-door solicitation is unconst

o   Can only punish if resident previously said no solicitation


Kovacs v. Cooper

-          Ordinance prohibited using sound truck/amplification device

-          HELD – ok to have limitations on volume b/c ppl want calm/tranq in house

-          Black DISSENT – should be able to use any instrument to transmit ideas

o   Doesn’t like blanket prohibition

o   Maybe can be TPM restriction


Metromedia v. San Diego

-          Ordinance banning billboards

-          HELD – struck down b/c important form of communication

-          RATL – no proof that ads are bad and interfere w/ valid govt interest in traffic safety

o   Failed to show interest in aesthetic is sufficiently substantial in commercial and industrial areas


City of Ladue v. Gilleo

-          Ordinance prohibiting homeowners from displaying signs on their property

-          Purpose – minimize visual clutter

-          Sign at issue – say no to Persian Gulf War, Call Congress now

-          HELD – unconst b/c easiest way for ppl to express themselves


Generally, content-neutral restrictions are subject to less scrutiny but can be unconstitutional


NAACP v. Alabama

-          AL law – membership orgs req to disclose members names and addresses

-          HELD – does not apply to NAACP

-          RATL – disclosure of affiliation can constitute restraint on freedom of assn

o   Privacy may be indispensible to preservation of FOA esp where group espouses dissident beliefs


Bartnicki v. Vopper [Stevens]

-          FACTS – B working w/ PA Ed Assn and helped local teachers union negotiate K w/ school boards

o   Cell phone was taped illegally, passed on to radio station and broadcast convo

-          HELD – no liability for press’ publication in invasion of privacy when info obtained from private source

-          RATL – allowing liability would violate 1A

o   Press protected b/c not involved in interception

o   Tape concerned matter of public importance

-          Breyer, O’Connor CONCUR – narrow holding

o   Radio broadcasters acted lawfully

o   Info involved matter of unusual public concern, namely threat of potential plays harm to others

-          Rehnquist DISSENT – chilling effect on speech


Speech on Public Property: The Public Forum

Distinction b/n private and public property

-          Private property - Speech is protected to fullest extent called for by approp 1A test

-          Public property – level of 1A protection depends on how particular property is classified

o   Classifications: public forum, designated public forum, or nonpublic forum

o   Public fora and designated for a - fullest 1A protection

o   Nonpublic forum – substantially diluted 1A protections


Definition – traditional public forum is public facility that has, by long tradition, been dedicated to “the free xchg of ideas” (Cornelius v. NAACP Legal Defense & Educ. Fund)

-          Includes streets, sidewalks and parks (Hague v. CIO)


The Public Forum: States and Parks

Commonwealth v. Davis

-          FACTS – Ordinance prohibited “any public address” on publicly owned property “except in accord w/ permit from mayor”

-          HELD – Upheld ordinance

o   Holmes (MASC) – govt can control use of its property

o   SC aff’d MASC – govt can restrict use of its property (broad pwr)

o   Ct refused to recognize any 1A right to use govt property for speech purposes

Hague v. CIO [Owen Roberts]

-          FACTS – mayor attempted to prevent union (CIO) to organize in his city

o   Ordinance prohibited all public mtgs in streets and other public places w/o permit from the city

-          HELD (plurality) – there was a right to use govt property for speech purposes

o   “Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens.”

Schneider v. State

-          HELD – city ordinance prohibiting distrivution of leaflets on public property unconst