CONSTITUTIONAL LAW: PRINCIPLES AND POLICY, CASES AND

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Copyright 2019 Carolina Academic Press, LLC. All rights reserved.CONSTITUTIONAL LAW:PRINCIPLES AND POLICY,CASES AND MATERIALSEIGHTH EDITION2019 SupplementJerome A. BarronHarold H. Greene Emeritus Professor of LawThe George Washington University Law SchoolThe Late C. Thomas DienesLyle T. Alverson Professor Emeritus of LawThe George Washington University Law SchoolWayne McCormackE.W. Thode Professor of LawUniversity of Utah, S.J. Quinney College of LawMartin H. RedishLouis and Harriet Ancel Professor of Law and Public PolicyNorthwestern Pritzker School of Law

Copyright 2019 Carolina Academic Press, LLC. All rights reserved.Copyright 2019Carolina Academic Press, LLCAll Rights ReservedCarolina Academic Press700 Kent StreetDurham, North Carolina 27701Telephone (919) 489-7486Fax (919) 493-5668E-mail: [email protected]

Copyright 2019 Carolina Academic Press, LLC. All rights reserved.TABLE OF CONTENTSChapter 1JUDICIAL REVIEW: INSTRUMENT OF AMERICANCONSTITUTIONALISM .7Ruchon v. Common Cause 7Zivotofsky v. Kerry . .8Chapter 2NATIONAL POWERS & FEDERALISM . .9Arizona State Legislature v. Arizona Independent Redistricting Commission . .9Murphy v. National Collegiate Athletic Association .10National Federation of Independent Business v. Sebelius [Health Care Cases] . 12Shelby County v. Holder. 33Coleman v. Court of Appeals of Maryland . 34Chapter 3STATE POWER IN AMERICAN FEDERALISM. . 35McBurney v. Young . .35Arizona v. United States . .36Chapter 4EXECUTIVE AND CONGRESSIONAL RELATIONS:SEPARATION OF POWERS . .38Gundy v. United States 38NLRB v. Canning .38Lucia v. Securities and Exchange Commission . .43Zivotofsky v. Kerry . . 45Trump v. Hawaii . 46Bond v United States . . 49

Copyright 2019 Carolina Academic Press, LLC. All rights reserved.Wood v. Moss . .52Chapter 5LIMITATIONS ON GOVERNMENTAL POWER . . 55Sessions v. Dimaya .55Caetano v. Massachusetts . . 56Chapter 6FORMS OF SUBSTANTIVE DUE PROCESS . . 58Arkansas Game and Fish Commission v. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58Horne v. Department of Agriculture . 58Murr v. Wisconsin . 59Sveen v. Melin . 59Whole Woman’s Health v. Hellerstedt . . 61Obergefell v. Hodges . . 70Pavan v. Smith . 88Chapter 7THE MEANING OF EQUAL PROTECTION . . 91Armour v. City of Indianapolis . . 91Schuette v. BAMN . . 91Fisher v. University of Texas at Austin. . 94Ala. Legis. Black Caucus v. Alabama. . 105Bethune-Hill v. Virginia State Board of Elections. 106Cooper v. Harris . 107North Carolina v. Covington . . 108United States v. Windsor . . 110Sessions v. Morales – Santana . 123

Copyright 2019 Carolina Academic Press, LLC. All rights reserved.Evenwell v. Abbott . . 126Harris v. Arizona Independent Redistricting Commission . 127Chapter 8FREEDOM OF EXPRESSION. . 128Reed v. Town of Gilbert . 128National Institute of Family and Life Advocates v. Becerra . 128United States v. Alvarez . 131Elonis v. United States. 142Minnesota Voters Alliance v. Mansky 142McCullen v. Coakley . . . 148Lane v. Franks. . 153Williams-Yulee v. Florida Bar . 154Agency for International Development v. Alliance for Open SocietyInternational, Inc. . . 155Walker v. Tex. Div., Sons of Confederate Veterans . .156Matal v. Tam . 163Iancu v. Brunetti .170FCC v. Fox TV Stations, Inc. .170American Tradition Partnership v. Bullock . . 170McCutcheon v. Federal Election Commission . . 171Knox v. Service Employees International Union . 177Janus v. American Federation of State, County and Municipal Employees . 178Packingham v. North Carolina . 179Chapter 9FREEDOM OF RELIGION: ESTABLISHMENT AND

Copyright 2019 Carolina Academic Press, LLC. All rights reserved.FREE EXERCISE. . 181Town of Greece, New York v. Galloway . . 181Hosanna-Tabor Evangelical Lutheran Church v. EEOC . . 183Trinity Lutheran Church v. Comer . 191Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission . 196Burwell v. Hobby Lobby Stores . . 204Holt v. Hobbs . 213American Legion v. American Humanist Assn . .213Chapter 11LIMITATIONS ON JUDICIAL REVIEW . . 215Bank Markazi v. Peterson . . 215United States v. Windsor . . 215Hollingsworth v. Perry . . 216Clapper v. Amnesty International. . 217Susan B. Anthony List v. Driehaus . .218Spokeo, Inc. v. Robins . . 219Wittman v. Personhuballah . 220Bank of America v. City of Miami . 220Gill v. Whitford . 222Benisek v. Lamone . 225

Copyright 2019 Carolina Academic Press, LLC. All rights reserved.Chapter 1JUDICIAL REVIEW: INSTRUMENT OF AMERICANCONSTITUTIONALISM§ 1.03JUDICIALLY IMPOSED LIMITS ON THE EXERCISE OF THE JUDICIALREVIEW POWER: THE “POLITICAL QUESTION” DOCTRINEInsert in p. 46:7. Rucho v. Common Cause, 588 U.S. (2019): In a 5-4 decision, the Supreme Court heldthat the political question doctrine precludes the judiciary from ruling on the constitutionality ofallegedly partisan gerrymandered congressional districting. The majority found that nojudicially manageable standard exists by which to assess such claims. It distinguished its holdingfrom Baker v. Carr by stressing that while the claim of population inequality among districtscan be resolved by employing basic equal protection principles, no comparable standard existsin the partisan gerrymandering context. It further found that partisan gerrymandering claimsdiffer from one-person, one-vote claims because the requirement that “each representative mustbe accountable to (approximately) the same number of constituents does not extend to politicalparties.” Group representation, the majority reasoned, differs significantly from the form ofrepresentation protected by the one-person, one-vote principle.Speaking for four justices in dissent, Justice Kagan criticized the majority for“promot[ing] partisanship above respect for poular will.” She expressed the view that there existclear and manageable standards for courts to apply to adjudicate partisan gerrymanderingclaims. She rejected the majority’s reliance on historical practice, noting that racialgerrymandering and vote dilution, which are now held to be unconstitutional, also had wellestablished historical pedigrees.[B] Foreign Affairs and Political Questions Add before§ 1.03[C]:4. Recognition of foreign states. As Goldwater implies, by tradition one of the most inviolateof Presidential powers is the recognition of foreign governments. The power flows from theexplicit grant of power to “receive Ambassadors,” an act that allows the President to pick whichof competing claimants is the legitimate government of another nation. In Zivotofsky v. Clinton,132 S. Ct. 1421 (2012), the Court confronted this in the unusual situation of the status of the city ofJerusalem.In 2002, Congress adopted legislation dealing with placement of the U.S. Embassy in Jerusalemand providing that “[f]or purposes of the registration of birth, certification of nationality, orissuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shallupon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.”The U.S. parents of a child born in Jerusalem requested that the child’s birth certificate andpassport list Israel as the child’s place of birth. The Secretary instead listed Jerusalem as the placeof birth and argued that the political question doctrine precluded judicial review since resolving7

Copyright 2019 Carolina Academic Press, LLC. All rights reserved.the claim on the merits would necessarily require a court to decide the political status of Jerusalem.The Court disagreed on the ground that it was up to the courts to determine whether thestatute was constitutional. The Court remanded for the lower courts to make an initial assessmentof whether the statute impermissibly interfered with the Executive power to recognizegovernments.[B]ecause the parties do not dispute the interpretation of §