Ouline of Constitutional Law（完整版）(2)(1)

 Immigration and Naturalization Service v. Chadha (1983) ................................................ 61  Morrison v. Olson (1988) - [functionalism] ........................................................................ 63 Class 6: Equality and Equal Protection Clause ................................................................................ 65 I. 13th and 14th Amendment: ........................................................................................................... 65 II. Before the civil war ...................................................................................................................... 66  State v. Post .......................................................................................................................... 66  Dred Scott v. Sandford ......................................................................................................... 66 III. After the civil war ....................................................................................................................... 68  The Civil rights case ............................................................................................................ 68 IV. Jim Crow: Separate but equal? ................................................................................................... 70  Plessy v. Ferguson ................................................................................................................ 70  Brown v. Board of Education (Brown I) .............................................................................. 71  Brown v. Board of Education (Brown II) ............................................................................. 72 Class 7& 8: Equal protection: economic and race discrimination; discrimination on the basis of gender, sexual orientation, non-citizenship, disability, and age ....................................................... 72 I. Race issue in 14th amendment ...................................................................................................... 72 II. Roadmap ...................................................................................................................................... 73  Strauder v. West Virginia ...................................................................................................... 74  Railway Express Agency v. New York [Rational Basis Scrutiny] [under inclusive] ........... 74 III. RATIONAL BASIS SCRUTINY ............................................................................................... 76  New Orleans v. Dukes .......................................................................................................... 76  New York City Transit Authority v. Beazer [overinclusive] ................................................. 77  US Depart of Agriculture v. Moreno ( 少数适用 Rational Basis 但原告败诉的案子 ) ...... 77 IV. STRICT SCRUTINY .................................................................................................................. 79 Facially discriminatory Law against racial minority .................................................................. 79 Korematsu v. United States ...................................................................................................... 79 Loving v. Virginia ..................................................................................................................... 80 Facially nonracial classification that may disadvantage racial minority ： ............................... 81 Washington v. Davis ................................................................................................................. 81 Palmer v. Thompson ................................................................................................................. 83 Yick Wo v. Hopkins .................................................................................................................. 84 V. Contemporary application of strict scrutiny (start in p769, p779) .............................................. 85  California v. Bakke (quota case) ......................................................................................... 85  Grutter v. Bollinger .............................................................................................................. 86

Allen v. Wright ........................................................................................................................... 132 McCulloch v. Maryland .............................................................................................................. 132 Baker v. Carr ............................................................................................................................... 133 Nixon v. United States ................................................................................................................ 135 National Federation of Independent Business v. Sebelius ......................................................... 137 Arizona v. United States ............................................................................................................. 138 City of Philadelphia v. New Jersey ............................................................................................ 140 Youngstown Sheet & Tube Co. v. Sawyer (p543) 343 U.S. 579 (1952) ................................... 141 United States v. Curtiss-Wright Export Corp. ............................................................................ 144 Dames & Moore v. Regan, Secretary of the Treasury ............................................................... 145 ZIVOTOFSKY EX REL. ZIVOTOFSKY v. KERRY ............................................................... 147 United States v. Nixon ................................................................................................................ 148 Trump v. Vance ........................................................................................................................... 149 Immigration and Naturalization Service v. Chadha (1983) ....................................................... 151 Morrison v. Olson ....................................................................................................................... 153 Brown v. Board of Education (Brown I) .................................................................................... 155 Brown v. Board of Education (Brown II) ................................................................................... 156 Korematsu v. United States ........................................................................................................ 157 Loving v. Virginia ....................................................................................................................... 159 Washington v. Davis ................................................................................................................... 160 Grutter v. Bollinger ..................................................................................................................... 161 Craig v. Boren p860 .................................................................................................................. 163 United States v. Virginia ............................................................................................................. 165 Romer v. Evans p901, review 911 .............................................................................................. 166 Sugarman v. Dougall .................................................................................................................. 168 City of Cleburne, Texas v. Cleburne Living Center, Inc. (p941) ............................................... 169 Massachusetts Board of Retirement v. Murgia .......................................................................... 171 McDonald v. City of Chicago ..................................................................................................... 172 Lochner v. New York .................................................................................................................. 174 Nebbia v. New York .................................................................................................................... 176 west coast hotel co. v. parrish (1937) ......................................................................................... 177 Griswold v. Connecticut ............................................................................................................. 178 Roe v. Wade ................................................................................................................................ 180 Whole Woman’s Health v. Hellerstedt ....................................................................................... 182

 Federalist No. 51  separation of powers among diff. gov’t branches to stave off concentration of power in 1 particular branch o Congress most feared  cured through bicameralism (Senate & House) o balance ensured vertically ( federal v. state relationship ) & horizontally ( judicial v. legislative v. executive relationship )  Federalist No. 78  judicial review will not put Supreme Court above other branches, but will ensure will of ppl will prevail Antifederalism : small town-hall style democracy , emphasis on citizens with individualized/decentralized power, “civic Republicanism,” homogeneity of interests & affluence, promoting virtue will keep factionalist domination at bay  “Jeffersonian” view  against federalist idea of representation  governing ourselves will increase political participation, establish a common good, & inculcate civic virtue  Constitution is inconsistent with republicanism  strong Federal Government removes the People from system of government  revolution fought against a large remote central government.  rights of the minorities will be trampled & subjected to will of the majority  Federalists tend to wield the power of factions (self-interested groups) but not to suppose that it can be avoided by small government  need small, localized government where people are as similar as possible & as involved in the political process as possible (keep the democracy small with the best application of direct democracy)  strong central government creates a threat of tyranny 4. Judicial Review （补充）  Review of other branches of federal government  Federal Review of State Acts

Establishes Judicial Review (in dicta, not in main holding), where Supreme Court is sole interpreter of meaning of Constitution & is empowered to strike down laws that conflict with it o irony that Marshall grabs jud’l review power for Judiciary while at same time denying his power to issue mandamus o jud’l review as instrument for legitimizing power of fed gov’t in eyes of ppl o protects minority opinions & rights from domination by majority by giving power to interpret Const to insulated lifetime justices o counterpoint: Article III itself does not expressly delegate jud’l review power to SCt (so framers did not envision such great power), people themselves upheld Const in Revolutionary days, may prevent Const from evolving w/ times according to ppl’s will by giving power to lifetime justices insulated from general populace  Arguments and disputes around Judicial Review: (tension with democracy-judicial review is anti-democracy) 1. Counter-majority problems: Non-elected judges can undo democratic action of the representatives of people (the Congress). for example, the Obama healthcare case. The Congress Acts usually represents the majority of people, but the Supreme Court’s decisions were only made by nine judges without election. 2. Dead-hand problem: “we the people” (dead framers of Con from old time) triumphs the people at present through the interpretation of constitution by the judges.

 Case: Allen v. Wright Background: Segregation of black and white children in school; IRS is given private school tax exemption, and this action violated the anti-discrimination law of the constitution. Three-factor test: 1. Personal injury: the plaintiff must have a concrete and personalized stigma or injury. —First allegation: it is not concrete because it is particularly applied to an individual but all African-Americans. whether the personal injury is concrete can be very controversial. —Second allegation: dose present harm that the respondents’ children are being denied an integrated educational experience. 2. Causation: traceable to the defendant’s behavior Court: the plaintiff failed to show the causation because 3. Redressability （可补偿性） 2. Political question doctrine The reason that the Court did not hear political questions:  The judicial and executive and legislative branches are at the same level, so it is not within the power of Court to tell how the political issues should be addressed; If solved, will show disrespect to political branches and even lead to potential embarrassment  text of constitution (separation of powers)  lack of judicial discovery eligibility: that the Court can’t solve the political issue (not its expertise) Note: 无特定标准， doctrines are case-based and varies in other cases)  Baker v. Carr: p257 Rule: A challenge to malapportionment 立法机构代表分配不均 of state legislatures brought under the Equal Protection Clause is not a political question and is thus justiciable.  Impeachment: Nixon v. United States: p262 Rule of Law The constitutionality of Senate impeachment proceedings is a non-justiciable political question incapable of judicial adjudication.

美国银行（ Bank ）马里兰州分行的负责人 James McCulloch （被告）拒绝支 付该税。这场诉讼随之而来，该案被上诉到马里兰州上诉法院。上诉法院支 持马里兰州的论点，即由于宪法对美国政府是否可以特许银行的问题没有明 确规定，美国银行是违宪的。随后，该案被上诉到美国最高法院。  Issue (1) Does Congress have implied constitutional power to create a bank? (2) If so, may individual states tax a federally created bank?  Reasoning (By Judge Marshall) (1) Yes. Congress has both enumerated power explicitly stated in the Constitution and implied power as well. The power of Congress can be reasonably implied from the Constitution’s Necessary and Proper Clause, which states that Congress may “create laws it deems necessary and proper to help carry out its enumerated powers.” (2) No. Federal Law supreme. If the Congress has the power to create the bank, it has the power to preserve it, so Maryland cannot impose tax on the bank.  Maryland’s argument: it is not necessary to create a bank. Even if it is ok to have a bank, the state has the police power to decide on it.  Marshall redefined “necessary” to mean “appropriate and legitimate,” --necessary typically means that no less intrusive means could be applied, but Marshall just redefined it.  covering all methods for furthering objectives covered by the enumerated powers even those powers are not explicitly outlined in the US constitution ( which established the implied powers of Congress ) Class 3 & 4: The powers of Congress: The Commerce Clause, taxation and spending power, preemption and the dormant commerce clause I. Commerce clause  Article 1 section 8 (3)-necessary and proper: “commerce clause”: “To regulate Commerce with foreign Nations, and among the several States , and with the Indian Tribes.”  Purpose : to eliminate the trade board (trade protectionism) 贸易保护主义

exclusive power under Article I, Section 8 of the Constitution to regulate interstate commerce. The New York Court of Chancery found in favor of Ogden and issued an injunction to restrict Gibbons from operating his boats. Gibbons appealed the case to the Court of Errors of New York, which affirmed the decision. Gibbons appealed to the United States Supreme Court. Ogden （原告）根据纽约州的法律获得了一份许可证，该许可证旨在赋予他在纽 约水域经营汽船的独家权利。吉本斯（被告）向联邦政府寻求并获得了类似的许 可证，吉本斯利用该许可证在奥格登使用的同一水域路线上与奥格登竞争。为了 保护他的垄断许可证，奥格登向纽约大法官法院提起诉讼，禁止吉本斯在纽约水 域经营他的船只。吉本斯辩称，他是根据国会的命令经营他的船只，而根据宪法 第一条第 8 款，国会拥有监管州际商业的专属权力。纽约大法官法院裁定奥格登 胜诉，并发布禁令，限制吉本斯经营他的船只。吉本斯就该案向纽约错误法院提 出上诉，该法院确认了该裁决。吉本斯向美国最高法院提出上诉。 Issue If a state and Congress both pass conflicting laws regulating interstate commerce, does the state law govern? Reasoning by Marshall Congress has the power to regulate interstate commerce, the power is “plenary”.  “Commerce”: it includes all kinds of interstate commercial activities . The word “commerce” includes traffic, intercourse ( 交通往来 ), and navigation, as well as commodities associated with interstate commerce.  “Among several states”: o includes interstate commerce “power to regulate doesn’t stop at a state’s boarder” o indicates intrastate commerce that affects interstate commerce  Regulate: power to regulate is “plenary” Significancy of Phase 2 laissez faire time ( 自由放任，政府不作为时期 ): tend to have narrow interpretation of the commerce clause Hammer v. Dagenhart (The Child Labor Case) Rule of Law

Congress may not use its Commerce Clause power to regulate child labor in the states as this is a purely local matter. Facts In 1916, in response to increasing concerns over child labor conditions in mills and factories, Congress passed the Keating-Owen Act which prohibited goods made by children under a certain age from being sold in interstate commerce. Dagenhart (plaintiff) brought suit on behalf of himself and his two sons, who were minor children employed in a cotton mill in North Carolina, against Hammer (defendant), a United States attorney, alleging that the Act was an unconstitutional exercise of Congress’s Commerce Clause Power. The District Court for the Western District of North Carolina held that Congress acted unconstitutionally in attempting to regulate a purely local matter. Both Hammer and the United States appealed to the United States Supreme Court. 1916 年，为了回应人们对磨坊和工厂的童工状况越来越多的关注，国会通过了 《基廷 - 欧文法》，禁止由未满一定年龄的儿童制造的商品在州际商业中出售。 达根哈特（原告）代表自己和他的两个儿子（他们是受雇于北卡罗来纳州一家棉 花厂的未成年儿童）对美国律师哈默（被告）提起诉讼，声称该法案是对国会商 业条款权力的违宪行使。北卡罗来纳州西区地区法院认为，国会试图管制一个纯 粹的地方事务，是违宪的行为。哈默和美国都向美国最高法院提出了上诉。  Child Labor Act of 1916 prohibiting shipment of interstate goods produced in factories unfairly employing child labor  UnConst’l Reasoning  Labor issue 只和 production and manufacture of goods 有关，和 stream of interstate commerce 没 有 关 系 ， 因 此 labor issue 和 production and manufacture of goods 都不是 interstate commerce . The Court ruled that Child labor relates to the production and manufacture of goods , and bears no relationship to the entry of those goods into the streams of interstate commerce . 是州内商业不是州际商业 Congress may only regulate goods in interstate commerce, not regulate state production  narrows Gibbons (all stages) “ commerce” definition o regulating hours of labor entrusted to “state authority”  wages & hours are at production stage before exchange over interstate commerce o rejected argument that fed legislation needed to prevent unfair competition

o SCt fearful that allowing this legislation would unravel whole federal system  The Court also ruled that it is purely local issue that should be regulated by individual states (state police power) . 是州权  Federal government argument: it constituted unfair competition among the states (as child labor is less expensive and some states will benefit from it while other not) --The court ruled that the purpose of the Act is to seek to standardize child labor regulations among the states rather than promote interstate commerce as required by the Constitution. 目的与商业无关 This is a rather narrow interpretation over the commerce clause.  dissent (Justice Holmes): o Congress has been given power to regulate by Constitution & SCt should not void it b/c of its indirect effects o civilized world recognizes “evil of premature and excessive child labor” o states no longer w/in their separate sovereign sphere when ship products across state lines (nat’l welfare now at stake) o SCt should not be engaging in pretext analysis over motives of Congress to curb child labor Historical event: laissez faire time ended and financial crisis began (great depression) A.L.A Schechter Poultry Corp. v. United States Fact A.L.A. Schechter Poultry Corp. (defendant) operated wholesale poultry slaughterhouse markets in Brooklyn, New York. Ordinarily, Schechter bought live poultry in New York City or occasionally in Philadelphia for slaughter and resale. When the poultry reached Schechter's Brooklyn markets, it was slaughtered and locally sold to poultry retailers and butchers who dealt directly with consumers. Schechter did not sell poultry in interstate commerce. Schechter was convicted of 18 counts of violating the Live Poultry Code (LPC) regulations passed by Congress and with one count of conspiracy to violate the LPC. Schechter’s violations of the LPC

included issues relating to its employees’ hours and wages and the quality of its poultry products sold to local New York retailers. Schechter appealed its convictions in the United States Court of Appeals for the Second Circuit, alleging that Congress exceeded its power to regulate interstate commerce by passing regulations over Schechter’s in-state activities. Additionally, Schechter argued that the president engaged in impermissible lawmaking by having full discretion to approve or disapprove the LPC provisions. The appellate court sustained the convictions on 16 counts but reversed the conspiracy charge and two convictions pertaining to Schechter’s improper labor standards. The circuit court ruled that the regulations were beyond Congress’s power to regulate and that the president engaged in impermissible lawmaking functions. The United States Supreme Court granted certiorari. A.L.A. Schechter Poultry Corp. ( 被告）在纽约布鲁克林经营家禽屠宰场批发市场。 通常情况下， Schechter 公司在纽约市或偶尔在费城购买活的家禽进行屠宰和转 售。当家禽到达 Schechter 的布鲁克林市场时，它们被屠宰并在当地出售给直接 与消费者交易的家禽零售商和屠夫。 Schechter 并没有在州际贸易中销售家禽。 Schechter 被判定犯有 18 项违反国会通过的《活家禽法》（ LPC ）规定的罪行， 以及一项阴谋违反 LPC 的罪行。 LPC 是根据《国家工业复兴法》第 3 条颁布的， 该法授权美国总统批准某一行业或产业的 " 公平竞争守则 " 。 Schechter 违反 LPC 的行为包括有关其雇员的工作时间和工资以及出售给纽约当地零售商的家禽产 品的质量问题。 Schechter 就其定罪向美国第二巡回上诉法院提出上诉，声称国 会通过对 Schechter 的州内活动的监管，超越了其监管州际商业的权力。此外， Schechter 认为，总统拥有批准或不批准 LPC 条款的充分自由裁量权，从而从事 了不被允许的立法工作。上诉法院维持了对 16 项罪名的定罪，但推翻了共谋指 控和与谢克特的不正当劳动标准有关的两项定罪。巡回法院裁定，这些规定超出 了国会的监管权力，总统从事了不被允许的立法职能。美国最高法院批准了诉讼 请求。 Reasoning  The Poultry business is not interstate commerce . The interstate transactions in relation to that poultry ended when they are sent to New York. The slaughtering and sales were intrastate commerce.  The Poultry business (intrastate commerce has no direct effect on interstate commerce) The direct vs. indirect effect test (formalist approach) : indirect effect, because: 1) such transactions remain within the domain of state power (ended in the slaughterhouse) ;

2) no direct relation to interstate commerce (production of poultry was in the state).  The concern of the court is that there may be no limits for the congress to interfere with the intrastate commerce if it allows such kind of indirect connection .( 如果让 Congress 管周内商业，会大大扩充政府的权力 ) Roadmap :  Nat’l Industrial Recovery Act attempted to regulate wages, hours, prices, & require purchase of whole poultry shipments (incl. sick chickens)  held UnConst’l (Justice Hughes)  Congress may not regulate where not within “stream of commerce”  interstate flow had halted w/in state, chickens slaughtered, & then locally resold as separate products o regulating wages, hours, etc therefore interferes with local business  concurrence (Justices Cardozo & Stone) o subverts distinction b/w local & nat’l commerce  would allow anything to be deemed interstate & destroy whole federal system  counterarguments: o there are multiple segments of interstate commerce  train stationary in state outside of “interstate commerce”, but before & after pause qualifies as interstate commerce o arbitrary drawing up of “interstate” lines here  these are the same chickens that were shipped & were transported via interstate methods o allows competitive discrimination to go unregulated  Schechter would undercut farmers beyond state line who raise chickens regulated by their state’s law (which Schechter would not have to follow) Carter v. Carter Coal Co. Similar to the Schechter to apply the formalist approach: indirect affect, the state power Roadmap :  Bituminous Coal Conservation Act created labor boards for employee collective bargaining  held UnConst’l (Justice Southerland)  Congress may not regulate production stage (employment, wages, hours, working conditions, & bargaining), only trade itself o temporal distinction b/w stages of interstate commerce, in terms of beginning & end of “interstate commerce” ( E.C. Knight ) o everything that moves in interstate commerce has had a local origin ( Schechter )

o costs obtaining coordinated state action justified to prevent threats to federalist values o distinction b/w “direct” & “indirect” effect depends on manner in which effect brought about, not upon magnitude of cause or effect  mining stage is not “interstate commerce”  these evils are local evils to be resolved using state power, not federal power Then New Deal became profound popular among people, but still many legislations in Packing plans were struck down by the conservative court.  The president wanted to have more seats in Supreme Court because they want the new deal laws passed. (they have the basis of productivity but actually it is much more political)  Hence the political pressure may be one reason that the court changed its views. 3. Phase 3: New Deal "Realism" NLRB V. Jones & Laughlin Steel Corp. Rule of Law Congress may regulate labor relations under its Commerce Clause power because labor relations have a close and substantial relationship to interstate commerce that their control is essential to protect that commerce from burdens and obstructions. Facts In 1935, Congress passed the National Labor Relations Act (NLRA) which created the National Labor Relations Board (NLRB) (defendant) to enforce federal fair labor practice standards, including the right of employees to unionize. After Jones & Laughlin Steel Corp. (JLSC) (plaintiff) fired ten employees that attempted to unionize at one of its Pennsylvania plants, the NLRB sanctioned the company for engaging in discriminatory employment practices in violation of federal standards. JLSC brought suit alleging that the NLRA was an unconstitutional exercise of Congress’s interstate commerce power, and the lower courts agreed. The NLRB appealed to the Supreme Court. 1935 年，国会通过了《国家劳动关系法》（ NLRA ），该法设立了国家劳动关系 委员会（ NLRB ）（被告），以执行联邦公平劳动实践标准，包括雇员组织工会 的权利。在 Jones & Laughlin Steel Corp. (JLSC) （原告）解雇了试图在其宾夕法 尼亚州一家工厂成立工会的 10 名员工， NLRB 对该公司违反联邦标准的歧视性 就业行为进行了制裁。 JLSC 提起诉讼，声称 NLRA 是对国会州际商业权力的违 宪行使，下级法院同意。 NLRB 向最高法院提出上诉。 Reasoning

 The power to regulate interstate commerce is plenary and is vested solely in Congress.  Labor relations have a close and substantial relationship to interstate commerce substantial effect test (realist approach) JLSC is a very large company that operated interstate commerce (compared to Schechter) Note: realist approach focused more on the facts of the cases rather than the court's conception about the federal and state powers. Roadmap:  Nat’l Labor Relations Act est’d comprehensive system regulating labor-mgmt relations practices  held Const’l (Justice Hughes)  Congress has power to protect against burdens from activities having “close & substantial relations” to interstate commerce  more flexible direct/indirect test o Congress cannot be denied power to control intrastate industrial strike (effect of unfair labor practices regulated) threatening to obstruct interstate commerce o defers to Congressional findings making strong connection to interstate commerce o ends prior SCt pattern of striking down New Deal legislation & greatly increases Congress Commerce Power  dissent (Justice McReynolds): o Congress interference w/in states should be limited to “direct and material” violations (like taxation on property that indirectly but seriously affects cost of transportation, Shreveport Rate Case )  Congress has overreached b/c relation is too attenuated United States v. Darby (1941) Rule of Law Congress may regulate the labor standards involved in the manufacture of goods for interstate commerce and may exclude from interstate commerce any goods produced under substandard labor conditions. Facts Congress passed the Fair Labor Standards Act (FLSA) to prevent the introduction and shipment of goods produced under labor conditions that failed to meet federal standards from entering the stream of interstate commerce. The United States government (plaintiff) brought suit in the District Court for the Southern District of

Georgia against Darby Lumber Company (defendant) alleging that the company engaged in labor practices that fell short of the FLSA’s standards with the intent of manufacturing goods to be sold in interstate commerce. The district court quashed the indictment of Darby, and the court of appeals affirmed. The United States government appealed to the United States Supreme Court. 国会通过了《公平劳动标准法》（ FLSA ），以防止在不符合联邦标准的劳动条 件下生产的商品进入州际商业流。美国政府（原告）在佐治亚州南区地区法院对 达比木材公司（被告）提起诉讼，指控该公司从事不符合《公平劳动标准法》标 准的劳动行为，目的是为了制造在州际商业中销售的货物。地区法院撤销了对 Darby 的起诉，上诉法院维持原判。美国政府向美国最高法院提出上诉。 Reasoning  While manufacturing is not itself interstate commerce , the shipment of manufactured goods between states falls within the definition of commerce and is thus capable of regulation by Congress under its plenary Commerce Clause powers.  Hammer v. Dagenhart, 247 U.S. 251 (1918), holding that Congress may regulate only articles of commerce themselves and not the conditions under which they are produced, is overruled. Significancy  It overruled Schechter & Child Labor Case Schechter & Child Labor Case 里说 Labor and production or manufacturer of goods, even for cross-border shipment is not interstate commerce and does not have direct effect on interstate commerce. 本案中明确提到 labor and manufacturer of goods related to interstate transportation 就是 interstate commerce.  Fair Labor Standards Act of 1938 prohibited shipment of goods made by workers paid below federal minimum wage/above maximum hours  held Const’l (Justice Stone)  Congress power to regulate interstate commerce neither enlarged nor diminished by non-exercise/exercise of state power & may act to prevent states from using sub-standard practices to gain advantage w/in interstate commerce (disadv’s states following more costly standards) o SCt will no longer allow pretext analysis of Congress to enter ct rulings  in no position to judge this o 10 th Amendment has no independent power to intrude upon plenary power of Congress acting w/in its Const’l constraints (state powers irrelevant here)

 10 th Amdmt just meant to ensure Congress does not act without its Const’l powers & it has not done so here o echoes McCulloch ’s rational basis review (means-end regulation)  Congress may regulate production here b/c it has prohibited shipment of goods created by this production o could also cite Lottery Case  rejects separate stages of commerce o this is a necessary interplay b/w needs of the People & SCt  SCt must focus on what ppl of U.S. as whole need  no dissent voiced  counterarguments? o nearly overrules Schechter & Child Labor Case  work practices are at the production stage o danger of Congressional general police power  counter-counterpoint : no danger b/c limited to only that which obstructs interstate commerce Wickard v. Filburn (1942) Rule of Law （开创了一个新原则： local activity 也可以管） Congress may regulate local activity (non-economic activity) if that activity exerts a substantial economic effect on interstate commerce. Fact During the Great Depression of the 1930s, President Franklin Roosevelt and the Democratic-controlled Congress passed many “New Deal” programs designed to improve the poor economic climate in the United States. One such program was the Agricultural Adjustment Act of 1938, which limited the area that farmers could devote to wheat production in an effort to stabilize the national price of wheat. Filburn (plaintiff), a small farmer, was penalized pursuant to the Act for producing wheat in excess of the Act's quotas. Filburn filed suit against Secretary of Agriculture Wickard (defendant), seeking to enjoin enforcement against himself of the penalties. Filburn argued that because the excess wheat was produced for his own private consumption and never entered the stream of commerce, his activities could not be regulated by Congress under the Commerce Clause. The district court agreed with Filburn that Congress’s regulations were unconstitutional, and the circuit court affirmed. Wickard appealed to the United States Supreme Court. 在 20 世纪 30 年代的大萧条期间，富兰克林 - 罗斯福总统和民主党控制的国会通 过了许多 " 新政 " 计划，旨在改善美国的恶劣经济环境。其中一个计划是 1938 年的《农业调整法》，该法限制了农民用于小麦生产的面积，以稳定全国的小麦 价格。小农 Filburn （原告）因生产小麦超过法案规定的配额而受到该法案的处 罚。 Filburn 对农业部长 Wickard （被告）提起诉讼，要求禁止对他自己执行处罚。 Filburn 认为，由于过量的小麦是为他自己的私人消费而生产的，从未进入商业 流通领域，根据商业条款，他的活动不能受到国会的管制。地区法院同意 Filburn 的观点，认为国会的规定是违宪的，巡回法院维持原判。维卡德向美国最高法院 提出上诉。

Reasoning The local activity has substantial effect on the interstate commerce:  By growing his own wheat, Filburn decreases the amount of wheat purchased in the market and negatively impacts the price of wheat grown for interstate commerce.  Aggregated Method: Filburn himself has only small effect on the IC, but the court should take into consideration the aggregate ( When taken together with all the other farmers similarly situated, Filburn’s activity has a substantial economic effect on interstate commerce. ) Note: The background of this case is that the emergency (great depression) occurred. —who decided the emergency? maybe the congress Roadmap  Agricultural Adjustment Act sets quota for wheat production b/c total wheat supply would exceed normal yr’s domestic consumption & export needs  held Const’l (Justice Jackson)  if local activity exerts substantial aggregate economic effect (not necessarily individual ’s effect), Congress can regulate even though not facially related to interstate commerce o no longer earlier indirect v. direct effects formula of earlier Commerce cases o Congress must be able to restrict both what produced for mkt & also what withheld from mkt b/c significantly influence prices & mkt conditions  tend to flow into mkt if prices go up  if not entered into mkt, these products satisfy local needs that would otherwise be met by mkt purchases o no more distinctions b/w stages of commerce o in line w/ Gibbons view of expansive Commerce power  counterarguments : o dangerous to allow federal political officials to use Commerce power to become sole judges of limits of own power o state/local interests not protected by national political process, need judicial review to step in Heart of Atlanta Motel Inc. v. United States Rule of Law

Congress may enact regulations that prevent racially discriminatory policies in hotel accommodations because of the negative effects of those policies on interstate commerce. Facts In 1964, Congress passed the Civil Rights Act (CRA). Title II of the CRA forbids racial discrimination by places of public accommodation such as hotels and restaurants. The Heart of Atlanta Motel, Inc. (plaintiff) in Atlanta, Georgia advertises to and hosts primarily out-of-state guests. The motel practices a policy of refusing to rent rooms to African Americans and brought this suit against the United States government (defendant) in the District Court for the Northern District of Georgia to challenge the CRA as an unconstitutional extension of Congress’s power to regulate interstate commerce. The district court upheld the CRA as constitutional. The court of appeals affirmed. Heart of Atlanta appealed to the United States Supreme Court. 1964 年，国会通过了《民权法案》（ CRA ）。 CRA 第二章禁止公共住宿场所（如 酒店和餐馆）的种族歧视。位于乔治亚州亚特兰大的 Heart of Atlanta Motel, Inc. ( 原告 ) 在佐治亚州亚特兰大市的广告中，主要接待州外的客人。该汽车旅馆实行 拒绝向非裔美国人出租房间的政策，并在佐治亚州北区地区法院对美国政府（被 告）提起诉讼，质疑 CRA 是对国会监管州际商业权力的违宪延伸。地区法院维 持了 CRA 的宪法地位。上诉法院确认了这一点。亚特兰大之心公司向美国最高 法院提出上诉。 Reasoning  Congress may act against discrimination where aggregate qualitative & quantitative impact on interstate commerce o racial discrimination disrupts commerce among states by discouraging travel of substantial portion of U.S. population ( aggregate effect )  Congress may remove this obstruction to commerce o Congress motives behind this use of Commerce Clause clearly moral o rational basis review : means by which Congress acts must be reasonably adapted to end Note: private entities that discriminate against people are not in violation of 14th amendment because the state power is not involved. -So the commerce clause is applied. The Congress acted against the Act to regulate interstate commerce issues. 注意：歧视人的私人实体并不违反第 14 条修正案，因为不涉及国家权力。 (14 th amendment 只禁止国家针对个人的歧视，而不禁止私人之间的歧视 ) - 所以适用商业条款。国会对该法采取行动，以规范州际商业问题。

4. Phase 4: 1995-present United States v. Lopez (1995) Rule of Law Congress may not, pursuant to its Commerce Clause powers, pass a law that prohibits the possession of a gun near a school. Facts In 1990, Congress passed the Gun-Free School Zones Act (GFSZA), making it a federal offense "for any individual knowingly to possess a firearm in a place that the individual knows, or has reasonable cause to believe, is a school zone." Lopez (defendant), a student who brought a gun to his high school, was confronted by school authorities, arrested, and charged with violating the GFSZA. Lopez was tried and convicted. In his appeal, he brought suit against the United States government (plaintiff), challenging the constitutionality of the GFSZA as a regulation based on Congress’s Commerce Clause power. The Court of Appeals for the Fifth Circuit agreed with Lopez and reversed his conviction. The United States petitioned for certiorari to the United States Supreme Court, which granted the petition. 1990 年，国会通过了《无枪学校区法》（ Gun-Free School Zones Act ， GFSZA ）， 规定 " 任何个人在明知或有合理理由相信是学校区域的情况下，故意拥有枪支 " 是一项联邦罪行。洛佩兹（被告）是一名将枪支带入其高中的学生，他被学校 当局当场逮捕，并被指控违反了 GFSZA 。洛佩兹受到审判并被定罪。在他的上 诉中，他对美国政府（原告）提起诉讼，质疑 GFSZA 作为基于国会商业条款权 力的法规是否符合宪法。第五巡回上诉法院同意洛佩兹的意见，推翻了对他的定 罪。美国向美国最高法院提出了诉讼请求，最高法院批准了该请求。 Reasoning  Congress may regulate only three broad categories of activities: (1) use of interstate channels, (2) instrumentalities/persons/things in interstate commerce, or (3) activities substantially affecting interstate commerce or substantially relating to interstate commerce Here, the analysis should focus on the third categories  The court has to focus on 4 factors to decide whether the activity has substantial effect on the IC: 1. is this activity economic?

Court: The GFSZA is a criminal statute having nothing to do with “commerce” or any economic enterprise. 2. Is there a jurisdictional element? Jurisdictional element: ensures that the particular instance of the activity being regulated has some sort of a connection to interstate commerce. 3. Activity? The Congress can only regulate on-going economic activity instead of create economic activity. E.g. 奥巴马医保案 4. Is there any limiting principle? There will be no limitation for the Congress that it can just regulate virtually any activity.  non-economic activity: only regulates it if it substantially affects IC in the aggregate-no substantial effect in this case - 高度可能性 (apply proximate link here) Congress may regulate only three broad categories of activities: (1) use of interstate channels, (2) instrumentalities/persons/things in interstate commerce, or (3) activities substantially affecting interstate commerce or substantially relating to interstate commerce (test in this case)  insufficient claim that guns near school (the firearm possession in question was not buying or selling) may result in violent crime to substantially adverse effect on economy  lacks sufficient proof that gun had been part of interstate commerce  limiting principles? There will be no limitation for the Congress that it can just regulate virtually any activity.  concurrence (Kennedy & O’Connor): most states already have gun safety laws having same goals as this federal law & must protect states’ rights to handle matter  wholly unjustified; commerce clause should be limited in a very narrow scope: buying, selling and possibly the transportation of goods.  dissent (Breyer) cumulative effect of similar instances when determine whether the activity affects interstate commerce. o local instances as whole create nat’ly significant problem

 guns in schools do negative impact on economy by threatening ability to teach basic skills  like Katzenbach , bizs & families less likely to locate where violence exists o difficult to distinguish “commercial” v. “noncommercial” here  noncomm’l activities of teaching basic skills in school have serious impact on state commerce  social & commercial purposes strongly intertwined here  反对意见 (Breyer) 在确定该活动是否影响州际商业时， 类似情况的累积效应。 o 地方性事件作为一个整体造成了全国性的重大问题 学校里的枪支对经济产生负面影响，威胁到教授基本技能的能力 像 Katzenbach 一样，企业和家庭不太可能选择存在暴力的地方 o 在这里很难区分 " 商业 " 和 " 非商业 " 。 在学校教授基本技能的非商业活动对国家商业有严重的影响 社会 和商业目的在此紧密地交织在一起 United States v. Morrison (2000) Rule of Law The congress did not have the authority to regulate violence against women because it is not economic activity ; 14th amendment only dealt with state officials not private actors. Facts In 1994, Congress passed the Violence Against Women Act (VAWA), which contained a provision for a federal civil remedy for victims of gender-based violence, even when victims did not file criminal charges. That same year, Christy Brzonkala, a female student at Virginia Tech University, was allegedly assaulted and raped by Antonio Morrison (defendant) and James Crawford. Morrison was temporarily suspended from school, but a state grand jury did not find enough evidence to indict him. Brzonkala and the United States government (plaintiffs) brought suit against Morrison, Crawford, and Virginia Tech under the VAWA in federal district court. Morrison challenged the VAWA as an unconstitutional exercise of Congress’s Commerce Clause powers. The district court held that Congress lacked authority to enact the VAWA, but a three-judge panel of the Fourth Circuit Court of Appeals reversed. The Fourth Circuit then reheard the case and upheld the district court’s decision that Congress lacked authority. Brzonkala and the United States appealed to the United States Supreme Court. 1994 年，国会通过了《针对妇女的暴力法案》（ VAWA ），其中有一条规定， 即使受害者没有提出刑事指控，也可以为基于性别的暴力受害者提供联邦民事补 救措施。同年，弗吉尼亚理工大学的女学生克里斯蒂 - 布宗卡拉据称被安东尼奥 - 莫里森（被告）和詹姆斯 - 克劳福德攻击和强奸。莫里森被暂时停学，但一个州 大陪审团没有发现足够的证据来起诉他。 Brzonkala 和美国政府（原告）在联邦

地区法院根据 VAWA 对莫里森、克劳福德和弗吉尼亚理工大学提起诉讼。莫里 森对 VAWA 提出质疑，认为它是对国会商业条款权力的违宪行使。地区法院认 为，国会无权颁布 VAWA ，但第四巡回上诉法院的一个由三名法官组成的小组 推翻了这一观点。第四巡回法院随后重新审理此案，并维持地区法院关于国会缺 乏权力的裁决。 Brzonkala 和美国向美国最高法院提出上诉。 Reasoning 1. is this activity economic? Sexual assault is not economic activity. 2. Is there a jurisdictional element? Jurisdictional element: ensures that the particular instance of the activity being regulated has some sort of a connection to interstate commerce. NO. 3. Activity? The Congress can only regulate on-going economic activity instead of create economic activity. E.g. 奥巴马医保案 No. no ongoing business activity. 4. Is there any limiting principle? There will be no limitation for the Congress that it can just regulate virtually any activity.( 如果 Congress 可以管此案，其他 criminal issue 也可以管 ) Congress would have excuse to regulate any crime in any state argued to have aggregate impact Moreover, Court goes further than Lopez to provide bright-line rule : Congress cannot regulate non-economic activity based on aggregate subst’l effect on interstate commerce.  dissenting : the right to determine the substantial effect on interstate commerce belongs to the congress but not courts. If congress wants to interfere with the labor law and other discrimination issues, it must use the commerce clause to regulate them because it is its only choice. The 14th amendment is used by citizens. Gonzeles v. Rich p366 国会可以通过 Commerce Clause 监管 non-business activity （ private production ） It is very close to Wickard case rule: The Court upheld the constitutionality of a comprehensive federal ban on the private cultivation and use of marijuana . Reasons : “Congress can regulate purely intrastate activity that is not itsel ‘ 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.” Rule of Law

Congress may regulate the use and production of home-grown marijuana as this activity, taken in the aggregate, could rationally be seen as having a substantial economic effect on interstate commerce. 国会可以对自产大麻的使用和生产进行监管，因为从总体上看，这种活动可以合 理地被视为对州际商业产生了实质性的经济影响。 Facts In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act to combat illegal drug use in the United States. Shortly after, Congress enacted the Controlled Substances Act (CSA) which categorized illegal drugs into different “schedules” and prevented their sale, purchase, and possession in the United States. In 1996, California enacted the Compassionate Use Act that allowed the use of medical marijuana within the state by persons needing it for legitimate medical purposes. Angel Raich and Diane Monson (plaintiffs) were California residents who both legally used marijuana to treat legitimate medical issues. Despite receiving approval from California state officials, federal agents seized and destroyed Raich’s marijuana plants. Raich brought this suit against Alberto Gonzales, Attorney General of the United States (defendant), seeking injunctive and declaratory relief prohibiting the enforcement of the federal CSA. The court of appeals ruled that the CSA was an invalid exercise of Congress’s Commerce Clause power, and Gonzales appealed to the United States Supreme Court. 1970 年，国会通过了《综合药物滥用预防和控制法》，以打击美国的非法药物 使用。此后不久，国会颁布了《受控物质法》（ CSA ），将非法毒品分为不同的 " 附表 " ，并阻止其在美国的销售、购买和持有。 1996 年，加利福尼亚颁布了《同 情使用法》，允许因合法医疗目的需要使用医用大麻的人在该州内使用。安吉尔 - 赖奇和戴安 - 蒙森（原告）是加州居民，他们都合法使用大麻来治疗合法的医疗 问题。尽管得到了加州官员的批准，联邦特工还是扣押并销毁了拉伊奇的大麻植 物。莱奇对美国司法部长阿尔伯托 - 冈萨雷斯（被告）提起诉讼，寻求禁令和宣 告性救济，禁止执行联邦 CSA 。上诉法院裁定 CSA 是对国会商业条款权力的无 效行使，冈萨雷斯向美国最高法院提出上诉。 Issue May Congress regulate the use and production of homegrown marijuana? Holding and Reasoning (Stevens, J.) Yes. The Court held in Wickard v. Filburn, 317 U.S. 111 (1942), that Congress has the power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. In this case, Raich’s activity of growing marijuana for home use can be seen rationally as having a substantial effect on interstate commerce because there is an established, albeit illegal, interstate market for marijuana. The present case is comparable to the homegrown wheat in Wickard. In Wickard, Congress sought to regulate the national market for wheat by controlling homegrown commodities. Likewise, in the present case, Congress sought to regulate and eliminate the national market for illegal drugs by

eliminating home-grown varieties. Just as the addition of homegrown wheat to the overall market frustrated Congress’s attempts to regulate the entire market in Wickard, Raich’s addition of homegrown marijuana to the national scheme, when taken in the aggregate with others similarly situated, has a significant effect on Congress’s ability to eliminate the national illegal marijuana market. Therefore, the CSA is a valid exercise of Congress’s Commerce Clause power because Congress acted rationally in determining growing marijuana was an economic activity with a substantial effect on interstate commerce. The decision of the court of appeals is reversed. 法院在 Wickard 诉 Filburn 案（ 317 U.S. 111 (1942) ）中认为，国会有权监管属于 对州际商业有实质性影响的经济 " 类活动 " 的纯粹的地方活动。在本案中， Raich 种植大麻供家庭使用的活动可以被合理地视为对州际商业有实质性影响，因为有 一个既定的、尽管是非法的州际大麻市场。本案与 Wickard 案中的自产小麦有可 比性。在 Wickard 案中，国会试图通过控制自产商品来管理全国的小麦市场。同 样，在本案中，国会试图通过消除自产的品种来规范和消除非法毒品的全国市场。 正如在 Wickard 案中，将自产小麦加入整个市场使国会管制整个市场的尝试受挫 一样， Raich 将自产大麻加入国家计划，当与其他类似情况的人一起考虑时，对 国会消除全国非法大麻市场的能力有重大影响。因此， CSA 是对国会商业条款 权力的有效行使，因为国会在确定种植大麻是一种对州际商业有重大影响的经济 活动时是合理的行为。上诉法院的裁决被推翻。 Champion v. AMES (the lottery case) p331 Rule of Law The trafficking of lottery tickets across state lines constitutes interstate commerce that may be prohibited entirely by Congress under the Commerce Clause of the Constitution. Fact Congress enacted the Federal Lottery Act of 1895 (FLA) which prohibited the buying and selling of lottery tickets across state lines. Charles Champion (defendant) was indicted by U.S. Marshall Ames (plaintiff) for bringing Paraguayan lottery tickets into the United States and shipping them from Texas to California in violation of the FLA. Champion challenged his indictment by alleging that Congress’s Commerce Clause power does not include the power to completely prohibit a certain kind of commerce; only to regulate it. Champion brought this challenge in a writ of habeas corpus in the Circuit Court for the Northern District of Illinois, which dismissed the case. Champion appealed to the United States Supreme Court. 国会颁布了《 1895 年联邦彩票法》（ FLA ），禁止跨州买卖彩票。查尔斯 - 查普 恩（被告）被美国马歇尔 - 艾姆斯（原告）起诉，罪名是违反《联邦彩票法》， 将巴拉圭彩票带入美国并从德克萨斯州运往加利福尼亚州。 Champion 对他的起 诉提出质疑，声称国会的商业条款权力不包括完全禁止某种商业的权力；只包括 对其进行监管。 Champion 以人身保护令的形式向伊利诺伊州北区巡回法院提出 这一挑战，法院驳回了该案。 Champion 向美国最高法院提出上诉。

Roadmap:  Federal Lottery Act prohibited interstate transport of foreign lottery tickets  held Const’l (Justice Harlan)  “commerce among the states” interpreted as carrying of commodities w/ monetary value from 1 state to another  dissent (Justices Fuller & Brewer) : dangerous to give Congress general police power without more limiting principles in place o anything transported from place to place could be considered “article of commerce” & from state to state “interstate commerce” o judicial review should police times when Congress acts w/in power but unwisely or injuriously, not blindly rely on Congress’s “wisdom & discretion” (as Marshall did in Gibbons ) National Federation of Independent Business v. Sebelius ( 奥巴马医保案 ) The individual mandate: require the individuals to purchase health insurance or pay a “penalty”  Commerce clause invalid – (1) Individual mandate: the Act requires/compels individuals to become active in NEW commerce activities, instead of regulating existing on-going activity ; like “activity” in Wickard: you need to buy certain amount of wheat every day (2) The Act did not have substantial effect on interstate commerce (The Congress argued that everyone will sooner or later involve in the healthcare insurance market but the Court ruled against it) Known as Dicta : 附带性意见 - actually did not have to discuss about the commerce clause II. Taxation power: Article 1 Section 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;  For what purpose can Congress tax? o Opinion 1: taxation is valid only to support other Congress power – Not

prevail now o Opinion 2: to promote general welfare – Prevail  When is the tax not a tax? E.g. a penalty o Case: Child labor tax (Bailey v. Prexel Furniture Co.) Court struck down the child labor tax because the tax is more like a penalty.  Bailey v. Prexel Furniture Co. Rule of Law Congress may not attempt to regulate through a tax a matter that is reserved to the states by the Tenth Amendment to the Constitution. Facts In 1919, Congress passed the Child Labor Tax Law which constituted a ten percent tax on the profits of any company using child labor. The law defined “child labor” as the use of minors “under the age of sixteen in any mine or quarry, and under the age of fourteen in any mill, cannery, workshop, factory, or manufacturing establishment.” Additionally, the definition applied to the use of children in these age ranges for more than eight hours a day or six days a week, or during certain evening hours. Drexel Furniture Co. (plaintiff) brought suit in federal district court against Bailey (defendant). Drexel challenged the law on the ground that it was an unconstitutional attempt by the federal government to regulate child labor in the states–a function exclusively reserved to the states under the Tenth Amendment to the Constitution. The district court held the law unconstitutional and the court of appeals affirmed. The United States Supreme Court granted certiorari. 1919 年，国会通过了《童工税法》，对任何使用童工的公司的利润征收 10%的税。 该法律将 "童工 "定义为 "在任何矿场或采石场使用 16 岁以下的未成年人，在 任何磨坊、罐头厂、车间、工厂或制造机构使用 14 岁以下的未成年人"。此外， 该定义适用于使用这些年龄段的儿童每天超过 8 小时或每周 6 天，或在某些晚间 时段。Drexel Furniture Co. (原告）在联邦地区法院对贝利（被告）提起诉讼。 德雷克塞尔对该法律提出质疑，理由是该法律是联邦政府试图对各州的童工进行 管理的违宪行为--根据宪法第十修正案，这是专门保留给各州的职能。地区法院 认为该法律违宪，上诉法院维持原判。美国最高法院批准了诉讼请求。 Issue Whether the Child Labor Tax Law is an unconstitutional effort by Congress to regulate the use of child labor, a power exclusively reserved to the states by the Tenth Amendment. Holding and Reasoning (Taft, C.J.) Yes. While most laws passed by Congress are entitled to significant deference by the Court, the current law should not be provided this deference because it clearly imposes federal restrictions on a power reserved to the states, in this case, the

regulation of child labor. The Child Labor Tax is not actually a “tax,” as the sole purpose for taxes is to generate revenue for the government. Congress’ actual motive behind this tax is to impose monetary penalties upon businesses employing children for the purpose of regulating child labor use among the states. It is argued, however, that there is precedence for similar levying of taxes based on regulatory motives. For example, in Veazie Bank v. Fenno, 75 U.S. 533 (1869), the Court upheld a tax on circulating bank notes that was motivated by the goal of regulating the national currency. Similarly, in McCray v. United States, 195 U.S. 27 (1904), the Court upheld a tax on yellow margarine versus white margarine that was motivated by a desire to promote the sale of white margarine. Finally, in United States v. Doremus, 249 U.S. 86 (1919), the Court upheld a tax on the manufacture, importation, and sale or gift of opium that was motivated by the goal of discouraging drug use. While each of these taxes was motivated by a regulatory goal apart from raising revenue, the difference between them and the Child Labor Tax Law was that each was applied to a subject area squarely within the ability of Congress to regulate. In contrast, the Child Labor Tax Law represents an effort by Congress to regulate a subject area clearly reserved to the states by the Constitution. Thus, Congress overstepped its regulatory bounds and the Child Labor Tax Law is unconstitutional. The decision of the lower courts is affirmed. 是的。虽然国会通过的大多数法律都有权得到法院的高度尊重，但目前的法律不 应得到这种尊重，因为它显然对保留给各州的权力施加了联邦限制，在本案中就 是对童工的监管。童工税实际上不是一种 "税"，因为税收的唯一目的是为政府 创造收入。国会征收这一税种的实际动机是对雇用儿童的企业进行罚款，以规 范各州之间的童工使用。然而，有人认为，基于监管动机的类似征税有先例可循。 例如，在 Veazie 银行诉 Fenno 案中，75 U.S. 533 (1869)，法院支持对流通的 银行票据征税，其动机是为了监管国家货币的发展。同样，在 McCray 诉美国， 195 U.S. 27 (1904)中，法院支持对黄色人造黄油与白色人造黄油征税，其动机 是为了促进白色人造黄油的销售。最后，在美国诉 Doremus 案， 249 U.S. 86 (1919) 中，法院支持对鸦片的制造、进口和销售或赠送征税，其动机是为了阻止毒品的 使用。虽然这些税收的动机除了提高收入外，还有一个监管目标，但它们与《童 工税法》的区别在于，每个税收都适用于国会完全有能力监管的主题领域。相比 之下，《童工税法》代表了国会努力监管宪法明确保留给各州的主题领域。因此， 国会超越了其监管范围，《童工税法》是违宪的。下级法院的裁决得到确认。  （继续奥巴马医保案） taxation power valid - start from p460 General rule: in the interest of public welfare (promote general welfare)  Three-factor analysis: to determine whether it is a tax 1. whether it imposes an exceedingly heavy burden (10% in Bailey's case as a heavy burden, but not in this case) 2. Knowledge requirement: whether it is in punitive nature (impose on individuals that violated the laws intentionally) (In Bailey case 只有故意违反 法律的人才交税，因此更像罚款而不是税收。本案中所有人都要交税 )

3. whether the tax was paid to IRS (in Bailey case the tax is paid to the department of waiver)  Some other reasoning:  the Constitution does not guarantee that individuals may avoid taxation through inactivity (the feature of the tax)  Congress' ability to use its taxing power does not give Congress the same degree of control over the individual behavior, since it is limited to require an individual to pay money into the Federal Treasury. Also developed from the case Bailey v. Prexel Furniture Co. The court struck down the Child Labor tax in this case because the tax was more like a penalty instead of a tax. In addition, The Bailey Court distinguished Doremus (United States v. Doremus) this way: The court [in Doremus] said that the act could not be declared invalid just because another motive than taxation, not shown on the face of the act, might have contributed to its passage. This case does not militate against the conclusion we have reached in respect of the law now before us. The court, there, made manifest its view that the provisions of the so-called taxing act must be naturally and reasonably adapted to the collection of the tax and not solely to the achievement of some other purpose plainly within state power. 这也是由 Bailey v. Prexel Furniture Co. 一案发展而来的。 法院在该案中否决了童工税，因为该税更像是一种惩罚，而不是一种税收。 此外， Bailey 法院这样区分了 Doremus （美国诉 Doremus ）。 法院 [ 在 Doremus 案中 ] 说，不能因为该法案表面上没有显示的征税以外的其他动 机，就宣布该法案无效，这可能有助于其通过。这个案例并不妨碍我们对现在的 法律得出的结论。法院在该案中表明了它的观点，即所谓的征税法的规定必须自 然和合理地适应于征税，而不是仅仅为了实现明显属于国家权力的其他目的。 III. Spending power How far can congress go on things not explicitly expressed in the constitution?  South Dakota v. Dole o Fact A South Dakota law permitted persons age nineteen or older to buy beer containing up to 3.2% alcohol. In 1984, Congress passed 23 U.S.C. §158, which directed the Secretary of Transportation, Dole (defendant), to withhold up to

five percent of federal highway funds otherwise available to states in which state laws permitted persons under the age of twenty-one to purchase alcohol. South Dakota (plaintiff) sued Dole and the United States government in federal district court seeking a declaratory judgment that Section 158 violated constitutional limits on Congress’s spending power and the Twenty-First Amendment of the United States Constitution. The district court ruled that Congress acted constitutionally, and the court of appeals affirmed. The United States Supreme Court granted certiorari. 南达科他州的一项法律允许 19 岁或以上的人购买酒精含量不超过 3.2% 的啤 酒。 1984 年，国会通过了 23 U.S.C. § 158 ，指示交通部长多尔（被告）扣 留多达 5% 的联邦公路资金，不允许将资金提供给州法律允许 21 岁以下的 人购买酒精的州。南达科他州（原告）在联邦地区法院起诉多尔和美国政府， 要求作出宣告性判决，认为第 158 条违反了宪法对国会支出权的限制和美国 宪法第二十一修正案。地区法院裁定，国会的行为符合宪法，上诉法院维持 原判。美国最高法院批准了诉讼请求。 o 5-factor analysis: 1. is it for general welfare 2. conditions on the receipt of funds have to be unambiguous 3. conditions must be related to federal interest in a particular project or program 4. power must not violate other provisions in the constitution 5. no coercion( 并非强迫 ): not in a compulsive nature that leave the state no choice but accept it  Section 158 clearly meets the first four limitations on Congress’s exercise of spending power as it is designed to promote the general welfare, an unambiguous condition, related to the significant federal interest in promoting safe transportation on federal highways, and power did not violate other provisions in the constitution.  Not in a compulsive nature (compare to 奥巴马医保案 ): Noncompliance only results in a loss of five percent of what states would otherwise receive . 第 158 条显然符合国会行使支出权的前四项限制，因为它旨在促进普遍福利， 这是一个明确的条件，与促进联邦公路安全运输的重大联邦利益有关，而且 权力没有违反宪法的其他规定。 不具有强制性质（与奥巴马医保案相比）。不遵守规定只导致各州损失本来 可以得到的 5% 的东西。  （继续奥巴马医保案） the Medical expansion provisions  The medical expansion is not a valid use of spending power. (The Court followed the Dole’s rules):

 Does not meet with factor 5: no coercion( 并 非 强 迫 ) : not in a compulsive nature that leave the state no choice but accept it. ○ The spending powers of the Congress left the state no choice but to accept the regulation- “compulsory” "coercive"  Funding is not directly related to spending  United States v. Butler Rule of Law Congress may not use its taxing and spending powers to obtain an unconstitutional result, such as invading the reserved rights of the states under the Tenth Amendment. 国会不得利用其征税和支出权力来获得违宪的结果，如侵犯第十修正案规定的各 州的保留权利。 Facts In 1933, Congress enacted the Agricultural Adjustment Act (AAA) to allow the Secretary of Agriculture to set limits on the production of certain crops and tax farmers that produced in excess of those limits. The AAA also provided grants to farmers to control their production of crops and thus regulate prices. Butler (plaintiff), a processor of crops, brought suit against the United States government (defendant) in federal district court to challenge the constitutionality of the AAA. The district court ruled that Butler was required to pay taxes under the AAA, but the court of appeals reversed. The United States Supreme Court granted certiorari. 1933 年，国会颁布了《农业调整法》（ AAA ），允许农业部长对某些农作物的 生产设定限制，并对生产超过这些限制的农民征税。农业调整法》还向农民提供 补助，以控制他们的农作物生产，从而调节价格。巴特勒（原告）是一家农作物 加工商，他在联邦地区法院对美国政府（被告）提起诉讼，质疑 AAA 的宪法性。 地区法院裁定，巴特勒必须根据《农业协定》纳税，但上诉法院推翻了这一裁决。 美国最高法院批准了诉讼请求。 Issue Is the tax imposed on farmers by the Agricultural Adjustment Act a constitutional exercise of Congress’s taxing and spending power? Holding and Reasoning (Roberts, J.) No. Article I, § 8 vests in Congress the power to levy and collect taxes for the general welfare. The framers held differing views on the scope of this power. Madison believed the clause merely gives Congress the ability to tax and spend to carry out its other enumerated powers, whereas Hamilton believed the clause gives Congress a wholly separate enumerated power to tax and spend as long as it is in furtherance of

the general welfare. Hamilton’s view is the correct one: Congress’s power to tax and spend is a separate power not confined by Congress’s other enumerated powers. However, this power is not without limits. Any congressional power to tax and spend is limited by Tenth Amendment state sovereignty concerns. The AAA violates state sovereignty by seeking to invade states’ rights to regulate and control their own agricultural production. Since Congress has no power to regulate and control agricultural production, it follows that Congress may not indirectly accomplish that end through its taxing and spending powers. The decision of the court of appeals is affirmed. 第一条第 8 款赋予国会为公众福利征税和收税的权力。制宪者们对这一权力的范 围持有不同的看法。麦迪逊认为该条款只是赋予国会征税和支出的能力，以执行 其其他列举的权力，而汉密尔顿认为该条款赋予国会完全独立的列举的权力，只 要是为了促进一般福利，就可以征税和支出。汉密尔顿的观点是正确的。国会征 税和支出的权力是一项独立的权力，不受国会其他列举权力的限制。然而，这项 权力并非没有限制。任何国会征税和支出的权力都受到第十修正案中国家主权 问题的限制。美国农业部试图侵犯各州规范和控制其农业生产的权利，从而侵 犯了州的主权。由于国会无权监管和控制农业生产，因此，国会不得通过征税和 支出权间接实现这一目的。上诉法院的判决得到确认。 Dissent (Stone, J.) The present case should be guided by four principles that, when considered, justify upholding the AAA as constitutional. Firstly, courts are limited in their inquiry into the constitutionality of legislative and executive actions and may only determine whether those branches have the authority to enact statutes or executive orders. It is not the place of the judiciary to question the wisdom of these statutes if they were constitutionally enacted. Secondly, Congress unquestionably possesses the power to levy an excise tax on the production of agricultural materials. Thirdly, because national agricultural production is in a depressed condition, there is no question that any tax enacted by Congress to improve production is in furtherance of the general welfare. Finally, no questions of an unauthorized delegation of legislative power are raised in this case. IV. Federalism-based limits on State power: preemption and the dormant commerce clause Note: Article 1 section 10 Powers Denied to the States 里有一些对州权利的限制

1. Preemption Preemption: when conflict between federal and state law, federal law will prevail. In a preemption challenge, the challenger is claiming that a state law is unconstitutional because it has been preempted by a valid federal law.  Three types of preemption : p447 1. express preemption (congress expressly stated that the state is preempted in one issue) 2. field preemption (congress rule a field so comprehensively that there is no space for the state law) 3. conflict preemption (impossible to comply with both federal and state law, then federal law will prevail)  Arizona v. United States (p442-446) The Court held that the States lacked the authority to complement or to enforce additional regulations related to alien registration. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards. 2. Dormant Commerce Clause In challenging a law because it violates the dormant Commerce Clause, the challenger argues that while the federal government has been silent in the area (meaning that

the state law or municipal ordinance is not preempted by federal law), the state law (or municipal ordinance) places an unreasonable burden on out-of-state or interstate commerce and therefore violates the dormant Commerce Clause. Notice : it only concerns commerce power (not spending or taxation). Problems : trade protectionism of states vs. exclude state from varieties of power. Rule : state con regulate dormant space only if it does not place excessive burden on other states. 在以违反 Dormant Commerce Clause 为由挑战一项法律时，挑战者认为，虽然联 邦政府在该领域一直保持沉默（意味着该州法律或市政条例没有被联邦法律所 preempt ），但该州法律（或市政条例）对州外或州际商业造成了不合理的负担， 因此违反了 Dormant Commerce Clause 。 注意：它只涉及 Commerce power （不是支出或税收）。 问题：各州的贸易保护主义与将各州排除在权力品种之外。 规则：只有在不对其他州造成过度负担的情况下，州才能监管休眠空间。  City of Philadelphia v. New Jersey (p402-404) In this case, New Jersey passed its law for legitimate environmental and economic purposes. However, New Jersey acted improperly when it sought to remedy its environmental and economic problems by targeting solely out-of-state waste producers with its regulations (facially discrimination between waste from New Jersey and waste from other states) . New Jersey’s refusal to let waste into its landfills simply because the waste originated from outside New Jersey violates the Commerce Clause. 在本案中，新泽西州出于合法的环境和经济目的通过了法律。然而，当新泽西州 为了补救其环境和经济问题，只针对州外的废物生产者制定法规（表面上对新泽 西州的废物和其他州的废物进行歧视）时，其行为是不恰当的。新泽西州仅仅因 为废物来自新泽西州以外就拒绝让废物进入其填埋场，这违反了商业条款。  Two conflicting interests in balance: 1) protectionist of states' commerce (which constitute facial/intentional discrimination) 2) legitimate local purpose (the state's police power)

Class 5: The power of president I. Note: The Theory of Separation and Checks and Balances  2 levels of separation:  horizontal  Executive v. Judicial v. Legislative  vertical  state v. federal  framers’ intent behind separating powers  promote efficiency  less confusion on responsibilities & division of labor b/w branches allows them to develop expertise in their own realms o some say we only have gov’t dysfunction today, not efficiency o others say adhering to separation keeps gov’t from exerting too much power  prevent majoritarian tyranny  19th century assumption that gov’t infringes upon (rather than enhances) individual liberties o Executive today goes far beyond framer intent o fear of Legislature’s ability to redistribute wealth & democracy thru representation seems largely unfounded (though wealthy can afford lobbyists paid to champion their causes)  Note: The purposes of separation and checks. Throughout American history the distribution of national powers has been said to serve two distinct purposes. The first is efficiency. In this view, a division of labor among the various branches makes government more efficient, especially because of the concentration of executive power in the President, who can act with dispatch. The second purpose is the prevention of tyranny. The separation of powers diffuses governmental power, diminishing the likelihood that any one branch (or any one individual) will be able to use governmental power against the citizenry. Consider the extent to which these two purposes are in tension with each other.  分权与制衡的目的 ：第一个是效率。在这种观点中，各部门之间的分工使政府更有 效率，特别是因为行政权力集中在总统手中，他可以迅速采取行动；第二个目的是 防止暴政的发生。分权分散了政府权力，减少了任何一个部门（或任何一个人）能 够利用政府权力反对公民的可能性。考虑一下这两个目的在多大程度上是相互矛盾 的。  Problems: 1) The constitutional distribution of powers: contemporary criticism. 缺乏效率 Consider, for example, the argument that preoccupation with the balance of power between institutions of government has distracted us from concern about the balance

of power between interest groups like the poor and the rich or residents of urban and rural areas. See Levinson, Foreword, Looking for Power in Public Law, 130 Harv. L. Rev. 31 (2016). Other critics have argued that the powerful checks created by separation of powers have led to inefficiency and stalemate. A related attack is that the separation of powers scheme, instead of solving the problem of factions, aggravates it by allowing well-organized private groups to block necessary regulation. In these circumstances, it is sometimes urged that constitutional doctrine should be altered to recognize a greater role for the President. See W. Howell & T. Moe, Relic: How Our Constitution Undermines Effective Government and Why We Need a More Powerful Presidency (2016). But see Nzelibe and Stephenson, Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design, 123 Harv. L. Rev. 617 (2010) (raising doubts that separation of powers causes “gridlock”). Conversely, some critics argue that power is now concentrated in the executive branch and that it is thus necessary to restore Congress to its original status of preeminence. It is sometimes suggested that the growth of an enormous national bureaucracy, operating for the most part within the executive branch, has fundamentally altered the original constitutional framework and requires some sort of response if the original constitutional concerns are to be satisfied. 1) 权力的宪法分配：当代批评。缺乏效率 例如，有观点认为，对政府机构间权力平衡的关注分散了我们对穷人和富人或城 市和农村居民等利益集团之间权力平衡的关注。见 Levinson, Foreword, Looking for Power in Public Law, 130 Harv. L. Rev. 31 (2016) 。其他批评者认为，三权分立 产生的强大制衡导致了效率低下和僵局。一个相关的攻击是，分权方案非但没有 解决派别问题，反而让组织良好的私人团体阻挠必要的监管，从而加剧了问题。 在这种情况下，人们有时会敦促改变宪法学说，承认总统的更大作用。见 W. Howell & T. Moe, Relic: How Our Constitution Undermines Effective Government and Why We Need a More Powerful Presidency (2016) 。但见 Nzelibe 和 Stephenson, Complementary Constraints: Separation of Powers, Rational Voting, and Constitutional Design, 123 Harv. L. Rev. 617 (2010) （对分权导致 " 僵局 " 提出质 疑）。 相反，一些批评者认为，现在权力集中在行政部门，因此有必要恢复国会原有的 优势地位。有时有人认为，一个巨大的国家官僚机构的发展，大部分是在行政部 门内运作，已经从根本上改变了原来的宪法框架，如果要满足原来的宪法关切， 就需要做出某种回应。 2) The Problem of Enforcement. 司法机关缺乏执行力 Alexander Hamilton argued that an independent judiciary, with “no influence over either the sword or the purse” possessed of “neither FORCE nor WILL” and the “least dangerous branch” would enforce the separation. How can an institution with neither force nor will provide effective enforcement? 2）执行力的问题。司法机关缺乏执行力 亚历山大-汉密尔顿（ Alexander Hamilton ）认为，一个独立的司法机关，"对剑 和钱都没有影响力"，"既没有力量，也没有意志"，是 "最不危险的部门"，将

执行分权。一个既无力量又无意志的机构如何能提供有效的执行？ Roadmap The president has 2 types of power: 1. Congressionally delegated power 2. Independent Art.2 power/inherent power (power clearly enumerated in Art2 of the Constitution) 1) Execution of Congressionally Delegated Power • Category 1 – Max Congress expressly or impliedly grant to president o Curtiss-Wright : Congress expressly authorized President to execute embargo o Dames and Moore: Congress expressly authorized President to nullify attachments with the IEEPA • Category 2 – Zone of Twilight Congress is silent o Dames and Moore: The IEEP and Hostage Act did not expressly authorize Pres to end all court claims pending against Iran but suggest that Congress would have wanted the President to have that power. • Category 3 – Lowest Ebb Congress expressly or impliedly disapproves o Youngstown : Congress expressly disapproved of Pres seizing industry to settle labor disputes in Taft Hartley. o Zivotofsky : Congress expressly disapproved of Pres not issuing passport with Israel as country of birth for US citizen born in Jerusalem. 2) Exercise Independent Art. II Power / Inherent Power o Curtiss-Wright : Court suggests Pres has inherent power over foreign affairs and so Pres could OK embargo o Zivotofsky : Pres has exclusive Art II power to recognize a foreign gov and so could refuse to issue passport  Youngstown (The Steel Seizure Case) (1952) Formalism approach from Black (formalism) Functionalism approach from Jackson (functionalism) Facts In late 1951, steel mill owners and their employees had disagreements over the terms of collective bargaining agreements. Unable to reach an agreement, the steel mill employees’ representative gave notice of intent to strike after the expiration of their

current agreement. The federal government unsuccessfully entered the negotiations, and on April 4, 1952, the steel mill employees’ union gave notice of its intent to strike on April 9, 1952. The importance of steel as a component in weapons and war materials led President Truman to believe that a reduction in steel production from a nationwide strike would jeopardize the nation’s security. The President issued Executive Order 10340 directing Sawyer (defendant), the Secretary of Commerce, to take control of and continue operating most of the nation’s steel mills. Sawyer carried out the order, and Youngstown Sheet & Tube Co. (plaintiff), along with other steel mill operators, brought suit in district court alleging that the President’s order amounted to an exercise of lawmaking, a legislative function reserved expressly for Congress. Therefore, the President’s exercise of lawmaking was unconstitutional. The district court granted an injunction in favor of the Youngstown Sheet & Tube Co., on the grounds that the President acted unconstitutionally, but the court of appeals stayed the injunction. The United States Supreme Court granted certiorari. 1951 年末，钢厂老板和他们的雇员对集体谈判协议的条款有分歧。由于无法达 成协议，钢厂雇员的代表发出通知，打算在现有协议到期后进行罢工。联邦政府 参与谈判未果， 1952 年 4 月 4 日，钢厂雇员工会发出通知，表示打算在 1952 年 4 月 9 日罢工。钢铁作为武器和战争材料的组成部分的重要性使杜鲁门总统认为， 全国性的罢工造成的钢铁产量减少将危及国家安全。总统发布了第 10340 号行 政命令，指示商务部长索耶（被告）控制并继续经营全国大部分的钢铁厂。 ( 原 告）与其他钢厂经营者一起在地区法院提起诉讼，声称总统的命令相当于行使立 法权，这是明确保留给国会的立法职能。因此，总统行使立法权是违宪的。地区 法院以总统的行为违宪为由，发出了有利于扬斯敦薄板与管材公司的禁令，但上 诉法院暂停了该禁令。美国最高法院批准了诉讼请求。 Reasoning Summary of Jackson’s approach: more practical (functionalism) since it does not only look into the texts.  Three categories: 1) Category 1-Max: the power is expressly or impliedly granted by the congress 2) Category 2-Zone of Twilight: where congress is silent and the zone could be ambiguous 3) Category 3-Lowest Ebb: act his power on his own independent powers with strict limitations Court’s Rule (Justice Black) - [ Formalism ]  President has no inherent power to seize private property b/c no enumerated Article II authority or statutory authority conferred by Congress o textualist  not mentioned in Art. II & Congress had intentionally withheld statutory authority to do so by drafting alternative to seizure in Taft-Hartley Act

o formalist  Executive reaching dangerously to “lawmaking” power reserved only for Congress by not limiting to only “law-executing” of Congress’s policies o formalist  Pres’s enumerated Commander-in-Chief power does not include seizure of property, much less seizure of American property Concurrence (Justice Jackson) (later become binding law) [Functionalism]  3 categories for determining separation of powers b/w Pres & Congress: o (1) authorized explicitly/implicitly by Congress’ act  President’s actions strongest here o (2) when Congress has remained silent on issue  must interpret whether silence means consent or disapproval o (3) when Congress has explicitly/implicitly disapproved  difficult to rationalize Pres’l action here  Jackson sees Pres’l seizure as against Congr’s wishes implied from statutory silence & failure to act twice Reasoning: Since Congress denied power to the President in the present case under the Taft-Hartley Act, the third scenario is implicated. The President may be deemed to have acted constitutionally only if he is acting based on an express grant of power from the Constitution. The Constitution does not grant the President such powers, and the President's power to “faithfully execute the laws” does not cross into the function of lawmaking. Note: He was very concerned with the power of president because of Nazi-Germany's example. 推理。由于国会在本案中根据《塔夫特 - 哈特利法》剥夺了总统的权力，因此牵 涉到第三种情况。只有当总统根据宪法明确授予的权力行事时，才能被认为是符 合宪法的行为。宪法并没有赋予总统这样的权力 ，总统 " 忠实执行法律 " 的权力 并没有跨越立法的职能。 注：由于纳粹德国的例子，他对总统的权力非常关注。 Concurrence (Justice Frankfurter) [Functionalism-fouced on past experience, tradition] o legislative history ( Fed No. 48 )  President’s emergency powers only properly exercised when it was acted in times of war or national crisis, that is in a specific, limited time frame.  counterpoint : this was actually a pro-labor move that would have allowed President to appease striking steel workers w/ higher wages  counterpoint : framers must have envisioned emergencies where Pres must act immediately & cannot wait for Congress to grant him legislative approval

II. Foreign affairs: Execution of Congressionally Delegated Power  United States v. Curtiss-Wright Export Corp. (functionalism) Rule of Law An otherwise unconstitutional delegation of legislative power to the executive may nevertheless be sustained on the ground that its exclusive goal is to provide relief in a foreign conflict. Facts Congress passed a resolution authorizing the President to stop the sale of arms to countries involved in the Chaco border dispute. That same day, President Roosevelt issued an executive order prohibiting munitions sales to warring countries involved in the Chaco border dispute. In 1936, an indictment was issued alleging that Curtiss-Wright Export Co. (defendant) illegally sold arms to Bolivia, a country engaged in the Chaco border dispute. The transaction was in violation of the congressional resolution and the President’s executive order. The district court issuing the indictment held for Curtiss-Wright, ruling that the indictment was not supported by sufficient information to charge Curtiss-Wright. The United States government (plaintiff) appealed directly to the United States Supreme Court. 国会通过一项决议，授权总统停止向参与查科边界争端的国家出售武器。同一 天，罗斯福总统发布行政命令，禁止向参与查科边界争端的交战国出售军火。 1936 年，一份起诉书发布，指控柯蒂斯 - 莱特出口公司（ Curtiss-Wright Export Co. ( 被告）非法向参与查科边界争端的国家玻利维亚出售武器。该交易违反了国会 决议和总统的行政命令。签发起诉书的地区法院认定柯蒂斯 - 莱特公司有罪，裁 定起诉书没有足够的信息支持来指控柯蒂斯 - 莱特公司。美国政府（原告）直接 向美国最高法院提出上诉。 Reasoning When comes to foreign conflicts, the president need not to be granted by Constitution or Congress , instead, his power directly come from British Crown (not carved from people of US or the state). 1. The grant of power over foreign affairs vested in the federal government after it usurped power from the British Crown (not carved from people of US or the state). The President is the sole organ of the federal government in the field of international relations. 2. The scope of the President’s powers in international affairs is broad . Congressional legislation concerning foreign affairs must accord the President

a degree of discretion and freedom from statutory restriction that would not be admissible if domestic affairs alone were involved. Note: 这个 case 比 Youngstown case 早，所以没有使用 Jackson 的判断方法，但 以后的 case 基本上都用了 Jackson 的判断方法。 This case does not rule in the same way as Jackson in Youngstown case because it is earlier. However, other cases usually adopted the Jackson analysis .  Dames & Moore v. Regan (functionalism) Issue (1) Whether president has the power to stop prejudgment attachment? (2) Whether is president entitled to settle pending case by executive order? Reasoning Fall into two categories （见上面总结） 1) Category 1-Max: the power is expressly or impliedly granted by the congress Congress expressly authorized president to nullify prejudgment attachment with the IEEPA. 2) Category 2-Zone of Twilight: where congress is silent and the zone could be ambiguous The IEEPA and Hostage Act did not expressly authorized president to end all court claims pending against Iran but suggest that Congress would have wanted the President to have that power . e.g. past practice: 国会以前有很多机会反对总统这样做，但国会都没有反 对。  Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky II) (Recognition power) (functionalism) Rule of Law Article II of the Constitution grants the U.S. president the exclusive authority to formally recognize a foreign sovereign through executive power that Congress may not contradict via statute. Fact 1) Congress's legislation: Jerusalem is in Israel on citizen's passport 2) But the State Department refused to do so

1 ）国会的立法。在公民的护照上，耶路撒冷在以色列境内 2 ）但国务院拒绝这样做 Reasoning 1. Fall into Category 3 – Congress has expressly disapproved president to do so. Congress has historically deferred to the president in matters such as making treaties with foreign entities, entering into diplomatic relations with a foreign sovereign, and sending ambassadors abroad. 2. Thus turned to Constitution Art. 2. Art.2 gives president recognition power (the president's exclusive authority to recognize the legitimacy of foreign states and governments, including their territorial boundaries), not expressly stated in Art 2, but implied (Art 2 sec3) Note: Trump's case : building wall on the Mexico boarder as declaring "national emergency" in the face of congressional prohibition -It can either fall into the scope of category 1 or 3, if argued in different ways III. Domestic affairs: Executive privilege and impeachment: Ground of Executive privilege in Con: Article 2, section 1 of the Constitution vests “the executive” power in the president and Article 2, section 3 provides that the president “shall take care that the Law be faithfully executed.”

 Two categories of misconduct: 1) Damages for misconduct while in office: p597 ( Nixon v. Fitzgerald, Harlow v. Fitzgerald ) o Harlow v. Fitzgerald : the Court declined to extend presidential immunity to presidential aides. Lower-level officials do, however, enjoy “ qualified immunity.” These officials can be held liable for damages only if they violate law that was “clearly established” at the time of the violation. o Harlow v. Fitzgerald 案：法院拒绝将总统豁免权扩大到总统助理。 然 而，较低级别的官员确实享有 " 限定豁免权 " 。只有当这些官员违反了 在违法行为发生时已经 " 明确确立 " 的法律时，他们才能被追究损害 赔偿责任。 2) Damages for claims unrelated to service in office: p599 o Clinton v. Jones : Compare Nixon v. Fitzgerald with Clinton v. Jones , 520 U.S. 681 (1997). Jones differed from Fitzgerald in two respects . First , it arose out of alleged misconduct occurring before the President’s term began and unrelated to his conduct while in office . Second, the suit was brought during the President’s term of office. o 克林顿诉琼斯案。将 Nixon 诉 Fitzgerald 案与 Clinton 诉 Jones 案进 行比较， 520 U.S. 681 (1997) 。琼斯在两个方面与 Fitzgerald 不同。首 先，该案是由总统任期开始前发生的被指控的不当行为引起的，与他 在任期内的行为无关。第二，该诉讼是在总统任期内提出的。  United States v. Nixon (p592)  Facts : President Nixon (defendant) was named as a co-conspirator in various charges including conspiracy to defraud the United States. The United States

District Court for the District of Columbia subpoenaed various tapes and documents relating to specific meetings in which Nixon was a participant. Nixon filed a formal claim of privilege and a motion to quash the subpoenas. The United States District Court for the District of Columbia denied the motion. The United States Supreme Court granted certiorari. 尼克松总统（被告）被列为各种指控的同谋者，包括阴谋欺诈美国。美国哥 伦比亚特区地区法院传唤了与尼克松参与的特定会议有关的各种录音带和 文件。尼克松提交了一份正式的特权声明，并提出了撤销传票的动议。美国 哥伦比亚特区地区法院拒绝了该动议。美国最高法院批准了诉讼请求。  Issue : May the President of the United States assert an absolute claim of privilege over all confidential communications?  Holding and Reasoning : No. 1) The ground of executive privilege for president is Art 2 (“ 总统应有效行 使行政权 ”, without executive privilege, president cannot effectively exercise his executive right) 2) BUT, There is no absolute, unqualified presidential privilege : Although there is a presumptive presidential privilege for his confidential communications, when the communications do not concern military, diplomatic, or sensitive national security secrets, that presumption may be rebutted due to the constitutional need to produce all relevant evidence in a criminal case. 3) BALANCE : the need of concrete evidence outweigh the generalized executive privilege. A generalized claim of presidential privilege based on a claim of public interest in confidentiality does not overcome the interest in producing all relevant evidence consistent with the fair administration of justice. President Nixon does not base his claim of privilege on military, diplomatic, or sensitive national security secrets. The President’s claim is of a generalized presidential privilege of confidentiality. Such a claim cannot be upheld in a criminal proceeding as the interests of justice outweigh Nixon’s general need for confidentiality.  Nixon v. Fitzgerald  Facts: Fitzgerald brought an action against President Nixon on the ground that he had been discharged from a government position because he had exercised his right to freedom of speech. The Court held, by a five-to-four vote, that the President was immune from an action for damages.  Rule : Nixon is immune from the action of damages regarding his official conduct because of the singular importance of the President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.”

事实：菲茨杰拉德对尼克松总统提起诉讼，理由是他因为行使了言论自由的 权利而被解除了政府职务。 法院以五比四的投票结果认为，总统对损害赔偿 的诉讼具有豁免权。 规则：尼克松对有关其官方行为的损害赔偿诉讼享有豁免权，因为总统的职 责非常重要，通过关注私人诉讼转移其精力会对政府的有效运作带来独特的 风险 " 。  Because of the singular importance of the President’s duties , lawsuit against him when acting in their official capacity will diverse of his energy and attention to his performance as a president and thus raise unique risks to the effective functioning of government . ” The President’s office is more like that of prosecutors or judges, which are granted absolute immunity from suit when acting in their official capacity . Extending absolute immunity to the President is necessary because participating in lawsuits would severely detract time better spent performing presidential duties and serving the American people . 总统身居要职， lawsuit 会分散其注意力，使其不能有效管理国家  Allow lawsuit regarding official conduct may discourage president from performing. 因为 lawsuit 是针对 official conduct 的，总统可能因为害怕被起诉而在执 政时畏首畏尾  other ways of check and balance: granting absolute immunity to the President would not completely remove him from checks and balances on his behavior. For example, the President is still highly scrutinized by the press and subject to the threat of impeachment by Congress for misconduct. 除了 lawsuit 之外还有其他制衡总统的方式： impeachment  The President has incentives to avoid misconduct , such as seeking reelection, maintaining the prestige and influence of his office, and traditional concerns for his historical stature. 总统本身迫于舆论或想要连任的压力也会避免 misconduct  Clinton v. Jones [personal issue] Rule of Law The United States Constitution does not grant the President of the United States immunity from civil litigation involving actions committed before entering office.

Facts William Jefferson Clinton (defendant) was elected President of the United States in 1992 and 1996. In 1991, Clinton served as the Governor of Arkansas. He attended a conference that year at a hotel staffed by Paula Corbin Jones (plaintiff). Jones alleged that, while at the conference, Danny Ferguson, a former Arkansas police officer, persuaded her to leave her post and visit Governor Clinton’s hotel room. Once there, Jones alleged that Clinton made lewd sexual advances towards her which she rejected. She filed suit in the District Court for the Eastern District of Arkansas, naming Clinton and Ferguson as defendants. She also claimed that her supervisors subsequently changed her duties and treated her poorly because she rejected Clinton’s advances. Jones sought actual damages of $75,000 and punitive damages of $100,000. The district court held that the President was immune from suit and that any litigation must be stayed until the conclusion of the President’s term. The court of appeals reversed, and the United States Supreme Court granted certiorari. 威廉 - 杰斐逊 - 克林顿（被告）于 1992 年和 1996 年当选美国总统。 1991 年，克林 顿担任阿肯色州的州长。那一年，他出席了由保拉 - 科尔宾 - 琼斯（原告）在一家 酒店举办的会议。琼斯声称，在会议期间，前阿肯色州警官丹尼 - 弗格森（ Danny Ferguson ）劝说她离开岗位，去克林顿州长的酒店房间。在那里，琼斯声称克林 顿对她进行了猥亵性挑逗，被她拒绝。她向阿肯色州东区地方法院提起诉讼， 将克林顿和弗格森列为被告。她还声称，由于她拒绝了克林顿的挑逗，她的主管 后来改变了她的职责，并对她态度恶劣。琼斯要求获得 75,000 美元的实际赔偿 和 100,000 美元的惩罚性赔偿。地区法院认为，总统享有诉讼豁免权，任何诉讼 必须暂停，直到总统任期结束。上诉法院推翻了这一判决，美国最高法院批准了 诉讼请求。 Reasoning  This case involved personal issue instead of official issue.  Grant it will not distract the president from his work and duties o Different from Nixon v. Fitzgerald in two aspects 参见上方总结  完整版 The Court rejected Clinton’s claim and held: 1. Nixon v. Fitzgerald was distinguishable because it had involved official conduct. But we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity . 2. The Court also rejected Clinton ’ s contention that permitting the suit would risk violation of separation of powers principles.

3. President Clinton claimed that defense of civil litigation would impose an unacceptable burden on his time and energy, thereby impairing his effective performance in office. In the Court’s view, however, “if properly managed by the District Court, [it is highly unlikely that defense of the suit would] occupy any substantial amount of petitioner’s time. ” 4. The Court also rejected the argument that permitting such litigation would generate a large volume of “politically motivated harassing and frivolous litigation” 1. 尼克松诉菲茨杰拉德案是可以区分的，因为它涉及到官方行为。但我们从 未建议总统或任何其他官员拥有超出以官方身份采取的任何行动范围的豁免 权。 2. 法院还驳回了克林顿的论点，即允许诉讼会有违反分权原则的风险。 3. 克林顿总统声称，为民事诉讼辩护将对他的时间和精力造成不可接受的负 担，从而损害他在办公室的有效表现。然而，法院认为， " 如果地区法院管理 得当， [ 该诉讼的辩护极不可能 ] 占用请愿人的任何大量时间。 " 4. 法院还驳回了允许这种诉讼会产生大量 " 出于政治动机的骚扰性和无意 义的诉讼 " 的说法。  Cheney v. the US district court Rule : Friendship with an officer named in a lawsuit in his or her official capacity is not grounds to recuse a Supreme Court justice.  Trump v. Vance  The Court held: 1. No precedent : No U.S. president has successfully avoided a subpoena on executive-immunity grounds. 2. Trump: all those cases involved federal trials, and that the Supremacy Clause makes him immune from state prosecutions that might divert, stigmatize, or harass him and impair his performance of Article II functions.  Court: But 200 years of precedent establishes that presidents can comply with a subpoena without this action interfering with their vital functions. The Nixon court rejected the argument that distraction or preoccupation from official duties warranted quashing a subpoena. A properly tailored subpoena need not keep a president from performing his office. 3. Trump: subpoena for a sitting president’s personal records must meet a heightened showing of need.

 Court: 1) with respect to private papers , a president stands in nearly the same situation as anyone else. 2) nothing shows heightened protection is necessary to fulfilling executive functions. 3) the public interest in enforcing the laws favors open access to evidence. 1. No precedent: 没有一位美国总统以行政豁免权为由成功避免了传唤。 2. Trump ：所有这些案件都涉及联邦审判，而且最高条款使他免于受到可能转移、 侮辱或骚扰他并损害他履行第二条职能的国家起诉。 - 法院。但 200 年的先例规定，总统可以遵守传票，而这一行动不会干扰其重要 职能。尼克松法院拒绝了这样的论点，即分散注意力或专注于官方职责的行为可 以证明取消传票。一张合适的传票不需要阻止总统履行其职责。 3. 特朗普：对现任总统个人记录的传唤必须满足更高的需求。 - 法院。 1 ）在私人文件方面，总统与其他人的处境几乎相同。 2 ）没有任何证据表明加强保护对履行行政职能是必要的。 3 ）执行法律的公共利益有利于公开获取证据。 Note  This case is in the state level and someone may point to Trump deliberately in this way when he is out of office.  In the precedent there is no president immune from the personal issues

IV. To what extent can Congress delegate their law making authority?  Immigration and Naturalization Service v. Chadha (1983) Rule of Law Legislation providing Congress with a one-house veto over an action of the executive branch is unconstitutional because it does not meet the constitutional requirements of presentment and bicameralism. Facts Through INA ( 移民和国籍法 ), Congress delegated the power to decide 移民是否可 以留在美国 to INS （移民局） , 但同时 INA 也规定 Congress 可以 one-house veto INS( 移民局 ) 的决定。 foreigner Chadha ordered by INS to show cause for why stayed after visa expired o immigration judge ruled could stay b/c met req’mts for permanent residence statute o House Resolution (not treated as Art. I legislative act & not submitted to Senate or Pres) intro’d opposing permanent residency to those like Chadha  ordered deportation - 外国人 Chadha 被移民局勒令出示签证过期后的居留理由。

o 移民法官裁定可以留下，因为他符合永久居留法规的要求。 o 众议院决议（不被视为第一条立法行为，也没有提交给参议院或总 统）提出，反对像 Chadha 这样被命令驱逐出境的人获得永久居留 权。 Reasoning  holding : Congress may not use statute to grant itself a legislative veto over actions of Exec branch b/c not achieved thru Bicameralism & Presentment o Congress must abide by its prior delegation of authority to INS agency (Exec branch) to allow deportable aliens to remain & to Atty General to decide decisions on deportation  Congress cannot revoke this delegation w/o use of Bicameralism & Presentment o only 4 narrow Const’l provisions allow House or Senate to act outside of Bicameral legislative role:  House’s power to initiate impeachments  Senate’s power to conduct trials following impeachment  Senate’s power over Pres’l appt’mts  Senate’s power to ratify treaties  - Holding: 国会不得在未通过 Bicameralism & Presentment 的前提下对行 政部门的行为行使立法否决权。 （因为行使 veto 权实际上是重新立法， 所以必须遵循 Bicameralism & Presentment 的立法原则） o 国会必须遵守其先前对移民局（行政部门）的授权，允许可被驱逐 的外国人留下，并由总检察长决定驱逐出境的决定。 国会不能撤销这一授权，除非使用两院制和预审权 o 只有四个狭义的宪法条款允许众议院或参议院在 Bicameralism & Presentment 这两个原则之外采取行动： 众议院有权启动弹劾程序 参议院在弹劾后进行审判的权力 参议院对总统任命的权力 参议院批准条约的权力  Note: Bicameralism （两院制） and Presentment ( 预审制 ) ： Article I, Section 7, Clause 2 of the Constitution provides that "[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States"  formalist view  must prevent Madisonian concerns over tyranny & here Congress invades Exec prerogative, delays are no excuse for Congr’l failure to comply w/ explicit Const’l stds

o counterpoint : why object to such minor delegation when Exec still makes the major decisions & actually reduces its burdensome minor duties?  concurrence : offends Separation of Powers b/c House executed a specific determination affecting 6 individuals not complying w/ statute & this is not Congress’s role (especially w/o est’d checks that other branches would be subject to were they to act similarly)  legislation affects whole classes of ppl, but here affects individuals o Congress not politically accountable to Chadha or the political process when acting outside of its prescribed role (no internal constraints prevent it from arbitrarily depriving of rt to remain, rts subject to “tyranny of shifting majority”) o not bound by est’d substantive rules (as would Judiciary or admin agency) o no procedural safeguards like those present when ct or agency adjudicates individual rts (right to counsel, hearing before impartial tribunal)  dissent : functionalist argument  legislative veto mechanism necessary for allowing Congress to retain role its massive delegation of authority to agencies o if Congress was allowed to delegate Art. I power to admin agencies (& SCt had not struck that down), then must be some mechanism for checking that delegated power o not a threat of aggrandizement where Congress is simply checking power that it would have had anyway had it not delegated to agencies o nothing in Constitution refutes this method of oversight & changes no Const’l text to delegate any serious powers to Congress  counterpoint : there were other Const’ly-sound alternatives that would not alter Const’l structure  Morrison v. Olson (1988) - [functionalism]  Rule of Law : A law vesting the judiciary with the power to appoint an inferior executive officer (an independent counsel) and prohibiting the President from removing the officer without good cause does not violate separation-of-powers principles. 赋予司法机关任命下级行政官员（独立顾问）的权力（行政权力），并禁 止总统在没有充分理由的情况下解除该官员的职务的法律，并不违反分权 原则。  Facts : Title VI of the Act permitted a court called the Special Division to appoint an independent counsel to investigate and prosecute certain high-ranking government officials for violations of federal criminal laws upon request by the Attorney General.

该法第六章允许一个名为特别法庭的法院任命一名独立顾问，以调查和起 诉某些高级政府官员违反联邦刑事法律的行为，这是应司法部长的要求。  Reasoning (Rehnquist, C.J.)-[functionalism] 1) First, the independent counsel is subject to removal by a higher executive officer, the Attorney General. 2) Second, the independent counsel’s powers are limited to investigation and prosecution, which do not impact executive policy. In addition, the independent counsel has limited jurisdiction and tenure. 3) Next, the Act is consistent with separation-of-powers principles. Congress vested appointment power in the judiciary and removal authority in the Attorney General; thus, Congress did not usurp executive authority for itself. 4) Further, limiting presidential authority to remove officials without cause has been upheld in the past. Humphrey’s Executor v. U.S. , 295 U.S. 602 (1935). The good-cause requirement is not a burden on the president's ability, through the Attorney General, to execute his constitutional authority. This is because the president’s need to fully control these types of inferior officers is not central to the functioning of the executive branch. The branches of government are separate but interdependent, and the Act does not violate the separation of powers by usurping executive authority or upsetting the balance of power between the branches. Accordingly, the act is constitutional, and the decision of the court of appeals is reversed. 1 ）首先，独立法律顾问可以被更高的行政官员，即司法部长撤职。 2 ）其次，独立法律顾问的权力仅限于调查和起诉，这并不影响行政政策。 此外，独立顾问的管辖权和任期有限。 3) 其次，该法符合分权原则。国会将任命权赋予司法机构，将免职权赋予司 法部长；因此，国会没有为自己篡夺行政权力。 4 ）此外，限制总统无故罢免官员的权力在过去也得到了支持。 Humphrey's Executor v. U.S., 295 U.S. 602 (1935) 。良好的理由要求对总统通过司法部长执 行其宪法权力的能力不是一种负担。这是因为总统需要完全控制这些类型的 下级官员，这不是行政部门运作的核心。政府的各个部门是分开的，但又是 相互依存的，该法案并没有因为篡夺行政权力或破坏各部门之间的权力平衡 而违反分权。因此，该法案符合宪法，上诉法院的判决被推翻。 Dissent (Scalia, J.) -[formalism] 1) Article II of the Constitution specifically states that “ all” (not some) executive powers of the United States shall be vested in the president , just as “all” legislative power is vested in Congress, and “all” judicial power is vested in the Supreme Court.

2) Further, the characterization of the independent counsel as an inferior officer is wrong; the term “inferior” at the time of the Constitutional Convention meant subordinate, and the independent counsel is subordinate to no one. Class 6: Equality and Equal Protection Clause I. 13th and 14th Amendment: AMENDMENT XIII [1865] Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation. AMENDMENT XIV [1868] Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws . Background: The Constitution was firstly designed to protect slavery. In history, some provisions implied the Slavery in the Constitution  Article I Section 2, Clause 3 Three-fifths of all other person-slaves  Article I Section 9, Clause 1 important of slave  Article IV Section 2, Clause 3 逃亡奴隶政策 It did not specifically refer to slavery, but those articles implied that the framers intended to protect the slavery as slave is “other persons” in the constitution.

II. Before the civil war  State v. Post Background 1) US’s land has expanded to the west, and in 1820 the Congress passed a compromise act (some states are slavery state and some others are non-slavery) 2) The 1844 New Jersey constitution did not abolish slavery. Rule : The court knew that the popular opinion is to abolish slavery. But we are only judges to interpret the framers’ idea. The framer’s intent is not to abolish the slavery.  Dred Scott v. Sandford  Background （历史背景） o Conflicts on Slavery between Northern (most free states) and Southern States (most slavery states) o Expansion of the U.S. territory to the west, question whether the new territory should allow slavery? o Solution: Congress compromised: 新州是自由州，但 Southern State 可 以 remain slavery.  Rule of Law People of African descent brought to the United States and held as slaves , as well as their descendants (either slave or free ), are not considered citizens of the United States and are not entitled to the protections and rights of the Constitution .  Facts Dred Scott (plaintiff) was an African American man born a slave in Virginia in the late 1700s. In 1830, he was taken by his owners to Missouri and purchased by Army Major John Emerson in 1832. Emerson took Scott with him on various

assignments in Illinois and Wisconsin Territory, areas that outlawed slavery based on Congress’s enactment of the Northwest Ordinance of 1787 and the Missouri Compromise of 1820. While in Wisconsin, Emerson allowed Scott to marry and later left Scott and his wife in Wisconsin when he was reassigned to Louisiana. While in Louisiana, Emerson married Eliza Irene Sandford. He then sent for Scott and his wife, who traveled to Louisiana to serve Emerson and his wife. After Emerson’s death in 1843, his widow inherited his estate, including Scott. Scott attempted to purchase his freedom from Emerson’s widow, but she refused. In 1846, Scott sued Emerson’s widow for the freedom of himself and his family, but the Missouri Supreme Court upheld their slavery. Scott brought suit again in 1853 in federal district court against John Sandford (defendant), executor of Emerson’s estate. The federal court relied on Missouri law to find that Scott was still a slave, and the Circuit Court of Appeals affirmed. Scott petitioned for certiorari in the United States Supreme Court. 德雷德 - 斯科特（原告）是一个非裔美国人， 17 世纪末出生在弗吉尼亚州的 一个奴隶。 1830 年，他被主人带到密苏里， 1832 年被陆军少校约翰 - 爱默生 买下。爱默生带着斯科特在伊利诺伊州和威斯康星州地区执行各种任务，这 些地区根据国会颁布的 1787 年《西北条例》和 1820 年《密苏里妥协》取缔 了奴隶制。在威斯康星州时，艾默生允许斯科特结婚，后来当他被重新分配 到路易斯安那州时，将斯科特和他的妻子留在了威斯康星州。在路易斯安那 州时，爱默生与伊丽莎 - 艾琳 - 桑德福结婚。然后他派人去找斯科特和他的妻 子，后者前往路易斯安那州为爱默生和他的妻子服务。 1843 年爱默生去世后， 他的遗孀继承了他的遗产，包括斯科特。斯科特试图从爱默生的遗孀那里购 买他的自由，但她拒绝了。 1846 年，斯科特为自己和家人的自由起诉爱默生 的遗孀，但密苏里州最高法院维持了他们的奴隶制。 1853 年，斯科特在联邦 地区法院再次对爱默生的遗产执行人约翰 - 桑福德（被告）提起诉讼。联邦法 院依据密苏里州的法律，认定斯科特仍然是奴隶，巡回上诉法院确认了这一 点。斯科特向美国最高法院提出了诉讼请求。  Whether the court has a jurisdiction?-does “diversity jurisdiction” exist? So the court had to decide Scott is a citizen of the United States.  Reasoning:  Jurisdiction issue: diversity jurisdiction: plaintiff and defendant come from different state, so the court has to solve jurisdiction issue first. Court: African descendant is not a citizen of the U.S., so court has no jurisdiction. o intent of the framers of constitution : slaves were an inferior race and therefore not entitled to basic constitution protections o the history and plight of African Americans o The congress did have the power to abandoning the slavery when regulating the territory because it will be arbitrary for the 奴隶主 to travel across the states with the risk of losing the slaves as properties.

 密苏里 Compromise itself is not constitutional. o Constitution protect property (salve), 并且没有赋予国会废除奴隶制 的权利  Conclusion: not a citizen, no jurisdiction III. After the civil war 13th amendment after the civil war: represents the formal eradication of slavery 14the amendment is set to further protect the rights of blacks, and “any person”. But it was a long process that the Court tried to accept the 14th amendment. So at the beginning, the Court only adopted narrow interpretation of the Reconstruction amendments United States v. Reese United States v. Cruikshank United States v. Harris 内战后的第 13 条修正案：代表着奴隶制的正式根除 第 14 条修正案被设定为进一步保护黑人以及 " 任何人 " 的权利。 但法院试图接受第 14 条修正案是一个漫长的过程。 所以一开始，法院只对重建时期的修正案进行了狭义的解释 美国诉 Reese 案 美国诉 Cruikshank 案 美国诉哈里斯案  The Civil rights case  Congress: The states will be seen as encouraging the private sectors to support slavery, so the congress can regulate the discrimination against blacks by private sectors. o the court’s argument about state actions : the first section of the Fourteenth Amendment [is] prohibitory…upon the States. [It] is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment.  The Court acknowledged that laws enacted under the thirteenth amendment “may be primary and direct in [character]; for the thirteenth amendment is not a mere prohibition of State laws establishing or upholding slavery, but an

absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.” o The Court also agreed that Congress was empowered under the amendment “to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.” But the crucial question was whether the discriminatory refusal to serve a black person in a public accommodation was such a badge or incident. The Court thought that accepting this position “would be running the slavery argument into the ground.” A refusal of service “has nothing to do with slavery or involuntary servitude. [If] it is violative of any right of the party, his redress is to be sought under the laws of the State; or if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of State laws, or State action, prohibited by the Fourteenth Amendment.”  Congress ：各州将被视为鼓励私营部门支持奴隶制，因此国会可以监管私 营部门对黑人的歧视。 o 法院关于州行动的论点：第十四修正案的第一节 [ 是 ] 禁止性的 ...... 对州。 [ 被禁止的是具有特殊性质的国家行为。个人对个人权利的侵犯不是 该修正案 的主题。 ( 十四修正 案只禁止 State action ，而不禁止 individual/private action)  法院承认，根据第十三条修正案颁布的法律 " 在 [ 性质 ] 上可能是主要的和 直接的； 因为第十三条修正案不仅仅是禁止各州建立或支持奴隶制的法 律，而是一个绝对的宣言，即奴隶制或非自愿的奴役在美国的任何地方 都不存在 " 。 o 法院还同意， 根据该修正案，国会有权 " 通过所有必要和适当的法律， 以废除美国境内的所有奴隶制的标志和事件 " 。 但关键的问题是，在 公共场所歧视性地拒绝为黑人提供服务是否是这样一种徽章或事件。 法院认为，接受这一立场 " 将使奴隶制的论点落空 " 。 拒绝服务 " 与奴 隶制或非自愿劳役没有关系。 [ 如果它侵犯了当事人的任何权利，他的 补救措施应根据该州的法律来寻求；或者如果这些法律不利于他的权 利，不能保护他，他的补救措施将在国会已通过或可能通过的纠正性 立法中找到，以抵消第十四修正案所禁止的州法律或州行动的影响。 "

IV. Jim Crow: Separate but equal?  Plessy v. Ferguson Rule of Law Public accommodations that are segregated according to racial classifications do not violate the Equal Protection Clause of the Fourteenth Amendment as long as such accommodations are “separate but equal.” Facts In 1890, the State of Louisiana passed a law that provided for separate railway cars for Caucasian and African American persons. Plessy (defendant) was seven-eighths Caucasian and one-eighth African American, but was considered African American under Louisiana law. He challenged the law by taking a seat in a Caucasian railway car and was asked to move to the African American car by the conductor. When he refused, he was forcibly ejected and imprisoned. The Committee of Citizens originally brought suit on behalf of Plessy in Louisiana state court challenging his arrest and conviction. The presiding judge, Ferguson (plaintiff), held that Louisiana had a right to enact such legislation to regulate railway companies as long as those companies operated within the state’s borders. Plessy then sought a writ of prohibition against Ferguson. The Committee of Citizens appealed on Plessy’s behalf to the Louisiana Supreme Court, which upheld Judge Ferguson’s ruling. The United States Supreme Court granted certiorari. 1890 年，路易斯安那州通过了一项法律，规定高加索人和非裔美国人的铁路车 厢要分开。普莱西（被告）是八分之七的高加索人和八分之一的非裔美国人，但 根据路易斯安那州的法律，他被视为非裔美国人。他挑战法律，在一节高加索人 的火车车厢里坐了下来，列车长要求他移到非裔美国人的车厢里。当他拒绝时， 他被强行赶走并被监禁。公民委员会最初代表普莱西在路易斯安那州立法院提起 诉讼，质疑对他的逮捕和定罪。主审法官弗格森（原告）认为，只要铁路公司在 本州范围内运营，路易斯安那州就有权颁布此类立法来监管铁路公司。普莱西随 后寻求对弗格森发出禁止令。公民委员会代表普莱西向路易斯安那州最高法院提 出上诉，该法院维持了弗格森法官的裁决。美国最高法院批准了诉讼请求。 Majority opinion : Distinction between legal equality and social equality  While the object of the Fourteenth Amendment is to promote the equality of all races before the law, it cannot have been intended to abolish all distinctions based on color, or to enforce social (as opposed to political) equality when African Americans and Caucasians do not actually want to be commingled.  If the African American race feels inferior because of the laws, that inferiority construction is placed upon the race by itself .

Dissent (Harlan J.)  The legislation should not consider the race of citizens  The white made the laws to exclude the blacks (consider the purpose of laws) (law represent a mindset that the black is inferior)  Brown v. Board of Education (Brown I) Rule of Law Separate educational facilities based on racial classifications are inherently unequal and violate the Equal Protection Clause of the Fourteenth Amendment . Facts The present case represented a consolidation of cases from Kansas, South Carolina, Virginia, and Delaware. In each state, African American minors sought the aid of their state courts in gaining admission to public schools on a non-segregated basis. In all instances, Brown and other minor African American children (plaintiffs) had been denied admission to public schools attended by white children under laws requiring or permitting segregation according to race. They alleged that this segregation deprived them of Equal Protection of the laws under the Fourteenth Amendment. In 1951, Brown first filed suit against the Board of Education for Topeka, Kansas (defendant) in federal district court. The district court ruled in favor of the Board of Education, citing Plessy v. Ferguson, 163 U.S. 507 (1896), as guidance. The United States Supreme Court granted certiorari. 本案是堪萨斯州、南卡罗来纳州、弗吉尼亚州和特拉华州的案件的合并。在每个 州，非裔美国人的未成年人都寻求其州法院的帮助，以获得在非隔离的基础上 进入公立学校的机会。在所有情况下，布朗和其他未成年非裔美国人儿童（原 告）都被拒绝进入白人儿童就读的公立学校，因为法律要求或允许按种族进行 隔离。他们声称，这种隔离剥夺了他们根据第十四修正案获得法律的平等保护。 1951 年，布朗首次在联邦地区法院对堪萨斯州托皮卡市教育委员会（被告）提 起诉讼。地区法院援引 Plessy v. Ferguson, 163 U.S. 507 (1896) 案作为指导，裁定 教育委员会胜诉。美国最高法院批准了诉讼请求。 Reasoning  Court 认 为 黑 人 和 白 人 学 校 physically equal (physical/tangible factors are equal)  (Majority opinion) intangible factors: physiological harm to the African Americans or (Thomas’s opinion) superior education resources: not equal -Qs: If the Constitution is blind to the race and color, is it acceptable to give priorities to African Americans to compensate for their loss in history? 1. 在决定该问题时，不可能依靠十四修正案颁布时的原始意图 it is not possible to rely on the original intent surrounding adoption of the Fourteenth Amendment. （因 为这个问题在之前的各种 case 和 debate 中也一直没有被解决）

在决定这个问题时，不可能依靠围绕第十四修正案通过的原始意图，因为以前的 案例和颁布时涉及的立法历史对其真正的含义范围没有定论。 2. 也不能依靠十四修正案颁布时的教育情况，因为当时白人上的基本是私立学 校，给黑人上的公立学校数量很少 3. An examination of the text of the Fourteenth Amendment itself is utilized to determine the intent behind the Amendment’s application to public education. To determine whether the segregated schools violate the Fourteenth Amendment as interpreted, it is necessary to examine the actual effect of this segregation on the institution of public education as a whole. In the present case, the opportunity for education is not equally provided to minority students, as the existence of segregation has a profound and detrimental effect on their hearts and minds.  Brown v. Board of Education (Brown II)  de facto discrimination: should the states require the private schools to do the same as public schools ?  Individual school officials are responsible for implementing constitutional principles in good faith , but the various district courts that originally heard the cases against all schools involved in Brown are best equipped to determine whether a good faith effort is being made. Class 7& 8: Equal protection: economic and race discrimination; discrimination on the basis of gender, sexual orientation, non-citizenship, disability, and age I. Race issue in 14th amendment 14 th Amendment: “nor deny to any person within its jurisdiction the equal protection of the laws” (bans every states from denying to any person within its jurisdiction the equal protection of the laws) -HOWEVER, nearly every statute actually classify and discriminate individuals to some extent. -So what kind of discrimination is right?

II. Roadmap (1) Discrimination? Does the law treat similarly situated people differently? (a) Facial Discrimination ? No ? Go to 1(b). / Yes : Go to 2 “Facially discriminatory Law”: Law itself draw a line between different classification of people. (b) Facially neutral, but has discriminatory both effect and discriminatory purpose ? No : No violation. / Yes : Go to 2. (2) Against Who? : How “suspect” is the classification/discrimination? Apply appropriate level of scrutiny :  Non-Suspect Class? (e.g., Economic) [Railway Express Agency v. New York, New York City Transit Authority v. Beazer, US Depart of Agriculture v. Moreno] o Apply Rational Basis : If the plaintiff fails to show the law discriminates against a suspect class, then courts apply “ Rational Basis Scrutiny ” (presumption of constitutionality)  Quasi-Suspect Class? (e.g., Gender) [Craig v. Boren, United States v. Virginia] o Apply Intermediate Scrutiny - If the plaintiff can show that the law discriminates against a quasi-suspect class, then courts apply “ Intermediate scrutiny ” (moderate presumption of unconstitutionality)  Suspect Class? (e.g., Race) [Loving v. Virginia, Yick Wo v. Hopkins] o Apply Strict Scrutiny - If the plaintiff can show the law discriminates against a suspect class , then courts apply “ Strict Scrutiny ” (heavy presumption of un constitutionality) (3) Why? : Does the government have a good enough reason to be discriminating? No ? Law is unconstitutional. / Yes : Go to 4. [ 看答案 ]  Rational Basis Part 1: Legitimate Interest? : Plaintiff must show that the government’s goal or interest is illegitimate .  Intermediate Scrutiny Part 1: Important Interest? : Government must show that its goal or interest is important .  Strict Scrutiny Part 1: Compelling Interest? : Government must show that its goal or interest is compelling. (4) Tailoring : Is the law sufficiently tailored toward achieving the government’s goal? No ? Law is unconstitutional. / Yes : Law is constitutional  Rational Basis Part 2: Rationally related? : Plaintiff must show that the classification is an irrational way for the government to achieve its legitimate interest. An imperfect, yet rational fit is enough.  Intermediate Scrutiny Part 2: Substantially related? Government must show that the classification is substantially related to its important interest. In other words, a moderately well-tailored fit is required.

 Strict Scrutiny Part 2: Narrow Tailoring : Government must show that the classification is narrowly tailored to its compelling interest. In other words, a near perfect fit is required.  Strauder v. West Virginia Facts West Virginia (plaintiff) enacted a statute limiting jury service to white males over the age of 21 who are state citizens. An all-white jury convicted Strauder (defendant), a black man, of murder. Strauder argues that his conviction by a jury selected under the West Virginia statute violated the Fourteenth Amendment. 西弗吉尼亚州（原告）颁布了一项法规，规定只有 21 岁以上属于州公民的白人 男性可以担任陪审员。一个全白的陪审团判定黑人 Strauder （被告）犯有谋杀罪。 斯特劳德辩称，根据西弗吉尼亚州的法规选择的陪审团对他的定罪违反了第十四 修正案。 Reasoning  14 th Amendment prohibit State from discriminating someone by RACE .  But State can discriminate people base on other factors like: Gender, Property, Age, Citizenship, etc. The jury selection with discrimination o what can be discriminated? Gender, Property, Age, Citizenship o what cannot: race Significancy  The first case to strike down racial discrimination. 此后，在歧视问题上，法院建立了“ strict scrutiny ” and “rational basis scrutiny”  Strict Scrutiny : race discrimination -very skeptical about the state law constitutionality  Rational basis scrutiny : economics/property -more neutral considering the constitutionality —these classes basically have more resource to protect themselves  Railway Express Agency v. New York [Rational Basis Scrutiny] [under inclusive] Rule of Law

A state law that is substantially underinclusive does not necessarily violate the Equal Protection Clause because a state may rationally decide to address a public problem in phases. Facts A statute promulgated by the State of New York (plaintiff) prohibited vehicles devoted solely to displaying advertisements, but permitted business vehicles to display signs related to their business as long as the business vehicles were not solely used for advertising. Railway Express Agency, Inc. (defendant) was engaged in a nationwide express business and operated about 1,900 trucks in New York City. It sold the space on the exterior sides of its trucks for advertising that was primarily unrelated to its business. Railway was convicted of violating the New York statute in the magistrate’s court and fined. The conviction was sustained by the Court of Special Sessions, and the court of appeals affirmed. Railway Express Agency, Inc. appealed to the United States Supreme Court on the grounds that the regulation did not bear a rational relation to a legitimate state purpose and was thus unconstitutional under the Equal Protection Clause. 纽约州（原告）颁布的一项法规禁止专门用于展示广告的车辆，但允许商业车 辆展示与其业务有关的标志，只要商业车辆不是专门用于广告。铁路快运公司 （ Railway Express Agency, Inc. ( 被告）从事全国性的快递业务，在纽约市经营约 1900 辆卡车。该公司出售其卡车外侧的空间，用于主要与其业务无关的广告。 铁路公司在地方法院被判定违反了纽约法规，并被罚款。特别法庭维持了定罪， 上诉法院确认了这一判决。铁路快运公司向美国最高法院提出上诉，理由是该法 规与合法的国家目的没有合理关系，因此根据平等保护条款是违宪的。 Reasoning Court created 4-step test: 1. Is it a discrimination? (does the law treat similarly situated people differently?) 2. Against who? how suspect the classification/ discrimination? apply appropriate level of scrutiny 3. Why? dose the government have a good enough reason to be discriminating? No. unconstitutional; Yes, go to 4. 4. “Tailoring” Does the law sufficiently tailored toward achieving the governmental goal? No (mismatch). unconstitutional; Yes, constitutional Also, it is important for the court to see whether the purpose is pretextual? sometimes the purpose in reality is different from what is when created by the framers.

In this case, 1. Yes. 2. Against vehicles devoted solely to displaying advertisements 3. Legitimate purpose: to regulate the traffic congestion problem 4. “Tailoring”: Yes, rationally related. o Even though the statute is probably underinclusive ( 不能解决所有问题 ) , 但只 要 law 对 government’s purpose 有作用就可以 o Court will grant deference to discretion of New York local authorities that regulate certain type of advertisement in most pressing need o allow the state to solve each problem each time. ( 就算有其他问题更急迫，法院 也认为 State 有权自己裁量先解决什么问题 ) III. RATIONAL BASIS SCRUTINY Rational Basis Scrutiny: 1. Court will not go deep into the Status 2. proof of burden 在原告：原告必须证明 1) Government’s goal is not legitimate and, 2) Means are not rationally related to the goal.  New Orleans v. Dukes Rule of Law A law that does not affect a fundamental right or discriminate on the basis of race, religion, or alienage, is constitutional if it is rationally related to a legitimate state interest. Facts New Orleans (defendant) enacted an ordinance prohibiting all pushcart food vendors from operating within the French Quarter, but provided an exception for vendors who had been operating in the French Quarter for at least eight years. Dukes (plaintiff) did not qualify under the exception, and challenged the ordinance. 新奥尔良（被告）颁布了一项法令，禁止所有推车式食品供应商在法国区经营， 但对在法国区经营了至少 8 年的供应商提供了例外。 Dukes （原告）不符合该例 外规定，因此对该条例提出质疑。 1) Apply the same four-tier test above. 2) The burden is also very high for the plaintiffs and thus failed to prove it.

 New York City Transit Authority v. Beazer [overinclusive]  Rule : A state regulation that is over-inclusive because it regulates a general class of persons based on the conduct of particular members within that class does not violate the Equal Protection Clause of the Constitution if it is rationally related to a legitimate state purpose.  Facts The New York City Transit Authority (defendant) promulgated a policy that it would not hire or employ persons currently participating in one of New York City’s several methadone maintenance programs. About 40,000 persons received methadone treatments in New York, and treatments were primarily administered to treat the physical withdrawal symptoms of heroin addicts. Beazer (plaintiff) and three other persons brought suit in federal district court against the New York City Transit Authority in a class action on behalf of all persons who had been, or would in the future be, subject to discharge or rejection as employees of the Transit Authority because they participated in a methadone maintenance program. The district court ruled in favor of Beazer and found the employment policy unconstitutional. The decision was affirmed by the Court of Appeals for the Second Circuit, and the United States Supreme Court granted certiorari. 纽约市交通局（被告）颁布了一项政策，即不雇用或雇佣目前正在参加纽约 市几个美沙酮维持计划之一的人。在纽约约有 40,000 人接受美沙酮治疗，治 疗主要是为了治疗海洛因成瘾者的身体戒断症状。比泽（原告）和其他三人 在联邦地区法院对纽约市交通局提起集体诉讼，代表所有曾经或将来会因为 参加美沙酮维持计划而被交通局解雇或拒绝的人。地区法院作出了有利于 Beazer 的裁决，并认为就业政策是违宪的。该判决得到了第二巡回上诉法院 的确认，美国最高法院批准了诉讼请求。  Beazer’s argument: Transit Authority’s rule was unconstitutional because it was overbroad and potentially excluded from employment methadone users that are not recidivists and would successfully complete their programs.  Court: 1. the general rule employed by the Transit Authority serves general objectives of safety and efficiency. 2. The rule does not enact additional discriminatory provisions against a more defined suspect class of persons, rather, the rule discriminates against a general class of persons.  US Depart of Agriculture v. Moreno ( 少数适用 Rational Basis 但原告败诉的案 子 )  Rule of Law

A state regulation that arbitrarily creates two classes of persons and deprives one class of government benefits violates the Equal Protection Clause and Due Process Clause of the Fifth Amendment because it is based on a mere legislative preference for one class that is not rationally related to a legitimate state purpose. 一个州的法规任意创造了两类人，并剥夺了一类人的政府福利，这违反了第 五修正案的平等保护条款和正当程序条款，因为它仅仅是基于对一类人的立 法偏好，与合法的州目的没有合理的联系。  Facts In 1964, Congress passed the Food Stamp Act to govern and reform its food stamp program. Section 3(e) of the Act excluded from participation in the food stamp program any household containing an individual who was unrelated to any other member of the household. Moreno (plaintiff) lived with Sanchez, a person to whom she was not related, and Sanchez’s three children. Moreno met all income and other requirements for receiving food stamps, however, her benefits were denied under § 3(e) of the Food Stamp Act. Sanchez’s benefits were also denied despite otherwise qualifying. Moreno brought suit against the United States Department of Agriculture (USDA) (defendant) in federal district court seeking to enjoin enforcement of the act. The district court held that § 3(e) violated the Due Process Clause of the Fifth Amendment. The USDA appealed to the United States Supreme Court. 1964 年，国会通过了《食品券法》以管理和改革其食品券计划。该法第 3(e) 条规定，任何包含与家庭任何其他成员没有关系的个人的家庭不得参与食品 券计划。 莫雷诺（原告）与桑切斯（一个与她没有关系的人）以及桑切斯的 三个孩子住在一起。莫雷诺符合领取食品券的所有收入和其他要求，但是， 根据《食品券法》第 3(e) 节，她的福利被拒绝。桑切斯的福利也被拒绝了， 尽管他符合其他条件。莫雷诺在联邦地区法院对美国农业部（ USDA ）（被 告）提起诉讼，要求禁止执行该法案。地区法院认为，第 3(e) 节违反了第五 修正案的正当程序条款。美国农业部向美国最高法院提出上诉。  Reasoning It is unconstitutional because this classification is unrelated to the legitimate governmental interest ( apply rational basis review ) 1) Purpose 1 of the Congress: stimulate the agricultural economy by encouraging people to purchase farm surpluses. 1) Court: The governing of relationships within private homes bears no rational relation to this stated purpose. 1 ）国会的目的 1 ：通过鼓励人们购买农场剩余物来刺激农业经济。 1 ）法院。对私人住宅内关系的管理与这一既定目的没有合理关系。 2) Purpose 2 of the Congress: Congress primarily sought to exclude “hippies” and “hippie communes” from participating in the food stamp program.

2) However, this purpose is unconstitutional because the Equal Protection Clause prevents Congress from passing legislation targeting a particular, unpopular group. （非常重要，一定程度上导致 court struck down the statues ） 2 ）国会的目的 2 。国会主要是想把 " 嬉皮士 " 和 " 嬉皮士公社 " 排除在食品 券计划之外。 2 ）然而，这一目的是违宪的，因为平等保护条款阻止国会通过针对某个不 受欢迎的群体的立法。（非常重要，一定程度上导致法院推翻了这些法规）。 3) USDA: households composed of unrelated members are more likely to abuse the program, and thus could have passed legislation that is rationally related to the legitimate purpose of preventing fraud. 3) Court: The Act in question is not targeted at people identified as likely to “abuse the program,” but rather discriminates against an entire class of persons that are so desperately in need of aid IV. STRICT SCRUTINY  To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have “narrowly tailored” the law to achieve that interest.  The strict scrutiny test is generally used when in cases where fundamental rights or racial classifications are at issue. Facially discriminatory Law against racial minority Korematsu v. United States  Rule of Law State laws restricting the rights of persons based on race are subject to strict scrutiny and will only be upheld if they further a “pressing public necessity.” 基于种族限制人的权利的州法律受到严格审查，只有在促进 " 紧迫的公共需要 " 时才会得到支持。  Facts On May 9, 1942 under Civilian Restrictive Order No. 1, based on Executive Order 9066, Japanese-Americans were ordered to move to relocation camps in light of the United States’ involvement in World War II. Civilian Exclusion Order No. 34 specifically excluded Japanese Americans from remaining in San Leandro, California, a region designated as a “Military Area.” Korematsu (defendant) was an American citizen of Japanese descent who was convicted by the United States Government

(plaintiff), in federal district court for violating Civilian Exclusion Order No. 34. No questions were raised as to Korematsu’s loyalty to the United States. The Ninth Circuit Court of Appeals affirmed the conviction, and the United States Supreme Court granted certiorari. 1942 年 5 月 9 日，根据第 1 号平民限制令，基于第 9066 号行政命令，鉴于美国 参与第二次世界大战，日裔美国人被命令迁往安置营。第 34 号平民驱逐令明确 规定，日裔美国人不得留在加利福尼亚州的圣莱安德罗，该地区被指定为 " 军 事区 " 。 Korematsu （被告）是一名日裔美国公民，在联邦地区法院被美国政府（原 告）定罪，罪名是违反第 34 号平民排外令。没有人提出 Korematsu 是否忠于美 国的问题。第九巡回上诉法院确认了定罪，而美国最高法院批准了诉讼请求。  Reasoning  1. Discrimination? Yes, facially discriminatory Law.  2. Against who? Related to race-“highly suspect group”-so apply strict scrutiny”  3. Compelling reason? The pressing public necessity: the military purpose to avoid espionage and sabotage  4. Narrowly tailored? It was such an emergency (war time) so there was no time to distinguish the loyalty Japanese from disloyalty ones. Loving v. Virginia  Rule of Law A state may not restrict marriages between persons solely on the basis of race under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. 根据第十四修正案的平等保护和正当程序条款，一个州不得仅以种族为由限制人 们之间的婚姻。  Facts In June 1958, Mildred Jeter, an African American woman, and Richard Loving, a Caucasian man (defendants), were married in the District of Columbia pursuant to its laws. They later moved to Virginia (plaintiff) and resided in Caroline County. The laws of Virginia, however, banned interracial marriages within the state. In October 1958, the Lovings were indicted for violating the Virginia law. They plead guilty and were sentenced to one year in jail, but the trial court suspended the sentence for twenty-five years on the condition that the Lovings would leave Virginia and not return to the state together for twenty-five years. The Lovings then moved to the District of Columbia, but filed suit in state trial court to vacate the judgment against them on the grounds that it violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Supreme Court of Appeals affirmed the constitutionality of the Virginia statutes and upheld the convictions. The Lovings appealed to the United States Supreme Court. 1958 年 6 月，非裔美国妇女 Mildred Jeter 和白种人男子 Richard Loving （被告） 在哥伦比亚特区根据其法律结婚。他们后来搬到了弗吉尼亚州（原告），居住

在卡罗琳县。然而，弗吉尼亚州的法律禁止在该州内进行异族通婚。 1958 年 10 月，洛芬夫妇因违反弗吉尼亚州的法律而被起诉。他们认罪并被判处一年监禁， 但审判法庭将这一判决缓期 25 年执行，条件是 Lovings 夫妇离开弗吉尼亚州并 在 25 年内不返回该州。洛芬夫妇随后搬到了哥伦比亚特区，但在州审判法庭提 起诉讼，要求撤销对他们的判决，理由是判决违反了第十四修正案的平等保护和 正当程序条款。最高上诉法院确认了弗吉尼亚州法规的合宪性，并维持了对他们 的定罪。洛芬夫妇向美国最高法院提出上诉。  Reasoning  Virginia’s argument: 1) it furthers a legitimate state purpose of preserving racial integrity and preserving racial pride. 2) the regulation of marriage has traditionally been left to the states under the Tenth Amendment. 3) the meaning of the Equal Protection Clause suggested that it is only obligated to apply its laws equally among different groups of people. Thus, it argues that it is complying with its obligation by preventing interracial marriage for all people, not just Caucasians.  Court: 1) Virginia’s statute is motivated solely to restrict marriage based on race , and by precedent, such laws have been found to be a threat to equality. ( 法 院 认 为 Virginia 并没有 Compelling reason ，且 Virginia 说的 interest 并不是他们真实 所想，因为 Virginia 只禁止黑人和白人通婚，并不禁止其他种族之间的通婚 ) 2) At the very least such race-based classifications are subject to strict scrutiny and cannot be upheld unless they are shown to accomplish a permissible state objective independent of the racial discrimination. Facially nonracial classification that may disadvantage racial minority ： Washington v. Davis  Rule of Law A state-sponsored racial classification violates the equal protection provisions in the Fifth Amendment’s Due Process Clause only if 1. it is shown to have both a disproportionate impact on a particular race and 2. is motivated by invidious racial discrimination. 只有当国家支持的种族分类被证明对某一特定种族有不成比例的影响，并且 是出于令人反感的种族歧视目的时，才违反了第五修正案的正当程序条款中 的平等保护条款。  Facts

Davis (plaintiff) was an African American man who, along with another African American man, applied for admission to the Washington, D.C. police department. Both men were turned down and brought suit in federal district court against Washington (defendant), the mayor of Washington, D.C., alleging that the police department used racially discriminatory hiring practices by administering a verbal skills test (Test 21) disproportionately failed by African Americans. The district court held for Washington, but the court of appeals reversed on the grounds that Test 21 was unconstitutional because of its disproportionate impact on African Americans, regardless of whether the police department’s motive was to use the test to discriminate against a particular race. The United States Supreme Court granted certiorari. 戴维斯（原告）是一名非裔美国人，他和另一名非裔美国人一起申请加入华 盛顿特区警察部门。两人都被拒之门外，并在联邦地区法院对华盛顿特区市 长华盛顿（被告）提起诉讼，指称警察部门在招聘时采用了种族歧视的做法， 对非裔美国人进行了不成比例的口头技能测试（测试 21 ）。地区法院支持华 盛顿，但上诉法院推翻了这一判决，理由是 21 号测试因其对非裔美国人的 影响过大而违宪，而不管警察部门的动机是否是利用该测试来歧视某一特定 种族。美国最高法院批准了诉讼请求。  Issue : Whether the test used by the Washington, D.C. police department to screen new employees violates the Fifth Amendment Due Process Clause.  Holding and Reasoning (White, J.)  The disproportionate impact on a particular racial group  The purpose is discriminatory or not o How to prove the purpose?-based on all the surrounding factual texts, including the fact that one law burdens one race more heavily than another. (but not in this case) o Note: Compare this case with Yick Wo v. Hopkins (p752): what is the neutral statutes and what is the statute with discriminatory purpose?  Only if the law has both disproportionate impact and discriminatory purpose can it apply strict scrutiny. Note: Q: What is the purpose of Equal protection clause? Equality of opportunity or result? • Equity of opportunity – intentional government discrimination should be banned • Equity of result – should not include intention (discriminatory purpose)

Palmer v. Thompson Rule of Law A state regulation based on racial classifications is unconstitutional under the Equal Protection Clause if the plaintiff proves both a discriminatory purpose and a discriminatory impact of the regulation. 根据平等保护条款，如果原告能证明该法规的歧视性目的和歧视性影响，那么基 于种族分类的州级法规是违宪的。 Facts In 1962, the City of Jackson, Mississippi operated five public parks, swimming pools, and other public facilities on a racially segregated basis. Four of the swimming pools were designated for use by Caucasians only. The fifth pool was designated for use by African Americans only. Several African American plaintiffs challenged the segregation, alleging that it violated the Thirteenth and Fourteenth Amendments to the United States Constitution. The district court hearing the case held the segregation unconstitutional, but refused to issue an injunction to stop the practice. The court of appeals affirmed, and the United States Supreme Court denied certiorari. The City then proceeded to desegregate these public facilities, but declined to operate its swimming pools on a desegregated basis. The City closed four of its pools. Palmer (plaintiff), an African American resident of Jackson, and several other African American residents brought suit against Thompson (defendant), a City of Jackson official, in federal district court challenging the closing of the pools and seeking to convince the city to reopen them on a non-segregated basis. The district court denied this request, and the court of appeals affirmed. The United States Supreme Court granted certiorari. 1962 年，密西西比州杰克逊市在种族隔离的基础上经营五个公共公园、游泳池 和其他公共设施。其中四个游泳池被指定只供白种人使用。第五个游泳池只指定 给非裔美国人使用。几位非裔美国人原告对这种隔离制度提出质疑，声称它违反 了美国宪法第十三和第十四修正案。审理此案的地区法院认为这种隔离是违宪的， 但拒绝发布禁止令来停止这种做法。上诉法院维持原判，而美国最高法院拒绝了 诉讼请求。该市随后着手消除这些公共设施的种族隔离，但拒绝在消除种族隔 离的基础上经营其游泳池。该市关闭了其中的四个游泳池。杰克逊市的非裔居民 帕尔默（原告）和其他几位非裔居民在联邦地区法院对杰克逊市的一位官员汤普 森（被告）提起诉讼，对关闭游泳池提出质疑，并试图说服该市在非隔离的基础 上重新开放。地区法院拒绝了这一请求，上诉法院维持原判。美国最高法院批准 了诉讼请求。 Reasoning  May be have discriminatory purpose. But purpose is hard to prove and purpose only is not enough.  Plaintiff failed to show that the pool closing has a discriminatory impact on African American residents as a group.

Yick Wo v. Hopkins  Rule of Law A facially neutral law that is applied in a discriminatory manner on the basis of race or nationality violates the Equal Protection Clause of the Fourteenth Amendment.  Facts The petitioner was convicted of violating a local ordinance prohibiting operation of a laundry not located in a brick or stone building without the consent of the board of supervisors. He alleged that he and more than two hundred other Chinese nationals had petitioned the board of supervisors for consent, but that all of their petitions were denied, whereas all but one of the petitions filed by non-Chinese were granted. 请愿人被判定违反了当地的一项条例，该条例禁止未经监事会同意在砖或石 建筑内经营洗衣店。他声称，他和其他两百多名中国公民曾向监理会申请同 意，但他们的申请都被拒绝了，而除了一个非中国人提出的申请外，其他申 请都被批准了。  Reasoning : The Court unanimously reversed Yick Wo’s conviction. It held that the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of [equal] protection of the laws. 法院一致推翻了对 Yick Wo 的定罪。法院认为，所显示的事实证明，政府的 管理是专门针对某一类人的，从而证明并要求得出这样的结论：无论所通过 的条例的意图是什么，负责管理这些条例的公共当局，从而代表国家本身， 是以一种不平等和压迫的心态来实施的，相当于国家实际拒绝了法律的 [ 平等 ] 保护。 Qs: Suppose the statute banned all people from running such business? Palmer v. Thompson p755-756  purpose alone may not be enough to justify the discrimination claim; both the purpose and adverse effect matter. —connection with the Brown case: is it necessary to prove that the discrimination has harmed the children psychologically (the impact factor)? Conclusion : facially neutral statute is subject to enhanced review only when it has both a discriminatory purpose and a disproportionate impact.

V. Contemporary application of strict scrutiny (start in p769, p779) Background: Affirmative Action  California v. Bakke (quota case)  Rule of Law Under the Equal Protection Clause of the Fourteenth Amendment, a public university may not discriminate on the basis of race in its admissions policies, even if doing so benefits members of minority races. 根据第十四修正案的平等保护条款，公立大学不得在其招生政策中进行基于 种族的歧视，即使这样做有利于少数种族成员。  Facts The University of California, Davis Medical School practiced a policy whereby it reserved 16 out of 100 places in its entering class for members of racial minority groups. A special committee was appointed to administer this admissions policy. Allan Bakke (plaintiff) brought suit against the Regents of the University of California (defendant) on the ground that this policy was unconstitutional. Bakke challenged the policy in California state court after his application for admission was rejected even though applicants were admitted under this special policy with grade point averages, MCAT scores, and benchmark scores that were significantly lower than Bakke’s averages and scores. The Supreme Court of California held the admissions policy was unconstitutional and directed Bakke to be admitted to the medical school. The United States Supreme Court granted certiorari. 加州大学戴维斯分校医学院实行了一项政策，即在 100 个入学班中为少数民 族成员保留 16 个名额。一个特别委员会被任命来管理这项招生政策。 Allan Bakke （原告）对加州大学执委会（被告）提起诉讼，理由是这项政策违反 宪法。在他的入学申请被拒绝后， Bakke 在加州州法院对该政策提出了质疑， 尽管在该特别政策下被录取的申请人的平均成绩、 MCAT 分数和基准分数都 明显低于 Bakke 的平均成绩和分数。加州最高法院认为该招生政策是违宪的， 并指示 Bakke 被医学院录取。美国最高法院批准了诉讼请求。  Reasoning  All racial and ethnic classification s are inherently suspect and must be viewed with strict scrutiny.  Goal (increasing diversity) is compelling. The fourth goal of increasing diversity is a permissible purpose.  Tailoring? – Not narrowly tailored.

but the particular medical school problem falls short because it fails to consider any aspect of “diversity” other than race in its admissions policies.  Concurrence: Some justices applied “intermediate” level of scrutiny: to justify such a classification an important and articulated purpose for its use must be shown. o To pass intermediate scrutiny, the challenged law must: 1) further an important government interest (diversity in student body) 2) and must do so by means that are substantially related to that interest.  Significancy First discussed the constitutionality of a program designed to increase minority enrollment  Grutter v. Bollinger Rule of Law Consideration of race as a factor in admissions by a state law school does not violate the Fourteenth Amendment because supporting student body diversity is a compelling state interest; however, the school must demonstrate it previously made a serious, good faith consideration of workable, race-neutral alternatives to achieve the sought-after racial diversity. 一所州立法学院在招生中考虑种族因素并不违反第十四修正案，因为支持学生群 体的多样性是一项引人注目的国家利益；但是，该校必须证明它之前认真、真诚 地考虑过可行的、种族中立的替代方案以实现所寻求的种族多样性。 Facts The University of Michigan Law School followed an unofficial policy that sought to achieve student body diversity by giving substantial weight to the race of each applicant in making admissions decisions, in addition to its consideration of other academic and non-academic variables. Barbara Grutter (plaintiff) was a Caucasian Michigan resident who applied to the Law School with a 3.8 grade point average and 161 LSAT score. The Law School rejected her application, and she filed suit in federal district court against Bollinger, the university president, and other university officials (defendants) alleging her denial of admission was a violation of the Equal Protection Clause of the Fourteenth Amendment. The district court held that the Law School’s use of race in its admissions policy was unlawful, but the court of appeals reversed. The United States Supreme Court granted certiorari. 密歇根大学法学院遵循一项非官方政策，除了考虑其他学术和非学术变量外， 还在做出录取决定时对每个申请人的种族给予很大的重视，以实现学生群体的 多样性。芭芭拉 - 格拉特（原告）是一名密歇根州的高加索居民，她以 3.8 的平均 成绩和 161 的 LSAT 成绩申请法学院。法学院拒绝了她的申请，她在联邦地区法

院对博林格、大学校长和其他大学官员（被告）提起诉讼，声称拒绝录取她违反 了第十四修正案的平等保护条款。地区法院认为，法学院在其招生政策中使用种 族是非法的，但上诉法院推翻了这一观点。美国最高法院批准了诉讼请求。 Reasoning 1) discrimination o facial discrimination 2) Who is the law against? o White student- 是否适用 strict scrutiny, 法院法官有不同意见 （ Majority opinion strict scrutiny ） 3) Why? can the school show compelling purpose? o student body diversity-compelling accepted by the Court 4) Tailored? Court: narrowly tailored o not a quota system as in Bakke o more specific ways to evaluate every single person o 学校已经穷尽了其他方法来达到“ diversity ”的目标 . School states it has exhausted other alternatives to achieve diversity. School provided reasons that alternative methods of achieving the Law School’s purpose risk sacrificing both academic excellence and other types of diversity in the school. Moreover: court says they will cease the racial consideration after a period of time (when the discrimination in history is remedied) VI. Discrimination based on gender, sexual orientation, non-citizenship, disability, and age  Early stages Bradwell v. Illinois, etc. At first, the Court refused to apply the 14th Amendment to female for section 2of 14th explicitly protect vote right of male.  The road to intermediate scrutiny  Reed v. Reed p852  Fact : A law of the state of Idaho imposed a mandatory preference for the selection of males over females in the appointment of an administrator of an intestate estate.

爱达荷州的一项法律规定，在任命无遗嘱遗产的管理人时，必须优先选择男 性而不是女性。里德（原告）因其性别而未被选中担任遗产管理人。里德对 法院任命男性管理人的做法提出上诉。州最高法院维持了基于性别的任命。 里德向美国最高法院提出复审请求。  Rule: When state law imposes differential treatment among different classes of individuals, the classification must bear a substantial relation to the purpose of the legislation.  Reasoning 1. Goal? – Legitimate goal 2. Tailored? – Not substantially related to the goal State government : The state Supreme Court concluded that the law at issue promoted the efficient administration of intestate estates by eliminating one point of potential controversy.  Court: While the goal of promoting efficient probate administration may be legitimate, eliminating a class of participants exclusively on the basis of gender is inconsistent with the mandates of the Equal Protection Clause.  Frontiero v. Richardson p853  Rule of Law Under the Due Process Clause, governmental classifications based on sex are inherently suspect and must be subjected to strict judicial scrutiny . 根据《正当程序条款》，政府基于性别的分类本身就是可疑的，必须接受严 格的司法审查。  Facts Congress passed a law granting members of the armed services with dependents an increased housing allowance, as well as medical and dental benefits for their dependents. Under the law, a serviceman was permitted to claim his wife as a dependent, regardless of whether the wife was actually dependent. In contrast, a servicewoman was only permitted to claim her husband as a dependent upon a showing that her husband was actually dependent on the servicewoman for more than half of his support. Sharron Frontiero (plaintiff), a member of the United States Air Force, tried to claim her husband (plaintiff) as a dependent. Frontiero’s application was denied, because she did not make the required showing of dependence. Frontiero alleged that the law violated the procedural and substantive requirements of the Due Process Clause of the Fifth Amendment by imposing additional procedural burdens on female service members and extending dependency benefits to non-dependent spouses of male service members. Frontiero brought suit in federal district court against the Secretary of