Con Law Outline: Dudziak Mary Dudziak Con Law Outline Spring 2013

The Nature of Judicial Review A. Source of Federal Judicial Power a. Art. 3 S 1: Judicial Power of the US shall be vested in one SC and in such inferior courts as the Congress may from time to time ordain and establish. b. Marbury v. Madison: If the Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority to declare the statute unconstitutional and to refuse to enforce it. i. It is emphatically the province of the judicial department to say what the law is. c. Cooper v. Aaron: the federal judiciary is supreme in the exposition of the law of the Constitution. B. Scope of the Federal Judicial Power a. Art. 3 S 2: limits the jurisdiction of the federal courts to: i. Cases affecting ambassadors, issues of maritime, controversies which the US is a party to, 2 or more states, state and citizens of different state, and 2 diverse citizens. b. Arguments for and against the Courts Power i. Bickel: Counter-majoritarian Difficulty: Judicial Review is illegitimate because it allows unelected judges to overrule the lawmaking of elected representatives, thus undermining the will of the majority and democracy's legitimacy arises from the fact that it implements the will of the majority. ii. Ackerman: Dualist-Democracy: Court gives meaning to the Peoples Constitutional Values. C. Limitations on Jurisdiction of Federal Courts a. Case or Controversy i. Art. 3 S 2: Limits the jurisdiction of federal courts to cases and controversies. This means it has to be a real and substantial dispute that touches the legal relations of parties having adverse interests and that can be resolved by a judicial decree of a conclusive character. 1. The SC will not give advisory opinions to either the President or Congress concerning the constitutionality of proposed action or legislation. a. Why? i. Parties would necessarily accept the courts advice, which would erode judicial power ii. Since parties wouldnt have concrete stake in the outcome of the case, they would be less likely to fully brief all issues iii. A real controversy may be handled differently with a narrower opinion issued

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b. Mootness: If a controversy or matter has been resolved, then the case will be dismissed as moot. An actual case or controversy must exist at all stages of the litigation. i. Although the principal issue in the lawsuit has been resolved, if a party still has an interest in resolving collateral matters, the case will not be dismissed. ii. The case will not be dismissed for mootness if the injury is capable of repetition, yet evading review, meaning that it is a practical impossibility for there to be adjudication or appellate review before the claims of the plaintiff or other individuals who are members of the class become moot. Roe v. Wade. c. Ripeness: Whereas mootness bars consideration of claims after they have been resolved, ripeness bars consideration of claims before they have fully developed. The controversy must be ripe for decision; other wise, the federal courts will decide constitutional issues before it is necessary. The court will consider fitness of the issue for judicial determination and hardship of the parties from withholding court consideration. (Immediate threat of harm) i. A case may be dismissed as unripe where a statute has never been enforced and there is no real threat that it will ever be. Poe v. Ullman. d. Standing: Art. 3 requires a person litigating a constitutional question to show i. Constitutional Requirements 1. Injury in fact: The plaintiff must show a direct and personal injury, actual or imminent, caused by the action that he is challenging. 2. Causation: The injury was caused by the challenged action and the injury must be caused by the violation of a duty affecting the plaintiffs rights arising under the constitution or federal law. 3. Redressability: The plaintiff must show that he will benefit from the remedy sought in the litigation. (Lujan v. Defenders of Wildlife) ii. Prudential Requirements 1. Party generally may assert his own rights and cannot raise claims of third parties 2. Plaintiff may not sue as a taxpayer who shares a grievance in common with all other taxpayers 3. Party must raise a question within the zone of interests protected by the statute in question. iii. Specialized Problems of Standing 1. As a general rule, federal taxpayers do not have standing to challenge allegedly unconstitutional federal expenditures on the ground that their injury is comparatively minute and indeterminate: and their interest is too remote. 2. Under the traditional rule: a litigant lacks standing to assert the rights of 3rd parties not before the court, however a. The SC has permitted a party to raise the constitutional rights of third party where he himself has suffered injury and:

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3 i. A special relationship exists between the claimant and third party because of the connection between the interests of the claimant and the constitutional rights of the 3rd person. Craig v. Boren: A vendor of beer had standing to assert the rights of males under 21 in a challenge to a law prohibiting the sale of business. b. The third party himself is unable to or finds it difficult to bring suit on his own behalf. c. An association will have standing on behalf of its members if the following three requirements are satisfied i. The members have standing ii. The interests the association seeks to protect relate to the associations purpose; and iii. Neither the claim itself nor the relief requested require the individual participation of association members. Hunt v. Washington Apple Advertising. d. States have greater standing: Mass v. EPA i. In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. Simply, in order to have standing to sue in a federal court the petitioner must have; injury in fact, causation, and redressability in the claim, these elements are easier to meet if you are a State rather than an individual. ii. Why: state's quasi-sovereign interest in the health and welfare of its citizens or the natural resources of its inhabitants and territory.

e. Political Questions: Federal Courts cannot hear cases involving PQs. A PQ is a matter assigned to another branch by the Constitution or incapable of judicial answer. The SC set forward the factors to determine what a political question is in Baker v. Carr. They are: 1. Whether there is a textually demonstrable commitment of the issue to a coordinate political dept a. Does the power belong in another branch? 2. A lack of judicially discoverable and manageable standards for resolving the issue a. Is it a question for which the executive or Congress is better to answer? 3. The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion a. Policy is not what the Court wants to determine when there is no legal basis.

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4. The impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government a. Separation of Powers: Maybe if politically charges. 5. An unusual need for unquestioning adherence to a political decision already made; and a. If law been out there for 100 years, hesitant to overturn now. 6. The possibility of embarrassment from multifarious pronouncements by various departments on one question a. If the president commits us to something and then court can undo it = embarrassing to the world. ii. There are 2 principal factors related to the PQ doctrine. First, considerations 1,4,5,6 are rooted in the separation of powers. Considerations 2,3 recognize the limitations of the judiciary in resolving certain types of controversies. 1. EX: the ability of a grand jury to subpoena documents in the possession of the President against a claim of executive privilege does not present a political question apart from a claim based on national security (US v. Nixon). iii. Areas of PQs include decisions regarding 1. Impeachment Process 2. Amendment Ratification Process 3. The Presidents power to unilaterally terminate a treaty 4. Foreign affairs; and 5. Guaranty Clause issues under Art. IV. D. The Jurisdiction of the SC a. Under Art. 3 S 2: The SC has original jurisdiction in all cases affecting ambassadors, other public ministers and consuls and those in wh ich a state shall be a party. Congress may neither enlarge nor restrict the Original jurisdiction. Marbury v. Madison. b. Art. 3 S 2: provides that in all other cases before mentioned, the SC shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The SC has the power to i. Hold acts of the other branches of the federal govt unconstitutional. Marbury v. Madison ii. Review state court decisions to ensure that the states act in conformity with the US Constitution and federal statutes. Martin v. Hunters Lessee iii. The SC confirms that Congress does have at least some power to control the boundaries of the SCs appellate jurisdiction. Ex Parte McCardle. Separation of Powers A. Formalism v. Functionalism a. Formalism: Executive branch officials should engage in executive tasks, legislators should engage in legislative tasks, judges should perform judicial tasks

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b. Functionalism: assumes that we have a constitution with checks and balances, not with a wall of separation between the branches and whether the action would impair the checks and balances and the workings of a branch. c. Example case of this: Morrison v. Olsen. Executive power was lessened in order to fill a need that would block the executive from removing his investigator. Formalistic Approach would not have allowed this. B. The Powers of Congress a. Legislative Power: Legislative power is primarily the power to make laws, but incidental to that power is the right to conduct investigations and hearings, consider matters upon which legislation may be enacted, and do all other things necessary and proper to the enactment of legislation. Article 1. i. Congress has enumerated powers to collect taxes and spend money for the general welfare, to borrow money on the credit of the US, to regulate commerce with foreign nations and among the states, to declare war, and to raise and support the army, navy, and militia. Art. 1 S. 8. ii. The Necessary and Proper Clause gives the Congress the implied power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the govt of the US or any department or officer thereof. Art. 1 S. 8. 1. It is in the expansions of congressional power, not in the limitations (Art. 1 s 9. / McColluch) 2. Allows Congress to take any legislative action that is rationally related to the carrying out of an objective that falls within an enumerated power. McCulloch v. Maryland. iii. The Enabling Clauses of the 13th, 14th, and 15th amendments give Congress the power to enforce those amendments by appropriate legislation. b. Commerce Power: Acts both as a source of congressional authority and as an implicit limitation on state power. i. Despite broad language used by the SC in Gibbons v. Ogden, subsequent cases used various criteria to restrict the power of Congress to regulate commerce which concerns more states than one. Today congress can regulate: 1. Channels of interstate commerce (roadways, waterways, and air) 2. Instrumentalities of interstate commerce (cars, planes, boats) 3. Activities that substantially affect interstate commerce. a. Under the affectation doctrine, Congress now has the power to regulate any economic activity, whether carried on in one state or many that has a substantial effect on interstate commerce. (NLRB v. Jones and Laughlin) b. This doctrine was expanded upon by the cumulative effects doctrine, in which the SC held the federal commerce power permitted regulation of the amount of

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wheat a farmer could grow on his own land, for his own consumption, because his activity, together with that of other growers of wheat for their own consumption, had a substantial cumulative effect upon interstate commerce. Wickard v. Filburn. c. Congresss plenary commerce power in not without limits. In US v. Lopez, for the first time in more than half a century, the SC struck down a federal law that made it a crime for nay individual knowingly to possess a firearm in a school zone. Since gun possession near schools is neither an economic activity nor does it substantially affect interstate commerce, and since no jurisdictional element connecting particular gun possession was expressed in the language of the statute, the SC held that Congress was acting beyond the limits of the commerce clause. ii. To validly exercise its commerce clause power under the substantial effects test, Congress must show: 1. That the regulated activity is economic in nature 2. That the regulated activity has a substantial effect on interstate commerce. (When taken cumulatively across the nation) iii. In addition the commerce clause has been used as the vehicle to uphold laws aimed at barring racial discrimination in activities connected with interstate commerce. 1. Congress may prohibit racial discrimination in private restaurants if a substantial portion of the food consumed traveled in interstate commerce. Katzenback v. McClung 2. The SC upheld provisions of the Civil Rights acts of 64 barring discrimination in places of public accommodation as affecting interstate commerce. Heart of Atlanta Motel v. US. th iv. The 10 amendment, which provides that powers not delegated to the federal govt are reserved to the states, or to the people serves as a very weak limitation on the federal commerce power today. Generally, applicable federal laws that regulate the states do not violate Amendment. 1. The 10th amendment does prevent congress from interfering with a states lawmaking processes. Congress may not commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program. a. In NY v. US: The SC held invalid due to the 10th amendment a federal law that required the state of NY to pass legislation to arrange for the disposal of radioactive waste generated within its borders.

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2. The 10th amendment also prohibits Congress from commandeering state executive officials. That is congress may not order state officials to act as administrators of federal programs. a. In Printz v. US, the SC held unconstitutional the federal Brady handgun act because it commandeered state and local law enforcement officers from performance of various acts required by federal legislation. v. Commerce Test Wrap 1. Is it a federal law? 2. Is the Activity within one of the 3 categories of activity that Congress may regulate? a. Channels of Interstate Commerce? (Darby: Shipment / Heart of Atlanta: Accommodations for the public) i. Yes: Commerce Clause usage allowed ii. NO continue analysis b. Instrumentalities or persons of Interstate Commerce? (Shreveport Rate Cases: Railroads) i. Yes: Commerce Clause usage allowed ii. NO continue analysis c. Substantial Economic Effect on Interstate Commerce? i. Is the nature of the activity economic or noneconomic? 1. Non-Economic: Congress cannot regulate via Commerce Clause Power (Morrison) 2. Economic: Does the activity have a substantial effect on commerce? a. NO: Commerce Power cannot be used b. YES: Continue Analysis 3. Is it economic activity or economic nonactivity? a. Activity: Continue b. Non-Activity: NFIB v. Sebelius says not allowed 3. Is there any Constitutional bar to congresss regulation of the activity? a. Is it traditionally left for the states? (Lopez Concurrence) i. NO- Proceed, Yes: May or may not, play with facts b. Does the regulation compel states to enact a fed program? i. NO- Proceed, Yes: Commandeering not allowed c. Is the objective to direct the functioning of the state exec? i. NO- Proceed, Yes: Commandeering not allowed d. Does the regulation violate DP rights of the 14 th AMDT? c. Taxing Power

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i. Art 1 S. 8: Congress has the power to lay and collect taxes, duties, imposts, and exercises, to pay the debts and provide for the common defense and general welfare. ii. A congressional act purporting to be a tax should be upheld as a valid exercise of the taxing power, provided that is does, in fact, raise revenue or that intended to raise revenue. US v. Karagher. iii. As a general rule, the modern judicial trend is to uphold any tax as valid if it is in fact, a revenue raising measure. iv. Check to make sure there is no independent constitutional bar. d. Spending Power i. Art 1 S. 8: Congress has the power to lay and collect taxes, duties, imposts, and exercises, to pay the debts and provide for the common defense and general welfare. 1. The SC has construed the General Welfare Clause as a limitation on Congresss taxing and spending powers and not as an independent source of congressional power. In other words, Congresss power to tax and spend must be exercised for the general welfare of the US, so long as it does not violate other constitutional provisions. US v. Butler. 2. Steward v. Machine Co: Affirms that Congress has broad spending power. When the general welfare is involved, congress can act especially when dealing with a national problem. a. Key is Motivation rather than coerciveness. 3. By exercising its spending power, Congress can require states to comply with specified conditions in order to qualify for federal funds. 4. The Supreme Court held that Congress may place a condition on receipt of federal funds by a state if: a. The spending serves the general welfare b. The condition is unambiguous, must be a clear statute c. The condition relates to the federal program d. The state is not required to undertake unconstitutional action (No Constitutional Bar) ; and e. The amount in question is not so great as to be considered coercive to the states acceptance. (Not really but kind of) SD v. Dole i. The SC rejected SDs 10th and 21st Amendment arguments and upheld Congresss withholding of federal highway funds from states permitting the purchasing of alcoholic beverages by individuals under age 21. e. Civil War amendments i. Congress has the power to enforce the 13th, 14th, and 15th amendment 1. 13th: banning slavery

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2. 14th: prohibiting states from violating due process, equal protection, and privileges and immunities 3. 15th: prohibiting the states from discriminating in voting rights ii. To validly enforce the 14th and 15th amendment, Congress must show that: 1. State govts have engaged in widespread violations of the amendment; and 2. The legislative remedy is congruent with and proportional to the violations. iii. Congress may enforce the 13th Amendment ban on slavery even when the state govts have not violated the amendment. However, Congress may enforce 14th and 15th amendments only when state govts have widely violated those amendments. C. Executive Power a. Chief Executive: The Executive Power shall be vested in a President of the US. This provision confers broad authority in the president to execute the laws of the US. There are few enumerated powers expressly granted to the President under Art. 2. Many of the presidents domestic and foreign power are implied. The SC has held that the president has no power to make laws, but has the power to execute them. Article 2 S2. b. Removal Power i. Although the Constitution is silent with respect to removal power, it is generally agreed that the President may remove any executive appointee without cause. ii. However, the President must have cause to remove executive officers having fixed terms and officers performing judicial or quasi-judicial functions. (FTC members). Humphreys Executor v. US. iii. Congress has no power to summarily remove an executive officer. Bowsher v. Synar. iv. Federal judges cannot be removed by either Congress or the President during good behavior; formal impeachment proceedings are required for removal. c. Veto Power i. Congress has the power to override a veto by a 2/3rds vote by both houses (Art 1 S7.) d. Congressional Legislation and Presidential Power i. The President may exercise only those powers expressly or impliedly granted by the Constitution or an act of congress. Moreover, if Congress validly exercises one of its powers and overrides the President, then Congress prevails over the President. 1. Youngstown v. Sawyer: The President may not validly exercise his power as Commander in Chief to seize a factory to prevent a strike during wartime, if Congresses opposes such action.

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2. Take care clause in Constitution (Art. II, 3) President must take care that laws are faithfully executed a. Congress has legislative power and the executive has executive power. By seizing the mills, the president was doing legislative power, which belongs to congress. Exceeded his authority so unconstitutional. (Formalism) b. Emergencies do not enhance or expand executive power. c. Order to seize was unconstitutional b/c no statute expressly authorized, and no express constitutional language gives President inherent authority. d. Inherent authority is inconsistent with a written Constitution establishing govt of limited powers e. Court says that this argument is bad because there is no Congressional policy thats being directed to be executed, there needs to be a law in order to execute it. 3. Jacksons Concurrence: 3 categories of Presidential Power a. Greatest Amount of Power (President + Congress) i. Acting with express/implied authorization of Congress. Presidents acts are presumptively valid under these circumstances as long as not against the Constitution. b. Twilight Zone of Power (President alone) i. Fact Specific Arguments. 1. Direness of situation, time sensitive c. Least Amount of Power (President against Congress) i. Acting against Congress expressed/implied will. ii. President can only win if his/her constitutional powers are more than the Congress constitutional powers: 1. If president is violating a federal law, will only be allowed if law enacted by congress is unconstitutional e. International Affairs i. Congress may delegate its law-making power to give the President authority to prohibit the sale of arms to a foreign nation engaged in conflict. (US v. Curtis-Wright) (P+C) 1. Authority coming from the plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations ii. Dames and Moore: President does not possess plenary power to settle claims, even as against foreign governmental entities, but where as here the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where as here we can conclude that Congress

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acquiesced in the President's action, we are not prepared to say that the President lacks the power to settle such claims. Falls in Jackson's highest power P + C iii. Medellin v. TX: P or P C. Court ruled that the President needed specific authority to implement a treaty in opposition to state law. Congress did not issue any authority as to this question. iv. Goldwater v. Carter: Treaties may only be created with the advice and consent of the Senate; the President may continue or terminate a treaty without the Senates consent. In fact, the presidents termination of a treaty would be considered a non-justiciable political question, thus removing any judicial roadblocks from a Presidents power to nullify treaties. v. Treaty Power: The President has the power to make treaties with foreign nations by and with the advice and consent of the senate. A2S2C2. 1. Treaties are the supreme law of the land. 2. A treaty is self-executing when it takes effect without the necessity of any action by Congress. Missouri v. Holland. 3. A treaty is not self-executing when it requires Congress to pass federal legislation to implement its provisions. 4. Self-executing treaties are considered the supreme law of the land, where as not self-executing treaties become part of the supreme law of the land when action is taken by congress. D. Congressional Limits on the Executive a. Legislative Veto: when congress enacts a law containing a provision that congress can change the law without a new congressional vote or presidential signature. i. INS v. Chadha: the SC held that a legislative veto violated the constitutional requirements of bicameralism and presentment to the president. b. Presidential Limits on Congress i. Every act of Congress must be approved and signed by the President before it can become law or being disapproved must be passed by a 2/3 rd vote of each House (Art. 1 S.7) c. Judicial Limits on Congress and the President i. The federal judiciary is the ultimate arbiter of cases whose disposition depends upon construction of the Constitution, an act of Congress or a federal treaty. Equal Protection of the Laws A. Constitutional Basis a. The 14th amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. The SC has ruled that equal protection also applies to the federal govt under the due process clause of the 5th amendment.

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b. The guarantee of substantive due process assures that a law will be fair and reasonable, not arbitrary; equal protection review is triggered where persons similarly situated are treated differently. i. Substantive due process review applies where a law affects the rights of all persons with respect to a specific activity (ex. A state law prohibits the sale of birth control devices, except by prescription) ii. Equal Protection review applies where a law affects the rights of some persons with respect to a specific activity (ex. State law prohibits the sale of birth control devices to unmarried, except by prescription) B. Standards of Review a. Strict Scrutiny: the burden of persuasion is on the govt to prove that the measure being challenged in necessary to further a compelling state interest. i. The word necessary means that there is no less restrictive alternative means available. There must be a very close fit between the means and the end. ii. The govt usually fails to prove its burden under strict scrutiny, so the EP challenge to the law generally is successful. (The law is presumptively invalid) iii. Strict Scrutiny review applies to govt action that uses suspect classifications- race, alienage, and national origin. iv. Just because someone gets strict scrutiny does not mean law will be overturned. (Korematsu v. US: Court upholds a military exclusion order directed at Japanese-Americans during World War II) b. Intermediate Scrutiny: The burden of persuasion is placed on the govt to prove that the measure being challenged is substantially related to achievement of an important government interest. i. The key term, substantially related, means that an exceedingly persuasive justification must be shown. Middle tier scrutiny is much closer to strict than rational basis. ii. Intermediate scrutiny applies to govt action using quasi-suspect classifications gender and illegitimacy. c. Rational Basis: The burden is on the plaintiff to show the measure being challenged serves no legitimate government interest or is not rationally related (plausible) to any legitimate state interest. i. Rational Relationship: is a minimal requirement, which means that the law cannot be arbitrary or unreasonable. ii. Practically any police power regulation, which furthers a health, safety, or welfare purpose, will be found legitimate. For this reason, laws scrutinized under rational basis are almost always upheld. iii. Rational basis reviews applies to all classifications not falling under strict or intermediate scrutiny, such as age, poverty, wealth, etc. C. Proving Discrimination

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a. Discriminatory intent must be shown to trigger strict or intermediate scrutiny. Mere discriminatory effect is not sufficient. Discriminatory intent may be shown facially, as applied, or where discriminatory motive exists. i. Facial Discrimination arises where a law, by its very language, creates distinctions between classes of persons (only whites, males, etc.) ii. Where a law that appears facially neutral but in its application has a disproportionate effect on a particular class of persons, strict or middle scrutiny will apply only if the court finds a discriminatory purpose exists. 1. Washington v. Davis: The fact that black applicants scored lower than whites on a police test did not per se prove a discriminatory purpose in hiring practices, so strict scrutiny was not triggered and no equal protection violation was found. 2. McKlesky v. Kemp: A defendant who alleges an equal protection violation has the burden of proving the existence of purposeful discrimination. a. When there is no discriminatory purpose behind a law, the fact that one race is subjected to punishment under that law more often than another is not enough to strike down the law as unconstitutional. iii. A facially neutral law can be applied in a discriminatory manner. Where the challenger can show discriminatory purpose, law will be invalidated. D. Suspect Classifications a. Strict Scrutiny: Applies to classifications based on race, alienage, and national origin. Such laws will be presumptively invalid, absent a showing by the state that the measure is necessary to achieve a compelling state interest. i. A state law prohibiting interracial marriages was held unconstitutional [Loving v. VA]: Laws that classify on the basis of race are reviewed under equal protection with strict scrutiny and will not be upheld unless they are necessary to accomplish some permissible state objective. ii. Loving v. VA: Court ruled that this was part of racial subordination and was invidious and a violation. Restriction to marry based on race is a violation of EPC. iii. Deliberate de jure segregation violates equal protection [Brown v. BOE] 1. Separate facilities in public education are inherently unequal and therefore violate equal protection. 2. Brown: b. Intermediate Scrutiny: Classifications based on gender are quasi suspect and violate the EP clause unless they serve important governmental objectives and are substantially related to achievement of those objectives Craig v. Boren. i. In Craig, an OK statute permitted the sale of beer to females who were 18+, but prohibited the sale to males under 21. The statute was held unconstitutional because it was not substantially related to any important governmental objectives.

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1. Middle tier review applies whether the classification is invidious (intended to harm) or benign (intended to help or intended to remedy past discrimination). Intentional, or purposeful, discrimination is required to trigger middle tier scrutiny; discriminatory effect alone is not significant. 2. Statutes that reinforce archaic gender based stereotypes will almost certainly be struck down. In US v. Virginia, the Court required a state to show an exceedingly persuasive justification for its gender discrimination in admissions to the VA Military Institute. This language reflects the rigorous nature of the Craig v. Boren intermediate test. 3. In recent decisions, the court has held unconstitutional, under EP, all laws discriminating against women. A state law giving preference to men over equally qualified women to be administrators of decedents estates was held unconstitutional in Reed v. Reed. a. Also in Frontiero v. Richardson: discrimination in military benefits to servicewoman was held invalid. 4. The court has held unconstitutional under EP laws discriminating against men. [Craig v. Boren] c. Affirmative Action: AA actions based on race must pass strict scrutiny. i. The only justifications for AA that have been upheld are: 1. Remedying the effects of past or present discrimination in a particular institution 2. Achieving a diverse student body in an institute of higher education. ii. In Parents Involved v. Seattle: the court ruled that a school district may not assign individual students to schools based on race in order to achieve voluntary integration or racial balancing, when school segregation is caused by social factors and not caused by past or present govt action. However, a school district is permitted to carry out voluntary racial balancing by structural measures, such as redrawing school zones or building new schools. iii. AA based on gender need only pass intermediate scrutiny. 1. In Califano v. Webster: Social Security statutes and tax exemptions that entitle women to greater benefits were upheld. iv. In Adarand v. Pena: the SC set forward a clear rule that any race based AA program designed to remedy past discrimination- whether enacted by state municipality or even the federal govt- is subject to strict scrutiny. This rule applies to any benign, or compensatory, program by any govt entity that either favors or discriminates against racial or ethnic minorities. Other general principles include the following: 1. Remedying past discrimination in a particular government institution is generally viewed as a compelling interest, but

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attempting to remedy general, societal injustice through AA is not. 2. Race or ethnic origin may be considered as a plus factor in admissions for the purpose of achieving a diverse student body. [UC Regents v. Bakke] a. Bakke was affirmed in Grutter v. Bollinger: school may take race into account as one of many factors in making admissions decisions. i. Student Body Diversity is a compelling govt interest. b. However, a school may not use an admissions system that gives a set number of admissions points to each minority applicant, even if the purpose is to create a diverse student body. Gratz v. Bollinger. c. Discrimination by private employers is not subject to equal protection. 3. Parents Involved v. Seattle: the court ruled that a school district may not assign individual students to schools based on race in order to achieve voluntary integration or racial balancing, when school segregation is caused by social factors and not caused by past or present govt action. However, a school district is permitted to carry out voluntary racial balancing by structural measures, such as redrawing school zones or building new schools. 4. Miliken v. Bradley: As a general rule, a court may not extend beyond the boundaries of the school district that did the discriminating. v. Other classification: In Cleburne v. Cleburne the SC held that mental retardation is not a quasi-suspect classification and that the rational basis standard of review is applicable. (Rational-basis Plus) d. Equal Protection Test i. What classifications are created by the statute (2 ways of showing discrimination) 1. Facially Discriminatory (Ex. Strauder v. WV) 2. Discriminatory Purpose (not impact) on Facially Neutral Law ii. What level of Scrutiny is the class entitled to and what warrants it? a. Strict (Race): The classification must be narrowly tailored and must have a compelling govt interest. i. Strauder, Korematsu, Loving. b. Intermediate (Gender): The classification must be substantially related to and must be an important govt interest. i. Reed, Frontiero, Craig, US v. Virginia

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16 c. Rational Basis: The classification must be rationally related to a legitimate govt interest. Very deferential to state/leg. i. Minnesota v. Clover Leaf Creamery, Beazer, NY v. Railway Express. ii. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it. Williamson v. Lee Optical iii. Under-inclusiveness is allowed. 1. Means: That something that should be included is not. 2. Railway Express upholds a New York City ordinance prohibiting advertising on commercial vehicles--unless the advertisement concerns the vehicle owner's own business. The ordinance, aimed at reducing distractions to drivers, was underinclusive (it applied to some, but not all, distracting vehicles), but the Court said the classification was rationally related to a legitimate end. iv. Over-inclusiveness is allowed 1. Means: That more is included then is necessary. 2. Beazer unsuccessfully argued that the rule was over-inclusive. While there was good reason for not wanting drug addicts driving subway trains, it shouldn't include people who were in treatment and were working in desk jobs unconnected to safety. 3. The Court noted that it was probably unwise for NYCTA to rely on a blanket rule instead of considering everyone on a caseby-case basis, but that was NYCTA's problem, it wasn't a constitutional issue. v. RATIONAL BASIS with BITE (RB Plus): The actual application of the rational test in Plyler, Cleburne, and Romer differed from that traditionally used in cases where no suspect classification or fundamental right was involved in at least one important respect: the Court in all three cases weighed the state's asserted interests and compared them to the strong individual interests at stake.

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17 1. Use RBWB when one would normally use RB, but there are factors present that require a higher scrutiny; like animus, indicia of suspectness, or an important right affected. The difference from RB is that RBWB does not allow over/underinclusiveness and the burden of proof is shifted to the defendant/government. See: Cleburne, Moreno, Romer

2. What Warrants it a. Political Process Failure: US v. Carolene Product FN 4. i. The Court in the footnote listed where this deferential standard would not apply. ii. It curtailed its scrutiny of economic rights and expanded its scrutiny over personal rights. iii. Outlined 3 sets of personal rights: (1) the rights of the accused, (2) restrictions on the political process, and (3) the rights of discrete and insular minorities who are groups who have historically been unsuccessful at protecting their interests in the majoritarian democratic political process (blacks). iv. The political process could not police itself. According to John Ely: the political process needed a neutral referee to intervene only when one team was gaining an unfair advantage. CounterMajoritarian institution is the judiciary. b. Argument by Analogy i. Immutable Characteristics: Unfair to penalize a person for characteristics that they did not choose and that the individual cannot change. ii. History of Discrimination: Is there a similar history of discrimination in the classification as to black history, is there animus, and is it a long history with prejudice. iii. What is the fit between the classification and the legislative purpose? 1. The higher the scrutiny, the closer the fit between the governments ends and means must be. Due Process and the Incorporation of portions of the bill of rights A. Incorporation of the Bill of Rights a. As originally enacted, the Bill of Rights was applicable only to the federal govt, not to the states. Barron v. Baltimore. (Bill of Rights does not apply to the states) b. In 1868: the 14th amendment was adopted, which provided: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of

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the US; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within in jurisdiction the equal protection of the laws. B. 14th amendment Privileges and Immunities Clause a. A few years after the 14th amendment was adopted, the court held that the fundamental rights set forth in the bill of rights were not privileges and immunities of national citizenship. (Slaughter-House Cases) i. The 14th amendments privileges and immunities clause is not a source of rights protected against state action. C. 14th amendment Due Process Clause a. Although the SC rejected the argument that the Due Process clause incorporated all the Bill of Rights, under the doctrine of selective incorporation, the following provisions are now applicable to the states. (Adamson v. CA Frankfurters concurrence) i. The 1st amendment. ii. The 4th amendment iii. The 6th amendment: rights guaranteeing the accused in criminal prosecutions a speedy and public trial and the right to a jury in a criminal case (Duncan v. LA) iv. The 8th amendment v. The supreme CT recently held that the 2ns amendment right to keep and bear arms applies to state and local govts. 1. McDonald v. City of Chicago: A Chicago law banning possession of handguns by almost all private citizens is invalid. In dictum, however, the Court said that many traditional state gun regulations would still be upheld. b. Major Rights not incorporated include: i. The 5th amendment right to a grand jury in criminal cases ii. The 7th amendment right to a jury in civil cases c. Scope of Due Process Clause i. The due process and equal protection clauses of the 14th amendment protect the rights of person and not merely citizens ii. A corporation is considered a person for purposes of due process and EP. iii. Aliens are considered person for purposes of DP and EP. iv. Congress may not use S.5 of the 14th amendment to modify the scope of the amendment. It is up to the SC alone to define the scope of the 14 th amendment. Boerne v. Flores. v. There must be congruence and proportionality between the injury to be prevented and the means chosen by the state. Boerne. So, if Congress makes a particular type of state act illegal as a violation of EP and there is no real evidence the states have been violating EP in that way, the congressional action will be void because there is no congruence and proportionality between the harm and the remedy. D. Procedural Due Process

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a. Both the 5th and 14th amendments protect against the deprivation of life, liberty and property without the due process of the law. Where there is a deprivation of life, liberty, property interests, the individual is entitled to fundamentally fair procedural safeguards (some form of notice and a meaningful hearing within a reasonable time.) How to tell the difference between EP and SDP If there is a classification, it is most likely a EP case. If there is no classification, but the effect of the states activity amounts to a deprivation of a property interest or right, its a substantive due process problem. E. Substantive Due Process a. Economic Regulation i. Lochner v. NY: A law that infringes on freedom in the market-place and freedom of contract is unconstitutional if it does not bear a reasonable relation to a legitimate govt interest. ii. In the past, the doctrine of substantive due process was frequently used to protect rights of property and contract and to invalidate legislation that regulated economic activity. However, the SC abandoned this approach to substantive due process in the 1930s. iii. The SC held that challenges to economic regulations are to be subjected to deferential rational basis scrutiny, with a challenger having the burden of proving that a regulation lacks a rational connection to a legitimate government interest. As a result, since the new deal, the SC has not struck down any economic regulation on SDP grounds. iv. Such an economic regulation will be upheld if it is rationally related to a legitimate govt interest. b. Fundamental Rights i. SDP doctrine now is used to evaluate governmental regulations that affect fundamental rights of personhood, rather than rights of property. Strict Scrutiny review or other forms of heightened scrutiny, apply to laws that burden the exercise of fundamental rights, including the right to vote, the right to travel, the right to privacy, 1st amendment rights, family rights, and other rights referred to as fundamental rights. ii. Source of the right to privacy: Is a penumbral right arising from various rights explicitly found in the Constitution including the 1 st (association), 3rd (home), 4th (person and property), 5th (privilege against self incrimination, and 9th (enumerated rights do not deny existence of other not enumerated). The right of privacy is also considered a form of liberty protected by the 14th amendments due process clause. Griswold v. Connecticut. iii. The Court also applies strict scrutiny to classifications burdening certain fundamental rights. Skinner v. Oklahoma considers an Oklahoma law requiring the sterilization of persons convicted of three or more felonies involving moral turpitude ("three strikes and you're snipped"). In Justice Douglas's opinion invalidating the law we see the origins of the higher-

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tier analysis that the Court applies to rights of a "fundamental nature" such as marriage and procreation. (IN EP ANALYSIS) 1. When dealing with fundamental rights: Strict Scrutiny of the classification is essential iv. The following are some of the categories that fall under the penumbra of privacy rights: 1. Contraceptives: In Griswold v. Connecticut: the SC invalidated a state law prohibiting the use of conceptive devices (thus recognizing a right of marital privacy. 2. Marriage: The right to marry is deemed fundamental. Any substantial interference with that right must be necessary to further a compelling state interest (Zablocki v. Redhail.) 3. Abortion(EM313-17): Planned Parenthood v. Casey modified the SCs approach to reproductive freedom that was established in Roe v. Wade. The Casey holding rejected the trimester approach of Roe and instead adopted an undue burden standard. a. A woman has a protected privacy interest in choosing to have an abortion before the fetus is viable. b. During the first 2 trimesters, the govt may regulate abortion (but not ban) in the interest either of the mothers health or of the potential life of the fetus. The regulation may not impose undue burden on the womans right to choose an abortion. c. For the period of time subsequent to viability, the SC reaffirmed Roe in concluding that a state may regulate and even proscribe, abortion except where it is necessary for the preservation of the life or health of the mother. d. Sui Generis e. Casey Undue Burden Test i. A regulation with the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. ii. The means chosen to further the states profound interest in potential life must be calculated to inform the womans free choice, not hinder it. iii. The best measure of the new standard is what is upheld, and what is struck down, in Casey. iv. Spousal notice struck down 4. Late-term Abortions a. Where a NE statute prohibited deliberately and intentionally delivering into the vagina a living unborn child or a substantial portion there of, for the purpose of performing a procedure that will kill the unborn baby and does kill the baby, such a statute was unconstitutional

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because it did not provide an exception for the health and well being of the mother. (Stenberg v. Carhart) b. Subsequently, the SC upheld a federal ban on partial birth abortions in Gonzales v. Carhart. The Court rejected a facial challenge to a prohibition against use of this particular type of abortion procedure, but left open the possibility of challenges to the act as applied to specific individuals. 5. Family Relations: A fundamental right exists for related person to live together. Moore v. City of East Cleveland. In the case a zoning ordinance prohibited members of an extended family from living together in a single household. The ordinance was subjected to heightened scrutiny and held unconstitutional as applied to Ms. Moore. 6. Sexual Orientation: In Lawrence v. TX: The SC applied a stringent form of rational basis scrutiny and held that a statute making it a crime for a person to engage in deviate sexual intercourse with another individual of the same sex further no legitimate state interest. 7. Reproduction is also guaranteed fundamental right. c. SDP Analysis i. When legislation impairs a right, ask: Is the right a fundamental personal right? 1. Yes: These are: the 1st amendment rights, interstate travel, voting, privacy (contraception, family interest, procreation, and marriage), death, and fairness in criminal process. a. Here the legislation must meet the compelling state interest test: It must be necessary to promote a compelling governmental interest. 2. No: Here, the statute is only subject to the rational relation test if there is a set of facts imaginable that would make the law a reasonable means achieves a legitimate governmental purpose, the law is valid. (Such laws include: public health, business regulations, etc.) F. Other important Notes to keep in mind a. Plyler v. Doe: Gave intermediate scrutiny due to a vulnerable class, an important issue and the causation of severe and lasting hardship. (Poor children of illegal immigrants and their right to education, and the fact that not being educated can lead to severe disadvantage down the road) i. Followed the Marshall Dissent of San Antonio v. Rodriguez: This Court's decisions in the field of equal protection defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause. This spectrum clearly comprehends

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variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. I find in fact that many of the Court's recent decisions embody the very sort of reasoned approach to equal protection analysis for which I previously argued - that is, an approach in which "concentration [is] placed upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification. b. Lochners Ghost: use of substantive due process as a vehicle for protecting rights not explicitly mentioned in the Constitution. Judicial over-reaching. Now the court has to go beyond itself to prove that their decisions come from fundamental constitutional principles. (Example Griswold and the penumbra). i. Roe v. Wade: Kind of closes the door on this, but the court still reaches to show substantive due process.