Understanding Constitutional Law

Understanding Constitutional Law

Fourth Edition

2015 Supplement

LexisNexis Law School Publishing Advisory Board

Paul Caron

Professor of Law Pepperdine University School of Law

Bridgette Carr

Clinical Professor of Law University of Michigan Law School

Steven I. Friedland

Professor of Law and Senior Scholar Elon University School of Law

Carole Goldberg

Jonathan D. Varat Distinguished Professor of Law UCLA School of Law

Oliver Goodenough

Professor of Law Vermont Law School

John Sprankling

Distinguished Professor of Law McGeorge School of Law

Understanding Constitutional Law

Fourth Edition 2015 Supplement

John B. Attanasio

Judge William Hawley Atwell Chair of Constitutional Law Southern Methodist University Dedman School of Law

Joel K. Goldstein

Vincent C. Immel Professor of Law Saint Louis University School of Law

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Preface

This 2015 Supplement focuses on significant decisions of the most recent U. S. Supreme Court terms. Some cases may be useful in multiple parts of a course.

In editing cases, we have at times deleted footnotes, case citations, and statutory references without so indicating.

The Supreme Court's monumental decision in National Federation of Independent Business v. Sebelius, which considered challenges to the constitutionality of the Affordable Care Act, touched on judicial behavior generally, as well as a range of issues relating to Congress's powers under the Commerce, Spending, Taxing and Necessary and Proper Clauses. Rather than divide the discussion accordingly, we are presenting a single essay discussing the decision. At various places, we have provided references to sections of the 4th Edition of UNDERSTANDING CONSTITUTIONAL LAW which will help readers consider it in the context of the topical discussions there.

Acknowledgements

We pay tribute to the late Bernard Schwartz and Norman Redlich. Bernard co-authored the first edition of UNDERSTANDING CONSTITUTIONAL LAW and Norman co-authored the first three editions. We are grateful to them for their contributions to those editions, for the inspiration they provided and for the opportunity to have been associated with them.

A number of people helped us produce this 2015 Supplement to UNDERSTANDING CONSTITUTIONAL LAW. We would like to thank Kathleen Spartana for her administrative and editing work. Since the Fourth Edition was published, we have benefited from the work of research assistants Mark Anderson, Paul Brusati, Alex Davis, Grant Ford, Eric Hoffmann, Sarah Honeycutt, Seth Jasoviak, Bryan McKown, Phong Tran, and Sam Wallach. We also thank Stephanie Haley, Brenda Aylesworth and Tina Brosseau for their invaluable assistance in producing this 2015 Supplement. As always, we appreciate the institutional support of the Dedman School of Law at Southern Methodist University and of Saint Louis University School of Law including through the latter's summer research program. Finally, we are grateful to Pali Chheda of LexisNexis Mathew Bender for her skillful editing.

Joel Goldstein is primarily responsible for the first seven chapters of this 2015 Supplement. John Attanasio prepared chapters 8 to 17 of this Supplement.

John Attanasio Joel K. Goldstein

August, 2015

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Table of Contents

UNDERSTANDING THE HEALTH CARE DECISION

1. Introduction 2. Commerce Clause 3. Necessary and Proper Clause 4. Taxing Power 5. Spending Power 6. Conclusion

CHAPTER 1 THE CONSTITUTION AND CONSTITUTIONAL ARGUMENT

? 1.05 Constitutional Argument [3] Ongoing Practice

CHAPTER 2 THE COURTS AND JUDICIAL REVIEW

? 2.11 Non-Article III Adjudication

? 2.12 Cases and Controversies [4] Standing [a] Constitutional Requirements [g] Standing on Appeal [7] Political Question

CHAPTER 3 CONGRESSIONAL POWER

? 3.02 Implied Powers

? 3.04 Taxing Power

? 3.05 Spending Power

? 3.07 Citizenship [3] Power to Regulate Immigration and Alienage

? 3.08 Treaty Power

? 3.10 Congressional Enforcement

CHAPTER 4 COMMERCE CLAUSE

? 4.09 Some Concluding Observations about the Commerce Clause

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CHAPTER 5 THE FEDERAL SYSTEM ? 5.02 Reserved Powers [2] The Rise and Fall and Rise of the Tenth Amendment

CHAPTER 6 COMMERCE AND THE STATES: THE DORMANT COMMERCE CLAUSE

? 6.04 Discriminatory Laws

CHAPTER 7 EXECUTIVE POWER ? 7.02 Theories of Presidential Power [6] Jackson's Categories and Inherent Power Limitations ? 7.04 Administrative Role [1] Appointing Power ? 7.06 Foreign Affairs [2] Curtiss-Wright [3] Power of Recognition [4] Steel Seizure Case

CHAPTER 8 LIBERTY, PROPERTY, AND DUE PROCESS, TAKING AND CONTRACT CLAUSES

? 8.05 Regulation of Business and Other Property Interests [3] Government Takings of Property Requiring Just Compensation [b] Physical versus Regulatory Takings (ii) Takings as a Government Condition for Granting a Permit

CHAPTER 9 RACIAL EQUALITY ? 9.02 Other Forms of Racial Discrimination [4] Voting

CHAPTER 11 AFFIRMATIVE ACTION ? 11.01 Education

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CHAPTER 12 EQUAL PROTECTION FOR OTHER GROUPS AND INTERESTS

? 12.01 Discrete and Insular Minorities [2] Illegitimate Children [5] Sexual Orientation

? 12.03 Equality in the Political Process [2] Other Barriers to Political Participation: Apportionment, Ballot Access for Minority Parties, Gerrymandering

CHAPTER 13 POLITICAL SPEECH AND ASSOCIATION

?13.05 Association, Political Parties, and the Electoral Process [2] Judicial Elections

? 13.07 Free Speech Problems of Government Employees [3] Employee's Rights to Criticize Government (a) Free Speech

CHAPTER 14 GOVERNMENT AND THE MEDIA: PRINT AND ELECTRONIC

? 14.08 Defamation and Privacy [1] Public Figures versus Private Individuals

CHAPTER 15 SPEECH IN PUBLIC PLACES

? 15.01 Offensive Speech in Public Places [1] General Principles [3] Sexually Offensive Speech

? 15.04 The Modern Approach: Limiting Speech According to the Character of the Property [1] Classifying Public Property into Various Types of Public Forums [2] Reasonable Time Place and Manner Restrictions

CHAPTER 16 SPECIAL DOCTRINES IN THE SYSTEM OF FREEDOM OF EXPRESSION

? 16.02 Expenditures of Money in the Political Arena

? 16.03 Government Spending on Speech Related Activities

CHAPTER 17 GOVERNMENT AND RELIGIOUS FREEDOM

? 17.03 Government Support of Religious Practices ? 17.05 Free Exercise of Religion

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