Historical Argument: Based on Original Understanding of the
Constitution (What was the context in which the provision was written?) Textual Argument: Based on present sense of the words of the constitution (Scalia) Doctrinal Argument: Based on principles derived from precedent or judicial/academic commentary. Usually limit Courts role to most narrow issue presented by the parties Prudential Argument: Based on political and economic circumstances surrounding the decision. Usually given when refusing to decide a case, and say that it should be given to a political branch to decide, etc. Structural Argument: Claims that a particular principle is implicit n the structures of government [relationship between government and citizens) Ethical Argument: Relies for its force on a characterization of American social institution. Limited role of government I. Judicial Review Marbury v. Madison: It is the Supreme Court, not Congress, which has the authority and duty to declare a congressional statute unconstitutional if the Court thinks it violates the Constitution [Judicial Review] o Supreme Court has original jurisdiction only in cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party o IF THE SUPREME COURT IDENTIFIES A CONFLICT BETWEEN A CONSTITUTIONAL PROVISION AND A CONGRESSIONAL STATUTE, the COURT HAS THE AUTHORITY TO DECLARE THE STATUTE UNCONSTITUTAL AND REFUSE TO ENFORCE IT. Critics argue that nowhere in the Constitution does it state that courts, not Congress, ought to decide whether a given statute conflicts. However, that is kind of what Marbury says and does. Supreme Courts Review of State Decisions: o Martin v. Hunters Lessee: Whether the Supreme Court is constitutionally authorized to review the constitutionality of state court decisions Court can review the constitutionality of states highest court This falls under Appellate Jurisidction o Can review a state court decision if it was based on FEDERAL LAW. Exceptions: SC cannot review the case if there is an independent and adequate state ground for the state courts decision o Article III and Appellate Jurisdiction Congress may place certain limits on both Supreme Courts Appellate Jurisdiction and on the jurisdiction of the lower federal courts Appellate Jurisdiction as both to Law and Fact, with such Exceptions, and under such Regulations that Congress shall make Ex Parte McCardle: Court upheld Congress restriction of Courts jurisdiction. (Congress passed a law repealing the portion of the 1867 act which allowed appeals to the Supreme Court) Congress does not, however, have unlimited power to tamper with SC appellates jurisdiction US v. Klein: Sued in Court of Claims under fed statue. Won before appeal in SC, congress passeda new stautute that pretty much showed the opposite. Said stautute provided that COC and SC had no jurisdiction to decide pardons. UNCONSTITUTIONAL: violated separation of powers. Not a valid and bona fide denial of appellate jurisdiction in a whole class of cases; instead, it was merely a means to an end. Standard set by Klein: Any jurisdictional limit must be neutral, that is, Congress may not decide the merits of a case under the guise of limiting jurisdiction Justicability: In order for a case to be heard by federal courts, the plaintiff must overcome a serie sof procedural obstacles that we collectively call the requirements of Jusictiability o 1. Advisory Opinions: Cannot give Advisory Opinion What is an advisory opinion?: In the situation where the Supreme Court of the State has decided a determination that, even if the state statute being attacked was invalid under the Constitution, the party attacking it would lose anyway, a supreme court decision would have NO EFFFECT on the ultimate outcome of the state and therefore the Court s opinion would be an advisory opinion. Shorter Explanation: opinions which give advice about particular legislative Federal Courts may not decide questions that are hypothetical, abstract, or contingent A case must be in actual dispute between litigants to satisfy the cases and controversies requirement of Article III. o 2. Standing Determination of whether a particular person is the proper party to present a particular issue before a federal court for determination Standing Requirement is found in Article 3, Section 2 Need to have: Injury, Causation, and Redressability o 1. Injury-in-Fact: Needs to show that P has suffered an injury-in-fact (he himself has been injured in some way) Injury must be DISTINCT and PALABLE, not abstract, conjectural, or hypothetical Injury must be CONCRETE AND INDIVIDUATED Must be actual or imminent Clapper v. Amenesty International: NSA surveillance case involving lawyers who felt that they could not obtain sensitive information from those abroad now o 2. Redressability: Relief likely to follow from a fair decision which is not too speculative Redressable by a favorable ruling o 3. Action challenged must be c-i-f of injury (Causation) Fairly traceable to the challenged action and not too attenuated (Clapper) Challenged action was the but for cause of the injury Must not be so attenuated that the conduct not fairly traceable to the injury (Allen) Allen v. Wright: group of parents of black children, private schools, and the IRS: IRS authorized tax exemeptions that would make private schools tax exempt even though they discriminate on basis of race o Do not have standing o Articulated the requirements of standing Prudential Standing Requirement Prohibition on THIRD PARTY STANDING and GENERAL GRIEVANCES and SPECULATIVE FUTURE HARM o Third party standing Generally, a litigant may not assert the constitutional rights of persons not before the court. There are some exceptions (look at what they are) o General Grievances Prevents citizens from suing only if their injury is as a citizen or taxpayer concerned with having the government follow the law General grievance means the plaintiff does not claim an injury to a personal right but rather object to an illegal action as a taxpayer or a citizen When shared by substantially equal measure by all or a large class of citizens Interest of all citizens in having their government operate constitutionally and according to statute will not be allowed o Example in Allen v. Wright: Members of a minority group will not from that membership alone derive standing to litigate against governmental conduct which denigrates from that minority group. Parties interest in avoiding stigmatizing injury was insufficient needed to have been personally denied equal treatment However, a municipal tax payer can bring a suit in federal court Violations of a personal right such as the 1st amendment is not a general grievance o Speculative Future Harm Trying to avoid future harm NEED TO SHOW that the threatened harm is reasonably likely to occur in the near future, not merely speculative Clapper: Trying to prevent harm they FEAR will be inflicted by the government Lujan: someday intentions to go to see endangered species abroad without any description of concrete plans do not support a finding of actual or imminent injury o 3. Ripeness Not yet ripe if it has not sufficiently become concrete to be worthy of adjudication o 4. Mootness A case is not justiciable if its moot. A case is moot if it raised a justiciable controversy at the time the complaint was filed, but events occurring after the filing have deprived the litigant of an ongoing stake in the controversy. Exceptions: o Capable of Repetition yet Evading Review o Voluntary, but not necessarily permanent, changed conduct by the defendant o Collateral Consequences to the defendants action, which, when considered, prevent mootness If adverse to the plaintiff, not moot Example: Criminal defendant already served his sentence, but attack on constitutionality of his conviction will not be deemed moot because of the ongoing consequences of his conviction (loss of voting rights, etc.) o 5. Political Question Subject matter that the court has deemed inappropriate for judicial review and left to the politically accountable branches to resolve Usually involves cases meshing two separate principles: separation-of-powers principals, and prudential concerns Baker v. Carr Holding: Constitutionality of legislative appointment schemes is not a political question o Factors: 1. A textually demonstrable constitutional commitment of the issue to a coordinate political department (Commitment to another branch, i.e. Congress or to the President) Any issue the determination of which is clearly committed by the Constitution to another branch of government (i.e. impeachment) 2. A lack of judicially discoverable and manageable standards for resolving the issue (Lack of standards) Example: Guarantee of republican form of government War Power Disputes 3. The impossibility of deciding the issue without an initial policy determination of a kind clearly for non-judicial discretion (Unsuitable Policy Determination) 4. The impossibility of a courts undertaking independent resolution without expressing lack of the respect due co-ordinate branches of government (Lack of respect for other branches) 5. An unusual need for unquestioning adherence to a political decision already made (Political Decision already made) 6. The potential for embarrassment from multifarious pronouncements by various departments on one question (Multiple Pronouncements) Need for a unified voice especially in foreign affairs When does it come into play? Policy and Military Affairs (Factor 6) o Goldwater v. Carter Court refused to decide whether the President can terminate a treaty with Taiwan without Congressional approval. Impeachment [Factor 1) o Nixon v. United States A federal judge whom the house had impeached and senate convicted challenged the procedures used by the senate. Senate delegated to a committee of senators the job of holding hearings, and Nixon said that this was unconstitutional because the entire senate had to ehar it This was non-justicable because it presented a political question due to the Senate Impeachment Clause giving the senate sole power to try all impeachments Senate decides what a trial is Congress Self-governance Some Electoral Process ? Article V Process o Guidelines for the constitutional convention o 6. Eleventh Amendment and Suits against States One state cant be sued in federal court by a citizen of a different state, or by a foreigner Bars suits by citizens against their own state BUT can sue against state officials Also, the federal government can sue a state Seminole Tribe of Florida v. Florida: Major case that significantly hampers Congress ability to give private citizens the ability to sue states for violations of federal law Congress passed statute to govern aspects of gambling operations run by Indian tribes. State has to negotiate in good faith with any tribe located in state to try agreeing before permitting tribe to conduct comparable gambling operations. Tribe could sue in federal court for an order directing good faith. Holding: Even when the constitution vests in congress complete law-making authority over a particular area, the Eleventh Amendment restricts the judicial power under Article III, and Article 1 cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction SO basically, even though Article 1 gives Congress full authority to regulate commerce with Indian tribes, Congress cant allow a tribe to sue a state in federal court.
II. Federal Legislative Power, Article I and
the Tenth Amendment (McCulloch v. Maryland) Tenth Amendment Powers not delegated to the United States by Constitution are reserved to the States Congress powers are limited to those in the Constitution State power= Default Police power to regulate health, safety, morals, welfare, etc. When you see a federal law, ask 1. Does it fall within the scope of congress constitutional powers? [Article 1, Section 8) Lay and Collect Taxes Provide for the defense of the country Borrow money on the credit of the united states Regulate commerce with foreign nations and among the several states Regulate immigration and bankruptcy Establish post offices Control the issuance of patents and copyrights Declare war Make all laws which shall be necessary and proper for carrying into execution the foregoing powers. (Necessary and Proper Clause) o Section 9 forbids legislation on certain topics 2. If yes, does it then violate another part of the Constitution? McCulloch v. Maryland Although the federal government may act only where it is affirmatively authorized to do so by the constitution, the authorization does not have to be explicit. Therefore, the doctrine of implied powers allows the federal government to exercise power that is anciallary to one of the powers explicitly listed in the Constitution (as long as ths power does not conflict with specific Constitutional prohibtions) Pretty much stated in the N+P clause McCulloch= first case to make an important interpretation of the N+P clause. Congress chartered a bank in Maryland. Maryland imposed a tax on all banks that were not chartered by the state. State then brought suit against the Bank to collect the tax. The Tax was held to be unconstitutional Powers came from the PEOPLE, not the states Particular power can be implied from another explicit power Congress has expansive power Federal sovereignty is supreme within its sphere incompatible state law is invalid o Principle of Federal Supremacy sets limits on state interference with federal power Rejected the contention that NECESSARY meant absolutely necessary or indispensable. Said: Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to tha tend, which are not prohibited, and which are consistent with the letter and spirit of the constitution, are constitutional o Thus AS LONG AS THE MEANS IS RATIONALLY RELATED TO A CONSTITUIONALLY SPECIFIED OBJECT, the means is also constitutional o Necessary and proper clause is NOT an independent grant of authority. Rather, it provides congress with the means to exercise other enumerated powers. Court will usually show great deference to congress and will usually not inquire into legislators motives III. Commerce Power Commerce Clause: Article I, Section 8 o Congress has the power to regulate Commerce with foreign nations, and among the several states, and the Indian Tribes o Basic Rule: Congress can regulate any activity which substantially affects interstate commerce (Darby), including aggregate effects of local acts (Wickard). Three Broad Categories (as set forth in Lopez): 1. Congress may regulate the use of channels of interstate commerce (Darby, Heart of Atlanta Motel) o Reasonably related to highways, waterways, and air traffic 2. Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities o People, machines, and other things used in carrying out commerce 3. Power to regulate those activities having a substantial relation to interstate commerce o Computerized information was article moving o E.g. Fit within the Larger Regulatory Theme o Effects must be significant o Jurisdictional Hook: Congress drafts statute in way that requires a jurisdictional hook between particular activity and commerce, still likely found to be within commerce power Elements: *If not inherently economic, focus on: o Connection to a larger regulatory scheme + aggregation o Jursidictional Element o Congressional Findings o Truly national or truly local: Constitution requires a distinction between what is truly national and what is truly local The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has alwys been the provinces of the States Take Aways: Distinction between economic and non- economic activities Willingness to scrutinize congressional findings that are based on unworkable methodology of piling inference upon inference Truly national or truly local: Constitution requires a distinction between what is truly national and what is truly local The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has alwys been the provinces of the States Gibbons v. Ogeden o Marshall opinion: Ogden acquired grant from NY legislature given monopoly rights to operate steamboats between New York and New Jersey. Gibbons began operating the same, which was in violation of the monopoly. Gibbons boats were licensed under federal statute. o Holding: Monopoly conflicted with the federal statute, and thus violated the Supremacy Clause o Sets stage for broad, national power Congress could legislate with respect to ALL commerce which concerns more state than one CONGRESS HAS THE POWER TO regulate interstate commerce that affected matters occurring within a state so long as the activity had some commercial connection with another state. COMPLETELY INTERNAL COMMERCE of a STATE may be considered as reserved for the state itself Commerce doesnt include only buying and selling, but all commercial intercourse Lochners Era: Effort by the court to start limiting congress power o Congressional regulation was found to fall within the Commerce power so longa as the activities being regulated had a substantial economic effect upon interstate commerce Post New-Deal Era: Court began to show a vastly greater deference to Congress use of its Commerce Power. Court will uphold laws based on Commerce Power if the Court is convinced that what is being regulated is economic activity, and that the activity substantially affects interstate commerce. o NLRB Jones & Laughlin Steel Corp: Constitutionality of NLRA- NLRB tried to prevent J+L from engaging in unfair labor practices NLRA lay within the commerce power as J+L owns mines two other states other than Pennsylvania and operates steamships other places, etc. and 75% of its product is sent out to Pennsylvania Had, therefore, a SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE (US v. Lopez- it is indeed required) o Wickard v. Filburn: Set out cumulative effect theory out (Munger I dont think calls it this) Cum Effect Theory: Congress may regulate not only acts which taken alone would have a substantial effect on interstate commerce, but also an entire class of acts Facts: Owned a small farm in Ohio- challenged governments right to set a quota on the wheat which he raised and consumed on his own farm- said this was completely local and beyond scope of Fed Gov Holding: Upheld act because Consumption had a market effect and ALTHOUGH HE WAS JUST ONE GUY, TAKEN TOGETHER, WITH THAT OF MANY OTHERS SIMILARLY SITUATED, IS FAR FROM TRIVIAL Gonzales v. Raich says of Wickard: WIckard establishes that Congress can regulate purely intrastate activity that is not itself commercial, in that it is not produced for sale, if it concludes tha tfailure to regulate that class of activity would undercut the interstate market in that commodity o U.S. v. Darby: upheld FLSA which set minimum wages for employees. Commerce power extends to intrastate activities that affect interstate commerce Congressional motive is irrelevant Sets out that the TENTH AMENDMENT IS BUT A TRUISM Tenth Amendmet will no longer act as an indepdent limitation on congressional authority over interstate commerce Congress is free to impose whatever conditions it wishes upon the privilege of engaging in an activity that substantially affects interstate commerce, so long as conditions affect no independent constitutional prohibition o All together, WRAP UP 1. Does acitivty have a substantial effect on interstate commerce? 2. Does the aggregate effect of the local activity have a substantial effect? 3. The 10th Amendment protects whatever is not within Congressional Power= A truism 4. Congress motives are unimportant 5. Substantial effects are judged hypothetically- Whether Congress could have reasonably concluded there is Civil Rights Cases Dealing with Commerce o Title II of the 1964 Civil Rights Act bans dsciscrimination in places of public accomodations. o Heart of Atlanta Motel v. United States: Plaintiff was in a motel located in Atlanta which refused to rent rooms to African Americans Motel was near two interstate highways and derived 75% of its occupancy from out-of-state guests, etc. Holding: Motel could be constitutionally reached under the Commerce Clause. Racial discrimination discouraged travel. Therefore could be regulated by Congress in the aggregate. ALSO HELD that the power of congress to promote interstate commerce also includes the power to regulate and local incident thereof, including local activities in both the States which may have a substantial and harmful effect upon that Commerce o Katzenbach v. McClung: Ollies BBQ 46%of food purchased by restaurant during previous year had been bought from a supplier who brought it from out of state Upheld Act as applied to restaurants returned to the Wickard rationale Limitations to the Commerce Power: o 1. Substantial Effects is required: US v. Lopez: Congress, for example, cant prhobit possession of guns near schools, because the effect on Commerce of such possession is not substantial enough To uphold the Governments contention here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Comemerce Clause to a General Police Power of the sort retained by the States This statute had little connetion to commerce and there no findings given US v. Lopez makes Commercial/non- commercial activity distiniction Non-Economic activities may be regulated based on other factors, such as: o Connection to larger regulatory scheme o Jursidictional Element o Congressional Findings Another Example of Non-Economic activities is Congress not allowing women who are victims of gender- motivated violent crimes to bring federal civil-court suits, because gender-motivated crime against women is essentially a non- economic activity (US v. Morrison) o 2. Forced Entry into the Market Cannot use commerce power to compel somebody who is not already active in the market to enter that market by purchasing a product Example: N.F.I.B. v. Sebelius- health insurance case o Clear that Congress can regulate EXISTING instrastate activities. But cannot require individuals to buy that product. o CANNOT COMPEL inviiduals to become active in commerce by purchasing a product o Cannnot require to pay a penalty either Gonzales v. Raich o Relied on Wickard forbid consumption of home-grown medical marijuana. Says that WIckard establishes that Congress can regulate purely intrastate activity that is not itself commercial, in that it is not produced for sale, if it concludes tha tfailure to regulate that class of activity would undercut the interstate market in that commodity SUMMARY: o When a consumer wants to make or grown his own product, and the product has a somewhat commercial nature, Congress can regulate or prohibit his actibities, even if the consumer is ating in an entirely intrastate manner, due to the cumulative effect that it could have. BUT o Where congress wants to regulate an activity that is essentially not a commercial activity, Congress can quicky go beyond its Commerce Power, and into the realm of attempting an unconstitutional exceerise of power to regulate for the general welfare. So no. o AND where congress wants to take an individual who is not currently participating n the particular marketplace at all, cannot force them. IV. Taxing and Spending Powers South Dakota v. Dole: Conditional Spending Limitations 1. Must be in pursuit of general welfare 2. If Congress desires to condition the states receipts of federal funds, it must do so unambigiously, enabling states to exercise their choices 3. Conditions on Federal grants might be illegitimate if they are unrelated to the federal interest in particular projects or programs 4. Other constitutional provisions may provide an indepdent bar to conditional grant of federal funds If financial inducememnt was so coercive as to pass the point at which pressure turns into compulsion, the inducement would undermine state soveringty V.Legislative Power and Tenth & Eleventh Amendments [Continuation of Federal Commerce Power] (Reno v. Condon) Tenth Amendment: (Limits some powers to reserve to the states) o Garcia v. San Antonio Metro Transit Authority: whether minimum wage and overtime provisions of the federal fair labor standards act hould apply to employees of municipally-owned and operated mass transit systems o Was this a traditional government function? Must depend on politics of political branches and not left up to courts to intrude Restore 10th Amendment to truism state State soverign interests are protected by procedural safeguards inherent in the structure of the federal system, not by judicially created limitations on federal power o Seems to mean that once Congress, acting pursuant to its Commerce Powers, regulates the states, the fact that it is a state being regulated has no practical significance. However, after Garcia (which has a broad scope) Printz and NY v. US both place limits to the extent to which Congress can force state or local governments to make or enforce laws. o New York v. United States: Congress may not force a state to enact a certain statute or to regulate in a certain manner Radioactive waste policy- take title incentive where state would be required to take title to the waste CONGRESS MAY NOT COMANDEER THE LEG. PROCESSES OF STATES BY DIRECTLY COMPELLING THEM TO ENACT AND ENFORCE A FEDERAL REGULATORY PROGRAM Alternatives: Could have sent funds to them with conditions on it, could directly regulate the conduct in question, etc. o Printz v. United States: Congress may not compel a state or local governments executive branch to perform functions, even if the compulsion is temporary. Brady Bill ordered local law enforcement officials to conduct a background check on prospective purchasers (this was a temporary 5 year bill) It is an essential attribute of the States retained sovereignty that they remain independent and autonomous within their proper sphere of authority o TOGETHER, cases stand for the proposition that Congress may not 1) Force a state to legislate or regulate in a certain way and 2) require state executive ranch personnel to perform even ministerial functions o HOW IS THIS DIFFERENT FROM GARCIA? Garcia seems to apply to generally applicable federal lawmaking G holds that when Congress passes a generally applicable law, the Tenth Amendment does not entitle a states own operations to an exemption, merely because it is a state that is being regulated along with all the other PRIVATE entities But where the federal government tries to force a state or local government to enact legislation or regulation, or tires to force state or local officals to perform particular governmental functions, that is not part of the generaly-applicable federal scheme o Congress MAY single out the states for regulation when the states are acting as market participants (Reno v. Condon) Eleventh Amendment o States are immune from being sued for money damages by private citizens in federal court Commerce Power cannot serve as a basis for a congressional abogration of the Eleventh Amendment CAN USE CIVIL WAR AMENDMENT POWERS Can ban discrimination and abograte the states eleventh amendment immunity VI. Congressional Powers Under Post-Civil War Amendments Post-Civil War Amendments: 13th, 14th, 15th o US v. Morrison: can only regulate state ACTORS Overview of the 14th Remedial Power Test [14 Section 5]]: [Can Congress Use Fourteenth Amendment Powers to enfore a statute] o 1. Is there state action? o 2. Is there a 14th Amendment right which congress can protect? o 3. Has congress identified a history and pattern of state violations of the right? o 4. Is the statutory remedy congruent and proportional to the pattern of violations? [judicial scrutinty of congressional findings] Treatment of ifnidings at step 2 +3 Inverse in relationship between level of courts protection for particular rights and courts scrutiny of congressional findings More Scrutinty: o If rights merit low level protection (states only need a rational basis to regulate), then Congressional findings are subject to a heightened scrutinty Less Scruitinty o IF rights merit heightened protections, congressional findings only require a rational basis and therefore are afforded more leeway City of Boernes v. Flores: o CONCLUSION: Has to find a history and pattern of violations, which was missing in this case Remedy must be congruent and proportional o Congress has been given the power to ENFORCE, not the POWER TO DETERMINE, what constitutes a constitutional violation o If objector can show a substantaial burden on his free excercise, the state must demonstrate a compelling government interest and show that it has adopted the least restrictive means o Sets forth a new test for when Congress has gone beyond its fourteenth amendment remedial owers: must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end Congress has power to allow private plaintiffs to sue the state only if congress properly found widespread unconstitutional state conduct in the area in question and Even if congress properly found such wide spread unconstitutional conduct by the state, congress must choose narrowly-tailored methods for Combatting the state conduct Shelby County v. Holder: o Found that Congress had relied on 40 year old data to get pre- clearance for voting-related changes o Congress exceeded the scope of Fifteenth Amendmetn enforcement powers o This list included only a few states o Same formula as 1975 o Particular formula was unconstitutional because it did NOT REFLECT CURRENT conditions Shelby County means that unless and until Congress is able to agree on a new coverage formula for all, no jurisdiction can be subject to it. Congress Power to Abrograte the Eleventh Amendment, and Thus Authorize Private Damage Suits Against the States for Discrimination o Sometimes, Congress attempts to give private inviduals the right to bring private actions fo rmoney damages against a state or local government that commits the discrimination USUALLY because of 11th Amendment, Congress will have overstepped boundary in doing so 11th Amendment: States are immune from beign sued for money damages by private citizens in federal court IF Congress wants to subject the states to private money damages for violating federal anti-discrim laws, it must do it under the 14th Amendment Remedial Powers Still must be the congruent and proportionality talking about before: between constitutuional injury that congress is trying to prevent or redress, and the means that Congress has chosen o Board of Trustees v. Garrett: Congress exceeded its Fourteenth Amendment Remedial Powers in this Case Congress did not have the power to bar the states from dsiriminating against employees with disabilities, as it tried to do in Title I. Lack of Adequate Proof: Disabled people were not a suspet class, so the onl discrimination that would have been a violation was it there was irrational discrimation, i.e. a pattern of irrational state discrimination in employment against the disabled Lack of Congruence and Proportionality: Remedy chosen by Congress lacked the C+P Significance: Eleventh Amendment means that a state, when it acts as an employer, is not liable for money damages if it discriminates against a disabled employee or applicant in a way that would violate the ADA. o Nevada Department of Human Resources v. Gibbs: Sought leave under the FMLA to care for his wife Exhausted his time under FMLA, and said that he had to go State employees may recover money damages in federal court in the event of the State's failure to comply with the FMLA's family- care provision. The Court reasoned that Congress both clearly stated its intention to abrogate the States' Eleventh Amendment immunity from suit in federal court under the FMLA and acted within its authority under section 5 of the Fourteenth Amendment by enacting prophylactic, rather than substantively redefining, legislation. "In sum, the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic [section] 5 legislation
VII. Executive Power: Inherent Powers
(Cheney v. US District Court) Supreme Court has adhered to one over-arching limitation on presidential power: The President may not make laws, he may only carry them out. Youngstown Sheet & Tube Co. v. Sawyer: President Truman tried to avert a strike in nations steel mills. Issued executive order directing SOC to seize mills and operate them under federal discretion Court struck down seizure order, concluding it was an unconstitutional exercise of lawmaking authority Concurrence by Justice Jackson Emphasized the fact that Congress had explicitly rejected plant seizure as a means of handling labor disputes Presidents Powers are not fixed but fluctuate, depdening on the disjunction or conjunction with those of congress o 1. Where the president acts pursuant to an express or implied authorization of Congress in which case his authority is at its maximum (THATS OKAY) o 2. Where the president acts in the absence of either a congressional grant or denial of authority in which case there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distrubition is uncertain o 3. Where the president acts in contradiction to the express or implied will of Congress; in this case, its power is at its lowest ebb. United States v. Nixon: Executive privilege Court recognized a constitutionally-based doctrine of executive privilege, but held that the privilege was only a qualified one Holding: The privilege of executive privilege did not apply It is the duty of the judicial branch to say what the law is Privilege for confidentiality of Presidential Communications, but he privilege is only qualified o At least where the claim of privilege was, a general one, and not related to a particular need to protect military, diplomatic, or sensitive national security secrets, privilege was merely a qualified one o It was OUTWEIGHED by the need to develop all relevant facts in a criminal trial
VIII. Limits on Increasing Executive Power
President has the power under Article 1, Section 7, to veto any bill passed by congress.
Several Major Exceptions:
o Can the President Constitutionally be given a line-item veto? Ability to veto a particular part of a bill rather than the entire bill. Clinton v. NY: Line item veto as implemented by Congress violated the Presentment Clause of the Constitution o Return of the bill occurred after the bill had been signed into law o The cancellation could apply to only PART of the bill o Net effect: Created a different law o To what extent does the legislative veto violate the Presidents veto power? Device which enables Congress to monitor actions by the executive branch IF an agency takes a certain action and Congress disagrees, the veto provision in the original bill allows once or both houses to cancel that administrative action by means of Resolution and that resolution is not presented to the President INS v. Chadha: One-house legislative veto is unconstitutional Struck down the legislative video because it violated the presentment clause and that it constituted the exercise of legislative power, which needs bicameral approval. Significance: Makes one-house legislative veto completely unusable.
IX. Foreign Policy (Zivitovsky v. Kerry)
The Constitution gives the President Substantially greater authority with respect to foreign affairs then to domestic ones o US v. Curtiss-Wright Export Corp: joint resolution of Congress authorized the President to ban the sale of arms to countries engaged in a particular conflict. CW argued that it was an unconstitutionally broad delegation of legislative power to the president Supreme Court upheld the resolution stressed the very delicate, plenary, and exclusive power of the President as the sole organ of the Federal government in the field of international relations Need for negotiation plus special access to sources of information which required a degree of discretion and freedom from statutory restriction (extreme view) Congress may sometimes be found to have impliedly acquiesced in the Presidents exercise of power in a certain area. Where the acquiescence exists, this fact may be enough to tip the balance in favor of a finding that the President acted within the scope of his constitutional authority. o Dames & Moore v. Regan: Upheld Carters power to take certain actions fo rhte purpose of obtaining the release of American Hostages from Iran Suspencion was within the Presidentals constitutional authority. While congress had never explicitly authorized to the President the power to suspend such claims, it had implicitly authorized that Practice by a long history of acquiescing in a similar president a conduct Stressed limited scope of its holding. Where such settlement or suspension is NECESSARY TO THE RESOLUTION OF A MAJOR FOREIGN POLICY DISPUTE ANDDDDDDD Congress has acquiesced in that tpe of presdiental action, the action will be deemed within the Presdients constitutional authority Zivitovsky v. Kerry: o Not a political question Framework for dealing with Article 2 justice Jackson Article II, Sec. 2 Rationale: Need to present a clear and unified face to the world dictates that the President bear a special role in implementing the nations foreign policy TAKE AWAYS: o Executive agreements with congressional approval are OK o Use Jackons tri-part test o Readiness to infer congressional approval Long-standing practice = important X. War Powers, Presidential Power and War on Terrorism, Preemption (Article VI, Arizona v. Untied States)
What process is due to the detention fo enemy combatants during
war? o Hamdi v. Rumsfeld: American citizien captured in Afghanistan army labeled him as an enemy combatant By calling him an enemy combatant, administration argued that they could hold him in confinement indefinitely without formal charges or proceedings Plurality: US did not have the power to do that Right to due process with respect to purusing his claim that he was not an enemy combatant Balance governments interest in national security with Hamdis interest in not being deprived of liberty without due process o Minimum procedural protections that he was entitled to: Notice of the factual basis for his classification Fair opportunity to rebut the governments factual assertions before a netural decisionmaker Access to counsel o HOWEVER: Hearsay may need to be accepted as reliable available evidence from the Government COnsitution would not be offended by presumption in favor of the governments evidence as long as it remained a rebuttable one Procedures would not be due at the moment a citizen was initially captured Would only be due when the government decided to continue to hold them Possibility that this could be heard by a military tribunal Preemption: o Article IV: Supremacy Clause Pre-emption cases Federal and State Law Subject matter= the same IF there is a conflict between state law and federal law, the resolution is clear: the state law is simply invalid Express v. Implied o Express: federal law specifically/expressly says tha tit preempts state or local law. o Implied: Congress does not expressly state that it intends to preempt state or local law, but manifests an intent to do so Field and Conflicts Pre-Emption Field: Occurs where the scheme of federal regulations is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it Congress has occupied the field Conflict: Applies when: 1) Compliance with both federal and state government is impossible an 2) where state law stands as an obstacle to the execution of the full purposes and objectives of Congress Impossibility of compliance Obstacle to achieving a federal legislative goal Federal government has an intent and even though the state law does not conflict, leads down that path o Always a question of Congressional Intent: Intent must be unmistakable Is the subject matter traditionally left to the states? Traditionally left to the federal government? Is the existing federal regulatory scheme broad? Does it cover most of the subject area? o Arizona v. United States (look at) Failure to comply with Federal regulation requirement = state misdemeanor Section 5= unauthorized alien seeking or engaging in work= state misdemeanor Take aways: Tests to determine whether a state law is pre-empted Focus on congressional intent
XI. Dormant Commerce Clause
What is the Dormant Commerce Clause? o Limitation on State Power o Does the mere fact that Constitution gives Congress the power to regulate IS commerce prevent a state from taking a particular action which affects interstate commerce? o Some areas that are covered are usually: Regulation of transportation Regulation of incming rade Regulation of outgoing trade Attempts to compel out-of-staters to perform business activities within the state Regulation of the environment Have to ask: o Does the law discriminate against out-of-state interests? IS it facially discriminatory?- State statute expressly treats in-and-out-of-state commerce differently Is it facially netural? IF so, is it discriminatory in purpose and effect? o When a state law is discriminatory, the state has a high burden of justifying and it is usually invalid IF the law has a non-discrimnatory purpose and effect, does it burden interstate commerce? o The court balances the burden vs. the local benefit o IS there a less burdensome alternative? Pike Balancing Test PBT= usually more leinant Where the statute regulates even- handedly to effectutate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits Can be overcome by clear showing that the national interest in uniformity or in free commerce outweighs the benefit Less-restritive alternative: What are some objectives that are less burdensome? Philadelphia v. New Jersey o NJ statute prohibiting the importing of most solid or liquid waste into the state o Several New Jersey operators and out-of-state users of the landfill sites sued to have the statute invalidated on the ground that it discriminated against inter-state commerce Struck down the statute as violative of the Commerce clause Protectionist v. Non-protectionist move This was a protectionist measure o It imposes on out-of-state commercial interests the full burden of conserving the States remaining landfill space Non-protectionist purpose: Minnesota v. Clover-Leaf Creamery o Although Phialdelphia was per-se invalid, this is not true for acts which merely burden (without discriminating against) interstate commerce o Minn. V. C-L Creamery: SC sustaineid a state law which banned non-returnable milk containers made out o f plastic Sustained the staute even though the plastic used for milk cartons was made solely by Non-Minnesota firms Statute was NOT simple protectionist legislation Intentional Discrimination: Hunt v. Washington Apples o Court is much more likely to strike down a statute whose clear purpose is to favor local economic interests by discriminating against out-of-state interests o NC required that all closed contianers of apples shipped into or sold witin the state bear the applicable us grade or no grade at all (you know this case, just think) Tried to justify it both in terms of local benefits flowing from the statute and unavaialblitly o Holding: NC statute UNCONSTITUIONALLY BURDENED interstate commerce. Discriminated against Washington growers. NC scheme was apparently intentionally discriminatory. Facially neutral statutes o Even though even-handed on its face, may still turn out to be disproportionately burdensome to some or all out-of- state business o Exxon v. Maryland: MD passed a law prohibiting oil producers or refiners from operating gas stations in Maryland. Since no gas is produced or refined in Maryland, the rule affected out-of-state companies exclusively. o Court upheld the statute Did not discriminate against interstate commerce Not all out-of-state companies were affected by the statute Mere fact that the entire burden of the stuate fell on SOME out-of-state companies was insufficient to establish that interstate commerce was discriminated against Court held that the CC protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulation. West Lynn Creamery v. Healy o Commissioner of Massachusetts Department of Food and Agriculture issued a pricing order. The order required all dealers who sold milk to Massachusetts retailers to make a monthly premium payment to be distributed among in-state dairy farmers. Two Massachusetts milk dealers --West Lynn Creamery and LeComte's Dairy -- sell dairy products in Massachusetts. West Lynn Creamery relies on out-of-state producers; LeComte purchases all of its milk from West Lynn. The dealers filed an action o Holding: violated the Commerce Clause because it discriminated against interstate commerce. The majority found that while the pricing order taxed all dealers, the benefit of the tax was reserved exclusively for in-state dairy farmers and outweighed the tax they were required to pay. Transportation: o The Supreme Court will usually uphold a transportation regulation if SAFETY interests are paramount o However, when it comes to regulationst aht seem to be motivated by discriminatory or protectionist impulses, then they are usually quick to strike down o Kassel v. Consolidated Freightways Corp Iowa statute prohibiting 65-foot long trucks struck down Was there a clear discriminatory purpose? Intent to discriminate against interstate commerce? Exceptions to the Dormant Commerce Clause: o State as a Purchaser or Subizider When the state acts as a market participant, spending money to run a proprietary enterprise, or to subsizidize a private business, THE DORMANT COMMERCE CLAUSE WILL NOT BE APPLIED, and the state may favor local citizens over out-of-state interests Example: state-owned cement plant favors in-state customers in time of shortage (Reeves v. Stake) The market participant exception is pretty narrow and applies onlyw here state and local government, acting as a market participant, chooses to deal with in-staters rather than out-of-staters in direct transactions Government-owned entity may prefer in-state buyers when government sells, may prefer in-state sellers when government buys, etc. o However The market-participant exception does NOT permit the state to REGULATE in a way that discriminates against out-of- staters, even if the state is also acting as a market participant South-Central Timber v. Commissioner: Alaska sells timber from state-owned lands at below market prices. State requires each buyer to promise that it will process the timber inside Alaska before the timber is exported. Non-Alaska firm with no Alaska processing facilities attacks it. Holding: M-E does not apply here o 1. Exception will apply only where the effects of the states terms are LIMITED to the particular market in which the state is participating, not to a broader one Here, state was trying to engage in downstream regulation of the timber- processing maret (i.e. trying to affect the conduct of parites with whom the state isn ot dealing directly) Market participant exception does not apply to immunize that downstream regulation from DCC attack Other exception: COnress explicitly allows it
XII. Privileges and Immunities Clause
Article IV: Privileges and Immunities Clause o There are two different P+I clauses one is in the Fourteenth Amendment Section 1 14th is for national 4 is for state citizenship o The Citizens of each state shall be entitled to all the Privileges and Immunities of Citizens of the Several States Only fundamental rights are covered (fundamental to national unity All related to commerce Examples: right to be employed, right to practice ones profession, and right to engage in business Test Will win if either of the following is shown: o 1. Discrimination will violate P+I unless non- residents are a peculiar source of the evil which the law was enacted to remedy o 2. Non-residents to do not bear a substantial relationship between the discrimination against out-of-staters does not bera a substantial relationship to the problem the statute is attempting to solve o McBurney v. Young: Mark McBurney is a citizen of Rohde Island and a former resident of Virginia where his son lives. When McBurney's wife defaulted on child support obligations, he asked the Virginia Division of Child Support Enforcement (VDCSE) to file a petition for child support on his behalf. After a nine-month delay, the petition was filed and granted. He then filed a Virginia Freedom of Information Act (VFOIA) request with the VDCSE for all records pertaining to his son and ex-wife. The VDCSE denied the request, arguing that the information was confidential and McBurney was not a citizen of the state. While McBurney eventually obtained most of needed the information through other sources, he never got all of the information from his VFOIA request. Holding: Virginias Freedom of Information Act, which grants Virginia citizens access to all public records, but grants no such right to non- Virginians, does not violate the Privileges and Immunities Clause, which protects only those privileges and immunities that are fundamental. The Act also does not violate the dormant Commerce Clause: it neither prohibits access to an interstate market nor imposes burdensome regulation on that market; and in any event, a state does not violate the Clause when, having created a market through a state program, it limits benefits generated by [that] state program to those who fund the state treasury and whom the State was created to serve. FUNDAMENTAL RIGHTS ONLY
XIII. 13th, 14th, 15th Amendments, Incorporation
Supreme Court ruled that Americans of African descent, whether free or slave, were not American Citizens and could not sue in Federal Court Congress lacked power to ban slavery in US territories Slaves were categorized as property o Barron v. Baltimore Bill of Rights were not directly binding on state governments If the framers had intended them to be limitations, they would have expressed that intention th o 14 Amendment: Privileges and Immunities OF CITIZENS OF THE UNITED STATES No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States Slaughterhouse Cases: o Louisiana passed a law giving a monopoly on New Orleans-area slaughterhouse o Most serious argument was that the statute was a denial of the privileges or immunities of Louisana citizenship o Fundamental civil rights were the domain of the states, not the federal government. Laintiffs should look to Louisiana law for protection Several rights of national citizenship rights o free access to seaports federal protection blah blah blah o RIGHT TO TRAVEL was added in Saenz v. Roe [welfare benefits]
IXX. State Action Doctrine
o State Action Doctrine: In virtually every litigation in which an individual argues his constitutional rights have been violated, the court can grant relief only if it finds that there has been state action i.e. some sort of participation by a governmental entity sufficient to make the particular constitutional provision applicable. o Civil Rights Cases Early interpretation of state-action Facts: Involved civil rights act of 1875 congress prohibited all persons from denying, on the basis of race, any individuals equal access to inns, public transportation, tehaters and other place sof public accommodation Statute was clearly applkicable to private conduct Did congress have the power to enact such a statute? Holdings: (That still pertain today): In the absence of congressional legislation, the courts will not find conduct that is exclusively private to be violative of the Fourteenth Amendment guarantees The Court held that the grant to Congress in section 5 of the Fourteenth Amendment of the power to enforce these guarantees did not authorize Congress to regulate solely private conduct. The only law-making power given to Congress under Section 5 was the ability to pass laws to prevent the states, by their own action, from interfering with these rights (PROB NOT LONGER GOOD LAW) Statute could not be justified as an excise of the thirteenth amendment refusing to allow blacks to use public accomodations was not a badge of slavery now overruled o Modern Approach to State Action Court began to broaden the concept of state action, with the result that various acts that were carried out by private persons, not state officials, were nonetheless attributed to the state This happens when the private conduct is so closely linked to official conduct that it should be considered state actions Two theories to explain this: 1. Private actor is fulfilling a public function o When a private invidiual is entrusted by the state with the performance of functions that are governmental in nature, eh becomes an agent of the state and his actions constitute state actions. It is usually insisted that the function be one that is normally exclusively reserved to the states. o Example: Company towns and shopping centers o Issue- whether the owner of the property had the right to use state trespass laws to keep out people who wanted to speak or distribute literature on the property When it was held to be a public function, First Amendment Rights become Applicable, barring the use of state trespass laws Example: Marsh v. Alabama Jehovahs Witness charged with criminal trespass for distributing religious literature in a town WHOLLY OWNED by Gulf Shipubilding Corp SC held that the operation of the town was a public function Town was not limited to only housing. IF they were limited to housing, like private residential communities, that is different Constitutional rights of owners of property are balanced against the right of the people to enjoy freedom of the press and religion Distinguish Lloyd v. Tanner: Justice Powell's majority opinion distinguished this case from Marsh v. Alabama, in which the court held that a company town could not exclude a Jehovah's Witness from distributing religious literature on a privately owned sidewalk. Balancing Marsh's First Amendment rights against the owner's property rights, the court in that case held that Marsh's rights occupied a "preferred position" and weighed heavier than the owner's rights. Here, on the other hand, the Court concluded that the respondents could have distributed their handbills on "any public street, on any public sidewalk, in any public park, or in any public building." Therefore, respondents were not entitled to exercise their free-speech rights on the privately owned shopping-center property. o Also a requirement of state exclusivity The function needs to be one which has traditionally been exclusively the function of the government. Jackson v. Metropolitan Edison Co: Operation of a privately-owned utility licensed and regulated by the states was held Not to be performance of a public function State law did not OBLIGATE the state to furnish power o Involvement or entanglement by state State is SO heavily involved in or entangled with private action that, even though the state does not benefit from or encourage the private conduct, the court will nonetheless attribute to the state the private conduct. Example: Licensing by State (When state licenses a private entity to perform a particular function, often claimed that the act of licensing is sufficient state involvement. SC HAS REJECTED THIS THOUGH) Example: Moose Lodge No. 107 v. Irvis: privat eclub refused service to the black guest of a member. Guest contended that since the state had given the club oen of a limited number of loiquor licenses, the act of licensing was sufficient. SC disagreed, holding that the mere fact that a state grants a license to an entity does not trasnfrom the latters conduct into state action, even where the number of licenses is limited. Was the state SIGNIFICANTLY involved with invidious discrimination? o State Funding: The fact that a private entity receives substantial state funding WILL NOT by itself convert its activities into state action Ex: Rendell-Baker v. Kohn: Court held that a private school, whose income came primarily from public funding, was not commiting state action when it fired employees
2. Those in which the various connections between the
state and private actor are sufficiently great that the state can be said to be involved in, or even have encouraged, the private activity which is being complained of. o IF the government is significantly involved in the private actors conduct or encourages that conduct, or benefits from it, the private partys act will be deemd state action and subjected to constitutional review. o Ex: if they command that conduct o Shelley v. Kramer: Enforceability of racially restrictive covenants. Most homeowners in the area had entered into a covenant that their property would not be owned by anyone but Caucasians for 50 years. o Could state courts award the white plainitffs the reliefs that they sought? o Jdicial enforcement of the restrictive covenant would consetitute state action and therefore violate the Fourteenth Amendment. o There were willing sellers and buyers, so only states coercive judicial machinery would cause the discrimination to occur. - Entanglement Exception - Only action by state is courts involvement every wrong then, if brought to court, would be a state action STATE ACTION TAKE AWAYS: Constitution does not apply to action by private actors May not use Section 5 power to regulate private actors Exceptions: o Private function o Entanglement Racial Discrimination increase the likelihood of finding state action
XX. Economic Liberties- The Lochner Era
o Substantive v. Procedural Due Process Substantive Due Process: Government must have a justification for interfering with a fundamental right or liberty guaranteed by the Due Process Clause Procedural Due Process: Government must follow procedures before depriving you of your lie, liberty, or property Usually, notice and opportunity to be heard to contest facts o Substantive Due Process Analysis: 1. What is the right at issue? 2. How has the right been infringed? 3. Is the state interest legitimate? 4. Are the means sufficiently related to the state interest? o Economic Liberties and Substantial Due Process Lochner Era- Uses due process to overturn economic legislation After Lochner Era: Rejects this. Post limited to 14th for economic liberty Lochner v. New York: struck down as an abridgment of liberty of contract, and therefore a violation of due process, a new York law which limited the hours a bakery employee could work to ten per day and 60 per week. Wrong in treating freedom of contract as a fundamental interest MODERN APPROACH: Is this a fair, reasonable, appropriate exercise of police power of the state, or unreasonable, unnecessary, and arbitrary interference with the right of invidiual to his personal liberty? [check on this] West Coast Hotel Co. v. Parrish: Court upheld a state minimum wage law for women o Substantial weight to the states interest in redressing womens inferior bargaining power o Readjustment of economic bargaining power in order toe nable workers to obtain a living wage was a legitimate limitation on that freedom of contract o PRESERVED the requirement of a real and substantial relation between the economic regulation and a legitimate state objective (more modern): US v. Carolene Products: Court made it clear that a PRESUMPTION OF CONSTITUTIONALITY would be applied in the case of an economic regulation subjected to due process attack. Court sustained against a due process attack a federal prohibition on the interstate shipment of filled milk o Existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless it is such a character as to preclude the assumption that it rests upon some rational basis within the knowledge na dexperience of the legislators. Minimum rationality standard coupled with presumption of constitutionalty o FOOTNOTE FOUR: The "rational basis test" mandates that legislation (whether enacted by Congress or state legislatures) which deals with economic regulation must be rationally related to a legitimate state interest. o Therefore, Footnote Four outlines a higher level of judicial scrutiny for legislation that met certain conditions: o 1. On its face violates a provision of the Constitution (facial challenge). [Legsilation that is expressly prohibited by congress] o 2. to distort or rig the political process. [Restricts political process] o 3. Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process.
MORE MODERN: Williamson v. Lee Optical: Court upheld
Oklahoma statute which prevented opticians from fitting eyeglass lenses into frames witout prescriptions. Statute was rational health measure because the legislature might have concluded that in some instances, prescriptions were necessary SUMMARY: o Court has withdrawn almost completely from the business of reviewing state legislative economic regulation for substantive due process violations. 1. Minimum Rationality Standard: Assuming the objective being pursued in an economic regulation falls within the states police power (now extremely broadly defined to include virtually any health, safety, or general welfare goal), all that is required is that there be a minimally rational relation between the means chosen and the end purused. A regulation will be presumed to be constitutional unless government has acted in an arbitrary and capricious way. o BUT WHERE A LAW IN THE ECONOMIC AREA IMPINGES ON SOMETHING THAT THE COURT HAS FOUND TO BE A FUNDAMENTAL RIGHT, a substantialy higher level scruitinty is applied XXI. Introduction to Equal Protection and Rational Basis Scrutiny (Intro to Equal Protection (711-717), Rational Basis Test, Requirement for a Reasonable Relationship (724-726), NYC Transit Authority v. Beazer) o Equal Protection Question: Is the governments classification justified by a sufficient purpose? [QUICK RUNDOWN] 1. What is the classification?: Facial Clasifications: The law in its very terms draws a distinction among people based on a particular characteristic Facialy neutral, but discriminatory impact o Ex: law requiring all police people to be 511- this discriminiates against women o Demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law Then is it discriminatory in purpose? Discriminatory in effect? Discriminatory Impact is Insufficient to prove a racial or gender classification 2. What is the Appropriate Level of Scrutinty? Diffeing levels of scrutinty will be applied based on the type of discrimination o Race, National Origin, Religion, Alienage, Classiciations that Burden a Fundamental RIght: Strict Law will be upheld if it is proved necessary to achieve a compelling government purpose Government must have a truly significant reason for discriminating, and it must show that it cannot achieve its objective through any less discriminatory alternative Government: must show that it is necessary to achieve a compelling purpose Test for Strict Scrutinty: 1. What is the classification- is it a suspect class? 2. Is this classification discriminatory? 3. IS there a compelling government interest? (past discrimination? History?) 4. Is the law narrowly tailored? [Means? No quota! Less Restrictive? o For Race, different kinds of classifciations: Expressly Racial disadvantages (classifies race on its face) Disparate impact- not facial; law effects disadvantaged racial group Expressly Racial but Beneficial- classifies on its face, operates to advantage of minorities o Gender and non-marital children: Intermediate Scruinty Upheld if it is substantially related to an important government purpose Court need not find the governments purpose compelling, but must characterize it as important Must have a substantial relationship to the end being sought o Rational Basis Test Minimum level of scruinty that all challenged laws under equal protection must meet A law will be upheld if it is rationally related to a legitimate government purpose Does not need to be compelling or important Means chosen only need be a rational way to accomplish the end Challenger has burden of proof Applies to most social and economic legislation Court is willing to tolerate both under and oerinclusive No inqury into actual purpose o What is relevant to deciding level of scruinty? Immutable CHaracterisitcs History of Discriminiation 3. Does the Government Action Meet the Level of Scrutinty? o Is the law underinclusive or overinclusive? Underinclusive: does not apply to invidiuals who are similar to those to whom the law applies Overinclusive: Applies to those who need not be included in order for the government to achieve its purpose VIRTUALLY ALL LAWS ARE EITHER Skinner v. Oklahoma: Example of discriminating among people in their ability to excecise a fundamental liberty: right to procreate o Marriage and Procreation= Fundamental Rights NYC Transit v. Beazer:
XXII. Rational Basis Scrutinty Continued and
Classficatiosn Based on Race and National Origin o Sometimes, Rational Basis Review WILL declare laws unconstitutional o City of Cleberne: Court used rational basis review to invalidate a zoning ordinance that prevented the operation of a home for the mentally disabled o Us Department of Agriculture v. Moreno: Court invalidated a federal law that prohibited a household from receiving foodstamps if it included invidiauls who were not related to one another o Romer v. Evans: Court found that a voter initiative in Colorado that repealed laws prohibiting discrimination based on sexual orientation and that precluded the adoption of new protections failed rational basis review In this case, court said there was no legimtiate purpose in singling out a particular group and precluding it from the political process (gays, lesbians, and bisexuals voter initaiteve would repeal all laws protecting them from discrimination) MANY ARGUE THAT THIS WAS THE RATIONAL BASIS TEST WITH A BITE [COC, US Dept, Rv.E] More rigor and less deference to the government Strict Scrutinty The statute will only be upheld if it is ofund to be necessary to the attainment of some compelling governmental objective o Before Grutter, the last case in which a racial or ethical classification SURVIVED strict scrutinty was Korematsu v. United States Holding: There was a compelling need to prevent espionage and sabotage, and that there as no practical and sufficiently rapid way for the military to distinguish the loyal from the disloyal If a classification utilizes race, but does not explicitly disadvantage either blacks or whites, etc. Still prob fails under SS o Loving v. Virginia: State prohibits marriage between a white and a non-white. State rebuts equal protection attack. STATE VIOLATES equal protection, and the fact that it has equal application does not immunize it from strict scrutinty Only has a discriminatory purpose
XXIII. Discriminatory Effects; Classifications
Benefitting Racial Minorities Separarate but Equal no longer da way to go o Plessy v. Ferguson: Separate but equal treatment did not violate equal protection Did not see social equality as a goal of the EP clause o Brown v. Board of Education: Court expliclity rejects separate but equal doctrine: Even if they were equal in tangible factors, intangible factors prevented children who were restricted to all-black schools from receiving equal education opportunities Did not rely on the legislative history of the Fourteenth Amendment Itself A classification will not be found to be suspect and therefore subject to strict scruitnty unless the Court found that there was a legislative intent to discriminate against the disfavored group o Mere fact that a law has less favorable impact on a minority group that it has on the majority is not sufficient to constitute a violation of equal protection o Demonstration of disproportionate impact isa factor but by itself it cannot suffice Must need intention Washington v. Davis Explicit requirement that an intent to discriminate be found before an equal protection racial discrimination claim would be upheld Suit brought by unsuccessful black applications for policemen. Failed a test at the rate of four times that of whites. SC HELD that racial discrimination is only violative of the Equal Protection Clause when it is a product of a discriminatory purpose While a showing of a disproportionate racial impact IS a factor in ascertaining intent, it can never by itself prove discriminatory intent This intention did not have to be the SOLE purpose of the statute- just has to be a motivating factor Arlington Heights v. Metropolitan Housing Corp o If there were two purposes that motivated the legislature to enact a statute, and only one of these was discriminatory against a suspect class, the presence of the second, non-discrim motivate, will not immunize the statute from strict scrutiny. o Plaintiff just needs to know it was a substantial or motivating factor then burden shifts to the defendant to show that the statute would have been passed anyway without the intent Three ways to show purpose: o Facially discriminatory o Although neutral, administered in a discriminatory way o Enacted with the purpose of discriminating Methods of Proof? o Clear pattern of administration o History o Departure from normal procedures o Departure from normal substantive factors o Legal Admin history Whatabout non-invidious racial classifications? o Application: 1. What is the classification? Is it a suspect class? Is it discriminatory? 2. Compelling gov. int (purpose) 3. Narrowly tailored means? o Strict scruinty applies Even if its helping, need to prove compelling governmental interest, that the racial classification is necessary to achieve that compelling interest MUST be a remedy fixing some historic practice o Richmond v. JA Croson Co. The purpose of strict scruinty is to smoke out illegitimate uses of race When government institutes affirmative ation plan to accomplish the objective of redressing past racial discrim, you need to look at the proof and who it is discriminating against Not enough that African Americans are under represented Facts: Less than !% of the citys construction contracts have been awarded to minority-owned businesses. Requires 30% of dollar amount of all city-funded construction projects must go to minority-owned firms There was no clear evidence of past racial discrimination. Most likely to be upheld if the PARTICULAR GOVERNMENT ENTITY IN QUESTION was the one discriminating against them o Affirmative Action Cases; Rules that came from these cases: 1. Public univ and colleges may explicitly consider minority racial status as a factor that increases the odds of admission, so as to promote the compelling goal of education diversity 2. These institutions may not award points for minority status, or otherwise pursue mechanical quota-like schemes, and must intead evaluate each candidate as part of a holistic review that treats race as merely one factor among others; and 3. Even when uses these methods, the method may only be used if the institution carries the burden of showing that no workable race neutral alternatives would ahieve the educational benfits of diversity as well or almost as well ast he race conscious method being used Grutter v. Bollinger: race as one factor among many approach Gratz v. Bollinger: striking down as a violation of equal protection Michigans undergraduate scheme, by which members of favored racial and ethnic groups got an automatic 20 out of the 100 points they needed for admission Fischer v. University of Texas: Holding that the University of Texas race conscious but non-quota- based system would be valid only if the University showed that no workable race neutral methods were reasonably available
XXIV. Gender Classifications (Craig v. Boren,
United States v. Virginia) Intermediate Scrutinty: gender-based classifications o Applies to class based on sex or illeg. o Class must be substantially related to that interest o Must be substantially related to important governmental objectives Was there a substantial relationship between the statute and the discrimination which was to be remedied? o Craig v. Boren: successful challenge to an Oklahoma Statute which forbade the sale of 3.2% beer to males under 21 and females under 18 The clasisifcations by gender must serve important governmental objectives and must be substantially related to achievement of those objectives o United states v. Virginia: that case with the military school Violated EP XXV.Other Types of Discrimination and Intorduction to Fundamental Rights Substantive Due Process Analysis: o 1. What is the right at issue? o 2. How has the right been infringed? Deepky rooted in nations history and tradition? Definition of right is critical If infringed- level of scrutinty is SS If not infringed rational basis is the law a reasonable way to serve a legitimate state interest o 3. IS the state interest have a compelling purpose? [necessary to serve a compelling state interest? o 4. Is the means narrowly tailored and sufficiently related to the injury? FUNDAMENTAL RIGHTS o 1. Right to Marry: The right to marry is seen by the Supreme Court as being fundamental; substantial interereces with that right will therefore not be sustained merely because they are rational Zablocki v. Redhail: plaintiff attacked Wisconison law which required that any parent who was under court order to support a minor child meet certain requirements before being permitted to remarry Not allowed it directly and substantially interfered with that right o If it did not SIGNIFICANTLY interfere with the ability, a mere-rationality test would have been used but here it did Obergefell v. Hodges Look at the children so that they could have status It imposes stigma and injury o 2. Right to raise Children Stanley v. Illinois- father was declared unfit and the children became wards of the state just because the mother died. Troxel v. Granville: Parent has a fundamental due process interest in determining which people outside of the nuclear family will have access to the child. When a parent is fit, a court deciding to grant visitation rights must accord at least some weight to the parents own determiniations. o 3. Right of Natural Father Michael H v. Gerald D: although an unwed fathers biological link to his child does not, in and of itself, guarantee him a constitutional stake in his relationship with that child, such a link combined with a substantial parent child relationship will do so,.
XXVI. Family Autonomy and Reproductive
Autonomy 4. Family Relationships/Autonomy: Individuals desires to live together, to marry, or to raise their children in certain ways have come face to face with other concerns. In recent cases, the Supreme Court has found that a persons decision about how to conduct his family life often rises to the level of a fundamental right. o Moore v. East Cleveland: Court struck down a zoning ordinance which allowed only members of a single family to live together. 5. Right to Procreate: Skinner v. Oklahoma (EP Grounds, has DP in there) o Invaidated a Oklahoma statute- compulsory sterilization o Marriage and Procreation are FUNDAMENTAL strict scruinty 6. Privacy Interst (sub due process-like analysis to protect fundamental right) o Griswold v. Connecticut: Contraceptive case Wanted to protect privacy interst of married persons to have contraceptives Take Aways: Fam Autonomy o Focus on family as defined by blood, adoption, or marriage (Moore, elle Terre) o Focus on parents right to control certain aspects of childs upbringing (Meyer, Pierce, Troxel) o Broad and narrow constructions of the Troxel holding; Courts use of the term liberty interest instead of fundamental rights o The court has greater difficulty when there are family members with competing fundamental rights
XXVII. Right to ABORTIONNN (Roe v. Wade, Planned Parenthood v. Casey,
Gonzales v. Carhart) Abortion Follows after Griswold o Extends right to privacy to the abortion context o Roe v. Wade held that the womans right to privacy was a fundamental right under the Fourteenth Amendement. Therefore, the legislature had only a limited right to regulate abortions. It described the trimester rule, which is no longer in effect. o Court held a womens right in deciding this issue herself was a fundamental one which could only be outweighed if 1) there was a compelling state interest and 2) the state statue was narrowly drawn Planned Parenthood v. Casey: The Modification of Roe o Abortions status as a fundamental right has been overturned, as well as the trimester framework. o May restrict abortions as long as they do not put undue burdens on the womans right to choose Undue burden is when the regulation has the purpose or effect of putting a substantial obstacle in the path of a woman seeking to abort a nonviable fetus. Under this standard, if the regulations merely create a structural mechanism by which the state may express profound respect for the unborn, and do not place a substantial obstacle in the womans path, the regulations will be upheld. o Gonzales v. Carhart: Upheld federal ban on partial birth abortions Made it a crime to carry out an abortion by intact D+E Not an undue burden Congress was free to legislate to show its profound respect for the life of the life within the woman XXVIII. Other Fundamental Rights: Sexual Orientation, Education, Procedural Due Process (Obergefell, Goldberg v. Kelly, Board of Regents v. Roth, Mathews v. Eldridge)
EDUCATION: San Antonio v. Rodriguez
- Texas school financing scheme based on local property taxes o Opportunity of education where the state has undertaken to provide it, is a right which mut be available to all on equal terms - Take Aways o No fundamental right to education under DP clause o No heightened standard of review for wealth classifications under the EP clause - Alienage Discrimination o Near rational basis standard that deal with self-government and democracy Right to vote Right to run for office o Plyer v. Doe Undocumented aliens are NOT subject to strict scrutiny analysis - Procedural Due Process - INDIVIDUALIZED DECISIONS o Whether or not you can maintain your employment , etc. - Was there an individual decision? - Has the government deprived a person of a life, liberty, or property interest recognized under the due process clause? o Property interest: Goldberg v. Kelly (termination of welfare benefits without a pre-termination hearing)- can include welfare benefits, etc. o If so, what process is due? Matthews v. Eldgridge: is every instance of deparavation going to require all of the kinds of DP procedure that Goldberg v. Kelly mentioned (neutral judge, transcript, bring your own advocate) Identification of the specific dictates of due process requires consideration of three distinct factors o Private interest that will be affected by the official action [specific class of people e.g. poor people rather than individual person) o The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards o Governments interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail
Interests in Liberty or Property
HYBRID EP/DP Cases:
Classifications that interfere with an individuals ability to exercise a
fundamental right may get strict scruinty either the Equal Protection or Due Process or both o Only women may have abortions- Equal protection, as it is a class that discriminates against women o Ex. Everybody born on Mondays cant drink Due Process: Interferes with a fundamental right