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Constitutional Law I Outline —

Mazzone, Spring 2013
I. Document & Doctrine
 Outline of Constitution……………………. 1
 District of Columbia v. Heller (2008)*
II. Early Case Study: Bank of the United States
 McCulloch v. Maryland (1819)
III. Constitutional Interpreters
A) Judicial Review
 Stuart v. Laird (1803) [omitted]
 Marbury v. Madison (1803) ..………………. 3
 Mazzone, “Bill of Rights in Early State
Courts”*
B) Executive Disagreement about Constitutional
Meaning
 Veto Message
 Authority to Decline
 Signing Statements*
 DOMA Statement*
C) State Resistance to Unconstitutional Law
 Sedition Act of 1798
 Montana Referendum (2012)*
IV. Early Regulation of Interstate Economy
 Gibbons v. Ogden (1824)…………………… 4
Wilson v. Black-Bird Creek Marsh (1829)
 Mayor of NYC v. Miln (1837)
 Cooley v. Board of Wardens (1851)
 Dormant Commerce Clause………………. 4
Privileges & Immunities……………………. .4
V. Slavery
 Groves v. Slaughter (1841)…………..……… 6
 Prigg v. PA (1842)
 Dred Scott v. Sandford (1857)
VI. The Civil War and War Power
 Prize Cases (1863) …………………………. 6
 Little v. Barreme (1804)
 Youngstown Sheet & Tube (1952)……………7
 Libya Intervention*

VII. Emergencies & Civil Rights
 Ex Parte Merryman (1861)…………………. 8
 Ex Parte Milligan (1866)
 Miller v. US (1871)
 Ex Parte Quirin (1942)
 Hamdi v. Rumsfeld (2004)
 Rasul v. Bush (2005)………………………… 9
 Boumediene v. Bush (2008)*
 Hamdan v. Rumsfeld (2006)*
 Military Commissions Act*
 Torture
 Korematsu v. US (1944)
VIII. Reconstruction
A) Text & History………………………………10
 Speech Introducing 14th* (1866)
 J.M., “Unamendments”*
B) Reconstruction Amendments & the
Privileges & Immunities Clause
 Slaughterhouse Cases (1873)……………… 10
 Bradwell v. Illinois (1873)
 Minor v. Happersett (1874)
C) Reconstruction Amendments & Race
 Strauder v. WV (1880) …………………….. 10
 Plessy v. Ferguson (1896)
 The Civil Rights Cases (1883)
 US v. Guest (1966), US v. Harris (1883),
Griffin v. Breckenridge (1971)
IX. The Age of Lochner [omitted.]
A) Due Process
 Lochner v. NY (1905)
B) Commerce Power & National Economy
 Champion v. Ames (1903)
 Hammer v. Dagenhart (1918)
 Binary Oppositions
 Taxing, Spending & Treaties
oBailey v. Drexel Furniture (1922)
oUS v. Butler (1936)
oMO v. Holland (1920)

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C) The Progressive Era
 Adkins v. Children’s Hospital (1918)
X. Modern Era
A) Structure to Rights
 McDonald v. Chicago*
B) The New Deal
 Nebbia v. NY (1934)
 Home Building Assoc. v. Blaisdell (1934)
 West Coast Hotel v. Parrish (1937)
C) Modern Scrutiny & Economic Due Process
 US v. Carolene Products (1938)…………... 11
 Williamson v. Lee Optical (1955)
 Railway Express v. NY (1949)
 Nordlinger v. Hahn (1992)……………….. 12
The Rise of National Power
A) Commerce
 NLRB v. Jones (1937) ……………………... 12
 US v. Darby (1941)
 Wickard v. Filburn
 Heart of ATL Motel v. US (1964)
 Katzenbach v. McClung (1964)
 Daniel v. Paul (1969)
 Perez v. US (1971)
Modern Limits
 US v. Lopez (1995) ………………………... 12
 US v. Morrison (2001)**
 Gonzales v. Raich (2005)** ………………. 13
 US v. Comstock (2010)* ………………….. 14
B) Taxing & Spending
 Steward Machine v. Davis (1937) ……… ..14
 Helvering v. Davis (1937)
 US v. Kahirger (1953)
 OK v. US Civil Service Comm’n (1947)
 Coyle v. Smith (1911)
Modern Limits
 SD v. Dole (1987)………………………….. 15
 NFIB v. Sebelius (2012)*
C) Reconstruction Powers
 SC v. Katzenbach (1966)……………………16
 Katzenbach v. Morgan (1966)

 Jones v. Alfred Mayer (1968)
 Oregon v. Mitchell (1970)
Modern Limits
 City of Boerne v. Flores (1997)…………… 17
 US v. Morrison (2001)**
 Kimel v. Florida Board et al. (2001-3)…… 18
 TN v. Lane (2004)*
 Coleman v. Court App. MD (2012)*
 Northwest Austin Municipal Dist. v.
Holder (2009)*
E) Regulation of States as States
 Garcia v. San Antonio Transit (1985) …….19
 Gregory v. Ashcroft (1991)
 NY v. US (1992)
 Printz v. US (1997)……………………….. 20
 Alden v. ME (1999)
XIV. Equality
A) Race……………………………………….. 20
 Brown v. Board (1954)……………………. 21
 Bolling v. Sharpe (1954)
 Loving v. VA (1967)
 Chinese Exclusion Cases (1889)…………... 22
 Korematsu v. US (1944)
 Johnson v. CA (2005)
 Palmore v. Sidoti (1984) ………………….. 23
 Adoption issues
 Brown v. Oneonta (2 Cir. 1999)
 Hernandez v. TX (1954)
 Hernandez v. NY (1991)
 Rice v. Cayetano (2000)
 Yick Wo v. Hopkins (1886)
 Washington v. Davis (1976)……………….. 24
 Arlington Heights v. Metropolitan
Housing Development Corp. (1977)
 Hunter v. Underwood (1985) (CB: 1040-41)
 Palmer v. Thompson (1971) (CB: 1041-42)
 Ricci v. DeStefano (2009) …………………..25
 United States v. Clary (CB: 1045-47)
 Batson v. Kentucky (1986) (CB: 1048-51)
 Georgia v. McCollum (1992) (CB: 1052-53)
 Miller-El v. Dretke (2005) (CB: 1054)
 McKleskey v. Kemp (1987) (CB: 1055-63)
 Fullilove v. Klutznick (1980) & Wygant
v. Jackson Board of Education (1986)
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(CB: 1077-81)…………………………… .. 26
 City of Richmond v. J.A. Croson Co. (1989)
(CB: 1081-1103)
 Metro Broadcasting v. FCC (1990)
 Adarand Constructors v. Peña (1995)……... 27
 Regents of the University of California v.
Bakke (1978) (CB: 1071-77)
 Grutter v. Bollinger (2003) (CB: 1120-42)
 Gratz v. Bollinger (2003) (CB: 1142-47)
 Parents Involved in Community Schools v.
Seattle School District No. 1 (2006) (Supp:
267-308)
 Morton v. Mancari (1974) & United States v.
Antelope (1977) (CB: 1151-53)
B) Gender
 Frontiero v. Richardson (1973)………….... 28
 Craig v. Boren (1976) (CB: 1214-15)
 Weinberger v. Wiesenfeld (1975) (CB: 1215)
 Califano v. Westcott (1979)……………….. 29
 Kirchberg v. Feenstra (1981) (CB: 1216)
 Orr. v. Orr (1979) (CB: 1216)
 J.E.B. v. Alabama ex rel. T.B. (1994) (CB:
1226-28)
 United States v. Virginia (1996) (CB: 1229-46)
 Mississippi University for Women v. Hogan
(1982) (CB: 1250-52)
 Personnel Admin. of Mass. v. Feeney (1979)
 Geduldig v. Aiello (1974)………………….. 30
 Michael M. v. Superior Court (1981)
 Tuan Anh Nguyen v. INS (2001)
C) Sexual Orientation
 Bowers v. Hardwick (1986)………………..30
 Lawrence v. Texas (2003) (CB: 1482-99)
 Romer v. Evans (1996) (CB: 1505-12)
 Goodridge v. Department of Public Health
(Mass. 2003) (CB: 1545-63) [omit]
 Baker v. State (Vt. 1999) (CB: 1221-23) [omit]
D) Other Classifications
Disability
 Cleburne v. Cleburne Living Center (1985)...32
Alienage
 Graham v. Richardson (1971) …………...... 33
 Bernal v. Fainter (1984) (CB: 1163-69)
 Matthews v. Diaz (1976) & Hampton v. Mow

Sun Wong (1976) (CB: 1172-73)
Fundamental Right Exercise/ Residency
 Edwards v. California (1941)……………….34
 Shapiro v. Thompson (1969) (CB: 1674-80)
 Dunn v. Blumstein (1972) (CB: 1680)
 Memorial Hospital v. Maricopa County (1974)
(CB: 1680-81)
 Sosna v. Iowa (1975) (CB: 1681)
 Starns v. Maklerson (1971) ………………. 35
 Zobel v. Williams (1982) (CB: 1682-83)
Travel
 Saenz v. Roe (1999) (CB: 1684-87)
Children & Education
 San Antonio Independent School District v.
Rodriguez (1973) (CB: 1624-41)
 Plyler v. Doe (1982) (CB: 1641-47)
XV. Implied Rights
 Meyer v. Nebraska (1923) (CB: 1340)…….. 36
 Pierce v. Society of Sisters (1925)
 Skinner v. Oklahoma (1942) (CB: 1341-42)
 Griswold v. Connecticut (1965)…………….37
 Eisenstadt v. Baird (1972) (CB: 1353-54)
 Carey v. Population Services International
(1977) (CB: 1354)
 Zablocki v. Redhail (1978) (CB: 1354-55)
 Atkins v. Virginia (2002) (CB: 1365-66)
 Roper v. Simmons (2005)
 Village of Belle Terre v. Boraas (1974)
 Moore v. City of East Cleveland (1977)
 Michael H. v. Gerald D. (1989)…………… 38
 Troxel v. Granville (2000) (CB: 1386)
Abortion
 Roe v. Wade (1973)
 Planned Parenthood v. Casey (1992) (CB:
1424-55)
 Stenberg v. Carhart (2000)………………... 39
 Gonzales v. Carhart (2007) (Supp: 319) ….. 40
 South Dakota’s Informed Consent Statute
(2005) (Supp: 340-41)
 Lawrence v. Texas (2003) (CB: 1482-99)
Right to Refuse Treatment
 Cruzan v. Director, Missouri Department of
Health (1990) (CB: 1569-77)
 Washington v. Glucksberg (1997) (CB: 157986)

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 Vacco v. Quill (1997) (CB: 1586-89)
Welfare State
 Lyng v. International Union (1988) (CB: 15961601)
 Griffin v. Illinois (1956) (CB: 1607)………. 41
 Harper v. Virginia Board of Elections (1966)
(CB: 1609-12)

 Boddie v. Connecticut (1971) (CB: 1615-16)
 Dandridge v. Williams (1970) (CB: 1616-20)
 Lindsey v. Normet (1972) (CB: 1620)
 United States v. Kras (1973) (CB: 1621-23)
 Deshaney v. Winnebago County (1989)…… 42
 Castle Rock v. Gonzales (2005) (CB: 1658-63)

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I. 2/3rds for conviction §5. Senators choose officers and president pro tempore is he is Prez 4. Shall have power to try all Impeachments. Call forth militia. Legislative Powers §2. Senate may propose amendments 2. Establish rules of naturalization 7. Create means of copyright and trademark registration 12. overriding veto 1. Establish post offices and post roads 11. Journal requirement §6. Compensation as ascertained by law 2. When elected. Reps choose speaker and officers. Senate 1. votes on ties 3. Business of Congress 1. Borrow money 5. House of Reps members chosen every second year a. Regulate Commerce 6. Provide defense 4. 30 years old b. Can expel member with 2/3rds concurrence 2. Compensation and privileges 1. make rules re capture on land/ water. Constitute courts inferior to Supreme Court 13. 16. Rules re overriding presidential veto §8. VP is president of senate. Declare War 15. an inhabitant of state 2. 25 years old b. Raise money to support armies (no appropriation that shall be for longer than two years) 18. Privilege from questioning due to comments made on floor of respective houses. repel invasions . Maintain navy 17. Congressional POWERS 1. Document & Doctrine  The Constitution  District of Columbia v. Bills raising revenue must originate from House. Class structure defined a. suppress insurrection. 7 years citizen c. Grant letters of reprisal. Coin money 9. an inhabitant of state 2. Heller (2008)* The Constitution: an outline I. Create rules on subject of Bankruptcy 8. Lay and collect taxes 2. Division of labor. Punish maritime crime 14. When elected. 9 years citizen c. etc. Pay debt 3. Vacancies filled by Executive Authority 3. have sole power of impeachment §3. House of Reps 1. Punish counterfeiters 10. §7.

§2. or with foreign power. No Capitation or tax unless in proportion to the census 5. and other officers of US 5. treason. unless actually invaded or in such imminent danger as will not admit of delay. without consent of Congress. Extends to all cases under Constitution 2.” 3.19. No preference to ports of one state over another. Lay any duties on imports or exports. Limitations on State Powers No State shall 1. 7. Pass any bill of attainder or ex post facto law 4. compensation. Vested in SCOTUS and inferior courts established by Congress. Treaties 3. and conviction of. Cases of admiralty and maritime law 5. 8. Lay duty to tonnage 3. provided 2/3rds Senate concurs 4. or other high crimes and misdemeanors. May be removed from office on impeachment for. Other stuff. Pass any law impairing the obligation of Contracts 5. Cases affecting Ambassadors. No money drawn from Treasury except through appropriations made by law. SCOTUS justices. [Net duties shall go to Treasury. oath. Commander in chief of army and navy 2. or removal. No title of Nobility granted by US. 4. unless absolutely necessary for executing its inspection laws a. Grant reprieves and pardons (except in cases of impeachment) 3. Keep troops or ships of war in time of peace 4. consuls. §9. Make treats. bribery. Judges at both levels hold office during good behavior. III. Outline of election process. Citizens claiming land granted by authorities of different states . No bill of attainder or ex post facto law. Fill vacancies during recess (RECESS APPOINTMENTS) 6. Controversies in which US is a party 6. Between a state and a citizen of another state 8. Judicial power: 1. Presidential Powers 1. consils 4. a. II. and compensation shall not be diminished during their continuance in office. Habeas Corpus not to be suspended unless when “in cases of rebellion or invasion the public safety may require it. Judicial Powers §1. Grant title of nobility No State shall. Executive Powers §1. No tax or duty laid on articles exported from any state 6. No person holding office can accept title from foreign country without consent of Congress §10. §2. & laws are subject to Congressional revision] 2. Enter into any Treaty 2. Between two or more states 7. No prohibition on importation of slaves until 1808 2. Enter into any agreement or compact with another state. impeachment. Coin money 3. 1. Nominate ambassadors. Congressional RESTRICTIONS 1. Train militia 20.

 JM on MvM: “Stands for proposition that the Court. Judiciary Act §13 says SCOTUS has right to issue writ of mandamus in original jurisdiction. Judicial Proceedings.SCOTUS has original jurisdiction over: 1. Madison (1803). [Omit. Laird (1803). Records of other sates  Congress may prescribe the manner in which such acts shall be proved 2. Laird (1803)  Marbury v. it doesn’t have to go along with it. New States  Shall not be formed within jurisdiction of any other state  Or by the junction of two or more states or parts of states. Only a handful of matters may go SCOTUS on original jurisdiction. or by confession in open court IV. Maryland (1819) III. II. shall “on Demand of the executive Authority of the State from which he fled. Cases affecting ambassadors/ consuls 2. “Bill of Rights in Early State Courts”* B) Executive Disagreement about Constitutional Meaning  Veto Message  Authority to Decline  Signing Statements*  DOMA Statement* C) State Resistance to Unconstitutional Law  Sedition Act of 1798 .” Mazzone.] Marbury v. Full Faith and Credit  Public Acts. Madison (1803)  Mazzone. Cases in which state is a party Misc. but Constitution defined where Court has original and appellate jurisdiction.  No conviction for treason unless on testimony of two witnesses to the same over act. Early Case Study: Bank of the United States  McCulloch v. to be removed to the state having Jurisdiction of the Crime. “Bill of Rights in Early State Courts”* Stuart v.” 3. Marshall rules the Judiciary Act of 1789 unconstitutional. Privileges and Immunities  A person charged in any State with a crime. Other provisions 1. be delivered up. when asked to do something that it doesn’t think it can do. Constitutional Interpreters A) Judicial Review  Stuart v. without consent of legislatures of the states as well as congress. and they are constitutionally defined. who is found in another state.

its legislation manifests an intention not to regulate this subject. D argued that the law authorized the construction of the dam conflicted with the commerce clause. Willson v. or as being in conflict with any law passed on the subject. Federal act if 1789 said pilots shall be regulated “in conformity with the existing laws of states… or with such laws as the States may hereafter enact. Ogden (1824)  Wilson v. 1.” DORMANT COMMERCE CLAUSE AND PIKE BALANCING TEST Low predictability and fact specific. any act in execution of the power to regulate commerce… we should feel not much difficulty in saying. the States are deprived of all the power to legislate on this subject?”  “The mere grant to Congress of the power to regulate commerce. can.” Issue: does Commerce Clause and the implied grant of power for Congress to regulate interstate navigation by default override local legislation?  “How… by the mere grant of power to regulate commerce. under all circumstances of this case. Doesn’t worry about commerce clause conflict because NYC law is well within state police power. (The DE act was ostensibly a health measure. and that although Congress has legislated on this subject. Ogden (1824). Black-Bird Creek Marsh (1829)  Mayor of NYC v." Mayor of NYC v. Gibbons licensed by Federal government. (1829). that a state law coming to conflict with such act would be void. Miln (1837)  Cooley v. Black-Bird Creek Marsh Co. PA harbor navigation law.) Is the state law for the dam constitutional in the absence of preemptive federal legislation?  "If congress had passed any act which bore upon the case. did not deprive the States of power to regulate pilots.  Congress had legitimate authority to give Gibbons his license o Necessary presupposition: “navigation is a part of commerce”  NY state law that clashes with legitimate federal law. In a suit for damages between the parties. to place a dam across the creek. D owned the sloop (sailboat) that broke the dam. Miln (1837).  "We do not think.  State law yields to federal law (Supremacy Clause). If conflict—> state law yields (Supremacy Clause) . State has such general sovereignty except where it is preempted. DE authorized BBCM to build a dam across a navigable waterway. But congress has passed no such act. but to leave its regulation to the several states. Board of Wardens (1851)  Dormant Commerce Clause  Privileges & Immunities REGULATION OF INTERSTATE ECONOMY Gibbons v. Early Regulation of Interstate Economy  Gibbons v."  A state act not in conflict with commerce clause in “dormant” state is not repugnant to federal power. that the act empowering the BBCM Co. Ogden licensed by NY state. not as a means of regulating commerce. Steamboats across the Husdon case. Board of Wardens (1851). Cooley v. be considered as repugnant to the power to regulate commerce in its dormant state. Montana Referendum (2012)* IV.

it may restrict its trade to its own citizens or businesses within the state. “Equality in access to MT elk is not basic to the maintenance or well-being of the Union. OK (1979): 1. MARKET PARTICIPANT EXCEPTION “When state enters market as purchaser for end use of items in interstate commerce. The Privileges and Immunities Clause only protects privileges and immunities.” Considerations under Hughes v.” Court upholds MT scheme that charges nonresidents significantly more for hunting licenses than residents. The market participant exception does not apply. Whether the statute serves a legitimate local purpose 3.” Hughes v. it does not have a test parallel to the Pike balancing test. Bruce Church.” . (1976).” INTERSTATE PRIVILEGES & IMMUNITIES  See VIII. Congress may authorize states’ regulation after Court rules invalid Pike v. to treat them differently. 2. not to corporations. NJ (1978)©. (1970). or instead discriminates against interstate commerce either its face or in practical effect. City of Philadelphia v. Quota. Interest  Protectionism always invalid (unless state is market participant) 3. PER SE INVALIDITY FOR FACIALLY PROTECTIONIST SCHEMES  Tariff. apart from their origin. Whether alternative means could promote this local purpose as effectively without discriminating against interstate commerce. If no federal regulation. but since MD paid the bounty for destroying the cars titled to the state. 3. “New Jersey may pursue those ends [of reducing waste disposal costs and protecting the environment] by slowing the flow of all waste into the State’s remaining landfills. Inc. Consolidated Freightways Corporation (1981)©. But… it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason. There are. Alexandria Scrap Corp. state may regulate interstate commerce but at compromised terms (Pike)  Burden vs. important differences including the following: 1.”  See also. equally. for instance. Montana Fish and Game Comm’n (1978). even though interstate commerce may be incidentally affected. 4. resident and nonresident. Kassel v. “Where the statute regulates even-handedly to effectuate a legitimate local public interest. 2. however. it Commerce Clause was “not concerned. “Only with respect to those ‘privileges’ and ‘immunities’ bearing upon the vitality of the Nation as a single entity must the State treat all citizens. Whether the challenged statute regulates even-handedly with only incidental effects on interstate commerce. The Privileges and Immunities Clause accordingly resembles the Dormant Commerce Clause. it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. The Privileges and Immunities Clause applies only to individual citizens.” The Clause basically precludes a state from treating out-of-staters worse than instaters with respect to privileges and immunities. and its effects on interstate commerce are only incidental. B (page _____ Article IV provides in part that “[t]he citizens of each state shall be entitled to all Privileges and Immunities of citizens in the several states. Examples:  Baldwin v. Embargo  See. MD’s program that discriminated between in-state and out-of-state junk car processes reduced interstate movement of junk cars.2. The Privileges and Immunities Clause only addresses discriminatory measures.

under Art IV s. PA statute requires specific procedure to be followed for claiming escaped slaves inside PA borders. Fugitive Slave Act announces mechanisms created by Congress. confers duty to deliver fugitive slaves. claiming this is beyond presidential authority absent Congressional declaration of war. “Owing service to another… shall be delivered up on a claim of the party to whom such service… may be due. assuming the state could constitutionally deal with unemployment problem by requiring private employers to discriminate against nonresidents. Piper passed NH bar. Barreme (1804)  Youngstown Sheet & Tube (1952)  Libya Intervention* AUTHORITY OF THE PRESIDENT TO REPEL ATTACKS ON THE UNION Prize Cases (1863) Lincoln orders blockade of Confederate ports and authorizes seizure of ships caught carrying goods to them. and PA cannot curtail individual’s right to reclaim slave. . (As noted in Slaughterhouse Cases. Moreover. The Civil War and War Power  Prize Cases (1863)  Little v.2 right. Measure attacked as impermissible restriction of interstate commerce. not just unemployed. MS forbade importation of slaves for sale.” Discrimination against nonresidents allowed if (1) substantial reason for difference in treatment and (2) discrimination against nonresidents bears substantial relation to State’s objective. Congress must implement enforcement mechanisms via N&P Clause. but wanted to live in VT. V. the influx of nonresidents was not the source of the problem (compared to lack of education). under N&P. based on Art. Effectively. and under duty.  However. Issue recast as super-constitutional right. Dred Scott v. to enforce Art. PA (1842). but really. Federal statute cannot compel state judges to hear these federal fugitive slave claim cases. Piper (1985). Court holds that opportunity to practice law is “fundamental right. the president is bound to resist by force. Shipowners sue.” whether the hostile party is a foreign nation or states organized in rebellion. IV s. “shall be delivered up” renders an individual right. Sandford (1857). Totally batshit. Criminal penalty for violation. NH requires state residency for admittance to NH bar. Orbeck (1978).2. VI. Held: Congress alone has power to declare national or foreign war. Hicklin v. GUIDELINES FOR DEPRIVING NONRESIDENTS NON-ESSENTIAL PRIVILEGES OR IMMUNITIES Supreme Court of NH v. Slavery Groves v. The right to exercise this power by a state is higher and deeper than the Constitution.” Federal government has exclusive authority to regulate in this area. Neither Congress nor the president can declare war against a domestic state. eviscerated by Thirteenth and Fourteenth Amendments. Court says that. preference extended to all Alaskans. PA law prohibits “self-help” of slave owners seeking to recover escaped slaves within state. “Each state has a right to protect itself against the avarice and intrusion of the slave dealer…. Slaughter (1841). PA law: “our state judges may not hear petition cases” which conflicts with 1793 Fugitive Slave Act. IV s.2. AK statute requires hiring preference for AK residents over nonresidents. so part of the PA statute is retained. Prigg v. Court decides based on Constitution. But if war is declared by a foreign nation. and Court has considered availability of less restrictive means. without “waiting for any special legislative authority.

so impliedly it didn’t negate an existing authority as much as explicitly withheld power from executive. Strongest Mandate: When president acts pursuant to express or implied authorization of Congress: acting on his own right plus the right delegated by Congress. and Pres. Please report to us and ask for seizure power if you think it is needed in a specific situation. the United Steelworkers of America gave notice that they would go on strike on April 9. o Frankfurter concurrence: “By the Labor Management Relations Act of 1947. Congress chose not to give POTUS this power. Issue: Does executive power include authority include power to seize property as contemplated in executive order? Held: Act not sustainable as an exercise of POTUS military power. POTUS issued an Executive Order on April 8th for the Secretary of Commerce to seize the steel mills and ensure their continued operation under national defense grounds. and immune from Act even if it were American. Issue: Can executive order or interpretation contradict Congressional law? Held: Captain Little is liable for damages to ship. The necessity of producing steel for weapons and other war materials led the President Truman to conclude that a strike would jeopardize war efforts in Korea.’” NOTE: LIMITING THE PRESIDENT’S POWER AS COMMANDER IN CHIEF Little v. ‘You may not seize. Congress said to the president. and bound to or from French ports.” EXECUTIVE POWER & NATIONAL SAFETY Youngstown Sheet & Tube (1952) Background: After failure between steel companies and employees to agree to a new collective bargaining agreement. Adams instructed naval officers “to be vigilant that vessels are really American but may be covered by Danish or other foreign papers. US frigates capture Danish ship Flying Fish. Ship was suspected of violating Congress’s “non-intercourse act” which prohibited American ships going “to any port within territory of French republic. Can only rely on his constitutional powers minus Congressional powers over the matter. it was coming from port. Barreme (1804). “The instructions cannot change the nature of the transaction. “This court must be governed by the decisions and acts of the political department of the government to which this power was entrusted. we cannot with faithfulness to our constitutional system hold that the C in C… has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. . As such. This is a job for the nation’s lawmakers. not for its military authorities.∴ Presidential authority to suppress rebellion needn’t strict obedience to Congressional war declaration. Congressional indifference may invite presidential responsibility. and further.” Lower courts find Flying Fish was Danish. Weakest Mandate: When president takes measures incompatible with expressed or implied will of Congress. “Lowest ebb” of powers. ‘He must determine what degree of force the crisis demands. 3.” JACKSON CONCURRENCE & THE THREE MANDATES OF EXECUTIVE AUTHORITY 1.” Act allowed public armed ships of US to examine any ship of the US where it was suspected of violating the Act. 2. When president acts in absence of either congressional grant or denial of authority. May rely on independent power but “a zone of twilight” exists between his and congress’s authority on subject.’”  Douglas concurrence: “Emergency did not create power. Majority: “Even though theater of war be an expanding concept. 1952.”  Note: Underlying legislation (Taft-Hartley Act of 1947) precluded executive power to do this. nor is it sustainable under general executive power. or legalize an act which without those instructions would have been plain trespass. If he’s acting unconstitutional despite Congressional authorization. it is because Federal Government as a whole does not have the authority to act as such.

9: “Privilege of habeas corpus shall not be suspended. “Spies… or an enemy combatant who without uniform secretly comes through the lines for the purpose of waging war by destruction of life or property. Habeas claim brought under Non-Detention Act. So unless during war and when civil justice is unavailable. Milligan was different because he was not associated with armed forces of enemy (Confederacy) so he was not subject to martial law. American citizen detained for two years as enemy combatant (supporting forces hostile to United States in Afghanistan). Rumsfeld (2004)  Rumsfeld v. Military Com. but martial rule cannot exist where the courts are open. Rumsfeld (2006)*  Military Commissions Act*  Torture  Korematsu v. but plurality of Court holds: (1) “Detaining individuals falling into this limited category (of defined enemy combatants). Bush (2005)  Boumediene v. petitioners were “unlawful enemy combatants”. US (1871)  Ex Parte Quirin (1942)  Hamdi v. Bush Habeas OK Congress Detainee Treatment Act No Habeas TIMELINE OF HABEAS CASES SCOTUS Congress Hamdan v. Bush (2008)*  Hamdan v. tried by military tribunal. Prisoners claim they are entitled to jury trial. TRIAL BY MILITARY TRIBUNAL— 1942 Ex Parte Quirin (1942). commission lacks jurisdiction because it is not authorized by Congress and composed of judges appointed during good behavior. Trial by tribunal is okay. but to be offenders against the law of war subject to tribal and punishment by military tribunals. Lincoln’s suspension was not valid. Men arrested for roles in Indiana insurrection plot. unless when in cases of rebellion or invasion the public safety may require it. Emergencies & Civil Rights  Ex Parte Merryman (Cir. 1861)  Ex Parte Milligan (1866)  Miller v.” Only Congress may suspend habeas corpus. Rumsfeld Act DTA doesn’t No Habeas apply SCOTUS Boumediene v. TRIAL BY MILITARY TRIBUNAL — 1866 Ex Parte Milligan (1866). for the duration of the particular conflict in which they were captured. Padilla (2004)  Rasul v. Rumsfeld (2004). —Compare: The Prize Cases (supra). I s. Court holds that.”  Note: Congress explicitly provided for military tribunals to try offenders against law of war. US CITIZENS AND AUTHORIZED DETENTION Hamdi v. US (1944) HABEAS CORPUS SUSPENSION Ex Parte Merryman (Circuit Case1861). are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war. Bush MCA is unconstitutional Congress NDA No Transfer VII.SCOTUS Rasul v. Art. in wartime where courts are closed commissions might be okay as matter of necessity. is so fundamental and accepted an incident of war as to be considered an exercise of the necessary and appropriate force Congress authorized POTUS to .

Allows hearsay evidence. directing Defense Department to "prescribe military areas form which any and all persons may be excluded. imprisoned for two years in territory over which the US has exclusive control. requiring all persons of Japanese ancestry to be removed from the west coast to detention camps (which was preferred to making them move east due to potential hostility from Americans). Limitation of habeas by MCA is unconstitutional. Roosevelt signs Executive Order 9066. No constitutional right to habeas for German citizens captured by US forces in China. Compares with Eisentrager (1950):  Johnson v. the military issued Civilian Exclusion Order 34. tried and convicted of war crimes by American military commissions in Nanking and incarcerated in occupied Germany. o Enemy aliens o Never resided in US o Captured outside US and held in military custody o Tried and convicted by military o Imprisoned abroad at all times. Following Pearl Harbor/ America's full participation in WWII. SCOTUS upheld 6-3. remain in. and with respect to which the right of any person to enter. racial antagonism never can."  Cites Hirabayashi Japanese-only curfew order.”  DoD ends up setting up “combatant status review tribunals” PRISONERS AND FOREIGN DETENTION Rasul v. a native-born US citizen.”  Non-Detention Act: “No citizen shall be imprisoned or otherwise detained by the US except pursuant to an Act of Congress. which was upheld as a legitimate military exercise . Korematsu v.  Rasul: Gitmo detainees are not nationals of a country we are at war with. but it cannot suspend habeas through procedure used via MCA?  Military Commissions Act (2006). Eisentrager (1950). Equal Protection: Did the exclusion order to detain all persons on west coast of Japanese ancestry a violation of the equal protection clause? Court upholds the exclusion order as of the time it was made and when the petitioner violated it. Bush (2004). eliminates habeas jurisdiction for aliens designated as enemy combatants by POTUS. Boumediene v.use. challenged the detention after being convicted of disobeying the order. Gitmo detainee.  “All legal restrictions which curtail the civil rights of a single racial group are immediately suspect….”  Nothing in Quirin suggests citizens cannot be detained for duration of relevant hostilities. National Defensive Authorization Act 2012— Limits transfer of Gitmo detainees to domestic facilities or abroad. __________________INCOMPLETE.”  Authorization for Use of Military Force Act: “explicit congressional authorization for the detention of individuals in the narrow category described. much less charged with wrongdoing. Congress may suspend habeas under certain circumstances. US (1944). Hamdan v.  “Onus is on detainee to rebut evidence that he is not an enemy combatant. and a fair opportunity to rebut the factual assertions before a neutral decision maker. or leave shall be subject to [presidential] restrictions.Bush (2008). Enacted after Hamdan. Gitmo detainees have right to bring habeas petitions. 1942. never afforded access to tribunal. Korematsu. Rumsfeld (2006).” (2) “A citizen detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification. [but while] pressing public necessity may sometimes justify the existence of such restrictions." On May 9.

Ferguson (1896)  The Civil Rights Cases (1883)  US v. writ of habeas corpus)  Not a modern reading of privileges and immunities. Piper (1985): Piper denied after she passed the bar due to her non-residency. it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion. Happersett (1874). Harris (1883). C) Reconstruction Amendments & Race  Strauder v. and the abuse of convenience to possibly protect the country.” Generally understood as “protection by the government. to such restraints as the government may prescribe for the general good of the whole. And P&I expands in scope (indirectly) via Due Process Clause and implied rights. Bradwell denied admission to the bar due to gender.”  “The right to control and regulate the granting of law licenses to practice law in the courts of a State is one of those powers which are not transferred for its protection to the Federal government.” Corfield v. Breckenridge (1971) .. Murphy dissent: "[Our standards here must not be too high]. those rights that are “fundamental” and “belong of right to the citizens of all free governments. making the “fundamental” nature of the right moot. Illinois (1873). “Unamendments”* B) Reconstruction Amendments & the Privileges & Immunities Clause —connect to IV. CURTAILING THE PRIVILEGES & IMMUNITIES CLAUSE OF THE FOURTEENTH AMENDMENT Slaughterhouse Cases (1873). and this residency requirement is deemed a violation of “fundamental rights” under interstate P&I analysis. and independent butchers must slaughter cattle at designated stockyards at statute-fixed price.. Guest (1966). Not answered. most of whom we have no doubt were loyal to this country. and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking licensure.  Refers to rights in relation to federal government (use of navigable waterways. Women’s suffrage under 14th Amendment P&I is nary given a consideration. Court holds that P&I Clause only refers to privileges and immunities enjoyed as national citizens. which is now subject to intermediate scrutiny under Equal Protection Clause of 14 th Amendment (and would fail). 1823). subject. WV (1880)  Plessy v.necessary to prevent espionage and sabotage in an area threatened by Japanese attack. Reconstruction A) Text & History  Speech Introducing 14th* (1866)  J. State legislature charters monopoly. or do it themselves. Coryell (PA Cir. and to pursue and obtain happiness and safety. Court holds that right to practice law in state courts “in no sense depends on citizenship of the US. US v." How certain need the gov't be to issue an order? How does the court balance between military expediency to protect country. But the exclusion… of all persons with Japanese blood in their veins has no such reasonable relation.."  VIII.”  Relation to Supreme Court of New Hampshire v. IL Supreme Court refuses Bradwell a law license because of sex. with the right to acquire and possession property of every kind. Butchers claim scheme deprives them of their right to exercise their trade. sabotage and espionage. nevertheless. Bradwell v. Order was necessary because of "the presence of an unascertained number of disloyal members of the group. Minor v. Griffin v.M.

. WV (1880). “The very fact that colored people are singled out and expressly denied the right to participate in the administration of law. though they are citizens… is a brand upon them… an assertion of inferiority…” STATE ACTION DOCTRINE Civil Rights Cases (1883) p 373. because of their color.RIGHT TO NONDISCRIMINATORY JURY POOL Strauder v. as jurors. Effectively invalidated by Civil Rights Act of 1964 and related caselaw. Equal Protection grounds.

Comstock (2010)* MODERN LEVEL OF SCRUTINY (POST-LOCHNER): United States v. US (1964)  Katzenbach v. EQUAL PROTECTION AFFORDS NO ECONOMIC POLICY PROTECTION BETWEEN ECONOMIC ACTORS. In Railway. and "strict scrutiny" for facially unconstitutional acts. [inquiries] must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. Paul (1969)  Perez v. (1938) (CB: 513-16). Under Williamson. Contention that "one of REA's trucks carrying the advertisement of a commercial house would not cause any greater distraction of pedestrians and drivers than if the commercial house carried the same advertisement on its own trucks. (1955) (CB: 520-22). and that it might be thought that the particular legislative measure was a rational way to correct it.  Extent of deference/ inquiry into facts: "Where the legislative judgment is drawn in question. equal protection] does not compel their Legislatures to prohibit all like evils. (1955)  Railway Express Agency v. New York (1949)  Nordlinger v. or acts seemingly restricting political processes or statutes targeting religious or racial minorities. SCOTUS applies "minimum rationality" test. courts will permit government action so long as COURT can conjure rational reason for policy. Morrison (2001)**  Gonzales v. McClung (1964)  Daniel v. Hahn (1992) A) Commerce  NLRB v."  Footnote four: Introduces "rational basis" test for economic legislation. Filburn  Heart of ATL Motel v.” BASICALLY." Williamson v." which applied to automobiles renting advertising space on the car but not to. wasteful requirement in many cases." SCOTUS is unmoved by logic: "local authorities may well have concluded . Carolene Products Co. NY Times advertising NY Times on delivery vans. For economic policy. Darby (1941)  Wickard v. Jones (1937)  US v. not the courts. "The OK law may exact a needless. or none. Lopez (1995)  US v. Carolene Products Co. Lee Optical Co. (1938)  Williamson v. But it is for the legislature. NYC law provided: "no person shall operate in or upon any street an advertising vehicle. Raich (2005)**  US v.  Fifth Amendment: "Fifth Amendment has no equal protection clause… [and even if it did have one like the Fourteenth." The Court stated that “the law need not be in every respect logically consistent with its aims to be constitutional. NY (1949) (CB: 522-23). Lee Optical Co. Railway Express Agency v. Filled Milk Act case.The Rise of National Power & Modern Limits Modern Economic Due Process Standard  United States v. US (1971) Limits  US v. It is enough that there is an evil at hand for correction. Equal Protection afforded no relief: if a law violated economic liberties or made arbitrary distinctions. to balance the advantages and disadvantages of the new requirement. ex..

Katzenbach v.” Local activity can be regulated if it exerts a substantial effect on interstate commerce. individual instances of the class. US (1964). Still applying substantial affects. etc.” Therefore. it is within the purview of Congress’s regulation (it would have a substantial effect in defeating and obstructing [the regulatory] purpose to stimulate trade therein at increased prices.” and “suppression of the production of the condemned goods for interstate commerce is so related to the commerce and so affects it as to be within the reach of the commerce power. “Where the class of activities is regulated and that class is within the reach of federal power.that those who advertise their own wares on their trucks do no present the same traffic problem in view of the nature or extent of the advertising which they use. “[If intrastate activities] have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions. Darby (1941).” US v. CIVIL RIGHTS ACT OF 1964: COMMERCE CLAUSE EXPANDS IN SCOPE Heart of Atlanta Motel v. Extortion by people associated with organized crime has interstate character because organized crime goes beyond individual state. DEFERRING TO CONGRESS ON REGULATING COMMERCE NLRB v. Filburn (1942). Congress can regulate the actual shipment of goods across state lines. notes that interstate travel is closely related interstate commercial intercourse. Points out difficulty faced by blacks to get transient accommodations. (Fairly absurd decision). Lopez (1995). Gun-Free School Zones law deemed beyond the scope of Commerce Clause. Farmer grows wheat in excess of his allotted quota. served food made from ingredients that came from out of state & soft drinks. Nordlinger v.” Court holds that law is constitutional and within commerce power.” Attention paid to the fact that the criminal is a member of the class engaging in the practice prohibited by Congress. Hahn (1992) (CB: 523-24).” Wickard v." SCOTUS says the law did not touch on the kind of discrimination against which Equal Protection affords protection. Congress cannot be denied the power to exercise that control. “it supplies a need of the man who grew it which would otherwise be reflected in purchases in the open market. Homegrown wheat in this sense competes with wheat in commerce. but claims surplus is for personal use. Equal Protection challenge on state property tax being pegged to original purchase price. Even if the surplus wheat is never marketed. “Even where extortionate credit transactions are purely intrastate in character. US (1971). Daniel v. Rational basis in (a) local neighborhood preservation and (b) new purchaser does not have the same reliance interest warranting protection against higher taxes as does an existing owner. Paul (1969). the courts have no power to excise as trivial. open to interstate travelers. they nevertheless directly affect interstate and foreign commerce.” (2) Wage and hours requirements are directed at the suppression of a method of labor deemed “unfair. (1) “The shipment of manufactured goods interstate is such [interstate] commerce and the prohibition of such shipment by Congress is indubitably a regulation of the commerce. Anti-discrimination act applies as the restaurant is located near an interstate and 50% of the food came from out of state. This law is (1) a criminal statute and (2) not an essential part of a larger . Motel challenges prohibition against discrimination in public accommodations “if their operations affect commerce.” MODERN LIMITS ON THE COMMERCE CLAUSE US v. Jones (1937). even if motive is to regulate local production. FEDERAL CONSUMER PROTECTION ACT & THE COMMERCE CLAUSE Perez v. rather than market price. McClung (1964). Ollie’s Barbecue case. Act applies to amusement park because the snack bar. “Close and substantial relation” test.

” .”  Shifts to N&P clause: “[N&P] allows Congress to take all measures necessary or appropriate to the effective regulation of the interstate market.” Scalia provides helpful contours to commerce clause limits rationale:  Commerce Clause can expand beyond regulation of interstate commerce if carried through the vehicle of the N&P Clause.” 3.  “Economic” activity: “The production.”  Congress had a rational basis for concluding that home-consumed marijuana outside federal control would affect price and market conditions. See.” Foreseeable misuse. Regulate the use of the channels of interstate commerce 2. Categories of Commerce Clause Authority 1.” 3. the categories where Congress may regulate under Commerce power: 1.. Other criteria: 1. a.  “We refuse to excise smaller individual components of that larger statutory scheme. Reconstruction Powers. legislation regulating that activity will be sustained— e.5 grounds disregarded: Not congruent because not against a state actor (the alleged source of the problem).  "Where necessary to make a regulation of interstate commerce effective. production or consumption. but here it does not sway Court. Homegrown marijuana case. Morrison (2001)** Reader. (1) Fourteenth Amendment s. noneconomic conduct in Lopez lacked any economic endeavor 2.” US v. Attempt to prohibit interstate transportation of a commodity through channel of commerce. distribution.g. and consumption of commodities.” 4. even though the threat may come only from intrastate activities.) Additional wariness of authorizing “a general federal police power. Congressional findings of connection? It might help. Regulation of use of channels of interstate commerce.e. Court rejects “argument that Congress may regulate noneconomic. (See prongs (1) and (2) above. Stevens/ Court: “When a general regulatory statute bears a substantial relation to commerce. Congress may regulate even those intrastate activities that do not themselves substantially interstate commerce. Court rejects findings here. Attenuated connection is inadequate if it creates only a broad or tenuous connection to commerce. as Congress’s reasoning (re: diminishing productivity due to sexual violence) would “allow Congress to regulate any crime as long as the nationwide. Jurisdictional element: “something to limit reach to discrete item with explicit connection to interstate commerce. infra. Regulation of an activity that “substantially affects” interstate commerce. although intrastate transactions may thereby be controlled. Regulate and protect the instrumentalities of interstate commerce. there is nothing anchoring it in legitimate regulation of interstate commerce. (2) Commerce Clause grounds: Again. those activities that substantially affect interstate commerce.” Gonzales v. 2. 3..” Won’t compromise a valid law by carving out exceptions on as applied cases. Raich (2005)** Reader. Includes the power to regulate those activities having a substantial relation to interstate commerce… i. the de minimis character of individual instances arising under the statute is of no consequence.regulation of economic activity (where scheme would be undercut unless intrastate activity is regulated). or persons or things in interstate commerce. therefore.  Diversion of homegrown marijuana tends to frustrate interest in eliminating commercial transactions in the interstate market in their entirety. aggregated impact … has substantial effects on employment. violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. Where economic activity substantially affects interstate commerce. criminal.

"  Kennedy concurrence: This wasn’t a Lee Optical minimum rationality test.” In contrast. Unlike Butler this tax was not earmarked. US Civil Service Comm’n (1947)  Coyle v. Davis (1937)  Helvering v. we look to see whether the statute constitutes a means that is relationally related to the implementation of a constitutionally enumerated power. this is application to intrastate conduct necessary for regulation of broader interstate regulatory scheme. also power to manage prisons. Standard of review: "In determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute. Agricultural Adjustment Act of 1933 gave farmers benefit payments fore reducing their productive acreage." "Means end rationality. Under N&P analysis tied to Commerce Clause justification. Held unconstitutional: (1) tax is “means to unconstitutional end” and (2) the regulation is not in fact voluntary. Butler (1936). and employers could get 90% tax credit paid to a state unemployment fund. But to hold that motive or temptation is equivalent to coercion it to plunge the law in endless difficulties. THE LATEST WORD ON THE COMMERCE CLAUSE AND NECESSARY & PROPER CLAUSE TANDEM US v. Maintains that Morrison & Lopez failed Commerce Clause authority because the connection to commerce was only via “a remote chain of interference.” B) Taxing & Spending  Steward Machine v. Federal statute allowing district court to order commitment of mentally ill. and also power to regulate prisoners behavior after release]. Comstock (2010)*. Sebelius (2012)* TAXING & SPENDING & BENEFIT SCHEMES Preface: US v. going instead to general funds. Davis (1937)  US v.”  “The amount offered intended to be sufficient to exert pressure on farmer to agree to the proposed legislation. not a mere conceivable rational relation.”  “The statute does not call for a surrender by the states of powers essential to their quasi-sovereign existence.” . sexually dangerous federal prisoners for longer than their prison term if certain criteria are met. Benefit payments came from a tax imposed on commodity processors. and proceeds were earmarked for benefit of farmers complying with prescribed conditions. A provision in the bill sought to induce the enactment of state laws that followed the federal standard. so the tax is "not a true tax. and also [power to imprison.”  “Act invades the reserved rights of the states.’ Compare: Steward Machine v. case stems from tax on cotton mill that said the bill unconstitutionally regulated agricultural production." “When legislating pursuant to the N&P Clause.  Payments to farmers were coupled with coercive contracts. Congress’s authority can be no more than one step removed from a specifically enumerated power. Smith (1911) Limits  SD v. SCOTUS requires “a tangible link to commerce.  “Every rebate from a tax when conditioned upon conduct is in some measure a temptation. Kahirger (1953)  OK v.” Court also looks at linear series of Congressional powers: "Congress has the implied power to criminalize any conduct that might interfere with the exercise of an enumerated power. Davis (1937). Dole (1987)  NFIB v. Social Security Act imposed payroll tax on employers of eight or more.

 “Unless there are provisions extraneous to any tax need. Smith (1911). because state has sovereignty to repeal law. State elects move to OK City in 1910. the regulatory tax produces revenue. FEDERAL TAXES AIMED AT REGULATING LOCAL CONDUCT US v. Exercise of spending power must be in pursuit of "general welfare"—though Congress is treated to deference re its judgments here. Unemployment compensation law which is a condition of the credit has had the approval of the state and could not be law without state approval.  Interstate drinking problem: satisfied. SCOTUS does not care. It is valid.  Federal government “has no power to regulate local political activities as such of state officials. Helvering v.”  Regardless of the effect. MODERN LIMITS ON THE TAXING & SPENDING SD v.  Context: The enabling act of 1906 that gave OK statehood had mandated the state capital be in Guthrie until 1913.”  “Even though the action taken by Congress does have an effect upon certain activities within the state. 3. Held: Congress could properly condition the expenditure of highway funds on a state’s compliance with a provision of the Hatch Act prohibiting state officials principally employed in federally funded programs form taking any active part in political activities. Condition not linked to irrevocable contract. STATE CAPITAL CASE. where nation and state can cooperate in their efforts. Kahirger (1953). 2. SCOTUS upholds Old-Age Benefits provision of Social Security Act. Congress cannot directly tell a state where its capital is to be. Court determines that only the national power has the resources necessary to finance an adequate program for qualifying beneficiaries. it has never thought that such effect made the federal act invalid.” Coyle v. it must do so unambiguously. just about eliminating gambling. Portion of federal highway funds tied to conformity of drinking laws (21 years old minimum age to purchase). 1. but to relieve unemployment. 4. If Congress decides to condition states' receipt of federal funds. so states can exercise choice knowingly  Congress could not more clearly state the conditions of funds 3. All the provisions of the excise are adapted to the collection of a valid tax. “It is conceded that a federal excise tax does not cease to be valid merely because it discourages or deters the activities taxed.” OK v. Dole (1987). Federal provision requires gamblers to pay $50 occupational tax and register with IRS. [but it] does have the power to fix the terms upon which its money allotments to states shall be disbursed. Davis (1937). US Civil Service Comm’n (1947).Differences between Steward Machine & Butler: 1. 2. Condition not aimed at unlawful end. $50 tax isn’t about generating revenue. SD brings claim under the 21st Amendment. Proceeds of tax not earmarked to a single group. courts are without authority to limit the exercise of the taxing power.  Not clear that Congress cannot “encourage” a particular location. Held: Congress may act indirectly under its spending power to encourage uniformity in states' drinking laws. Federal grants might be illegitimate if they are unrelated to federal interest in particular national projects or programs  Reasonably calculated to federal interest—cites study and problem of commuting boozers  Cannot ask for unconstitutional state action .

Holder (2009)* FIFTEENTH AMENDMENT: RIGHT OF CITIZENS TO VOTE SC v.4. § 2 of Fifteenth Amendment (“Congress shall… enforce this law with appropriate legislation”) seems to allow more robust action FOURTEENTH AMENDMENT: SECTION 5 AND EQUAL PROTECTION IN VOTING CONTEXT Katzenbach v. (2) SD v. . Court App. Other constitutional provisions may provide an independent bar on the conditional grant of federal funds. but consist with the letter and spirit of the constitution. § 4(e) of Voting Rights Act allows persons completing sixth grade in Puerto Rico not having to take literacy test before voting. not regulating. Mitchell (1970) Limits  City of Boerne v. NY brings suit. Morgan (1966)  Jones v. MD (2012)*  Northwest Austin Municipal Dist. Individual Mandate— penalty for people without insurance a. Analogy to Necessary & Proper Clause under McCulloch: “Let the end be legitimate. Flores (1997)  US v. (2001-3)  TN v. claiming Tenth Amendment (infringement on states’ rights) issue. Medicaid Expansion— does expansion compel states to administer program? (1) CJ Roberts on individual mandate and Commerce Clause rationale:  Congress is creating. not classes of individuals apart from any activity in which they are engaged  N&P (tied to commerce) requires legitimate exercise of authority of granted power. Morrison (2001)**  Kimel v. which are not prohibited. and all means which are appropriate. let it be within the scope of the constitution. interstate commerce  Congress may regulate classes of activities. Morgan (1966). and (2) § 5. Alfred Mayer (1968)  Oregon v. which outlines formula for determining which counties must suspend voting qualifications tests and which are subject to § 5 (based on counties with record of disparity in voting turnouts). CJ Roberts on taxing power:  Permissible to set up scheme to buy policy or pay tax. which forbids changes to voting regulations pending approval of Attorney General. NFIB v. Florida Board et al. are constitutional. Katzenbach (1966). Sebelius (2012)* 1. v. Katzenbach (1966)  Katzenbach v. Dole allowed meaningful choice between states’ accepting or declining federal aid  Loss of 100% of preexisting Medicaid funding does not allow meaningful choice C) Reconstruction Powers  SC v.”  So no artificial limits on how Congress can enforce Fifteenth Amendment. which are plainly adapted to that end. Lane (2004)*  Coleman v. Two main provisions of Voting Rights Act: (1) § 4a-d.  Case by case litigation was inadequate to combat qualifications imposed to disenfranchise blacks.  If litigating infringements is ineffective to combat discrimination. Needed to support guaranteed coverage 2.

“Due to problems in State government re prosecution of sexual violence crimes. not the power to determine what constitutes a constitutional violation. Morrison (2001)** Fourteenth Amendment §5 argument.” Further.] Oregon v. When the exercise of religious has been burdened in an incidental way by a law of general application.   Court holds that. it is “consistent with the letter and spirit of the constitution. impose a substantial burden on a large class of individuals. unchangeable by ordinary means. Congress only deemed to have overstepped its Reconstruction Power once (Oregon v. or SC v.s  RFRA. Katzenbach where remedial action targeted regions where discrimination was most flagrant and voting laws alone were affected.  “Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause…. passed the following year.” Jones v. Mitchell (1970). like the N&P Clause. but Congress could not compel state to allow 18 year olds to participate in state elections. in contrast. provides elevated Fourteenth Amendment (“substantial burden test”) for all governmental impacts on religious persons or entities: “It is a reality of the modern regulatory state that numerous state laws. Split Court. let alone burdened because of their religious beliefs. Congress has the power to enforce. as set forth in Yoder and Sherbert. we have a state action remedy/ right to act under the Fourteenth . Morgan where Congress acted to spare specific group from targeted discrimination. Note: Up until Boerne. such as zoning regulations at issue here.” US v. RFRA (1) “restored” compelling state interest test. and (2) provided defense to people whose religious exercise is substantially burdened by government.” Because §4(e) ratchets up fundamental rights to impeded group. Passed broad legislation on heels of “incidental burdens on religion. Nullified by 26 th Amendment. Alfred Mayer (1968). Court rejects.” as opposed to Katzenbach v. [Omit. it does not follow that the persons affected have been burdened any more than other citizens. relief needn’t be universal: o “The limitation on relief reflect in §4(e) does not constitute a forbidden discrimination since [historical relationship to PR and familiarity with PR education] might well have been the basis for the decision of Congress to go no farther than it did.”  Congruence and appropriateness of remedial powers.  Congress’s power to enforce [?] is only that: a power to enforce the law. no longer would the Constitution be superior paramount law. Allowed 18 year olds to vote in federal elections.”  “If Congress could define its own powers by altering the Fourteenth Amendment’s meaning. Flores (1997). Mitchell). passed after Court pivots from requiring compelling state interest test for free exercise claims. Court invalidates Congress’s Religious Freedom Restoration Act. It would be on a level with ordinary legislative acts. Limits CONGRESSIONAL IMPOSITION OF CONSTITUTIONAL STANDARD OF REVIEW OF FOURTEENTH AMENDMENT (AS PART OF §5 AUTHORITY) City of Boerne v. Congress claims right to legislate under Fourteenth Amendment §5 power to enforce by appropriate legislation the constitutional guarantees under Fourteenth Amendment. Fourteenth Amendment “§5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.” §4(e) of VRA is “measure to secure for PR community residing in NY nondiscriminatory treatment by government—both in the imposition of voting qualifications and the provision or administration of governmental services.

Katzenbach v.] Presumably. MD (2012)*. When Congress expanded Age Discrimination in Employment Act and Americans with Disabilities Act to state gov'ts. [Doctrine of constitutional avoidance: SCOTUS tries to make this statute work. FOURTEENTH AMENDMENT REMEDIAL JUSTIFICATION NEEDS TO ADDRESS DISCRIMINATORY PROBLEM Coleman v. History [of provision] shows concern for economic burdens on employee…. Voting Rights Act argued to be incongruent. does not comport to the egregious conduct cited by government.” Holds that Congress lacks Fourteenth §5 power to abrogate states’ immunity from damage lawsuits. Hibbs (2003).” Not congruent: (1) VAWA did not take corrective action against state actors.) Nevada Dept. due to dated measurement for preclearance requirement. TN v.  Prophylactic legislation under Fourteenth s. Court App. “Without widespread evidence of sex discrimination or sex stereotyping in the administration of sick leave. (2001). Court upholds application of Family and Medical Leave Act (re employee taking leave to care for ill family members) to state governments as valid exercise of Fourteenth Amendment §5 power. Court doesn’t reach Constitutional question. v. San Antonio Transit (1985)  Gregory v. VRA is unconstitutional based on dated measurement criteria. SCOTUS refused to allow money damages against states because these were not valid exercises of Reconstruction power. Morgan) but remedial act must be congruent. Human Resources v. Holder (2009)*. instead allowing the “bailout” provision to clear certain political jurisdictions (if certain conditions are met)..  Reaches broad range of conduct in order to alleviate proof issues. Contrasts with Nevada. ME (1999) . US (1997)  Alden v. it is apparent that the congressional purpose in enacting the self-care provision is unrelated to those supposed wrongs…. Lane (2004)*.g. for discrimination based on illness. FMLA “self-care” provisions did not apply to state governments.5 must have a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. but rather the alleged offenders. Ashcroft (1991)  NY v. (2) Remedy that addresses entire nation.  Reaches broad range of conduct in order to prevent constitutional violates from happening in the first place. ADA portion regulating access to public buildings upheld under §5. (As opposed to race or sex discrimination.” WHERE RECONSTRUCTION MEETS SOVEREIGN IMMUNITY Kimel v. Northwest Austin Municipal Dist. not sex. SUMMARY: Fourteenth Amendment §5 “enforcement” legislation should:  Be congruent and appropriate with discriminatory conduct it seeks to remedy  May be under-inclusive  Can ratchet up (not down) rights for discriminated group in question without triggering Equal Protection issue E) Regulation of States as States  Garcia v.Amendment. Florida Board et al.  Congress can be under-inclusive (e. Enforces “a variety of other basic constitutional guarantees” when access to courthouse is impossible for handicapped person. US (1992)  Printz v. Obviates problem of proof (that employer’s plan is based on sexual stereotypes). including states that do not have issues with prosecuting sexual violence crimes.

Coyle v.”  Note: EP argument: “MO has compelling interest in maintaining judiciary fully capable of performing the demanding tasks that judges must perform….Does not apply to lawsuits against state officials in their nonofficial conduct .” Okay. 46 (“Federal government will partake sufficiently of the spirit of the States to be disinclined to invade the rights of the individual states. problem solved? *(Keep in mind. Usery (1976). “We will not read the ADEA to cover judges unless Congress has made it clear that judges are included. allowing damages for discrimination. or by citizens or the subjects of any foreign state. and (2) there must be congruence and proportionality between the remedy and the violation. or the prerogatives of their governments.  States may waive defense and allow lawsuit to go forward  States still bound by law even if law cannot be enforced by suit for money damages  Congress can override (abrogate) Eleventh Amendment immunity Abrogation: (1) Congress must abrogate with clear intent. Mandatory retirement is a reasonable response to this dilemma [of diminishing mental capacity. although SCOTUS avoids question of how effective these checks might be.  Applies only to state governments (not cities. municipalities). non-ideal impeachment procedure. commence or prosecuted against one of the United States by citizens of another state. counties.” Garcia v. States have internal checks against federal overreach. the Court would not interpret Congressional intent as being plain enough to effect such a broad exercise of power.  Applies when citizens seek to sue their own states. o Applies to some of ADA. inadequacy of elections]. but not Commerce Clause: o Applies to Title VII of Civil Rights Act. Oklahoma said there are clear limits to what federal government can tell states…) EXPECTATION OF CLEAR CONGRESSIONAL INTENT BEFORE INVALIDATING STATE ACTION Gregory v. Overrules National League of Cities.” .”  Broad doctrine of state government immunity from lawsuits by private individuals seeking damages  Applies in federal question and diversity cases.  Applies to lawsuits brought in state (as well as federal) courts. Suit brought on ADEA violation grounds. MO state constitutional provision provides for forced retirement of judges at 70.. FEDERALISM & STATE SOVEREIGNTY Background: National League of Cities v. Garcia is gutted. Ashcroft (1991). o Applies to some of FMLA.Does not apply to lawsuits naming state officials and seeking prospective injunctive relief . San Antonio Transit (1985).Does not prevent actions between states.” And even if 70 is arbitrary and imperfect. . “the political process ensures that laws that unduly burden the States will not be promulgated.e. Court holds that federal minimum wage restrictions “displace the States’ freedom to structure integral operations in areas of traditional government functions” and so the legislation “is not within the authority granted to Congress by [the Commerce Clause]. Since the ADEA’s exclusion of most public officials is ambiguous. simply throws out Fed. discomfort with unworkable standard of states asking courts what positions are “traditional” or “integral” and thus beyond federal meddling).”) and says. State should not depend upon SCOTUS to set off valid state functions from federal overreach (i. but not overturned.ELEVENTH AMENDMENT SUMMARY (SEE HANDOUT) Federal judiciary does not have jurisdiction over “any suit in law or equity.  Congress can abrogate when acting under §5 of Fourteenth Amendment. “a State does not violate the EP Clause merely because the classifications made are imperfect.

Underwood) 4. Where purposeful discrimination is the but for cause. Here. o Government would have done same thing anyway (Mt. Thompson) o Legitimate purpose to administration of law that produced disparity (Washington v. Equality Answering questions: (1) Identify standard of review. Court struck down a provision of the Brady Bill which required local law enforcement officials to investigate prospective handgun purchasers. Healthy in First Amendment context) o Government would have enacted same law anyway (Hunter v. Arlington Heights) 2. okay to note later that there may be “as applied” exception to specific class. intent to discriminate was motivating factor. Federal government cannot commandeer state legislatures for federal legislative scheme.. US (1992). The Court held that Congress could not conscript state officials to administer a federal program although Justice O’Connor’s concurrence suggested that state officials could be required to perform certain information reporting functions. the accountability of both state and federal officials is diminished. (3) Provide exposition as to why decision would go one way or another. but not “simply direct the States to provide for the disposal of radioactive waste within its borders. Plaintiff makes out prima facie case of discriminatory purpose (i.  Constitution permits incentivizing. “Take title” provision violates dual sovereignty. State violating federal law was not obliged to entertain suit for damages by wronged employee. ME (1999). Alden v. Burden shifts to government to show neutral explanation o Legitimate purpose to challenged neutral statute (Palmer v.” APPLYING NY V. US Printz v. (2) Reviewing effectiveness of tailoring. government must meet strict scrutiny standard. Even if purposeful discrimination is a motivating factor. Points to underlying structure of government as reason citizens cannot “turn the state against itself. Radioactive Waste case. CATEGORIES OF REVIEW I. even if not sole purpose (Arlington Heights).STRIKING DOWN A FEDERAL STATUTE IN NAME OF STATES’ RIGHTS NY v. but making state legislatures provide for disposal of waste—and “take title” of the waste if not adopting certain policies—the federal government forces states to craft their own regulatory policy. government can win if it shows purposeful discrimination not the but for cause of outcome. Where the federal government compels States to regulate. Brady Handgun Violence Prevention Act case. Narrowly Tailored & Compelling Government Interest (Burden on Gov’t)  Religion  Race  National Origin  Alienage (if state law) . Federal government may not compel the States to enact or administer a federal regulatory program. Davis) 3.e. US (1997). or pre-empting state regulation contrary to federal interests. Equal Protection analysis.” XIV. generally: 1. For caveats or exceptions. o Statute distinguishes between groups o Statute neutral but evidence of discriminatory purpose behind act o Administration of law shows discriminatory purpose (Yick Wo.

Kentucky (1986) (CB: 1048-51)  Georgia v. Healthy City School Dist. DeStefano (2009) (Supp: 311-15)  United States v. Rational Relation & [Legitimate] Government Interest (Burden on Plaintiff)  Poverty  Social Policy  Economic Policy  Age  Sexual Orientation  Disability  Alienage (if federal law) A) Race  Brown v. McCollum (1992) (CB: 1052-53)  Miller-El v. Cayetano (2000)  Yick Wo v. CA (2005)  Palmore v. Peña (1995) (CB: 1109-13)  Regents of the University of California v. 1999) [omit]  Hernandez v. Bollinger (2003) (CB: 1142-47)  Parents Involved in Community Schools v. University of Texas at Austin (5th Cir. Jackson Board of Education (1986) (CB: 107781)  City of Richmond v. (1977) & Mt. Dretke (2005) (CB: 1054)  McKleskey v. 1 (2006) (Supp: 267-308)  Fisher v. Metropolitan Housing Development Corp. 2011) (handout)  Morton v. Hopkins (1886)  Washington v. J. Antelope (1977) (CB: 1151-53) . Clary (8th Cir. Bollinger (2003) (CB: 1120-42)  Gratz v. Substantially Related & Important Government Interest (Burden on Gov’t)  Gender  Illegitimacy III. FCC (1990) (CB: 110709)  Adarand Constructors v. 1994) (CB: 1045-47)  Batson v. Of Education v. Sharpe (1954)  Loving v. Seattle School District No. Kemp (1987) (CB: 1055-63)  Fullilove v. VA (1967)  Chinese Exclusion Cases (1889)  Korematsu v. TX (1954)  Hernandez v. Board (1954)  Bolling v. Mancari (1974) & United States v. US (1944)  Johnson v. Underwood (1985) (CB: 1040-41)  Palmer v. Sidoti (1984)  Adoption issues [omit]  Brown v. Oneonta (2 Cir. Bakke (1978) (CB: 1071-77)  Grutter v. NY (1991)  Rice v. Bd. (1989) (CB: 1081-1103)  Metro Broadcasting v. Klutznick (1980) & Wygant v. Doyle (1977) (CB: 1039-40)  Hunter v. Exercise of Fundamental Right II.A. Thompson (1971) (CB: 1041-42)  Ricci v. Croson Co. Davis (1976)  Arlington Heights v.

Held to strict scrutiny . MODERN STANDARD FOR RACIAL DISCRIMINATION TEST Johnson v.)  Gayle v. US power to abrogate a treaty—> "last in time" rule. Ferguson (1896) as applied to education: “separate but equal has no place in public education. Court: "All legal restrictions which curtail the civil rights of a single racial group are immediately suspect…. be subjected to the most rigid scrutiny.”  Draws on Corolene. Cellmate assignments were based on race and ethnicity. especially suspect in criminal statutes. as right to marry is “vital personal right. no equal protection because for Mw marriage is criminal. VA (1967). Browder (1956) formally overrules Plessy. CA Dept of Corrections (CDC) has policy of placing new and transferred male prisoners in double cell reception centers for up to sixty days. State need only show a rational basis for application of police power. CDC defends policy as necessary to prevent racial gang-related violence. Korematsu. which was upheld as a legitimate military exercise necessary to prevent espionage and sabotage in an area threatened by Japanese attack. Board (1954). The clear and central purpose of the Fourteenth Amendment was to eliminate official state sources of invidious racial discrimination in the states. “Brown goes beyond schools. US (1944).FIGURING OUT EQUAL PROTECTION VERSUS DUE PROCESS RATIONALES Brown v. “Equal Protection Clause demands that racial classifications. racial antagonism never can.” Bolling v. Equal Protection is more explicit safeguard.” Applies state Equal Protection Clause under Fourteenth Amendment. assumed by their nature to be invidious. No role for courts to review basis of exclusion. RACE & NATIONAL AUTHORITY TO DETAIN ON THE BASIS OF NATIONALITY Korematsu v. Noncitizen is allowed in US at the pleasure of the federal government. “Segregation is not reasonably related to any proper government objective. but not applicable to federal government. RACE & NATIONAL AUTHORITY TO EXCLUDE FOREIGN NATIONALS Chinese Exclusion Cases (1889). Equal protection means only equal punishment for whites and blacks who violate law. Overturns “separate but equal” doctrine of Plessy v. VA argues: 1. 2. Anti-classification: prohibits certain kinds of classifications. (That it is unequal leaves SCOTUS to ignore possible infringement under Due Process Clause under Fourteenth Amendment. But Due Process can redress “arbitrary deprivation of liberty. Whatever permit the Chinese laborers may have obtained previous to the act are revocable at the will of the federal government at any time. Assuming race neutral application." Cites Hirabayashi Japanese-only curfew order.” ANTI-CLASSIFICATION & ANTI-SUBORDINATION 1. [but while] pressing public necessity may sometimes justify the existence of such restrictions. but for Mb the marriage is legal.  Additionally. CA (2005).  Imagine Mw and Mb wanting to marry Wb. The US has the right to exclude foreigners at any time.” Korematsu. Sharpe (1954). Anti-subordination: prohibits government action that helps sustain or reinforce unjust forms of social hierarchy. Desegregates DC schools (run by federal government). as segregation is a deprivation of liberty to Negro schoolchildren. Due Process Clause analysis would show Lovings were deprived liberty without due process. 2. and courts should defer.” Applies Fifth Amendment Due Process Clause. Court defines Equal Protection: EP Clause “requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.” Loving v.

” “The effects of racial prejudice. exacerbating problem. Further. LANGUAGE A PROXY FOR RACE? ." In Jackson County. even though some men would have qualified. SCOTUS disagrees: "The exclusion of otherwise eligible persons form jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment. where Court had a deferential standard for prisoner claims of violations—> only held "reasonable relation" test to policy and "legitimate penological interests.  "All racial classifications… must be analyzed by a reviewing court under strict scrutiny. if courts allow segregation in reception area. Private racial biases “are not [permissible considerations for removal of a child from a mother’s custody]. but he did claim to right to be indicted and tried by juries form which all embers of his class are not systematically excluded. "Racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally. need not burden or benefit."  Assumption of invidious purpose."  Strict scrutiny standard: "Government has the burden of proving that racial classifications are narrowly tailored measures that further compelling governmental interests." Also notes that there is no record of person with Mexican surname ever serving on jury in Jackson County. Thomas’s interesting point in dissent: Court holds that prisons cannot use racial classification in administration. TX." Concern that policy may breed hostility and reinforce divisions. nor did he claim a right to have persons of Mexican descent sit on his particular jury. Hernandez convicted of murder and sentenced to life imprisonment. however real.”  Results alone are not evidence of discrimination.” GOVERNMENTS CANNOT ACCOMMODATE OR CATER TO PRIVATE BIAS Palmore v.  Strauder expanded: exclusion of a class of persons from jury service may deprive a D who is a member of that class of the constitutional guarantee of equal protection. depriving him of 14th Amendment Equal Protection. Sidoti (1984). but SCOTUS admits testimony re community distinctions between whites and "Mexicans.  "It taxes our credulity to say that mere chance resulted in there being no members of this class among the over six thousand jurors called in the past 25 years. for whatever the Court knows of administering educational institutions.  TX argues "two class theory": that there are only two classes—white and black—contemplated under 14th. TX (1954). “Deference would seem all the more warranted in the prison context.” STRAUDER COUSIN CASE: RACE AS SOCIAL CONSTRUCT & EVIDENCE “BESPEAKING” DISCRIMINATION Hernandez v. could state not justify segregation throughout prison?  Juxtaposed with competing Turner test. Hernandez alleges that persons of Mexican descent were systematically excluded form service on jury. it knows much less about administering penal ones. Court says that petitioner “substantiates” claim of group discrimination by showing persons of Mexican descent “constitute a separate class."  Remanded to test policy against strict scrutiny standard. but Court allowed schools to carry on with affirmative action in pursuit of diversity on campus.standard."  Hernandez did not seek proportional representation. The result bespeaks discrimination. cannot justify a racial classification removing an infant child from custody of its natural mother found to be an appropriate person to have such custody." Turner does not apply "because the right to be discriminated against based on one's race is not a right that need necessarily be compromised for the sake of proper prison administration.

” Even if “native” Hawaiians were diverse. It is that proxy here. (1977). Reaffirms Washington v. Trial judge accepted neutral explanation. without regard to whether it reflects a racially discriminatory purpose. and the test did not have a demonstrative effect at predicting job performance. SF Board of Supervisors issues permits to laundry operators in wooden buildings. but to “honor” those with ancestry.Hernandez v. disproportional impact. Nothing wrong with government interest in purging bilingual jurors. State [agent] acts "with a mind so unequal and oppressive as to amount to a practical denial by the state of that equal protection of the laws. so Court defers to that.” Compare to Hernandez v. and rejected 200 Chinese applicants but issued permits all but one of 80 white applicants.”  “Standing alone." DISPROPORTIONATE IMPACT ≠ DISCRIMINATORY PURPOSE Washington v. does Hernandez get relief simply because there is evidence to support a claim of Equal Protection violation in conjunction with the “incredulous” results. Davis (1976) (CB 1026-31). Test was found to fail a higher proportion of blacks than whites. Petitioner was convicted for operating a laundry without license. claims classification is not meant to demean nonnatives.”  “The test is neutral on its face and rationally may be said to serve a purpose the Government is constitutionally empowered to pursue. and when it will say “disproportional impact” is. Stevens. standing alone. it is still singling out “identifiable classes of persons solely because of ancestry or ethnic characteristics.  Language is not race. Query: does that matter? DISCRIMINATORY ADMINISTRATION OF NEUTRAL LAW Yick Wo v. TX. Hawaii’s denial of voting rights to non-native Hawaiian residents on OHA Trustee position violates Fifteenth Amendment. is unconstitutional solely because it has a racially disproportionate impact. Court offers factors for reviewing whether . then there is no race element. [disproportionate racial impact] does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest considerations. Prosecutor using preemptory challenges on Spanish-speaking jurors—based on his doubts about such juror’s deferring to the official translation of Spanish-language testimony—did not violate Equal Protection Clause.” Thus. Davis and principle that a showing of discriminatory effect is not sufficient. in dissent. ANCESTRY AS A PROXY FOR RACE? Rice v.  If it is really a language issue. Issue: not clear what “race” is here. Is there an effective way for distinguishing when the Court will be prepared to find that an “incredulous” result “bespeaks” discrimination. Metropolitan Housing Development Corp. “Ancestry can be a proxy for race. NY (1991). Cayetano (2000)." Application of fair law: "Though the law itself be fair on its face… yet if it applied and administered by public authority with an evil eye and an unequal hand. without regard to any discriminatory purpose and absent proof from petitioners that it was absolutely unrelated to job performance. which would include Latino and non-Latino jurors. Black applicants to police force fail written test. while Davis relies only upon the results? INQUIRY INTO MOTIVATION: FACTORS Arlington Heights v.  “Our (EP14 and DP5) cases have not embraced the proposition that a law or other official act. so as practically to make unjust and illegal discriminations between persons… the denial of equal justice is still within the prohibition of the Constitution. Hopkins (1886). SCOTUS reverses. inadequate to trigger highest scrutiny? That is to day. HI acted using ancestry as a racial definition and for racial purpose. was not means to deem the examination unconstitutional. However.

e. Thompson (1971) (CB: 1041-42). D may establish prima facie case based of purposeful discrimination solely based on his own case. ARE MOTIVES ALONE ENOUGH? NOTE: PREDATES ARLINGTON HEIGHTS & HUNTER. Kentucky (1986) (CB: 1048-51). SUPRA Palmer v. No affirmative duty to operate pools. CAN BE DISPARATE TREATMENT Ricci v. City throws out tests. showing state’s (1) actions toward identifiable racial group (2) a opportunity or agency for discriminatory practice (3) an inference that .. Specific sequence of events leading to challenged decision 4. MS closes public swimming pools following court order to desegregate them in 1962. particularly if there is a series of official actions taken for invidious purposes 3. plaintiffs allege that throwing out the tests results treated passing firefighters less favorably than others because of race and violation of Equal Protection Clause. SCOTUS affirms. Historical background. 1994) (CB: 1045-47) [omit]— racial profile based on description of suspect is not inherently racist. some alleged the test was biased and threatened disparate impact lawsuit. Can law’s defenders show law would have been enacted without discriminatory motive? 3. Legislative or administrative history. in which a focus on statistics could put undue pressure on employers to adopt inappropriate prophylactic measures. Court says “such a test would encourage race-based action at the slightest hint of disparate impact and would amount to a de facto quota system.. PREEMPTORY CHALLENGES & BLACK JURORS Batson v. Substantive departures where factors usually considered important strongly favor a decision contrary to the one reached 6. ACTING TO AVOID DISPARATE IMPACT LAWSUIT. all public pools are closed). This is how analysis should occur: 1. Is provision adopted with discriminatory purpose or motive? 2. In ensuing public debate. the fact that it was passed with discriminatory purpose is enough to invalidate the law under Equal Protection Clause. Departures from normal procedural sequence 5. Question of whether AL constitutional provision for disenfranchising convicts guilty of felonies or misdemeanors “including crimes involving moral turpitude” is discriminatory based on disproportionate impact on blacks. New Haven CT firefighters promotion test produced results where no black candidates passed. others argued tests were fair and threatened disparate treatment if the City scrapped the tests and denied promotions to top performers.e. and no single motive need be discerned by the courts. Jackson.” Hernandez v.  The City chose not to certify examination results because of statistical disparity based on race—i. Petitioners must carry burden of proving discriminatory purpose was a motivating in decision: 1. Underwood (1985). how minority candidates had performed when compared to white candidates… Whatever the City’s ultimate aim… the City made its employment decision because of race. Even if law also sought to discriminate against poor whites. “Proof of systematic exclusion from the venire raises an inference of purposeful discrimination because the result bespeaks discrimination.” United States v. TX.governmental decisions are racially motivated. DeStefano (2009) (Supp: 311-15) Title VII prohibits disparate treatment discrimination and disparate impact discrimination. especially where contemporary history Hunter v. POST HOC. Case also notes that motive alone. even if discriminatory.  Court rejects argument that good-faith effort to avoid Title VII disparate impact exposure should excuse actions. Clary (8th Cir. Impact of official action 2. District Court finds that closing was justified to preserve peace and order and because pools could not be operated economically on integrated basis. is not enough to invalidate law if the effect is nondiscriminatory (i.

 “The Constitution does not require that a state eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. layoffs impose the entire burden of achieving racial equality on particular individuals. STATISTICAL EVIDENCE OF DISCRIMINATION NOT ALWAYS ENOUGH TO SHOW DISCRIMINATION McKleskey v. Klutznick (1980). That burden is too intrusive.  Issue of summoning jurors incidental to the study to discover motive. Georgia v. who must prove neutral—non racial —purpose as applied to that particular case. Kemp (1987) (CB: 1055-63) Statistics used in study showed correlation between race of defendant.” Court applies strict scrutiny. court should not substitute a better one. Powell concurs. If prosecutor offers unsatisfactory argument. Court rejects local school districts AA plan that would lay off nonminority teachers first in order to preserve “current percentage of minority personnel employed at the time of layoff. If reasoning for striking blacks could easily apply to nonblack who is permitted to serve. but not here in the discretionary operation of and assessment of criminal punishments. Jackson Board of Education (1986) (CB: 1077-81). Then burden shifts to state. Debating appropriate level of scrutiny after Bakke. state has not opportunity to defend or explain statistical disparity.”  Inappropriate because of “the burden that a preferential layoff scheme imposes on innocent parties. McCollum (1992) (CB: 1052-53). Above applies to defendants as well as prosecutors. J. Findings necessary to underpin an affirmative action plan included: . and rejects compelling government interest to “alleviate effects of societal discrimination” and “provide minority role models.” FLAWS AND LIMITS IN AFFIRMATIVE ACTION PUBLIC CONTRACTS City of Richmond v. (1989) (CB: 1081-1103).”  Court says that statistical evidence can be used as proof in equal protection violation claims in context of Title VII or jury venire selection. 2. Court holds that statistics alone cannot infer a discriminatory purpose on the part of the state or the juries.” AFFIRMATIVE ACTION Fullilove v. Court invalidated a Richmond requirement that prime contractors working for it award 30 percent of their subcontracts to minority contractors. a majority of the Court applied a compelling state interest test to affirmative action cases. and frequency of capital punishment being sought or assessed against the accused. citing a “compelling” interest in government remedying unlawful discrimination by “reasonably necessary” means. Croson Co.A. 3. For the first time.state used opportunity to act discriminatorily. victim. A plurality of four afforded guidance regarding what steps state and local governments had to follow in formulating appropriate plans.”  “While hiring goals impose a diffuse burden. “To prevail under equal protection D must prove that the decision makers in his case acted with discriminatory purpose. Burger finds MBE (“minority business enterprises”) provision of Public Employment Act of 1977 (requiring 10% of federal funds granted for local public works go to minority-owned businesses) within Fourteenth Amendment §5 power. and that the act ensured MBE were not denied equal protection prospectively. EVIDENCE OF DISCRIMINATORY PREEMPTORY STRIKES (DESPITE ATTEMPTED NEUTRAL EXPLANATION) Miller-El v. “Happenstance” in face of grossly disproportionate strikes. Dretke (2005). Requests to “shuffle” jury venire to avoid blacks being questioned and selected. AFFIRMATIVE ACTION FIRINGS Wygant v. Bad explanations: 1. No majority opinion.

an affirmative action plan should be proposed only “in extreme cases. Overrules Metro Broadcasting. While there is a history of private & public discrimination. Applies consistent strict scrutiny standard. it evaluates carefully all governmental race-based decision in order to decide which are constitutional. [Overruled in Adarand. “That a race-conscious admissions program does not operate as a quota system does not.” Hence. so it has failed to demonstrate a compelling state interest in apportioning public contracts to minorities. . Grutter v. This can be satisfied by “narrow tailoring. even when racial classification is “benign. Finally.”  Local government’ EDUCATION CASES Regents of the University of California v. Defining racial classification strict scrutiny:  “Strict scrutiny does not treat dissimilar race-based decisions as though they were equally objectionable. UC-Davis Medical School reserves 16 of 100 seats for minorities applicants. A university’s program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his application. Even when appropriate findings existed.”  Strict scrutiny determines whether compelling government interest justifies infliction of injury (of equal protection violation). FCC (1990) (CB: 1107-09). Bollinger (2003) (CB: 1120-42).” The state or local government should first try anti-discrimination legislation or race-neutral measures such as helping to finance small businesses-which may include many minority businesses. VA. Peña (1995) (CB: 1109-13). or 3) individual instances of discrimination supported by statistical proof. and reflects the “unrealistic” assumption that minorities will choose a given profession in lockstep proportion with their representation. PRECEDING CROSON: EVOLVING AA ANALYSIS Metro Broadcasting v. satisfy the requirement of individualized consideration.1) direct evidence that nonminority contractors had systematically excluded minority contractors. Individual instances standing alone support individual remedies rather than an affirmative action plan.” Finally. but disapproved of the specificity of the number of seats reserved. and is overruled below). that observation alone does not justify a rigid racial quota in the awarding of public contracts in Richmond. Adarand Constructors v. which is a “significant departure” from jurisprudence.” This distinction does not endure (in part because Court has mid-scrutiny standard here. Justice Powell concurrence says “a diverse student body” is a compelling governmental interest.] “Race conscious classifications adopted by congress to address racial and ethnic discrimination are subject to a different standard than such classifications prescribed by state and local governments. the city fails to point to discrimination in the Richmond construction industry. any plan should be a temporary measure tailored in duration and scope to the injury described by the findings. Suggests different standards between federal and state action. 2) significant statistical differences between the number of qualified minority contractors available and interested in performing a particular service and the number actually doing work. Holistic approach is constitutional.. Tailoring to local conditions.. When using a race as a plus factor…. U Mich Law School case. preferring race be used as a plus factor. no distinction between federal action and state action.  Tailoring problem as well: 30% quota not based on anything other than race balancing.  Based on the lack of evidence of local discrimination. to the contrary. Bakke (1978) (CB: 1071-77). “benign race conscious measures mandated by Congress… are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to the achievement of those objectives. by itself.

that action is reviewed under strict scrutiny. Seattle School District No. Feeney (1979) (CB: 1262-69)  Geduldig v. (1994) (CB: 1226-28)  United States v. Bureau of Indian Affairs adopts policy that “qualified Indians shall have preference to appointments to vacancies. a points system based on racial makeup is not constitutional. Hogan (1982) (CB: 1250-52)  Personnel Administrator of Mass. nor were they subject to court ordered desegregation decrees. Different treatment of Indians murdering non-Indians (by bumping up to federal court for trial) argued to be racially-based disadvantage. the school districts must demonstrate that the use of individual classifications in the assignment plans here under review is ‘narrowly tailored’ to achieve a ‘compelling’ state interest.” AMERICAN INDIANS & RACIAL CLASSIFICATIONS (OR NON-CLASSIFICATIONS) United States v. pure and simple.  Assignment based on race is not weighing race among other factors. Antelope (1977).E. 1 (2006) (Supp: 267-308). INS (2001) (CB: 1296-1301) . Richardson (1973) (CB: 1188-93)  Craig v. based on “purpose to give Indians a greater participation in their own self-government” and further trust Government trust with Indian tribes. Superior Court (1981) (CB: 1283-92)  Tuan Anh Nguyen v. University of Texas at Austin (5th Cir. Aiello (1974) (CB: 1276-78)  Michael M. but as members of quasi-sovereign tribal entities whose lives and activities are governed by BIA in a unique fashion.  “Plans are directed only to racial balance. Feenstra (1981) (CB: 1216)  Orr.B. v. v. not race.] AMERICAN INDIANS & AFFIRMATIVE ACTION Morton v. Alabama ex rel.”  Remedy argument: Seattle School Districts fail to show past legal segregation.B. T.” So. In conjunction with above. but rather a status in quasi-sovereign tribe justified Federal treatment. Westcott (1979) (CB: 1215-16)  Kirchberg v. Mancari (1974). Wiesenfeld (1975) (CB: 1215)  Califano v. B) Gender & Intermediate Scrutiny  Frontiero v. Orr (1979) (CB: 1216)  J.” Fisher v. 2011) (handout). Scheme not constitutional because race is only rationale for school placement. as applied… granted to Indians not as a discrete racial group. it is using race as sole factor. Bollinger (2003) (CB: 1142-47).” Court upholds preference.Gratz v. [Omit. Boren (1976) (CB: 1214-15)  Weinberger v. EXTENT OF REMEDIAL MEASURES: RACE & PUBLIC SCHOOL ENROLLMENT Parents Involved in Community Schools v. Court calls this a “preference. v.  “When the government distributes burdens or benefits on the basis of individual racial classifications. Court disagrees: “[Defendants] were not subjected to federal criminal jurisdiction because of the Indian race but because they are members of the [Indian] tribe. In order to satisfy this searching standard of review. v. Virginia (1996) (CB: 1229-46)  Mississippi University for Women v. an objective this Court has condemned as illegitimate.

“Only justification [for law] is archaic and overbroad generalizations. v. state run military academy.E. T. “Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing the stereotypes about the ‘proper place’ of women and their need for special protection…. Female service members had to prove husband depends on her for over one-half his support. Court invalidate it. VA Military Institute. SCOTUS finds it an unsatisfactory accommodation. Court rules that the state’s evidence of sex differences in drunk driving rates does not justify a sexbased regulatory scheme. Plurality of Court says this is an inherently suspect classification. male member may describe wife as dependent without regard to whether or not she is dependent upon him for support.” Califano v. Court invalidates AL statute requiring husbands. Virginia (1996) (CB: 1229-46). the unilateral right to dispose of property jointly owned by husband and wife without her consent. Alabama ex rel. Richardson (1973) (CB: 1188-93). Goldfarb (1979) (CB: 1215). State’s use of preemptory challenges based on gender is unconstitutional.B. “State offers virtually no support for the conclusion that gender alone is an accurate predictor of juror’s attitudes. Wiesenfeld (1975) (CB: 1215). SETTLING ON INTERMEDIATE SCRUTINY Craig v. v. This standard will be modified. Orr. yet it urges this court to condone the same stereotypes that justified the wholesale exclusion of women from juries and the ballot box. Court invalidates LA statute granting husband. Social Security policy grants benefits to unemployed fathers but not unemployed mothers. For servicemen with dependents. Near Beer case.B. Westcott (1979). . Boren (1976) (CB: 1214-15). the state cannot be permitted to classify on the basis of sex. to pay alimony upon divorce.” Califano v. “Archaic and overbroad. Social Security provision entitles widow to survivor benefits based on her deceased husband’s dependency. but only a widower who received at least half of his support from his deceased wife is entitled to benefits. Notes on Women in the Military (CB: 1311-23) EARLY TREATMENT OF DISCRIMINATION BETWEEN THE SEXES Frontiero v. does not enroll women. reasoning it is “part of the baggage of sexual stereotypes that presumes the father has the primary responsibility to provide a home and its essentials. as “head and master” of the family. but not wives. Orr (1979) (CB: 1216). jury is all female in paternity suit.” STRIKING DOWN SEX-BASED LAWS PREMISED ON MALE BREADWINNER MODEL Weinberger v.” Kirchberg v. and thereby finds scheme invalid under strict scrutiny. Court warns against “increasingly outdate misconceptions concerning the role of females in the home. When brought to court in 1990. OK law allows girls aged 18-21 to buy “near bear” but not boys. Feenstra (1981) (CB: 1216). Court strikes down Social Security Act provision providing benefits to widows—but not widowers—with minor children.” and rejects such laws as “loose-fitting characterizations incapable of supporting state statutory schemes premised on their accuracy. Where … the State’s compensatory and ameliorative purposes are as well served by a genderneutral classification as one that gender classifies and therefore carries the baggage of sexual stereotypes.” GENDER IN EDUCATIONAL SETTINGS (RACE-GENDER ANALOGY IN SCHOOLS) United States v. As a result of preemptory challenges.” SEX BASE PREEMPTORY STRIKES (RACE-GENDER ANALOGY & INTERMEDIATE SCRUTINY) J. (1994) (CB: 1226-28). VMI creates VWIL.

there is no risk from which women are protected and men are not. It implies that the decision-maker… selected or reaffirmed a particular course of action at least in part “because of.  No evidence of “discrimination against any definable group or class… There is no risk from which men are protected and women are not. and unconstitutional purpose may still be at work. Hogan (1982) (CB: 1250-52). Superior Court (1981) (CB: 1283-92). U. NOT GENDER-BASED STATUS Geduldig v. But those cases signaled no departure from the settled rule that the Fourteenth Amendment guarantees equal laws. v. Uses “exceedingly persuasive” standard [drawn from Miss.  Also: justification must be “genuine. Aiello (1974) (CB: 1276-78). School makes bad argument. but really this is just an “important” interest test.” its adverse effects upon an identifiable group. o Rational interest permits acceptance of state’s interest in “maintaining self-supporting nature of its insurance program” and keeping program/ coverage adequately funded. “CA merely removes one physical condition—pregnancy—from the list of compensable disabilities. Women applicants for civil service jobs alleged that the statute favored men because they historically had served in the military in far greater numbers than women.” (Same-sex designation is historical. for Women v. Court upheld the Massachusetts Veterans Preference Statute requiring that all veterans who qualified for state civil service positions had to be considered for appointment ahead of qualifying non-veterans.”  “Discriminatory purpose implies more than intent as volition or intent as awareness of consequences. Likewise. Feeney (1979) (CB: 1262-69). not born out of desire to make novel offering of allmale environment. Pregnant versus non-pregnant ≠ not gender discrimination.  Davis & Arlington Heights “recognize that when a neutral law has a disparate impact upon a group that has historically be a victim of discrimination.” not merely “in spite of. not hypothesized or invented post hoc in response to litigation.”  Court applies rational basis only. How Ginsburg bears out analysis:  State must show that the classification (1) serves important governmental objectives and (2) that the discriminatory means employed are substantially related to the achievement of those objectives.” NORMAL PREGNANCY AS PHYSICAL CONDITION.” Mississippi University for Women v. Hogan] for government interest. v. “MUW’s policy of excluding males from admission… tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job.” DISPROPORTIONATE IMPACT ≠ DISCRIMINATORY PURPOSE Personnel Administrator of Mass. not equal results. Important biological differences make that a valid governmental interest. CA excludes disabilities incident to normal pregnancy from disability insurance. .”  State makes no showing that gender-based classification is “substantially and directly related to its proposed compensatory objective [compensates for discrimination against women in nursing profession(?!)]. Balancing risk of pregnancy by strict liability for male offender to statutory rape law is okay.” GENDER CLASSIFICATIONS UPHELD—IN CRIMINAL STATUTORY RAPE CONTEXT Michael M.)  “Burden” of accommodating women does not meet standard of “exceedingly persuasive justification” to be the basis of gender-defined classification.  No evidence proffered by VMI that male-only admissions is in furtherance of state policy of “diversity. Court upholds scheme.

Hardwick (1986). Therefore. "In our tradition the state is not omnipresent in the home… Liberty presumes an autonomy of self that includes freedom of thought. there is the implied validity of a statute that prohibits conduct both between same sex and different-sex partners. LAWENCE & EQUAL PROTECTION Lawrence v Texas (2003). C) Sexual Orientation & Rational Relations Test  Bowers v.  “We decline to hold that the EP Clause requires a legislature to enact a statute so broad that it may well be incapable of enforcement. infra.” Statute “reasonably reflects the fact that the consequences for sexual intercourse and pregnancy fall more heavily on the female than the male." but rather "about he most comprehensive of rights and the right most valued by civilized men. in concurrence. Texas (2003) (CB: 1482-99)  Romer v. Court does decide this case on EP . and certain intimate conduct. all but 5 of the 37 states had criminal sodomy laws. CO voters adopt Amendment 2 by statewide referendum. and means chosen are substantially related to that end.Also: including female liability by making law gender-neutral would deter reporting and enforcement of law. GA sodomy ("sexual act involving sex organs of one and mouth or anus of another") statute challenged on privacy basis. because of past disadvantages or stereotyping. Ginsburg. no support that the right to engage in such conduct is "deeply rooted in… tradition."  Notes text of statute is not limited to prohibiting homosexual behavior. RATIONAL REVIEW & ANIMUS TOWARD TARGETED GROUP Romer v. Blackmun.g. Texas sodomy ("deviant sexual intercourse") law. infra.” Woman shows parentage more easily than father does."  But if Court ruled on EP grounds (like in Romer). “Biological inevitability. belief. should not be treated as an "as applied" challenge. White:  Sodomy was criminal offense at common law. express. and takes issue with Court's focus on that.” Also: no basis for finding that men. Evans (1996) (CB: 1505-12) Bowers v. Different standards for male/ female claims of child’s citizenship when born out of wedlock abroad.  Note: heart of analysis lodged in Due Process and privacy justification. Important governmental interest. Evans (1996) p 1505-12.. expands on how EP could invalidate statute. Court does not bite. INS (2001) (CB: 1296-1301). namely the right to be let alone."  Court does not rely on Equal Protection analysis: "GA statute probated the conduct whether or not the participants were of the same sex.  "The right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution's protection of privacy. Hardwick (1986) (CB: 1466-75)  Lawrence v. E. which forbids protected status with respect to discrimination claims for homosexuals. while the TX statute… applies only to participants of the same sex."  Overturned in Lawrence.” DIFFERENT STANDARDS FOR CLAIMS OF CHILD’S CITIZENSHIP Tuan Anh Nguyen v. are being singled out or that the state is acting with eye toward “baggage of sexual stereotypes. dissenting: Not about "fundamental right to engage in homosexual sodomy. and when 14th Amendment was ratified.

Court holds that Equal Protection Clause makes provision of referendum invalid. Richardson (1971) (CB: 1175-76) Fundamental Right Exercise/ Residency  Edwards v. Cleburne Living Center (1985) (CB: 1327-35) Alienage  Graham v. Thompson (1969) (CB: 1674-80)  Dunn v. Fainter (1984) (CB: 1163-69)  Matthews v. Maricopa County (1974) (CB: 1680-81)  Sosna v. Iowa (1975) (CB: 1681)  Starns v. Roe (1999) (CB: 1684-87) Children & Education  San Antonio Independent School District v. Imposes broad and undifferentiated disability on a single named grow. Williams (1982) (CB: 1682-83) Travel  Saenz v. but a "modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores." Scalia dissent.  Referendum imposes "a special disability upon homosexuals alone. Richardson (1971) (CB: 1160-63)  Bernal v.grounds. and so lacks a rational relationship to legitimate state interests. Doe (1982) (CB: 1641-47) DISABILITY . "Since the Constitution says nothing [about the debate about opposition to homosexuality]. Mow Sun Wong (1976) (CB: 1172-73)  Note on congressional authorization & Graham v." a." D) Other Classifications Disability  City of Cleburne v. "Too narrow and too broad."  “Mere  Amendment defies the conventional inquiry into whether a law burdens a fundamental right or suspect class. Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms for all who seek its assistance… A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection in the most literal sense. an exceptional and… invalid form of legislation. Maklerson (1971) (CB: 1681-82)  Zobel v."  Casts amendment not as a burden on homosexuals. Diaz (1976) & Hampton v. Blumstein (1972) (CB: 1680)  Memorial Hospital v. "Central to the…. Rodriguez (1973) (CB: 1624-41)  Plyler v. This Court has no business imposing upon all Americans the resolution favored by the elite class… pronouncing that "animosity" toward homosexuality is evil. it is left to be resolved by normal democratic means. including the democratic adoption of provision in state constitutions. b. Sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable to anything but animus toward the class that it affects. California (1941) (CB: 1673)  Shapiro v.

" Palmore: "The law cannot. since state requirements denying welfare benefits to aliens "equate with the assertion of a right. the court throws in a federalism argument. since such efforts may appear either to benefit or disadvantage the group." Shapiro. Compare to Romer and “irrational prejudice” as basis for law. ALIENAGE REGULATION BY STATE GOVERNMENT Graham v. are inherently suspect and receive heightened (strict) scrutiny.City of Cleburne v. give [private biases] effect. No heightened classification standard.  Classifications based on alienage (or national origin). a concern for fiscal integrity is not a compelling justification for the classification in these cases. Since such laws encroach upon exclusive federal power. SCOTUS carves out narrow exception to alienage strict scrutiny: . inconsistent with federal policy. 1. Cleburne Living Center (1985). Legislative response negates claim that group is politically powerless." POLITICAL FUNCTION EXCEPTIONS TO ALIENAGE STRICT SCRUTINY Bernal v. No restriction on number of residents in other multi-person homes. Requiring heightened scrutiny may deter government action to help the class. Since an alien is a “person” for Fourteenth Amendment Equal Protection Clause purposes. Fainter (1984).  For added measure. d. upon having resided in the country for a specified number of years. Large and diversified group is not easily addressed uniformly by courts: judicial oversight should give way to legislators informed by professionals. infra. 2.  Fourteenth Amendment application to "persons" encompasses lawfully admitted resident aliens as well as citizens.  The "saving of welfare costs cannot justify an otherwise invidious classification. simply because court adopts rational scrutiny: May the city require the permit for this facility when other care and multiple dwelling facilities are freely permuted? a.  States argue that there is a "special public interest" in favoring its own state citizens for distributions of a limited public benefit. undifferentiated" because thirty mentally retarded students attend the junior high school." b. directly or indirectly. not "the perhaps ill-informed judiciary. To classify as quasi-suspect would make it difficult to distinguish other groups with "immutable disabilities. to deny entrance and abode. Court holds that State statute that denies welfare benefits to resident aliens and one that denies them to aliens who have not resided in the US for a given number of years violate the Equal Protection Clause. State scheme conditions welfare benefits either (a) upon recipient's possession of US citizenship or (b) if an alien. they are constitutionally impermissible. SCOTUS rejects finding suspect classification." c. However. and is denied application to be notary public because he is not a citizen of the US. a. but City zoning ordinance invalidated. Note: Marshall’s Dissent/ Concurrence concludes that this should be heightened scrutiny (based on history of mistreatment/ easily discernable of group)." b. but also gives them what might be described as heightened rational scrutiny. Rejection of quasi-suspect classification of Fifth Circuit. c. Bernal works as paralegal for TX law firm. City's concern that junior high schoolers would tease residents is "vague. Richardson (1971). and the legislators need flexibility in "shaping and limiting their remedial efforts. Equal Protection issue: not put to rest. City's fear of negative attitudes of neighbors: "not permissible bases for treating a home for mentally retarded differently from apartment houses. and city does not justify why it would be an issue for CLC.

Court holds that statutes violate constitution."  "We deal with a rule which deprives a discrete class of persons of an interest in liberty on a wholesale basis. available only to aliens who had both been admitted as permanent residents and had been continuously resident in the US for five years. hardly implicate responsibilities that go to the heart of representative government. REGULATION OF ALIENS BY FEDERAL GOVERNMENT Matthews v. "The purpose of inhibiting migration by needy . SCOTUS invalidates law." INTERSTATE MOBILITY & PENALIZING EXERCISE OF A FUNDAMENTAL RIGHT <Strict Scrutiny> Edwards v." No policymaking responsibility or broad political function. No factual underpinning to state's claims." If state government position meets political function test. 2. because "a notary's duties. he is not a moral pestilence. No State test for notary's familiarity with law. Therefore: strict scrutiny analysis applies.  Ambach v. because they exercise discretionary power involving governmental obligation. Exception supported on self-government. THE RIGHT TO RELOCATE & STATE BENEFITS Shapiro v. Thompson (1969) p 1674. Diaz (1976). execution. By reason of the Fifth Amendment. State statutory provisions deny welfare assistance to residents who have not resided within their jurisdiction for at least one year immediately preceding their application for assistance. Fails strict scrutiny analysis." SCOTUS does not reach decision re: TX statute's achievement of necessary tailoring (prong 1). If sufficiently tailored. (Fulfillment of basic governmental obligation)  Cabell v. Mow Sun Wong (1976) Hampton court invalidated US Civil Service Commission regulation barring resident aliens from competing for positions in federal civil service. or review of broad public policy and hence perform functions that go to the heart of representative government. "Congress has no constitutional duty to provide all aliens the welfare benefits provided to citizens. "defining the scope of the community of the governed and thus the governors as well. relying on commerce clause to say [in effect] just because a person is without employment."political function" exception that applies to law that exclude aliens from positions intimately related to the process of democratic self-governance. Two part Cabell test for Political Function Exception To Alienage Strict Scrutiny for States : 1. then Rational Review. No compelling state interest in denying aliens positions as notaries. Chavez-Salido: State may bar aliens from positions as probation officers. 1.  Foley v. CA (1941) p 1673: CA law forbids bringing indigents into the state. Examine specificity of the classification: over or under inclusive classification undercuts government claim that classification serves legitimate political ends. such deprivation must be accompanied by due process. Norwick: State may bar aliens [who do not declare intent to become citizens] from teaching in public schools. Court upheld congressional limitation on aliens participating in Medicare program. so no claim that aliens cannot be reasonably familiar with state law. 2. Due Process grounds: SCOTUS rejects that "federal power over aliens is so plenary that any agent of the National Government may arbitrarily subject all resident alienist to different substantive rules from those applied to citizens. self-determination grounds. must apply to governmental officials "who participate directly in the formulation. Hampton v. important as they are. Connelie: State may require police to be citizens because police are clothed with authorities to exercise an almost infinite variety of discretionary powers. 3." Only a question of reasonableness — but really? Just a difference in federal or state government exercising legitimate power.

"Durational residence laws impermissibly condition and penalize the right to travel by imposing prohibitions on persons who have recently exercised that right. “Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident’s exercise of the right to move into another State and become a resident of that state.” . State law requires resident to live in state for one year before bringing a divorce action against a nonresident.persons into the State is constitutionally impermissible. or denies them police and fire protection."  Purpose of deterring relocation of indigents is an impermissible classification?  Compares welfare policy to a statute that bars new residents from access to schools." RIGHT TO TRAVEL: PRIVILEGES & IMMUNITIES (NOT EQUAL PROTECTION) Saenz v. AK statute distributes oil income directly to AK citizens on basis on length of residence. TN one year residence requirement for voting in state elections. Williams (1982) p 1682. (2) "Rewarding citizens for past contributions was not a legitimate state purpose. violates Equal Protection Clause.) FAILING RATIONAL REVIEW: STUPID ECONOMIC SCHEMES TIED TO DURATION OF RESIDENCY Zobel v. "With consequences of such moment (arising from divorce) riding on a divorce decree issued by its courts. Newly arrived citizens has right to same privileges and immunities of other citizens of same state. under strict scrutiny. beginning in 1959. unable to pass even minimal rationality. “By virtue of a person’s state citizenship. despite argument that stat had interest in (1) protecting against double registration and fraud and (2) assuring polity was knowledgeable about state and local affairs. libraries. TN may not burden the right to travel in this way. "any classification which serves to penalize the exercise of that right." EXCEPTION: DIVORCE PROCEEDINGS Sonsa v." Memorial Hospital v. AZ statute requiring one year residence in a county for indigent's receiving nonemergency medical care at county's expense. SCOTUS applies strict scrutiny. Blumstein (1972) p 1680. is unconstitutional. Iowa may insist that one seeking to initiate such a proceeding have the modicum of attachment to the state required here. SCOTUS declares scheme unconstitutional: violation of Equal Protection. (1) Program did not create financial incentives for people to establish and maintain residence in AK because it applied to people who were already residents. EXCEPTION: UNIVERSITY TUITION Starns v. unless shown to be necessary to promote a compelling governmental interest. Struck down under Equal Protection Clause."  Waiting period. Dunn v. Iowa (1975) p 1681. intending to return home at the end of his journey. saying law "penalized" right interstate mobility. parks."  Note: Court refused to apply “compelling interest” test here. Maricopa County (1974) p 1680. "Dividend unites" were paid out at rate of one unit per year of residence.  If moving between states is constitutional right. is entitled to the Privileges and Immunities of Citizens in the several states he visits. (No opinion. a citizen of one state who travels in other states.” Right to relocate."  "Constitutional right to travel from one State to another occupies a position fundamental to the concept of our Federal Union. "Medical care is as much a basic necessity of life to an indigent as welfare assistance. Absent a compelling state interest. Roe (1999) p 1684. Macklerson (1971) p 1681.

Bolton (1973) (CB: 1388-1400)  Notes on decisions after Roe (CB: 1419-24)  Planned Parenthood v. Missouri Department of Health (1990) (CB: 1569-77)  Washington v.”  Not issue of poor children being deprived public education. Simmons (2005)  Village of Belle Terre v. Illinois (1956) (CB: 1607)  Harper v. Granville (2000) (CB: 1386) Abortion  Roe v. Carhart (2000) (CB: 1457-65)  Gonzales v. Virginia (2002) (CB: 1365-66)  Roper v. Society of Sisters (1925) (CB: 1340-41)  Skinner v.”  “In determining the rationality of the policy. (1989)  Troxel v. Director. Quill (1997) (CB: 1586-89)_____  Lyng v.” XV. and “Only where state action impinges on the exercise of fundamental constitutional rights or liberties must it be found to have chosen the least restrictive alternatives. we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. Baird (1972) (CB: 1353-54)  Carey v. v. Court is concerned about an underclass of uneducated persons. Oklahoma (1942) (CB: 1341-42)  Griswold v. Implied Rights  Meyer v. Casey (1992) (CB: 1424-55)_____  Stenberg v. Connecticut (1965) (CB: 1342-53)  Eisenstadt v. Carhart (2007) (Supp: 319-37)____  South Dakota’s Informed Consent Statute (2005) (Supp: 340-41) Other Implied Rights  Lawrence v. but children are given special consideration—also. Wealth is not a suspect classification. Plyler v.  Interdistrict disparities are not so irrational as to be invidiously discriminatory. Texas (2003) (CB: 1482-99)  Cruzan v. International Union (1988) (CB: 1596-1601)  Griffin v. Redhail (1978) (CB: 1354-55)  Atkins v.  Although children of illegal immigrants are not a suspect class. Glucksberg (1997) (CB: 1579-86)  Vacco v. TX law fails rational relation test because state failed to show that policy furthered a “substantial state interest. Nebraska (1923) (CB: 1340)  Pierce v. Doe (1982) (CB: 1641-47). not sure applicable in other contexts. Rodriguez (1973) (CB: 1624-41). Unlawful alienage ≠ strict scrutiny. City of East Cleveland (1977)  Michael H. Population Services International (1977) (CB: 1354)  Zablocki v. Wade (1973) & Doe v. Virginia Board of Elections (1966) (CB: 1609-12) . Gerald D. and education is not a fundamental right. Tailor made standard.CHILDREN & EDUCATION San Antonio Independent School District v. simply issue of poor children receiving poorer education than children in districts with more accessible wealth. Boraas (1974)  Moore v.

Winnebago County (1989) (CB: 1653-56)  Castle Rock v. but not grand larceny.”  Going forward. Boddie v. Williams (1970) (CB: 1616-20)  Lindsey v. married or single. Instructor convicted of violating state law prohibiting the teaching of a foreign language to a child not yet in eighth grade.”  “Strict scrutiny of the classifications which a state makes in a sterilization law is essential. Court invalidates force sterilization of criminal offenders convicted of three felonies involving “moral turpitude. Court will rely on “liberty” without Due Process of Law of Fourteenth.”  Griswold. Kras (1973) (CB: 1621-23)___  Deshaney v.”  Unequal laws triggering sterilization: embezzlement exempted. Baird (1972) (CB: 1353-54).” . Application of Griswold on Equal Protection grounds: rational basis test for distinction between married and unmarried couples did not rationally further a legitimate state interest. or otherwise. it is the right of the individual. unlike other implied rights cases.” Court notes that sterilization “involves one of the basic civil rights of man. Court strikes down law as “an incursion the right to teach and the right of parents to engage him so to instruct their children.  “Specific guarantees in the Bill of Rights have penumbras. btu an association of two individuals each with a separate intellectual and emotional makeup.”  Law “unreasonably infringes the liberty guaranteed by 14 th Amendment.  “The marital couple is not an independent entity with a mind and heart of its own. Various guarantees create zones of privacy.”  “The child is not a mere creature of the state. Nebraska (1923) (CB: 1340). If the right to privacy means anything. Eisenstadt v.” Pierce v. Normet (1972) (CB: 1620)  United States v. formed by emanations from those guarantees that give them life and substance. Griswold distributes birth control to married couples in violation of CT statute.  Law “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. Court strikes down statute. Connecticut (1971) (CB: 1615-16)  Dandridge v. Connecticut (1965) (CB: 1342-53). Oklahoma (1942) (CB: 1341-42). invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.”  “Rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. to be free from unwarranted government intrusion into matters so fundamentally affecting a person as to the decision whether to bear or beget a child. pulls together several Amendments to find “zone of privacy created by several fundamental constitutional guarantees. lest unwittingly.” Skinner v. Society of Sisters (1925) (CB: 1340-41). Gonzales (2005) (CB: 1658-63) DISCOVERING IMPLIED FUNDAMENTAL RIGHTS Meyer v. PRIVACY RIGHTS AND MODERN ERA SUBSTANTIVE RIGHTS MARRIAGE AND CONTRACEPTION Griswold v. Oregon statute requires children to attend public schools. Goldberg concurrence— explores Ninth Amendment meaning.

”  “The Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history”… and government cannot lightly regulate what shape that family can take. Instead the Washington statute .  EP Clause under “critical examination”: (1) State’s interest in counseling such persons is insufficient interest. Biological father to child raised by Carole and Gerald wants visitation rights and other rights to child. “Objective indicia of consensus in this case—rejection of juvenile death penalty in majority of states. Executing convicts who were under the age of 18 at the time the crime was committed violates Eighth Amendment. infrequency of its use even where it remains on the books. Law “involves no fundamental or privacy rights. Population Services International (1977) (CB: 1354). Six unrelated college students challenge local ordinance restricting land use to one-family dwellings. public charges.” Moore v. where family is defined in terms of a “nuclear” family. Court holds equal protection requirement of “critical examination of the state interests advanced” in support of classification on exercise of right to marry. so no rational basis. with family defined as to exclude two or more unrelated people living together. and the consistency in the trend toward abolition of the practice—provide sufficient evidence” to ban. “Practice has become truly unusual. this Court must examine carefully the importance of the governmental interests advance and the extent to which they are served by the challenged regulation.” Also takes into account the international consensus against punishment. Underlying idea: occasional deference to human decency. Plurality of Court invalidates ordinance limiting occupancy of a dwelling to members of a single family. Court strikes down WI law conditioning marriage by resident obligated to support a minor not in his custody upon a showing that support had been provided and that any covered children were not. state “violates the mother’s fundamental constitutional right to make decisions concerning the rearing of her own daughters because a parent’s decision that visitation would not be in the child’s interest is accorded no deference…. Simmons (2005). nor were likely to become. since statute does not require counseling nor does it automatically allow marriage after counseling takes place. Appellant is grandmother and two grandsons who were cousins rather than siblings. City of East Cleveland (1977). Executing mentally retarded criminals violates Eighth Amendment. Kennedy also relies on international consensus. Gerald D. not just American constitutional rights.Carey v. Trial court compels visitation rights for paternal grandparents over mother’s protests. (2) Alternative means of enforcing child support payments would be more efficient and effective. Boraas (1974). Redhail (1978) (CB: 1354-55).” Zablocki v. (1989). Applied to facts of case. v. Granville (2000) (CB: 1386).  Griswold read to mean “the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State. FUNDAMENTAL PATERNITY RIGHTS? Michael H. and it is fair to say that national consensus has developed against it. Troxel v.  "When government intrudes on choices concerning family living arrangement. Virginia (2002) (CB: 1365-66). NY law prohibits sale of contraception to minors under 16 years old. Court sustains ordinance. Atkins v. Roper v. Washington statute allows any person to petition state court of visitation rights to child based on “best interests” of child. FAMILY & LIVING ARRANGEMENTS Village of Belle Terre v. Court strikes down law. Court denies claim.

" Doctrine of stare decisis— maintain central premise of Roe 2. with judicial bypass as substitute for parental consent. Testing Roe's premises to see if overruling it is necessary:  Reliance on existence and availability of procedure  No curtails to personal liberty protection articulated in constitutional jurisprudence since Roe was ruled on  Divergences or discoveries in medical knowledge have not compromised factual premises in Roe  Roe has not be weakened (C ) Discusses importance of Court's legitimacy… "There is a limit to the amount of error that can plausibly be imputed to prior courts. But this discards Roe's trimester approach. Casey (1992) (CB: 1424-55). Bolton (1973) (CB: 1388-1400). Three parts to decision in Roe: 1.  Before viability. Viability is a justified and fair point at which to draw the line. 3. Roe states principle that State as legitimate interest from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. Also requires a married woman to notify husband of intent to have an abortion. also requires a minor to have informed consent of one of her parents. Roe recognizes the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state. In our view." — Court cannot look as though it surrenders to political pressure. Wade (1973) & Doe v. even in medical emergencies."  "Not all burdens on the right to decide whether to terminate a pregnancy will be undue. 3. Where to draw line at which state can become involved: "Line should be drawn at viability. ABORTION & THE UNDUE BURDEN TEST Planned Parenthood v. Roe confirms the State's power to restrict abortions after fetal viability. 1. Provisions of PA Abortion Control Act are amended in 1988 and 1989.” ABORTION CASES Roe v. State's interest are not strong enough to support total bans or impose substantial obstacles to a woman's right to the procedure." Context of Loving v VA for SCOTUS finding "an aspect of liberty protected against state interference by the substantive components of the Due Process Clause." What is undue burden?: "A state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. if the state law contains exceptions for pregnancies which endanger a woman's life or health. As for state involvement: UNDUE BURDEN TEST: "Only where state regulation imposes an undue burden on the woman's ability to make this decision does the power of the State reach into the heart of liberty protected by the Due Process Clause. Roe outlines rigid trimester scheme that is eventually finessed." Applied to PA Laws: . Compliance with requirements mandatory.places the best interest determination solely in the hands of the judge. so that's gone. 2. the undue burden standard is the appropriate means of reconciling the State's interest and the woman's constitutionally protected liberty. Act requires a woman seeking an abortion to give her informed consent before the procedure and be provided with information at least 24 hours before procedure. Onto Planned Parenthood: On carving out privacy/ liberty right: "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.

Medical emergency definition is not too narrow and imposes no undue burden on a woman's right.”  Casey allowed regulation on postviability if based on state’s interest in preserving human life. outright ban of single procedure did not further that interest. State has interest in enforcing process it has created for purpose of preserving life and avoiding grave error. Glucksberg (1997) (CB: 1579-86). PA Law on spousal notice:  Likely to prevent women rom obtaining an abortion. Missouri Department of Health (1990) (CB: 1569-77). or others.] OTHER IMPLIED RIGHTS Lawrence v. but not an undue burden  State is permitted to enact measures which favor childbirth over abortion." PA Law on minor's parental consent requirement or judicial override: constitutional. Carhart (2007) (Supp: 319-37). 2. Court strikes down partial birth abortion law in Nebraska that only allowed procedure if “necessary to save the life of the mother.” Washington v. State requires clear and convincing evidence of patient’s wishes.1. [Omit. the requirement may be permissible. Informed consent (woman may no have abortion until she signs acknowledgment that she received state information)  If the information the state provides is truthful and not misleading. No fundamental right to suicide or assistance in committing . even if measures do not further health interest. South Dakota’s Informed Consent Statute (2005) (Supp: 340-41). 3.  We assume the Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition. Information about child development  Troubling.  “Necessity” cannot mean absolute necessity. Informed consent and right to refuse treatment are fundamental rights. No unanimity in medical consensus over safety or most necessary procedure. SO MUCH FOR THAT Gonzales v. due to domestic abuse and spousal assault findings  "The husband's interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. 4. supra. But an incompetent person is not able to make any informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right. so extreme limitation is undue burden. See case. But these "informed consent" measures are not undue burdens. Carhart (2000) (CB: 1457-65). Stenberg v. husbands. 24 hour waiting period causes concern:  Often becomes more than 24 hours. Director.”  “State’s interest in regulating abortion previability is considerably weaker than postviability. since scarcity of clinics results in women traveling far to receive abortion & statute forces two meetings  Women must encounter protesters more frequently  "Particularly burdensome" for women of limited resources who have to explain their whereabouts to employers. Cruzan v. Texas (2003) (CB: 1482-99).

Congress determined that it would save $165M over three years with the restriction.  Due process and equal protection both call for procedures in criminal trials which allow no invidious discrimination between persons and different groups of persons.  Business may get federal support through SBA. Illinois (1956). “When a patient refuses life-sustaining medical treatment. Quill (1997) (CB: 1586-89). and that households already receiving food stamps would not get an increased allotment if on strike. "Neutrality" is an inaccurate view of federal government's relationship to parties in a dispute. Negatively affects indigent defendants: SCOTUS through a plurality deems the practice impermissible.”  Intent matters. "The statue is rationally related to maintaining neutrality in private labor disputes.  "Destitute defendants must be afforded as adequate appellate review a D who have enough money to buy transcripts. he dies from an underlying fatal disease or pathology. Virginia Board of Elections (1966) (CB: 1609-12). Discussion: Rational relationship/ legitimate government interest test. So this is a "penalty on workers. Limited funds available were to be used where need is likely to be greatest— excludes strikers 3. Even on the most superficial level. Cuts federal spending 2. and those who do not pay are disenfranchised. a “State violates the Equal Protection Clause of the 14th Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. or get benefits from Job Tax Credit Act. Court holds. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax. Vacco v. etc." So that alone is legitimate interest. he is killed by medication.50 assessed to all persons over 21.suicide." THE RIGHTS OF INDIGENTS Griffin v.  A state that does grant appellate review [is not permitted to] do so in a way that discriminates against some convicted Ds on account of their poverty. Harper concerned poll taxes in state elections. not neutrality. Implies that "strike is labor's fault. 24th Amendment invalidated poll taxes for federal elections." which is unjustified because strikes are often direct responses to illegal practices by management."  Question: is this an issue of scrutiny for deprivation of ability of person to exercise fundamental . state requires defendant to pay for transcripts furnished on appeal. we don't look at the rest. but if a patient ingests lethal medication prescribed by a physician. In 1981. In criminal trials. Congress amends Food Stamp Act to deny a household becoming eligible for food stamp eligibility if a member of the household is on strike. or be protected under Bankruptcy Act. International Union (1988) (CB: 1596-1601) Federal food stamp program is $12B program that provides income supplement for poor as well as subsidy for farmers producing food. the striker amendment does not treat the parties to a labor dispute evenhandedly": managers who are unemployed when business shuts down due to strike may remain eligible for food stamps." PROTECTING "FUNDAMENTAL" INTERESTS UNDER THE EQUAL PROTECTION CLAUSE Harper v. SCOTUS reviews third argument. Govt argument: 1. Court below declared amendment unconstitutional on First Amendment and equal protection grounds. IMPLIED RIGHTS & THE WELFARE STATE Lyng v. Dissent: "Neutrality argument is both deceptive and deeply flawed. Concern that food stamp program provides one sided support for labor strikes. VA poll tax of $1.

not affecting freedoms guaranteed by the Bill of Rights. but DSS never takes action to assume custody or remove Joshua from Randy’s custody." Boddie v. Connecticut (1971) (CB: 1615-16). In March 1984." Basically: voting rights are "too fundamental" and the tax or payment of a fee is "capricious.right? "Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights. state allowed weekly payments over six months.  “We deal with state regulation in the social an economic field.28. "The state's refusal to admit [indigent] applicants to its court.  "The Constitution does not provide judicial remedies for every social and economic ill. Due process (rather than equal protection): "only the state can grant a divorce. "Equal protection clause does not require that a state does not require that a state must choose between attacking every aspect of a problem or not attacking a problem at all. In 1982.  "In contrast with divorce. but at least.”  "By keying the maximum a family will receive." FILING FEE FOR CIVIL CASES United States v. a denial of due process. 1979. this is not a fundamental right. Lindsey v." "To introduce wealth or payment as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor.  Note. Mother brought suit . any alleged infringement… must be carefully and meticulously scrutinized. Series of abuse events over few years. 'The appellants in Boddie and here stand in materially different postures. Normet (1972) (CB: 1620). Randy's mother notified the Winnebago County Department of Social Services that she suspect Randy abused Joshua. lived with his father Randy. Williams (1970) (CB: 1616-20). bankruptcy is not the only procedure available to the debit for the adjustment of his legal relationship with his creditors." Dandridge v. Joshua DeShaney. Winnebago County (1989) (CB: 1653-56). b. It is enough that the States action be rationally based and free from invidious discrimination. the sole means of obtaining a divorce. and claimed to violate the Fourteenth Amendment only because the regulation results in some disparity in grants of welfare to the largest AFDC families. Randy was tried and convicted of child abuse. Decision granting a motion by an indigent seeking waiver of $50 fees. The degree of discrimination is irrelevant." So rational basis is satisfied. must be regarded as an equivalent of denying them an opportunity to be heard upon their claimed right to a dissolution of their marriages… [which is] in the absence of a sufficient countervailing justification for the state's action. Does rate even matter? — perhaps.  "There is not constitutional right to obtain a discharge of one's debts in bankruptcy. the State maintains some semblance of equitable balance between families on welfare and those supported by an employed breadwinner". Joshua was beaten so severely that he was left with permanent brain damage. DUTY TO RESCUE IF STATE PROVIDES SERVICES Deshaney v. Invalidated stat requirement for a filing fee of $45 and average of $25 for service of process in order to commence divorce proceedings. so the requisite fee deprives the indigent of judicial process because of an inability to pay the fee. so weekly cost of $1. Court rejects a claim that the need for decent shelter rose to the level of a fundamental interest that would call for heightened scrutiny of a "forcible enter and wrongful detainer procedure for the eviction of tenants after nonpayment of rent. Kras (1973) (CB: 1621-23). he has a theoretical way of adjusting his debts to his creditors." Even if unrealistic. MD maximum Aid to Families with Dependent Children grant regulation is constitutionally valid." Different level of interests between actions: no fundamental interest that is gained or lost depending on availability of discharge of bankruptcy.

Political Questions & Judicial Avoidance Baker v. 1. Petitioner does't claim Joshua was denied protection without according him procedural safeguards. institutionalization. and property of its citizens against invasion by private actors. 2.claiming the DSS deprived Joshua of his Fourteenth Amendment Rights to liberty by failing to protect him." XVI. etc. Gonzales (2005) (CB: 1658-63). Powell v. not out of a new government benefit or service but form arresting people who they have probable cause to believe committed a criminal offense. But no deprivation of liberty here that would trigger affirmative duty to protect Joshua: he was not in state's custody  "That the state once took temporary custody does not alter the analysis: it placed Joshua in no worse a position than that in which he would have been in had it not acted at all. recklessly or with such gross negligence as to indicate wanton disregard" to civil rights. At 3:20 am. Nature of entitlements: If entitlement is indeterminate." Castle Rock v.  Respondent did not under Due Process Clause have a procedural interest in police enforcement of the restraining order against her husband. Carr (1962) & Coleman v. Constitution vests judicial.. upon which police killed him. Court holds no property interest in having TRO [as an entitlement] enforced via immediate arrest. Police acted "willfully. Jurisdictional abdication a. property interest must be created and "their dimensions are defined by existing rules that stem from an independent source such as state law."  Compare: public services cases. citizenship ."  Language in TRO notice emphasized procedure "peace officer[s] shall" take/ use. If Due Process Clause does not require particular protective services. State did not create a special relationship with Joshua through the DSS services provided/ no affirmative duty. "Nothing in Due Process itself requires the State to protect the life. "shall" is not mandatory. the husband arrived at the police station and opened fire with a handgun he purchased earlier that evening. 3. Further. Scalia says."  Procedural entitlement: Police issues Warrant —> Judge approves Warrant —> Police exercises discretion as to when and where to execute Warrant. But that is not a thing. E. liberty.g.  "Property" interest arises incidentally.  “An entitlement claim must be more than abstract…. Clause limits the state's power to act.y restrained the individual's freedom to act on his own behalf. Court holds that state had no affirmative duty to provide protection to Joshua. adjudicatory power in other branch of gov't. Jessica Gonzales sued claiming that the police department's "failure to respond to restraining order violations" violated the Due Process Clause. the State cannot be held liable under the Clause for injures that could have been averted if it chose to provide them. but argues it was obligated to save him in these circumstances.  Compares to situations where the state has affirmative duty to help an individual where state has affirmative. Miller (1939) pp 890-92. police officers have "discretion" to complete their duties re enforcement. McCormack says SCOTUS can only determine whether congressman meets age. rather than ensuring that state protects them from each other. Judicial abdication: 1. His daughters were already murdered in Mr.  Incarceration. "Nor can someone be safely deemed entitled to something when the identity of the alleged entitlement is vague. it is not mandatory. This assures P of what? Not property interest. Police do not enforce restraining order by tracking down exhusband and children at mother’s insistence. Gonzales' pickup.

1.e. if rules cannot be cleanly implemented. E. Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion. but Court chooses not to. Miller: SCOTUS refuses to rule a constitutional amendment was dead. Lack of judicially discoverable and manageable standards for resolving issue c. this may counsel abdication) Prudential abdication a.. b. because judges can't say when it has been "too long" for the ratification process to have taken Case is properly before a federal court. amendment ratification timelines (kicked to Congress) or judicial impeachment proceedings (this just seems "unseemly") b. Typically interbranch disputes.g. Questions Court doesn’t think it’s competent to weigh in on.  Amendments—> we don’t see a role we can play here . congress could not come up with new qualifications on its own.  (i. Court could decide question. 2. and residency qualifications— however. Coleman v.2.