c

1.JUDICIAL REVIEW
Judicial review is a ~

 by  c
wh
h   c

h g
 

c w
h
h C


.
A.c aby
. a~  x undelivered commission; Jefferson doesn¶t want to deliver
it and says it isn¶t valid until delivered. Marbury sues in Supreme Court for writ of
mandamus to Madison to deliver the commission. There were 3 issues in Marbury:
1) Does M have vested right to his commission (yes)
2) Is there a legal remedy (justiciable or political ?) (yes, justiciable)
3) Is the remedy a writ of mandamus from the Court? NO!
The big deal in a

 is that Marshall uses it to announce the Court¶s power of
judicial review, and 
 
 




  . §13 of the Judicary act, which purports to give the Court
jurisdiction over this matter, is void b/c repugnant to the Constitution. Congress
has no power to tamper with the Court¶s original jurisdiction. Only the appellate
jurisdiction.
B.c ÷hat is the c of the power of judicial review?
1.  
 x
a) Art III §2 Judicial power extends to cases ³arising under the Consitution´
b) Art VI Supremacy x the Constitution is the supreme law of the land.
2. 
c
 x The Judiciary¶s specialty is deciding conflicts of law. This is the
essence of the judicial duty; Executive and legislature are too political to be trusted to
do it.
3. 
c x Constitution was designed to trump lower laws; but this doesn¶t
mean Court is the sole interpreter. Apparently the legislature regularly abdicates its
responsibility to decide constitutional limits. There seems to be some suggestion
from the Federalist papers that judicial review was intended by the founders as well.

LIaI ON JUDICIAL REVIEW

A.c C ~ C


 
a.c No Generalized Grievances
1)c ë may not sue solely as a ³taxpayer´ or a ³citizen´ interested in having the
gov¶t follow the law.
2)c ›    ›

a)c Taxpayers may challenge gov¶t spending as violating the Establishment
Clause against religion.
i)c ›
If the gov¶t gives $ directly to religious schools.
b)c Taxpayer may not challenge a gov¶t grant of land as violating the
Establishment Clause (only $).

2.c Ripeness
a.c Generally court may not review a statute until it is has been violated.
b.c Factors
1)c Hardship that will be suffered w/o pre-enforcement review.
2)c Fitness of the issues and record for judicial review.

c
c

c.c ›
Drug companies were allowed to challenge FDA reg that required them to
add expensive labels to drugs.

3.c Mootness
a.c If ë¶s injury ends after the lawsuit is filed, the suit is dismissed as moot.
b.c ›
 
1)c ÷rong capable of repetition but evading review.
2)c Voluntary cessation.
3)c Class action suits.

4.c Political Question Doctrine

a.c Courts will not hear political question cases.
b.c Examples automatically dismissed as political questions:
1)c Republican Form of Government Clause
a)c ›
voters adopt a law by initiative, not representation.
2)c Challenges to President¶s foreign policy.
a)c Signing of treaties.
b)c ÷aging war.
3)c Challenges to impeachment and removal process.

c

c  x Art III §2 c  c


 y requirement; Congress cannot overcome
this limitation by legislating standing.
1.c Iy  c
x real and imminent, not speculative; must be concrete
and particularized and actual or imminent; e.g. injury in Lujan was too
speculative (maybe she¶d go back to the country)
2.c C 
 x injury must be linked to ¨¶s conduct
3.c R ~ b x there must be a judicial remedy; no intervening actor
who will prevent relief from decree

c c
 x Court-imposed; ³may´ be lifted by Congress, but
modern Court is relying more on Constitutional standing doctrine to overcome
this.
Constitutional standing problems cannot be eliminated by Congress. See Lujan v. Defenders of
÷ildlife no standing b/c no concrete injury (Constitutional concern), only speculative. Also, in
„  , Rehnquist says any prudential concerns were eliminated by Congress¶ conferral, but not
the constitutional case or controversy requirement.
 c

cc ccc
2.c ]
c
cc
 c cc x must be w/in zone. Zone
can be broad or not, just as Congress likes.
3.c c x strongly disfavored; if policy affects
everyone equally, its better remedied through legislative process;
cannot use the courts to air generalized grievances about the
government.

c
c

D.c   C
R
 w

1.c ÷rit of Certiorari

a.c Virtually all cases come to the U.S. Supreme Courtby writ of certiorari

2.c Final Judgment Rule

a.c Supreme Court may only hear cases after a final judgment.
b.c There is no interlocutory appeal.

3.c Independent and Adequate Ground

a.c To review a State court decision, there can not be an independent and adequate
state law ground of decision.
b.c If State decision rests on state federal law, and reversal of the federal
judgment will not change the outcome of the case, then the Supreme Court can
not hear it.
1)c ›
If ë wins both a state law battery claim and a federal discrimination claim
and gets the same damages, it is non-appeallable.

÷ccc
cc
a) Constitutional authority; In Martin v. Hunter¶s Lessee , VA challenge to §25 of
the Judiciary act allowing S. Court review of highest state court judgments
rejecting state law claims. J. Story says Art III x cases arising under Federal law
and supremacy clause are grants of authority.
b) Uniformity x necessary if Federal law is to be supreme. Also, gives certainty,
efficiency

· ~  

1. McCulloch v. Maryland,
Issue 1 x Can Congress establish a national bank (held : yes)
‡ MD says, this wasn¶t a delineated power so its reserved to the
states. Court says powers of Fed¶l gov¶t are not completely
delineated. Constitution must be flexible. No ³expressly´ b/f
delegated in 10th Amendment means there are implied federal
powers.
‡ MD says, necessary and proper means only what¶s minimally
necessary. Framers intended to enable Congress to choose best
means to accomplish its end (let the end be legit«and all means
which are appropriate«are constitutional). Necessary and proper
was in the powers section, not the restrictions section.
Issue 2 x Can MD tax the bank? Fed law is supreme and state can¶t
hamper fed gov¶t by taxing Fed¶l institution for benefit of only one state.
4. US Term Limits v. Thorton, p 115 (challenge to Arkansas constitutional
amendment requiring term limits for fed and state officers).
Both sides take formalist approach. Majority says: text x Art I §2 cl 2
list of qualifications is exclusive. History x Hamilton and Madison

c
c

opposed Congress adding qual¶s. Structure x 10th Amendment reserved

powers can¶t relate to fed officials b/c they didn¶t exist b/f ratification.
Dissent says: text says nothing; history x Jefferson said states could add
qual¶s and some did; structure x connection is between people of a state
and the fed gov¶t. People of a state should be able to impose qual¶s on
THEIR representatives.

II.c h · ~  L g 

Pw 

A.c Cg  A
h
y
 Ac

1.c There must be an express of implied power.

2.c Necessary and Proper Clause
a.c Congress may use any means not prohibited.

3.c Taxing and Spending Power

a.c Congress may tax and spend for the ³general welfare.´

4.c Commerce Clause

a.c Channels of interstate commerce.
b.c Instrumentalities or persons or things in interstate commerce.
c.c Activities that have a substantial effect on interstate commerce.
1)c Economic impact.
2)c If area being regulated is non-economic, then substantial effect can not be
based on cumulative impact (i.e, violence against women).
d.c › : all forms of intercourse that go across state lines, trucks, phones, the Internet.

5.c 10th Amend. Limit on Congressional Powers

a.c Congress may not compel state action.
VIII. AXING AND PENDING POWER AR I §8 CL 1
A.c  
=>
Congress shall provide for the common defense and general welfare of the United
States.
Congress shall have Power To lay and collect Taxes
D.c g =>
Test« look at the face of the tax. If it collects revenue and it says it collects revenue,
its valid.
C.c  ~g =>
1.c Spending can be done for any general welfare purpose
2.c Rules
a.c must be for a general welfare purpose
b.c any condition imposed on the recipient must be unambiguous
c.c condition must be related to the fed¶l interest in the particular nat¶l project
d.c condition must not infringe on any other constitutional right

c
c

3.c Examples
a.c Funding for roads conditioned upon 21 drinking age
Purpose was to build nat¶l network of roads
Condition was unambiguous
Condition was related to purpose (keep roads safe from underage drunk
drivers)
Condition wasn¶t unconstitutional

D.c D  g
  Pw 

1.c No limit on Congress¶ power to delegate legislative power to executive or judiciary.

2.c Legislative vetos and line-item vetos are always unconstitutional.

a.c Must be bicameralism.
b.c Must be presentment to President to sign or veto all of the bill in its entirety.

3.c Congress may not delegate executive power to itself or its officers

III.cCOaaERCE CLAUE (AR I, §8, CL. 3)

IV.ch C c C
V.c The Constitution has been interpreted by the Supreme Court such that Congress has three
broad areas of power under the Commerce Clause: (1) to ³regulate the use of
  of
interstate commerce´, (2) ³to regulate and protect the  
  ´ or ³persons or
things´ in interstate commerce even if they only relate to ³intrastate activities´, and (3) to
regulate activities ³     
  to interstate commerce´. (Lopez)

A. GENERALLY
‡ created to eliminate trade wars between states (protectionism), strengthen nat¶l
economy, facilitate trade (no individual tarifs)
‡ In early days, Court struggled w/ def of commerce (manf¶r vs trade, direct vs
indirect, etc). Post New Deal jurisprudence became more unified, and much
broader power (Congress must have rat¶l basis, and that¶s enough), but post Lopez
the rules may be changing a bit.
‡ This is still the broadest source of Congress¶ power to enact legislation
D. COPE O· E POWER?
1. In the beginning, there was å  . (p 159) NY steamboat
monopoly licence vs Fed'l licence under commerce power. Fed'l law wins b/c
steamboat between states x interstate commerce. Marshall says:
a) commerce x intercourse. Can regulate between states, and also
intrastate if it affects interstate commerce.
b) limit on commerce power x political checks. But, Marshall said in
McCulloch (p 95) there's also a pretext test (true goal of law is something
not reachable by Congress), then Court can invalidate.

c
c

c) Doesn't reach purely intrastate activities

^ c c
cc
c
Although this started with materials that "pollute" IC channels (lottery
tickets (Champion), so-called white slavery (Mann Act), eggs pickled in
boric acid (Hippolite)), the general concept covers pretty much all
movement in interstate commerce or trade across borders. Congress has
much success simply stopping things at the border. Includes all

c

, and sometimes people (convicts).

c
 comes into it here, b/c Congress has authority to exclude
goods from IC. Motive is essentially irrelevant (except in Hammer, and
that was overruled)
 cc
c c
Congress can protect railroad lines, etc from blockage (Shreveport,
Southern Railway (defective couplers) p 167))
c!c
c
c
Some activities that may appear to be local could be characterized as
actually part of a larger flow of interstate commerce. ÷hile the "throat" of
commerce analysis from Ô 
 (the Stockyard case) was pretty much
consumed by the broad post-New Deal approach, it has some independent
force. For example, if schoolyards were a place where guns manufactured
in interstate commerce were traditionally traded and then re-distributed,
that might have made a difference in Lopez.
 c"
c#cc#c
c$

c

c
c


cccc
ccccc c


c
c . Shreveport rate case (166) reg'l of local rates ok
b/c had a "close and substantial relation" to interstate traffic; look at
practical considerations.
 of local and IC made reg¶l of local
rates necessary to protect IC.

c%
c
c

c
c cx NLRB v. Jones&Laughlin (p
185) reg¶l of wages and hours of manf¶r employees ok b/c if they strike
that will have an immediate paralyzing effect on IC and Congress can
therefore regulate to prevent this. Lb ~ 

h y.
a)c "
c
c c&c' x ÷ickard (p 189); furthest reach
of commerce clause. Farmer growing wheat for his own consumption
still reachable by commerce power. Two reasons x (1) his wheat
overhangs the market and (2) his own demand for IC wheat is
diminished. Trivial on its own, but c of ÷ickard and
his peers is non-trivial.
b)c "
c
c
cc
c'cx US v. Darby, p
191. c
c is reachable, even if some producers are purely
local. Lumber producer didn¶t meet wage/hour req of FLSA. Motive
of law was to prohibit IC of goods produced in substandard cond¶ns.
Court says motive/pub policy is legislative prerogative. Big deal @
this was that local production can be regulated because it competes w/
IC, and would have an unfair advantage if not subject to same
wage/hour regs (race to the bottom). Also, says that the 10th

c
c

Amendment is nothing but a truism (no longer true, perhaps). This

case specifically overruled Hammer and decimated Carter Coal
(direct/indirect, manf¶r/commerce, bad goods/policy judgment)
U  c


h y

c %
c
c
 cc (c cc
cc$%c


c
Maryland v. ÷irtz p 199; all employees in the enterprise can be
reached by FLSA, (affirmed under ³unfair competition´ of Darby or
labor dispute theory of Jones&Laughlin)
d)c c (c cc)*cHodel (200) strip mining
regulation. Upheld but emphasized Cg  ~g on effects
on land utility, pollution, etc that impact IC

c +
c
Heart of Atlanta (203) (hotel discriminated against blacks. This
negatively impacts IC b/c people can¶t find transient housing for
business travel)
McClung x restaurant near interstate discriminated; restricts travel
for IC, also restricts spending by blacks which negatively impacts IC.

2) Non-commercial x US v. L , p 143; possession of firearm in a

school zone. There is no commercial pdt/activity in mind. Idea that it
affects education which affects future workforce which affects IC is
too nebulous. No Congressional findings. Not limited to guns that
moved in IC. No rational basis for belief that this affects IC. Plus,
schools are a trad¶l area of state reg. (like family law, criminal law)
·



 (Kennedy)a    
  
 
 c

c
c,cc# c
Congress must have rational basis for belief that regulation will
achieve goal. The Court often defers to Congressional findings unless
they are irrational.

C. EXERNAL LIaI ON E LEGILAURE AND E COaaERCE CLAUE

1.  
h A ~ 
L

 
=> The powers not delegated to the US by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people.
a) Unless there¶s an extraordinary breakdown in the political process, the

cc
c an otherwise permissible exercise of power violates
the 10th Amendment. States can protect their interests through the
political process, and Court is not well equipped to decide what ³integral´
state functions are (3rd prong of old test from Nat¶l League of Cities).
b) Ec 
 x Congress 
c
cc to enact
federal legislation. Also, while State judges must decide questions of
federal law, Congress 
c
ccc
 to enforce
federal law.

c
c

^. E

h A ~ 
L

)  
=> The Judicial power of the US shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.
b) In some cases a state¶s failure to comply with legislation enacted under
the commerce clause will not be actionable in a Federal Court (and also, it
may not be actionable in State court«depends on a current case).

c c
ccccc- c
c
cc

c
ccc
 c cc
cc,.ccccc
(c
c

cc(c
cc!cccc!cc
d) This is gen¶l sovereign immunity. In Hans v. Louisiana, the Court
interpreted it to include suits by citizens of a state against that state as
well.
e) Exceptions
i. Subdivisions (cities, agencies) can be sued
ii. Doesn¶t apply to spending power (State given $ contingent upon
obeying certain Fed¶l rules, then State can be sued for violating
them)
iii. Gov¶t officials (but qualified immunity)
iv. laws enacted under 13th, 14th, 15th Amendment not covered

VI.cE c

Pw 

A.c D
c A 

1.c Appointment Power

a.c Pres. appoints ambassadors, federal judges, and Officers of the U.S.
b.c Senate confirms.
c.c Congress may vest appointment of inferior officers in Pres., the heads of Dep¶ts,
or lower federal courts.
1)c ›
Congress may vest appointment of independent counsel w/ federal court.
d.c Congress may not give itself or its officers the appointment power.
1)c ›
Congress creates a new agency and gives some appointment power to the
Speaker of the House or the President Pro Tem of the Senate (its
unconstitutional).

2.c Removal Power

a.c Unless limited by statute, President may fire any executive branch officer.
b.c Congress may limit removal to good cause when independence from the Pres. is
desirable.

3.c Impeachment and Removal

a.c Pres., Vice-Pres., federal judges, and Officers of the U.S. can be impeached and
removed from office for treason, high crimes and misdemeanors.
b.c Impeachment does not remove a person from office.

c
c

c.c Impeachment by the House requires a majority vote.

d.c Conviction by the Senate requires a 2/3 vote.

4.c Immunity
a.c Pres. has absolute immunity to civil suits for $ damages for any actions while in
office.
b.c Immunity does not apply to actions before taking office.

5.c Executive Privilege

a.c Executive privilege covers presidential papers and conversations.
b.c Privilege yields to other important governmental interests.
+
c
^ c

c
c
cc)*cc
note that these typically involve an attempt to stay on top of the
administrative state. Court is concerned w/ excessive interference w/
executive and if that¶s present there¶s a fear of aggrandizement, and Court
gets formalist (Chadha)

c "c
c$
!c c  
c
‡ This is a way for legislature to retain some power over administrative
state; provision in deportation bill that majority of 1 house can
overrule executive determination of extreme hardship.
‡ Court holds this violates sep of powers based on formalist analysis
x
Text was clear 1) presentment clause and 2) bicameralism;
‡ Chadha means x L g 
 c

  w
h
h  c


 
   


~  



h P ~ 
.

"cc
c(Clinton v. New York) attempt to allow Pres to veto
small parts of huge appropriations bills (stop me b/f I kill again bill)


c

c
c
c
i. Appointments Art II §2
‡ President appoints some specified officers w/ advise &
consent of senate.
6 I   c  x vest authority to appoint in judiciary,
department heads or judiciary but Congress MAY NOT
appoint executive officers themselves (Buckley, p 107)
Anyone with executive authority must be appointed as
clause dictates. Congress can only appoint people who
exercise its own committee power
‡ Bowsher v. Synar (108)x Graham Rudman bill vests
authority in comptroller general (Congressional officer) to
execute law and determine budget cuts. Cg 

w ~
  
  c

 c  , ergo
unconstitutional (violates appointments clause and
encroaches on executive authority) Formalist approach.

c
c

ii. Removal x only explicit reference is impeachment provisions.

Everything else is zone of twilight.
Look to see if practical effect is undue interference w/ executive.
‡ Myers x Congress cannot restrict executive power to
remove officers (refers to officers integral to executive fxn
(report directly to pres))
‡ Humphrey¶s Executor x Myers rule only applies to
purely executive officers (not FCC, not ÷ar claims
commission, not indep prosecutor) Quasi-judicial officers.
‡ Morrison v. Olson (109) x Independent council act
challenge; Upheld in fxnalist analysis. No text b/c
appointed by judiciary (ok under Art III §2), there is some
commingling b/c of good cause for removal provision, but
no excessive encroachment so ok. Also, independent
council isn¶t vital to executive fxn, so need to vest
exclusive removal power in Pres. And, the good cause
requirement isn¶t a huge burden on the attorney general.
Scalia (dissent) says, you¶re creating a new branch that will
aggrandize and disturb the balance of power.
.
 c%c c"cc cc$
c

› 
 no text (immunity from prosecution, privilege is invoked
when asked to hand things over, like tapes)
i. Immunity x Nixon v. Fitgerald Absolute for any action w/in
outer perimeter of his office (from civil suit«criminal is up in the
air, it hasn¶t happened)
ii. Privilege x zone of twilight
a) Absolute ± military diplomatic, nat¶l security
b) qualified ± everything else. But it¶s a balancing test.
US v. Nixon (404) Pres must bend to judicial need, no
excessive encroachment.

III.c DORaAN COaaERCE CLAUE (DCC)

A. EXUAL DAI => NONE. It¶s a negative commerce clause.
Congress has power to regulate IC, but states aren¶t totally prohibited from doing
so. There are two other possible textual bases for invalidating state¶s regulations
x
Art I §10 imports and duties x been interpreted as only against foreign gov¶t
Art IV §2 x privileges and immunities
D. WA I DOE x
Limits the state¶s ability to regulate IC. It
  
h ~ w .
C. IaPLIED POWER =>
Of Congress? No«of the Court to protect Congress¶ power
D. DURDEN O· COUR ACION =>

c
c

Congress can act to correct the Court if its wrong by giving State express power.
Does this make the Court sloppy in this area? Its been sloppy«
E. REE PRONGED E => PA AND YOURE OaE ·REE
1. ·c ~ c
? h  y
c
c
y.
a) Does it actually burden out of state actors? If not, its valid. (eg
increased gas tax in CA only burdens us)«If yes, go to b
b) Is there a  g





~  ~ c
y



? (usually focus on 2nd prong b/c of comity«easier to say
your objective is ok but pick another method). If yes, then valid If no,
then go to c
c) look to see if Congress granted express consent. If no, then its
INVALID.
d) LOCAL ~ c
 is also bad
Dean Milk (Madison, ÷I 5 mile processing limit). If allowed this, it could
be an end run around the DCC.
f) NP 
x these are sufficiently commercial that states can¶t
discriminate against out of state non-profits (Camps Newfound«camp
catered to out-of-staters and therefore state discriminated against it. Not
valid under DCC, despite the fact that a non-profit is nominally non-
commercial. But notice that a camp is still a commercial enterprise, it was
just non-profit in this case. Its unclear whether a church is equally
commercial.)
^. P
c

  c
?
a) LOOK FOR:
i. proxy for in-state vs out of state distinction (pineapple brandy) a
pretext test.
ii. did state actors express discrimination?
Comes up in Kassel (p 306) governor said law was
designed to protect Iowa trucking companies
iii. lack of close fit between means and end
Dean Milk x why pick 5 mile radius when you could just
say milk must be processed according to xyz regulation no
matter where its processed?
iv. There must BE AN EFFECT. E.g. law forbidding door-to-door
sales might or might not have been enacted to discriminate against
IC, but it didn¶t have that effect so not invalid
b) If YES, then use strict scrutiny test described above. If NO, then move
along to #3.
3.Dcg 

a) ÷hat it is x
÷here statute is evenhanded with only an incidental effect on IC,
the statute will be upheld unless the burden on IC is clearly
excessive relative to the putative state benefits.
b) look to see if out-of-state interests bear the financial burden. If not, its
valid. If yes, move on.

c
c

c) Does the state have reasonable alternatives? If no, then its valid. If yes,
then move on.
d) Does the state interest outweigh the burden on IC? If yes, then its valid.
If not, then its invalid.
e) CRITICISMS of the Textx
‡ ÷hy should the Court be evaluating validity of state interest?
This is a political ?
‡ Federalism x it invalidates state experimentation in an area
where Congress hasn¶t spoken. This is anti-Federalist
‡ Slippery slope x states are naturally protectionist of their limited
resources. Court is trying to impose equality on an inherently
unequal division of wealth. It won¶t work.
f) Saving grace? If the Court fucks it up, Congress can fix it. But will
they?
C.c POLICY JUI·ICAION ·OR E DORaAN COaaERCE CLAUE
1.c Representation theory x out of state interests have no say in the state¶s political
decisions. Really true?
2.c Economic Theory x nat¶l social welfare is advanced by cooperation between
states. Structure of constitution and purpose of commerce clause support idea that
founders were pro-cooperation.
D.c aARKE PARICIPAN EXCEPION O DORaAN COaaERCE CLAUE
1. Commerce clause does not prevent a state acting as a purchaser or seller of goods
from buying from or selling only to local businesses or from giving subsidies only to
its residents.
^ cc,cx ICC gives Congress power to regulate commerce. Here, the state
isn¶t regulating, its participating. So DCC shouldn¶t forbid this (but isn¶t this the
ultimate form of regulation?)
3.c Other reasons why exception exists x
a. Parity x states should be able to act as any other business would when they¶re
in business
b. Collective action problem x states have to enter some businesses b/c no one
else will do it (roads, public schools). Keeps state from underproducing
c. Federalism x all we are saying, is give states a chance«
d. trivial effect x effect on IC is small
IV.c INERAE PRIVILEGE AND IaaUNIIE (AR IV § ^)
A. EX =>
The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.
D. ONLY APPLIE O ³·UNDAaENAL INERE
1. common calling x practicing law (Piper), Camden (hiring preferences for
Camden residents, p 329)
2. transfer property
3. access to state court system
4. discriminatory taxation
C. WO I PROECED?
1. only citizens

c
c

2. not corporations or aliens

D. E =>
1. State must have a substantial reason
2. Means must be closely related to the reason.

Commerce Clause: federal government can do something because it affects interstate commerce

Dormant Commerce Clause: a state government can't do something because it tramples on

federal government's power to regulate interstate commerce (e.g. you can't say that only locally
produced milk can be sold in your supermarkets).

CC-- In the text of the Constitution; express Congressional power to regulate commerce among
the states.

DCC-- Not in text of Constitution; derived from Commerce Clause; does not directly involve
Congress' authority to regulate commerce; is a power that the Court has read into the Commerce
Clause to limit state and local governments from impeding interstate commerce. It is "an
implicit restraint on state authority, even in the absence of a conflicting federal statute.

L
  c
y

There are three levels of scrutiny that the Court employs to evaluate intentional discrimination
(either facial discrimination or discriminatory motive): (1) strict scrutiny, (2) intermediate
scrutiny, and (3) low-level scrutiny.

÷hat approach will the Court take with respect to a particular kind of discrimination? How hard
are they going to be on the government initially? Some discriminations are wrong and
unjustified, while others are justified and permissible. But what is our initial presumption?

For example, racial discrimination falls into the category of 




 . Other forms of
discrimination don¶t get that kind of presumption of hostility.
If you¶re in the zone of strict scrutiny, the discriminatory law must serve a
 
 
 and the law must be necessary. ot.