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Constitutional Law I. FRAMEWORK FOR ANALYSIS A. (1) Is there an affirmative authority in the Constitution for the actions taken?
B. (2) Are there any applicable limits in the Constitution for the actions at issue?
II. Tools for Constitutional Interpretation (See Printz - pg. 693) A. (1) Constitutional Text B. (2) History C. (3) Structure of the Constitution D. (4) Prior Jurisprudence of the Court III. Same-Sex Marriage Cases A. Perry i. Standing a) "Whether petitioners have standing under Article III, SS 2 of the Constitution in this case."
? LOOK AR BOWLING v. SHARPE ii. On the Merits a) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from retracting state constitutional law that had allowed same-sex couples to marry. B. Windsor i. Article III Questions a) (1) First, "[w]hether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case."
? Article III of the United States Constitution requires that any appeal present a justiciable "case" or "controversy." See Art. III, SS 2.
? "To enforce [the 'cases or controversies'] limitation, we demand that litigants demonstrate a 'personal stake' in the suit. The party invoking the Court's authority has such a stake when three conditions are satisfied: The petitioner must show that he has 'suffered an injury in fact' that is caused by 'the conduct complained of' and that 'will be redressed by a favorable decision.' And the opposing party also must have an ongoing interest in the dispute, so that the case features 'that concrete adverseness which sharpens the presentation of issues.' To ensure a case remains 'fit for federal-court adjudication,' the parties must have the necessary stake not only at the outset of litigation, but throughout its course. Camreta v. Greene
? With respect to a party's standing to appeal, the petitioner must merely show that the "injury in fact" suffered by the petitioner was caused by the judgement of the court below.
? 28 U.S.C. SS 2414 provides that payment of a final judgment against the United States rendered by a federal district court "shall be made on settlements by the Secretary of the Treasury," and that "[w]henever the Attorney General determines that no appeal shall be taken from a judgment or that no further review will be sought from a decision affirming the same, he shall so certify and the judgment shall be deemed final." Thus, the U.S.'s own appeal, and subsequent petition for certiorari, prevents the judgment from becoming final until the case is resolved.
? Therefore, there is still a case or controversy to resolve.


Windsor shares important characteristics with Lovett and Chadha. As in Chadha, the United States and the plaintiff agree that the injunction in the plaintiff's favor (here, for reimbursement of estate taxes paid) is the proper disposition. And the Court's resolution of the question of DOMA's constitutionality will determine whether the U.S. actually makes such a payment: If the Court affirms the court of appeals, the U.S. will pay Windsor; but if it reverses (i.e., holds that DOMA Section 3 is constitutional), the U.S. will not reimburse her. If that is sufficient for Article III jurisdiction even before there are any adverse parties in the case requesting the opposite outcome (as the Court held was the case in the court of appeals in Chadha), that should settle the "case or controversy" question here.
? And if, in the case of the statutory question in Chadha, the government's 'status as an aggrieved party . . . [wa]s not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional,' 462 U.S. at 931, it is not obvious why the conclusion would be any different for purposes of Article III.
? In I.N.S. v. Chadha, this Court determined that the government's "status as an aggrieved party under [8 U.S.C.] SS 1252 [wa]s not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional." Although Chadha involved whether the party was aggrieved for purposes of the statute (repealed in 1988), we see no principled reason why the conclusion would be any different for purposes of Article III. Accordingly, we find that Chadha adds further support to our conclusion that the Government does indeed have standing to bring this appeal. b) (2) Second, "whether the Bipartisan Legal Advisory Group of the United States House of Representatives [BLAG] has Article III standing in this case."
? Since we rule today that there is a case or controversy to resolve and that the United States does have standing to bring this appeal, the Court need not address the question of whether the Bipartisan Legal Advisory Group of the United States House of Representatives [BLAG] has Article III standing in this case. Therefore, we turn to the merits. ii. On the Merits a) The Fifth Amendment of the United States Constitution states that "[n]o person shall
. . . be deprived of life, liberty, or property, without due process of law . . . ." b) Issue: Whether Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional under the Due Process Clause of the Fifth Amendment.
? DOMA Section 3, which provides that "[i]n determining the meaning of any Act of Congress, . . . the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." c) First Question to ask is whether review of DOMA requires heightened scrutiny because it discriminates based upon sexual orientation
? This Court has employed certain factors in deciding whether a new classification qualifies as a quasi-suspect class. These factors are (1)whether the class has been historically "subjected to discrimination," Bowen v. Gilliard, (2) whether the class has a defining characteristic that "frequently bears [a] relation to ability to perform or contribute to society," City of Cleburne, Tex. v. Cleburne Living Center, (3) whether the class exhibits "obvious, immutable, or distinguishing

characteristics that define them as a discrete group," Bowen, and (4)whether the class is "a minority or politically powerless." Id.
? Immutability and lack of political power are not strictly necessary factors to identify a suspect class. See Cleburne. Nevertheless, immutability and political power are indicative of the issue.
? To withstand intermediate scrutiny, a classification must be "substantially related to an important government interest." Clark v. Jeter d) If heightened scrutiny is not warranted, we review the statute under rational basis review.
? Under rational basis review, legislation will upheld the "if it bears a rational relationship to a legitimate governmental objective." Thomas v. Sullivan
? Of course, "'a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate government interest.'" Romer v. Evans (quoting Dep't. of Agric. v. Moreno)
? So while rational basis review is indulgent and respectful, it is not meant to be "toothless." Schweiker v. Wilson
? Rational basis review places the burden of persuasion on the party challenging a law, who must disprove "'every conceivable basis which might support it.'" Heller v. Doe (quoting Lehnhausen v. Lake Shore Auto Parts Co.)
? Several courts have read the Supreme Court's recent cases in this area to suggest that rational basis review should be more demanding when there are "historic patterns of disadvantage suffered by the group adversely affected by the statute." See Massachusetts v. U.S. Dep't of HHS; Able v. U.S. Proceeding along those lines, the district court in this case and the First Circuit in Massachusetts both adopted more exacting rational basis review for DOMA.
? This is sometimes referred to as "rational basis plus or intermediate scrutiny minus." e) Rational Bases put forth by BLAG
? (1) Sovereignty and Caution (BLAG Reply Brief at 3)(2) Uniformity (BLAG Reply Brief at 6)(3) Preserving Past Congressional Judgments (BLAG Reply Brief at 9)(4) Providing Definitional Clarity (BLAG Reply Brief at 9)(5) Fiscal Prudence (BLAG Reply Brief at 9)(6) Procreative potential of oppositesex relationships (BLAG Reply Brief at 12)
? "There is no dispute that, unlike oppositesex relationships, samesex relationships do not have a propensity to produce children without advance planning, Windsor Br. 4344, or that marriage creates a beneficial social structure for responsible procreation and

childrearing." (BLAG Reply Brief at 13)BUT, could this possibly be a rational basis for all of the effects of the statute?
??? ?E.g., one effect of the statute is to deprive the surviving member of a military couple formal notification of his or her spouse's death in the line of duty, and blocks surviving spouse's access to veteran's benefits. /
(Respondent's Brief at 6-7). IV.Historical Background to the Constitution A. [SEE pp. 19-26]
V. The Bank Controversy - Implied and Inherent Powers A. James Madison's View (pg. 28) i. Madison's Rules of Interpretation: a) (1) An interpretation that destroys the very characteristic of the Government cannot be just. b) (2) Where the meaning is clear, the consequences, whatever they may be, are to be admitted - where doubtful, it is fairly triable by its consequences. c) (3) In controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide. d) (4) Contemporary and concurrent expositions are a reasonable evidence of the meaning of the parties. e) (5) In admitting or rejecting a constructive authority, not only the degree of its incidentality to an express authority is to be regarded, but the degree of its importance also; since on this will depend the probability or improbability of its being left to construction. ii. Arguments Against the Bank: a) (1) Slippery slope argument
? If you admit the existence of this power, the logic and reasoning leads to the conclusion that there is no power that is precluded.
? "The essential characteristic of the Government, as composed of limited and enumerated powers, would be destroyed, if instead of direct and incidental means, any means could be used, which, in the language of the preamble to the bill, 'might be conceived to be conducive to the successful conducting of the finances, or might be conceived to tend to give facility to the obtaining of loans.'" (pg. 30)
? "If implications, thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of the political economy." (pg. 30) b) (2) Everyone understood the federal government to be one of limited and enumerated powers.
? There was reliance on that understanding that the federal government was to be

one of limited and enumerated powers. c) (3) If the necessary and proper clause is to be read so broadly, why would all the other powers have been enumerated?
? Superfluous?"The clause is in fact merely declaratory of what would have resulted by unavoidable implication, as the appropriate, and, as it were, technical means of executing those powers." d) (4) The incorporation of a bank is such a large and important power that it would not have been missed or forgotten by the framers.
? This is too big of deal to be implied.?

This is such a major power, it needs to be express; an amendment is needed.

This would not have escaped the framers' attention if they intended it to be a power. iii. It appeared on the whole, Madison concluded, that the power exercised by the bill (1) was condemned by the silence of the constitution; (2) was condemned by the rule of interpretation arising out of the constitution; (3) was condemned by its tendency to destroy the main characteristic of the constitution; (4) was condemned by the expositions of the friends of the constitution; (5) was condemned by the apparent intention of the parties which ratified the constitution; (6) was condemned by the explanatory amendments proposed by Congress themselves to the Constitution; and that Madison hoped the bill would receive its final condemnation by the vote of the house. B. Attorney General Edmund Randolph's View (pg. 32) i. Randolph makes a similar slippery slope argument as Madison. a) "To be implied in the nature of the federal government would beget a doctrine so indefinite as to grasp every power." ii. However, in contrast to Madison, Randolph felt that the "and proper" portion of the necessary and proper clause did not enlarge the powers of the Congress but rather restricted them. C. Thomas Jefferson's View (pg. 33) i. Thomas Jefferson also employed the slippery slope argument. a) "To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition." ii. Also, he discusses the definition of "necessary." a) "[T]he Constitution allows only the means which are 'necessary,' not those which are merely 'convenient' for effecting the enumerated powers." b) If such a latitude of meaning is adopted, that necessary and proper clause "would swallow up all the delegated powers, and reduce the whole to one power . . . ." D. Alexander Hamilton's View (pg. 34) i. "[T]his general principle is inherent in the very definition of Government and essential

to every step of the progress to be made by that of the United States; namely - that every power vested in a Government is in its nature sovereign, and it includes by force of the term, a right to employ all the means requisite, and fairly applicable to the attainment of the ends of such power; and which are not precluded by restrictions & exemptions specified in the constitution; or not immoral, or not contrary to the essential ends of political society. a) The Constitution provides various ends. See Art. I, SS 8. b) The national government is able to use the most appropriate means to reach those ends. ii. You cannot look at the situation in the abstract. a) It is an incidence of sovereignty to be able to erect a corporation iii. The incorporation of a bank is merely a means; it is not an end in and of itself. a) You cannot just incorporate any corporation. b) Limiting Principle: Whether the ends are legitimate and enumerated in the Constitution. iv. Definition of "necessary" a) Often times "necessary" means "no more than needful, requisite, incidental, useful, or conducive to. b) Moreover, the practice of the government is already contrary to the rule of construction advocated by Jefferson, et al.
? "Of this the act concerning light houses, beacons, buoys & public piers, is a decisive example. This doubtless must be referred to the power of regulating trade, and it is fairly relative to it. But it cannot be affirmed, that the exercise of that power, in this instance, was strictly necessary; or that the power itself would be nugatory without that of regulating establishments of this nature." (pp. 35-36) c) The restrictive interpretation of "necessary" is also contrary to the maxim of construction that "the powers contained in a constitution of government, especially those which concern the general administration of the affairs of the country, its finances, trade, defence & ought to be construed liberally, in advancement of the public good." (pg. 36) v. A Criterion of What is Constitutional - TEST a) (1) If the end be clearly comprehended within any of the specified powers, and b) (2) If the measure have an obvious relation to that end, and c) (3) The measure is not forbidden by any particular provision of the Constitution d) The measure may safely be deemed to come within the compass of the national authority. vi. Hamilton applies the above test and finds that the incorporation of the bank is related to (1) collecting taxes, (2) borrowing money, and (3) regulating interstate commerce. E. The Second Bank i. The First Bank of the United Bank Bill was passed by both houses and signed by the President.

ii. When the 20-year charter expired in 1811, the Congress refused to renew. iii. Originally, when it was passed the first time, Madison vetoed the Bill. iv. In 1816, the Second Bank Bill was ultimately signed by President Madison. F. M'Culloch v. Maryland - Part I (pp. 38-62) i. Issue: Whether the Congress has the power to incorporate a bank. a) NOTE: The necessary and proper clause is not even mentioned in the first 21 paragraphs. ii. The Court starts with a presumption in favor of constitutionality. a) "It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognised by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation." b) "The power now contested was exercised by the first congress elected under the present constitution." M'Culloch v. Maryland (pg. 39) c) "The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first, in the fair and open field of debate, and afterwards, in the executive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law." M'Culloch v. Maryland (pg. 39) d) "The original act was permitted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the government, convinced those who were most prejudiced against the measure of its necessity, and induced the passage of the present law." M'Culloch v. Maryland (pg. 39) e) "It would require no ordinary share of intrepidity, to assert that a measure adopted under these circumstances, was a bold and plain usurpation, to which the constitution gave no countenance. These observations belong to the cause; but they are not made under the impression, that, were the question entirely new, the law would be found irreconcilable with the constitution." M'Culloch v. Maryland (pg. 39) iii. Implied Powers a) [An "implied" power is one linked to the textually assigned powers and serve as a means to the great ends spelled out in the text. - pg. 62]
? M'Culloch is the canonical example of the Court's willingness to discern implied powers of Congress beyond those specified in the text. b) "The government of the Union . . . is, emphatically and truly, a government of the people. In form, and in substance, it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." M'Culloch v. Maryland (pg. 42)

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