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Marbury by wangnianwu


									                      Cases for Multiple Choices in Constitutional Law

                                      Uncle Duke (Dec 06, 2010)

Marbury (Marbury was appointed a justice of the peace by President Adams, but New president refused to
deliver commission to Marbury, so Marbury sought a writ of mandamus from USSC)
     (1) Section 13 of the Judiciary Act of 1789 authorize USSC to issue a writ of mandamus.
     (2) Constitution declares that USSC “shall have original jurisdiction in all cases affecting
         ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all
         other cases, USSC shall have appellate jurisdiction.” In Marbury’s case, USSC had only appellate
     (3) “To issue a writ of mandamus to an officer for the delivery of a paper is in effect the same as to
         sustain an original action for that paper, and therefore, seems not to belong to appellate, but to
         original jurisdiction.” So, USSC may direct a writ of mandamus to the courts, but cannot issue
     (4) Thus, Section 13 of the Judiciary Act of 1789 is unconstitutional.

Martin (Martin lost in the Virginia Court of Appeals regarding a land dispute, but USSC remanded the
case to the Virginia Court of Appeals in his favor. The Virginia Court of Appeals claimed that Section 25
of the Judiciary Act was unconstitutional insofar as it extended the appellate jurisdiction of USSC to
Virginia Court of Appeals.)
     (1) The 6th Article declares that “this constitution, and the laws of the United States, which shall be
          made in pursuance thereof, and all treaties made, or which shall be made, under the authority of
          the United States, shall be the supreme law of the land, and the judges in every state shall be
          bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.”
     (2) Thus, Appellate power of the United States must extend to state tribunal.

McCulloch (Maryland wanted to tax a branch of the Bank of the United States within Maryland.)
   (1) The nature of Constitution requires that only its great outlines should be marked, its important
       objects designated, and the minor ingredients which compose those objects be deduced from the
       nature of the objects themselves.
   (2) To the enumeration of powers granted to Congress is added that of making “all laws which shall
       be necessary and proper, for carrying into execution the foregoing powers, and all other all other
       powers vested by this constitution, in the government of the United States, or in any department
   (3) The clause cannot be construed to restraint the powers of Congress, because: By language,
       employing the means necessary to an end is generally understood as employing any means
       calculated to produce the end; By intention, the clause was placed among the powers of Congress,
       not among the limitation on those powers.
   (4) Thus, even establishing a bank is not among the enumerated powers, Congress has the power.

McCardle (McCardle was charged for impeding reconstruction. He sought habeas corpus but lost the case,
and appealed to USSC.)
    (1) USSC’s appellate jurisdiction is conferred by the Constitution, but it is conferred with such
        exceptions and under such regulations as Congress shall make.
    (2) The provision of the act 1867, affirming the appellate jurisdiction of USSC in cases of habeas
        corpus is expressly repealed, (but only appeals from Circuit Courts.)

Allen v. Wright (Black people sued IRS for not carrying out its obligation to deny tax-exempt status to
private schools that discriminated on the basis of race.)
    (1) Art III standing:
              (a) distinct/palpable/immediate or imminent “concrete” particularized (if shared) injury.
              (b) Causation – injury fairly traceable to defendant’s challenged action.
              (c) Injury likely redressed by remedy sought.
    (0) The Constitution assigns to the Executive Branch, and not the Judicial Branch, the duty to take
        care that the laws be faithfully executed.

Lujan v. Defenders of Wildlife (Endangered Species Act extended to actions taken in foreign nations, but
a revised regulation reinterpreted it to require consultation only for actions taken in US or on the high seas.
Defenders of Wildlife sued the Secretary of the Interior, seeking an injunction that requires the Secretary to
promulgate a new regulation to restore the initial interpretation.)
     (1) Standing requires a factual showing of perceptible harm and redressability.
     (2) The province of the court is solely to decide on the rights of individuals. Vindicating the public
         interest is the function of Congress and the Chief Executive.

    (1) Pre – During – Post/After ISC
    (2) Commercial/Economic Activity or Not
    (3) Local vs. Non-Local Nature/Effects
    (4) Production/Mining/Farming vs. Commerce
    (5) Direct vs. Indirect Effect on ISC
    (6) Close/Intimate/Substantial Effects on ISC

Gibbons v. Ogden (Ogden was exclusively licensed to operate a ferry between NY and NJ under NY law,
but Gibbons’ ferries were licensed under a statute enacted by Congress. Gibbons necessarily enter NY
    (1) Commerce is traffic, but it is something more: it is intercourse.
    (2) Interstate Commerce includes anything that has effect on more than one state.
    (3) Regulation means the power must be exercised whenever the subject exists.

Wickard (Filburn was penalized for harvesting more wheat than his allotment.)
   (1) Filburn’s activity had a substantial economic effect on the interstate commerce because (a) similar
       cases can add up and (b) he decreased the market demand.

E.C. Knight (USSC held that Sherman Act did not reach the sugar refining monopoly.)
    (1) Commerce succeeds to manufacture, and is not part of it. Manufacture affects interstate
        commerce only incidentally and indirectly.

Houston, E.W. Texas Ry. (ISC Commission can set rates for the intrastate route.)
   (1) Wherever the interstate and intrastate transactions of carriers are so related that the government of
       the one involves the control of the other, it is the Congress, and not the State, that is entitled to
       prescribe the final and dominant rule. There is a close and substantial relation between two

Champion v. Ames (Interstate transportation of foreign lottery tickets is prohibited under ISC clause.)
   (1) The carrying from one State to another by independent carriers of things or commodities that are
       ordinary subjects of traffic, and which have in themselves a recognized value in money,
       constitutes ISC.

Schechter Poultry [insert rooster sound effect here] (The poultry was shipped from the rail terminals to the
Schechters’ slaughter house and from there to butchers who sold them directly to consumers. The
Schechters were convicted of violating the National Industrial Recovery Act.)
    (1) The mere fact that there may be a constant flow of commodities into a State does not mean that the
        flow continues after the property has arrived and has become commingled with the mass of
        property within the State and is there held solely for local disposition and use.
    (2) Where the effect of intrastate transactions upon interstate commerce is merely indirect, such
        transactions remain within the domain of state power. (The hours and wages have no direct
        relation to ISC.)
    (3) The Congress cannot delegate its legislation power. (Panama Refining and Schechter are the only
        two cases.)
Carter Coal (The Bituminous Coal Conservation Act regulated the relationship between labor and
management regarding wage and hours.)
   (1) The word “commerce” is the equivalent of the phase “intercourse for the purpose of trade.”
   (2) The word “direct” implies that the activity or condition invoked or blamed shall operate
        proximately – not mediately, remotely, or collaterally – to produce the effect.
   (3) The federal regulatory power ceases when interstate commercial intercourse ends; and,
        correctively, the power does not attach until interstate commercial intercourse begins.

Jones & Laughlin Steel (The National Labor Relations Board charged Jones & Laughlin with the unfair
labor practice of firing employees because they sought to organize a union.)
    (1) Constitution is not designed as a suicide pack.
    (2) Although activities may be intrastate in character when separately considered, if they have such a
         close and substantial relation to interstate commerce that their control is essential or appropriate to
         protect that commerce from burdens and obstructions, Congress cannot be denied the power to
         exercise that control.

Darby (This case overruled Hammer. USSC upheld the Fair Labor Standard Act which prohibited the
shipment in ISC of goods manufactured by employees who were paid less than a prescribed minimum
wage or who worked more than a prescribed maximum number of hours.)
    (1) Whatever their motive and purpose, regulations of commerce which do not infringe some
        constitutional prohibition are within the plenary power conferred on Congress by the Commerce
        Clause. (indirect regulation)
    (2) Congress’ power extends to those intrastate activities which so affect interstate commerce as to
        make regulation of them appropriate means to the attainment of a legitimate end – the exercise of
        the granted power of Congress to regulate ISC. (direct regulation)

Heart of Atlanta Motel (Title II of the 1964 Civil Rights Act provides that all persons shall be entitled to
the full and equal enjoyment of goods, services, and accommodations of any place of public
accommodation without discrimination or segregation on the ground of race, color, religion, or national
origin. The Motel sought a declaratory judgment that Title II was unconstitutional.)
     (1) Discrimination by race or color places burdens upon ISC. The evidence indicated a qualitative as
          well as quantitative effect on the interstate travel by Negroes.
     (2) It does not matter that the motel is of a purely local character because the power of Congress to
          promote ISC also includes the power to regulate the local incidents which might have a substantial
          and harmful effect on ISC.

Katzenbach v. McClung (a family-owned restaurant in Alabama, challenged the constitutionality of
applying Title II of the 1964 Civil Rights Act to it.)
    (1) Racial discrimination in restaurants had a direct and adverse effect on the free flow of ISC.

Lopez (In the Gun-Free School Zone Act of 1990, Congress made it a federal offense for any individual
knowingly possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a
school zone.)
    (1) An activity must “substantially affect” interstate commerce in order to be within Congress’ power
         of regulation under the ISC Clause.
    (2) Three categories of activity that Congress may regulate under its commerce power:
              (a) The use of channels of ISC;
              (b) Instrumentalities of ISC, persons or things in ISC, even though the threat may come only
                  from intrastate activities;
              (c) Those activities that have a substantial relation to ISC.

U.S. v. Morrison / V.A.W.A. (The Violence Against Women Act, enacted in 1994, provided a damage
remedy for the victim against any person “who commits a crime of violence motivated by gender.”)
    (1) Congress should regulate intrastate activity under Commerce Clause only where that activity is
         economic in nature.
5-Step Dormant Commerce Clause Test:
    (1) Has Congress preempted the state regulatory action?
    (2) If not, does the state regulation discriminate patently against out-of-staters? Or does it promote a
        legitimate state police power such as health, welfare, or safety interest?
    (3) Is the legitimate state regulation narrowly tailored? (Not unnecessarily burdensome or
        discriminatory on ISC?)
    (4) If the regulation is narrowly tailored, then balance the promotion of the state’s police
        power/H.W.S interests against the weight/severity of the burden or discrimination against ISC.
    (5) If the balance is close, uphold the state regulation, because Congress can always preempts it if it is

Hunt v. Washington State Apple (NC enacted a statute requiring all closed containers of apples sold or
shipped into the state to bear “no grade other than the applicable U.S. grade or standard.”)
    (1) Discrimination against interstate commerce in favor of local business or investment is per se
         invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous
         scrutiny, that it has no other means to advance a legitimate local interest.
    (2) The NC statute has the practical effect of not only burdening interstate sales of WA apples, but
         also discriminating against them.

Exxon v. Governor of Maryland (A Maryland statute provides that a producer or refiner of petroleum
products may not operate any retail service station within the State.)
    (1) Maryland’s entire gasoline supply flows in interstate commerce, so the statute does not
         discriminate against interstate goods. The Commerce Clause protects the interstate market, not
         particular interstate firms, from prohibitive or burdensome regulations.
    (2) Blackmun seems to agree with Exxon’s underlying notion that the Commerce Clause protects the
         particular structure or methods of operation in a retail market.

Kassel (In Iowa, most truck combinations are restricted to 55 feet. But, there are exemptions.)
   (1) It discriminates against out-of-state truckers.
   (2) Regulations designed to promote the public health or safety nevertheless may further the purpose
         so marginally, and interfere with commerce so substantially, as to be invalid under the Commerce
   (3) The statute has imposed substantial burden on ISC without any significant countervailing safety

Butler (The Agricultural Adjustment Act of 1963 imposed a tax on processors of agricultural commodities
such as cotton. The proceeds of the tax were to be used to subsidize farmers who agreed to restrict their
production. The clause thought to authorize the legislation confers upon the Congress power “to lay and
collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and
general Welfare of the United States…”)
The taxing power is separate and distinct power, but it should only be exercised to provide for the general
welfare, besides, it can only be exercised within the scope of power delegated to Congress.

    (1) Can Congress provide for general welfare independently of taxing? No. The view that the clause
        grants power to provide for the general welfare, independently of the taxing power, has never been
        authoritatively accepted. The true construction undoubtedly is that the only thing granted is the
        power to tax for the purpose of providing funds for payment of the nation’s debts and making
        provision for the general welfare.
    (2) Does the clause confer a power separate and distinct from those later enumerated? Yes.
        Congress has a substantive power to tax and to appropriate, limited only by the requirement that it
        shall be exercised to provide for the general welfare of the United States. Such power is not
        restricted in meaning by the grant of them.
    (3) The taxing power may not be used as the instrument to enforce a regulation of matters of state
        concern with respect to which the Congress has no authority to interfere. The Agricultural
        Adjustment Act invades the reserved rights of the States. It is a statutory plan to regulate and
        control agriculture production, a matter beyond the powers delegated to the federal government.
        The tax, the appropriation of the funds raised, and the direction for their disbursement, are but part
        of the plan. They are but means to an unconstitutional end.
    (4) The taxing power may not be employed to raise the money necessary to purchase a compliance
        which the Congress is powerless to command. The end is not accomplished by voluntary co-
        operation, because the power to confer or withhold unlimited benefits is the power to coerce or
        destroy. Even if the plan were one for purely voluntary co-operation, it would stand no better so
        far as the federal power is concerned.

Steward Machine Co. v. Davis (If an employer make contribution to a state unemployment fund, it
receives a credit against federal tax.)
    (7) Every rebate from a tax when conditioned upon conduct is in some measure a temptation, but to
         hold that motive or temptation is equivalent to coercion is to plunge the law into endless
         difficulties. Thus, the tax and credit in combination are not weapons of coercion.
    (8) The statute does not call for a surrender by the states of powers essential to their quasi-sovereign

Boerne v. Flores (A decision by local zoning authorities to deny a church a building permit was challenged
under the Religious Freedom Restoration Act of 1993 (RFRA). RFRA required strict scrutiny.)
    (1) Congress’ power under §5 of 14th Amendment extends only to “enforcing” the provisions. USSC
         has described this power as remedial. Congress does not have a substantive, non-remedial power
         under §5 of 14th Amendment, which means that Congress cannot alter or determine what
         constitutes a constitutional violation.
    (2) The distinction between measures that remedy or prevent unconstitutional actions and measures
         that make a substantive change in the governing law exists and must be observed.
    (3) Congruence and Proportionality Test. RFRA exacts substantial costs on the States because it
         imposes heavy litigation burden and curtails States’ traditional general regulatory power. The
         costs far exceed any pattern or practice of unconstitutional conduct under the Free Exercise
         Clause. RFRA is so out of proportion that it appears to be a substantive change in constitutional
         protections instead of a remedial or preventive measure.

Garcia v. San Antonio/SAMTA (The Wage and Hour Administration of the Department of Labor
determined that SAMTA was not immune from the minimum wage and overtime requirements of the Fair
Labor Standards Act, although in National League of Cities v. Usery 426 U.S. 833 it was held that the
Commerce Clause does not empower Congress to enforce such requirements against States in areas of
traditional governmental functions.)
The “traditional governmental functions test” established under National League of Cities was overruled
     (1) It is unworkable in practice because no distinction that purports to separate out important
         governmental functions can be faithful to the role of federalism in a democratic society.
     (2) It is unsound in principle because such a rule leads to inconsistent results at the same time that it
         disserves principles of democratic self-governance, and it breeds inconsistency precisely because
         it is divorced from those principles.

Youngstown Sheet & Tube v. Sawyer (President Truman issue an order to take possession of most steel
mills and keep them running.)
    (1) The President’s power, if any, to issue the order must stem either from an act of Congress or from
         the Constitution (§1 of Art II) itself. There is no statute that expressly authorizes the President to
         take possession of property as he did here. Nor is there any act of Congress from which such a
         power can fairly be implied.
    (2) The order cannot be sustained as an exercise of the President’s military power as Commander in
         Chief of the Armed Forces; Commander in Chief does not have the power to take possession of
         private property in order to keep labor disputes from stopping production.
    (3) The President’s power to see that the laws are faithfully executed refuted the idea that he is to be a
         lawmaker. The Constitution limits his functions in the lawmaking process to the recommending
         of laws he thinks wise and the vetoing of laws he thinks bad. The founders of this Nation entrusted
         the lawmaking power to the Congress alone in both good and bad times.

Curtiss-Wright (A Joint Resolution authorized the President to prohibit the sale of arms if he found that
such a prohibition would contribute to establishment of peace in the region.)
    (1) The President can act under the authority vested by an exertion of legislative power, plus the very
         delicate, plenary, and exclusive power of the President as the sole organ of the federal government
         in the field of international relations – a power which does not require an act of Congress as the
         basis for its exercise.
    (2) The power of external sovereignty passed from the Crown to the colonies in their collective and
         corporate capacity as the USA. Thus, the investment of the federal government with the powers of
         external sovereignty did not depend on the affirmative grants of the Constitution.

U.S. v. Nixon (President Nixon’s counsel filed a motion to quash the subpoena on grounds of privilege.)
    (1) Neither the doctrine of separation of powers, nor the need for confidentiality of high-level
         communications, without more, can sustain an absolute, unqualified Presidential privilege of
         immunity from judicial process under all circumstances. On the contrary, it is a qualified and
         defeasible privilege.
    (2) The President challenged a subpoena served on him as a third party requiring the production of
         materials for use in a criminal prosecution. He did not place his claim of privilege on the ground
         they were military or diplomatic secrets.
    (3) USSC weighed the importance of the general privilege against the inroads on the fair
         administration of criminal justice.
             (a) Conversation will be called for in the context of a criminal prosecution, and only required
                  infrequent and occasional disclosure.
             (b) Allowance of the privilege to withhold evidence will cut deeply into the due process law
                  and gravely impair the basic function of courts.

Chadha (The Attorney General can recommend for suspension of Chadha’s deportation according to a
statute, but the statute contains a veto provision that allow Congress to veto Attorney General’s decision.)
     (1) The Framers sought to avoid the exercise of unchecked power. When the Congress purports to
          act, it is presumptively acting within its assigned sphere.
     (2) The House in this case has taken action that had the purpose and effect of altering the legal rights,
          duties and relations of persons, including the Attorney General, Executive Branch officials and
          Chadha, all outside the legislative branch.
     (3) Thus, the Congressional veto provision is unconstitutional.

Bowsher v. Synar (The Comptroller was vested with the authority to investigate all matters relating to the
receipt and disbursement of public funds. He can be removed only by impeachment or by a joint resolution
of Congress (subject to presidential veto) on the basis of permanent disability, inefficiency, neglect of duty,
malfeasance, commission of a felony, or conduct involving moral turpitude.)
    (1) The Constitution does not contemplate an active role for Congress in the supervision of officers
         charged with the execution of the laws it enacts. The Constitution explicitly provides for removal
         of the Officers of the United States by Congress only upon impeachment by the House of
         Representatives and conviction by the Senate.
    (2) The Comptroller General can be removed on the basis of “inefficiency, neglect of duty,
         malfeasance.” These terms are very broad, as interpreted by Congress, could sustain removal of a
         Comptroller General for any number of actual or perceived transgressions of the legislative will.
    (3) Under the statute, the Comptroller General must interpret the provisions of the Act to determine
         precisely what budgetary calculations are required. Interpreting a law enacted by Congress to
         implement the legislative mandate is the very essence of “execution” of the law.
    (4) To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a
         congressional veto. Because Congress had retained removal authority over the Comptroller
         General, he may not be entrusted with executive powers.

Morrison v. Olson (The Ethics of Government Act allows for the appointment of an “independent
counsel” by a special court to investigate and, if appropriate, prosecute certain high ranking government
officials for violations of federal criminal laws. The Act provides that the independent counsel can be
removed from office only by impeachment or by personal action of the Attorney General for good cause,
physical disability, mental incapacity, or any other condition that substantially impairs the performance of
such independent counsel’s duties.)
Whether the Act is invalid under the constitutional principle of separation of powers. (1) Whether the
provision restricting the Attorney General’s power to remove the independent counsel to only those
instances in which he can shows “good cause,” taken by itself, impermissibly interferes with the President’s
exercise of his constitutionally appointed functions. (2) Whether, taken as a whole, the Act violates the
separation of powers by reducing the President’s ability to control the prosecutorial powers wielded by the
independent counsel.
     1. (a) The imposition of a “good cause” standard for removal by itself does not trammel on executive
          authority. The President’s need to control the exercise of that discretion is not so central to the
          functioning of the Executive Branch as to require as a matter of constitutional law that the counsel
          be terminable at will by the President. (b) The “good cause” removal provision does not burden
          the President’s power to control or supervise the independent counsel. The President, through the
          Attorney General, retains ample authority to assure that the counsel is competently performing her
          statutory responsibilities in a manner that comports with the provision of the Act.

    2.   (a) The Constitution does not require that the three Branches of Government operate with absolute
         independence. (b) This case does not involve an attempt by Congress to increase its own power at
         the expense of the Executive Branch. (c) The Act does not work any judicial usurpation of
         properly executive functions. (d) The Act does not impermissibly undermine the powers of the
         Executive Branch, nor does it disrupt the proper balance between the coordinate branches by
         preventing the Executive Branch from accomplishing its constitutionally assigned functions.

This case is distinguishable from Bowsher in that the Act puts the removal power squarely in the hands of
the Executive Branch, but not of an officer controlled by Congress.

Equal Protection Typology
   (1) Strict Scrutiny – The classification must be narrowly tailored to further a compelling
       governmental interest. BOP-government. (Intentional or textual discrimination on the basis of
       race or ethnicity AND for intentional inequality. Also, Fundamental Interest.)
   (2) Mid-Level Scrutiny – The classification must be substantially related to an important
       governmental interest. BOP-government. (Intentional or textual discrimination on the basis of
   (3) Minimum Scrutiny – The classification must be (merely) rationally/reasonably related to any
       (merely) legitimate governmental interest. (The residual category, business etc.)
   (4) Minimum Scrutiny with Teeth – More rigorous, less deferential. Courts argue with government
       over whether there is a really legitimate governmental interest, as opposed to state
       Animus/Irrational Prejudice/Invidious Discrimination – A bare legislative desire to harm a
       politically unpopular group, due to irrational fear or apprehension.

Brown v. Board of Education (Minors of the Negro race sought aid of the courts in obtaining admission
to the public schools of their community on a nonsegregated basis.)
     (1) Separate educational facilities are inherently unequal.

Bolling v. Sharpe (School segregation in the District of Columbia. The Court could not rely on the equal
protection clause, because 14th amendment applies only to the states.)
    (1) Discrimination may be so unjustifiable as to be violative of the due process clause of the 5 th

Beazer (The New York Transit Authority refuses to employ persons who use methadone. USSC upheld
this policy. Minimum Scrutiny.)
     (1) Legislative classifications are valid unless they bear no rational relationship to the State’s
    (2) The policy does not circumscribe a class of persons characterized by some unpopular trait or
        affiliation, so it does not create or reflect any special likelihood of bias on the part of the ruling

Moreno [insert 17 minute drum solo sound effect here] (One who is otherwise eligible for food stamps
will become ineligible if he/she shares an unaffordable apartment with an unrelated person. Minimum
Scrutiny with Teeth)
     (1) A legislative classification must be sustained if the classification is rationally related to a
         legitimate governmental interest; However, a bare congressional desire to harm a politically
         unpopular group cannot constitute a legitimate governmental interest.

Cleburne (Pursuant to a municipal zoning ordinance, the city denied a special use permit for the operation
of a group home for the mentally retarded. Minimum Scrutiny with Teeth.)
     (1) To withstand equal protection review, legislation that distinguishes between the mentally retarded
         and others must be rationally related to a legitimate governmental purpose. However, the
         difference is largely irrelevant unless the home for the mentally retarded and those who occupy it
         would threaten legitimate interests of the city in a way that other permitted uses of such boarding
         houses and hospitals would not.
     (2) Mere negative attitudes are not permissible bases for treating a home for mentally retarded
     (3) The denial appears to rest on an irrational prejudice against the mentally retarded.

Minnesota v. Clover Leaf Creamery (Minnesota prohibited the sale of milk in plastic disposable
containers but allowed its sale in paper nonreturnable cartons. Minimum Scrutiny.)
(1) Where there was evidence before the legislature reasonably supporting the classification, litigants may
not procure invalidation of the legislation merely by tendering evidence in court that the legislature was
mistake. The purposes of the Act – promoting resource conservation, easing solid waste disposal problems,
and conserving energy – are legitimate state purposes. Plaintiffs impressively argued that there was no
empirical connection between a ban on plastic nonreturnables and such purposes, but did not challenge the
theoretical connection. Because it is evident that the question is at least debatable, Plaintiffs cannot prevail.

Railway Express Agency/REA (A New York traffic regulation prohibited the operation of “advertising
vehicles,” but permitted placing “business notices upon business delivery vehicles, so long as such vehicles
are engaged in the usual business or regular work of the owner and not used merely or manly for
advertising.” Minimum Scrutiny.)
     (1) It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.

Williamson v. Lee Optical (An Oklahoma statute prevented opticians from fitting old glasses into new
frames or supplying new or duplicated lenses without a prescription. However, the statute specifically
exempted sellers of ready-to-wear glasses.)
    (1) Evils in the same field may be of different dimensions and proportions, requiring different
        remedies. The reform may take one step at a time, addressing itself to the phase of the problem
        which seems most acute to the legislative mind. The prohibition of the Equal Protection Clause
        goes no further than the invidious discrimination.
    (2) Evidence shows that the ready-to-wear business may not loom large, or may present problems of
        distinct regulation.

Washington v. Davis (Unsuccessful black applicants for the positions on the police force claimed that the
test unconstitutionally discriminated against them.)
     (1) A law, neutral on its face and serving ends otherwise within the power of government to pursue, is
         valid under the Equal Protection Clause even though it may affect a greater proportion of one race
         than another.
     (2) The disproportionate impact of the test did not warrant the conclusion that it is a purposeful device
         to discriminate against Negroes, because the test is neutral on its face and rationally may be said to
         serve a purpose the Government is constitutionally empowered to pursue.
McCleskey v. Kemp (McCleskey, an African American murdering a white police officer, was sentenced to
death. He alleged that the Georgia capital sentencing scheme was administered in a racially discriminatory
    (1) A defendant who alleges an equal protection violation has the burden of proving the existence of
         purposeful discrimination.
    (2) Discriminatory purpose implies that the decision maker selected or reaffirmed a particular course
         of action at least “because of,” not merely “in spite of,” its adverse effects upon an identifiable
    (3) In history, USSC has accepted statistics as proof of intent to discriminate in certain limited context
         such as jury discrimination cases and job discrimination case brought under Title VII of the 1964
         Civil Rights Act, but here it refuse to infer intent from statistics, saying that the nature of capital
         sentencing decision and the relationship of the statistics to the decision are fundamentally

Adarand v. Pena (Federal government gave general contractors a financial incentive to hire subcontractors
controlled by socially and economically disadvantaged individuals. Strict Scrutiny.)
    (1) All racial classifications, imposed by whatever federal, state, or local governmental actor, must be
         analyzed by a reviewing court under strict scrutiny. This decision comes from skepticism,
         consistency, and congruence.

Craig v. Boren (An Oklahoma statute prohibits the sale of “nonintoxicating” 3.2% beer to males under the
age of 21 and to females under the age of 18. Mid-level Scrutiny.)
    (1) Mid-level Scrutiny: Classifications by gender must serve important governmental objectives and
         must be substantially related to achievement of those objectives.
    (2) In this case, the gender-based distinction does not serve to achieve this objective (lack of
         substantial relationship), because:
             (a) The statistics broadly establish that 0.18% of female and 2% of males in the age group of
                  18-20-year-old are arrested for DUI, and such a disparity hardly can form the basis for
                  employment of a gender line as a classifying device.
             (b) None purports to measure the use and dangerousness of the 3.2% beer as opposed to the
                  alcohol generally, and Oklahoma apparently considers it to be nonintoxicating.

U.S. v. Virginia/VMI (Virginia Military Institute [VMI] was a single-sex public school.)
             (1) The State must show at least that the gender classification severs important governmental
                 objectives and that the discriminatory means employed are substantially related to the
                 achievement of those objectives.
             (2) The justification must be genuine, not hypothesized or invented post hoc.
             (3) The State must show exceedingly persuasive justification.

Sugarman v. Dougall (A New York statute excluded aliens from all government civil service positions
filled by competitive examination. Such positions included the full range of work tasks all the way from
the menial to the policy making. However, the exclusion did not apply to higher offices in the state
executive departments and to elected officers and offices filled by the Governor or by legislative
     (1) Classifications based on alienage, like those based on nationality or race, are inherently suspect.
     (2) Thus, Strict Scrutiny was applied.
              (a) USSC recognizes a State’s interest in establishing its own form of government, and in
                   limiting participation in that government to those who are within the basic concept of a
                   political community; USSC also recognizes the State’s broad power to define its political
              (b) But, the statute was neither narrowly confined nor precise in its application. The State’s
                   broad prohibition of the employment of aliens applied to many positions with respect to
                   which the State’s proffered justification had little, if any, relationship. At the same time,
                   the prohibition has no application at all to positions that would seem naturally to fall
                   within the State’s asserted purpose.
Lochner (A New York statute provided that no employee shall work in a biscuit, bread or cake bakery or
confectionary establishment more than 60 hours in any week, or more than 10 hours in any one day.
Substantive Due Process; Minimum Scrutiny.)
    (1) The general right to make a contract in relation to his business is part of the liberty of the
         individual protected by the 14th amendment. The right to purchase or to sell labor is part of the
    (2) The act must have a more direct relation, as a means to an end, and the end itself must be
         appropriate and legitimate, before an act can be held to be valid which interferes with the general
         right of an individual.
    (3) The statute was not valid as a labor law, and it involves neither the safety, the morals nor the
         welfare of the public.
    (4) There is no reasonable foundation for holding the statute to be necessary or appropriate as a health
         law to safeguard the public health or the health of the individuals who are following the trade of a

West Coast Hotel v. Parrish (USSC upheld a statute establishing a minimum wage for women, but it was
attacked on the ground of depriving women of freedom of contract. Substantive Due Process; Minimum
     (1) The health of women and their protection from unscrupulous and overreaching employers are
         public interests.

Skinner (Under Oklahoma’s Habitual Criminal Sterilization Act, habitual criminals were rendered sexually
sterile by operation. However, one provision exempted those offenses arising out of the violation of the
prohibitory laws, revenue acts, embezzlement, or political offenses. Fundamental right plus EP; Strict
     (1) Where fundamental rights and liberties are asserted under the equal protection clause,
          classifications which might invade or restrain them must be closely scrutinized and carefully

Shapiro v. Thompson (A State or District of Columbia statutory provision denied welfare assistance to
residents who had not resided within their jurisdictions for at least one year immediately preceding their
applications for such assistance. Fundamental right plus EP; Strict Scrutiny.)
     (1) The provision was subjected to strict scrutiny because (a) The waiting-period requirement created
         two classes of needy residents indistinguishable from each other except for their residence time;
         and (b) The constitutional right to travel from one State to another occupies a position
         fundamental to the concept of our Federal Union.
     (2) The provision failed the strict scrutiny because the classification did not promote any compelling
         governmental interest. (a) The waiting-period requirement served as a protective device to
         preserve the fiscal integrity of state public assistance program, but the purpose of inhibiting needy
         persons’ migration into the State is constitutionally impermissible; (b) The classification attempted
         to discourage those indigents who would enter the States solely to obtain larger benefits, but a
         State may no more try to fence out those indigents who seek high welfare benefits than it may try
         to fence out indigents generally. (c) The classification permitted the State to apportion all benefits
         and services according to the past tax contributions of its citizens, but the equal protection clause
         prohibits such apportionment of state services. (d) There was no evidence that the waiting-period
         requirement facilitated budget predictability; (e) There is no evidence that it served to promote
         administration efficiency; (f) Less drastic means were available, and were employed, to minimize
         the fraudulent receipt of benefits.

Griswold (A Connecticut statute prohibited any person from using any drug, medicinal article or
instrument for the purpose of preventing conception. Substantive Due Process.)
     (0) Several fundamental constitutional guarantees created the zone of privacy. A governmental
         purpose to control or prevent activities may not be achieved by means which sweep unnecessarily
         broadly and thereby invade the area of protected freedoms.
             (a) The 1st Amendment has a penumbra where privacy is protected from governmental
                  intrusion, because freedom of association is a peripheral 1 st Amendment right.
             (b) The 3rd Amendment in its prohibition against the quartering of soldiers in any house in
                  time of peace without the consent of the owner is another facet of that privacy.
             (c) The 4th Amendment explicitly affirms the right of people to be secure in their persons,
                  houses, papers, and effects, against unreasonable searches and seizures.
             (d) The 5th Amendment in its Self-Incrimination Clause enables the citizen to create a zone
                  of privacy which government may not force him to surrender to his detriment.
             (e) The 9th Amendment provides that the enumeration in the Constitution, of certain rights,
                  shall not be construed to deny or disparage others retained by the people.
    (1) Traditions and collective conscience of the people. A fundamental principle of liberty and justice
        lying at the base of our civil and political institutions.

Roe v. Wade (The Texas statutes made procuring an abortion a crime except by medical advice for the
purpose of saving the life of the mother. Substantive Due Process; Fundamental rights; Strict Scrutiny.)
    (1) Where certain fundamental rights are involved, regulation limiting these rights may be justified
        only by a compelling state interest, and that legislative enactments must be narrowly drawn to
        express only the legitimate state interest at stake.
    (2) The State has an important and legitimate interest in preserving and protecting the health of the
        pregnant woman and the potentiality of human life. But, with respect to the interest in the health
        of the mother, during the first three months of pregnancy, the mortality in abortion may be less
        than that in normal childbirth; with respect to the interest in potential life, only after viability the
        fetus presumably has the capability of meaningful life outside of the mother’s womb.

Lawrence v. Texas (A Texas statute made it a crime for two persons of the same sex to engage in certain
intimate sexual conduct. Substantive Due Process, Possible Fundamental Interest; Minimum Scrutiny
With[/out] teeth.)
     (1) The liberty protected by the Constitution allows homosexual persons and the right to choose to
         enter upon relationships in the confines of their homes and their own private lives and still retain
         their dignity as free persons.
     (2) The right the petitioners seek in this case has been accepted as an integral part of human freedom
         in many other countries. There has been no showing that in this country the governmental interest
         in circumscribing personal choice is somehow more legitimate or urgent.

Glucksberg (Whether Washington’s prohibition against causing or aiding a suicide offends the 14 th
Amendment. Substantive Due Process in privacy, but NO fundamental interest.)
     (1) The “right” to assistance in committing suicide is not a fundamental liberty interest protected by
          the due process clause. It is only a minimal liberal interest.
     (2) Washington has an unqualified interest in
               (a) preserving of human life,
               (b) protecting the integrity and ethics of the medical profession,
               (c) protecting vulnerable groups from abuse, neglect, and mistakes, and protecting disabled
                    and terminally ill people from prejudice, negative and inaccurate stereotype, and societal
               (d) preventing assisted suicide from going down the path to voluntary and perhaps even
                    involuntary euthanasia.
These various interests are unquestionably important and legitimate, and Washington’s ban on assisted
suicide is at least reasonably related to their promotion and protection.

Mathews v. Eldridge (Eldridge wanted a evidentiary hearing before his disability benefit was terminated,
though he could still get one after termination.)
(1) To identify what process is due, the court is required to consider three factors:
              (a) The private interest that will be affected by the official action;
              (b) The risk of an erroneous deprivation of such interest through the procedures used, and the
                  probable value of additional or substitute procedural safeguards.
              (c) The government’s interest.
(2) The nature and the weight of Eldridge’s interests were not substantial. Eldridge’s sole interest is in the
    uninterrupted receipt of the disability benefits, because he would be rewarded full retroactive relief is
    he ultimately prevailed. Eligibility of disability benefits is not based upon financial need.
(3) The existing administrative procedures were fair and reliable.
(4) The administrative burden and other societal costs that would be associated with requiring an
    evidentiary hearing upon demand prior to termination of disability benefits would not be unsubstantial.

Kelo (New London condemn Kelo’s land for Pfizer’s planned facility.)
    (1) Condemned land need not literally be open to public use so long as the land is seized for a public
    (2) The city has carefully formulated an economic development plan that it believes will provide
        appreciable benefits to the community. The plan unquestionably serves a public purpose.

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