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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.
vi. “a litigant to whom Congress has accorded a procedural right to protect his interests can assert that right without meeting all the normal standards. a. MOOTNESS 1. Massachusetts v. Generally not permitted. Friends of the Earth v. 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. Mootness – i. No Generalized Grievances – even if Article III requirements are met 4. 5.b. Dissent – This is generalized harm and Global warming affects everyone. Outcome in the case will not matter to THIS plaintiff (advisory opinion). . Pollution damages lands they otherwise would have used. b. evading review. Penalties for past behavior keep the case alive bu the court is concerned as to whether cessation is permanent. Moot is COMPLETE repeal – Hill v. Repeal of statutes 1. Rule – There must be actual controversy at the time court renders a decision. other may not be ii. Class Actions – If named representative becomes moot. Court upheld the standing b/c of the injury to the plaintiff not to the environment. Statutory authorization for P to sue on behalf of 3rd party 3. AC dismissed the claim as moot b/c not all of the three elements of standing existed throughout the litigation. Voluntary change in conduct – Court makes judgment call iv. Taxpayer Standing: i. but an exception is for Establishment Clause situations – Flast v. EPA may find that they can decrease the risk i.D ceased its illegal conduct upon issued suit by P and argued the case is moot. b. (pregnancy – 9 months) iii. otherwise the case will be rendered moot. Mellon. Cohen. Friends of the Earth v. a. Mootness – You had standing/injury.” a. 2. i. Causation: Traceable to greenhouse gas emissions iii. Repetition – If D could be affected by the issue again. Exceptions: 1. Printing Indus. amended or substituted – Jacksonville 2. Standing v. 3. 3rd party rights indirectly violated by enforcement against P or vice versa. Laidlaw – P’s claimed they cannot swim in the water anymore because of water pollution. EPA – Does Mass. Third Party Standing – Generally not permitted. Special relationship between 3rd party and P. Prudential Limitations a. Standing – When you start the lawsuit there must be an injury ii. Not moot if altered. 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. Massachusetts v. Laidlaw . Congress authorized this action in a statutory provision. Exceptions: i. but things have changed c. 2. How do we really know what the cause is. State’s generally cannot assert standing on behalf of citizens. Holding: Reversed – Not Moot i. While the issue is procedural. Injury: Loss of stated owned coastal property ii. Redressability: Risk of catastrophic environmental damage would be reduced b.
Sec 3 – Power to admit states. Sec 1 Article IV a. NECESSARY AND PROPER CLAUSE – Art. (15. from those cases that are appropriate for federal court action a. a. c. sec 5). 1. The mere presence of the law deters conduct 1. . 7. To challenge the law you must violate it d. Congress must have some discretion. Sec 4 . RIPENESS 1. Purpose of the Constitution was to create a stronger legislative body than existed under the Articles of Confederation. they can sue without violating the laws ii. LEGISALTIVE POWERS a. Exception – First Amendment “Chilling” Effect i. b. ii. How they implement the enumerated powers gives them more power though. sec 2) Inferior Courts – Article 3.Guaranty Clause Article V – Proposing Constitutional Amendments The Tenth Amendment The Sixteenth Amendment 5. Congress must be acting in some way to connect the powers which are enumerated to its actions. It seeks to separate matters that are premature for review b/c the injury is speculative and never may occur. 1. 8 a. Mootness – Difference in Timing Ripeness -----------------------------------------Standing--------------------------------------------Mootness Law is created and you want to sue Law not yet broken . 1. Sec 1 – Full Faith and Credit b. Govern Territories c. “We must never forget that it is a Constitution we are expounding” – McCulloch. If the laws existence will deter people from exercising their 1st Amendment rights. Federal government has no power except what the Constitution grants 2. A broader reading is appropriate because the clause is among the powers of Congress. A Justiciability doctrine determining when review is appropriate.sec 2). Constitutional Text i. cl. Limitation: 1.18 i. Reconstruction Amendments – (13.vii.Too hypothetical Poole Gov’t said Hatch Act is bad idea a. Threat of injury from conduct is too remote Not RIPE II. Must exhaust administrative remedies. Applies to speech and felony prosecution 2. There must be present adverse impact OR attempted enforcement of statute. Therefore. Congress can do whatever is necessary and proper to affect its powers. Enumerated – Article 1. Constitution gives Congress the power to effectuate its enumerated powers. 4. 8. The Clause augments and expands the powers of Congress rather than limits them. 3. b. Sec. Ripeness v. (14. Sec. 6.
Hammer v. Purpose was to standardize the ages at which children may be employed in mining and manufacturing. it does have the power to do other things such as wage war and collect taxes. Sec. Commerce is traffic but something more It is interaction. Thornton – Like Congress. States cannot act with regard to interstate commerce. exchange. etc. Holding: a. The goods themselves are harmless to interstate commerce. 3 1. 1. The mere fact items were intended for interstate transportation does not make their production subject to federal control. 1. c. Holding: Congress exceeded its powers. i. v. The manufacture of a good is not commerce. While there is no express grant to Congress of the power to create a bank. Child Labor Laws – Congress wants to control/prevent child labor. It creates and incentive financially for manufacturers. b. Regulating National Economic Issues – The New Deal & Modern Power . What Power does Congress have over Commerce? 1. 3. 10th Amendment is not appropriate b/c it doesn’t answer the question of what is given to the federal government. Dagenhart – Congress acted to End Child Labor through the commerce clause. States have no power to add to the qualifications for members of Congress – it is not reserved to the states in the 10th Amendment. Holding: Congress acted properly and Gibbons has a right to be there too. charging fees. Plenary Power . i. This is something states should regulate. The single most important power of Congress. 2. 2.iii. 1. Congress CAN regulate intrastate activities if it has an EFFECT on interstate commerce. iv. 8. Gibbons v. No power generally when commerce is purely intrastate. States are excluded from imposing such requirements. Constitutional Text – Art. A bank would assist in these purposes making it necessary and proper. (navigation included). Congress power is an exclusive grant over interstate commerce. Hammer v. The US created a bank which operated in Maryland and refused to pay the tax. The power to regulate commerce among foreign nations. 2. He operated between NY and New Jersey. commercial intercourse. Holding: Article 1 imposes restrictions and states themselves cannot add to them.It can do whatever it thinks is necessary to regulate. goods moving in commerce. a. Ogden iv. McCulloch v. 3. Gibbons was operating boats licensed under an act of Congress in the same area. The right to choose representatives does not belong to the states. Dagenhart iii. but to the people. so even when Congress has not acted. Power to regulate commerce among the several states (intermingled). between states. NY statute granted Ogden the exclusive right to navigate boats in state waters. US Term Limits v. a. the several states and with Indian tribes ii. 4. c. Maryland – Maryland taxed banks operating within the state but without state authority. a. 1. 2. What is Commerce? 1. COMMERCE CLAUSE i. Cl. including bans. a. Regulating National Economic Issues Through Commerce (Through 1936) 1. Ogden sought an injunction.
It did not regulate the good themselves. it discourages blacks from traveling. c. Wirtz . Who decides if it substantially affects interstate commerce? i. 2.Congress expanded regulation to cover (1) all employees of any enterprise engaged in production of goods for commerce and (2) include hospitals. Before 1964. b. Cumulative Affects Doctrine – Actions by one person are insignificant. c. Holding: Constitutional a. Congress’ power is plenary if it substantially affects interstate commerce. Commerce power is established to reach any activity that has a substantial affect on interstate commerce. ii. Maryland v. Civil Rights Act entitles everyone to full enjoyment of public accommodations. Times were terrible and FDR was very aggressive. Evaluate all the factors cumulatively . but actions of all will substantially affect interstate commerce. a. Congress passed the Fair Labor Standards Act to exclude goods from interstate commerce which were made in sub-standard conditions. 1. It is a truism. Federal Government created programs to help the economy recover. Filburn . He would sell some. FDR threatened the “Switch in time at saved 9” – A means of replacing older judges with some that would allow his programs to pass. b. Cumulative Effects Doctrine – Home-consumed wheat adversely affects the markets if everyone does this. These institutions are major users of goods imported through interstate commerce and work stoppages would interrupt this flow of goods across state lines. Wickard v. It was meant to regulate wages and hours worked. 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. Congress decides and the Courts defer to Congress. Congressional Motive is irrelevant. Motel was readily accessible to interstate and state hwy’s and 75% of its guests were from out of state. Court is very deferential here. 1. Government wants to restrict how much wheat you can keep i. but the d. feed some to livestock and use some for home-consumed purpose. United States v. The court however struck many of the programs down (not commerce power). b. nursing homes and schools.Filburn raised 239 bushels of wheat. Such discrimination impedes interstate commerce. The Great Depression a. 10th Amendment is NOT relevant to the Commerce Power. it had a policy to refuse to rent rooms to blacks. Holding: Congress has the power to prohibit racial discrimination by “local” motels. i. United States i.1. Regulation Permitted 1. Darby i. a. Overruling Dagenhart with Darby a. Heart of Atlanta Motel v. in excess of his marketing allotment.
Gun-Free School Zone Act made it a crime to possess a gun in a school zone. . Katzenback v. c. Cause erosion/floods. Whether there is an express jurisdictional element relating to interstate commerce – “She can have a civil remedy if…” iii. even when the threat comes from intrastate acts. ships ii. Morrison i. Virginia Surface Mining – Supreme Court upheld Federal Act regulating mining operations – Diminish utility of the land. bridges. etc.Congress MAY Regulate the Following: a. Holding: Congress CAN Regulate under Civil Rights Act 1. i. whether there is a rational connection between the regulatory means chosen and asserted goals? b. The act was passed according to commerce. There is no jurisdiction element c. Rational Basis TEST a. e. Roads.Direct or Attenuated? d. Deferential Review. Airplanes. Lopez i. Deferential Review. She sued under Violence Against Women Act of 1984. Gender motivated crimes are not economic activity. Hodel v.d. Cumulative Effects . i. It caters to white collar families and has take-out for blacks. Lopez Standards . Rehnquist – There must be a limit to the commerce power 1. Artificial restriction on market c. less food ordered b. United States v. Holding: Commerce Clause does NOT apply a. b. Petitioner alleged D assaulted and repeatedly raped her.Practice taken as a whole across the country impedes interstate commerce. McClung – Ollie’s BBQ is 11 blocks from the interstate. United States v. Whether Congress had a rational basis for concluding that the regulated activity affects interstate commerce? i. There is no claim that interstate travelers frequent it. Must be reviewable by the courts as to whether that is true vi. It must be a substantial effect on commerce AND 2. Legislative Findings – Reasoning is too attenuated and would allow Congress to regulate any crime (a right reserved to the states). Fewer customers. pollute the water. but is that appropriate? 1. b. Guillen Activities having a substantial relation to interstate commerce – Those that substantially effect interstate commerce. If so. trains. Depressant Effect on business conditions 4. i. Modern Limitations on the Commerce Power 1. Legislative history and Congressional findings about a connection iv. Nature of the causal link . D argued this was not applicable to the commerce clause and the government argued that education affects commerce – through a chain of causation. Is it commercial/economic activity? ii. i. less sales. Use of channels of interstate commerce. Guillen Instruments of interstate commerce OR persons/things. a. buses ii. Look to the FACTORS: i.
If it is read too broadly. Grants Congress the power to lay and collect taxes. Concurring – uses the Necessary and Proper Clause 3. Opinions of the Justices: i. Conditional Grants of Money a. to pay debts. Tax and pay the debts of the US c. cl. Tax and pay the debts of the US. it negates the police powers d. (wheat regulation) 2. b. Rational Basis should be the standard. Congress has the power to regulate activities that significantly affect I/C b. ii. 2. Court held the act exceeds the authority under the commerce clause b/c it was criminal (not economic) in nature.Article I.Article I. i. Congress offers state’s money if they do various things Congress wants. g. Express Power . 1 a. The Commerce Clause deserves a more narrow reading. Thomas (Concurring) – Court has drifted far from the original understanding of the commerce clause and the court should reconsider the “substantial effects” test. Gonzalez v. Congress can regulate a purely intrastate activity when a failure to do so would undercut the regulation of the interstate market. and provide for the common defense and general welfare of the US. Court must consider the Cumulative Effect of conduct c. Express Power . Breyer (Dissent) – 1. 1 a. Principles to Consider: a. there was no legislative history related to commerce. Taxation – 1. Could Congress rationally conclude an effect on interstate commerce. Must judge the matter independently (no deference) 2. Dissent – If Congress can regulate this. Sec. Reich – Substantial Effects of Local activities i. Spending – 1. c. iii. Congress can tax and spend on anything for the general welfare 2. 16th Amendment allows for collection of individual income taxes d. A means for Congress to do indirectly what it cannot do directly b. Analogize to the Wickard case. This is okay because there is a choice on the part of the state (university) . 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. Act did not satisfy the factors under the 3rd Commerce Power. Courts must give Congress considerable leeway in determining whether there is a sufficient connection between the activity and interstate commerce. to pay debts. Sec. 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). cl. and provide for the common defense and general welfare of the US. Congress can tax and spend on anything for the general welfare ii. Souter (Dissent) – Apply the two-step Hodel Test. Grants Congress the power to lay and collect taxes. b. Otherwise they don’t get the money. 1. This is a deferential approach. TAXATION AND SPENDING POWERS OF CONGRESS i. 8. 8. there is no need for the enumerated powers. f. Leaving this pot outside Federal control would draw the stuff into the national market.1. ii.
14th Amendment. Appointments of Ambassadors. Pardon Authority. Holland . 2. b. i. Express Power – Article II. Executive power shall be vested in the President 2. and Article VI a. Enumerated Power – Article I a. Receive Ambassadors. 13th Amendment. Section 2 – a. EXPRESS POWERS i. Lower federal courts. Principle Officers. Courts are Deferential to seek legislation protecting birds that traversed both countries. OTHER POWERS 1. Patents/Copyrights. South Dakota v. EXECUTIVE POWERS a. 5 c. War powers 2. Borrow money. d. Missouri v. Court held it not sufficient to rely upon the states and upheld the treaty. 15th Amendment. State permits 19 year olds to purchase 3. The issue is whether the treaty is forbidden by the 10th Amendment. 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. ii. Dole – Regulating State Drinking Age 1. Four Part Test – Dole a. Section 1 – a. Sec. US territories. Bankruptcies. OTHER CONGRESSIONAL POWERS i. Sec. Section 3 – a. Power to make treaties is expressly delegated and treaties are declared the supreme law of the land (Art 2 Sec 2 and Art. Judges. Convene both Houses of Congress. Congress can enact laws implementing the treaty – If the President and required Senate vote believe it is important enough. Aliens. b. i. 2 b. Sec. Congress passed a law withholding 5% of federal highway funds from states that permitted the sale of alcohol to those under 21. c. State of the Union. Sec. Holding: Regulation Upheld (Encouragement not Coercion) a. Enforcement of Civil Rights a. Recess Appointments 3. Treaty Power. Commission all officers of the United States 4. Section 7 – a. they have the ultimate choice. Article II – 1. e. Coin money. All treaties made under the authority of the US are Supreme b. Commander in Chief. cl.2 beer.3. the court is not in a position to deny the power to enact such a law. Sign laws – Veto and Pocket Veto . TREATIES – 1. Recommend/Propose legislation. Post offices. 2 The enactment of the law remains the prerogative of the states. Faithfully execute the laws. Highway safety is the government interest c. 6).Upheld a treaty between US and Canada obligating both countries III. e. 2.
c. Constitutional Sources of Power to wage war – War Powers are divided: a. GENERAL CONSTITUTIONAL FRAMEWORK – EXPRESS AND IMPLIED POWERS i. but it is true that in many statutes. President must rely on his own independent powers. raise and support armies. Suspending the claims was Jackson #2. . Truman made an executive order to have the Secretary of Commerce take possession of and operate the nation’s steel mills. make rules and regulations for military. Steel industry had a labor dispute. Dames & Moore v. Concurring (Frankfurter) – “Life’s gloss” affects Constitutional interpretation. Foreign Affairs and War – 1. Congress has power to tax and spend for common defense and power to declare war.b. Nullifying the attachments was permitted under Congressional statute – Jackson #1 2. use of federal property. Congress and Constitution are silent (Neutral) 1. Executive Orders – Governing the Executive Branch. (2) in a federal statute. Holding: Power is permitted 1. Emancipation Proclamation 2. Lawsuit is brought arguing he doesn’t have the power to do. c. President is Commander in Chief. The relationship is uncomfortable. President’s powers are at their weakest and he must point to some enumerated power d. Executive Lawmaking Delegation – President cannot legislate. Court looked at history and found other examples iii. He also suspended all claims in American courts against Iran. b. or (3) Congressional authorization. statutes may provide implicit Congressional approval. President’s power extends only to the Constitution and whatever Congress designates 1. SPECIFIC POWERS i. Carter did this under executive agreements and orders. 1. Concurring (Jackson) – There are three categories: i. Express Grant – 1. Presidents have asserted power to issue orders relating to organization of the executive branch. Long-standing practices should be considered. Before they planned a strike. Sawyer – a. Zone of Twilight iii. Make sure production doesn’t stop. None of these existed and this is a category 3 according to Jackson. History and tradition matter. Holding – Must find express power either (1) in the Constitution. Power is at a maximum and the court will be deferential ii. Some people challenged this saying he doesn’t have this power. Youngstown Sheet & Tube v. Congress leaves all the details to the President to implement. i. ii. President Carter made an agreement with Iran and wiped out all attachments Americans made on Iranian property in US courts. b. Expressly Forbidden by Congress 1. Regan – a. They wanted to create an arbitration tribunal in the Netherlands. and terms on which the Government will enter into contracts.
a. Nixon v. a. authorized or aided the attacks. The Court rejected the claim. 3. 1. The President proclaimed an embargo and Curtiss-Wright was indicted for violating its terms. 1. Congress turned its authority over to the President. order (authorized by Congress) that governed the detention treatment and trial of non-citizens. i. Congress authorized President to use “all necessary and appropriate force” against those he determined planned. Key Concepts: a. iv. 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. Nixon claimed executive privilege when his appointed independent prosecutor sought pres. convened by the President. tapes / documents. President has absolute immunity from civil liability extending from official duties of the office d. b. D is an American in Afghanistan following 9/11/01. or sensitive national security interests. It applies when there is need to protect the military. Curtiss-Wright Export: i. Delegation – Court has never struck down a Congressional delegation since the New Deal. The President had issued a exec. Court affirmed the dismissal of the action – Executive Privilege. Hamdan v. Fitzgerald sued claiming Nixon caused him to lose his job for “whistle-blowing”. Holding: Permitted. 2. 1. Court will be deferential when actions relate to foreign affairs b/c he is the sole representative of the country. Hamdi v. Rumsfeld – i. D was captured in Afghanistan and transported to Guantanamo (not US citizen). Holding: Initial detention was authorized but he cannot be held indefinitely – he has Due Process rights. D was seized and turned over to the US as a Taliban fighter. Absolute immunity doesn’t extend to non-official conduct. Executive Agreements – Allows President to enter into agreements with foreign nations without Senate or Congressional approval. Pres. diplomatic. Nixon – a.2. 1. except pursuant to an act of Congress. President has no right to control his Presidential papers c. Executive Immunity / Privilege 1. Here it was overcome by the interests of criminal justice 3. Rumsfeld – i. . D argued that the military commission. 2. Presidents enter into these all the time. Holding: This is a Jackson #3. These rarely get litigated. lacked authority to try him. Congress passed an act precluding such Presidential action. The President has a presumptive privilege to protect communications between high government officials. United States v. (Congress has primary role in domestic affairs) b. Privilege is Presumptive – NOT Absolute b. War on Terrorism – What is the President’s authority regarding post-9/11captured enemy combatants? a. Fitzgerald – a. but NOT Absolute and does NOT outweigh compelling interests. New presidents may rescind executive orders. 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. United States v.
Fourth Branch of Government . IV. cl. Is checked politically in other ways – media. Sec. The Court has never found any act of Congress to violate this doctrine: 1. Legislative veto violated this process. The Court has long recognized the concept that Congress cannot delegate its legislative power to other entities. ii. there is very little which oversees government agencies.i. 1. Functionalism – Separation of Powers is to ensure no branch gets too powerful but there ought to be some flex in the joints. Applies whether or not he is currently in office. The Line Item Veto i. 3). the court held such vetoes unconstitutional across the board. but can enact legislation giving others authority to implement if the law provides substantial guidance to the implementing agency or officials. ii. Congressional oversight.Without the veto power. United States – . President has absolute immunity from civil liability for any acts within the “outer perimeter” of his official duties. New York – a. 1. there was no Bicameralism and Presentment. SEPARATION OF POWERS a. Formalism – Article II gives all executive powers to the President. Congress enacted both one-house and two-house vetoes in many federal statutes. Congressional Delegation i. ii. Clinton v. 2. INS v. b. They are Unconstitutional. Chada – a. 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. Clinton v. iii. They required any law to be presented to the President and that laws be passed by both houses of Congress. Pres. impeachment. c. Mistretta v. state employee sued for sexual advances by President Clinton. Acknowledges that the separation is not all that clear. 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. i. i. Functionalists disagree – bicameralism was satisfied when the law was initially passed and Congress should retain the veto power b. Holding: Suit may proceed b/c it relates to his unofficial conduct. This act did not qualify the President’s discretion to act to cancel. Non-Delegation Doctrine. 7. Unilateral action is only permitted during impeachment process. c. Court invalidated the Line Item Veto Act. This occurs after the bill becomes a law and is only of part of the statute (not the entire thing). Two Ways to Approach These Cases i. Formalistic d. The Legislative Veto i. Lines are clear and distinct. as violations of the Presentment & Bicameralism Clauses of the Constitution (Art. re-election 4. b. Involved one-house legislative veto of a deportation decision of the AG. 2. This is a Formalist analysis. Jones – a. Allows the President to cancel spending. 1. but Presidential schedule must be considered. Can President be sued civilly while in office for non-Presidential related reasons? Ark.
They were supervised by other judges. Removal – Constitution is silent 1. Sec. Upheld authority of the Secretary of Transportation to appoint civilian members of the Coast Guard Court of Appeals. This is a Functional Approach – considered okay despite line blurring. Congress may vest these appointments in the President’s. Giving the President the authority to appoint the members of the Sentencing Commission – including judge members – did not violate Article II. Court found that Congress could limit the grounds for removal of a Commissioner of the FTC. Congress charged the Commission with three goals. ii. Mistretta v. Inferior Officers . a. Congress created the FTC. b. but court said they are quasi-judicial b/c they make decisions in a judicial fashion. specified four purposes for them to pursue and identified a number of factors and characteristics for the commission to consider. i. The comptroller would be exercising executive power while technically removable by Congress. 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. Olson – a. Congress cannot control the execution of its laws ii. Morrison v. Courts. They do not have to be appointed by the President 2. United States – 1. i. United States – 1. To get a balanced budget. Who is a Principal Officer? Inferior Officers – a. CG is a legislative official b/c interpreting the budget is legislative in nature. Removal by AG for “Good Cause” did not violate presidential prerogatives. i. Edmond v. e. 2 1. and send it to the President. Synar – Removing Comptroller General a. Appointment . who could remove them without cause. Bowsher v. i. Congress may limit removal power over officials exercising quasilegislative/judicial powers. President nominates and Senate confirms b. Formalistic Court upheld Act providing for Independent Counsel to be appointed by a “special division” court to investigate high level executive branch officials. Holding: Unconstitutional usurpation of executive power b/c it empowers Congress to terminate the Comptroller General for his performance. 2. or in the Heads of Departments. cl. Principal Officers – 2. United States – a. Humphrey’s Executor v. 3. INTRODUCTION – . 2. Holding: Independent Counsels are Inferior Officers 1. Three of the 17 members must be judges. 1. V. i. FEDERALISM a. ii. Appointment and Removal of Officers – i. a.Article II.a. President argues they are executive officers. Congress created a system where the Comptroller General will go through the budget and figure out what cuts will be made.
Others – State Term Limit effort b. Separation of Powers/Federalism Theory – (middle ground) a. Monaco v. States have sovereign immunity from suits based on Federal Law brought in state court (though this is not derived from the 11th. IV. Dakota v.). when diversity of citizenship was the sole basis for federal jurisdiction. commenced or prosecuted against one of the United States by Citizens of another state. Federal law prevails. Therefore the question is not whether the Constitution authorizes States to act. but whether it prohibits the States from acting. THEORIES OF THE 11TH AMENDMENT 1. Carolina b. ii. United States v. Apply to suits based on state law brought in state courts i. Major Areas of Federalism Concern 1.i. N. Maine 4. Bar suit by one state against another in Federal Court. States cannot be sued without their consent for violating Federal Law 3. Diversity Theory – (Narrow View) a. 2. Sec. 11th bars a foreign government from suing a state in Federal Court. 2.S. where the Supreme Court held a citizen of South Carolina could sue Georgia in Federal Court. S. The Supremacy Clause and Federal Preemption of State Law a. Alden v. 1. 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. or by Citizens of Subjects of any foreign state. but must make its intent to do so clear. Nevada v. State immunity from suits to enforce Federal Law – 11th Amendment a. 1 – 14th Amendment) 6. v. Purpose of the 11th was to limit Article III jurisdiction and prohibit suits in Federal Court between citizens of States A against State B. 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. iii. Bar suit by the U. Language – “The judicial power of the United States shall not be construed to extend to any suit in law or equity. General Rules: 1. Mississippi c. The Negative/Dormant Commerce Clause 4. The 11th Amendment does NOT: a. Privileges and Immunities of State Citizenship (Art. Case Law Concepts 1. ii. Purpose was to prevent federal courts from unduly interfering in matters of state government. iv. Mississippi 3. THE 11TH AMENDMENT – State Immunity from Suit i. Georgia. History A state may consent to suit in Federal Court. 11th does NOT bar suit against a state official when seeking injunctive relief – Young . Hall 2. State immunity from Federal Regulation – 10th Amendment 2. Immunity Theory – (Broad View) a. There is no constructive or implied consent/waiver. States have general Police Powers. Ratified to overrule Chisholm v. unless Congress never had the power to act initially 5. against a state in Federal Court. cl.
Holding: Court overrules Penn Gas (case that abolished immunity) a. b. a. AG gets a mandamus order from state court stating that he has to enforce the laws. Seminole Tribe wants gaming activities authorized and they can do it so long as they negotiate in good faith with Florida. Congress can cite spending power (drinking age) iv. Waiver of immunity must be clear – Seminole Tribe 3. Ex Parte Young 1. Does Congress have the power to abolish a state’s immunity? 2. vi. which they have not complied with Waiver must be clear b. Immunity predates the Constitution. They claim immunity b/c this issue is on a Federal Act. You can sue officials for injunctive relief – Ex Parte Young. Maine a. 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. Alden v. Seminole Tribe of Florida v. Holding – 11th does NOT bar suit against a state official when seeking an injunction. Court found the rates Unconstitutional and enjoined AG. they were afraid of losing money. he is stripped of his official character and is subjected in his person to the consequences of his individual conduct. 3. If the act which official seeks to enforce is Unconstitutional. If City of Lawrence violates Fed Law you can sue them. 2. b. Good faith of the states will take us a long way in following the law ii. vii. MN legislature passed laws fixing RR rates. 2. Maine 1. Florida 1. vii. So the filed suit in state court. c. federal court holds him in contempt. States were understood to have immunity before the Constitution. S/H filed suit to enjoin enforcement of the laws by the AG. US can sue v. Congress acted to restore the Constitutional design . Does the 11th bar an action for injunctive relief against a state official? 3. a. States have immunity in state courts from Federal claims – Alden v. Dissent – He is the state & that’s what the 11th prohibits. Holding – States have immunity in state courts from federal claims. Opens the door to federal court supervision of state gov’t institutions. Article I does not authorize Congress to override immunity provisions for remedy built in. b.2. Holding otherwise would leave the state and officials free to violate federal law. The 11th only reaffirmed what already existed c. State employees of Maine sued Maine in Federal Court – after Seminole Tribe their case was dismissed in Federal Court. States may consent to suit iii. but the companies did not comply. Immunity does not apply to local government. Suits against states under state laws are up to the states Several ways to make sure federal law gets enforced i. State Courts dismiss on state sovereignty. Ex Parte Young is not available to sue the Governor for remedy b/c the statute has viii. Use Sec 5 of the 14th Amendment vi.
Text – The powers not delegated to the United States by the Constitution. Congress will exempt the States in the laws when they think it necessary 2. Or any other Article I power. Can Congress Override the Immunity? 1. x. Case Law Concepts: 1. 11th Permits removal of officials 2.3. or other local government entities in federal court. ii. 11th BARS federal court from ordering injunctive relief against the State when the basis of the order is solely state law – Halderman 5. States sued under their own laws – that is up to the State ix. Does the 11th Amendment apply to Municipalities? 1. Gregory v. 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. Sec. Ashcroft – Courts will assume Congress did not mean to effect the State’s interest unless Congress explicitly says so.Printz iii. it applies to the states unless Congress and the political process exempt the states – Garcia 2. nor prohibited by it to the States. What Relief if Possible? 1. This applies even if the State will ultimately be indemnified from a non-state source. But it must make clear it intent to do so. Congress cannot “commandeer” states to pass laws – New York 3. If federal law does not target the states. Garcia v. c. . San Antonio Metropolitan Transit Authority – 1. THE 10TH AMENDMENT – Does it mean anything? What can Congress do/not do to the States? i. leave it to the political process sovereignty. Congress can override a State’s 11th Amendment immunity pursuant to its powers under the 14th Amendment. Congress cannot compel State enforcement of federal law . 11th DOES bar the payment of money damages from the state treasury. so long as the expenditure is incidental to the primary injunctive relief – Milliken 4. Cal v. Congress CANNOT override States 11th Immunity under the Commerce Clause power. – Regents Univ. a. Doe 3. xi. or to the people. are reserved to the States respectively. 2. 11th does NOT bar injunctive relief that requires the State to spend $$$ in order to comply. Since there is no targeting. 10th provides no enforceable limitation on federal power nor independent protection of state 4. but not prospective injunctive relief. cities. The 11th Amendment is NOT APPLICABLE to suits against counties. Issue whether minimum wage provision of federal law should apply to city mass transit system. 5. Challenges to state taxes under the dormant commerce clause where state waived immunity. Congress and the political process should decide the limits not the courts 3. The law at issue is labor and employment and is not targeting the states.
United States – 1.Per Se Invalid . States have general police powers. Katt . but its Intent. Printz v. 10th prevents Congress from compelling states to pass laws. b. Congress may however attach conditions to federal spending or preempt state regulation altogether under the Commerce Power. Commerce Power is exclusive a. b. This would allow Feds to implement and pay nothing – no accountability c.iv. Express in Federal Statute – a. c. Look to the intent of Congress (clarity of language. Compliance with both is impossible ii. Types: The question is typically not Congressional power. Structure of the Constitution: i. Congress passed gun law directing state police to regulate it. if the state impacts Commerce too much. The fact that Congress has the power means the court has to protect the power even when Congress has not yet acted. TEST 1 . New York v. PREEMPTION i. it can be unconstitutional. ii. Congress regulates people not States iii. Testa v.Does the State Law Discriminate Against Interstate Commerce on its Face? 1. v. When does Federal Law preclude the application of State Law? ii. Constitutional Basis – Supremacy Clause. a. But. Dissent – This is appropriate in a National Emergency d. What do you do when Congress hasn’t spoken? 2. iii. The court found that Congress cannot compel state and local officials to enforce federal law. but the states have. NEGATIVE/DORMANT COMMERCE CLAUSE – Two Tier Approach i. There is no historical practice of this i. a. IMPLIED PREEMPTION a. 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. Dual sovereignty ii. 1. If YES . United States – 1. e.State judges must apply federal law though when required due to the Supremacy Clause b. Overview – 1. Article VI 1. If State law impedes the federal objective – if it serves as an obstacle Frustration of Federal Purpose / Need for National Unity 2. Implied – c.
Apply the Pike Balancing Test – a. c. The Key is whether it exists. b. Text – The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. it will be upheld unless the burden imposed in interstate commerce is clearly excessive. Market Participant Exception – 1.” 2.Does the State Law regulate even-handedly with only incidental effects on Interstate Commerce? (Facially Neutral) 1. New Jersey – a. “Where the statute regulates evenhandedly t effectuate a legitimate local public interest. and its effects are only incidental on interstate commerce. Cases Deemed Unconstitutional 1. not the extent of discrimination (a few cents difference in prices qualifies). Ex: Choosing to sell state-produced cement only to State residents – Reeves Inc. Compare the burden imposed on interstate commerce with the local benefits. f. Ogden – a. Non-Discrimination Provision – Based on State Residency a. There is no basis to distinguish between waste sources b/c the environmental impact will be the same v. Sec. Apply strictest scrutiny and uphold only if state has chosen least onerous means to address legitimate local purpose. Relationship to Dormant Commerce Clause . Not-applicable to corporations or aliens – they cannot sue for violations iii. Applies when non-residents are discriminated 2. 2 i.a. iii. TEST 2 . b. State activity may be unconstitutional even when Congress has not exercised its powers iv. a. Court Preempted – It is discriminatory on its face b/c it discriminates against out-of-state sources. If the State is enaged in commerce. b. The law is Unconstitutional only if the burdens are clearly excessive. PRIVILEGES AND IMMUNITIES – Article IV. State legislation here will RARELY be upheld What is Discrimination? a. 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). Differential treatment of in-state and out-of-state economic interests that benefits the instate and burdens the other. 2. States posses the concurrent power to regulate commerce. Philadelphia v. NJ law prohibits anyone from bringing into NJ solid or liquid waste that originated or was collected outside the state. b. Purpose and Scope 1.” ii. Gibbons v.
c.hotels/restaurants) unlawful. b. (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. DC applies to corporations/aliens c. 14th – Protects Federal citizenship a. a. 14th Amendment Due Process Clause applies the Bill of Rights to the States ii. Conspiracy – private parties who conspire with state actors may engage in state action 2. use navigable waters. Protected Privileges and Immunities: i. Right to vote in federal elections. ANALYSIS . g. PI has no Market Participant Exception iv. Historical/Exclusive power of the State 3. even if neutral on its face. Court justified this on the Commerce Power though.1. STATE TERM LIMITS i. Direct involvement of State Actor . v. Doing business. b. Enacted in 1883 – Made racial discrimination in public accommodations (private entities . Is the Private Actor performing a government function OR 1. Is the activity at issue a protected privilege? a. Higher university tuition for non-residents ii.Two Step Approach: 1. b.S. 14th Amendment Requirement – Participation of State Actors with Private Citizens i. INDIVIDUAL RIGHTS – Bill of Rights and 14th Amendment Due Process/Equal Protection I. access to federal courts Also includes right of interstate travel There may be overlap between the two and Dormant Commerce. U. the State may discriminate i. Relationship to 14th Amendment Privileges and Immunities Clause 1. Constitutional Rights/Bill of Rights ii. 2. STATE ACTION a. Hunting 2. Overlaps – a law might violate both Differences : a. Not Federal Government iii. Employment. Civil Rights Statutes 1. TEST – One of Two Requirements: i. Earning a Living If so. Private entities are NOT State Actors and therefore the 14th Cannot apply. Thornton – 1. PI – only implicated by discrimination whereas DC also is implicated by laws that burden interstate commerce. 14th is the primary restraint on States impeding individual rights. If so. 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. Term Limits v.
Symbiotic Relationship / Joint Enterprise c. Senator leaves property for park to be used by Whites only. Newton – 1. a. CASES – Encouragement by the State i. White neighborhood has a covenant that no blacks can live there. Jehovah’s Witness sought to distribute literature in a privately owned town contrary to the town’s wishes. The Jaybird Democratic Association (all white) excluded blacks from pre-primary elections. Shelly v. v. Kraemer – 1. No State Action – Providing power isn’t a traditional/exclusive State Action. a. a. State courts that aid private parties to perform that function implicated prescribed conduct. she refused to leave and she was arrested for trespass. Jackson v. Petitioner claimed that termination without adequate notice deprived her property without due process. Adams – 1. iv.ii. terminated service petitioner for nonpayment. Terry v. ii. A heavily regulated private utility with a state certificate to sell electricity. Court Cannot Enforce the Covenant because that is state action and enforcement would violate Equal Protection ii. This is all private – No state Action. – 1. Black people bought a home and neighbors sued. Evans v. The state is not promoting or encouraging the effect . Custom / usage of using state criminal trespass statute to refuse service to minorities and conspiracy between state and private actors is State Action. There may be neutral rules that have an undesired effect. Having and running a town is a governmental function iii. Metropolitan Edison Co. Having elections and nominating candidates is part of the government. Court held the park to be a governmental function b/c it is municipal in nature. they were part and parcel of the Democratic party. Adickes v. They were not merely a private club. Alabama – 1. Sufficiently involved with or encouraged by the State so as to be held to the State’s Constitutional obligations? 1. She was warned. d. Abney – 1. SH Kress – 1. Evans v. State court’s ruling here was NOT State action. Marsh v. Court held the town was de facto government a. (Prior Case) Park is open only to whites. CASES – Performing a Government Function i. What happens to the park since it is in violation? Park goes back to senator’s heirs and the court enforced this.
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. b. they are part of Due Process and the Bill of Rights should apply to the States. Except: . DUE PROCESS a. Due Process includes everything in the Bill of Rights. State Action Requirement ii.II. Some rights are so fundamental. 1833 – Bill of Rights did not apply to the States. 2. INTRODUCTION i. 14th Amendment is created with Due Process and Equal Protection a.
i. 7th Amendment Civil Jury Trial Right ii. If so. 5th Amendment Grand Jury Right iii. were the procedures followed adequate? ii. Reputation – Itself alone is not a protected liberty interest 6. 3. If so. or property interest b. Substantive Due Process 1. liberty. Protection against irrational. Williams . Culpability Requirement – State of Mind on the Part of the State Official 1. There must be a life. Procedural Due Process v. TRIGGER . 2.Intentional Misconduct a. Potential Legal Action – It is a “species of property” and is protected by the 14th iii. arbitrary. Identifying fundamental rights not enumerated. b. Procedural – Procedural regularity and adequacy. Driver’s License – State cannot revoke or suspend driver’s license once issued without satisfying due process requirements. but implied in the Constitution. or PROPERTY interest at issue? 2.Protected property interest requiring compliance with due process requirements prior to termination. 5. Must be intentional misconduct – negligence is NOT enough 2. Is there a LIFE. Entitlement to Welfare . a. Substantive – a. What are Protected Property (State law recognized) and Liberty Interests? 1. PROCEDURAL DUE PROCESS i. did the Government act with the requisite state of mind? 3. Due Process is not implicated by Negligent conduct – Daniels v. Continued Employment – NO Protected Interest for continued employment for a nontenured professor with only a year-to-year contract. fundamentally unfair government action b. LIBERTY. Three Questions: 1. 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.
Horowitz b. May be okay to use hearsay or use presumption in favor of government Three Part Balancing Test: Matthews v. 3. Must reasonably apprise parties of their interests and rights. Streater c. Little v. What Process is Due? 1. Examples: a. b. The Government’s interest and the costs of additional or substitute procedures. 2. The nature of the private interest affected c. The risk of an erroneous deprivation through the procedures utilized. iv. It depends on what is at stake. Ohio. Need not be a full trial but something in a meaningful manner at a meaningful time. d. Board of Curators v. No hearing required if completely impractical or if the decision is too subjective to provide a meaningful hearing. Tumey v. General Rule: Pre-Deprivation Notice – Government must tell you beforehand what it intends to do. b. How elaborate do the procedures need to be? i. of Social Services. Ingraham v. and the probable value of any additional or substitute procedures iii. There is no Constitutional right to an appeal. Recklessness . Lassiter v. not one with a financial or other stake in the outcome.Court leaves open the result of whether a state of mind of more than negligence but less than intent would suffice. Dept. OPPORTUNITY TO BE HEARD – a. Wright. Due Process requires State to pay for simple paternity test when putative father is indigent and test will be virtually conclusive of claim. Parent is not automatically entitled to counsel in parental termination proceeding. even n criminal cases . NOTICE – a. State must provide impartial decision-maker. e. Eldridge i. ii.2.
Non-Enumerated Rights 1. Right to vote in federal election 2. Constitutional limits on State’s ability to regulate economic rights. Textual Support – 1. 2. They apply only to the privileges of US Citizenship. the court struck down 159 state statutes without giving deference to the legislative policy judgments. not the States. Rights secured by treaties ii. Privileges and Immunities a. History has not borne out that view. New York - . iii. Slaughter House Cases – The Court rejects the Privileges and Immunities Clause as a significant limitation on State power. Minimum wage laws. Mayor and City of Baltimore – Court holds the Bill of Rights (issue over the takings clause) applies only to the federal government. 2. 5th Amendment – Takings Clause (Due Process) 3. Some laws of the States are Unconstitutional even though they do not violate the express provisions of the Constitution. a. Standard: Fair. Use navigable waters 6. 14th Amendment – Due Process. I. As a result of this decision.c. Result: Before the ratification of the 14th. There are rights that exist outside the Constitution. there were virtually no textual. Barron v. Petition government for redress 3. Habeus Corpus 5. i. ii. Access to seaports 4. The 14th Privileges and Immunities Clause was considered the most important provision by proponents. The Lochner Era – Height of Substantive Due Process 1. Lochner v. Dissent – Unless it is expressly prohibited there is nothing judiciary can do. Privileges and Immunities does NOT apply i. b. and hours of labor. Federal Citizenship Privileges include: 1. Sec 10 – Contracts Clause – States cannot impair the obligation of K 2. SUBSTANTIVE DUE PROCESS ECONOMIC RIGHTS i. Bull a. regulation of prices. Clader v. Reasonable or Appropriate a. Art.
Nebbia v. The state can regulate for the public interest. 3. Court should intervene only if no reasonable person could see validity of the law. ii. reasonableness and appropriateness. But such rights are not absolute. P sold milk for less than permitted and sued arguing the law is unconstitutional. Study’s suggested the temps and flour led to shorter life expectancy. not its belief in good/bad. Dissent (Harlan) – Reasonable minds could differ. There is a limit to State police power and the Courts will decide where the limit is by judging fairness. Parrish – . The guarantee of Due Process demands only that the laws NOT be unreasonable. Court should look to liberty interest in tradition. 1. 2. Court no longer ignores the legislature (Lochner). It is not the choice of the court to decide if the law is good or bad. ii. Normally property and contract matters are private. iv. iv.i. New York – i. If there is a reasonable purpose it is Constitutional. 2. Freedom to K is not an absolute right and has been regulated in the past. a. iii. NY law established a Milk Control Board which could fix milk prices. The Court held the law Unconstitutional b/c it infringed on the freedom to contract and found the law not to be reasonable. Interest in ensuring a local supply of milk and protecting local dairy farmers. NY statute forbade more than 60 hours /week to be worked in a bakery. arbitrary or capricious. If the business implicates public interest. fair or appropriate. b. Abandoning Lochner: The Rational Basis Test 1. not public concerns. c. The court will be deferential so long as there is a rational basis to pass the law. government can regulate. 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. 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. West Coast Hotel v.
The Constitution does not speak of freedom of contract. Carolene Products . ii. Due Process prohibits imposing grossly excessive punishments. Liberty is not absolute or uncontrollable. Philip Morris v. Campbell – Invalidated punitive award of $145 million when compensatory damages were $1 million. Limits on State Punitive Damage Awards: 1. Actual damages were $821. Upheld statute prohibiting the shipment of “filled milk” in interstate commerce. State Farm v. e. The TC instructed the jury to award to punish misconduct and deter misconduct. What is the ratio of punitive to compensatory iii. 3. What other penalties could be imposed 2. .(Most celebrated footnote in Con law) i. Two Types of Review: i. But liberty under the Constitution is subject to the restraints of Due Process. Statutes are entitled to a presumption of Constitutionality and should be upheld if supported by any rational basis. Gore – Court invalidated a state court punitive damages award as “grossly excessive”. What if legislative Purpose is Unknown or Unclear? a. Court will generally sustain the law if any rational basis for the law can be articulated. Sustained the state minimum wage for women. How reprehensible is the D’s conduct? ii.000 and punitive of $79.000 car he painted it decreasing its value by 10%.5 million were assessed. D was assessed $2 million punitive for failing to tell the owner of a $40. Economic Laws – Very Deferential ii. d. Few awards exceeding a single digit ratio between punitive and compensatory will satisfy due process. v.i. United States v. a. Three Guideposts for Punitive Damages: i. Individual Rights – More Rigorous Review 4. BMW of North America v. Williams – A heavy smoker died of lung cancer and widow sued cigarette manufacturer. 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.
This is not something the court is eager to invoke and its difficult to succeed. It’s about things the states were doing about Revolutionary war debt. NOT APPLICABLE to the Federal Government. If minimal the law is constitutional ii. Area already subject to state regulation? 5. Kelo v. Dead letter clause – a. TEST – Is the impairment minimal or severe? i. Strong needs. 2. such as emergency? 2. 3. Applies to any specific interest in physical or intellectual property. Phizer will bring in a $300 million facility.a. This attracts local government b/c it will stimulate economy. a. Any physical invasion is a taking. Taking Property without Just Compensation – “Takings Clause” 1. Broad societal interests? 3. Punitive award based on harm to others who are not parties is a taking without due process. 2. Whether the facility is public is not an issue for the court. Contracts Clause – Art. 4. Harmed caused to others would be relevant to reprehensibility consideration. Sec 10 1. Duration of the law – permanent/temporary 6. vii. ii. Review is Deferential 1. New London – i. Government wants to revitalize an area and hire a development group and it purchased property from residents. No state shall make any law impairing the obligation of Contracts. 1. . even if it doesn’t bother the landowner much. Most states had their own monetary systems and many were not trustworthy. If Severe. P’s don’t think this is a public use b/c they are bringing in a private company. Relief appropriately tailored? 4. Kelo doesn’t want to sell. vi. Conditions imposed reasonable? 5. It is a limit in State’s ability to regulate economic interests. then apply the Allied-Blaisdell Criteria 1. Government cannot take your property unless it is taken for public use and you receive just compensation – The 5th Amendment. certainly there are public benefits.
Griswold v. Look for the most specific and narrow description and ask if that is deeply rooted in tradition b. ii. Law implicates the intimate relation of husband and wife. Concurring (Harlan) – This is a 14th Amendment Due Process case. iii. . SUBSTANTIVE DUE PROCESS RIGHT TO PRIVACY i. since then government didn’t regulate it and it was permissive. Right to die OR right to refuse life saving medication / physician assisted suicide. No penumbra’s or 9th. d. Analysis of Liberty Interests – 1. 1. b. P is director of Planned Parenthood. Connecticut – a. It is 14th only. i. 5th. Concurring (White) – We look to “Liberty” in the Due Process Clause. i.d. Court relies on Due Process to protect privacy interests. Zone of Privacy – Penumbras are found in the 1st. Harlan and White together create the modern view. ABORTION CASES: 1. P’s are charged with providing information and instruction to married persons. c. how specifically do you describe those interests? a. Right to Privacy is a Natural Law – older than the Bill of Rights. It is so deeply rooted in tradition that it violates Due Process. When you articulate liberty interests. 4th. Together these protect the marital relationship. State law makes it a crime to use drugs to prevent conception and to assist another under the first. History of Abortion Regulation a. Creature of late 17th century. and 9th Amendments. 3rd. He is aware his view opens up for decisions like Lochner – self-restraint is critical and they must rely on history. Textual Support – There is none.
3. Bolton – a. and morality 4. what is recognized from the past.b. b. The 14th Protects persons from deprivation of life. Health of Mother – 1. Wade – a. 2. State may regulate to protect potential life c. i. State may regulate for the woman’s health/safety. 2. Holding – Constitutional. Court need not decide when life begins – question for medicine. Third Trimester a. 2. State may only regulate when compelling interests exist b. Holding – TX Law is Unconstitutional. TX law prohibits abortions unless mom’s life is at risk. After 1st Trimester a. State has an interest in the neo-natal life State’s Interests: i. Fetus is not a person – this is consistent with the common law in tort. Majority tries to show tradition and history. The Potential Life 1. there was no prohibition on abortion. What is the legal status of a fetus? a. Roe is unmarried and pregnant and is unable to get a legal abortion in TX because her life was not threatened. i. ii. Banning abortion is permitted. religion. Viability makes State’s interests strong for the potential life b. with 2 exceptions: If necessary for health of woman If necessary to save life of woman c. If you go back to when the C was adopted. Doe v. First Trimester – a. Woman’s liberty interest is NOT ABSOLUTE. Must be performed in a hospital. NO State Regulation b. Roe v. liberty and property. Procedure must be approved by hospital staff committee 3. GA law permitted doctor to perform abortion when based solely upon doctor’s medical judgment that the abortion is necessary. 3. The performing doctor’s opinion must be confirmed by two others . i. Woman’s interests prevail 2. but invalidated the following requirements because they were too significant of intrusions: 1. Viability triggers protection – when potential life can survive outside mother’s womb.
If the State is regulating post-viability but has not banned abortion – the standard is unknown – the court has not decided this issue. . Post-viability – State’s interest in the potential life is HIGH 1. but three principles prevail: 1. c. Roe – i. contraception. Woman has a dominant interest BEFORE viability 2.The Undue Burden Analysis Test. not hinder it. Undue Burden Standard i. 6. Balance changes after fetal viability (more state regulation) 3. Maher v. Pre-viability – Woman’s interests are paramount but State has an interest 1. Liberty extends to marriage. Cannot ban abortion ii. STANDARD . Viability i. Roe v. b. family. only a right protecting the woman from burdensome interference with her freedom to decide. Wade did not establish an unqualified Constitutional right to an abortion. Throughout. Regulation permitted – Court will use Undue Burden Standard 2. Abortion is unique because of consequences on others (fetus) 2. Rejection of the trimester framework.” 2. a. Abortion Funding – a. State can regulate so long as it doesn’t impose an undue burden on the mother’s choice: 1.5. State action must be calculated to inform the woman’s free choice. ii. Indigent people want abortions and the state will fund everything but abortion. State can go so far as to ban abortion but there must be an exception for the life/health of the woman 2. Casey Essential Holding of Roe is retained / reaffirmed Viability i. Court said the government can choose NOT to fund elective abortions through Medicaid funds unless they are medically necessary. Courts obligation is define liberty (includes right to choose but is unique) for all not mandate our own moral code. Such burden exists if it “Places a substantial obstacle in the path of the woman seeking an abortion pre-viability. child rearing and education 1. the state has interest in the mother’s health ii. Applies Pre-Viability ONLY ii.
Other methods can be used. Court adopts the Undue Burden Standard. b. Planned Parenthood of PA v. Minors – No burden with judicial bypass d. ii. Law is specific as to what is prohibited – Requires intent b. 1. pierce/crush the skull and then extract the whole fetus through the cervix.Domestic Violence is an obstacle c. Here Congress sought to: . Holding – All are Constitutional except the spousal notice requirement. (3) Minors must gain parental consent – judicial bypass. a.Protect medical community reputation . Spousal Notice – Undue Burden .Avoid infanticide . (2) provided with all information 24 hours before. 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. Pre-Viability – State may not prohibit any woman from making the decision or impose an undue burden. Carhart – i. Casey – i. Reporting Requirements – No undue burden 7. (4) Married women must notify spouse. Regulations which create a structural mechanism by which the State/Parent may express respect for the . (5) Reporting requirements on facilities. Gonzales Holding: Constitutional a.Protect morality concerns 2. a. 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. PA Abortion law required (1) mom to give informed consent. During First Trimester – Vacuum Method ii. 24 hour Wait – No undue burden b.iii. Banning Methods Partial Birth Abortions a. State cannot ban abortion pre-viability d. (6) Definition of medical emergency – which exempts these requirements. 1. Undue Burden applies to State Regulation. After First Trimester – Standard D&E or Intact D&E Gonzales v. 2000 NE case debated the methods for abortions as well. Procedures: i.
c. Zablocki v. Cousins living with common grandmother. 2. East Cleveland – a. She sues and court finds in her favor. This does not restrict someone’s choice. Law stated a man cannot marry until he pays child-support. There are other ways for the state to collect child support Turner v. This is Constitutional. Don’t want the exception to swallow the rule. Court found violations of (1) Equal Protection .liberty in choosing who to marry. Boraas – a. 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. iv.race discrimination. Roe required exception for life and health b. FAMILY LIVING ARRANGEMENTS . Moore v. Who determines whether the exception applies? The doctor performing the procedure. City has no business defining and regulating blood family living together. c. No need to have a health exception if the evidence suggests it is never necessary. VA banned inter-racial marriage. The health exception could swallow the rule – if health is too broad. Redhail – i. there really is no rule. BUT their judgment will always be just what they are willing to do. . Central Issue – There is something fundamental about the right to marry but there is a tradition on regulating types of marriage. a.Limiting Occupancy 1.potential life are permitted if they are not a substantial obstacle 3. RIGHT TO MARRY 1. Marriage is a special relationship. and (2) Due Process . Safley – b. Belle Terre v. Virginia i. Court said this violates Due Process b/c it conditions marriage on whether or not you have money. There is no deeply rooted tradition when it is outside the context of blood family. Zoning ordinances limiting the number of unrelated persons living in a single family residence. Health Exception for the Woman? a. Loving v.
State law allows “any person” to petition for visitation and the court to grant when in the best interest of the child. Cruzan: Family wanted to stop feeding lady in veggie state. Grandparent visitation dispute. RIGHT TO DIE / ASSISTED SUICIDE 1. CA law says a child born into marriage is presumed to be the child of the relationship. Holding – Adoption is in the best interest of the child. Court was wary of state having too much control whether inmates can marry. Even though the general rule is deference to prison administrators . Does Mom have a liberty interest in deciding what is best for her kids? 1. Gerald is listed as father on birth certificate. Family must prove what she would have wanted.CA law is traditional and most states have similar approach. if natural father has not legitimized his offspring. b. . Troxel v. ii. Holding – State law is too broad. She lives with Carol and Gerald. Adoption a. Under GA law. vi. Mom wants to decide the visitation rights. Mom had an affair with Michael and someone else. Quilloin v. vii. PARENTAL RIGHTS 1. Presumption – Competent person has a liberty interest in refusing life savings treatment a. Granville – i.i. v. 2. Holding – Constitutional . only mom’s consent is required for the kid’s adoption. Michael claims to be the father of Victoria. State regulation permitted inmates to marry only upon permission of the prison superintendant. Michael H.not here. Walcott – i. A fit parent is able to decide what is in the child’s best interest. must be a premise of fit parent. Dad here attempted to block the adoption of his illegitimate son. Gerald D. It recognizes a family unit already in existence – desired result of all but natural father. Michael sues saying the law is Unconstitutional ii. Basic Presumption – Relationship between the parent and child is constitutionally protected. Court held the right to marry is still fundamental in prison. a. resided with Michael and Gerald. – i. She is not competent.
Voluntary and Involuntary euthanasia. expression an certain intimate conduct. Vacco v. Holding – Physician Assisted Suicide is NOT a fundamental right 1. right to die b. Right to assisted suicide v. belief. Glucksberg – i. Serious public-health problem (depression/mental disorders) c. viii. There is a difference between causation and intent. 2. ii. Regulation of liberty interest must be rationally related to legitimate government interests c. State law bans assisted suicide. d.is it a fundamental right deeply rooted in tradition and history? i. There must be a careful description of what the liberty interest is 1.At the heart of liberty is the right to define one’s own existence of meaning 2. Whether the liberty is protected . Related to compelling state interests: a. Holding – They are not the same thing and neither law treats anyone differently. Casey (Abortion case) . Fundamental Right to Sodomy? a.b. Protecting vulnerable groups e. Preservation of human life b. Integrity/ethics of medical profession d. Party argued that a person’s permission to refuse life saving medical treatment in NY is essentially the same thing as physician assisted suicide. Quill – i. Deeply rooted history prohibiting assisted suicide 2. History and Tradition Analysis – Two Parts a. SEXUAL CONDUCT 1. Four doctors declared they would assist terminally ill patients sought declaration that the law is unconstitutional. Bowers v. Hardwick – . Equal Protection is argued for permitting one and not the other ii. Presumption – Liberty presumes an autonomy of self that includes freedom of thought. Washington v.
not mandate its moral code. History and Tradition 2. 2. Both men were arrested. Overrule Bowers – Courts obligation is to define liberty. entered home and saw two men having anal sex. 2. History and Tradition: 1. . There is no connection between family. marriage. Lawrence v. TX law punishes deviate sexual intercourse. Texas – i. It is a factor. the law will be upheld. but not conclusive. ix. Morality is not a rational basis for the TX Law iii. LIBERTY INTERSTS . Police responded to a weapons disturbance. iv. Court UPHELD a Georgia statute which criminalized sodomy.STANDARD OF REVIEW 1. Are people free as adults to exercise a sexual liberty? ii. There is no tradition of laws against gays – sodomy laws existed against all people. No deeply rooted tradition or history b. So long as there is a rational basis for Congress to pass the law – a rational relation to governmental interest. Holding – Conduct here is NOT Protected – No fundamental right 1. Rational Basis – Standard for any liberty interest challenge. procreation and a homosexual activity. Holding – Unconstitutional Law 1. Gay laws are more modern – hardly deeply rooted. Can GA make this a crime? ii. Hardwick was charged with committing sodomy against another man.i.
Strict Scrutiny 1. AND 2. Strict Scrutiny 1. Interstate Travel c. Voting b. Discriminatory Effect is not sufficient for a Constitutional claim. Gender? 2. Requirements: i. Suspect Classifications a. Law is rationally related to achieving that interest a. Said to be “Fatal in Fact” because rarely do laws subjected to it withstand the Constitutional challenge. AND 2. Legitimate governmental interest. Discriminatory Intent for Constitutional Violation. Fundamental Rights a. AND 2. ii. b. State of Mind 1. Must show an important governmental interest. Gender? 2. Compliments Due Process – Not substantive however: 1. Intermediate Scrutiny 1. Maybe the State can act. Rarely results in the law being Unconstitutional Is there a heightened rational basis standard? c. Religion / Speech ii. EQUAL PROTECTION – States shall not deprive Equal Protection of the laws a. Must show a compelling governmental interest. Categories i. Levels of Review: i.III. iii. Rational Basis Review (Deferential) 1. Alienage/Nationality – For non-political functions and nonimmigration / naturalization matters c. but its application to groups of people is challenged b. Wealth – if requirement impacts fundamental rights (voting/marriage) 3. Law substantially furthers and is closely related to that interest iii. Law is narrowly tailored to serve the interest a. a. It may serve as evidence of intent. Race b. but States must treat people equally 2. State Action ii. It doesn’t tell states what to do. Illegitimacy . Intermediate Scrutiny 1.
New York – 1. No need to eradicate the problem. This is not Due Process because there is a rational basis that such a law regulates government interest in traffic safety. iii. . Court – Those grandfathered in are part of the French Quarter i. only rational. You can advertise about your own business but not others. The purpose of the law is to clean-up the area. New Orleans v. Wealth – if no impact on a fundamental right (bankruptcy fee) d. Railway Express Agency v. Traffic law regulates advertisements on trucks. i. Not arbitrary / irrational. It is rational for the court to impose ban – safety risk ii. NY City Transit Authority v.4. Court does not need to eradicate the problem (complete ban) c. a. Disability 4. 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. P’s have only been around for 2 years and only 2 people have been around for 8. Dukes – 1. No facial issue of gender or race iii. Alienage/Nationality . RATIONAL BASIS REVIEW i. Beazer – 1. a. Challenge: Grandfather Clause is Equal Protection Violation. Law need not be perfect. Police Power Regulations Generally (economic / social) 2.Immigration/Naturalization when Congress regulates 5. Someone who sold ad space to another sues. real and related to the law being challenged i. Applies to everyone equally ii. Distinctions must be rational. Rational Basis Review (Deferential) 1. The law is broad and evenhanded. a. Age 3. Sexual Orientation? iii. Ban on street food vendors – you cannot be a vendor unless you have worked there for 8 years. P’s here argued this is not rational b/c some of these people would be fabulous employees. NY law requires State not to hire anyone as employee if they use methodone (replacement for heroin addicts). Very Deferential ii. b. Court is very deferential ii. Court – No Violation i.
if you were not active in the RR as of 1974 you could not receive its retirement benefits. MO Compromise of 1820 established the free states of the north. WV cannot legally ban people from serving . then you could stay qualified 3. If you were about to retire. b. Strauder v. 2. D complains that this is not equal protection. Holding – Upheld the Federal Law a. Government feared there was a windfall from both sources. Many of the workers were getting benefits and social security. Challenge – The 1974 date is arbitrary and irrational 4. STRICT SCRUTINY – Court is very suspicious of violation i. ii. 2. Slaves must be returned to the south iii. West Virginia – WV did not allow blacks to serve on a jury. then you could continue to receive them c. HE sues in Federal court under diversity citizenship. Dissent – There is no safety risk – concerned about race/poverty pretext b/c of the type of people on methodone. This led to war and Constitutional Amendments. cannot claim rights and privileges. Federal Law . When there are plausible reasons for what Gov’t did. Sandford – i. Congress’ actual intent is irrelevant. you could continue to receive them b. Court agreed. iv. Therefore they certainly have the power to limit who gets the benefits. 13. RACE 1. 3/5 vote requirement ii. 1. Congress can ban importation of slaves b. If you were working as of 1974 or had a connection as of then. Dred Scott v. History – Constitution had recognized slavery i. 14. Court rationalized the decision by asserting the MO Compromise was Unconstitutional – It effectively took property (slaves) without just compensation. Fritz – 1. Holding – Scott is NOT a citizen.b. Court can speculate on its own to find a rational basis. Congress had the power to stop all benefits. 15 2. MO slave escapes to the north. Classifications: a. United States RR Retirement v. If you were retired and got both. They were trying to make it financially sound. Scott argues that he is a free man having escaped to the north. e.
BUT there can be qualifications for the jury: Males. citizens. More than buildings. Kansas case suggested that facilities were equal – but is segregation Constitutional? i. Social prejudices cannot be overcome by legislation ii. Ferguson – a. curriculum and salaries 2.on jury based upon race. Brown v. Intangibles matter . Subjected all people from Japan to a curfew and into evacuation centers. Holding – “Separate is inherently Unequal” . property owners 3. iv. FDR gave orders to protect against sabotage and espionage. He was convicted of violating the Order. Legislation is powerless to eradicate racial instincts iii. Education is crucial in modern society and an important role of government to provide. Issue is over school desegregation. Dissent (Harlan) – Constitution is Color Blind 4. educated people. Parties argued over the history of the 14th – what the drafters though about segregation in schools. Holding – Separate but Equal i.Unconstitutional i. ii. Based upon war powers – deference to military decision c. b. Equality in tangibles is not enough ii. Results were inconclusive. the Constitution cannot put them on the same plane. P is US citizen of Japanese consent. 1890 Louisiana law required train passengers to have equal but separate accommodations for white and colored people. Exclusion from a threatened area has a definite and close relationship to the prevention of sabotage/espionage. b. 14th was not meant to change segregation practices – If one race be inferior to another socially. age qualifications.Constitutional i. Law is narrowly tailored 1. Korematsu v. P was 7/8 white and was arrested for refusing to vacate a seat for whites only. (Not yet to the modern application) Holding . b. 1. He claims violation of Equal Protection b/c is targets only the Japanese. 5. No violation of the 13th – Not considered slavery or a badge of it. c. Plessy v. Court adopts Strict Scrutiny for Racial Group Issue – Suspect Class i. United States a. Board of Education – a.
California a. Deprives them of benefit they would receive with whites c. CA prison system assigns new prisoners to blocks by race. Virginia – a. VA offered to suspend charges if they left the state forever. 3. There is a substantive due process issue – freedom of marriage 8. The purpose was to reduce fighting and violence. Purpose of the law was to prevent corruption of the blood and preserve racial integrity – Endorsement of White Supremacy. Must make a prompt and reasonable effort ii. Johnson v. because No State shall… The answer is NO. Could it be Constitutional for Congress to do this? b. Therefore the 5th has an equal protection component. Remedy – District courts should decide because every district is unique and they are proximate to the issue. Race classifications cannot define a crime. There is no valid legislative purpose ii. Law only applied to whites marrying blacks (not Asians/Hispanics). c. Bolling v. b. Dissent – There is a rational basis and there should be deference to prison administrators. c. VA argues no Equal Protection because penalty applies to blacks and whites equally. b. Sense of inferiority of status in community 2. State law bans inter-racial marriage. The 5th Amendment has a due Process clause too. Court said this violates equal protection and was purely a race distinction. Affects the motivation of the child to learn. .1. iii. Congress required segregated schools in DC. Race is never a rational basis for defining a crime. Loving v. Admit students with all deliberate speed 6. Guideposts: i. Sharpe – a. Equal Protection applies to the Federal Government. i. The question is whether Congress is subject to the 14th. P married in DC and were convicted upon their return to VA. 7.
P is Chinese and brings suit b/c 240 Chinese businesses have not been granted licenses but whites had despite owning wooden facilities. Yick Wo v. SF passed ordinance banning laundry in wooden buildings. Davis – a.ii. Holding – No Equal Protection Violation 1. . Holding – Unconstitutional 1. 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. Applied with an evil eye and unequal hand 3. Intentional Discrimination – May exist despite facially neutral law. and communicate. Practical denial of Equal Protection 2. write. REQUISITE STATE OF MIND 1. Rational Basis for the law – YES. required prospective officers take a test to become a police officer. acted with discriminatory intent. Washington v. i. however had systematically sought to enroll black officers. Disparate impact /effect alone is insufficient. On its fact it is not discriminatory. Four time as many blacks as whites fail – test had a significant impact on blacks. TO get a license you must pass a Board. DC police dept. Hopkins – a. i. It is relevant as evidence of possible intent but not conclusive. They were concerned about fires. There is no allegation the dept. It is reasonable to require officers to read. 2. The Dept. To violate Equal Protection Discriminatory Intent a.
Taxes. licensing. Justifications / Government Interests: i. General Principles – a. i. 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. Med School reserves 16 of its 100 spots for members of minority groups. Feeney – a. Upheld Mass law giving hiring preference for state jobs to veterans. 4. Achieving diversity in schools 1. Level of Scrutiny – Strict when race is a factor b. If schools are already diverse.. i. this argument is gone 2. Regents of University of CA v. 2. Justifying past discrimination by the entity engaged ii. Step 1 – Identify Compelling Interest Step 2 – Is the procedure narrowly tailored to achieve that interest 3. Bakke – a. Holding – No Equal Protection Violation 1. Court is more deferential to law schools/military than elementary schools c. There was a legitimate reason to have the preference. This group is almost entirely men. etc would all be violations otherwise. Argument was gender discrimination – the effect will occur. welfare. Individualized consideration of every file – Not Quotas ii. 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 . Grutter 2. Analysis – a. Holding – Reserving spots based on race is Unconstitutional 1. Set numbers and racial balancing are inappropriate iii. AFFIRMATIVE ACTION 1. Entity need not use other methods before using race. Personnel Administrator v. Narrow tailoring: i.
They looked at the racial balance of the schools and the race of the child. Point system has the effect of making race a decisive factor. The admissions office sought the “critical mass” of students in underrepresented areas to be students and participate in the classroom. a. Narrowly tailoring doesn’t require exhaustion of every conceivable race-neutral alternative. There is already strong racial mix 2. Grutter v. 5. Seattle School Dist. Minority students automatically get 20 points under this special category and there is no individualized consideration.If it furthers a compelling interest. At secondary schools. Bollinger – a. kids are allowed to preference where they go. Race can be a factor so long as everyone is evaluated individually Narrowly tailored 4. Parents Involved in Community Schools v. i.2. Michigan law admissions are challenged by a white resident who was denied admission. There were various factors and a “Miscellaneous” section. But administrators could force people to go elsewhere to balance diversity. It is a number which encourages underrepresented minorities to participate. 6. Gratz v. Critical mass was the narrow tailoring. 2. i. It is too automatic – more careful consideration of each file is required. Holding – Unconstitutional 1. . Holding – Unconstitutional 1. Rule . Court Upheld Procedure 1. Bollinger – a. it doesn’t violate the Constitution so long as it is narrowly tailored to that interest. P was a white resident denied admission to University of Michigan. Diversity as Compelling Interest? a. Compelling Interest – Diversity in the classroom 3. Not Narrowly Tailored to the goal of achieving educational and social benefits asserted to flow from diversity . Undergrad admissions office used a point index system (max 150 points). – a. i.plans are directed only to racial balance.
OK law allows women over 18 can purchase beer. Intermediate Scrutiny – 1. Uncertain Standard of Review – Originally the court applied a rational basis review. ii. Court held the classification to be arbitrary b. i. Intermediate Scrutiny ?? a. Craig v. Frontiero v. but men cannot until age 21. 2. Virginia sets the admissions requirements and admits men only – goal is to produce citizen-soldiers.iv. United States v. It can’t substantially further the interest if men can still possess and consume. Is this an equal protection violation i. Reed v. Richardson – Court invalidated federal law permitting men to receive an automatic dependency allowance for their wives. Law must serve and important governmental interest AND 2. Court held the classification must have a rational relationship to a state objective sought to be advanced. There is a tradition of gender discrimination 2. Substantially further / closely relate to that interest iii. Female sought admission and was denied. Reed – Law preferred men to women when two persons were equally entitled to be the administrator of an estate. GENDER DISCRIMINATION 1. VA proposed a plan to adopt a parallel program for women . a. Boren – i. b. but they cannot purchase. VMI admissions clause is at issue. Men can possess and consume. 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. Classification based upon gender are inherently suspect and must be subjected to “close judicial scrutiny” ii. Holding – Violation of Equal Protection 1. Virginia – i. but required servicewomen to prove their husbands were dependent.
Substantially furthers – Yes – directly compensates them b. Governmental Interest – Remedial discrimination 1. Ambach v. Remedy – Parallel program is not equal a. c. They are giving women benefits that they wouldn’t give men. Remedial Discrimination a. Test – Intermediate Scrutiny iii. ii. He was rejected and sues based on Equal Protection. v.Rational Basis Scrutiny: . Important Gov’t objective – Redressing Past Discrimination 2. This is a gender distinction. “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. General Rule – Strict Scrutiny Gov’t Function Exception Applies Here . Alumni. Holding – Constitutional 1. They do this as a remedial measure – Typically women were paid lower wages for so long. b. Standard of Review – Strict Scrutiny a. Man wants to be admitted to an all women’s nursing school. money.Governmental Function (Rational Basis) 2. ALIENAGE DISCRIMINATION – Suspect Class 1. ii. resources.” Approaches strict scrutiny 1. Webster – i. The state law that prohibited the hiring of public school teachers who are aliens and not intending to become citizens. Court says NO – this does not fix discrimination against women. Holding – Admissions Practice is Unconstitutional 2. Califano v. There is no evidence of past discrimination against men as nurses.ii. for Women v. Mississippi Univ. Norwick – a. Exception . Hogan – i. Law makes it possible for women to get higher retirement benefits. opportunities 3.
i. Holding – Amendment is Unconstitutional 1. lawyers. Romer v. Evans – a. Federal law governing Immigration / Naturalization – No Strict Scrutiny a. CO Constitution Amendment prohibits protective status for homosexuals in Colorado. NOT a Suspect Class 2. 3. Amendment was challenged based on Equal Protection. All state employees. Law does not burden a fundamental right or target a suspect class – No Strict scrutiny b. Doe 4. Other areas are not important and do not apply – Too Broad 1. Rational Basis Review a. engineers. When an important governmental function is at issue (police officers and teachers) rational basis review is appropriate ii.i. Plyler v. SEXUAL ORIENTATION 1. It is a restraint on what local government can do to protect a class of people and denies them access to the legal system . Some communities before this said you cannot discriminate against gays. Illegal Aliens – No strict Scrutiny. Standard of Review – Intermediate Scrutiny / Rational Basis a. the amendment overruled such ordinances. Congress has plenary authority to decide how one becomes a citizen vi.
Murgia – We all age and there is nothing inherently discriminatory about it. Rational Basis Review – i. City refused to grant the permit. b. but it has never reached the pervasiveness of discrimination based on race and gender. Anyone else would just have to get the city council to pass an ordinance d. AGE DISCIMINATION 1. 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. Jeter. Cleburne v. Zoning ordinance required special permit for group home for the mentally retarded. Cleburne Living Center – a. MENTAL RETARDATION / DISABILITY 1. Not Politically Powerless . Standard of review – Intermediate Scrutiny 2. Thus it does not command extraordinary protection b. Mass Board of Retirement v. Standard of review – Rational Basis 2. Desire to hurt a class of people is NOT a legitimate governmental interest Fails rational basis vii. apts. There is no indication anyone of a particular age is without political power.c.(Child Born out of Wedlock) 1. etc). dorms.Legislative bodies are responsive to their needs and demands. Ought to be heightened though . ILLEGITIMACY . they would need another Amendment. viii. ii. ix. Standard of review – Rational Basis 2. Disability to class of people . Lucas – a. Discrimination based on birth is out of an individuals control. They said this violates equal protection and court agreed. Mathews v.To gain protection.
Unconstitutional – There is no rational basis to believe the home poses a special threat to the city’s legitimate interests. Standard of Review – a.iii. WEALTH DISCRIMINATION 1. Intermediate .If combined with fundamental right such as voting or marriage . x. Rational Basis when standing alone b.
Baker v. Not Narrowly Tailored – Excludes people who are interested and includes people who are not interested 2. One Vote a. State must justify why they allow for such differentiation in size. Virginia Board of Elections – Poll taxes are not appropriate. Compelling Interest – making sure people who vote are interested 2. If more than a single digit disparity – no justification. Interstate Travel 3. Types of Fundamental Rights: 1. . Strict Scrutiny – Voting is a fundamental right 1. Districts with power were all white – this motivates the court to get involved instead of claiming political question iii. Kramer v. Speech iii. 25% of the state’s population was electing a majority of the senators and nearly members of the house. FUNDAMENTAL RIGHTS i. Voting is a fundamental right. Alabama requires reapportion every 10 years – but none had taken place for 60 years. Sims – State failed to reapportion the districts. Only those who own property (schools are financed by property taxes) and who have kids in schools are eligible. Voting 2.f. b. Voting – Denial / Qualification of the right to vote 1. i. Carr – Equal Protection violation if the challenge is that the district lines are not equal in size.Law Limits who can vote in a school district election. Fundamental Right – One Person. Religion 4. Reynolds v. i. Votes must carry equal weight across districts b. Harper v. Political Question? a. Strict Scrutiny: 1. Union Free School District . Apportionment – Drawing of district lines. ii. 2. Standard of Review – Strict Scrutiny ii.
They say there is no objective baseline to measure the districting. c. It is not justiciable ii. PA 2000 census involved political gerrymandering by the republicans. Here there was no success. Bandemer 2. Equal Protection requires states to make honest and good faith efforts to construct districts of roughly equal population as possible. Davis v. But if you can prove the reason behind it is discrimination then it violates equal protection. Overrule Davis v. The majority always controls drawing districts. They pocketed blacks in voting districts to have majority minority districts. The court said if the only justification is race. Mobile v. The opposite occurs. but one election is not enough to make a determination. Jubelirer – i. Bandemer – i. b. Vieth v. 3. It must be a consistent disadvantage. Reno – i. Democrats challenged it b/c it was designed to favor republicans. Intent to discriminate against an identifiable political group b. Two-Prong Test: a. Redistricting was done by republican house. This is an equal protection claim. Bolden – i. ii. . d. Holding – Issue is Justiciable 1. Holding – NOT JUSTICIABLE 1. This will be difficult to prove. The republicans argued that the court shouldn’t hear it b/c it is a political question. The court says that it does not violate equal protection to have at-large districts. There is no standard and it is a political question.3. Shaw v. Partisan Gerrymandering – Drawing lines according to political party / racial lines a. Actual discriminatory Effect (success) 2.
FL SC – Direct a re-count of under-votes (hanging chads) 1. Privileges and Immunities – Right to be treated as a welcomed visitor c. No other instructions were given. Strict Scrutiny – 1. Equal Protection – votes will not be treated equally. 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. 1. Textual Support – Not expressly in the Constitution. Right to Travel – Fundamental Right 1. Bush v. Voting methods are not subject to strict scrutiny iv. Gore – i. US SC – Takes the case and decides over the course of a few days. Holding – Unconstitutional i. There are no constitutional requirements on how states conduct voting. ii. Saenz v. which is not permitted . CA limited the max welfare benefits to newly arrived residents. Violation of Equal Protection iv. iii. e. Law doesn’t treat new citizens the same – creates classes of residents. Law says CA will not pay more in welfare for their first 12 months than citizen would have gotten from the state they left. Purpose is to eliminate the financial incentive. 3. Implied in Commerce Power . 14th Amendment – Right to be treated like other citizens if becoming resident 2. Roe – a. Bush challenges the procedure. Its benefits are higher and it fears people will come just for that reason – it will cost them more money. Recount to determine the will and intent of the voter. Issues include that one person may have voted for multiple candidates and some votes were not clearly indicated (hanging chads). b. 2.Citizens can enter / leave another State anytime b.then it violates equal protection. If you draw crazy lines to make it happen. a. then that is a problem.
Freedom of Speech and Right to Vote do not imply right to an education 1. i. Rational Basis Review 4. v. Education may help to exercise those rights c. Plyler v. Texas law says no education for illegal alien children. No Fundamental Right to a Public Education b. Wealthy are not a suspect class 2. b. Challenging the Kansas School funding program. The law is irrational b/c evidence suggests illegal aliens do nt use the services. and there is not showing they impose greater costs 5. Fundamental Right / Suspect Class? a. Welfare and Education 1. No explicit guarantee in the Constitution ii. P’s are parents of kids in low-income families. Holding – Unconstitutional 1. Rational Basis Review – No Suspect Class or Fundamental Right . Doe – a. Standard of Review – Rational Basis 3. Wealthy districts get more money than poorer districts. Illegal aliens are not a suspect class. Montoy v. Is Education a Fundamental Right? i. They are suing for wealth discrimination because a TX program provides funding to schools based on property taxes. Financial reasons are not compelling – they could solve the problem by reducing amount offered. School Dist. b. Bullock decided school funding was unconstitutional. Kansas (Handout) – a. San Antonio Ind. There is no fundamental right to education. Rodriguez – a.2. v.
“The legislature shall provide for education and finance of educational interests of the State. 14th Amendment Textual Basis: i. Alfred H. Mayer Co. Is Congress enforcing the Amendment or trying to change the substance? c. 14th does not apply – No State Action. Jones v. Can Congress only prohibit and provide remedies for actual violations of the 14th? iii. Rely on 13th – applies to everyone b. NOT Substantive ii. Can Congress prohibit actions that are not violations of the 14th? OR ii. Section 5 – “The Congress shall have power to enforce this article by appropriate legislation. a. There is a remedy if there is discrimination for contract or property. State Constitution provides greater protection i.i. IV. Provision provides that everyone gets equality of treatment according to contract / property. – 1. Affirmative Grant of Power – what is the power? b. but more scrutiny if issue rises to denial of public education. Remedial. iii.” ii. CONGRESSIONAL ENFORCEMENT OF THE 14TH AMENDMENT a. Jones complained that D refused to sell them a home b/c they are black. Similar to rational basis review – Defer to Congress . They relied on Federal law to be able to buy the home. 14th . Fundamental Question – What does it mean to enforce Sec. Defining the Enforcement Power – 13th. i. Level of Scrutiny – Rational Basis for finance issues. It has a disparate effect on minority students BUT must show discriminatory intent c. Here there are two private actors. Education is a fundamental right in Kansas.” ii. 1 of the 14th? i. How does the Court decide what the “badges and incidents of slavery” are? i. 15th i.
Apply the Congruence and Proportionality Principles . Court held Congress can act if a state is not currently discriminating. Its effect nullified NY law requiring voters to read/write in English. Congress can reach private racial discrimination. Could Congress rationally conclude the law might result in an Equal Protection violation? ii. Rational Basis almost anything will be disproportional b.ii. iv. YES – Drafters granted the same power as the Necessary and Proper Clause provides. The 15th Amendment is the basis for the Voting Rights Act. Federal Law is Constitutional a. Morgan – 1. Literacy tests have been used in the past to discriminate and could be used in the future d. 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. Can Congress nullify state law by legislating under Sec. Similar to the Necessary and Proper Clause because States have discriminated in the past. 2. iii. Katzenbach – 1. b. Describe / define the Constitutional right at issue 1. Katzenbach v. iii. Examine the congressional record for evidence of a pattern or history of discrimination on the prohibited basis. Standard of Review – i. How likely is it that there will be a violation of the Constitution a. Suspect Class/Fundamental Right Most things will be proportional and reasonable for Congress to provide remedies ii. Court will defer to Congress 3. 5? a. Opens the door to Congress defining the substance of the 13th c. Congress can act at its discretion. The Congruence and Proportionality Test i. South Carolina v.
Congress can act 2. Congress lacks power to make States subject to suit iii. Congress is trying to change the substance of 1st Amendment ii. City denied church a building permit and the church challenged under RFRA.e. 3. thus purporting to abrogate the State’s constitutional immunity. Congress doesn’t have power to re-define the substance of the 14th. What about disability distinctions regarding employment? Rational Basis Review. Kimel v. i. It is remedial. it is not trying to prevent religious discrimination by States. RFRA is out of proportion to any remedial purpose. Flores – 1. If there is an actual violation. 1. 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. Florida Board – 1. of Alabama v. Remember. Context – The most common context for recently litigated cases is when Congress has attempted to subject States to suit for violations of federal statutes. If there is not an actual violation – Much more scrutiny. Violates the Constitution only if it is irrational ii. age distinctions get Rational Basis Review i. 2. Holding – RFRA is Unconstitutional i. History or pattern of discrimination of age? NO iii. . Boerne v. Garrett – 1. Board of Trustees of Univ. ii. Congressional Power to enforce applies: 1. a. Is it proportionate? NO b. What Congress wants to accomplish must be proportional and congruent to the authorized power. Age discrimination case. 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. Federal Law allows for punitive damages and other things.
b. There is a pattern of discrimination of access to courts b. Morrison – 1. b. State Action is missing to justify Section 5. for 12 weeks with other limitations – some people are exempt from its benefits. State employer must allow either parent the opportunity for unpaid leave. There is a long history of men being discriminated on the basis of stereotypes ii. 2. Lane – 1. This is proportional b/c the remedies are modest. Someone sues Nevada for not getting the required leave. Tennessee v. Gender discrimination at issue – Intermediate Scrutiny i. Remedies – Injunctive relief and require states to take reasonable steps for accessibility. Access to the court is a fundamental right. No pattern or history ii. a. Remedy is unpaid leave (not paid). Proportionality – YES 1. While disability is not a suspect class. Can congress create a civil claim for domestic violence? a. Remedies are modest and narrow. vi. Hibbs – 1. It requires government conduct. Constitutional – Congress exercised valid power v. NO because the cause of action is between two private parties.a. Title II of Disability Act and access to courthouses. . Person was unable to access the court and he had to crawl upstairs. when paired with a fundamental right a more rigorous review is necessary. It is disproportional iv. Family Medical Leave Act. Can Congress subject NV to suit? a. Unconstitutional i. United States v.
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