Dormant Commerce Clause Notes_

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					Dormant Commerce Clause:
 Dormant Commerce Clause = the principle that state and local laws are unconstitutional if they place an
   undue burden on interstate commerce.
 Supreme Court has inferred this rule from the grant of power to Congress in Article I §8, to regulate
   commerce among the states.
 If Congress has not acted and there is no preemption of the state/local law, by federal law, the state/local
   law can be challenged on the ground that it excessively burdens commerce among the states.
 Commerce Clause has 2 distinct functions:
       1. Authorization for congressional actions
       2. Limiting state and local regulation – this is the dormant/negative commerce clause.
 Justifications for the dormant commerce clause:
    Historical argument – the framers intended to prevent state laws that interfered with interstate commerce
    Economic justification – the economy is better off if state and local laws impeding interstate commerce
       are invalidated
    Political justification – states and their citizens should not be harmed by laws in other states where they
       lack political representation
 Arguments against the dormant commerce clause:
    Textual – the drafters of the Constitution could have included a provision prohibiting states from
       interfering with interstate commerce
    Separation of powers – Constitution gives Congress the power to regulate commerce and Congress can
       invalidate state laws that unduly burden interstate commerce. This is not a task for the unelected federal
       judiciary. The task of reviewing state laws should be done by Congress, not by the courts. This would
       also minimize the instances where state and local laws are invalidated.
 Approach to Commerce Clause cases:
       1. Determine whether a state law discriminates against out-of-staters or whether it treats all alike
            regardless of residence
       2. Balancing Test – when is a state not discriminating
 If the state or local law affects interstate commerce, then the dormant commerce clause may be applied.
   The key initial question is whether the state law discriminates against out-of-staters or whether it treats in-
   staters and out-of-staters alike – State laws that discriminate are rarely upheld, while
   nondiscriminatory laws are infrequently invalidated
 Determining if a State Law is Discriminatory: Facially Discriminatory Laws
    Obvious case – the statute expressly draws a distinction between in-staters and out-of-staters
    Sometimes states expressly place out-of-state businesses at a disadvantage compared to in-state
       businesses or act to help in-state businesses at the expense of out-of-state businesses
    Sometimes states attempt to keep their natural resources and thus limit their accessibility to out-of-
    Reciprocity requirements where a state allows out-of-staters to have access to markets or resources only
       if they are from states that grant similar benefits to their citizens are facially discriminatory
    Local regulations that treat out-of-staters in a disparate manner will be treated as discriminatory even
       though they also discriminate against those in other parts of that state
 Determining if State Laws Are Discriminatory: Facially Neutral Laws
    On many occasions the Court has found facially neutral state and local laws to be discriminatory based
       on their purpose and/or effect
        A facially neutral law can be found discriminatory if there is proof of a discriminatory impact
        Proof of either a protectionist purpose for the law or a substantial discriminatory impact is sufficient
            to establish that a law is discriminatory
        A court will assess each situation to decide whether there is sufficient evidence of discriminatory
            purpose and/or effect
             Important factors considered:
                 The laws effect is to exclude virtually all out-of-staters from a particular state market, but not
                    if it only excludes one group of out-of-staters
                  Imposition of costs on out-of-staters that in-staters would not have to bear at all
                  The Court believes the law is motivated by a protectionist purpose, helping in-staters at the
                     expense of out-of-staters
   Analysis of when a state law is not discriminating: Balancing Test
     Court balances the law’s burdens on interstate commerce against its benefits
     The law will be unconstitutional if the court decides that the burdens from the law exceed its benefits
     Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects
        on interstate commerce, are only incidental, it will be upheld unless the burden imposed on such
        commerce is clearly excessive in relation to the putative local benefits
     Finding a law does not discriminate is not an assurance that the law will be upheld
         The extent of the burden that will be tolerated will depend on the nature of the local interest
             involved, and on whether it could be promoted as well with a lesser impact on interstate
   If a law does not discriminate against out-of-staters, the Court balances its burdens on interstate
    commerce against its benefits. The inquiry is fact dependent, and the outcome turns on how the court
    appraises the burdens and benefits and how the Court weighs them.
   Analysis of when a state is discriminating: Presumption Against Constitutionality
     A state or local law that discriminates against out-of-staters will be upheld only if it is proved that the
        law is necessary to achieve an important government purpose
     Judicial review of discriminatory laws involves scrutiny of both the ends served by the law and the
        means used.
         As to the ends, the Court has said that a law that discriminates will be upheld if it is necessary to
             achieve a “legitimate local purpose” – usually interpreted to mean an important purpose; at the very
             least the law must be justified by a purpose that is unrelated to economic protectionism
         As to the means, the law will be upheld only if the “purpose could not be served as well by available
             nondiscriminatory means”
   Common commerce clause cases:
     Laws that limit the access by out-of-staters to in-state resources – attempts to reserve state resources for
        in-staters will be invalidated unless that state identifies a valid purpose that cannot be achieved in a less
        discriminatory way. The law need not prohibit the use of in-state resources to violate the dormant
        commerce clause; a discriminatory fee for use of a state’s resources will also be declared
     Laws that limit access to local markets by out-of-state businesses – a state’s attempt to gain an economic
        advantage for its citizens by limiting the ability of out-of-staters to compete in the state market will
        usually be invalidated. The most blatant type of law is where the state law expressly excludes out-of-
        staters from doing business in the state. Another type are those where a state imposes regulations that
        have the effect of limiting the ability of out-of-staters to do business in a state by imposing additional
        costs on them. Maine v. Hunt – discrimination against out-of-staters by denying them access to the
        market was allowed because the objective of the law was not to economically benefit the state’s industry
        at the expense of out-of-staters, but it was protecting the state’s fragile marine ecology.
     Laws that require use of local businesses – sometimes state and local governments attempt to help their
        citizens at the expense of out-of-staters by requiring that tasks be performed locally or that only a local
        facility can be used by the citizens of that locality. This type of law will usually be invalidated.
        Attempting to help in-state or local businesses at the expense of out-of-staters is exactly the type of
        protectionism forbidden by the dormant commerce clause.
   State laws that discriminate against out-of-staters are almost always declared unconstitutional. Such
    a law will be allowed only if it is proved that the law is necessary – the least restrictive means – to
    achieve a nonprotectionist purpose. To be upheld the law must meet strict scrutiny, so there must be
    an important or even a compelling reason for the law.
   Exceptions to the Dormant Commerce Clause
     Discriminatory State Laws are Allowed if Approved by Congress
       State laws burdening commerce are permissible, even when they otherwise would violate the
        dormant commerce clause, if they have been approved by Congress
      Congress may confer upon the States an ability to restrict the flow of interstate commerce that they
        would not otherwise enjoy
      The issue would be whether the federal law is a constitutional exercise of the commerce power; if so,
        the law must be followed even if it means upholding laws that otherwise would violate the
      If the Court deems the matter to violate the dormant commerce clause, Congress can respond by
        enacting a law approving the action, essentially overruling the Court
         Although the law will not violate the dormant commerce clause, it still can be challenged under
            other constitutional provisions
         Congressional approval does not excuse a violation of equal protection, or the privileges and
            immunities clause, or other constitutional provisions besides the dormant commerce clause
    Market Participant Exception
      A state may favor its own citizens in dealing with government-owned business and in receiving
        benefits from government programs
      If the state is literally a participant in the market, such as with state-owned businesses, and not a
        regulator, the dormant commerce clause does not apply
      Not limited to state-owned businesses, states may also favor citizens in receiving benefits from
        government programs
      When a state or local government enters the market as a participant it is not subject to the restratints
        of the Commerce Clause
      Even though the law will be permissible under the dormant commerce clause, the law might be
        vulnerable to other constitutional challenges
      Limit on the Market Participant Exception
             State business may favor in-state purchasers, but they may not attach conditions to a sale that
                discriminate against interstate commerce
             The limit of the market-participation doctrine must be that it allows a State to impose
                burdens on commerce within the market in which it is a participant, but allows it to go no
                further. The State may not impose conditions, whether by statute, regulation, or contract,
                that have a substantial regulatory effect outside of that particular market

Privileges & Immunities Clause:
 Article IV, §2: The Citizens of each State shall be entitled to all Privileges & Immunities of Citizens in the
   several States
 This clause has been interpreted to limit the ability of a state to discriminate against out-of-staters with
   regard to fundamental rights or important economic activities
    Prevents a State from discriminating against citizens of other States in favor of its own
 Most cases that fall under this clause involve challenges to state and local laws that discriminate against out-
   of-staters with regard to their ability to earn a living
 Discrimination under this clause will only be allowed, if it is substantially related to achieving a substantial
   state interest
 Relationship between Privileges & Immunities and Dormant Commerce Clause
    Both can be used to challenge state and local laws that discriminate against out-of-staters
    Differences
        P&I clause can be used only if there is discrimination against out-of-staters; DC clause can be used
            to challenge state and local laws that burden interstate commerce regardless of whether they
            discriminate against out-of-staters
        Corporations and aliens can sue under DC clause; P&I clause is expressly limited to “citizens” – no
            corps. or aliens allowed
        Exceptions of DC clause do not apply to P&I clause
               Congressional approval of a discriminatory law does not excuse a law that violates P&I clause
               Market Participant Exception does not exist for P&I; only applies with regard to DC clause
   Challenges brought under P&I clause ask 2 questions:
        1. Has the state discriminated against out-of-staters with regard to privileges and immunities that it
            accords its own citizens
        2. If there is such discrimination, is there a sufficient justification for the discrimination
   P&I clause is not absolute; but it does create a strong presumption against state and local laws that
    discriminate against out-of-staters with regard to fundamental rights or important economic activities
   What are the Privileges & Immunities of Citizenship
     Constitutional Right
         P& I clause can be used to challenge state and local laws that discriminate against out-of-staters with
            regard to the exercise of constitutional rights – RARELY used for this type of claim, this type of
            claim is usually brought under an amendment
     Important Economic Activities
         Majority of cases involve states discriminating against out-of-staters with regard to their ability to
            earn their livelihood
         The Court has found a violation of the P&I clause if a state excludes out-of-staters from practicing a
            trade or profession, or charges a discriminatory licensing fee, or mandates that a preference be given
            to in-staters for employment
             Most extreme form is where a state completely bars out-of-staters from engaging in a particular
                trade or profession in the state
             A state is denying a p&i of citizenship if it charges out-of-staters more for a licensing fee then it
                charges in-staters
             Another type of impermissible discrimination is where a state requires that its residents be given
                a preference in employment
     If there is neither economic discrimination nor discrimination with regard to constitutional rights,
        then there is NOT a violation of the P&I clause
     The clause is used to prevent states from discriminating against out-of-staters with regard to
        activities that are deemed “fundamental.” This includes but is not limited to, constitutional rights
        and the ability to earn a livelihood, recreational activities do not fit within this clause.
   What is sufficient justification for discrimination
     The Court has said that a state may discriminate against out-of-staters, even with regard to constitutional
        rights or the ability to earn a livelihood, only if there is a “substantial reason” for the difference in
        treatment compared with in-staters, and only if the law is closely related to the justification
     The Clause does not preclude discrimination against non-residents where: 1) there is a substantial
        reason for the difference in treatment; and 2) the discrimination against nonresidents bears a
        substantial relationship to the State’s objective
         In assessing whether the discrimination bears a close or substantial relationship to the State’s
            objective, the Court has considered the availability of less restrictive means
     A state may discriminate against out-of-staters with regard to “privileges and immunities” only if
        the discrimination is “substantially related” to a “substantial state interest.” Because the Court
        uses least restrictive alternatives analysis under the P&I clause, it appears that the discrimination
        must be proved necessary to achieve a substantial government interest. So far the Court has not
        found any law meets this test.

Incorporation under the 14th Amendment:
 Incorporation – asks whether the Bill of Rights protections now apply to the States by virtue of the 14th
   Amendment; if so, this would happen by “incorporating” these provisions under the Due Process Clause of
   the 14th Amendment
   Complete/Total Incorporation – only the rights included in the Bill of Rights should be incorporated to
      apply to the States under the Due Process Clause for the purposes of substantive due process; you can’t
      add any un-enumerated rights; it is an attempt to constrain the expansion into new rights
   Partial/Selective Incorporation – all the protections of the Bill of Rights are not important enough for
      incorporation, only those “principles so rooted in the tradition and conscience of our people as to be
      ranked as fundamental and that were therefore implicit in the concept of ordered liberty” should be
      included; under this view not all of the Bill of Rights protections will count but it also leaves room for
      the addition of un-enumerated rights
   Reverse Incorporation – asks what happens if the federal government violates the Equal Protection
      Clause, sincere the EP clause does not apply to the federal government; reverse incorporation says that
      part of the Due Process Clause of the 5th Amendment includes an Equal Protection component/clause –
      thus the EP clause applies to state and federal government
 Issues in the Incorporation Debate
   Historical/Textual – did the framers of the 14th Amendment intend for it to apply the Bill of Rights to the
       Complete incorporation view says yes, because the events that led to the culmination of the 14th
          Amendment show that one of the main goals was to make it applicable to the states
       Partial incorporation view says no, because Congress wouldn’t have approved such a result and the
          states wouldn’t have ratified it
   Federalism – applying the Bill of Rights to the states imposes a substantial set of restrictions on state and
      local governments
       Partial view – the desireability of preserving state and local governing autonomy by freeing them
          from the application of the Bill of Rights; states on their own are capable of advancing individual
       Complete view – federalism is not a sufficient reason for tolerating violations of fundamental
          liberties; history shows there are instances where states and state courts will not adequately protect
          rights; safeguarding precious liberties should not rest on faith in the states
   Role of Judiciary
       Complete view – selective incorporation gives judges too much discretion in deciding what rights
          are fundamental
       Partial view – total incorporation would mean more judicial oversight of state and local actions and
          less room for democracy to operate

14th Amendment:
 Applies only to state and local government actions, not to private conduct – Civil Rights Cases

Levels of Scrutiny:
 The level of scrutiny is the test that is applied to determine if the law is constitutional
 It informs courts as to how to arrange the weights on the constitutional scale in evaluating particular laws.
   If it is an area where there is reason for great suspicion of the government or a fundamental right is at stake,
   the government will be required, by the level of scrutiny, to meet a heavy burden. But if it is an area of
   general deference to the legislature, the government will have a minimal burden to carry.
 Courts generally should presume that law are constitutional, but a more searching judicial inquiry is
   appropriate when it is a law that interferes with individual rights, or a law that restricts the ability of the
   political process to repeal undesirable legislation, or a law that discriminates against a discrete and
   insular minority.
 Rational Basis Test (minimal level of review) – a law will be upheld if it is rationally related to a
   legitimate government purpose
    All laws challenged under the due process clause or equal protection must meet at least this test
    The governments only objective need be a goal that is legitimate for government to pursue
         The goal need not be the actual purpose of the litigation but, rather, any conceivable legitimate
             purpose is sufficient
     The government has a legitimate purpose if it advances a traditional “police” purpose: protecting
        safety, public health, or public morals; virtually any goal that is not forbidden by the Constitution
        will be deemed sufficient to meet the rational basis test – public safety, public health, morality,
        peace and quite, law and order,
     A law will be upheld so long as the government’s lawyer can identify some conceivable legitimate
        purpose, regardless of whether that was the government’s actual motivation. The actual purpose
        behind a law is irrelevant and the law must be upheld if any state of facts reasonably may be
        conceived to justify its discrimination
     Laws will be upheld unless the government’s action is clearly wrong, a display of arbitrary power,
        not an exercise of judgment
     Laws that are both significantly underinclusive and overinclusive are allowed because perfection
        is not required
         Substantial underinclusiveness is allowed because the government may take one step at a time,
            addressing itself to the phase of the problem which seems most acute to the legislative mind
     The means chosen need only be a reasonable way to accomplish the objective
     The challenger of the law has the burden of proof – the law will be upheld unless the challenger
        proves that the law does not serve any conceivable legitimate purpose or that it is not a reasonable way
        to attain the end
     This test is very deferential to the government, and only rarely has the Supreme Court invalidated laws
        as failing rational basis review
   Intermediate Scrutiny (mid-level review) – a law will be upheld if it is substantially related to an
    important government purpose
     The government’s objective must be more than just a legitimate goal for government to pursue; the court
        must regard the purpose as important
     The means chose must be more than a reasonable way of attaining the end; the court must believe that
        the law is substantially related to achieving the goal
     Intermediate scrutiny is used to evaluating laws involving gender discrimination, discrimination against
        non-marital children, discrimination against undocumented alien children with regard to education, and
        regulation of commercial speech and of speech in public forums
     The government has the burden of proof under intermediate scrutiny
     At the very least, the means must be narrowly tailored to achieve the goal when intermediate scrutiny is
   Strict Scrutiny (most intensive level of review) – a law will be upheld if it is necessary to achieve a
    compelling government purpose
     The court must regard the government’s purpose as vital, as “compelling”
     The law must be shown to be “necessary” as a means to accomplish the end
         This requires proof that the law is the least restrictive or least discriminatory alternative; if the law is
            not the least restrictive alternative, then it is not necessary to accomplish the end
     The government has the burden of proof under strict scrutiny – the law will be struck down unless
        the government can show that the law is necessary to accomplish a compelling government purpose
     Laws are generally declared unconstitutional when strict scrutiny is applied
     “Strict in theory and fatal in fact”
     It is used when the Court evaluates discrimination based on race or national origin, generally for
        discrimination against aliens (there are some exceptions), and for interference with fundamental
        rights such as the right to vote, the right to travel, the right to privacy, and interference with
        freedom of speech
   Heightened levels of scrutiny (intermediate or strict) are applied to characteristics like race, national origin,
    gender, and marital status on the notion that it is unfair to penalize a person for characteristics that the
    person did not choose and that the individual cannot change
   The history of discrimination against a group is also relevant to the Court in determining the level of
    scrutiny. A related issue is the Court’s judgment concerning the likelihood that the classification reflects
    prejudice as opposed to a permissible government purpose.
    Court’s choice of strict scrutiny for racial classifications reflects the judgment that race is
     virtually never an acceptable justification for government action
    The Court’s use of intermediate scrutiny for gender classifications reflects its view that the
     biological differences between men and women mean that there are more likely to be instances
     where sex is a justifiable basis for discrimination

Due Process:
 5th & 14th Amendments provide that neither the US nor state governments shall deprive any person of life,
   liberty, or property without due process of law
 Procedural due process – refers to the procedures the government must follow before it deprives a person of
   life, liberty, or property. Procedural due process issues usually concern what kind of notice and what form
   of hearing the government must provide when it takes a particular action
 Substantive due process – looks at whether there is sufficient justification or an adequate reason for the
   government to take away a person’s life, liberty, or property
    Whether there is a justification often depends on the level of scrutiny used
         Under rational basis review, substantive due process is met so long as the law is rationally related to
            a legitimate purpose
         Under strict scrutiny, the government will meet substantive due process only if it can prove that the
            law is necessary to achieve a compelling government purpose
    If the plaintiff is seeking to have a government action declared unconstitutional as violating a
        constitutional right, substantive due process is involved

Equal Protection:
 Equal protection applies to the federal government through the due process clause of the 5th Amendment
 Equal protection applies to state and local governments through the 14th Amendment
 Basic Question – is the government’s classification justified by a sufficient purpose
 Many government laws draw a distinction among people and thus are potentially susceptible to an equal
  protection challenge
 If a law is challenged based on equal protection, the issue is whether the government can identify a
  sufficiently important objective for its discrimination
 Equal Protection Issues can broken down into three questions:
      1. What is the Classification? – Equal protection analysis always must begin by identifying how
          the government is distinguishing among people
       There are two basic ways of establishing a classification
          a. The classification exists on the face of the law – the law in its very terms draws a distinction
              among people based on a particular characteristic
          b. The law is facially neutral but there is a discriminatory impact to the law or discriminatory
              effects from its administration – discriminatory impact is insufficient to prove a racial or gender
              classification. If a law is facially neutral demonstrating a race or gender classification requires
              proof that there is a discriminatory purpose behind the law
      2. What is the Appropriate Level of Scrutiny?
          a. Strict scrutiny = discrimination based on race or national origin & discrimination against aliens
              (does not apply to illegals, or when Congress is dealing with immigration or naturalization)
          b. Intermediate scrutiny = discrimination based on gender & nonmarital children
          c. Rational basis review = all laws not subject to strict or intermediate scrutiny are evaluated
              under this test
      3. Does the Government Meet the Level of Scrutiny?
          o The Court will evaluate both the law’s ends and its means
                   Strict scrutiny – the end must be deemed compelling for the law to be upheld
                   Intermediate scrutiny – the end has to be regarded as important
                   Rational basis review – there just has to be a legitimate purpose
          o In evaluating the relationship of the means of the particular law to the end, the Court often
               focuses on the degree to which a law is underinclusive and/or overinclusive
                    Underinclusive = it does not apply to individuals who are similar to those to whom the
                       law applies
                    Overinclusive = it applies to those who need not be included in order for the government
                       to achieve its purpose; the law unnecessarily applies to a group of people
                    Strict scrutiny – a relatively close fit is required; the government will have to show that
                       the means is necessary – the least restrictive alternative – to achieve the goal
                    Intermediate scrutiny – a closer fit, less underinclusiveness or overinclusiveness will be
                       required than under the rational basis test
 EP can also be used to protect fundamental rights
   Whether a right is deemed fundamental under EP or DP, government infringements are subjected to
      strict scrutiny and non-fundamental rights are subjected to rational basis review under EP or DP
 EP can be used in an individual’s claim
   Unless a suspect class is involved, government actions only have to meet rational basis review
   A claim of one cannot be dismissed for failure to state a claim, since there is a claim under equal
      protection any time that it is alleged that the government is arbitrarily treating some differently from
 Strict scrutiny & Race
   Racial classifications will be allowed only if the government can meet the heavy burden of
      demonstrating that the discrimination is necessary to achieve a compelling government purpose –
      the government must show an extremely important reason for its action and it must demonstrate
      that the goal cannot be achieved through any less discriminatory alternative
   Justifications for strict scrutiny in race
       The primary purpose of the 14th Amendment was to protect African-Americans; classifying persons
          based on race is more likely to reflect racial prejudice than legitimate public concerns
       Prejudice and the history of discrimination make it less likely that racial and national origin
          minorities can protect themselves through the political process
       Race is an immutable trait – it is unfair to discriminate against people for a characteristic that is
          acquired at birth and cannot be changed
   Two ways of demonstrating a racial or national origin classification
       Facially discriminatory law – text of the law makes a distinction based on race or national origin
           Laws that use race, expressly or implicitly, in their text will be treated as a racial classification
               even though they burden both whites and individuals of color
           Laws requiring separation of the races are racial classifications that will be allowed only if strict
               scrutiny is met
       Facially neutral law – race or national origin classification proved by demonstrating discriminatory
          administration or proof of a discriminatory purpose
           There must be proof of a discriminatory purpose for laws that are facially neutral yet are applied
               in a discriminatory manner, to be treated as racial or national origin classifications
           Proof of a discriminatory impact is not sufficient to prove an equal protection violation; there
               also must be proof of a discriminatory purpose
           Showing a discriminatory purpose requires proof that the government desired to discriminate; it
               is not enough to prove that the government took an action with knowledge that it would have
               discriminatory consequences
                Implies that the decisionmaker selected or reaffirmed a particular course of action at least in
                   part because of, not merely, in spite of, its adverse effects upon an identifiable group
           Demonstrating discriminatory purpose
                The impact of the law may be so clearly discriminatory as to allow no other explanation than
                   that it was adopted for impermissible purposes – may be a clear pattern that is unexplainable
                   on grounds other than race
           History surrounding the government’s action – it reveals a series of official actions taken for
               invidious purposes; the specific sequence of events leading up to the challenged decision
               may also shed light on the decisionmaker’s purposes
           Legislative or administrative history of a law
           Evidence of a discriminatory purpose, shifts the burden to the government to provide
               that it would have taken the same action without the discriminatory motivation
       A facially neutral law that cannot be shown to have been enacted for a discriminatory
          purpose is subject to rational basis review
 Strict Scrutiny & Racial Classifications Benefiting Minorities
   Strict scrutiny is used to evaluate all affirmative action plans
   Affirmative action will be allowed if it is directed at entities that are proven to have engaged in
      illegal discrimination and if it is limited to providing a remedy to those who are proven victims of
      that discrimination
   O’Connor in Adarand – when race-based action is necessary to further a compelling interest, such
      action is within constitutional constraints if it satisfies the narrow tailoring test set out by the Court
      in previous cases
       Metro Broadcasting – federal racial classifications must serve a compelling governmental
          interest, and must be narrowly tailored to further that interest
   Arguments for strict scrutiny
       All racial classifications should be subjected to strict scrutiny because they stigmatize and breed
          racial hostility
   Arguments against strict scrutiny
       There is a difference between using racial classifications to benefit minorities and using racial
          classifications to disadvantage minorities
       Achieving equality requires affirmative action at this point in American history – the continuing
          disparities between blacks and whites necessitate remedial action
       Applying strict scrutiny would greatly impede such remedial efforts because relatively little ever
          has survived this rigorous review
   Purposes for Affirmative Action Programs That Are Sufficient to Meet the Level of Scrutiny
       Remedying Past Discrimination – affirmative action will not be allowed if it is based on a desire
          to remedy the long history of racism; O’Connor in Croson – an amorphous claim that there has
          been past discrimination in a particular industry cannot justify use of an unyielding racial quota;
          societal discrimination alone is sufficient to justify a racial classification – the Court has insisted
          upon some showing of prior discrimination by the governmental unit involved before allowing
          limited use of racial classifications in order to remedy such discrimination
       Enhancing Diversity – usually invoked by colleges & universities; there is uncertainty that the
          Supreme Court needs to resolve and decide whether pursuing diversity in higher education is a
          compelling interest; the current law of the Supreme Court is Regents of Univ. CA v. Bakke – the
          interest of diversity is compelling in the context of a university’s admissions program
       Providing Role Models – rejected by Supreme Court; the role model theory does not necessarily
          bear a relationship to the harm caused by the past discriminatory hiring practices
       Enhancing Services Provided to Minority – doesn’t appear to be accepted by the Supreme Court;
          there might be other ways of achieving this goal more directly, such as by providing incentives
          for people to work in underserved areas
   What Ways of Affirmative Action Are Sufficient to Meet the Level of Scrutiny
       Quotas – allowed, if at all, only if needed to remedy clearly proven past discrimination
       Using Race as One Factor in Decisions to Help Minorities – race can be one factor among severl
          in decision making to help minorities and enhance diversity
       Deviations from Seniority Systems – it is unacceptable to layoff white teachers with greater
          seniority than minority teachers as a means of compelling the compelling purpose of remedying
          prior discrimination
 Intermediate Scrutiny & Gender
   Craig v. Boren – intermediate scrutiny is the appropriate level of review for gender classifications
   Intermediate scrutiny is to be used for gender classifications discriminating against women and men
   Arguments for intermediate scrutiny
       The framers of the 14th Amendment meant only to outlaw race discrimination
       Biological differences between men and women make it more likely that gender classifications will
          be justified, and thus less than strict scrutiny is appropriate to increase the chances that desireable
          laws will be upheld
   Arguments for strict scrutiny
       Sex, like race and national origin, is an immutable characteristic
       Strict scrutiny is warranted because the need for a strong presumption against laws that discriminate
          against people based on traits that were not chose and that cannot be changed
       Women, like minorities, tend to be significantly underrepresented in the political process
   Proving Gender Classification (see Race)
       Facially discriminatory
       Facially gender neutral
 Rational Basis Test & Other Discrimination
   Disability – only rational basis review should be used for discrimination based on disability; but the
      ADA broadly prohibits discrimination against the disabled
   Wealth Discrimination – poverty is not a suspect classification and discrimination against the poor
      should only receive rational basis review San Antonio School District v. Rodriquez
   Sexual Orientation – thus far it has only been subjected to rational basis review, but sexual orientation
      has many characteristics that are present in other areas where heightened scrutiny is used – long history
      of discrimination, research also suggests that sexual orientation is immutable

Fundamental Rights Under Due Process & Equal Protection:
 The major difference between due process and equal protection as the basis for protecting fundamental
   rights is in how the constitutional arguments are phrased
    If a right is safeguarded under due process, the constitutional issue is whether the government’s
       interference is justified by a sufficient purpose – if a law denies the right to everyone, then due
       process is the best ground for analysis
    If the right is protected under equal protection, the issue is whether the government’s discrimination as
       to who can exercise the right is justified by a sufficient purpose – if a law denies a right to someone,
       while allowing it to others, the discrimination can be challenged as offending equal protection or
       the violation of the right can be objected to under due process
 Framework for Analyzing Fundamental Rights
    Is there a fundamental right?
        If a right is deemed fundamental, the government usually will be able to prevail only if it meets strict
        If the right is not fundamental, only the rational basis test is applied
    Is the Constitutional right infringed?
        Unconstitutional conditions doctrine – the government infringes upon a right if it demands that a
            person forgo a constitutional right in order to receive a government benefit
    Is there a sufficient justification for the government’s infringement of a right?
        If the right is fundamental, the government must present a compelling interest to justify an
        If a right is not fundamental, only a legitimate purpose is required for the law to be sustained
        The government has the burden of persuading the Court that a truly vital interest is served by the law
            in question
    Is the means sufficiently related to the purpose?
          Strict scrutiny – the government must show a compelling purpose and that the law is necessary to
           achieve the objective; the government must prove that it could not attain the goal through any means
           less restrictive of the right
        Rational basis – the means only has to be a reasonable way to achieve the goal and the government
           is not required to use the least restrictive alternative
   The Right to Marry
     Loving – marriage is one of the basic civil rights of man, fundamental to our very existence
   The Right to Custody of One’s Children
     Parents have a fundamental right to custody of their children. A natural parent’s desire for and right to
       the companionship, care, custody, and management of his/her children is an interest far more precious
       than any property right. Government can permanently terminate custody only if it meets the procedural
       and substantive due process requirements. There must be a very substantial reason before parental
       custody can be terminated.
   The Right to Purchase & Use Contraceptives
     Griswold – Connecticut law violated the right to privacy in prohibiting married couples from using
       contraceptives. Enforcing the law would allow police to search marital bedrooms for the use of
       contraceptives, which would be repulsive to the notions of privacy surrounding the marriage relationship
   Fundamental Right to Control Reproduction
     Eisenstadt – if the right of privacy means anything, it is the right of the individual, married or single, to
       be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the
       decision whether to bear or beget a child
   The Right to Abortion
     Roe – a woman has the right to an abortion prior to viability
     Planned Parenthood v. Casey – a woman has the right to abortion and the government may regulate
       abortions before viability so long as it does not place an “undue burden” on access to abortions
        Undue burden standard – an undue burden is a state regulation that has the purpose or effect of
           placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus
        To promote the State’s profound interest in potential life, throughout pregnancy the State may take
           measures to ensure that the woman’s choice is informed, and measures designed to advance this
           interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth
           over abortion – these measures are not an undue burden on the right
        24-hour waiting period, the requirement that the woman be told of the availability of detailed
           information about the fetus, and the reporting and recording requirements were upheld
        Only undue burden if regulation will keep someone from getting an abortion
            Spousal consent or notification
            Parental notice and consent is ok, but only if state has an alternative procedure where a minor
               can obtain an abortion by going before a judge who can approve the abortion, finding that it is in
               the minor’s best interest or that the minor is mature enough to make the decision
   Sexual Activity & Orientation
     Lawrence – liberty gives substantial protection to adults in deciding how to conduct their private lives.
       Right to privacy. Overruled Bowers