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Whenever you have to decide whether a congressional statute falls within an enumerated power, check the Commerce Clause

first. It encompasses a broad variety of congressional power.

5 of 14th Amend. 1) Does it violate EP clause and then does act enforce EP clause under Boerne?

The Standing requirement emanates from Art 3 which extends federal judicial power to cases and
controversies. The Standing requirement promotes (1) judicial restraint and (2) SoP b/c it limits judicial
attention to matters b/w individual parties who have a stake in the controversy b/c they have actual
STEP 2: Is there standing?
If an Advisory OpinionNo standing, need a case and a live controversy. This is outside the context of
a litigated case b/c only gives advice about particular legislative and executive action.
If this is a citizen suit provisionNeeds standing
Constitutional Requirements1. Injury in Facta. Concrete and particularized to the plaintiff; not a generalized injury of the public. Need to
suffer more than the public at large. (Lujan- no standing bc there was a generalized
b. Injury must be imminent or actual; not speculative. Must be likely. See if the economic
harm is direct.
c. Mere ideological objection is not an injury- Exception: Taxpayer standing for
establishment clause. If the question is how much the govt can take, there is standing
b/c there is injury, BUT if the question is what can the govt do with the money once they
have the money, there is no standing except for taxpayer standing.
2. Causal Nexus: injury must be fairly traceable to the challenged conduct (can have this without
having an injury in fact).
3. Redressability: There must be an adequate remedy which the Court can provide. Relief sought
must be able to eliminate your injury.
a. Past injury is redressed by money damages, future injuries redressed with injunction. 2
common situations where this arises is where you dont name the party who should supply
the relief or the ct decision would not provide the relief (Lujan)
4. Targets: targets are people subject to regulation, much easier for targets to have standing than
for beneficiaries.
STEP #3: ALWAYS INCLUDE Alternative Merits Based View to Standing
Under a merits based approach, rather than asking who has injury in fact, the ct asks if the P has a legal
right to judicial enforcement of a legal duty? If yes, then Congress has intended to give a legally
enforceable right to sue and plaintiff can sue regardless of traditional standing criteria. This is a question
of statutory construction- (if statute says that any citizen can sue, then there would be standing). Look at
legislative intent. However, ct has not adopted this method.
If citizen suit provisions are allowed, then ct intended to give citizens the right to sue.
Note: See what they are suing under, if DCC-then it protects everyone from states interference with ISC, even though 1 can
argue it protects only non-citizens of the State instead of State citizens.

The SC wont hear cases that the Constitution leaves to the discretionary powers of the other branches.
(Baker v. Carr). Thus, Art 3 case and controversy must be justiciablecommitted to the court.
Requiring justiciability ensures (1) Concreteness actual parties w/ actual disputes; courts perform better
where concrete factual disputes exist, & (2) Judicial Restraint/SOP keeps courts out of other branches
STEP 2: Discuss the factors for deciding what makes it a PQ
Factors for deciding what makes an issue a PQ and therefore non-justiciable (inappropriate for
judicial attention) from Baker v. Carr- claim didnt involve any of them so it was not a PQ.
A. Jurisdictional Factors: (1) Does the Constitution empower another branch to deal w/ the issue?
B. Merits-based: (2) Does the Judiciary lack the resources or apparatus to provide adequate discovery
and management standards to give the P adequate relief?
C. Prudential/deferential The need to speak with one voice as a Federal Government:
(3) impossibility of deciding question w/out making an initial policy determination;
(4) impossibility of resolution w/out disrespecting other branches;
(5) unusual need for unquestioning adherence to a political decision already made;
(6) potential for embarrassment from varied pronouncements on a single question
D. Reapportionment issues are NOT PQs
E. Examples:
(1) Foreign Relations strictly delegated area to the President who speaks for the nation
(2) Constitutional Amendments Court hesitant to intervene and decide whether an amendment
has been adopted; remember constitutional amendments are a primary check on the judiciary.
(3) Redistricting/gerrymandering-Ct is reluctant to hear cases about this
(4) Congressional appointments
STEP 3: Is the controversy ripe or moot?
A. Mootness LIVE controversy (i.e. unsettled such that a favorable judgment will address injury).
Exceptions to the Mootness Doctrine
(1) Voluntary Cessation of a challenged practice that D can resume at any time.
(2) Wrong capable of repetition but nonetheless evading review b/c the review does not occur
quickly enough (e.g., abortion lawsuit)
B. Ripeness need a present controversy, not just a remote possibility of future conflict. P must show
actual present harm or immediate threat of harm.
1. Luther v. Borden-Non justificable PQ bc it was under Guaranty Clause and this was up to Congress
to decide and not the cts, introduces judicial restraint and judicial activism.
2. Nixon v. US-Senate shall have sole power to try all impeachments so this is a PQ and Senate and not
Ct should have the power.


Executive Authority
Art 2- Executive power shall be vested in a Prez that he shall take Care that the Laws be faithfully
executed and that he shall be Commander in Chief of the Army and Navy of the US (but Congress has a
role in regulating armed forces).
Purpose of Separation of Powers: promotion of efficiency and accountability (through a strong
executive), prevention of tyranny by separating the creation of law from the enforcement of law and by
making sure one branch doesnt get too strong and have too much power.. The President has no right to
make laws, he may only carry them out. Prezs power to issue an order must stem either from an act of
Congress or from the Const itself (Youngstown).
Jacksons zones of presidential authority- Presidential powers fluctuate in 3 categories, although this is
not spelled out in Constitution. (Youngstown concurrence)
STEP 2: Does the Constitution or Congress expressly grant the executive branch the power?
IF YESPresident can act b/c his power is at a maximum.
IF NOJustice Blacks formalist approach would say that the Prezs action is unconstitutional if not
expressly enumerated in Constitution or contained in Congressional legislation.
STEP 3: Apply categories from Jacksons concurrence
(1) Has Congress spoken on the issue at all?
Categories from Youngstown Jacksons concurrence which Ct adopts in Dames & Moore:
1. Maximum Power: when President acts pursuant to express or implied congressional authorization.
2. Moderate Power: when Prez acts in the absence of either a congressional grant or denial of authority,
he is said to be in the Zone of Twilight where he and Congress may have concurrent authority or in
which its distribution is uncertain. Where Congress remains silent look to (a) statutory language in
related legislation (broad or narrow in scope)(b) subsequent congressional acquiescence; (c) look at
history, is this an area where the President has traditionally had broad power? Silence could mean
implicit approval if in furtherance of Congressional silence, (Dames and Moore) or expresius uniusif they specified other stuff and didnt include this, it could mean implicit disapproval, Look at
circumstances to see if it is ok
3. Lowest Power: Where President acts in direct contradiction to the express or implied will of
Congress, Presidential power is at its lowest and the court should strictly scrutinize Presidential
action. (ex. Steel Seizure) President is disobeying a federal law and such action are only permissible
if the law enacted by Congress is unconstitutional. Look at the history here. If in this category, act
needs to withstand heavy scrutiny or else is will be held unconst.
STEP 4: Is it a matter of foreign affairs?
In a matter of foreign affairs, Prez enjoys a large amount of discretion- Curtis Wright. As opposed to
domestic affairs, foreign affairs concerns are more sympathetic and deferential to President since the Prez
needs to speak with a unified voice to avoid embarrassment and President is more knowledgeable in this

area. Dames & Moore said, in a matter of foreign affairs, Prez can take actions not authorized by
Congress or enforce laws Congress has not passed

Dames & Moore-Carter froze assets and blocked removal or transfer of all property in the gov of
Iran. Ct applies Youngstown categories and says Congress has implicitly sanctioned the Prez to do
this (was silent on the issue and it means there was implicit approval and this is a case of
foreign affairs).

Executive Privilege
STEP 1: WRITE THISThe so-called executive privilege is a Presidents qualified right to w/hold confidential 411 from the other
branches of government relating to the performance of her duties. It is qualified, b/c it is justiciable
(subject to judicial review). It is the province of the Court, not of the President, to decide the scope of the
privilege, Marbury.
1. US v. Nixon the need for 411 in a criminal prosecution outweigh Presidential desire to keep that 411
private by invoking executive privilege.
2. Cheney the need for 411 in a civil prosecution does not carry the same urgency, and doesnt trump the
privilege of the executive to w/hold 411. Especially where the nature of the suit, itself is a fishing
expedition for possible violations of law (as opposed to requests to substantiate actual claims of violation)
Note: Presidents try to invoke the privilege as minimally as possible, and the Courts uphold invocation

Legislative Authority
Separations of powers not expressed in the constitution but there is a notion of strong, independent
branches of government, but also a notion that they should not be too independent b/c the branches should
exercise checks and balances on each other. The president executes the law, congress makes the laws, and
the judiciary interprets the law. The purpose of separation of powers is to promote efficiency and
accountability and prevent tyranny from other branches getting too strong and having too much power.
STEP 2: Was Congresss action legislative or executive? (argue both!)
1) Look at whether:
The act seems legislative given the presumption of legislation when Congress is acting.
The exercise of authority will affect the legal rights of individuals? (e.g. deporting Chadha = leg)
An alternative means for achieving the result exists (e.g. a private bill)
The act has overruled the decision of a member of the Executive (e.g. Attorney General in Chada)
Congress is acting through an agent.
If Legislative Step 3
STEP 3: When Congress acted, was there bicameralism and presentment?
When Congress acts, must meet 2 requirements to avoid (1) violating SOP, & (2) tyranny, Chadha.
1. bicameralism: passage of bill by both houses
2. presentment: bill must be presented to Pres for it to be signed or vetoed

If no B&P, Congress is violating SOP and infringing on Executive power

Exception where the Constitution expressly provides that B&P is unnecessary:
Executive Appointments
INS v. Chadha stands for the proposition that a Congressional reservation of a one-house veto is
unconstitutional b/c Congressional action requires bicameralism & presentment.
Functionalism argument: the one-house veto had the same effect as the old systemone house
voting no (vetoing) is the same as both houses voting no, or one voting no and the other yes.
Ask : Is this promoting accountability?
STEP 4: Is it a legislative function being delegated by Congress?
1) Congress can delegate power as long as it is not delegating it to itself (Bowsher). No
congressional self-aggrandizement allowed-Congress cannot try to take away executive authority to
make itself stronegr.
Argue both formalist approach and functionalist approach.
a. Formalism (Burger)
Branches must strictly adhere to the powers granted so if its a legislative function being delegated by
Congress which will not be subject to bicameralism and presentment, the delegation is
unconstitutional according to the Art 1, Sec 7. (Chadha: legislative veto is unconstitutional because it
violates the 2 requirements for legislation. A report and wait provisions would be ok though.
Ex. Bowsher- executive authority
b. Functionalism (White)
This approach gives fidelity to the purposes of the separation of powers and it only find a violation if one
branch aggrandizes its power at the expense of another or if there is a radical redistribution of power. If
not, than delegation is OK. Ex: Morrison.: No aggrandizement b/c the original legislation delegating the
power was approved through bicameralism and presentment, and Congress retained a check on the
legislation through a one-house veto).
STEP 5: Is Congress appointing or removing an officer?
A. Appointing- Appointment Clause (Art 3, Sec 2) gives the Pres, not Congress, the power to appoint
principal federal officers.
1)Principal officers- must be appointed by Pres with the advice and consent of Senate.
Ex. of principal officers. members of Cabinet, ambassadors, federal judges
2) Inferior officer-Congress can appoint them.
Ex. of inferior officer- special prosecutor (may be removed only for cause). Too see if it is an
inferior officer, see if its duties are limited in purpose and time- must be for it to be an inferior
officer. Exec branch will be denied power to appoint and remove inferior officer even when the
appointment is related to purely executive power- this is bc AG has the power to remove, not the
Prez. (Morrison)

Note: Morrison accepted some inter-branch appointments, but not appointments by Congress.

B. Removing-Congress cannot reserve for itself the power of removal of an officer charged with the
execution of the laws, except by impeachment. The exec branch may be deprived of the power to remove
an inferior office if the appointment was related to purely executive power.

Ask if Congress retain the right to remove an executive officer? If yes, this converts that officer
into an agent of Congress, and legislative officers cannot perform executive functions.

Bowsher-Comptroller general was part of the legislature since he can be removed by Congress
(since Congress does not have the power to remove an executive officer) and was doing executive
powers so it violated separation of powers.

STEP 6: Did this have to do with war?

Art 1, Sec 8: Congress shall have the power to declare war, to make rules concerning captures on land
and water, to raise and support armies, to provide and maintain a navy etc. Unconst if Prez is declaring
Art 2, Sec 2: Prez shall be the commander in chief of the army and navy of the U.S.

SoP & Terrorism

Hamdi v. Rumsfeld
Facts: Hamdi, US-born, was captured by Northern Alliance and suspected of fighting w/ the Taliban.
Issue: What is the power of the executive to retain a citizen as an enemy combatant?
Government: Holding citizens as enemy combatants falls w/in the powers delegated to the
President to prosecute wars. Furthermore, President is acting at the height of his power as
Congress has authorized the detention. Under these circumstances, the judiciary should restrain
itself from intervention in individual determinations.
Hamdi: Presidential actions are generally subject to judicial review, Marbury, Youngstown. Writ
of habeas corpus renders all detentions subject to judicial review.Detention based on classification
as an enemy combatant. Thus, he has the right to appeal that determination to the open courts.
Plurality (OConnor, Rehnquist, Kennedy, Breyer): Detention is authorized. Problems with the
executives position: (1) U.S. citizen can be an enemy combatant, but he has the right to the writ of
habeas corpus. Entitled to the opportunity to present evidence to say that he is not the enemy
combatant. Even if the government has the authority to hold enemy combatants, that is not him
Justice OConnors scheme: (1) Procedure: Rebuttable presumption is okay. Hearsay evidence
is okay. (2) Evidence: Mobbs report (Hamdis details of where he was captured) not enough to
show that he is an enemy combatant Hamdi must be allowed to rebut the Mobbs report
Hamdi has the burden to prove he is NOT an enemy combatant. (3) Tribunal has to be a
neutral tribunal, but could be a military tribunal.
Souter, Ginsburg: AUMF doesnt empower exec. w/ detention authority here
Scalia, Stevens: Make a distinction b/w aliens and citizens vis--vis enemy combatant. B/c he is a
citizen, the government must either (1) put him in the CJS, or (2) suspend the writ of habeas
corpus. Congress has not suspended the writ AUMF not explicit enough to serve this purpose.
The plurality is on shaky ground in w/ its fix-it mentality, trying to make everything fit.

Thomas: This is an executive decision, most important role he has is defending the country


STEP 1: WRITE THISThe 10th amendment provides that "the powers not delegated to the United States by the Constitution, nor
prohibited by it, are reserved to the States respectively, or to the People." This Amendment today seems to
limit Congress ability to regulate the states.
STEP 2: Is Congress passing a generally applicable law?
IF YESnot infringing on 10th amendment. Cite Garcia which involved generally-applicable law
under ISC theories that applied to all parties where the states were treated the same as private parties.
IF NO Cite Garcia-Protection of states comes from Congress and not from the Courts. Congress
can regulate state and federal gov. It is not the role of the cts to interpret the Const. very deferential to
Cite NY v. US, when Congressional action applies to the States as States (not generally applicable
Note: The fact that the regulation affects the states has virtually no practical significance, and the 10th
amendment never comes into play. If the regulation would be valid if applied to a private party, it is also
valid as to the state.
1) See if Congress is commandeering the states- The 10th amendment prevents Congress from
interfering in certain ways with a states law-making process. Congress can regulate but may not
"commandeer the legislative processes of the states by directly compelling them to enact and enforce a
federal regulatory program but can encourage them by giving them incentives. N.Y. v. U.S., ex.
conditional spending might be a way to commandeer
2) See if there is an accountability problem: When the federal government compels states to regulate,
the accountability of both states and federal officials is diminished. Congress cannot escape political heat
for unpopular decisions by forcing state officials to make those decisions.
3) See if Congress is compelling an executive branch to perform functions- Congress may not compel
a state or local governments executive branch to perform functions, even ones that are ministerial (easy
tasks, no discretion). Printz v. US

Art 1, Sec 8: Congress shall have the power to regulate commerce w/ foreign nations, tribes, and among
the several states. It also has the power to pass legislation that is necessary and proper (useful not
absolutely essential, McCulloch)
Gibbons v. Ogden: The Federal commerce power reaches only interstate commerce, not activities
wholly w/in a given State. Regulation of wholly intrastate commerce is reserved to the several States by
the 10th Amendment.
Congress cannot legislate if actions: (1) are completely internal to the state, (2) do not affect other
states, and (3) do not require Congressional regulation
STEP 2: Does commerce power reach this activity?
See if it is intrastate or interstate activity:
The Commerce power reaches three different types of activities:
a. Channels of ISC (Darby, Gibbons)
- highways, waterways, air traffic, hotels
- Congress can regulate this even if the activity seems quite intrastate
b. Instrumentalities of ISC (Heart of Atlanta- regulation of people, Darby-minimum wage)
- Things used in carrying out commerce: ex. railroads, ferries, machines, people (hours and wages).
- Congress can regulate this even though the threat may come only from intrastate activities
c. Activities that have a substantial effect ISC (Wickard)
Case comparisons:
If it is the beginning of a stream of commercecite NLRB v. Jones- Manufacturing is just the
beginning of a stream of commerce. The activity that Congress wants to regulate may occur
substantially before the interstate movement or long after the interstate commerce. Congress can
regulate anything as a means to end of regulating interstate shipment of goods.
If motive and purpose are being consideredcite US v. Darby- Says motive and purpose are
no longer considered. Expanded ISC to touch intrastate activity that substantially effects ISC, as
long as it does not violate the Const.
If Congress doesnt regulate it, there might be a coordination problemcite US v. Darby, ex.
hard to make a minimum wage in one state if other states dont have one, would lead to a race to
the bottom and unfair regulation.
If Congress is posing conditions on an activity that substantially affects ISCUS v. DarbyCongress can impose whatever conditions it wishes upon the privilege of engaging in an activity
that substantially affects ISC, so long as the condition does not violate the Const. Congress can
regulate anything as a means to end of regulation of ISC.
STEP 3: Is the activity commercial?
IF YES If the activity is a commercial/economic transaction, then it doesnt matter whether the
particular instance of the activity directly affects ISC as long as the instance is part of a general class of
activities that collectively have a substantial effect on ISC. Wickard says that even if activities are local
and not regarded as commerce, government can still regulate them if they have a substantial effect on
ISC. The cumulative effect theory says that Congress can regulate not only acts taken alone which
would have a substantial economic effect on ISC, but also an entire class of acts that would have a
substantial effect on ISC so you can aggregate the effects. Broad interpretation of ISC.

Wickard v. Filburn- Government set quota for wheat, and said that even though this seems like
intra state activity, there is a cumulative effect if people dont followwheat prices will increase
and affect commerce. Because Congress can regulate an entire class of acts and can aggregate
the effects of local activities, it has broad authority under the Commerce Clause concerning
commercial activity.

IF NONo aggregation
Lopez- Congress overreaches it Commerce Clause authority when it seeks to aggregate the effects
of non-commercial activities to justify it actions, Lopez. Lopez which sought to control guns in
schools, is distinguishable from Wickard in that the purpose of the Lopez regulationcontrolling
guns in schools was a non-commercial activity. Also, crime is traditionally left to the States
Morrison- Cant aggregate non-commercial activity, Congress cannot broadly regulate violence
against women. Usually a state area or regulation.
IF NO Look at these to see if there is a substantial effect on ISC even when its not economic.
1) Need a Jurisdictional element-an obvious connection b/w the activity and ISC for Congress to be able
to regulate it. Have to prove that the affected item of commerce has passed through ISC. If no
jurisdictional element, this is not fatal to the act but it is harmful. Ex: Lopez- needed to show that an
element of the crime of having the gun at school is that the gun had passed through ISC, could not do it
b/c it is tough to prove something substantially effects ISC if it is not commercial).
2) Legislative Findings: Just the existence of findings or history of substantial affect on ISC is not
sufficient to prove its const, but it is helpful. Ex. Morrison, Lopez.
3) Rationality Test: from Heart of Atlanta. Congress must have a rational basis for finding that this
activity substantially relates to ISC & the means selected to achieve the end must be reasonable.
Heart of Atlanta- expansive view of CC, hotel discriminating against people impedes
interstate travelinstrumentalities of commerce so Congress can prevent hotel from
discriminating since commerce is adversely effected when people have no place to stay. Motive
doesnt matter as long as is it substantially related to Commerce
Other considerations:
1) Is this regulation an area of traditional state concern? This is important because we do not want to
blur lines of political accountability. Crime, family law, and education are traditional state or local
concerns- Lopez. However, these can be outweighed by showing that a national solution is needed and
that one states choice heavily affects other choices.
2) Should we give deference to Congress- motive is irrelevant. Even though a motive may seem
suspect, Ct will not interfere as long as the CC is applicable
3) Is this a national necessity? CITE NECESSARY AND PROPER CLAUSE (Ex. States not doing a
good job in regulating violence against women so there was a need for the national government to step in
but didnt become important in analysis of constitutionality of Act and effect in ISC in Morrison and it
was still held unconst)
4) Is there a coordination problem? There is a legitimate coordination problem if this might frustrate the
purpose of other states. In Darby, the Ct argued that without coordination, businesses would relocate to
states without minimum wage/hour laws to give themselves an unfair advantage. Travel usually presents

coordination problems, such as could go to neighboring state. If it would be difficult to regulate on state
by state basiscoordination problem.
5) Is the act commandeering a State function? (NY v. US): Congress cannot commandeer the state
legislative process to adopt a federal regulatory program via the CC. This violates the 10th
amendment. This set limits on regulating states activities. See if the act is compelling or prohibiting
state/local conduct.
A) Exception: Generally applicable law that applies to states as well as individuals is ok and
does not violate the 10th amendment. (Garcia). Cannot target only state/local action.
B) Not commandeering if just applying federal law
6) Would it threaten Federalism and political accountability? If legislation blurs the line of political
responsibility, then it may result in confusion as to whether to lay blame on the state or the federal govt.
7) Stare Decisis: judge could make argument that Lopez cannot be overruled.


Art 1, Sec 8 gives Congress the power to tax & spend. Its a fairly broad power that gives Congress the
ability to condition the receipt of federal money by the States on their promise to spend it a certain way.
IF GOV IS TAXING16th amendment: Power of federal government to tax w/o limitation, gives
tremendous authority to the national gov. Note: Congress can tax but cannot regulate.
State cant tax the fed gov (McCullouch v. Maryland)
IF SPENDINGIndependent power to spend- Congress has the power to spend for the general welfare
or to further one of Congresss other enumerate powers
Conditional Spending: Congress can give federal funds to the states with strings attached but
there must be a close connection b/w the spending and the regulation. Congress can specify a
condition but not a regulation. A regulation is valid only if its falls under delegated powers.
STEP 2: If conditional spending, does spending meet these requirements? (from SD v. Dole)
1) Condition must protect the general welfare (Court is deferential to Congressional judgment
w/ regard to what is necessary for the general welfare)
2) Condition must be unambiguous (Clear such that the States can make informed choices).
3) Condition must be related to the spending- spending must be related to a federal interest or
national project or program and cannot be too broad (e.g. SD v. Dole- drinking age is related to
highway safety,
4) No independent constitutional bar: Cannot coerce into unconst. conduct. Congress cannot
use the money to circumvent the Const. States must have a choice. (you cant induce a state to
do something that would be unconst).
1) Doesnt matter if the regulatory impact of the spending/tax could be achieved directly by the use of
another enumerated power.
2) Congress can condition funding on a states waiver of Sovereign Immunity
STEP 3: Is Congress overstepping its bounds?
1) If there is coercive pressure compulsion. States must have a choice. Distinguish b/w
encouragement and compulsion.
2) If lines of accountability are being blurredcant do it.

Art 2, Sec 2: The President has the power, by and with the advice and consent of the Senate, to make
treaties provided 2/3 of the Senators present concur.
Art 6: Treaties, current & future, under the Authority of the US, shall be the supreme law of the land.
Missouri v. Holland (1920)- tells us that Treaty Powers are not limited by the 10th amendment and
Congress can use the treaty power to regulate things which it could not by regular legislation
STEP 2: Can Congress regulate through a treaty?
Congress can regulate through a treaty as long as:
1) A state law that conflicts with a treaty is invalid.
2) Treaty cannot violate Const.
3) Treaty cannot trump individual rights (Reid v. Covert)


Art 1, Sec 8- assigns the CC power to Congress
The DCC applies when Congress has neither supported nor prohibited actions by the several States;
thus, there is Congressional silence. The primary concern is how the judiciary ought to interpret this
The inquiry: WWCD? What would Congress do (have done) in this situation?
The purpose: To prevent State infringement on ISC.
STEP 2: Does the act regulate commerce?
Heart of Atlanta- movement of ppl across state lines for economic purposes is commerce (but it
regulated commercial activity).
STEP 3: Is the law facially discriminatory against ISC?
1) Are there geographic requirements? If the law is geographically discriminatory, then there is a
presumption of invalidity, City of Phil v. NJ (e.g.. restricted to Ga only, or 75% restricted to Ga.)
Carbone stands for the proposition that geographical discrimination is essentially
discriminating about state lines.
2) Are there in-state costs/benefits v. out-of-state cost/benefits? (ex. hoarding a local resource). If so,
that is discriminatory.
3) Are out of state residents facially discriminated/subject to different treatment? If so, this would
be interstate discrimination even if discriminating against all out of state parties or even if in state parties
affected also, Carbone
4) Discuss Underlying Theories and see if they apply:
Political: when a state impedes ISC, it is dividing our unity and creating political divisions. See if
this could lead to balkanization bc you dont want to separate the state from the rest of the union.
Economic: Court needs to step in and police the political process to keep states from imposing costs
on other states. See if this could lead to costs on out of staters.
Free trade- when states regulate, they interfere with the free market and everyone loses. See if this
would interfere with regulation of free trade.
IF YESper se unconstitutional
1) Requires the State to make a rigorous showing of no alternative to achieve this compelling/legitimate
state interest, City of Philadelphia (It was based on need, not geography)
Legitimate state interests: Facially discriminatory State actions are Constitutional ONLY IF they
affect the health, safety, or general welfare (e.g. quarantine laws).
If the State action affects ISC, but does not protect health/welfare, then this action does not fit w/in the
quarantine exception, Maine v. Taylor.

2) Protectionists measures of states economic interests are unconstitutional b/c unduly burden ISC.
Discrimination must be based on goods and not geographic origin. State cannot cost-export.

If there is a legitimate state interest and its effects on ISC are incidental (a mere burden), then the law will
be upheld unless the burden on ISC is clearly excessive in relation to the local benefits
Balance the Local Benefits v. Burdens on ISC, City of Phil
1) Less deference will be given to the state legislature where the local regulation has a disproportionate
effect on out of state residents and businesses or when there is a discriminatory intent/effect.
2) Protectionist legislation is unconstitutional under the DCC, even if its purpose is to promote safety
rather than economic purposes.
e.g. Kessel v. Consolidated Freightways (the Iowa truck case). States purpose for regulating is to
protect the safety of its citizens (facially neutral). Thus, applied balancing test. This is a burden
on ISC bc these trucks would have to go on backroads and would cost companies a lot of money
to get new trucks and no real safety benefits so benefit does not outweigh the burden.
STEP 4: Does market participant exception apply?
1) If the State is a market participant, then it appliesaction is not presumptively invalid. As a market
participant, the State, like any private industry, is permitted to show favoritism to in-state citizens.
State University common example of State as market participant
State can choose to whom they want to sell a product they manufacture
o e.g. Reeves upheld law that prohibited the sell of governmentally produced cement outside the
State. Distinguished from the trees in South Central Timber in that cement, unlike trees, is not
a natural resource and required the expenditure of capital and labor to produce.
State can choose who works on its product.
o e.g. White upheld law that mandated 50% of employees working on a city construction
projects had to be local residents.
2) Exceptions to Market Participant Exception (When State is acting as market regulator)
Regulation cannot be too downstream if it is, then it is unconstitutional. Ex. South Central
Timber. Downstream regulation occurred when the state tried to control what happens to timber
(processing) after it was sold. Look for the state doing something else after the fact. (ex. regulating
subcontractors instead of employees is downstream).
Restrictions on foreign commerce-state restrictions on foreign trade are subject to stricter scrutiny.
Federal govt must regulate commerce with foreign nations.
MPE does not apply to natural resourcesunconst (South Central Timber- natural resource.)
Can only hoard if state is investing capital and labor in manufacturing a produce. Cant affect related
markets- state can affect the market it participates in only. Ex. South Central Timber: state is a
market participant in the sale of timber but not the processing of it and all export of timber was
banned. Definition of market needs to be narrowly defined as only encompassing initial act of
selling not all steps to follow.


11th amendment- the judicial power of the US shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against any one of the states by citizens of another state, or by
citizens or subjects of any foreign state."
Textually, the 11th amendment. clearly bars suits against a state brought by citizens of a different state
or by foreigners. The 11th amendment has been interpreted to apply also to bar a damage suit where
the plaintiff is a citizen of the defendants state. This is true even if the suit is based on a
congressionally-granted federal right.
Purposes of the 11th Amendment: (1) Prevention of obligation of state treasury to pay out federal
judgments; AND (2) avoid indignity to the state of being subjected to judicial proceedings at the
instance of private individuals.
STEP 2: Is this an exception to the 11th amendment?
1) Can sue a state official for an injunction but not damages when violates federal law or Ps
constitutional rights
2) Can sue a state official for money damages if paid out of officials pocket
3) Federal government can sue a state
4) No SI for localities- Individual can sue a city or county. Look to the source of funding to see if it is
local. Must see if a judgment against that entity will operate largely as a suit against the state treasury.
Other relevant factors: extent of state control over the entity, the type of functions the entity performs,
and how the state has designated the entity.
5) State can consent to suit in federal court
6) Conditional spending- consent to waive SI for money.
7) Only time a citizen can sue a state in federal court without consent is when Congress passes statute
pursuant to its power (Section 5 of 14th) to enforce the Civil War amendments (Equal Protection
STEP 3: Is P a citizen of a different state or same state than the defendant state?
States have a constitutionally-guaranteed sovereign immunity from private damage suits brought against
the state in the states own courts, Alden v. Maine
STEP 4: Is this a suit by states or federal government?
11th Amend does NOT bar federal suits brought against one State by (1) another state, or (2) Feds.
STEP 5- Has Congress abrogated the states sovereign immunity? ASK 2 QUESTIONS
1) Has Congress has unequivocally expressed its intent to abrogate the immunity AND
Congress must provided an "unmistakably clear" statement of its intent to abrogate
2) Has Congress has acted pursuant to a valid exercise of power.
Congress is acting properly pursuant to a valid exercise of power if Congress employs its
remedial powers under Section 5 of the 14th amendment. Thus, Congress may ONLY abrogate
the states 11th amendment immunity via 5 of 14th amendment, Katzenbach v. Morgan.
o Congress can no longer abrogate State sovereign immunity via the Commerce Clause, but
it can condition $ (spending power) on the waiver of sovereign immunity, S.D. v. Dole.
STEP 6: Always mention where there is a right there is a remedy:
Cite Marbury v. Madison. Citizens are not powerless, have redress against state action for grievances bc
Congress can abrogate (take away) sovereign immunity through Sec 5 of 14th amendment.


IMP: 1st see if what state is doing is constitutional under EPCFA or DPCFA.
Now that the state has the power to act, we need to look at the relationship b/w what activity is
unconstitutional and what activity has been made illegal by the statute.
Sec 5 of 14th amendment: Congress may abrogate (overcome) a states SI if it is a valid piece of
legislation enforcing a Reconstruction act (13th, 14th or 15th amendment)
Under Boerne, (1997) Congress does not have the power to redefine the scope of the rights protected by
the Civil War amendments in a way that is different from the way the Supreme Court would define their
scope. However, Congress can seek to remedy or to prevent constitutional violations. Thus, Congress
may prohibit conduct that is not otherwise unconstitutional as long as the legislation is congruent and
proportional to the constitutional violation as defined by the courts. Congress can regulate more
broadly and has deferential power when dealing with a Reconstruction Amendment. Congress cannot
make substantive changes in constitutional law, but it can expand rights(not dilute them).
Note: 14th & 15th Amend. Cant be used to reach purely private conduct (doesnt involve State in anyway)
STEP 2- The Court accepts remedial/preventative theory of Congressional actionThe Court says what is unconstitutional & inviolate of 14th Amend. 5, 14th Amend empowers Congress to
adopt remedies/preventative measures to unconstitutional conduct as defined by the Judiciary, Boerne.
2 types of remedies
1) Complex remedial - complex process to achieve a remedy of past const. violations.
2) Preventative remedial - legislation to prevent future const. violations.
STEP 3 Identify: (1) the unconstitutional conduct Congress is trying to reach, (2) what Congress is
Courts employ a rational standard to determine unconstitutional discrimination, meaning unless they are
applying heightened scrutiny or undue burden, only irrational discrimination is unconstitutional (not
related to a legitimate governmental interest)
Heightenedunconstitutional if its not narrowly tailored to achieve compelling govt. interest
Undue burdenunconstitutional if it places a substantial obstacle in obtaining an abortion
STEP 5- Boerne test (congruent and proportional):
Under Boerne, Congresss action has to be "proportional and congruent" to the constitutional violation
as defined by the judiciary, lest the Congressional action be invalid.
1) Pattern of discrimination- refer to the legislative record to show that there is a pattern of
unconstitutional behavior. (past lawsuits)
Ex. Garret- fact that there wasnt a lot of lawsuits against the states for discriminating against
people w/ disabilities shows that there wasnt a pattern of irrational discrimination. Might be able
to be countered by the fact that there is SI so people know they cant sue a state.
2) Congruence & proportionality b/w remedy and conduct
3) Difference b/w outlawed activity and unconstitutional activity must be small (Schapiros circle)
Over- and under-inclusiveness
Unwarranted Responses to inconsequential problems

o Garret-Congress did not have Sec 5 power to bar the states from discriminating against
employees with disabilities. State argued that disabled were not a suspect class (Cleburne).
The duty of accommodation went far beyond what could possibly been required to address
the small EP violations the states were allegedly guilty of. Thus not congruent and
proportional and Congress failed to show a pattern of irrational discrimination in
employment (what is unconstitutional)
Nevada Dept of Human Resources v. Hibbs- Ct upholds FMLA as a valid exercise of Sec 5
authority. There was a pattern of discrimination by only giving maternity leave and not paternity
leave and it is congruent and proportional to the conduct b/c there is a fixed time limit for unpaid
leave. This is narrowly targeted unlike Garret which targets all discrim against the disabled.

STEP 6: Consider the commandeering problem from NY v. US.

Not commandeering if it is general Garcia.
See if certain kinds of state actions are required.
Ok if it is just following federal law (not being forced to make policy or law)
Allowed to do federal action contemplated to apply to states under 14th amendment


14th Amendment: No state shall deprive any person of life, liberty, or property w/o DP of law. The Bills
of Rights (fundamental rights) places limitations on the power of the Feds. DPCFA incorporates
limitations to the several States.
STEP 1: Is there a fundamental right implicated in the act?
Fundamental rights are those that are deeply rooted in this Nations history and tradition.
1) Textual argument Even though there is no explicit grant of a privacy right in the Constitution,
Griswold holds that privacy rights are embodied in the penumbra of the 1st, 3rd, 5th, and 9th amendments.
2) Precedent based argument? I.e. cases involving privacy or autonomy. Especially relevant in cases
involving: marriage, bearing children, raising children, declining med treatment
Griswold, Eisenstadt, Roe, and Casey: right to sexual autonomy as a means of self-definition.
Griswold: Unconstitutional to prohibit use of contraceptives b/c of fundamental right to privacy. This
is about the sacred precincts of marriage
Eisenstadt: Unconstitutional to prohibit sale of contraceptives to unmarried persons. Right to
reproductive autonomy now exists even in non-private situations (outside of the bedroom)
Roe: Fundamental rightt to privacy includes right to choose. Right is qualified by a State legislation
that is narrowly tailored to serve a compelling State interestthe bar or restriction is so narrowly
drawn that it fulfills only the State interest and does not reach more.
Casey: Abortion is no longer a fundamental right and restrictions on it are no longer to be
strictly scrutinizedmust analyze under the Undue Burden Test
o if it is not related to a substantial state interest or if it is too limiting on the womans right, even
if there is an interest, it will be an undue burden. Can require informed consent, info by dr.
and 24 hour waiting period, but cannot require husband notification.
o State can regulate ban abortions post age of viability if it includes an exception for the
health of the mother.
West Coast Hotel- overruled Lochner. No fundamental right to contract. State can protect freedom of
oppression as wells as health, safety and morals.
o Law imposing minimum wage for is valid b/c it protects their freedom from oppression.
Sternberg: partial-birth abortion (post-viability) bans must include an exception for the health of the
mother lest it serves as an undue burden.
Lawrence: overruled Bowers. Right to autonomy & privacy are fundamental. Bowers asked too
narrow a question- if there was a right to homosexual sodomy.
o TX statute criminalizing only homosexual sodomy unconstitutional b/c it furthers no
legitimate governmental interest..
Zablocki: fundamental right to get married, such that a law prohibiting marriage by persons who owe
back child support is unconstitutional. (This case combined w/ a few others makes the prohibition
against homosexual marriage hard to uphold).
Washington v. Glucksberg: decisions related to autonomy do not necessarily implicate fundamental
rights. No fundamental right to assisted-suicide or to commit suicide.
Cruzan: Fundamental right to refuse unwanted medical treatment. If the right to bodily integrity
means anything its the right to choose whether to undergo a given medical procedure. Does extend to
situations where death will occur in the absence of the treatment
o Where person is in a PVS, the family can decide to refuse medical treatment on her behalf if
they can show by clear and convincing evidence that the decision is in accord w/ her desires.

3) Tradition- Is right deeply rooted in the nations history & tradition? Was it around in the countrys
laws or customs when the 14th Amendment was adopted?
If no specific tradition, try the general tradition of privacy and bodily integrity.
o E.g. Abortion, suicide, & sodomy were illegal historically in the U.S. Thus, they lack a
favorable tradition and were not expressly contemplated as being protected by the 14th Amend.
But the penumbras inclusion of a right to privacy does enjoy such protection; those activities
fall w/in privacy. Argue whether activity involving privacy.
4) Factors the Court usually considers when invoking the 14th Amendment: (1) marital relationship,
(2)intimacy, (3) criminalization, and (4) unusual law
STEP 2- Apply Strict Scrutiny for fundamental rights, and rational basis for mere liberty interests
STRICT SCRUTINY: For governmental action to be constitutional w/ regard to limiting a fundamental
right, the action must be narrowly tailored to promote a compelling State interest.
Interests related to the police power are compelling State interests, Lawrence
o Morality is could be a compelling State interest, IF it doesnt intrude too deeply into the
private lives of individuals, Lawrence
Narrowly Tailored
o Over-inclusiveness: burdens a group w/o advancing State interest (i.e. more than necessary).
o Under-inclusiveness: fails to burden a group that would advance State interest
o Alternatives (i.e. least restrictive means) of finer calibration are indications that Act is NOT
narrowly tailored.
RATIONAL BASIS: For governmental action to be constitutional w/ regard to limiting a fundamental
right, the action must rationally related to a legitimate State interest.
Difficult to strike down a law as unconstitutional under this test.
Morality is always a legitimate State interest.
UNDUE BURDEN (abortion): For statute to limit right to abortion, it must not impose an undue burden
on the womens access to the procedure
Casey, abortion is not a fundamental; thus, all abortions, pre- and post- viability, are subject to the test
Statutes restricting abortions pre-viability are more suspect as constitutional violations than post Examples of constitutional restrictions: (1) informed consent requirements, (2) mandatory 411 about
alternatives, 24-hour waiting period
Unconstitutional restrictions: (1) total bans pre-viability, (2) total ban post- w/o exception for mothers
health, (3) consent of/notification to husband
STEP 3: Does the statute commandeer the regulatory apparatuses of the several States?
Congress cant commandeer States regulatory functions; act must pass constitutional scrutiny, NY v. US.
STEP 4: Congruence and proportionality
14th Amend, so apply Boerne (p.15-6)


nor shall any State make or enforce any law which shall deny to any person within its jurisdiction the
equal protection of the law.
Reverse incorporation: EPCFA applies to the Federal Government by way of the Due Process clause of
the Fifth Amendment.
Congress lacks authority to outlaw private discrimination; EPCFA applies only to State actions.
STEP 1: Is the State classification involve a suspect class?
Suspect Classes: race, ethnicity, national origin, color creed
Quasi-Suspect: gender (p.
Special (not sure what to call it): sexual orientation (p. 2
1) Whether the class is suspect depends on:
o Never b/c it doesnt mention race or gender
History of 14th Amendment
o Framers had race in mind, as its purpose was to protect African-Americans (race) by striking
down explicit racial discrimination.
o Nations history plagued w/ invidious race discrimination
Problem of stigmatizing or creating a caste system b/c the characteristic about which the classification
is made is (1) immutable and readily identifiable
o Immutable traits (unchangeable) require protection b/c those w/ the characteristic can do
nothing to change it.
o Identifiable minority the characteristic creates a class b/c it is so readily identifiable
Concerns about the political process
o Prejudice undermines the political process and makes democracy fail.
o Where other groups have historically refused to form coalitions w/ a given group b/c of their
common characteristic, that group needs protection in the political process, lest their minority
voices fall silent.
Race is a discrete and insular minority
STEP 2: Apply appropriate Standard of Review (apply both if unsure)
IF NOTRATIONAL BASIS (applies to wealth, age, disability, mental retardation-Cleburne)
Rational Basis
Typical legitimate governmental interest is an exercise of the police power
Often a means-end analysis.
State usually wins b/c of judicial deference.
o Law that discriminate against an identified class need only be rationally related to a legitimate
State interest if that class is not suspect
1) What prompted passage in the first instance (i.e. what is the real purpose)?
2) Harp on the deference afforded legislative action under rational basis scrutiny
a. When Congress identifies a problem, it is up to that body to determine the contours of the
problem and the appropriate remedy, Williams v. Lee Optical
b. One step at a time. Congress need not address an entire problem at once. It can ban activities
piecemeal. Counter argument to you dont allow X, but you do allow Y

c. Special interest legislation is irrelevant. It is not the province of the court to support a class who
has lost a legitimate legislative battle (e.g. tobacco lobbies).
3) It is the Legislative Branch, not the Judiciary that is accountable to the people.
a. If Congress makes the wrong decision, the political process will sort it out.
b. Problematic argument when Congress discriminates against a class w/o political power. Certain
groups cannot find protection in the legislative process (discrete &insular minority)
4) Must have a rational basis.
a. Cleburne: Statute required group home for the mentally retarded to get a special permit.
FAILED rational basis review b/c it was under-inclusive and lacked any relation to a legitimate
governmental interest.
b. Protection from mere prejudice is not a legitimate interest (reasons why ordinance is invoked is
so absurd that they are obviously prejudicial)
5) Is the rule over-inclusive? Discuss less restrictive means
6) Is the rule under-inclusive? May be irrational if a more finely calibrated rule exists, BUT this is
particularly susceptible to the one step at a time argument.
a. Beazer exemplifies constitutional State action notwithstanding both over- and underinclusiveness: NYCTA prohibited employment of persons using narcotics, including methadone
(drug for recovering heroine addicts); methadone users are not a suspect class. Its important to
decision that administrative costs to make a tighter-fit classification would be very high.
Strict Scrutiny
Analyze the actual purpose. Government bears the burden of showing that a compelling interest
cannot be established though less restrictive means.
For action to be repugnant to constitutional based on strict scrutiny review, the classification must
have disproportionate effects b/c of the classification, not in spite of it. That is to say, unintended and
incidental effects on suspects classification w/ survive strict scrutiny, Washington v. Davis.
1) Is it race specific and facially discriminatory against insular minorities?
When there is facial discrimination or race specific legislation then there is a presumption of
discriminatory purpose. You dont have to show an actual discriminatory impact, the risk of
discriminatory impact from a facially discriminatory law is enough, Strauder
Korematsu: Court applies strict scrutiny and upholds law placing Japanese-Americans in camps b/c
the law was narrowly tailored (too difficult to separate the loyal from the disloyal, so put them all in
camps) to promote a compelling State interest (national security).
o The last case in which a racial or ethnic classification survived strict scrutiny.
2) Is it race specific but facially neutral?
No specific proof of discrimination needed
If yes, go to Step 3, Narrowly Tailored Analysis
Rationale for applying strict scrutiny to facially neutral law
o Bade of inferiority if race-specific
o Creates potential for creating a caste system once we classify by race and separate
o Separate is inherently unequal
o Lesser standard is too easy to pass given the high cost of a racially stratified society
o Brown: Segregation in schools unconstitutional. Separate schools are unequal b/c the purpose
of segregation is to subordinate African-Americans to Caucasian-Americans; violates EPCFA.

o Loving v. Virginia: law criminalizes marriage b/w white person and non-white person is
unconstitutional. Despite equal application to all races, the purpose to protect the alleged
superiority of the white race (emphasis mine).
3) Is it facially neutral and not race specific?
Must prove a discriminatory purpose/intent to pass strict scrutiny where racial classification is
absent; exception for voting restrictions)
While mere disparate impact passes strict scrutiny, facial neutrality is not a shield, Yick Wo
o Yick Wo: facially neutral statute pertaining to permits to operate cleaners had an overwhelming
negative impact on Chinese-Americans on the left coast
o Washington v. Davis: DCs requirement that applicants to the police pass a literacy test passes
strict scrutiny despite the disparate numbers in passage rates b/w Caucasian-Americans and
African-Americans, especially where police force had policies in place to attract minority
applicants. (disparate racial impact is important but never solely sufficient to prove
discriminatory intent)
Discriminatory effects are insufficient b/c of slippery slope. Many State actions have a
disparate impact. EPCFA provides for equal opportunity, not equal results.
Proving purpose:
o Effects on suspect classes (relevant but not dispositive)
o Statistics
E.g. McKleskey: Victims race impacted imposition of the death penalty. Although
death penalty law is facially neutral, its application has a racially disparate impact.
Nonetheless, its constitutional b/c it was applied in spite of race, not b/c of it. Thus, no
established purpose apply rational basis review.
o Classification adopted because of its effects on a suspect class (purposeful discrimination=
heightened scrutiny), not in spite of effects on suspect class
STEP 3: Is it narrowly tailored?
Cannot be over- or under-inclusive
o Over- discuss less restrictive alternatives
o Under- discuss unburdened group whose inclusion would further the compelling interest
STEP 4: Is act congruent and proportional?
14th Amend, so apply Boerne (p.15-6)

Affirmative Action & EPCFA

Purpose of 14th amendment is to remove the huge blemish on the face of this great nationracial
Croson stands for the proposition that all affirmative action programs that classify on the basis of
race are subject to strict scrutiny, even if they are designed to remedy this nations discrimination
against minorities, namely African-Americans.
Adarand stands for the proposition that strict scrutiny to Federal & State governments.
A race-conscious affirmative action plan must be adopted for the purpose of furthering a compelling
governmental interest, and the racial classification must be necessary (no racially neutral alternative) to
achieve that interest.

STEP 3: What constitutes a compelling governmental interest?

1) Remedying past general societal discrimination is not a compelling governmental interest, Croson.
2) Remedying past specific discrimination by State actor is a compelling governmental interest, Croson
Must show specific, identifiable & current discrimination
Can use stats, but have to use the right ones (comparisons b/w whole & local pops insufficient)
o Must be clear and convincing
Objective must have a close nexus w/ undoing past discrimination trying to balance the work
force (render minorities more economically successful) is not a tight enough fit.
3) Diversity in higher education is a compelling State interest, Bakke
Quotas are NOT ok, but giving bonus points to minority applicants is fine, as long as the bonus is
too large.
Redressing clear past discrimination and the pursuit of diversity in the student body are the only
things that pass strict scrutiny, Grutter
Make the argument that the classes percentages tend to be the same annually (e.g. Latinos
comprise 13% of every class) and thus, the school effectively operates w/ a quota
STEP 4: Is the remedy narrowly tailored to achieve this interest?
1) Are viable (versus arbitrary) race neutral alternatives available?
2) Have they been considered?
14th Amend, so apply Boerne (p.15-6)

Gender & EPCFA

Sex-based classifications receive intermediate scrutiny, Craig v. Boren. Intermediate scrutiny requires
that the intentional classification is substantially related to an important governmental interest.
1) History: 14th Amendment-there is nothing in the text or context. Purpose was to address race. But past
discrimination of women does exist.
2) Stigma: there are both immutable and identifiable characteristics. Lesser treatment was based on
physical differences and perceived physical inadequacies, which led to a caste system. Well, gender might
not be so immutable these days, but it is outside the States authority to demand one change her gender.
3) Political Process: technically women are not a minority in the electorate and women are not a minority
and they are not discrete and insular.
4) Benign as well as invidious: The same standard of review is used whether the sex-based classification
is "invidious" (intended to harm women) or "benign" (intended to help women, or even intended to
redress past discrimination against them), Michael M
5) Stereotypes: Legislatures are permitted to pass laws if real differences b/w genders are involved, but
not based on stereotypes alone, Craig v. Boren (either gender can attack classification)

STEP 2: Apply Intermediate Scrutiny

US v. VA VMI cant exclude women on the theory of building a citizen soldier when (1) genderneutral alternatives exist to achieve the same goal, (2) the State doesnt provide an equal alternative
for women. The governmental interest is building a citizen-soldier, not using the tactic that was
effective in a male-only environment.
Craig v. Boren Statute prohibiting men under the age of 21 from purchasing 3.2% beer, but not
women in the same age bracket was passed to ensure traffic safety b/c 10x more men than women in
that age bracket were involved in traffic accidents. Court said that the statute was not substantially
related b/c (1) it was over-inclusive, (2) the amount of accidents of that age group compared to all
accidents was de minimis, (3) the DUI stats may have been unreliable due to evidence suggesting
women were convicted less just for being women.
Michael M. Statutory rape law applied only to men who had sex w/ women under the age of 18.
Court upheld the statute b/c true differences existed b/w the genders: (1) women, not men are the ones
who get pregnant, (2) women have a natural disincentive, State can create an artificial one for men, (3)
wanted to fix teenage pregnancy and the subsequent taxation on the State welfare system.
Note: Non-marital children get intermediate scrutiny also (children whose parents are not married to
14th Amend, so apply Boerne (p.15-6)

Sexual Orientation & EPCFA

STEP 1: Should homosexuality be a suspect classification?
1)Text nothing in text of 14th amendment that says no discrimination based on sexual orientation
2) History it was not a special concern of the 14th amendment like race, there is a history of
discrimination against homosexuals though it makes it more likely to get heightened scrutiny.
3)Immutable immutable b/c one cant change ones sexual orientation. Even if one could change, the
government wholly lacks the authority to impose such a onerous burden on a citizen.
4) Identifiable Notwithstanding the sixth sense that many homosexuals and allies coin gaydar (the
intuition to know when another is gay or lesbian), sexual orientation is not per se identifiable. Indeed,
many homosexuals are in the closet and share their sexual orientation w/ no one. Nonetheless, a groups
lack of ready identifiableness should not exempt it from governmental protection, especially when the
government acknowledges that such a group does in fact exist.
4)Stigma/Caste While the ability to hide ones sexual orientation may reduce the likelihood of
stigmatization, the discovery of the same could reject one to second class citizenship (e.g. known
homosexuals are barred from adopting children and FL, and homosexuals generally are barred from
marrying in all States save Massachusetts).
5) Political Process Issues Although they arent a discrete and insular minority, homosexuals are
susceptible to alienation in the political process due to refusal of others (read narrow-minded
heterosexuals) to coalition build. On the other hand, this might be fallacious argument considering (1)
best estimates place the homosexual population at 10% of the total, and (2) despite this significant
minority, many State governments afford homosexuals some rights and protections.

Say that arguably, discrimination against gays and lesbians should receive strict scrutiny b/c of
discrimination, representative-reinforcement argument (they might be a discrete and insular minority).
Nonetheless, the supreme court has not extended the suspect categorization to homosexuals.
STEP 2: Rational Basis Review
Although Bowers ruled out suspect classification when it upheld a GA law that outlawed homosexual
sodomy, Lawrence overruled that decision stating that the privacy right includes the ability to engage in
intimate consensual acts, even homosexual ones, w/o the stigma of State condemnation.
Romer v. Evans stands for the proposition that classifications concerning homosexuals are subject to
rational basis review. But the standard appears to be stricter in applicationrational basis w/ bite, if you
will (Scalia, J. dissenting)
It affords homosexuals a good deal of protection purpose cannot be arbitrary, unreasonable or pretextual
A bare animus to harm a politically unpopular group is not a legitimate State interest.
Mere moral antipathy to a particular conduct is not a legitimate State interest b/c morality, alone, is
not a legitimate State interest.
The people cannot subject the rights of a politically unpopular group to a vote
Maybe if the CO referendum were a result of a Kulturkampf and not, in fact a fit of spite, then the
Goodrigde: Massachusetts decision that stands for the proposition that a ban on same-sex marriage does
not further a legitimate governmental interest.
STEP 3: Would it pass strict scrutiny if it were applied?
14th Amend, so apply Boerne (p.15-6)