You are on page 1of 62

Constitutional Law Outline Spring 2008 THE ENUMERATED POWERS I. JUDICIAL POWERS a. Constitutional Basis - Article III, i.

Section 1: The judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may ordain and establish. ii. Section 2: Judicial power shall extend to all cases in law and equity arising under the Constitution, US laws, and treaties made…Supreme Court shall have original jurisdiction when Ambassadors and States are parties. Supreme Court shall have appellate jurisdiction over all other cases.

b. Judicial Review  FEDERAL ACTIONS (Congress/Executive) i. “It is emphatically the province and duty of the judicial department to say what the law is. A law repugnant
to the Constitution is void ” Marbury.

ii. Judicial Review – It is the duty of the judiciary to say what the law is.
iii. Marbury v. Madison 1. Before the end of Adam’s term as President, he appointed Marshall as Justice to the SC. Congress then doubled the number of judges so as to have full Federalist control. The appointments were confirmed by the Senate but they were not delivered by the time Jefferson took office. Jefferson told Madison to withhold their delivery. Marbury was to be appointed and sought a mandamus order to compel delivery as authorized under the Judiciary Act of 1789. The new Congress then acted to repeal the Federalist action. a. Holding – i. Supreme Court can decide acts of Government to be Unconstitutional 1. Marbury had a right to the commission But the Judiciary Act was deemed Unconstitutional b/c it authorized mandamus by the SC while the Constitution as read by Marshall allows for mandamus only in appellate review. Article III is interpreted as exclusive. 2. This is why judges take an oath to protect the C.

c. Judicial Review  STATE ACTIONS
i. Supreme Court has appellate jurisdiction over ALL cases involving Federal Law (Art. III). 1. There exist other such limitations on state powers (Art. I, Sec. 10). 2. State courts are bound to obey the Constitution – Supremacy Clause 3. Uniformity of the law is necessary

4. Martin v. Hunter’s Lessee (Civil Suit)
a. Lord Fairfax willed his Virginia land to his nephew Martin (resided in Britain). Virginia granted that land to Hunter pursuant to a state law to confiscate land owned by British subjects. Hunter sued to eject Martin. VA state court argues that the US SC does not have appellate jurisdiction over a state issue.

i. Holding: Judgment for Martin based on US Treaties
1. Appellate power must extend to state tribunals – the Constitution limits the powers of the states and there is a need for uniformity on Constitutional issues from state to state.

5. Cohen’s v. Virginia (Criminal Proceeding)
a. Judicial review extends to criminal proceedings as well so long as there is a Federal Issue ii. Types of Review: 1. Federal Courts – Reviewing congressional/executive act in light of federal law 2. Federal Courts – Reviewing state act in light of federal law 3. State Courts – Reviewing state act in light of federal law 4. State Courts – Reviewing state act in light of state law

iii. Supreme Court Jurisdiction 1. Original Jurisdiction (Art. III, Sec. 2, cl. 2)

2. Appellate Jurisdiction a. Independent and Adequate State Ground – Long Presumption
i. Supreme Court has jurisdiction over State Cases when they raise federal law – it will not decide cases on state law grounds, even if they cite federal law cases so long as there is a plain statement of such. 1. State courts have their own Constitutions and statutes. 2. What if someone raises a claim in state court that there is a violation of federal law? How does the court make sure it is reviewing Federal Law? (SC has no authority to review state law). 3. Court does NOT want to issue advisory opinions 4. Uniformity

ii. Michigan v. Long – Police searched Long’s car b/c they had reason to believe it
contained weapons. Protective search of the passenger compartment was reasonable. Long argues the SC has no jurisdiction b/c the decision rests on an adequate and independent state ground and federal law (MI courts provide greater protection from search/seizure – a 4th Amendment issue).

1. Holding – Supreme Court has Jurisdiction
a. When a state court decision rests on federal law OR is interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the state court opinion – it will be presumed that the state court’s decision is based on federal law and the Supreme Court has jurisdiction

2. Plain Statement Requirement - State court ought to issue a plain
statement that its decision rests on adequate and independent state grounds and the use of federal precedent is only for guidance and is not controlling

b. Congress can limit (make exceptions to) but not expand (except by scope of matters
regulated by federal statutes. – Ex parte McCardle

c. Congress must declare limitations expressly and probably cannot eliminate appellate
review entirely. – Ex parte McCardle d. LIMIATIONS ON FEDERAL COURT REVIEW

i. The Case or Controversy Requirement – There must be a real dispute with adverse parties abd real
interests at stake. The court tries to avoid unnecessary decision of substantial, complex and controversial Constitutional questions.

ii. Advisory Opinions - Not Issued by the Supreme Court. Muskrat v. United States iii. JUSTICIABILITY – A question subject to judicial resolution (there are identifiable standards) and
appropriate for such resolution (separation of powers concerns).

1. Five Categories of Non-Justiciable Subjects: Baker v. Carr
a. b. c. d. e. 2. Foreign relations issues Dates and duration of hostilities Procedural Validity of Enactments/Constitutional Amendments Status of Indian Tribes Guarantee Clause questions (Art. IV, Sec. 4).

Six Non-Justiciable Conceptual Categories:

a. b. c. d. e. f.

Political Questions Lack of judicially discoverable and manageable standards Impossibility of deciding issue without an initial policy determination of a kind clearly for non-judicial discretion Impossibility of a court’s undertaking independent resolution without expressing lack of respect due other branches of government Unusual need for unquestioning adherence to a political decision already made Potentiality for embarrassment from multifarious pronouncements by various departments on one question.

3. Baker v. Carr – The challenge was on the apportionment of voting districts. Permitted judicial
review of a question under the Equal Protection Clause. a. If there is a lack of a justiciable standard then the court will stay out of the decisionmaking (Politics). Courts are wary of getting involved in political questions.

4. Nixon v. United States – Judge Nixon was convicted for taking bribes and refused to resign. To
remove him he must be impeached. The Senate formed a fact finding committee but D complains that this process violates Art. I, Sec. 3, cl. 6 (The Senate shall have sole power to try all impeachments)  the entire Senate should serve as a fact finding party. a. Holding: Courts cannot decide what it means to “try impeachments”. There is no identifiable textual limit. The terms in the Constitution are clear – the Senate has the SOLE power, therefore the courts are out. i. Checks on the Senate: House must charge and Senate must pass a supermajority.

5. Vieth v. Jubelirer - Gerrymandering (dividing a state into voting districts so as to give one party an
advantage) will violate the Constitution if it goes “too far”, but the courts lack sufficiently clear standards for determining when partisan scheming exceeds Constitutional bounds. a. Supreme Court declined review b/c there is no standard to review. Political gerrymandering is a political question. iv. DISCRETIONARY REVIEW 1. 2. Original Jurisdiction a. Controversies between two or more states (boundaries and water) Appellate Jurisdiction a. Exists over Federal Courts and State Supreme Courts b. Done through a Writ of Certiorari – allows the court to decide which cases deserve the most attention  Discretionary i. AC Conflicts across the country about meaning of Federal law (common) ii. Important unsung issues (big issues) iii. State Supreme Court conflicts in federal law

c. Maryland v. Baltimore Radion Show – When the Supreme Court denies a case, there is
no explanation. There are too many cases and it is not always the same reason for all the justices.

v. STANDING – A party must have a personal and concrete stake which sharpens the presentation of the
issues. It is a decision whether the litigants are entitled to have the courts decide an issue. Know the requirements below, BUT that the cases are all over the board. 1. Ensures the scarce resources of the federal courts are devoted to those disputes in which the parties have a concrete stake 2. Article III Standing Requirements: a. Generally: i. Injury in Fact (concrete and particularized, actual/imminent) ii. Injury directly traceable to challenged conduct of D, not the result of independent acts of 3rd parties not before the court iii. Injury likely to be redressed by court granting relief on the merits.

b. b. Holding: Reversed – Not Moot i. Massachusetts v. Statutory authorization for P to sue on behalf of 3rd party 3. Massachusetts v. Not moot if altered. other may not be ii. While the issue is procedural. Redressability: Risk of catastrophic environmental damage would be reduced b. amended or substituted – Jacksonville 2. Rule – There must be actual controversy at the time court renders a decision. Standing – When you start the lawsuit there must be an injury ii. Laidlaw – P’s claimed they cannot swim in the water anymore because of water pollution. Special relationship between 3rd party and P. Exceptions: 1. vi. i. 5. Prudential Limitations a. “a litigant to whom Congress has accorded a procedural right to protect his interests can assert that right without meeting all the normal standards. Outcome in the case will not matter to THIS plaintiff (advisory opinion). Mootness – i. State’s generally cannot assert standing on behalf of citizens. No Generalized Grievances – even if Article III requirements are met 4. 3rd party rights indirectly violated by enforcement against P or vice versa. Mellon. but an exception is for Establishment Clause situations – Flast v.b. Repeal of statutes 1. 2. Mootness – You had standing/injury. otherwise the case will be rendered moot. Generally not permitted. Injury: Loss of stated owned coastal property ii. Penalties for past behavior keep the case alive bu the court is concerned as to whether cessation is permanent. Cohen. Class Actions – If named representative becomes moot. EPA – Does Mass. There are circumstances in which the prospect that D will engage in (resume) harmful conduct may be too speculative to support standing but not too speculative to overcome mootness ii. Causation: Traceable to greenhouse gas emissions iii. Repetition – If D could be affected by the issue again. Exceptions: i. but things have changed c. Congress authorized this action in a statutory provision. Friends of the Earth v. evading review. Friends of the Earth v. 3. Taxpayer Standing: i. Printing Indus.D ceased its illegal conduct upon issued suit by P and argued the case is moot. Moot is COMPLETE repeal – Hill v. MOOTNESS 1. 2. Pollution damages lands they otherwise would have used. Court upheld the standing b/c of the injury to the plaintiff not to the environment. a. Voluntary change in conduct – Court makes judgment call iv. Standing v. AC dismissed the claim as moot b/c not all of the three elements of standing existed throughout the litigation. Dissent – This is generalized harm and Global warming affects everyone. have standing to compel the EPA to regulate itself? Court upheld standing of Massachusetts to challenge the refusal of the EPA to issue regulations governing greenhouse gas emissions by motor vehicles. (pregnancy – 9 months) iii. a.” a. EPA may find that they can decrease the risk i. Laidlaw . Third Party Standing – Generally not permitted. How do we really know what the cause is. .

from those cases that are appropriate for federal court action a.18 i. RIPENESS 1. b. 7. Mootness – Difference in Timing Ripeness -----------------------------------------Standing--------------------------------------------Mootness Law is created and you want to sue Law not yet broken . Sec 3 – Power to admit states. Sec. Constitutional Text i. “We must never forget that it is a Constitution we are expounding” – McCulloch. Limitation: 1. It seeks to separate matters that are premature for review b/c the injury is speculative and never may occur. To challenge the law you must violate it d.sec 2). The mere presence of the law deters conduct 1. 6.Guaranty Clause Article V – Proposing Constitutional Amendments The Tenth Amendment The Sixteenth Amendment 5. 3. If the laws existence will deter people from exercising their 1st Amendment rights. 8 a. Must exhaust administrative remedies. Sec 1 – Full Faith and Credit b. Govern Territories c. . The Clause augments and expands the powers of Congress rather than limits them. Congress can do whatever is necessary and proper to affect its powers. Applies to speech and felony prosecution 2. ii. Reconstruction Amendments – (13. Enumerated – Article 1.Too hypothetical Poole Gov’t said Hatch Act is bad idea a. How they implement the enumerated powers gives them more power though. Sec 4 . (15. sec 2) Inferior Courts – Article 3. Constitution gives Congress the power to effectuate its enumerated powers. NECESSARY AND PROPER CLAUSE – Art. b. LEGISALTIVE POWERS a. 8. Therefore. Sec 1 Article IV a. they can sue without violating the laws ii. Congress must have some discretion. Sec. There must be present adverse impact OR attempted enforcement of statute. A broader reading is appropriate because the clause is among the powers of Congress. Federal government has no power except what the Constitution grants 2. 1. 4. (14. a. Congress must be acting in some way to connect the powers which are enumerated to its actions. Purpose of the Constitution was to create a stronger legislative body than existed under the Articles of Confederation. Exception – First Amendment “Chilling” Effect i. Threat of injury from conduct is too remote  Not RIPE II. A Justiciability doctrine determining when review is appropriate. cl. 1. 1. sec 5).vii. c. Ripeness v.

10th Amendment is not appropriate b/c it doesn’t answer the question of what is given to the federal government. Holding: Congress acted properly and Gibbons has a right to be there too. Constitutional Text – Art. 3 1. What Power does Congress have over Commerce? 1. a. No power generally when commerce is purely intrastate. charging fees. Holding: a. The manufacture of a good is not commerce. The power to regulate commerce among foreign nations. He operated between NY and New Jersey. Sec. The US created a bank which operated in Maryland and refused to pay the tax. 2. What is Commerce? 1. the several states and with Indian tribes ii. This is something states should regulate. a. 3. It creates and incentive financially for manufacturers. The single most important power of Congress. Thornton – Like Congress. 1. commercial intercourse. The goods themselves are harmless to interstate commerce. Plenary Power . Congress CAN regulate intrastate activities if it has an EFFECT on interstate commerce. States are excluded from imposing such requirements. The mere fact items were intended for interstate transportation does not make their production subject to federal control. 2. i. Cl. 1. States have no power to add to the qualifications for members of Congress – it is not reserved to the states in the 10th Amendment. iv. Ogden iv. c. a. it does have the power to do other things such as wage war and collect taxes. US Term Limits v.iii. Maryland – Maryland taxed banks operating within the state but without state authority. etc. NY statute granted Ogden the exclusive right to navigate boats in state waters. Gibbons was operating boats licensed under an act of Congress in the same area. but to the people. 2. The right to choose representatives does not belong to the states. 8. v. i. b. Holding: Congress exceeded its powers. exchange. Hammer v. 3. Holding: Article 1 imposes restrictions and states themselves cannot add to them. including bans. Purpose was to standardize the ages at which children may be employed in mining and manufacturing. McCulloch v. Child Labor Laws – Congress wants to control/prevent child labor. While there is no express grant to Congress of the power to create a bank. Regulating National Economic Issues Through Commerce (Through 1936) 1. Dagenhart – Congress acted to End Child Labor through the commerce clause. 4. Regulating National Economic Issues – The New Deal & Modern Power .It can do whatever it thinks is necessary to regulate. A bank would assist in these purposes  making it necessary and proper. a. Power to regulate commerce among the several states (intermingled). Commerce is traffic but something more  It is interaction. Gibbons v. 2. Congress power is an exclusive grant over interstate commerce. goods moving in commerce. 1. c. States cannot act with regard to interstate commerce. between states. COMMERCE CLAUSE i. (navigation included). so even when Congress has not acted. Dagenhart iii. Ogden sought an injunction. Hammer v. 1.

The Great Depression a. b. c. but actions of all will substantially affect interstate commerce. Court is very deferential here. Evaluate all the factors cumulatively . Cumulative Effects Doctrine – Home-consumed wheat adversely affects the markets if everyone does this. United States v. a. Before 1964. Federal Government created programs to help the economy recover. a. Wirtz . ii. He would sell some. It was meant to regulate wages and hours worked. It did not regulate the good themselves. Motel was readily accessible to interstate and state hwy’s and 75% of its guests were from out of state. Commerce power is established to reach any activity that has a substantial affect on interstate commerce. Cumulative Affects Doctrine – Actions by one person are insignificant. Maryland v.Congress expanded regulation to cover (1) all employees of any enterprise engaged in production of goods for commerce and (2) include hospitals. it discourages blacks from traveling. Who decides if it substantially affects interstate commerce? i. Wickard v. Congressional Motive is irrelevant. Congress decides and the Courts defer to Congress. c. Filburn . i. Congress power extends to the regulation of intrastate activities which have a substantial effect on the interstate commerce or the exercise of Congressional power over it 3. United States i. Times were terrible and FDR was very aggressive. but the d. 1. The court however struck many of the programs down (not commerce power).1. Government wants to restrict how much wheat you can keep i. nursing homes and schools. Holding: Congress has the power to prohibit racial discrimination by “local” motels. feed some to livestock and use some for home-consumed purpose.Filburn raised 239 bushels of wheat. b. These institutions are major users of goods imported through interstate commerce and work stoppages would interrupt this flow of goods across state lines. in excess of his marketing allotment. Congress passed the Fair Labor Standards Act to exclude goods from interstate commerce which were made in sub-standard conditions. Congress’ power is plenary if it substantially affects interstate commerce. b. 10th Amendment is NOT relevant to the Commerce Power. Such discrimination impedes interstate commerce. 2. It is a truism. FDR threatened the “Switch in time at saved 9” – A means of replacing older judges with some that would allow his programs to pass. Holding: Constitutional a. Civil Rights Act entitles everyone to full enjoyment of public accommodations. Regulation Permitted 1. Overruling Dagenhart with Darby a. 1. Heart of Atlanta Motel v. Darby i. it had a policy to refuse to rent rooms to blacks.

Nature of the causal link . Is it commercial/economic activity? ii. Depressant Effect on business conditions 4. Whether there is an express jurisdictional element relating to interstate commerce – “She can have a civil remedy if…” iii. Legislative Findings – Reasoning is too attenuated and would allow Congress to regulate any crime (a right reserved to the states). ships ii. Rehnquist – There must be a limit to the commerce power 1. Legislative history and Congressional findings about a connection iv. She sued under Violence Against Women Act of 1984. Lopez i. The act was passed according to commerce. i. United States v. United States v. Guillen Instruments of interstate commerce OR persons/things. Cause erosion/floods. Artificial restriction on market c. Fewer customers. b.Practice taken as a whole across the country impedes interstate commerce. Airplanes. Must be reviewable by the courts as to whether that is true vi. McClung – Ollie’s BBQ is 11 blocks from the interstate. Holding: Commerce Clause does NOT apply a. etc. Rational Basis TEST a. Modern Limitations on the Commerce Power 1. but is that appropriate? 1. . bridges. Roads. If so. Whether Congress had a rational basis for concluding that the regulated activity affects interstate commerce? i. There is no jurisdiction element c. i. even when the threat comes from intrastate acts.d.Direct or Attenuated? d. trains. Lopez Standards . Hodel v. Guillen Activities having a substantial relation to interstate commerce – Those that substantially effect interstate commerce. Use of channels of interstate commerce. Deferential Review. It caters to white collar families and has take-out for blacks. Petitioner alleged D assaulted and repeatedly raped her. e. buses ii. b. a. Cumulative Effects . Deferential Review. Gender motivated crimes are not economic activity. It must be a substantial effect on commerce AND 2. pollute the water. i. whether there is a rational connection between the regulatory means chosen and asserted goals? b. Morrison i. There is no claim that interstate travelers frequent it. Katzenback v. D argued this was not applicable to the commerce clause and the government argued that education affects commerce – through a chain of causation. less food ordered b. i. Gun-Free School Zone Act made it a crime to possess a gun in a school zone. Virginia Surface Mining – Supreme Court upheld Federal Act regulating mining operations – Diminish utility of the land. c. Look to the FACTORS: i. Holding: Congress CAN Regulate under Civil Rights Act 1. less sales.Congress MAY Regulate the Following: a.

Conditional Grants of Money a. Analogize to the Wickard case. it negates the police powers d.1. Court held the act exceeds the authority under the commerce clause b/c it was criminal (not economic) in nature. and provide for the common defense and general welfare of the US. f. Opinions of the Justices: i. This is okay because there is a choice on the part of the state (university) . Grants Congress the power to lay and collect taxes. Sec. Congress offers state’s money if they do various things Congress wants. 8. Spending – 1. Grants Congress the power to lay and collect taxes. Congress can tax and spend on anything for the general welfare 2. Congress can tax and spend on anything for the general welfare ii. Taxation – 1. ii. c. Congress has the power to regulate activities that significantly affect I/C b. iii. Reich – Substantial Effects of Local activities i. Rational Basis should be the standard. Congress can regulate a purely intrastate activity when a failure to do so would undercut the regulation of the interstate market. The Commerce Clause deserves a more narrow reading. Courts must give Congress considerable leeway in determining whether there is a sufficient connection between the activity and interstate commerce. Thomas (Concurring) – Court has drifted far from the original understanding of the commerce clause and the court should reconsider the “substantial effects” test. Breyer (Dissent) – 1. 8. Court upheld Federal Act combating traffic of marijuana by prohibiting the local cultivation and use of the drug (even when state authorized for medical purposes). and provide for the common defense and general welfare of the US. Must judge the matter independently (no deference) 2. Tax and pay the debts of the US c. Could Congress rationally conclude an effect on interstate commerce. Souter (Dissent) – Apply the two-step Hodel Test. there is no need for the enumerated powers. 2. 1 a. Tax and pay the debts of the US. cl. Act did not satisfy the factors under the 3rd Commerce Power. Sec. A means for Congress to do indirectly what it cannot do directly b. Otherwise they don’t get the money. to pay debts. 1 a. Express Power . Congress cannot tell KU it must teach certain subjects but it can offer money to KU and put a condition on that money that KU teach those subjects. 1. Concurring – uses the Necessary and Proper Clause 3. to pay debts. If it is read too broadly. i.Article I. Court must consider the Cumulative Effect of conduct c. This is a deferential approach. cl. Express Power . there was no legislative history related to commerce. ii. Leaving this pot outside Federal control would draw the stuff into the national market. Gonzalez v. 16th Amendment allows for collection of individual income taxes d. g. b. Dissent – If Congress can regulate this.Article I. b. TAXATION AND SPENDING POWERS OF CONGRESS i. (wheat regulation) 2. Principles to Consider: a.

2. b. Congress can enact laws implementing the treaty – If the President and required Senate vote believe it is important enough. Section 3 – a. Sign laws – Veto and Pocket Veto . Lower federal courts. Section 7 – a. 2 b. The power must be used in pursuit of the “General Welfare” Any conditions must be declared unambiguously Conditions must be related to the “Federal Interest” Other Constitutional provisions must not prohibit the spending. State permits 19 year olds to purchase 3. Power to make treaties is expressly delegated and treaties are declared the supreme law of the land (Art 2 Sec 2 and Art. War powers 2. ii. Courts are Deferential to seek legislation protecting birds that traversed both countries. they have the ultimate choice. OTHER POWERS 1. Principle Officers. Coin money. Borrow money. Dole – Regulating State Drinking Age 1. TREATIES – 1. 14th Amendment. Express Power – Article II. Court held it not sufficient to rely upon the states and upheld the treaty. Executive power shall be vested in the President 2.Upheld a treaty between US and Canada obligating both countries III. Commission all officers of the United States 4. OTHER CONGRESSIONAL POWERS i. 2. and Article VI a. Recess Appointments 3. Patents/Copyrights. 13th Amendment. Section 2 – a. Commander in Chief. Congress passed a law withholding 5% of federal highway funds from states that permitted the sale of alcohol to those under 21. Convene both Houses of Congress. 2 The enactment of the law remains the prerogative of the states. i. US territories.2 beer. Highway safety is the government interest c. EXPRESS POWERS i. 6). Section 1 – a. Pardon Authority. Missouri v. Bankruptcies. 15th Amendment. Enumerated Power – Article I a. The issue is whether the treaty is forbidden by the 10th Amendment. Appointments of Ambassadors. Receive Ambassadors. All treaties made under the authority of the US are Supreme b. Treaty Power. Article II – 1. Sec. Post offices. Sec. Recommend/Propose legislation. Faithfully execute the laws. the court is not in a position to deny the power to enact such a law. Four Part Test – Dole a. b. Aliens. Enforcement of Civil Rights a. e. d. State of the Union. South Dakota v. Sec. Holland . EXECUTIVE POWERS a. cl. Sec. i. Holding: Regulation Upheld (Encouragement not Coercion) a. Judges. 5 c. e. c.3.

but it is true that in many statutes. make rules and regulations for military. 1. Foreign Affairs and War – 1. Nullifying the attachments was permitted under Congressional statute – Jackson #1 2. Truman made an executive order to have the Secretary of Commerce take possession of and operate the nation’s steel mills. He also suspended all claims in American courts against Iran. President is Commander in Chief. They wanted to create an arbitration tribunal in the Netherlands. President’s power extends only to the Constitution and whatever Congress designates 1. statutes may provide implicit Congressional approval. and terms on which the Government will enter into contracts. Presidents have asserted power to issue orders relating to organization of the executive branch. Congress and Constitution are silent (Neutral) 1. Carter did this under executive agreements and orders. Regan – a. GENERAL CONSTITUTIONAL FRAMEWORK – EXPRESS AND IMPLIED POWERS i. Dames & Moore v. Congress has power to tax and spend for common defense and power to declare war. Emancipation Proclamation 2. . Concurring (Jackson) – There are three categories: i. Power is at a maximum and the court will be deferential ii. Constitutional Sources of Power to wage war – War Powers are divided: a. The relationship is uncomfortable. Executive Orders – Governing the Executive Branch. Zone of Twilight iii. Executive Lawmaking Delegation – President cannot legislate. c. Holding: Power is permitted 1.b. c. Youngstown Sheet & Tube v. Suspending the claims was Jackson #2. Long-standing practices should be considered. President must rely on his own independent powers. b. None of these existed and this is a category 3 according to Jackson. Court looked at history and found other examples iii. Concurring (Frankfurter) – “Life’s gloss” affects Constitutional interpretation. (2) in a federal statute. ii. or (3) Congressional authorization. use of federal property. Expressly Forbidden by Congress 1. Holding – Must find express power either (1) in the Constitution. Congress leaves all the details to the President to implement. President Carter made an agreement with Iran and wiped out all attachments Americans made on Iranian property in US courts. Steel industry had a labor dispute. b. raise and support armies. Sawyer – a. History and tradition matter. Some people challenged this saying he doesn’t have this power. Make sure production doesn’t stop. President’s powers are at their weakest and he must point to some enumerated power d. Before they planned a strike. i. Lawsuit is brought arguing he doesn’t have the power to do. Express Grant – 1. SPECIFIC POWERS i.

1. D was captured in Afghanistan and transported to Guantanamo (not US citizen). President has absolute immunity from civil liability extending from official duties of the office d. a. Executive Agreements – Allows President to enter into agreements with foreign nations without Senate or Congressional approval. . Congress passed an act precluding such Presidential action. Congress authorized the President to prohibit the sale of arms to Bolivia and Paraguay if he found such prohibition would contribute to the reestablishment of peace. iv. 1. 2. Pres. 2. New presidents may rescind executive orders. President has no right to control his Presidential papers c. Privilege is Presumptive – NOT Absolute b. The President has a presumptive privilege to protect communications between high government officials. Rumsfeld – i. Court will be deferential when actions relate to foreign affairs b/c he is the sole representative of the country. Nixon claimed executive privilege when his appointed independent prosecutor sought pres. D argued that the military commission. Presidents enter into these all the time. Fitzgerald – a. Fitzgerald sued claiming Nixon caused him to lose his job for “whistle-blowing”. Rumsfeld – i. 1. United States v. Holding: This is a Jackson #3. diplomatic. Absolute immunity doesn’t extend to non-official conduct. Key Concepts: a. Delegation – Court has never struck down a Congressional delegation since the New Deal. a. D was seized and turned over to the US as a Taliban fighter. Holding: Permitted. 3. Congress authorized President to use “all necessary and appropriate force” against those he determined planned. War on Terrorism – What is the President’s authority regarding post-9/11captured enemy combatants? a. i. lacked authority to try him. b. 1. Curtiss-Wright Export: i. Here it was overcome by the interests of criminal justice 3. except pursuant to an act of Congress. Nixon – a. (Congress has primary role in domestic affairs) b. It applies when there is need to protect the military. or sensitive national security interests. Court affirmed the dismissal of the action – Executive Privilege. Congress turned its authority over to the President. These rarely get litigated. authorized or aided the attacks. Nixon v. Hamdi v. convened by the President.2. The Court rejected the claim. Holding: Initial detention was authorized but he cannot be held indefinitely – he has Due Process rights. United States v. order (authorized by Congress) that governed the detention treatment and trial of non-citizens. His father argues he was being held in violation of Due Process and the Non-Detention Act (forbids any imprisonment or detention of American citizens. tapes / documents. The President had issued a exec. D is an American in Afghanistan following 9/11/01. Hamdan v. but NOT Absolute and does NOT outweigh compelling interests. Executive Immunity / Privilege 1. The President proclaimed an embargo and Curtiss-Wright was indicted for violating its terms.

Formalistic d. United States – . Congressional oversight. cl. Acknowledges that the separation is not all that clear. ii. Congressional Delegation i. Two Ways to Approach These Cases i. The rise and proliferation of administrative agencies and Congress’ desire for some control led to the advent of this post-enactment mechanism where Congress could “veto” executive branch/agency decisions. 3). Legislative veto violated this process. Congress enacted both one-house and two-house vetoes in many federal statutes. Non-Delegation Doctrine. Clinton v. Pres. 2. They are Unconstitutional. but can enact legislation giving others authority to implement if the law provides substantial guidance to the implementing agency or officials. The Court has long recognized the concept that Congress cannot delegate its legislative power to other entities. INS v. Clinton contends that the case and additional litigation may impose an unacceptable burden on his time and energy and impair effective performance of his office. Sec. Applies whether or not he is currently in office. IV. b. New York – a. Unilateral action is only permitted during impeachment process. Functionalism – Separation of Powers is to ensure no branch gets too powerful but there ought to be some flex in the joints. 2. c. re-election 4. Court invalidated the Line Item Veto Act. Is checked politically in other ways – media. there was no Bicameralism and Presentment. President has absolute immunity from civil liability for any acts within the “outer perimeter” of his official duties. ii. state employee sued for sexual advances by President Clinton. as violations of the Presentment & Bicameralism Clauses of the Constitution (Art. 1. Jones – a. The Legislative Veto i. Formalism – Article II gives all executive powers to the President. Lines are clear and distinct. 1. impeachment. there is very little which oversees government agencies. 7. i. Functionalists disagree – bicameralism was satisfied when the law was initially passed and Congress should retain the veto power b. ii. This is a Formalist analysis.i. Clinton v. i. Holding: Suit may proceed b/c it relates to his unofficial conduct. The Court has never found any act of Congress to violate this doctrine: 1. Fourth Branch of Government .Without the veto power. b. but Presidential schedule must be considered. c. Involved one-house legislative veto of a deportation decision of the AG. Allows the President to cancel spending. This act did not qualify the President’s discretion to act to cancel. iii. SEPARATION OF POWERS a. They required any law to be presented to the President and that laws be passed by both houses of Congress. The Line Item Veto i. 1. Can President be sued civilly while in office for non-Presidential related reasons? Ark. This occurs after the bill becomes a law and is only of part of the statute (not the entire thing). the court held such vetoes unconstitutional across the board. Mistretta v. Chada – a.

Giving the President the authority to appoint the members of the Sentencing Commission – including judge members – did not violate Article II. Courts. i. Upheld authority of the Secretary of Transportation to appoint civilian members of the Coast Guard Court of Appeals. Congress may vest these appointments in the President’s. i.a. FEDERALISM a. They do not have to be appointed by the President 2. b. ii. but court said they are quasi-judicial b/c they make decisions in a judicial fashion. President nominates and Senate confirms b. Appointment . Sec.They were supervised by other judges. cl. Bowsher v. or in the Heads of Departments. The comptroller would be exercising executive power while technically removable by Congress. This is a Functional Approach – considered okay despite line blurring. who could remove them without cause. Court found that Congress could limit the grounds for removal of a Commissioner of the FTC. United States – 1. United States – 1. Congress charged the Commission with three goals. 2 1. a. and send it to the President. Congress created the FTC. specified four purposes for them to pursue and identified a number of factors and characteristics for the commission to consider. i. Mistretta v. Edmond v. Congress cannot control the execution of its laws ii. INTRODUCTION – . Who is a Principal Officer? Inferior Officers – a. Morrison v. ii. United States – a. Congress created a system where the Comptroller General will go through the budget and figure out what cuts will be made. Holding: Independent Counsels are Inferior Officers 1. a. e.Article II. 1. 2. Appointment and Removal of Officers – i. i. Three of the 17 members must be judges. Olson – a. CG is a legislative official b/c interpreting the budget is legislative in nature. President argues they are executive officers. Congress may limit removal power over officials exercising quasilegislative/judicial powers. Holding: Unconstitutional usurpation of executive power b/c it empowers Congress to terminate the Comptroller General for his performance. V. Inferior Officers . Humphrey’s Executor v. Principal Officers – 2. Synar – Removing Comptroller General a. 2. The US Sentencing Commission was created by Congress as an independent body in the Judicial Branch with the power to determine sentencing ranges for all federal crimes. Holding: Permitted. To get a balanced budget. Formalistic Court upheld Act providing for Independent Counsel to be appointed by a “special division” court to investigate high level executive branch officials. Removal – Constitution is silent 1. Removal by AG for “Good Cause” did not violate presidential prerogatives. 3. i.

Maine 4. Immunity Theory – (Broad View) a. Bar suit by one state against another in Federal Court. Perhaps not all suits against state officials should be barred in federal court and the 11th places NO limit on Congressional powers of federal courts vis-à-vis the States. ii. Major Areas of Federalism Concern 1. Purpose was to prevent federal courts from unduly interfering in matters of state government. commenced or prosecuted against one of the United States by Citizens of another state. 11th bars a foreign government from suing a state in Federal Court. Bar suit by the U. Sec. Georgia. The 11th Amendment does NOT: a. Ratified to overrule Chisholm v. where the Supreme Court held a citizen of South Carolina could sue Georgia in Federal Court. ii. cl. iii.S. Dakota v. State immunity from suits to enforce Federal Law – 11th Amendment a. General Rules: 1. 11th does NOT bar suit against a state official when seeking injunctive relief – Young . S. Therefore the question is not whether the Constitution authorizes States to act. THE 11TH AMENDMENT – State Immunity from Suit i. Federal law prevails. States have general Police Powers. 2. Hall 2. Mississippi 3.). THEORIES OF THE 11TH AMENDMENT 1. Privileges and Immunities of State Citizenship (Art. Monaco v. Nevada v. N. States cannot be sued without their consent for violating Federal Law 3. The Supremacy Clause and Federal Preemption of State Law a. Language – “The judicial power of the United States shall not be construed to extend to any suit in law or equity. against a state in Federal Court. History A state may consent to suit in Federal Court. but whether it prohibits the States from acting. when diversity of citizenship was the sole basis for federal jurisdiction. 1 – 14th Amendment) 6.i. Separation of Powers/Federalism Theory – (middle ground) a. Carolina b. Others – State Term Limit effort b. v. There is no constructive or implied consent/waiver. Purpose of the 11th was to limit Article III jurisdiction and prohibit suits in Federal Court between citizens of States A against State B. States have sovereign immunity from suits based on Federal Law brought in state court (though this is not derived from the 11th. Apply to suits based on state law brought in state courts i. 1. The Framers intended to preserve sovereign immunity of states in Federal Court and the error of Chisholm was a failure to recognize that fact 3. iv. IV. United States v. State immunity from Federal Regulation – 10th Amendment 2. or by Citizens of Subjects of any foreign state. Mississippi c. Case Law Concepts 1. Alden v. Diversity Theory – (Narrow View) a. unless Congress never had the power to act initially 5. but must make its intent to do so clear. 2. The Negative/Dormant Commerce Clause 4.

vi.2. Does Congress have the power to abolish a state’s immunity? 2. Does the 11th bar an action for injunctive relief against a state official? 3. Immunity does not apply to local government. federal court holds him in contempt. Use Sec 5 of the 14th Amendment vi. Alden v. If the act which official seeks to enforce is Unconstitutional. Opens the door to federal court supervision of state gov’t institutions. You can sue officials for injunctive relief – Ex Parte Young. but the companies did not comply. The 11th only reaffirmed what already existed c. Holding – States have immunity in state courts from federal claims. MN legislature passed laws fixing RR rates. Court found the rates Unconstitutional and enjoined AG. Holding: Court overrules Penn Gas (case that abolished immunity) a. Good faith of the states will take us a long way in following the law ii. b. Article I does not authorize Congress to override immunity provisions for remedy built in. If City of Lawrence violates Fed Law you can sue them. 3. 2. State employees of Maine sued Maine in Federal Court – after Seminole Tribe their case was dismissed in Federal Court. Suits against states under state laws are up to the states Several ways to make sure federal law gets enforced i. Waiver of immunity must be clear – Seminole Tribe 3. vii. States may consent to suit iii. Seminole Tribe of Florida v. Maine a. Dissent – He is the state & that’s what the 11th prohibits. c. Immunity predates the Constitution. b. Holding otherwise would leave the state and officials free to violate federal law. he is stripped of his official character and is subjected in his person to the consequences of his individual conduct. States were understood to have immunity before the Constitution. They sued the state and the Governor claiming they can name the state b/c the federal statute allows them to name the state to compel compliance. Ex Parte Young 1. they were afraid of losing money. a. So the filed suit in state court. Florida 1. which they have not complied with Waiver must be clear b. State Courts dismiss on state sovereignty. Ex Parte Young is not available to sue the Governor for remedy b/c the statute has viii. US can sue v. vii. States have immunity in state courts from Federal claims – Alden v. AG gets a mandamus order from state court stating that he has to enforce the laws. S/H filed suit to enjoin enforcement of the laws by the AG. Congress acted to restore the Constitutional design . a. Seminole Tribe wants gaming activities authorized and they can do it so long as they negotiate in good faith with Florida. b. Congress can cite spending power (drinking age) iv. Holding – 11th does NOT bar suit against a state official when seeking an injunction. They claim immunity b/c this issue is on a Federal Act. Maine 1. 2.

a. 11th DOES bar the payment of money damages from the state treasury. Congress cannot compel State enforcement of federal law . Garcia v. it applies to the states unless Congress and the political process exempt the states – Garcia 2. Doe 3. 11th Permits removal of officials 2. Congress and the political process should decide the limits not the courts 3. xi. San Antonio Metropolitan Transit Authority – 1. 2. nor prohibited by it to the States. THE 10TH AMENDMENT – Does it mean anything? What can Congress do/not do to the States? i. cities. x. Issue whether minimum wage provision of federal law should apply to city mass transit system. The 11th Amendment is NOT APPLICABLE to suits against counties. Ashcroft – Courts will assume Congress did not mean to effect the State’s interest unless Congress explicitly says so. 10th provides no enforceable limitation on federal power nor independent protection of state 4. Case Law Concepts: 1. or other local government entities in federal court. If federal law does not target the states. are reserved to the States respectively. ii. Can Congress Override the Immunity? 1. leave it to the political process sovereignty. This applies even if the State will ultimately be indemnified from a non-state source. Text – The powers not delegated to the United States by the Constitution.Printz iii. Congress CANNOT override States 11th Immunity under the Commerce Clause power. but not prospective injunctive relief. Sec. 11th does NOT bar injunctive relief that requires the State to spend $$$ in order to comply. Congress can override a State’s 11th Amendment immunity pursuant to its powers under the 14th Amendment. – Regents Univ. 11th does NOT preclude the SC from reviewing decisions coming from State courts in cases which the State is a party and dollars are at stake. Gregory v. 5. Or any other Article I power. Since there is no targeting.3. . States sued under their own laws – that is up to the State ix. But it must make clear it intent to do so. or to the people. so long as the expenditure is incidental to the primary injunctive relief – Milliken 4. c. Does the 11th Amendment apply to Municipalities? 1. 11th BARS federal court from ordering injunctive relief against the State when the basis of the order is solely state law – Halderman 5. The law at issue is labor and employment and is not targeting the states. Congress cannot “commandeer” states to pass laws – New York 3. Cal v. What Relief if Possible? 1. Congress will exempt the States in the laws when they think it necessary 2. Challenges to state taxes under the dormant commerce clause where state waived immunity.

The fact that Congress has the power means the court has to protect the power even when Congress has not yet acted. Commerce Power is exclusive a. e. Katt . Congress may however attach conditions to federal spending or preempt state regulation altogether under the Commerce Power. If State law impedes the federal objective – if it serves as an obstacle Frustration of Federal Purpose / Need for National Unity 2. New York v. v. If YES . Printz v. United States – 1. Express in Federal Statute – a. Dual sovereignty ii. ii. TEST 1 . a. a. 1.Does the State Law Discriminate Against Interstate Commerce on its Face? 1. iii. Article VI 1. savings clause) Presumption against Preemption? “Savings Clause” Field Preemption – Scheme of federal law is so pervasive as to make a reasonable inference that Congress left no room for the State to supplement Conflict between state and federal law i. NEGATIVE/DORMANT COMMERCE CLAUSE – Two Tier Approach i. What do you do when Congress hasn’t spoken? 2. This would allow Feds to implement and pay nothing – no accountability c. Congress passed gun law directing state police to regulate it. Dissent – This is appropriate in a National Emergency d. b. Implied – c. Compliance with both is impossible ii.Per Se Invalid . But. but its Intent. if the state impacts Commerce too much.iv. United States – 1. Congress regulates people not States iii. Look to the intent of Congress (clarity of language. Types: The question is typically not Congressional power. Structure of the Constitution: i. Overview – 1. 10th prevents Congress from compelling states to pass laws. The court found that Congress cannot compel state and local officials to enforce federal law. but the states have. IMPLIED PREEMPTION a. c. Constitutional Basis – Supremacy Clause.State judges must apply federal law though when required due to the Supremacy Clause b. Testa v. States have general police powers. b. There is no historical practice of this i. PREEMPTION i. it can be unconstitutional. When does Federal Law preclude the application of State Law? ii.

The tests may NOT apply if the State is discriminating against interstate commerce in the State’s capacity as a market participant (rather than regulator). States posses the concurrent power to regulate commerce.” 2. State activity may be unconstitutional even when Congress has not exercised its powers iv. not the extent of discrimination (a few cents difference in prices qualifies). and its effects are only incidental on interstate commerce. If the State is enaged in commerce. NJ law prohibits anyone from bringing into NJ solid or liquid waste that originated or was collected outside the state. Text – The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. b. Not-applicable to corporations or aliens – they cannot sue for violations iii. State legislation here will RARELY be upheld What is Discrimination? a. New Jersey – a. Ogden – a. Ex: Choosing to sell state-produced cement only to State residents – Reeves Inc. it will be upheld unless the burden imposed in interstate commerce is clearly excessive. Purpose and Scope 1. Relationship to Dormant Commerce Clause . Apply the Pike Balancing Test – a. PRIVILEGES AND IMMUNITIES – Article IV. a.a. f. Compare the burden imposed on interstate commerce with the local benefits. 2 i. Differential treatment of in-state and out-of-state economic interests that benefits the instate and burdens the other. Non-Discrimination Provision – Based on State Residency a. 2. There is no basis to distinguish between waste sources b/c the environmental impact will be the same v.” ii. The law is Unconstitutional only if the burdens are clearly excessive. Applies when non-residents are discriminated 2. b. Sec. c. Philadelphia v. Market Participant Exception – 1. iii. b. The Key is whether it exists.Does the State Law regulate even-handedly with only incidental effects on Interstate Commerce? (Facially Neutral) 1. Gibbons v. Cases Deemed Unconstitutional 1. TEST 2 . Apply strictest scrutiny and uphold only if state has chosen least onerous means to address legitimate local purpose. Court Preempted – It is discriminatory on its face b/c it discriminates against out-of-state sources. “Where the statute regulates evenhandedly t effectuate a legitimate local public interest. b.

Earning a Living If so. Higher university tuition for non-residents ii. g. 14th Amendment Due Process Clause applies the Bill of Rights to the States ii. even if neutral on its face. Relationship to 14th Amendment Privileges and Immunities Clause 1. Overlaps – a law might violate both Differences : a. Is the Private Actor performing a government function OR 1. STATE TERM LIMITS i. 14th – Protects Federal citizenship a.Two Step Approach: 1. U. the State may discriminate i. TEST – One of Two Requirements: i. access to federal courts Also includes right of interstate travel There may be overlap between the two and Dormant Commerce. DC applies to corporations/aliens c. Hunting 2. Thornton – 1. Doing business. Right to vote in federal elections.1. PI – only implicated by discrimination whereas DC also is implicated by laws that burden interstate commerce. b. 2. a. use navigable waters. Not Federal Government iii. PI has no Market Participant Exception iv. If so.S. b. Civil Rights Statutes 1. Conspiracy – private parties who conspire with state actors may engage in state action 2. Private entities are NOT State Actors and therefore the 14th Cannot apply. Term Limits v. Historical/Exclusive power of the State 3. INDIVIDUAL RIGHTS – Bill of Rights and 14th Amendment Due Process/Equal Protection I. STATE ACTION a. b. Employment. 14th is the primary restraint on States impeding individual rights. Constitutional Rights/Bill of Rights ii. c. (a) is there a substantial reason for the difference in treatment and (b) does the discrimination bear a substantial relationship to the State’s objective? a. States cannot add to the Constitutional requirements for members of Congress set forth in Article I by imposing term limits on their own Senators/Representatives. Enacted in 1883 – Made racial discrimination in public accommodations (private entities . 14th Amendment Requirement – Participation of State Actors with Private Citizens i. Protected Privileges and Immunities: i. Direct involvement of State Actor . unlawful. ANALYSIS . Is the activity at issue a protected privilege? a. Court justified this on the Commerce Power though.

a. Having elections and nominating candidates is part of the government. No State Action – Providing power isn’t a traditional/exclusive State Action. Custom / usage of using state criminal trespass statute to refuse service to minorities and conspiracy between state and private actors is State Action. iv. d. CASES – Encouragement by the State i. What happens to the park since it is in violation? Park goes back to senator’s heirs and the court enforced this. Adams – 1. they were part and parcel of the Democratic party. she refused to leave and she was arrested for trespass. White neighborhood has a covenant that no blacks can live there. Adickes v. Abney – 1. Evans v. SH Kress – 1. A heavily regulated private utility with a state certificate to sell electricity. – 1. Newton – 1.ii. Kraemer – 1. State court’s ruling here was NOT State action. She was warned. The state is not promoting or encouraging the effect . Terry v. Court held the town was de facto government a. Evans v. Having and running a town is a governmental function iii. Jackson v. terminated service petitioner for nonpayment. v. CASES – Performing a Government Function i. Petitioner claimed that termination without adequate notice deprived her property without due process. Metropolitan Edison Co. The Jaybird Democratic Association (all white) excluded blacks from pre-primary elections. ii. They were not merely a private club. Senator leaves property for park to be used by Whites only. Symbiotic Relationship / Joint Enterprise c. Jehovah’s Witness sought to distribute literature in a privately owned town contrary to the town’s wishes. a. There may be neutral rules that have an undesired effect. Black people bought a home and neighbors sued. Shelly v. State courts that aid private parties to perform that function implicated prescribed conduct. Alabama – 1. (Prior Case) Park is open only to whites. This is all private – No state Action. Marsh v. Court Cannot Enforce the Covenant because that is state action and enforcement would violate Equal Protection ii. a. Court held the park to be a governmental function b/c it is municipal in nature. Sufficiently involved with or encouraged by the State so as to be held to the State’s Constitutional obligations? 1.

iii. Reitman v. Mulkey – 1. CA Constitutional amendment prohibited any state law restricting the right of a homeowner to sell their property to any person they wish. IF the reason is to encourage or facilitate discrimination then it will be State Action. a. Here, private discrimination was encouraged iv. Moose Lodge v. Irvis – 1. Black man was refused service at the lodge. He claims that since PA issued the lodge its liquor license, the refusal to serve him was State Action a. Court: Licenses alone do not make clubs state actors e. Debtor/Creditor Self-Help Remedies i. Purely self-help remedies, even though expressly authorized by State law, are NOT State Action when carried out by private parties. ii. Self-help remedies with State Actors present or actively assisting is Always State Action. 1. Flagg Bros. v. Brooks – a. P was evicted and city had her stuff stored by D. D demanded her account be brought up to date or he would sell P’s stuff. P sued to enjoin the sale. The State has a law that authorizes the sale by a private company. P argues the State has delegated its function to a private party. i. NOT STATE ACTION – the law has long allowed private resolution. The state acquiesced but did not encourage or compel. ii. State law authorization is NOT enough for State Action

f. Contracting Out / Delegating State Duties – May constitute State Action i. West v. Adkins – Private doctor treats State prison inmates under contract with prison to provide medical services is a State Actor ii. Black v. Indiana Area School District – No State Action when schools bus driver employed by private company that contracted with public schools, molested children who rode the bus. iii. Yeager v. City of MacGregor – No State Action for volunteer fire department whose building and equipment are furnished by the State because firefighting is NOT an exclusive public function. g. Federal Government / Foreign States / Tribes – Generally not State action unless such officials conspire with State Actors. h. Private Schools i. KU is a State Actor, Harvard is NOT.

ii. Consider funding, Extent of regulation controlling decision-making, Whether activity is an exclusive prerogative of the government, symbiotic relationship. 1. Rendell-Baker v. Kohn – a. Private school specializes with students who suck at school. Public funds have accounted for 90% of the operating budget and the school must also comply with various state regulations. Petitioners are teachers who were discharged from the school for supporting student criticisms against school policies. Was the firing State Action? i. NOT STATE ACTION – Funding is important but not determinative, Regulation is not determinative, educating kids is not an exclusive prerogative of the government and the relationship is no different than with a governmental contractor. i. Private Associations / Quasi Public Organizations: i. San Francisco Arts v. US Olympic Comm. – 1. Court upheld Congressional grant of the right to prohibit certain uses of the word “Olympic” and enjoined petitioner from calling its athletic competitions the “Gay Olympic Games”. P claimed the enforcement violated equal protection. a. USOC is NOT a State Actor but an independent organization despite US President being the honorary President. ii. NCAA v. Tarkanian – 1. NCAA imposed sanctions on UNLV and recommends suspension of coach. UNLV suspends. The NCAA is a Private Organization but many of its member schools are public universities. Coach says he was denied Due Process. a. NOT STATE ACTION – The NCAA is not a state actor because (1) large number of private school members, (2) schools are not required to participate, (3) no delegation to the NCAA of authority to discipline member school employees. iii. Brentwood Academy v. Tennessee Secondary School Athletics – 1. TSSA regulates interscholastic sports among public and private TN high schools. Its rules (approved by the state) governed student eligibility and academic standards. It penalized Brentwood for violating a rule. TSSA says it is a private corp., not a state actor a. STATE ACTION – Entwinement i. Most of the TSSA Board members were public school officials and most of the members were public schools.


Legally Related Activities/Actions i. Public Defenders 1. Polk County v. Dodson –

a. Public defender sued by his client as a State Actor b/c the State pays his salary. b. NOT STATE ACTION – His job is to be adverse to the State and exercises independent judgment ii. Excluding Jurors – 1. Edmonson v. Leesville Concrete Co – a. Two private parties strike jurors in a civil case on the basis of race and juror claimed it violated his Equal Protection. Is this state action or a private choice? b. STATE ACTION – Occurs when the judge excuses the juror. The private party invoked the authority of the court k. When is the State Responsible for Private Actions? i. DeShaney v. Winnebago County Dept. of Social Services – 1. Father denied abusing his child to the State Social Services. The child was repeatedly admitted to the hospital and doctors suspected abuse – Soc. Serv. Didn’t have enough evidence. Later the kid fell into coma, Dad was convicted of abuse. Mom sues the State Agency 2. NO STATE ACTION – State never took custody or created the danger. 14th is not designed to protect citizens from each other, but from the State. State has no 14th duty to protect citizens from private violence. ii. Exception – 1. Special Relationship: If the State has a special relationship with the person there may be an obligation (prisoner). When the government is responsible for one’s safety. 2. Created Danger – If the Government creates a situation where private citizens get hurt there is a duty to protect. (Police Activity).


Off Duty Police Officers – i. May engage in State Action but not automatically. Important factors: 1. Policy requiring officers to be on duty at all times 2. Policy requiring officers to carry weapons at all times 3. Display of official authority (uniform, weapon, badge) 4. Purported exercise of authority – arrest or search ii. Problems arise when off-duty officer is involved in personal altercation. 1. State Action where off-duty officer assaulter ex-wife’s lover with service weapon and ran victim out of town in a squad car.

Incorporation 1. 14th Amendment is created with Due Process and Equal Protection a. 2. Due Process includes everything in the Bill of Rights. State Action Requirement ii.II. DUE PROCESS a. b. they are part of Due Process and the Bill of Rights should apply to the States. Some rights are so fundamental. INTRODUCTION i. Except: . 1833 – Bill of Rights did not apply to the States.

7th Amendment Civil Jury Trial Right ii. Williams . Entitlement to Welfare . Identifying fundamental rights not enumerated. or PROPERTY interest at issue? 2. b. 2. PROCEDURAL DUE PROCESS i. Is there a LIFE. Continued Employment – NO Protected Interest for continued employment for a nontenured professor with only a year-to-year contract. What are Protected Property (State law recognized) and Liberty Interests? 1. If so. fundamentally unfair government action b. Driver’s License – State cannot revoke or suspend driver’s license once issued without satisfying due process requirements. Reputation – Itself alone is not a protected liberty interest 6. were the procedures followed adequate? ii. Potential Legal Action – It is a “species of property” and is protected by the 14th iii. Protection against irrational. but implied in the Constitution. If so. did the Government act with the requisite state of mind? 3. There must be a life. Procedural Due Process v. Public Education – Child has a property/liberty interest here such that suspension of 10 days must be preceded by compliance with due process requirements 4. 5.i. or property interest b. 5th Amendment Grand Jury Right iii.Intentional Misconduct a. arbitrary. Three Questions: 1. TRIGGER . Culpability Requirement – State of Mind on the Part of the State Official 1. 3. Procedural – Procedural regularity and adequacy. LIBERTY. Due Process is not implicated by Negligent conduct – Daniels v. a.Protected property interest requiring compliance with due process requirements prior to termination. Must be intentional misconduct – negligence is NOT enough 2. liberty. Substantive – a. Substantive Due Process 1.

May be okay to use hearsay or use presumption in favor of government Three Part Balancing Test: Matthews v. Wright. ii. There is no Constitutional right to an appeal. not one with a financial or other stake in the outcome. Streater c. Lassiter v. State must provide impartial decision-maker. Little v. Dept. What Process is Due? 1. Ingraham v. d. b. Ohio. Parent is not automatically entitled to counsel in parental termination proceeding.Court leaves open the result of whether a state of mind of more than negligence but less than intent would suffice.2. even n criminal cases . NOTICE – a. How elaborate do the procedures need to be? i. Recklessness . and the probable value of any additional or substitute procedures iii. No hearing required if completely impractical or if the decision is too subjective to provide a meaningful hearing. Examples: a. Must reasonably apprise parties of their interests and rights. b. Need not be a full trial but something in a meaningful manner at a meaningful time. The nature of the private interest affected c. iv. Tumey v. Eldridge i. 3. 2. The Government’s interest and the costs of additional or substitute procedures. Due Process requires State to pay for simple paternity test when putative father is indigent and test will be virtually conclusive of claim. General Rule: Pre-Deprivation Notice – Government must tell you beforehand what it intends to do. Board of Curators v. OPPORTUNITY TO BE HEARD – a. The risk of an erroneous deprivation through the procedures utilized. e. of Social Services. Horowitz b. It depends on what is at stake.

regulation of prices. Textual Support – 1. 5th Amendment – Takings Clause (Due Process) 3. Standard: Fair. Bull a. not the States. The Lochner Era – Height of Substantive Due Process 1. 2. Minimum wage laws. They apply only to the privileges of US Citizenship. SUBSTANTIVE DUE PROCESS  ECONOMIC RIGHTS i. Rights secured by treaties ii. New York - . Access to seaports 4. Art. There are rights that exist outside the Constitution. i. Mayor and City of Baltimore – Court holds the Bill of Rights (issue over the takings clause) applies only to the federal government. Slaughter House Cases – The Court rejects the Privileges and Immunities Clause as a significant limitation on State power. Petition government for redress 3. Privileges and Immunities does NOT apply i. a. Right to vote in federal election 2. The 14th Privileges and Immunities Clause was considered the most important provision by proponents. History has not borne out that view. Some laws of the States are Unconstitutional even though they do not violate the express provisions of the Constitution. Habeus Corpus 5. and hours of labor. the court struck down 159 state statutes without giving deference to the legislative policy judgments. Clader v. b. I.c. iii. Constitutional limits on State’s ability to regulate economic rights. Barron v. Non-Enumerated Rights 1. Privileges and Immunities a. Federal Citizenship Privileges include: 1. Use navigable waters 6. Sec 10 – Contracts Clause – States cannot impair the obligation of K 2. Dissent – Unless it is expressly prohibited there is nothing judiciary can do. Lochner v. there were virtually no textual. Result: Before the ratification of the 14th. Reasonable or Appropriate a. 2. ii. 14th Amendment – Due Process. As a result of this decision.

Reasonable Relation to Legislative Purpose – A State is free to adopt whatever economic policies to promote the general welfare and Courts are without the authority to override those policies so long as the laws have a reasonable relation to a proper legislative purpose. iv. government can regulate. 1. Nebbia v. New York – i. b. ii. fair or appropriate. iii. arbitrary or capricious. The Court held the law Unconstitutional b/c it infringed on the freedom to contract and found the law not to be reasonable. reasonableness and appropriateness. Court should look to liberty interest in tradition. Abandoning Lochner: The Rational Basis Test 1. a. c. NY law established a Milk Control Board which could fix milk prices. Court should intervene only if no reasonable person could see validity of the law. NY statute forbade more than 60 hours /week to be worked in a bakery. Parrish – . Dissent (Holmes) – States have police powers to use regardless of whether or not they are wise b/c there is a difference between what is Constitutional and what is wise/good. The guarantee of Due Process demands only that the laws NOT be unreasonable. not its belief in good/bad. West Coast Hotel v. There is a limit to State police power and the Courts will decide where the limit is by judging fairness. 2. If the business implicates public interest. If there is a reasonable purpose it is Constitutional. P sold milk for less than permitted and sued arguing the law is unconstitutional. ii. But such rights are not absolute. 3.i. Dissent (Harlan) – Reasonable minds could differ. 2. It is not the choice of the court to decide if the law is good or bad. not public concerns. Study’s suggested the temps and flour led to shorter life expectancy. The court will be deferential so long as there is a rational basis to pass the law. Freedom to K is not an absolute right and has been regulated in the past. iv. Normally property and contract matters are private. Interest in ensuring a local supply of milk and protecting local dairy farmers. Court no longer ignores the legislature (Lochner). The state can regulate for the public interest.

000 car he painted it decreasing its value by 10%. Court will generally sustain the law if any rational basis for the law can be articulated. Individual Rights – More Rigorous Review 4. Three Guideposts for Punitive Damages: i. The TC instructed the jury to award to punish misconduct and deter misconduct. What other penalties could be imposed 2. Sustained the state minimum wage for women. Carolene Products . The Constitution does not speak of freedom of contract. Gore – Court invalidated a state court punitive damages award as “grossly excessive”. BMW of North America v. Upheld statute prohibiting the shipment of “filled milk” in interstate commerce. Two Types of Review: i. What is the ratio of punitive to compensatory iii.(Most celebrated footnote in Con law) i. d. v. What if legislative Purpose is Unknown or Unclear? a. United States v. Liberty is not absolute or uncontrollable. a. Campbell – Invalidated punitive award of $145 million when compensatory damages were $1 million. How reprehensible is the D’s conduct? ii. Due Process prohibits imposing grossly excessive punishments.000 and punitive of $79. e. 3. Few awards exceeding a single digit ratio between punitive and compensatory will satisfy due process. State Farm v. Philip Morris v.i.5 million were assessed. . ii. Actual damages were $821. Williams – A heavy smoker died of lung cancer and widow sued cigarette manufacturer. Economic Laws – Very Deferential ii. Statutes are entitled to a presumption of Constitutionality and should be upheld if supported by any rational basis. D was assessed $2 million punitive for failing to tell the owner of a $40. But liberty under the Constitution is subject to the restraints of Due Process. Regulatory legislation affecting ordinary commercial transactions is not unconstitutional unless it si of such character as to preclude that it rests upon a rational basis within the knowledge and experience of the legislators. Limits on State Punitive Damage Awards: 1.

Sec 10 1. Kelo doesn’t want to sell. Broad societal interests? 3. If Severe. This attracts local government b/c it will stimulate economy. It’s about things the states were doing about Revolutionary war debt. Dead letter clause – a. 4. even if it doesn’t bother the landowner much. Kelo v.a. Government wants to revitalize an area and hire a development group and it purchased property from residents. Duration of the law – permanent/temporary 6. Government cannot take your property unless it is taken for public use and you receive just compensation – The 5th Amendment. ii. Strong needs. New London – i. . Review is Deferential 1. a. NOT APPLICABLE to the Federal Government. such as emergency? 2. 3. Punitive award based on harm to others who are not parties is a taking without due process. This is not something the court is eager to invoke and its difficult to succeed. Harmed caused to others would be relevant to reprehensibility consideration. If minimal the law is constitutional ii. Whether the facility is public is not an issue for the court. P’s don’t think this is a public use b/c they are bringing in a private company. certainly there are public benefits. Most states had their own monetary systems and many were not trustworthy. 1. vii. Conditions imposed reasonable? 5. vi. Relief appropriately tailored? 4. No state shall make any law impairing the obligation of Contracts. Contracts Clause – Art. TEST – Is the impairment minimal or severe? i. Applies to any specific interest in physical or intellectual property. It is a limit in State’s ability to regulate economic interests. Taking Property without Just Compensation – “Takings Clause” 1. 2. Any physical invasion is a taking. Area already subject to state regulation? 5. then apply the Allied-Blaisdell Criteria 1. Phizer will bring in a $300 million facility. 2.

Court relies on Due Process to protect privacy interests. When you articulate liberty interests. It is 14th only. since then government didn’t regulate it and it was permissive. Right to die OR right to refuse life saving medication / physician assisted suicide. Connecticut – a. ii. 4th. and 9th Amendments. Concurring (White) – We look to “Liberty” in the Due Process Clause. P is director of Planned Parenthood. History of Abortion Regulation a. 5th. c. . Together these protect the marital relationship. i. Analysis of Liberty Interests – 1. Creature of late 17th century. ABORTION CASES: 1. i. Right to Privacy is a Natural Law – older than the Bill of Rights. Harlan and White together create the modern view. No penumbra’s or 9th. how specifically do you describe those interests? a. P’s are charged with providing information and instruction to married persons. State law makes it a crime to use drugs to prevent conception and to assist another under the first. Look for the most specific and narrow description and ask if that is deeply rooted in tradition b. iii. It is so deeply rooted in tradition that it violates Due Process. SUBSTANTIVE DUE PROCESS  RIGHT TO PRIVACY i. d.d. b. Zone of Privacy – Penumbras are found in the 1st. Textual Support – There is none. He is aware his view opens up for decisions like Lochner – self-restraint is critical and they must rely on history. Griswold v. 3rd. Law implicates the intimate relation of husband and wife. 1. Concurring (Harlan) – This is a 14th Amendment Due Process case.

Banning abortion is permitted. 3. State may only regulate when compelling interests exist b. Procedure must be approved by hospital staff committee 3. Court need not decide when life begins – question for medicine. Bolton – a. religion. and morality 4. Roe v. Must be performed in a hospital. Health of Mother – 1. State may regulate for the woman’s health/safety. there was no prohibition on abortion. Fetus is not a person – this is consistent with the common law in tort. i. The performing doctor’s opinion must be confirmed by two others . Holding – Constitutional. After 1st Trimester a. If you go back to when the C was adopted. State may regulate to protect potential life c. GA law permitted doctor to perform abortion when based solely upon doctor’s medical judgment that the abortion is necessary.b. Woman’s liberty interest is NOT ABSOLUTE. TX law prohibits abortions unless mom’s life is at risk. 2. The Potential Life 1. NO State Regulation b. Wade – a. i. First Trimester – a. State has an interest in the neo-natal life State’s Interests: i. liberty and property. Viability triggers protection – when potential life can survive outside mother’s womb. Majority tries to show tradition and history. What is the legal status of a fetus? a. Woman’s interests prevail 2. but invalidated the following requirements because they were too significant of intrusions: 1. The 14th Protects persons from deprivation of life. with 2 exceptions: If necessary for health of woman If necessary to save life of woman c. Holding – TX Law is Unconstitutional. Doe v. 3. b. Viability makes State’s interests strong for the potential life b. what is recognized from the past. 2. 2. ii. Third Trimester a. Roe is unmarried and pregnant and is unable to get a legal abortion in TX because her life was not threatened. i.

the state has interest in the mother’s health ii. Liberty extends to marriage. 6. only a right protecting the woman from burdensome interference with her freedom to decide. Abortion is unique because of consequences on others (fetus) 2. Balance changes after fetal viability (more state regulation) 3. Pre-viability – Woman’s interests are paramount but State has an interest 1. Viability i. State can regulate so long as it doesn’t impose an undue burden on the mother’s choice: 1. child rearing and education 1. Wade did not establish an unqualified Constitutional right to an abortion.5. Abortion Funding – a. Woman has a dominant interest BEFORE viability 2. b.” 2. Such burden exists if it “Places a substantial obstacle in the path of the woman seeking an abortion pre-viability. Post-viability – State’s interest in the potential life is HIGH 1. State action must be calculated to inform the woman’s free choice. Casey Essential Holding of Roe is retained / reaffirmed  Viability i. a. but three principles prevail: 1. ii. Maher v. . Undue Burden Standard i. Roe v. Rejection of the trimester framework. Indigent people want abortions and the state will fund everything but abortion. Court said the government can choose NOT to fund elective abortions through Medicaid funds unless they are medically necessary. If the State is regulating post-viability but has not banned abortion – the standard is unknown – the court has not decided this issue. c. contraception. STANDARD .The Undue Burden Analysis Test. Roe – i. not hinder it. Applies Pre-Viability ONLY ii. Throughout. family. Cannot ban abortion ii. Regulation permitted – Court will use Undue Burden Standard 2. Courts obligation is define liberty (includes right to choose but is unique) for all not mandate our own moral code. State can go so far as to ban abortion but there must be an exception for the life/health of the woman 2.

Holding – All are Constitutional except the spousal notice requirement. pierce/crush the skull and then extract the whole fetus through the cervix. Banning Methods Partial Birth Abortions a. (4) Married women must notify spouse.Protect medical community reputation . Here Congress sought to: .Domestic Violence is an obstacle c. (5) Reporting requirements on facilities. PA Abortion law required (1) mom to give informed consent. Court struck down the law b/c there was not a health exception for women and the description of the procedure was too vague and ambiguous – doctors could fear prosecution. a. (3) Minors must gain parental consent – judicial bypass.Protect morality concerns 2. Court adopts the Undue Burden Standard. During First Trimester – Vacuum Method ii. b. Pre-Viability – State may not prohibit any woman from making the decision or impose an undue burden. Other methods can be used. Casey – i. 24 hour Wait – No undue burden b. Spousal Notice – Undue Burden . Gonzales Holding: Constitutional a. Regulations which create a structural mechanism by which the State/Parent may express respect for the . Carhart – i. Congress enacted the Partial Birth Abortion Ban Act (Commerce Power) in response to the intact D&E procedure where doctors will deliver the living fetus through the uterus. ii. After First Trimester – Standard D&E or Intact D&E Gonzales v. State cannot ban abortion pre-viability d. Undue Burden applies to State Regulation. 1. Minors – No burden with judicial bypass d. Reporting Requirements – No undue burden 7.Avoid infanticide . (2) provided with all information 24 hours before. a.iii. 2000 NE case debated the methods for abortions as well. Planned Parenthood of PA v. Procedures: i. 1. Law is specific as to what is prohibited – Requires intent b. (6) Definition of medical emergency – which exempts these requirements.

There are other ways for the state to collect child support Turner v.Limiting Occupancy 1.race discrimination. Court said this violates Due Process b/c it conditions marriage on whether or not you have money. Zablocki v. a. No need to have a health exception if the evidence suggests it is never necessary. RIGHT TO MARRY 1. there really is no rule. East Cleveland – a. Zoning ordinances limiting the number of unrelated persons living in a single family residence. 2. This is Constitutional. . FAMILY LIVING ARRANGEMENTS . and (2) Due Process . Don’t want the exception to swallow the rule. VA banned inter-racial marriage. c. Redhail – i.liberty in choosing who to marry. Law stated a man cannot marry until he pays child-support. Virginia i.potential life are permitted if they are not a substantial obstacle 3. Court has long recognized that freedom of personal choice in matters of family and marriage is one of the liberties protected by Due Process v. Marriage is a special relationship. She sues and court finds in her favor. City has no business defining and regulating blood family living together. Belle Terre v. The health exception could swallow the rule – if health is too broad. iv. Court found violations of (1) Equal Protection . Moore v. Health Exception for the Woman? a. Central Issue – There is something fundamental about the right to marry but there is a tradition on regulating types of marriage. BUT their judgment will always be just what they are willing to do. Boraas – a. Cousins living with common grandmother. Roe required exception for life and health b. Safley – b. Loving v. There is no deeply rooted tradition when it is outside the context of blood family. c. This does not restrict someone’s choice. Who determines whether the exception applies? The doctor performing the procedure.

Family must prove what she would have wanted. Holding – State law is too broad. Gerald D. vii. must be a premise of fit parent. . Granville – i. vi. Walcott – i. Presumption – Competent person has a liberty interest in refusing life savings treatment a.CA law is traditional and most states have similar approach. Does Mom have a liberty interest in deciding what is best for her kids? 1. only mom’s consent is required for the kid’s adoption. Cruzan: Family wanted to stop feeding lady in veggie state. Michael sues saying the law is Unconstitutional ii. ii. She lives with Carol and Gerald. Gerald is listed as father on birth certificate.not here. Adoption a. Holding – Adoption is in the best interest of the child. PARENTAL RIGHTS 1. if natural father has not legitimized his offspring. Quilloin v. – i. She is not competent. It recognizes a family unit already in existence – desired result of all but natural father. Court held the right to marry is still fundamental in prison. Mom wants to decide the visitation rights. RIGHT TO DIE / ASSISTED SUICIDE 1. A fit parent is able to decide what is in the child’s best interest.i. Dad here attempted to block the adoption of his illegitimate son. Michael H. Court was wary of state having too much control whether inmates can marry. Holding – Constitutional . v. Even though the general rule is deference to prison administrators . Mom had an affair with Michael and someone else. 2. State regulation permitted inmates to marry only upon permission of the prison superintendant. b. CA law says a child born into marriage is presumed to be the child of the relationship. a. Grandparent visitation dispute. Troxel v. resided with Michael and Gerald. Basic Presumption – Relationship between the parent and child is constitutionally protected. Michael claims to be the father of Victoria. Under GA law. State law allows “any person” to petition for visitation and the court to grant when in the best interest of the child.

Deeply rooted history prohibiting assisted suicide 2. d. Holding – Physician Assisted Suicide is NOT a fundamental right 1. viii. Glucksberg – i. Casey (Abortion case) . Related to compelling state interests: a. expression an certain intimate it a fundamental right deeply rooted in tradition and history? i. Fundamental Right to Sodomy? a. Four doctors declared they would assist terminally ill patients sought declaration that the law is unconstitutional. Right to assisted suicide v. SEXUAL CONDUCT 1. Vacco v. Equal Protection is argued for permitting one and not the other ii. ii. Washington v. Preservation of human life b. Presumption – Liberty presumes an autonomy of self that includes freedom of thought. belief. Bowers v. Integrity/ethics of medical profession d. Regulation of liberty interest must be rationally related to legitimate government interests c. Quill – i. Serious public-health problem (depression/mental disorders) c.At the heart of liberty is the right to define one’s own existence of meaning 2. Whether the liberty is protected . Hardwick – . Holding – They are not the same thing and neither law treats anyone differently. right to die b. 2. There must be a careful description of what the liberty interest is 1. Party argued that a person’s permission to refuse life saving medical treatment in NY is essentially the same thing as physician assisted suicide. History and Tradition Analysis – Two Parts a. There is a difference between causation and intent. Protecting vulnerable groups e.b. State law bans assisted suicide. Voluntary and Involuntary euthanasia.

Are people free as adults to exercise a sexual liberty? ii. Police responded to a weapons disturbance. . entered home and saw two men having anal sex.i. ix. the law will be upheld. Holding – Unconstitutional Law 1. Rational Basis – Standard for any liberty interest challenge. not mandate its moral code. It is a factor. History and Tradition: 1. No deeply rooted tradition or history b. 2. So long as there is a rational basis for Congress to pass the law – a rational relation to governmental interest. There is no connection between family. Hardwick was charged with committing sodomy against another man. History and Tradition 2. TX law punishes deviate sexual intercourse. Lawrence v. Holding – Conduct here is NOT Protected – No fundamental right 1. iv.STANDARD OF REVIEW 1. procreation and a homosexual activity. Gay laws are more modern – hardly deeply rooted. Overrule Bowers – Courts obligation is to define liberty. Can GA make this a crime? ii. marriage. There is no tradition of laws against gays – sodomy laws existed against all people. LIBERTY INTERSTS . but not conclusive. 2. Morality is not a rational basis for the TX Law iii. Court UPHELD a Georgia statute which criminalized sodomy. Texas – i. Both men were arrested.


AND 2. Voting b. but States must treat people equally 2. Said to be “Fatal in Fact” because rarely do laws subjected to it withstand the Constitutional challenge. AND 2. Intermediate Scrutiny 1. Strict Scrutiny 1. Interstate Travel c. Alienage/Nationality – For non-political functions and nonimmigration / naturalization matters c. Gender? 2. Fundamental Rights a. Discriminatory Effect is not sufficient for a Constitutional claim. Gender? 2. b. Suspect Classifications a. Rational Basis Review (Deferential) 1.III. Discriminatory Intent for Constitutional Violation. Intermediate Scrutiny 1. Must show a compelling governmental interest. Legitimate governmental interest. Religion / Speech ii. Compliments Due Process – Not substantive however: 1. Illegitimacy . Maybe the State can act. ii. It may serve as evidence of intent. a. Law is rationally related to achieving that interest a. Levels of Review: i. but its application to groups of people is challenged b. Wealth – if requirement impacts fundamental rights (voting/marriage) 3. Race b. Law is narrowly tailored to serve the interest a. Requirements: i. Categories i. State of Mind 1. AND 2. iii. Law substantially furthers and is closely related to that interest iii. EQUAL PROTECTION – States shall not deprive Equal Protection of the laws a. It doesn’t tell states what to do. Rarely results in the law being Unconstitutional Is there a heightened rational basis standard? c. Strict Scrutiny 1. State Action ii. Must show an important governmental interest.

Rational Basis Review (Deferential) 1. Alienage/Nationality . Traffic law regulates advertisements on trucks. iii. real and related to the law being challenged i. P’s have only been around for 2 years and only 2 people have been around for 8. i. This is not Due Process because there is a rational basis that such a law regulates government interest in traffic safety. a. Age 3. Ban on street food vendors – you cannot be a vendor unless you have worked there for 8 years. Railway Express Agency v. a. No facial issue of gender or race iii. . Distinctions must be rational. Court does not need to eradicate the problem (complete ban) c. New Orleans v. RATIONAL BASIS REVIEW i. a. New York – 1. Police Power Regulations Generally (economic / social) 2. Disability 4. The purpose of the law is to clean-up the area.4. Very Deferential ii. Challenge: Grandfather Clause is Equal Protection Violation. Sexual Orientation? iii. Court – Those grandfathered in are part of the French Quarter i.Immigration/Naturalization when Congress regulates 5. Dukes – 1. b. Wealth – if no impact on a fundamental right (bankruptcy fee) d. only rational. Court is very deferential ii. Beazer – 1. P’s here argued this is not rational b/c some of these people would be fabulous employees. Someone who sold ad space to another sues. No need to eradicate the problem. It is rational for the court to impose ban – safety risk ii. Law need not be perfect. NY City Transit Authority v. Court – No Violation i. Applies to everyone equally ii. The law is broad and evenhanded. You can advertise about your own business but not others. Not arbitrary / irrational. Equal Protection challenge based on who can advertise – are one’s own ads less distracting? Court says no but the number of ads will be reduced. NY law requires State not to hire anyone as employee if they use methodone (replacement for heroin addicts).

e. b. Federal Law . iv. 13. Strauder v. Dissent – There is no safety risk – concerned about race/poverty pretext b/c of the type of people on methodone. Dred Scott v. then you could continue to receive them c. This led to war and Constitutional Amendments. HE sues in Federal court under diversity citizenship. Congress’ actual intent is irrelevant. 15 2. you could continue to receive them b. MO slave escapes to the north. When there are plausible reasons for what Gov’t did. Court agreed. cannot claim rights and privileges. ii. Many of the workers were getting benefits and social security. If you were retired and got both. Slaves must be returned to the south iii. WV cannot legally ban people from serving . Classifications: a. 2. Challenge – The 1974 date is arbitrary and irrational 4. STRICT SCRUTINY – Court is very suspicious of violation i. Scott argues that he is a free man having escaped to the north. 3/5 vote requirement ii. Congress had the power to stop all benefits. Holding – Upheld the Federal Law a. Government feared there was a windfall from both sources. If you were working as of 1974 or had a connection as of then. Congress can ban importation of slaves b. then you could stay qualified 3. West Virginia – WV did not allow blacks to serve on a jury. D complains that this is not equal protection. 1. History – Constitution had recognized slavery i. Court rationalized the decision by asserting the MO Compromise was Unconstitutional – It effectively took property (slaves) without just compensation. RACE 1. Fritz – 1. If you were about to retire. United States RR Retirement v.if you were not active in the RR as of 1974 you could not receive its retirement benefits. Sandford – i. They were trying to make it financially sound.b. MO Compromise of 1820 established the free states of the north. 2. 14. Therefore they certainly have the power to limit who gets the benefits. Holding – Scott is NOT a citizen. Court can speculate on its own to find a rational basis.

Ferguson – a. curriculum and salaries 2. Intangibles matter . FDR gave orders to protect against sabotage and espionage. Dissent (Harlan) – Constitution is Color Blind 4. Law is narrowly tailored 1. Exclusion from a threatened area has a definite and close relationship to the prevention of sabotage/espionage. Kansas case suggested that facilities were equal – but is segregation Constitutional? i. ii. 1. Social prejudices cannot be overcome by legislation ii. property owners 3. Education is crucial in modern society and an important role of government to provide. Court adopts Strict Scrutiny for Racial Group Issue – Suspect Class i.Constitutional i. Legislation is powerless to eradicate racial instincts iii. Subjected all people from Japan to a curfew and into evacuation centers. P was 7/8 white and was arrested for refusing to vacate a seat for whites only. He was convicted of violating the Order. Based upon war powers – deference to military decision c. BUT there can be qualifications for the jury: Males. Plessy v. More than buildings. iv. Results were inconclusive. Equality in tangibles is not enough ii. b. Brown v. Holding – “Separate is inherently Unequal” . P is US citizen of Japanese consent. Parties argued over the history of the 14th – what the drafters though about segregation in schools. citizens. b. Board of Education – a. b. 14th was not meant to change segregation practices – If one race be inferior to another socially.Unconstitutional i. He claims violation of Equal Protection b/c is targets only the Japanese. No violation of the 13th – Not considered slavery or a badge of it. c. Korematsu v. United States a. Holding – Separate but Equal i. Issue is over school desegregation. (Not yet to the modern application) Holding . 1890 Louisiana law required train passengers to have equal but separate accommodations for white and colored people.on jury based upon race. age qualifications. 5. the Constitution cannot put them on the same plane. educated people.

Admit students with all deliberate speed 6. Johnson v. i. because No State shall… The answer is NO. There is a substantive due process issue – freedom of marriage 8. . Equal Protection applies to the Federal Government. Purpose of the law was to prevent corruption of the blood and preserve racial integrity – Endorsement of White Supremacy. Virginia – a. Deprives them of benefit they would receive with whites c. b. c. Remedy – District courts should decide because every district is unique and they are proximate to the issue. The question is whether Congress is subject to the 14th. VA offered to suspend charges if they left the state forever. Race is never a rational basis for defining a crime. California a. CA prison system assigns new prisoners to blocks by race. 7. P married in DC and were convicted upon their return to VA. There is no valid legislative purpose ii. Dissent – There is a rational basis and there should be deference to prison administrators. VA argues no Equal Protection because penalty applies to blacks and whites equally. Therefore the 5th has an equal protection component. Court said this violates equal protection and was purely a race distinction. Could it be Constitutional for Congress to do this? b. Guideposts: i. 3. The purpose was to reduce fighting and violence. Race classifications cannot define a crime. The 5th Amendment has a due Process clause too. Sharpe – a. Loving v. State law bans inter-racial marriage. iii. Law only applied to whites marrying blacks (not Asians/Hispanics). c. b. Affects the motivation of the child to learn. Congress required segregated schools in DC.1. Sense of inferiority of status in community 2. Must make a prompt and reasonable effort ii. Bolling v.

Four time as many blacks as whites fail – test had a significant impact on blacks. acted with discriminatory intent. The Dept. It is reasonable to require officers to read. Practical denial of Equal Protection 2. Rational Basis for the law – YES. however had systematically sought to enroll black officers. To violate Equal Protection  Discriminatory Intent a. Disparate impact /effect alone is insufficient. P is Chinese and brings suit b/c 240 Chinese businesses have not been granted licenses but whites had despite owning wooden facilities. Applied with an evil eye and unequal hand 3. 2. i. What about when the law makes no facial distinctions but the law is applied in a discriminate manner or impacts people of a certain race over another? 2. Holding – Unconstitutional 1. required prospective officers take a test to become a police officer. i. It is relevant as evidence of possible intent but not conclusive. There is no allegation the dept. Hopkins – a. TO get a license you must pass a Board. Davis – a. and communicate. On its fact it is not discriminatory. write. Intentional Discrimination – May exist despite facially neutral law. Holding – No Equal Protection Violation 1. Yick Wo v. . REQUISITE STATE OF MIND 1. They were concerned about fires. Washington v. SF passed ordinance banning laundry in wooden buildings.ii. DC police dept.

P is a white student who was rejected even though some applicants were admitted under affirmative action that had a significantly lower GPA and test score.Taxes. Set numbers and racial balancing are inappropriate iii.. Entity need not use other methods before using race. i. Personnel Administrator v. Narrow tailoring: i. There was a legitimate reason to have the preference. Med School reserves 16 of its 100 spots for members of minority groups. b. Law was not passed in spite of women  NO Intent iii. You can look to race to cure historical exclusion by race or diversity in education . etc would all be violations otherwise. Court is more deferential to law schools/military than elementary schools c. welfare. Individualized consideration of every file – Not Quotas ii. 4. Justifying past discrimination by the entity engaged ii. Justifications / Government Interests: i. Holding – No Equal Protection Violation 1. If schools are already diverse. Argument was gender discrimination – the effect will occur. this argument is gone 2. Level of Scrutiny – Strict when race is a factor b. i. 2. Achieving diversity in schools 1. Upheld Mass law giving hiring preference for state jobs to veterans. Feeney – a. Step 1 – Identify Compelling Interest Step 2 – Is the procedure narrowly tailored to achieve that interest 3. General Principles – a. AFFIRMATIVE ACTION 1. licensing. Holding – Reserving spots based on race is Unconstitutional 1. Analysis – a. Bakke – a. This group is almost entirely men. Grutter 2. Regents of University of CA v.

i. They looked at the racial balance of the schools and the race of the child. Rule . it doesn’t violate the Constitution so long as it is narrowly tailored to that interest. Compelling Interest – Diversity in the classroom 3. Michigan law admissions are challenged by a white resident who was denied admission. It is too automatic – more careful consideration of each file is required. – a. It is a number which encourages underrepresented minorities to participate. i. Diversity as Compelling Interest? a.2. P was a white resident denied admission to University of Michigan. Race can be a factor so long as everyone is evaluated individually  Narrowly tailored 4. Court Upheld Procedure 1. . Point system has the effect of making race a decisive factor. Gratz v. But administrators could force people to go elsewhere to balance diversity. Holding – Unconstitutional 1.If it furthers a compelling interest. Not Narrowly Tailored to the goal of achieving educational and social benefits asserted to flow from diversity .plans are directed only to racial balance. At secondary schools. There is already strong racial mix 2. a. Parents Involved in Community Schools v. i. Critical mass was the narrow tailoring. kids are allowed to preference where they go. There were various factors and a “Miscellaneous” section. 5. The admissions office sought the “critical mass” of students in underrepresented areas to be students and participate in the classroom. Narrowly tailoring doesn’t require exhaustion of every conceivable race-neutral alternative. Minority students automatically get 20 points under this special category and there is no individualized consideration. Bollinger – a. Grutter v. 2. Undergrad admissions office used a point index system (max 150 points). 6. Holding – Unconstitutional 1. Bollinger – a. Seattle School Dist.

Classification based upon gender are inherently suspect and must be subjected to “close judicial scrutiny” ii. Boren – i. but required servicewomen to prove their husbands were dependent. Uncertain Standard of Review – Originally the court applied a rational basis review.iv. Court held the classification must have a rational relationship to a state objective sought to be advanced. Frontiero v. Court held the classification to be arbitrary b. Craig v. Virginia sets the admissions requirements and admits men only – goal is to produce citizen-soldiers. GENDER DISCRIMINATION 1. i. Virginia – i. Richardson – Court invalidated federal law permitting men to receive an automatic dependency allowance for their wives. Reed v. United States v. Substantially further / closely relate to that interest iii. Is this an equal protection violation i. but men cannot until age 21. 2. There is a tradition of gender discrimination 2. Holding – Violation of Equal Protection 1. VA proposed a plan to adopt a parallel program for women . but they cannot purchase. It can’t substantially further the interest if men can still possess and consume. a. Intermediate Scrutiny – 1. Reed – Law preferred men to women when two persons were equally entitled to be the administrator of an estate. OK law allows women over 18 can purchase beer. Traffic safety is an important governmental interest but statistics alone that show men are more likely to drink and drive are not sufficient to further the interest. Men can possess and consume. b. VMI admissions clause is at issue. Intermediate Scrutiny ?? a. Law must serve and important governmental interest AND 2. Female sought admission and was denied. ii.

They do this as a remedial measure – Typically women were paid lower wages for so long. Substantially furthers – Yes – directly compensates them b. This is a gender distinction. Hogan – i. for Women v. c. The state law that prohibited the hiring of public school teachers who are aliens and not intending to become citizens. v. Califano v. Standard of Review – Strict Scrutiny a. ALIENAGE DISCRIMINATION – Suspect Class 1. Man wants to be admitted to an all women’s nursing school. Norwick – a. Remedial Discrimination a.Rational Basis Scrutiny: . Alumni. Mississippi Univ. “State must show at least that the law serves important governmental objectives and that the discriminatory means employed are substantially related to achieve those objectives. Webster – i. Remedy – Parallel program is not equal a. Governmental Interest – Remedial discrimination 1. ii.ii. Important Gov’t objective – Redressing Past Discrimination 2. resources. General Rule – Strict Scrutiny Gov’t Function Exception Applies Here . ii. Test – Intermediate Scrutiny iii.Governmental Function (Rational Basis) 2.” Approaches strict scrutiny 1. They are giving women benefits that they wouldn’t give men. opportunities 3. Law makes it possible for women to get higher retirement benefits. Exception . Holding – Admissions Practice is Unconstitutional 2. money. Court says NO – this does not fix discrimination against women. Ambach v. He was rejected and sues based on Equal Protection. b. There is no evidence of past discrimination against men as nurses. Holding – Constitutional 1.

CO Constitution Amendment prohibits protective status for homosexuals in Colorado. Law does not burden a fundamental right or target a suspect class – No Strict scrutiny b. Illegal Aliens – No strict Scrutiny. Doe 4. 3.i. Some communities before this said you cannot discriminate against gays. Federal law governing Immigration / Naturalization – No Strict Scrutiny a. Other areas are not important and do not apply – Too Broad 1. All state employees. NOT a Suspect Class 2. Plyler v. engineers. It is a restraint on what local government can do to protect a class of people and denies them access to the legal system . Standard of Review – Intermediate Scrutiny / Rational Basis a. i. Evans – a. Romer v. SEXUAL ORIENTATION 1. Amendment was challenged based on Equal Protection. Holding – Amendment is Unconstitutional 1. the amendment overruled such ordinances. lawyers. Congress has plenary authority to decide how one becomes a citizen vi. Rational Basis Review a. When an important governmental function is at issue (police officers and teachers) rational basis review is appropriate ii.

Jeter. dorms. ILLEGITIMACY . Anyone else would just have to get the city council to pass an ordinance d. Lucas – a. There is no indication anyone of a particular age is without political power. they would need another Amendment. Rational Basis Review – i. Mass Board of Retirement v. Mathews v.Legislative bodies are responsive to their needs and demands. Standard of review – Rational Basis 2. etc). ix. Cleburne v. Not Politically Powerless . Ought to be heightened though .c.To gain protection. b. AGE DISCIMINATION 1. Disability to class of people . Zoning ordinance required special permit for group home for the mentally retarded. Standard of review – Rational Basis 2. Desire to hurt a class of people is NOT a legitimate governmental interest  Fails rational basis vii. ii. Cleburne Living Center – a. Murgia – We all age and there is nothing inherently discriminatory about it. Thus it does not command extraordinary protection b. They said this violates equal protection and court agreed.(Child Born out of Wedlock) 1. Standard of review – Intermediate Scrutiny 2. viii. City cannot distinguish between their home and other living arrangements not subject to the ordinance (frats. It is not a suspect class but ought to review at least intermediate scrutiny. but it has never reached the pervasiveness of discrimination based on race and gender. City refused to grant the permit. apts. MENTAL RETARDATION / DISABILITY 1. Discrimination based on birth is out of an individuals control.

x. WEALTH DISCRIMINATION 1. Intermediate . Unconstitutional – There is no rational basis to believe the home poses a special threat to the city’s legitimate interests.iii.If combined with fundamental right such as voting or marriage . Rational Basis when standing alone b. Standard of Review – a.

Union Free School District . FUNDAMENTAL RIGHTS i. Political Question? a. One Vote a. Not Narrowly Tailored – Excludes people who are interested and includes people who are not interested 2. Only those who own property (schools are financed by property taxes) and who have kids in schools are eligible. Carr – Equal Protection violation if the challenge is that the district lines are not equal in size. i. Speech iii. State must justify why they allow for such differentiation in size. Baker v. Compelling Interest – making sure people who vote are interested 2. 2. Kramer v. Voting – Denial / Qualification of the right to vote 1. Types of Fundamental Rights: 1. Strict Scrutiny – Voting is a fundamental right 1. Fundamental Right – One Person. Alabama requires reapportion every 10 years – but none had taken place for 60 years. i. Virginia Board of Elections – Poll taxes are not appropriate. ii.Law Limits who can vote in a school district election. Harper v. Standard of Review – Strict Scrutiny ii. . Reynolds v. b. Voting is a fundamental right. Religion 4. Votes must carry equal weight across districts b. Interstate Travel 3. If more than a single digit disparity – no justification. Sims – State failed to reapportion the districts. Apportionment – Drawing of district lines. 25% of the state’s population was electing a majority of the senators and nearly members of the house. Strict Scrutiny: 1.f. Voting 2. Districts with power were all white – this motivates the court to get involved instead of claiming political question iii.

Vieth v. Davis v. There is no standard and it is a political question. PA 2000 census involved political gerrymandering by the republicans. Bolden – i. Jubelirer – i. ii. It is not justiciable ii. Redistricting was done by republican house. Democrats challenged it b/c it was designed to favor republicans. b. The court says that it does not violate equal protection to have at-large districts. Bandemer – i. The republicans argued that the court shouldn’t hear it b/c it is a political question. Here there was no success. d. The majority always controls drawing districts. Overrule Davis v. But if you can prove the reason behind it is discrimination then it violates equal protection. This is an equal protection claim. Reno – i. Bandemer 2. It must be a consistent disadvantage. This will be difficult to prove. Two-Prong Test: a. They say there is no objective baseline to measure the districting. Mobile v. The opposite occurs. c. Actual discriminatory Effect (success) 2. The court said if the only justification is race. Partisan Gerrymandering – Drawing lines according to political party / racial lines a. Holding – NOT JUSTICIABLE 1. Equal Protection requires states to make honest and good faith efforts to construct districts of roughly equal population as possible. They pocketed blacks in voting districts to have majority minority districts. . 3. Shaw v. but one election is not enough to make a determination.3. Intent to discriminate against an identifiable political group b. Holding – Issue is Justiciable 1.

b. Saenz v. Equal Protection – votes will not be treated equally.Citizens can enter / leave another State anytime b. Violation of Equal Protection iv. Strict Scrutiny – 1. Right to Travel – Fundamental Right 1. iii. Textual Support – Not expressly in the Constitution. Roe – a. There are no constitutional requirements on how states conduct voting. 3. Privileges and Immunities – Right to be treated as a welcomed visitor c. CA limited the max welfare benefits to newly arrived residents. Law doesn’t treat new citizens the same – creates classes of residents. then that is a problem.then it violates equal protection. Law says CA will not pay more in welfare for their first 12 months than citizen would have gotten from the state they left. e. Recount to determine the will and intent of the voter. which is not permitted . Its benefits are higher and it fears people will come just for that reason – it will cost them more money. Holding – Unconstitutional i. Even within states it is not uniform. There is no guidance as to how to count the votes – which chads will be counted? No consistency. Issues include that one person may have voted for multiple candidates and some votes were not clearly indicated (hanging chads). FL SC – Direct a re-count of under-votes (hanging chads) 1. If you draw crazy lines to make it happen. Bush v. ii. US SC – Takes the case and decides over the course of a few days. Voting methods are not subject to strict scrutiny iv. Implied in Commerce Power . a. Purpose is to eliminate the financial incentive. 14th Amendment – Right to be treated like other citizens if becoming resident 2. 2. Gore – i. No other instructions were given. Bush challenges the procedure. 1.

Kansas (Handout) – a. Holding – Unconstitutional 1. School Dist. Doe – a.2. No explicit guarantee in the Constitution ii. San Antonio Ind. Rational Basis Review – No Suspect Class or Fundamental Right . Wealthy are not a suspect class 2. Rodriguez – a. Standard of Review – Rational Basis 3. Fundamental Right / Suspect Class? a. Wealthy districts get more money than poorer districts. The law is irrational b/c evidence suggests illegal aliens do nt use the services. b. Montoy v. They are suing for wealth discrimination because a TX program provides funding to schools based on property taxes. Welfare and Education 1. Financial reasons are not compelling – they could solve the problem by reducing amount offered. Rational Basis Review 4. Illegal aliens are not a suspect class. Texas law says no education for illegal alien children. Bullock decided school funding was unconstitutional. v. Challenging the Kansas School funding program. b. v. Education may help to exercise those rights c. Freedom of Speech and Right to Vote do not imply right to an education 1. No Fundamental Right to a Public Education b. and there is not showing they impose greater costs 5. P’s are parents of kids in low-income families. Plyler v. i. Is Education a Fundamental Right? i. There is no fundamental right to education.

“The legislature shall provide for education and finance of educational interests of the State. Mayer Co.” ii. Here there are two private actors. a. It has a disparate effect on minority students BUT must show discriminatory intent c. Is Congress enforcing the Amendment or trying to change the substance? c. Education is a fundamental right in Kansas. IV. 14th does not apply – No State Action. Section 5 – “The Congress shall have power to enforce this article by appropriate legislation. 15th i. iii. How does the Court decide what the “badges and incidents of slavery” are? i. They relied on Federal law to be able to buy the home. Jones v. 14th . CONGRESSIONAL ENFORCEMENT OF THE 14TH AMENDMENT a. Jones complained that D refused to sell them a home b/c they are black. 14th Amendment Textual Basis: i. Provision provides that everyone gets equality of treatment according to contract / property. Fundamental Question – What does it mean to enforce Sec. Affirmative Grant of Power – what is the power? b. 1 of the 14th? i. Alfred H.i. i. There is a remedy if there is discrimination for contract or property. Can Congress prohibit actions that are not violations of the 14th? OR ii. State Constitution provides greater protection i. NOT Substantive ii. Rely on 13th – applies to everyone b. Remedial. Defining the Enforcement Power – 13th. – 1. Similar to rational basis review – Defer to Congress .” ii. Level of Scrutiny – Rational Basis for finance issues. but more scrutiny if issue rises to denial of public education. Can Congress only prohibit and provide remedies for actual violations of the 14th? iii.

Examine the congressional record for evidence of a pattern or history of discrimination on the prohibited basis. Morgan – 1. Can Congress nullify state law by legislating under Sec. Opens the door to Congress defining the substance of the 13th c. iii. iii. Federal law says no one who completed 6th grade in Puerto Rico where English was not primary language shall be denied the right to vote for inability to read/write in English. 5? a. Court will defer to Congress 3. Congress can act at its discretion. Katzenbach – 1.ii. Federal Law is Constitutional a. Its effect nullified NY law requiring voters to read/write in English. Apply the Congruence and Proportionality Principles . Katzenbach v. YES – Drafters granted the same power as the Necessary and Proper Clause provides. Literacy tests have been used in the past to discriminate and could be used in the future d. The 15th Amendment is the basis for the Voting Rights Act. The Congruence and Proportionality Test i. Standard of Review – i. Similar to the Necessary and Proper Clause because States have discriminated in the past. b. Describe / define the Constitutional right at issue 1. Court held Congress can act if a state is not currently discriminating. Could Congress rationally conclude the law might result in an Equal Protection violation? ii. Congress can reach private racial discrimination. Rational Basis  almost anything will be disproportional b. Suspect Class/Fundamental Right  Most things will be proportional and reasonable for Congress to provide remedies ii. iv. How likely is it that there will be a violation of the Constitution a. South Carolina v. 2.

. History or pattern of discrimination of age? NO iii. thus purporting to abrogate the State’s constitutional immunity.e. Kimel v. 1. If there is an actual violation. It is remedial. Florida Board – 1. ii. a. When can employers discriminate on the basis of age? State says you cannot do it but here the state is the employer and the statute says states can be sued. Congressional Power to enforce applies: 1. If there is not an actual violation – Much more scrutiny. which prohibits Govn’t from burdening a person’s exercise of religion unless (1) its in furtherance of compelling Govn’t interest and (2) is the least restrictive means to do so (strict scrutiny). a. Age discrimination case. RFRA is out of proportion to any remedial purpose. Violates the Constitution only if it is irrational ii. Flores – 1. of Alabama v. Congress can act 2. i. What about disability distinctions regarding employment? Rational Basis Review. Board of Trustees of Univ. 3. Is it proportionate? NO b. Remember. 2. Congress doesn’t have power to re-define the substance of the 14th. Context – The most common context for recently litigated cases is when Congress has attempted to subject States to suit for violations of federal statutes. Garrett – 1. age distinctions get Rational Basis Review i. Congress is trying to change the substance of 1st Amendment ii. What Congress wants to accomplish must be proportional and congruent to the authorized power. it is not trying to prevent religious discrimination by States. Congress lacks power to make States subject to suit iii. Holding – RFRA is Unconstitutional i. Boerne v. City denied church a building permit and the church challenged under RFRA. Federal Law allows for punitive damages and other things.

Morrison – 1. There is a long history of men being discriminated on the basis of stereotypes ii. Unconstitutional i. a. Person was unable to access the court and he had to crawl upstairs. Tennessee v. when paired with a fundamental right a more rigorous review is necessary. Remedies are modest and narrow. NO because the cause of action is between two private parties.a. State employer must allow either parent the opportunity for unpaid leave. 2. Can congress create a civil claim for domestic violence? a. for 12 weeks with other limitations – some people are exempt from its benefits. Gender discrimination at issue – Intermediate Scrutiny i. vi. b. Someone sues Nevada for not getting the required leave. Can Congress subject NV to suit? a. It requires government conduct. While disability is not a suspect class. Access to the court is a fundamental right. Proportionality – YES 1. There is a pattern of discrimination of access to courts b. b. No pattern or history ii. Remedy is unpaid leave (not paid). United States v. Lane – 1. Constitutional – Congress exercised valid power v. Hibbs – 1. It is disproportional iv. Remedies – Injunctive relief and require states to take reasonable steps for accessibility. Title II of Disability Act and access to courthouses. Family Medical Leave Act. . State Action is missing to justify Section 5. This is proportional b/c the remedies are modest.