CONSTITUTIONAL LAW OUTLINE SWARTZWELDER

STANDARDS OF REVIEW INTRO

ISSUE: What standard of review should the court use for this issue?

RULE: The default setting is rational basis. Why?

 Defer to legislature
 Federalism – stay out of matters of state control
 Separation of powers – don’t infringe on legislative power
 Courts interpret the law, not make it; courts are not well equipped
to make policy decisions

Under rational basis, a law will be upheld if it is rationally related to a legitimate

government interest. (Plaintiff has burdens of proof)

If certain elements are met, the court uses strict scrutiny.

Under strict scrutiny, a law will be upheld only if it is narrowly tailored to

advance a compelling government interest. (Government has burdens of proof)

Strict scrutiny applies to laws that (1) distinguish the actors on the basis of a
suspect classification, (2) regulate speech on the basis of its content, (3) burden
certain religions, or (4) attempt to limit a fundamental right.

Under intermediate scrutiny, a law will be upheld only if it is substantially

related to an important government interest. (Plaintiff has burdens of proof)

ISSUE: Is there a fundamental right at issue here?

RULE: A fundamental right is a right or liberty that is “deeply rooted in this Nation’s
history and tradition” and “implicit in the concept of ordered liberty” such that
“neither liberty nor justice would exist if they were sacrificed.” (history, tradition,
separation of powers, federalism)
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DUE PROCESS – 14TH AMENDMENT

Authority: No State shall deprive any person of life, liberty, or property, without due process
of law. 14th Amend. § 1.

Substantive Due Process

ISSUE: Is a given right protected by the Constitution?

RULE: The 14th Amendment protects certain Fundamental Rights.

Our law affords constitutional protection to personal decisions relating to

marriage, procreation, contraception, family relationships, child rearing, and
education.

Right to Marry

RULE: The 14th Amendment requires that the freedom of choice to marry not be
restricted by invidious racial discriminations

The freedom to marry or not marry a person of another race resides with the
individual and cannot be infringed by the State.

REASON: The freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men; it is fundamental to our
very existence and survival.

Right to Vote – Apportionment

RULE: The right to vote itself is not fundamental as per our constitution, but once that
right is given, it becomes fundamental so that it cannot be denied by the
government.

RULE: The Equal Protection Clause may require uniform standards for counting votes
during recounts. 

RULE: The Equal Protection Clause requires electoral districts at the local, state, and
federal level to be apportioned based on the principle of one person, one vote.
 
RULE: Claims that district lines have been drawn solely for the sake of partisan
advantage—that is, claims of political gerrymandering—are justiciable, but the
Justices disagree about what standard the Equal Protection Clause requires the
Court to apply to such claims. 
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Abortion

ISSUE: Is a given law restricting a woman’s access to abortion constitutional?

RULE: A statute that, while furthering a valid state interest, has the purpose and effect of
placing a substantial obstacle in the path of a woman’s choice cannot be
considered a permissible means of serving its legitimate ends. (Undue Burden
Test)

Two Steps to Undue Burden:

(1) What benefits are conveyed?

(2) What burdens are involved?

ISSUE: Given the relative benefits & burdens, is a substantial obstacle present?

RULE: Interests in allowing abortion

 A pregnant women’s suffering is too intimate and personal for the State to
insist, without more, upon its own vision of the woman’s role, however
dominant that vision has been in the course of our history and our culture.
 Right to choose
 Right to privacy from unwanted government intrusion
 Personal decisions about family and relationships and bodily integrity

State interests in restricting abortion.

 Life of the fetus
o The further you get into a pregnancy, the greater this interest
weighs
o The compelling point at which this interest outweighs the
mother’s is at viability – when the fetus has the chance of
meaningful life outside the womb
 Integrity of the medical profession
 The right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as
the decision whether to bear or beget a child.”
 Women’s Health (State must demonstrate a real benefit to women that
outweighs the burdens)

The state may completely ban abortion after viability except when necessary to
save the life of the mother.
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Where it has a rational basis to act, and it does not impose an undue burden, the
State may use its regulatory power to bar certain procedures and substitute others,
all in furtherance of its legitimate interests in regulating the medical profession in
order to promote respect for life, including life of the unborn.

REASON: The law does not need to give abortion doctors unfettered choice in the course of
their medical practice, nor should it elevate their status above other physicians in
the medical community.

Procedural Due Process

RULE: The Due Process Clauses ordinarily require notice and an opportunity to be heard
when the government seeks to deprive a person of “life, liberty, or property.”

Step 1: Is there a protected interest?

RULE: Some protected interests are defined by the Constitution and include those given
explicit protection, (for example, in the Bill of Rights), and fundamental rights
that the Court has concluded are implied.

Property interests, on the other hand, are defined by independent sources of law,
such as state common law or state or federal statutory law. Such independent
sources of law create property interests when they create a legitimate claim of
entitlement to continued possession.

Step 2: What process is the person entitled to?

RULE: In determining what procedures are required to assure due process, courts balance
the competing interests, usually considering three factors:

(1) The severity of the harm to the litigant if the procedures are not provided;

(2) The risk of error if the procedures are not afforded; and,

(3) The administrative difficulty and other costs of providing the requested
procedures.
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EQUAL PROTECTION – 14TH AMENDMENT

Authority: Congress shall not deny to any person within its jurisdiction the equal protection
of the laws. 14th Amend. § 1

ISSUE: Does the law distinguish between actors based on a suspect classification?

RULE: Classifications are generally evaluated under rational basis; if a classification is

suspect, it must pass strict scrutiny.

The fact that a classification is under or over inclusive will not result in it being
declared unconstitutional.

Race and national origin are suspect classifications, while mental health groups
are not.

Factors to determine whether the classification is suspect and heightened scrutiny

should be used:
i. Whether the group of people harmed is
1. A discrete and insular minority that is the
2. Victim of societal prejudice and
3. Unable to achieve adequate protection through the ordinary
operation of the political process.

ISSUE: Does the law discriminate against this classification on its face or is it facially
neutral?

RULE: If the law discriminates on its face, it is subject to strict scrutiny. However, even if
a law is facially neutral, it may still trigger strict scrutiny when it was motivated
by a discriminatory purpose or is being applied in a discriminatory way.

When a law is applied and carried out in a way that is “as though” the
racial classification had been written into the law, it is subject to strict
scrutiny.

Laws that have a discriminatory effect must also have a racially invidious purpose
to be subject to strict scrutiny (effect/impact, although relevant, is not dispositive)

Evidence of invidious purpose: historical background of the decision,

sequence of events leading up to the challenged decision.

RULE: A classification on the basis of the exercise of a fundamental right can also
implicate strict scrutiny.

ISSUE: Does the law classify on the basis of race so as to treat the races the same, but
separate them or make the criminality of an act dependent on race?
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RULE: Separation on the basis of race generates a feeling of inferiority as to their status
in the community and is unconstitutional.

Any state law that makes the criminality of an act dependent on the race of the
actor is unconstitutional.

ISSUE: Does the law use a classification that is not suspect, but is still motivated by a
discriminatory purpose?

RULE: A bare desire to harm a politically unpopular group cannot constitute a legitimate
government interest. (Rational Basis)

Affirmative Action

ISSUE: Is a University’s affirmative action program constitutional?

STEP 1: Apply strict scrutiny.

STEP 2: The University must show that its purpose or interest is both substantial and
constitutionally permissible.

The only recognized compelling interest a university may have in creating

such a program is obtaining diversity.

Universities cannot establish quotas for members of certain racial groups,

put members of those groups on separate admissions tracks, or grant
automatic favorable treatment based on membership in that group.

Universities can, however, consider race or ethnicity more flexibly as a

“plus” factor in the context of individualized consideration of each and
every applicant.

The decision to pursue the benefits of diversity is an academic judgment to which

some judicial deference is proper.

STEP 3: Racial classifications are constitutional only if they are narrowly tailored to
further compelling governmental interests.

There must be no workable race-neutral alternatives would produce the

educational benefits of diversity; the racial classification is necessary to achieve
the goals.
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The University’s admissions criteria must encompass a broad array of

qualifications and characteristics of which racial or ethnic origin is but a single
though important element.

Gender

ISSUE: Is a given classification based on gender constitutional?

RULE: Classifications by gender must serve important governmental objectives and must
be substantially related to the achievement of those objectives. (Intermediate
scrutiny)

The reviewing court must determine whether the proffered justification is

“exceedingly persuasive.”

REASON: Legislative classifications that distribute benefits and burdens on the basis of
gender carry the inherent risk of reinforcing the stereotypes about the “proper
place” of women and their need for special protection

Thus, even statutes purportedly designed to compensate for and ameliorate the
effects of past discrimination must be carefully tailored

Wealth & Income

ISSUE: Can the Government discriminate on the basis of wealth or family size?

RULE: Because the right to vote is “fundamental,” a state violates the Equal Protection
Clause when it denies the right to vote on the basis of wealth or the voter’s failure
to pay a poll tax. 

Classifications on the basis of wealth are only subject to rational basis review.

The right to vote wasn’t originally fundamental, but once you give the right to the
people, you can’t take it away or discriminate against anyone with that right

Wealth, like race, creed, or color, is not germane to one’s ability to participate
intelligently in the electoral process.

RULE: There is no fundamental right to welfare or a free public school education.

A state does not violate the Equal Protection Clause when it limits the amount of
welfare benefits that a large family may receive. 

Nor does a state violate the Equal Protection Clause when it creates a scheme that
results in substantially less funding for poorer school districts than for wealthier
school districts. 
CONSTITUTIONAL LAW OUTLINE SWARTZWELDER

FREEDOM OF SPEECH – 1ST AMENDMENT

1. Is this speech?
2. Is it protected speech?
3. Does the government satisfy the level of scrutiny?
a. Default Review is Intermediate Scrutiny (O’Brien), not rational basis.

Authority: Congress shall make no law respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the Government for
a redress of grievances. 1st Amend.

POLICY: Freedom of expression regarding matters of public interest has long been secured
by the first amendment to assure unfettered interchange of ideas for the bringing
about of political and social changes desired by the people.

Debate on public issues should be uninhibited, robust, and wide-open, and it may
well include vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials.

ISSUE: Is the law facially invalid for vagueness or overbreadth?

RULE: A law is facially invalid under freedom of expression and due process if

(1) It is vague, that is, not drawn with sufficient clarity and definiteness to inform
persons of ordinary intelligence what actions are proscribed or

(2) It is overbroad, in that the law indiscriminately reaches both constitutionally

protected and unprotected activity.

Substantial overbreadth is required. A litigant may challenge the

constitutionality of an overbroad statue even if her activities could be
reached under a properly drawn statute.

REASON: The standards for facial challenges are relaxed because overbroad or vague laws
may have a chilling effect on protected speech; unless the constitutionality is
clarified, speakers worried about liability under the laws may censor their speech
more than is constitutionally required

ISSUE: Does the law regulate based on the content of the speech?

RULE: A law that is content-based is subject to strict scrutiny regardless of the

government’s benign motive, content-neutral justification, or “lack of animus
toward the ideas contained” in the regulated speech.
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When you apply a law to speech based on the impact that speech has on its
listener, it is content related.

Some content-based laws discriminate on the basis of the subject or topic

discussed, while a more egregious form of content-based discrimination
occurs when a State discriminates only against a single viewpoint.

The principle inquiry in determining content neutrality (in speech cases

generally and in time, place, manner restrictions) is whether the
government has adopted a regulation of speech because of disagreement
with the message it conveys

Even if the government doesn’t intend to suppress a certain type of

speech, if the law facially suppresses that type of speech, it could be later
abused to do so

RULE: If the law is content-neutral, it is only subject to intermediate scrutiny.

Content neutral regulations on speech will be upheld if they

(1) Further an important or substantial governmental interest,
(2) The governmental interest is unrelated to the suppression of free
expression; and
(3) The incidental restriction of alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest.

A regulation that serves purposes unrelated to the content of expression is deemed

neutral, even if it has an incidental effect on some speakers or message but not
others

Time, Place, & Manner Restrictions

RULE: The government may impose reasonable restrictions on the time, place, or manner
of speech if the restrictions are
(1) Content neutral
(2) Narrowly tailored to serve a significant or substantial governmental
interest
(3) Leave open ample alternative channels for communication of the
information.
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Subsidizing Speech

RULE: The government may make a value judgment favoring childbirth over abortion
and implement that judgment by the allocation of public funds

The government has not discriminated on the basis of viewpoint; it has merely
chosen to fund one activity to the exclusion of the other.

To hold that the Government unconstitutionally discriminates on the basis of

viewpoint when it chooses to fund a program dedicated to advance certain
permissible goals, because the program discourages alternate goals, would render
numerous Government programs constitutionally suspect

Government Speech

RULE: Free speech protections apply only to private speech – not government speech.

When someone may perceive speech as being made by the government, or as

being sponsored by the government, the government may impose limitations on
that speech.

ISSUE: Is this Government speech or merely Government-subsidized speech?

RULE: Government speech is entitled to no First Amendment protection.

RULE: If the speech is Government-subsidized speech, the level of protection depends on

the forum the speech is taking place in.

RULE: Traditional Public Forum: Speaker is entitled to full First Amendment

Protections (Sidewalks, Streets, Corners)

Designated public forum: Government property that has not traditionally been
regarded as a public forum is intentionally opened up for that purpose, (Capitol
Steps) and speaker is entitled to full First Amendment protections

Limited public forum: Limited First Amendment Protection; where government

has reserved a forum for certain groups or for the discussion of certain topics.
(Restricted to certain topics or speakers); Government can create reasonable
restrictions that are unrelated to viewpoint

Non-Public Forum: No First Amendment Protection

CONSTITUTIONAL LAW OUTLINE SWARTZWELDER

The Government can speak and adopt a viewpoint, but you cannot force it to
adopt your own viewpoint.

If it’s Government speech, the forum rules do not apply.

Would a person understand the speech to be the government’s message or a

private message?

Does the Government intend to say something?

Symbolic Speech

ISSUE: Is this a form of symbolic speech/expressive conduct?

RULE: Conduct may be “sufficiently imbued with elements of communication to fall

within the scope of the First and Fourteenth Amendments.”

“When ‘speech’ and ‘nonspeech’ elements are combined in the same course of
conduct, a sufficiently important governmental interest in regulating the
nonspeech element can justify incidental limitations on First Amendment
freedoms.”

Accordingly, when the government seeks to regulate “conduct” because of the

expressive elements of that conduct, the Court applies searching scrutiny.

When may the government regulate expressive conduct? O’Brien Test (form of
intermediate scrutiny)
(1) The regulation is within the constitutional power of the
Government;
(2) The regulation furthers an important or substantial governmental
interest;
(3) The governmental interest is unrelated to the suppression of free
expression (if it IS related to the suppression of free expression – then
strict scrutiny; and
(4) The incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that interest. 

ISSUE: Is the speech in question conduct or speech?

RULE: The government can regulate conduct even if that regulation has an incidental
effect on speech.

In deciding whether certain conduct can qualify as “speech” within the meaning
of the 1st Amendment, courts must look at whether an intent to convey a
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particularized message was present, and whether the likelihood was great that the
message would be understood by those who viewed it.

ISSUE: Is this type of speech even protected by the 1st Amendment?

RULE: There are certain types of speech that can be prohibited completely without
offending the rights guaranteed by the First Amendment.

Lewd & Obscene

RULE: To determine whether content is obscene, courts look to

(1) Whether the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the
prurient interest
Prurient: characterized by or arousing inordinate or unusual
sexual desire
(2) Whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law
(3) Whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value

RULE: Child Porn is entitled to less protection than other obscene material because:

 It is evident beyond the need of elaboration that a State’s interest in

“safeguarding the physical and psychological well-being of a
minor” is compelling.
 The distribution of photographs and films depicting sexual activity
by juveniles is intrinsically related to the sexual abuse of children
in at least two ways
 The materials produced are a permanent record of the children’s
participation and the harm to the child is exacerbated by their
circulation
 The distribution network for child pro must be closed if the
production of material which requires the sexual exploitation of
children is to be effectively controlled
 The advertising and selling of child porn provide an economic
motive for and are thus an integral part of the production of such
materials, an activity illegal throughout the nation
 It is rarely been suggested that the constitutional freedom for
speech and press extends its immunity to speech or writing used as
an integral part of conduct in violation of a valid criminal statute
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 The value of permitting live performances and photographic

reproductions of children engaged in lewd sexual conduct is
exceedingly modest, if not de minimis
 Recognizing and classifying child porn as a category of material
outside the protection of the 1st amendment is not incompatible
with earlier decisions
 It is content of an utterance that determines whether it is a
protected epithet or an unprotected fighting comment

The test for child porn is separate from the obscenity standard:

i. A trier of fact need not find that the material appeals to the prurient
interest of the average person

ii. It is not required that sexual conduct portrayed be done so in a patently

offensive manner

iii. The material at issue need not be considered as a whole

Defamation

ISSUE: Does the speech in question qualify as defamation so as to remove it from the
protection of the 1st Amendment?

RULE: 1. Was there falsity?

2. Was it published?
3. Was it defamatory?
4. Was it made at least negligently?
5. And not privileged. (Testimony under oath is not defamation.)

A person may incur liability for libel or slander by making a “false and
defamatory statement concerning another”

A statement is defamatory if it tends so to harm the reputation of another as to

lower him in the estimation of the community or to deter third persons from
associating or dealing with him

Libel: consists of the publication of defamatory matter by written or printed

words

Slander: consists of the publication of defamatory matter by spoken words

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ISSUE: Is the party against whom the speech was made qualify as a public figure or a
private figure?
RULE: A public official is one among the hierarchy of government employees who has
substantial responsibility for or control over the conduct of governmental affairs
This person holds a position of such apparent importance that the public has an
independent interest in the qualifications and performance of this person.

A public figure is someone who has voluntarily become the subject of public
attention (celebrity); it does not include a person who has merely become
involved in or associated with a matter that attracts public attention (criminal or
someone in the news).

ISSUE: If the party against whom the defamatory speech was made qualifies as a public
figure or official, the following test is used:

RULE: A public official, political official, or public figure may recover in tort for a
defamatory statement relating to his official conduct or a matter of public concern
if the statement was both (1) false and (2) made with “actual malice.”

The party seeking to recover bears the burden of proving falsity and absolute
malice by clear and convincing evidence

Actual malice: Deliberate or reckless falsification

ISSUE: If the party against whom the defamatory speech was made qualifies as a private
figure, then the following test is used:

RULE: A private figure may recover for a defamatory statement regarding a matter of
public concern if the statement was both (1) false and (2) made knowingly or at
least negligently

Must prove falsity by a preponderance of the evidence

Speech deals with matters of public concern

(1) When it can be fairly considered as relating to any matter of political,
social, or other concern to the community, or
(2) When it is a subject of legitimate news interest; that is, a subject of
general interest and of value and concern to the public

RULE: Determining whether to protect defamatory speech requires a balancing of the

interests in protecting reputations vs. protecting free speech (public discourse)
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REASON: There is very little state interest in protecting free speech regarding private figures
and private concern – laws prohibiting it don’t impact the public discourse and the
whole point of free speech

Why make it harder for public officials to recover than private actors?
(1) Public officials and public figures usually enjoy significantly greater
access to the channels of effective communication and hence have a more
realistic opportunity to counteract false statements than private individuals
normally enjoy.
(2) By virtue of their positions, public officials and public figures must
accept certain necessary consequences of their involvement in public
affairs and effectively have voluntarily exposed themselves to increased
risk of injury from defamatory falsehood concerning them – no concern is
justified with a private individual

Fighting Words

ISSUE: Does the speech constitute “fighting words” so as to remove it from the protection
of the first amendment?

RULE: Fighting words are those that by their very utterance inflict injury or tend to incite
an immediate breach of the peace.

Fighting words are those personally abusive epithets which, when addressed to
the ordinary citizen, are, as a matter of common knowledge, inherently likely to
provoke violent reaction

Must be directed at someone. A mere t-shirt saying, “fuck the draft” is

insufficient.

You can ban all fighting words, but you cannot ban only one type of
fighting words (only ban racist fighting words or only ban fighting words
critical of the government) this is content discrimination

Hate speech is protected by The First Amendment.

You can outlaw all speech or you can outlaw the very worst type of that speech.

You can make a special statute if you are regulating special circumstance that is
created by the same concern that gave rise to the original statute.
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Commercial Speech

RULE: Commercial speech is protected by the First Amendment.

Commercial speech consists of advertising and other business communications; it

is speech that “does not more than propose a commercial transaction.”

Regulation of commercial speech is constitutional if it satisfies a four-part test:

(1) The speech is actually or inherently misleading or related to unlawful

activity.

(2) The asserted government interest is substantial

(3) The government regulation directly advances the governmental interest

asserted. It must be shown that the potential harms are real and that the
regulation will alleviate them in a material way.

(4) The regulation is not more extensive than necessary to serve that
interest.

REASON: Speech does not lose its First Amendment protection because money is spent to
project it or because money is acquired from it.

The “consumer’s interest in the free flow of commercial information may be as

keen, if not keener by far, than his interest in the day’s most urgent political
debate.

So long as we preserve a predominantly free enterprise economy, the allocation of

our resources in large measure will be made through numerous private economic
decisions. It is a matter of public interest that those decisions, in the aggregate, be
intelligent and well informed. To this end, the free flow of commercial
information is indispensable.”

Untruthful speech, commercial or otherwise, has never been protected for its own
sake,” and that the First Amendment “does not prohibit the State from insuring
that the stream of commercial information flow cleanly as well as freely.

Central Hudson Test

First, commercial speech that concerns an unlawful activity or that is

fraudulent or misleading has no First Amendment protection.

Second, regulation of other commercial speech is reviewed by a form of

intermediate scrutiny.
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RULE: The government may regulate it if the government has a substantial interest, the
regulation directly furthers the interest, and the regulation restrains speech only to
the extent necessary to further the interest.

If prohibiting truthful, nonharmful commercial speech, then the law is subject to

strict scrutiny.

If the law protects consumers from commercial harms, then less than strict.

Campaign Contributions

ISSUE: Is a given regulation on campaign contributions or expenditures constitutional?

POLICY: There is practically universal agreement that a major purpose of that Amendment
was to protect the free discussion of governmental affairs of course including
discussions of candidates.

RULE: The government may not limit how much a candidate is allowed to spend on his
campaign.

The government can place limits on campaign contributions but not expenditures.

REASON: There is a public policy concern about allowing corruption or even the appearance
of corruption in the political process. This concern is relevant when contributing
money to a particular candidate, and such contribution giving rise to the
appearance of a quid pro quo.

These concerns are not present when a candidate is spending his own money, a
third party is spending money on the campaign or cause independently, or when a
party contributes small amounts of money to a large number of different
candidates.

RULE: The First Amendment protects political association as well as political expression

The First and Fourteenth Amendments guarantee “freedom to associate with

others for the common advancement of political beliefs and ideas,” a freedom that
encompasses “[t]he right to associate with the political party of one’s choice.”

Even a significant interference with protected rights of political association may

be sustained if the State demonstrates a sufficiently important interest and
employs means closely drawn to avoid unnecessary abridgment of associational
freedoms.

RULE: You can’t ban speech based on the speaker’s identity

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You have the freedom to associate. You can’t limit speech merely because the
association has taken on a corporate form

Freedom Not to Associate with Others

ISSUE: Can the government prevent a group from discriminating against certain people in
the membership selection process?

RULE: Freedom of associate gives an organization the right to choose its members

Government may pass laws regulating this freedom if the state (1) has a
compelling interest that (2) cannot be achieved through less restrictive means.

Government regulations may not prohibit discrimination if those prohibitions

significantly affect “intimate association” or “expressive activity”

A state may not prevent the organizers of a parade from excluding a gay-
rights group where inclusion of the group would affect the parade
organizer’s message. 

A speaker has autonomy to choose the content of its message.

The Government cannot compel a speaker to include other messages that
the speaker may not agree with.

The forced inclusion of an unwanted person in a group infringes the

group’s freedom of expressive association if the presence of that person
affects in a significant way the group’s ability to advocate public or
private viewpoints.

Incitement or Advocacy of a Crime

ISSUE: Does the speech incite a crime so as to remove it from 1st Amendment protection?

RULE: Speech is considered to incite or advocate for a crime when the words used are
used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a
right to prevent.

The government may restrict advocacy of crime only where advocacy is directed
to (1) inciting or producing (2) “imminent lawless action” and (3) likely to incite
or produce such action.
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FREEDOM OF RELIGION – 1ST AMENDMENT

Authority: Congress shall make no law respecting an establishment of religion

(Establishment Clause), or prohibiting the free exercise therof. (Free Exercise
Clause)
Due process clause of the 14th Amendment makes these laws applicable
to the States as well.

ISSUE: Does this government conduct implicate the Establishment Clause?

RULE: The establishment clause, at the very least, means that neither the Federal nor
State government may:
1. Set up a church.
2. Pass laws that aid one religion, aid all religions, or prefer one religion to
another.
3. Force or influence a person to go to or to remain away from church
against his will or force him to profess a belief or disbelief in any
religion.
4. Punish a person for entertaining or professing religious beliefs or
disbeliefs, for church attendance or non-attendance.
5. Levy a tax to support any religious activities.
6. Openly or secretly, participate in the affairs of any religious organizations
or groups or vice versa

REASON: Competing viewpoints: Separationism vs. Preferentialism

Separation: Government may not favor religion over non-religion
Preference: Government can favor religion over non-religion, but cannot
favor one religion over another religion.

RULE: Lemon test for determining whether law violates the Establishment Clause:

(1) Whether the challenged law has a secular purpose

(2) Whether the principal or primary effect of the law is to advance or

inhibit religion

(3) Whether the law excessively entangles the government and religion
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Government Aid to Religious Institutions

ISSUE: Does government aid to a religious institution violate the Establishment Clause?

RULE: The Neutrality Principle requires that the government be a neutral in its relations
with groups of religious believers and non-believers; it does not require the state
to be their adversary. State power is no more to be used so as to handicap
religions, than it is to favor them.

Neutral aid to religious schools is permissible so long as no religious

indoctrination that occurs in those schools could reasonably be attributed to
governmental action.

Where a government aid program is neutral with respect to religion, and provides
assistance directly to a broad class of citizens who, in turn, direct government aid
to religious schools wholly as a result of their own genuine and independent
private choice, the program is not readily subject to challenge under the
Establishment Clause.

Counterargument: Divertibility Problem – religious school could divert the funds they saved
by receiving the federal funds to indoctrination activities.

Govt. Sponsorship of Religious Practices

ISSUE: Does a religious observance at a public event violate the Establishment Clause?

RULE: There are heightened concerns with protecting freedom of conscience from subtle
coercive pressure in the elementary and secondary public schools

From a child’s point of view, prayer in a school event may seem like
indirect coercion for their participation

What matters is that, given our social conventions, a reasonable dissenter in this
milieu could believe that the group exercise signified her own participation or
approval of it

The government may no more use social pressure to enforce orthodoxy than it
may use more direct means.

Factors that may weigh in favor of a particular religious exercise being

permissible:
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 The exercise is deeply embedded in the history and tradition of this

country
 What the framers thought or what their intent was

If the Government does allow prayer in public, it must not attempt to dictate the
sectarian nature of the prayer. “Once it invites prayer into the public sphere,
government must permit a prayer giver to address his or her own God or gods as
conscience dictates, unfettered by what an administrator or judge considers being
nonsectarian.”

Prayer that reflects beliefs specific to only some creeds can still serve to
solemnize the occasion, so long as the practice over time is not exploited to
proselytize or advance any one, or to disparage nay other, faith or belief.

Religious Displays on Government Property

ISSUE: Does a particular religious display on Government property violate the

Establishment Clause?

RULE: Public recognition of traditional holidays is permissible when the religious effect
is only indirect, remote, and incidental. However, if the display endorses religious
beliefs, the anti-establishment principle is violated.

Certain factors weigh in a court’s decision:

 History of acknowledgement of religion in American life

 Purpose of display
 Can’t ostracize nonbelievers
 Simply having a religious content or promoting a message consistent with
religious doctrine does not run afoul of the establishment clause – but
there are limits
 Are there other historical displays near it?
 Would a reasonable observer perceive this as the being the Government’s
endorsement of that religion?
a. A reasonable observer is one who knows all the facts, background,
and history of the display.

Free Exercise Clause

ISSUE: Does this Government conduct implicate the Free Exercise Clause?

RULE: The Free Exercise Clause protects against “indirect coercion or penalties on the
free exercise of religion, not just outright prohibitions.”
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The government may burden a particular religious practice if the law is both (1)
neutral and (2) of general applicability. If yes, rational basis; if no, then strict
scrutiny.

The only times laws have been struck down for violating the free exercise clause
are when it is in conjunction with other constitutional rights.

Criticized because claims insufficient on their own should not be able to

become sufficient when combined with other rights.

RULE: If prohibiting the free exercise of religion is not the object of the law but merely
the incidental effect of a generally applicable and otherwise valid provision, the
First Amendment has not been offended

Religious beliefs do not relieve a citizen from complying with an otherwise valid
law prohibiting conduct that the State is free to regulate.

The Free Exercise Clause does not require the Government to grant religious
exemptions from neutral, generally applicable laws, except where the State has in
place a system of individual exemptions.

HOWEVER

Religious beliefs need not be acceptable, logical, consistent, or comprehensible to

others in order to merit First Amendment protection.
State cannot ban conduct only when that conduct is carried out for religious
purposes (couldn’t make law only prohibiting peyote for religious use)

A law lacks facial neutrality if it refers to a religious practice without a secular

meaning discernible from the language or context

RULE: If Strict Scrutiny is being applied:

To satisfy the commands of the 1st Amendment, a law restrictive of religious

practice must advance “interests of the highest order” and must be narrowly
tailored in pursuit of those interests

A law that targets religious conduct for distinctive treatment or advances

legitimate governmental interests only against conduct with a religious motivation
will survive strict scrutiny only in rare cases.
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To condition the availability of benefits upon a recipient’s willingness to

surrender his religiously impelled status effectively penalizes the free exercise of
his constitutional liberties.

JUDICIAL POWER – ARTICLE III

Judicial Review

RULE: Judicial review is the doctrine that the courts have the power to invalidate
governmental action that is repugnant to the Constitution.

REASON: The Federal Judiciary is Supreme to the Constitution and this has been respected
by this court and country as a permanent and indispensable feature of our
constitutional system.

Judicial Supremacy

RULE: Under the doctrine of judicial supremacy, decisions of the Court interpreting the
Constitution are the “supreme Law of the Land” for purposes of Article VI of the
Constitution, and therefore are binding on all state officers and federal officers.

Supreme Court decisions are binding on all, not just the parties to the
litigation.

If the Supreme Court declares what laws are, it must be followed these are
to be obeyed

Art. VI requires state courts to make decisions in conformity with the U.S.
Constitution. These “cases arising under the Constitution” are reviewable by the
Supreme Court under Art. III.

“The judicial power shall extend to all cases” regardless of what court the case is
in.

Supreme Court original jurisdiction is defined by Art. III. It cannot be enlarged or

diminished by Congress.

The Supreme Court’s appellate jurisdiction is vested by Art. III subject to

congressional exceptions. This congressional power may be subject to limitations
arising from separation of powers principles and constitutional rights and
liberties.

REASON: What would be the point of judicial review if judicial supremacy did not exist?
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Obstructions to Judicial Review

ISSUE: Is there some issue preventing the Court from reviewing the issue or hearing the
claim?

ISSUE: Does this issue present a political question?

RULE: Some constitutional questions are non-justiciable pursuant to the political

question doctrine.

Determining whether a political question exists in any given case requires

consideration of several factors:

(1) Whether there is a textually demonstrable commitment in the

Constitution of the issue to the President or Congress;
(2) Whether there are judicially discoverable and manageable standards
for resolving the question;
(3) Whether resolution of the question calls for policy decisions
inappropriate for judicial resolution;
(4) Whether resolution of the question will express a lack of due respect
for other branches of government;
(5) Whether there is an unusual need for unquestioning adherence to a
political decision that has already been made; and
(6) Whether there is the potential for embarrassment from inconsistent
resolutions of the issue by the Court and one or more of the political branches.

REASON: The political question doctrine is essentially a function of the separation of

powers, existing to restrain courts from inappropriate interference in the business
of the other branches of government.

ISSUE: Does this issue call for an advisory opinion?

RULE: Federal courts cannot give legal advice or make abstract decisions, but instead
may decide only actual “cases and controversies”; also, cases must be ripe for
judicial review.

A case must be in an adversary form and a context that is capable of judicial

resolution and its resolution must not violate separation of powers principles, or
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an Art. III federal court lacks jurisdiction. Art. III federal courts cannot furnish
advisory opinions.

Case: a suit instituted according to the regular course of judicial procedure;

“case” implies the existence of present or possible adverse parties, whose
contentions are submitted to the court for adjudication

Controversies: less comprehensive than “cases” and includes on civil disputes

ISSUE: Is the case ripe for judicial review and not moot?

RULE: A legal dispute is not ripe if it has not yet developed into an actual controversy,
has not yet caused injury, or is otherwise asserted prematurely

A controversy is moot if the parties no longer have any meaningful and concrete
stake in its resolution.

ISSUE: Do the plaintiffs have standing?

RULE: Federal courts will entertain claims only by persons who have “standing” to
present them because they have something at stake in the litigation
Necessary elements to show that a plaintiff has standing:

(1) Injury in fact: an invasion of a legally protected interest that is (1) concrete
and particularized, (2) actual or imminent (direct and palpable), (3) not
conjectural or hypothetical

(2) A causal relationship (fairly traceable) between the injury and the challenged
conduct; the injury fairly can be traced to the challenged action of the defendant,
and has not resulted from the independent action of some third party not before
the court

(3) A likelihood (redressibility) that the injury will be redressed by a favorable

decision; the prospect of obtaining relief from the injury as a result of a favorable
ruling is not too speculative.
The mere possibility that injury may occur in the future is not sufficient.
The mere existence of discrimination and the plaintiff’s membership in
that discriminated against class is insufficient unless the plaintiff himself
is experiencing discrimination. Allen

ISSUE: Is there a statute limiting the Court’s ability to hear this case?

RULE: Congress can limit federal court jurisdiction by statute and thus constrain the
ability of federal courts to engage in judicial review.
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REASON: Congress doesn’t have to even create lower federal courts, they of course can
limit the cases they can hear.

RULE: HOWEVER, Congress cannot destroy the essential role of the Supreme Court in
the constitutional plan, violate another part of the Constitution, or violate the
separation of powers.

Congress has authority to deprive the lower federal courts of jurisdiction.

EXECUTIVE POWERS – ARTICLE II

ISSUE: Does the President have the power to take this action?

RULE: “The executive power shall be vested in a president; that he shall take Care that
the laws be faithfully executed and he shall be Commander in Chief of the Army
and Navy of the United States.”

The President’s power, if any, must stem either from an act of Congress or from
the Constitution itself.

Three categories of Executive Action that may conflict with Congress

(1) Does the President have express or implied authority from Congress to take
this action?
Implied: A systematic, unbroken, executive practice, long pursued to the
knowledge of the Congress and never before questioned may be treated as
a gloss on Executive Power vested in the President
Past practice does not, but itself, create power, but “long-continued
practice, known to and acquiesced in by Congress, would raise a
presumption that the action had been taken in pursuance of his
consent.

(2) Cases in which Congress had thus far been silent – “zone of twilight”
Congress cannot anticipate and legislate with regard to every possible
action the President may find it necessary to take or every possible
situation in which he might act

(3) Cases in which the President was defying Congressional orders

Can only be supported by any remaining executive powers still present
after subtracting out Congress’ powers

RULE: With respect to domestic affairs, the Supreme Court has held that the President
may exercise only those powers granted expressly or implicitly by a statute or by
the Constitution
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The President may enter into international agreements settling claims by United

States citizens against a foreign government even in the absence of express
statutory or constitutional authority and even if the agreements abrogate state-law
rights

With respect to international affairs, the theory of the “extra-constitutional origin

of the foreign affairs power” says that the United States may exercise not only the
powers that the Constitution expressly grants, but also other foreign affairs
powers enjoyed by all sovereigns

At the least, laws allowing the president to bring a law into operation upon a
finding that is exclusively concerned with foreign affairs are constitutional

Power During War

RULE: Due process demands that a citizen held in the U.S. as an enemy combatant be
given a meaningful opportunity to contest the factual basis for that detention
before a neutral decisionmaker

The capture and detention of lawful combatants and the capture, detention, and
trial of unlawful combatants, by “universal agreement and practice” are
“important incidents of war”

“Citizens who associate themselves with the military arm of the enemy
government, and with its aid, guidance and direction enter this country bent on
hostile acts, are enemy belligerents within the meaning of the law of war”

Being a citizen is irrelevant if you are colluding with a foreign enemy government
against the U.S.

Because detention to prevent a combatant’s return to the battlefield is a

fundamental incident of waging war, in permitting the use of “necessary and
appropriate force,” Congress has clearly and unmistakably authorized detention

Detention may last no longer than active hostilities – rule of war.

Congress’ grant of authority to the President necessarily includes the authority to
detain for the duration of the relevant conflict – but if the circumstances of a
given conflict are entirely unlike those of the conflicts that informed the
development of the law of war, that understanding may unravel.
Hamdan v. Rumsfeld – whether or not the president has independent power,
absent congressional authorization, to convene military commissions, he may not
disregard limitations that Congress has, in proper exercise of its own war powers,
placed on his powers
Why can the President use force without congressional approval
History of acquiescence
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It’s related to foreign affairs or treaty obligations

Defensive Action – Preemptive Strike

Executive Privilege and Immunity

RULE: The Executive Privilege doctrine is Constitutionally implied by the need for the
effective discharge of executive power,

The President has a qualified privilege to keep confidential any communications

with executive advisors.

Although the privilege is not absolute, it generally will protect any

communications with executive advisors regarding “military, diplomatic,
or sensitive national security secrets.” Conversely, “the demonstrated,
specific need for evidence in a pending criminal trial” can overcome the
assertion of executive privilege

REASON: The public has an interest in the president’s ability to have candid, objective, and
even blunt or harsh opinions in decisionmaking.

ISSUE: Can the President face civil liability for actions that he takes in his official
capacity?

RULE: The President is absolutely immune from liability for damages that result from his
official acts.

REASON: Diversion of the President’s energy to private lawsuits would raise unique risks to
the effective functioning of government – the President must concern himself
with matters likely to arouse the most intense feelings

The President’s office is subject to much exposure and is an easy target for suits
for civil damages

RULE: The President is not immune from liability for damages resulting from private acts
that occurred prior to presidency – rationale for public acts does not apply here

REASON: Without immunity, executive officials would hesitate to exercise their discretion
in a way “injuriously affecting the claims of particular individuals”
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LEGISLATIVE POWER – ARTICLE I

ISSUE: Is the challenged action by the legislature within the power granted to them by the
Constitution?

RULE: Congress is limited to those powers enumerated in the Constitution. The

enumerated powers, however, and the Necessary and Proper Clause imply the
existence of subsidiary powers

All legislative acts must comply with bicameralism and The Presentment Clause
before becoming law.

A legislative act is one that alters the legal rights, duties, and relationships of
people.

All laws must go through both houses of Congress before becoming law
(Bicameralism).

Legislation must follow finely wrought and exhaustively considered

procedure

All laws must be presented to the President for either his signature or veto before
becoming law (Presentment).

The non-delegation doctrine says that Congress may not delegate its legislative
authority to the executive branch. But Congress may give the executive branch
discretion to promulgate rules and regulations so long as Congress guides the
discretion with some “intelligible principle.”

Commerce Clause

ISSUE: Does the commerce clause permit Congress to enact this law or take this action?

RULE: Under the Commerce Clause, Congress may regulate

(1) Interstate commerce, which is commerce that concerns more than one
state;
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(2) The use of the “channels” of commerce, such as roads and navigable
waters;
(3) The “instrumentalities” of commerce, or persons or things in interstate
commerce; and
(4) Intrastate “economic” activity that Congress might rationally believe
substantially affects interstate commerce. (Stream of commerce)
(1) Courts generally defer to legislative judgment
(2) Congress may consider the cumulative or aggregate impact of
all regulated activities
(3) Congress can regulate purely intrastate activity that is not itself
‘commercial,’ in that it is not produced for sale, if it concludes that
failure to regulate that class of activity would undercut the
regulation of the interstate market in that commodity.
(4) However, a majority of the justices have indicated that
Congress may not regulate individuals not previously involved in
commerce even if their failure to become active adversely affects
interstate commerce.

In reviewing legislation enacted under the Commerce Clause, courts will not
consider:
(1) Whether the actual purpose of the legislation is to regulate interstate
commerce
(2) The wisdom, workability, or fairness of the legislation

ISSUE: Is this an economic activity that substantially affects interstate commerce?

RULE: Economic effect doesn’t matter if there isn’t an economic activity (criminal
activity or guns in schools)

Acts that directly burden or obstruct interstate commerce or its free flow are
within the reach of the congressional power.

It is the effect upon commerce not the source of the injury that matters.

The power of Congress over interstate commerce is not a forbidden invasion of

state power merely because either its motive or its consequence is to restrict the
use of articles of commerce within the states of destination

Congress can have whatever motive or purpose it wants for enacting legislation;
the constitution places no limit on it and the courts have no authority over it.
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Congress has the sole discretion to remove obstructions to interstate commerce,

but its acts must pass rational basis

RULE: Every law enacted by Congress must be based on one or more of those
enumerated powers

In determining whether the necessary and proper clause grants congress the
legislative authority to enact a particular federal statute, we look to see whether
the statute constitutes a means that is rationally related to the implementation of a
constitutionally enumerated power.

The enumerated powers are accompanied with broad power to enact laws that are
convenient, or useful or conducive to the authority’s beneficial exercise.

Tax Power

Article I, § 8: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and general Welfare of the
United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

ISSUE: Is the legislative action in question a valid exercise of Congress’s tax power?

RULE: Congress cannot discriminate against States in its exercise of the Tax Power

 Any direct tax other than an income tax must be laid in proportion to the
population of each state
 Congress cannot impose duties on Exports, cannot impose duties on
shipment from one state to another, and cannot give preference to one port
over another

Taxes do not have to be limited to interstate activity (difference between

commerce power and tax power)

ISSUE: Is the charge imposed on the taxpayer a valid tax under Congress’s tax power or
is it an unconstitutional penalty imposed by Congress’s attempts to regulate
activity?

RULE: Courts look to the following considerations in distinguishing between a penalty

and a tax

Is the fee imposed intended to punish the taxpayer?

Is there a scienter requirement on the wrongdoer?

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Which agency is enforcing this fee?

Does the imposition of the fee create revenue?

“If the concept of penalty means anything, it means punishment for an unlawful
act or omission.”

Spending Power

ISSUE: Is the legislative action in question a valid exercise of Congress’s spending

power?

ISSUE: What does it mean to spend for the general welfare?

RULE: Three potential interpretations of the General Welfare Clause

First, Congress has the power to pass virtually any regulation, subject
only to the requirement that the regulation be in the general welfare.

Second, Congress has the power to tax or spend only when it is acting
legitimately pursuant to one of its other enumerated powers. (Madison
View)

* Third, Congress can spend for the general welfare even if Congress could
not achieve its desired objective pursuant to its other enumerated powers.

RULE: Five requirements for the exercise of the spending power:

(1) Congress must act in pursuit of the general welfare;

(2) Any conditions on the states’ receipt of federal funds must be imposed
unambiguously;

(3) The conditions imposed on the receipt of funds must be germane to the
purposes for which Congress approved the grant;

(4) The condition cannot require action that would violate some other
constitutional provision; and

(5) Congress cannot offer the states financial inducements that amount to
coercion.

Government must find balance between “so coercive as to pass the

point at which pressure turns into compulsion.” and “relatively
mild encouragement to the States.”

Coercion can be the absence of meaningful choice (Medicaid)

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RULE: States cannot directly tax or regulate the federal government or federal
instrumentalities. They cannot discriminate against the federal government
or those who deal with the federal government.
War Power

Authority: Congress has the power to declare war, raise and support armies, provide and
maintain a navy, and make rules for the regulation of those forces. Art. I, § 8.

RULE: The war power includes the power “to remedy the evils which have arisen from
its rise and progress” and continues for the duration of that emergency, even if the
war has already ended.

The “treaty power,” which derives from the authority of the President to make
treaties subject to the consent of two-thirds of the Senate and from treaties’ status
under the Supremacy Clause, authorizes Congress to regulate matters that might
otherwise be beyond the scope of federal power. 

State Immunity from Federal Regulation

ISSUE: Does the state have an argument that it has immunity from the Federal regulation
in question?

RULE: If Congress enacts a law generally applicable to private parties and the states,
States may only rely on the political process to change the situation.

REASON: The Tenth Amendment and principles of state sovereignty, embodied in our
constitutional structure, impose only minimal limits on congressional power,
assuming that the national political process is functioning.

It is the structure of the federal government itself that protects federalism.

The law, however, must be tailored to compensate for possible failings in the
national political process rather than to dictate a sacred province of state
autonomy.

RULE: Congress can encourage states to regulate behavior in certain ways, but it may not
(1) simply commandeer the legislative processes of the States by directly
compelling them to enact and enforce a federal regulatory program nor may it (2)
commandeer state officials for federal purposes.

REASON: It is an essential attribute of the States’ retained sovereignty that they remain
independent and autonomous within their proper sphere of authority.
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Dormant Commerce Clause

ISSUE: Is a state discriminating against interstate commerce?

RULE: Applies to statutes that discriminate on their face or that have a discriminatory
purpose or effect.

A State may validate a statute that discriminates against interstate commerce by

showing that it advances a legitimate local purpose that cannot be adequately
served by reasonable nondiscriminatory alternatives.

(1) Legitimate state interests include protecting health and safety and conserving
natural resources, but they do not include protecting local businesses from
competition or isolating the state from a problem common to many states (like
disposing of trash or avoiding traffic on state highways)

Protectionism is per se unconstitutional and does not qualify as a legitimate local

purpose.

RULE: States may not impose a burden on interstate commerce that is excessive in
relation to legitimate local interests

Where [a state law] regulates evenhandedly to effectuate a legitimate local public

interest, and its effects on interstate commerce are only incidental, it will be
upheld unless the burden imposed on such commerce is clearly excessive in
relation to the putative local benefits.

If a legitimate local purpose is found, then the question becomes one of degree.
And the extent of the burden that will be tolerated will of course depend on the
nature of the local interest involved, and on whether it could be promoted as well
with a lesser impact on interstate activities.

Regulations that touch upon safety, especially highway safety, courts have
been reluctant to invalidate

Congressional Control of Executive Officials

Authority: The President shall nominate, and with the Advice and Consent of the Senate,
shall appoint . . . Officers of the United States; but the Congress may by Law vest
the Appointment of such inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments. Art. II, § 2.
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ISSUE: Does Congress have the power to limit the President’s control over an executive
official in this instance?

RULE: Congress cannot assign to itself the power to appoint executive officials

Congress cannot delegate executive responsibilities to someone whom they have

fire/hire control over.

Whether or not Congress has the power to limit the President’s firing power (by
setting minimum terms or “for cause” limits) will depend upon

(1) The character of the office.

(2) Whether the executive officer in question is a “principal officer” or an

“inferior officer.”

(3) Whether the officer’s duties are purely executive or whether he

occupies no place in the executive department and who exercises no part
of the executive power vested by the Constitution in the President.

(4) Whether the officer in question is a part of an independent agency

(5) Whether taking away his authority to remove an official would unduly
hamper his ability to carry out his constitutional duties.

RULE: In general, the President has the authority to remove the heads of executive
agencies for any reason because the power to remove officials is incident to the
power to appoint their replacements.

REASON: Because the President has the duty to execute the laws, it follows that he must
have the power to control those whom he delegates the execution of those laws.

ISSUE: Is the officer in question an inferior officer whom Congress may exercise control
over or is he a principal officer whom only the President may exercise control
over?

RULE: Factors in deciding whether an officer is inferior or principle:

(1) Whether he is subject to removal by a higher Executive Branch

official.
(2) Whether he is empowered by the Act to perform only certain,
limited duties
(3) Whether his office is limited in jurisdiction
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(4) Whether his office is limited in tenure.

Congress may not restrict the President’s ability to remove a principle officer if
that officer, in turn, is restricted in his ability to remove an inferior officer who is
responsible for executing the laws.

Whether one is an inferior officer depends on whether he has a superior who was
appointed by the President with the Senate’s consent.

RULE: The Appointments Clause permits Congress to vest in the courts the power of
appointing inferior executive officers and to give the courts some discretion in
defining the nature and scope of the appointed officer’s jurisdiction.

Authority: The Recess Appointments Clause: The President shall have Power to fill up all
Vacancies that may happen during the Recess of the Senate, by granting
Commissions which shall expire at the End of their next Session. Art. II, § 2, cl. 3.

RULE: The Recess Appointments Clause gives the President authority to make
appointments during “the recess of the Senate” to ensure the continued
functioning of the Federal Government when the Senate is away.
If a Senate recess is so short in duration that it does not require the consent
of the House, the Recess Appointments Clause does not empower the
President to make an appointment during the recess. A recess lasting less
than 10 days is also presumptively too short.
Enforcement Clause of 14th Amendment

Authority: The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article. 14th Amend. § 5.

RULE: Legislative action under the Enforcement Clause

1. Must be plainly adapted to that end and

2. Within the spirit and letter of the Constitution

Measures that remedy or prevent unconstitutional actions are permissible

When Congress seeks to regulate state conduct that does not violate the
substantive provisions of the Amendments, there must be a congruence
and proportionality between the injury to be prevented or remedied and
the means adopted to that end.
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Legislation that deters or remedies constitutional violations can fall within

the sweep of Congress’ enforcement power even if in the process it
prohibits conduct that is not itself unconstitutional and intrudes into
“legislative spheres of autonomy previously reserved to the States.” 

Measures that make a substantive change in the governing law are not
permissible.

Legislation that alters the meaning of the Free Exercise Clause cannot be
said to be enforcing the Clause. Congress does not enforce a constitutional
right by changing what the right is.

If Congress could define its own powers by altering the 14th Amendment’s
meaning, no longer would the Constitution be “superior paramount law,
unchangeable by ordinary means.”

While the line between measures that remedy or prevent unconstitutional actions
and measures that make a substantive change in the governing law is not easy to
discern, and Congress must have wide latitude in determining where it lies, the
distinction exists and must be observed

Because the substantive provisions of the Fourteenth Amendment prohibit only

state, as opposed to private, action, Congress’s power under the Fourteenth
Amendment to regulate private conduct is highly circumscribed.