Constitutional LawOutline for Stone, et.al 2008-09

CON LAW CONDENSED: I. Constitutional and Prudential Limitations on the Supreme Court A. Supreme Court’s Authority Article III, § 2: a. Original jurisdiction: all cases affection ambassadors, public ministers and consuls and those in which a state shall be party b. Appellate jurisdiction: review of lower courts decisions (with such Exceptions and under such regulations as Congress shall make) i. Review state court decisions to the extent it is based on federal law – limited to the highest state court available ii. Federal Judicial Power: 1. Arising under the Constitution or the laws of the US – not political*; Admiralty; Two or more states; Between citizens and foreign country or foreign citizen (diversity) c. Nature of Judicial Review: power of the courts to annul the acts of executive and/or the legislative power where it finds them incompatible with the Constitution – functioning of the separation of powers doctrine. i. Marbury v. Madison: Found the Judiciary Act of 1789 unconstitutional because it expanded the Court’s original jurisdiction. Justice Marshall, “It is emphatically the province and duty of the judicial dept. to say what the law is” 1. Significance: Established the court‟s ability to use the tool of judicial review in finding that a statute of action taken by the government is unconstitutional. – Constitution is paramount*. Marshall explained w/o it no independence from other 2 branches. d. Theories of Judicial Review: i. Critique of Marbury: Constitution does not explicitly give Congress power ii. Support practical reasons of judicial review: intent of framers to have judicial as opposed to legislative review b/c Justices are supposed to be politically insulated and thus, better apt to protect minoritiy views and fundamentals of Constitution iii. Theory Types: 1. Originalism a. Intent: consistent with what was meant by drafters b. Meaning: should be based on what a reasonable person living at the time would have declared the meaning 2. Realist: see Constitution as principal meant to apply to modern times 3. Federalist: Balance between federal power and state autonomy e. Amendment: i. Purpose/Theory: Knew process for change necessary; wanted it to be timely, thoughtful and a majoritarian process 1. 2 part: (1) proposed and (2) ratified a. Proposed by two-thirds majority vote in both houses of Congress or Convention (never used) b. Approved by three-fourths of states, a process called ratification f. Appointments: i. President is given power to appoint federal executive officials ii. Removal of federal executives rests with President – w/o cause 1. Exception: set federal exec limit and release w/ reason (Morrison v. Olson) g. Impeachment: by which Congress may remove an officer of US for “high crimes and misdemeanors” i. (1) House has majority; (2) Senate conduct 2/3 trial Congressional Control of Jurisdiction A. Article III, § 1: federal judicial power vest in Supreme Court and Congress establishes lower courts B. Article III, § 2: Congress decides types of cases SCOTUS hears not w/i original jurisdiction – it cannot expand beyond fed. judicial power (Ex part McCardle: Act deprived Congress of hearing habeas corpus; case came on appeal, thus SCOTUS ruled it was constitutional under Art. III) a. Any jurisdictional limitation must be neutral; Congress cannot decide the merits of a case under the guise of limiting jurisdiction (U.S. v. Klein: proceeds of land lost serving the Confederation; Act denied SCOTUS jurisdiction; violated separation of power and needed to be neutral) b. Cannot deprive litigants of judicial remedy (i.e. Bankruptcy) c. Cannot use Exceptions clause to cripple jurisdiction of SCOTUS d. Contemporary Example: Boumedience v. Bush: MCA stripped courts of habeas jurisdiction for detainees labeled enemy combatants; violate separation of powers – judicial authority of habeas is necessary to protect principals. Procedural Limitations A. Getting to the SCOTUS: (1) Appeal; (2) Certiorari: completely discretionary; Factors: a. Conflict between court of appeals, highest courts or 2 states, or an important decision B. Justiciability: Elements  (also look to last section of notes) a. Advisory Opinion: only preside over cases and controversies; cannot answer a legal question if no party has suffered or faces injury. b. Standing: i. Need to be a case or controversy – under Art. III, §2, cl 1 ii. 3 Elements: (1) Harm to the P; (2) Reasonable causal connection – between action and harm to P; (3) Likelihood that the P‟s injury being remedied by a favorable ruling iii. Padilla v. Hanft: Padilla held as enemy combatant; Petition for cert denied. No harm argument b/c status would be unchanged regardless of outcome. c. Must no be moot: would be if event occurred that deprive the litigant of an ongoing state in the controversy d. Ripeness: substantial and concrete to be adjudicated e. Political question: will not decide where political issues are at hand C. Facial Challenge v. As-Applied Political Questions A. Two Factors: a. Commitment to Another Branch: (by constitution) – separation of powers. i. U.S. v. Nixon: Constitution has given the Senate not the courts power to decide what constitutes a trial under Impeachment cl. b. Lack of Judicially Manageable Standards: no manageable standard to provide a decision B. Reapportionment: a. Baker v. Carr: decided reapportionment was not nonjusticiable political question (about protecting a political right). One man-One vote: any governmental body (federal or state) must be apportioned on a population basis, so that all votes have essentially same voting power. 7 Factors*. b. Vieth v. Jubelirer: partisan gerrymandering – process by which the strength of a particular voting bloc is curtailed by artificially constructing district lines. Near majority believed not even justiciable question because no appropriate standard could be found. (18 years since Davis, Scalia says give up, doesn‟t exist) i. Racial Gerrymandering: can show scheme intentional and designed to hurt – will be justiciable II. The Federalist System A. Federalism: balance between federal power and state autonomy a. Separation of powers; Checks and Balances B. Powers of Federal Government: a. NO general police power – limited specific enumerated powers granted b. Commerce Clause; Tax and Spend for general welfare c. Necessary and Proper Clause: Congress can use any means that is rationally related to their objective and is no specifically prohibited C. State Power: is inherent a. Holds general police power – protect general welfare b. A state action is valid unless it violates specific limitation of Congress The Supreme Court and the States A. Supreme Court Review of State Court Decisions: a. Right firmly established – as long as there is a federal question and there aren‟t independent and adequate state grounds i. *Congress regulates appellate jurisdiction b. Martin v. Hunter’s Lessee: Established the court has the power to review the constitutionality of state court decisions touching on federal questions. VA Statute conflicted w/ federal treaty about land acquired after Revolutionary War. Art. III allows SCOTUS to review, there are restrictions on state power in Constitution. Best to leave final interpretation to SCOTUS for single, competent uniform laws. i. Rationale: Different laws would invoked forum shopping; Prevent hostility from states; Federal courts better equipped ii. Cohens v. VA (1821): review of state criminal cases Supreme Court Review of the Federal Government A. Requirements: (1) power specifically enumerated in Constitution; (2) may not violate any particular limitation on federal power; (3) implied, reasonably related B. Doctrine of Implied Powers: may validly exercise power that is ancillary to open of the powers explicitly listed in the Constitution. a. Necessary and Proper (Art. I, § 8): can make laws n&p for executing power  must be rationally related to constitutional objectives. b. McCulloh v. Maryland: (1) Under implied powers, Congress has authority to charter a national back; Bank is n&p to carry out collection of taxes, raise military, borrow money; (2) Found the MD tax against the bank unconstitutional b/c it interfered with a valid exercise of federal authority (Supremacy Clause, Art. VI, cl. 2) C. Powers of Congress Specific Powers: Art. I, § 8 1. 2. 3. 4. 5. 6. 7. 8. Lay and collect taxes Provide for the defense of the country Borrow money on the credit of the US Regulate commerce with foreign nations and among several states, and with Indian Tribes* Regulate immigration and bankruptcy Establish post offices Control the issuance of patents and copyrights Declare war 9. Pass all laws that govern D.C. and military enclaves 10. Necessary and Proper Clause: make laws for carrying into execution 11. Foreign Affairs Power: considered to be implied by the nature of the federal union* Federalism and the Commerce Clause A. Test: Act will come within power if a. It sufficiently affects commerce b. Means are reasonably related to Congress‟ objective B. Gibbons v. Ogden: NJ-NY steamboat operation. Ruled in favor of Ogden. NY violated the Supremacy Clause, valid federal statute trumps state law. Marshall interpreted the meaning of the CC and found the federal law valid b/c Congress may pass any law that regulates commerce, so long as that commerce is not wholly confined within a single state, and power to regulate such is plenary. a. After Gibbons, Congress had preemptive authority over the states to regulate any aspect of commerce crossing state lines. C. U.S. v. E.C. Knight: Direct and logical relation test. Cant apply Sherman Act to D in this case b/c they are manufacturing, not commerce. Dissent, Harlan: monopoly over manufacturing will substantially affect interstate commerce D. Shift from formal test to close and substantial test a. Create dual federalism: economic regulation + police powers. b. Okay as long as activities being regulated had a substantial effect on interstate commerce or, c. Was viewed as being in stream of commerce E. Houston, East &West Texas Railway v. U.S.: Substantial economic affect. Set maximum rate for shipments by discriminating against interstate shipping. Allowed to regulated per mile b/c there was a “close and substantial relation” to interstate commerce here. Objective: to protect interstate commerce* F. Champion v. Ames: Lottery Case. Ban transport of lottery tcks across state lines. A moral regulation (social policy under C.C.). Look to formal test: there is an exchange of commerce, thus regulatable. (Dissent: slippery slope) a. Non-commerce directives were being implemented by the C.C. Loose fit: it affects commerce, we can regulate by means of enforcing bans. G. Hammer v. Dagenhart: Child Labor Case. Direct Affect Test (not employer/employee relationship). Statute prohibited the transport of article produced by kids. Struck down – b/c employment did not have a direct affect on interstate commerce. (Distinction: others prevented the evil itself from traveling) a. Want to preserve federalism – and power for state  cant all fall under C.C. b. Holmes Dissent: it has a collateral effect upon local activities otherwise left to state control does not render unconstitutional* refers to hypocrisy The New Deal Crisis A. 1933: series of economic regulations statutes to ameliorate consequences of G.D. a. Rationale/ Test of CC unclear at this point; Clarified in challenges though b. Shift to strict direct/logical link B. Schechter Poultry Corp. v. U.S.: Sick Chicken Case. Unanimous decision NIRA was unconstitutional. D‟s chickens were in the stream and had affect but Schechter‟s activities were not in the stream once gotten, impact was too indirect. C. Carter v. Carter Coal: Act allowed employees to bargain collectively (stockholder sued to prevent). Distinction between production and commerce* production did not directly affect. (Cardozo, dissent: w/o it could not have commerce). Said the activity and employment issue was purely local. a. Carter and Schechter synthesis: Before and After activities do not directly affect and cannot be regulated; Link must be direct regardless of magnitude of impact; Local relations cannot affect commerce D. 1937: shift in court allowed 3 Theories upon which CC Act may be based: a. Substantial economic Effect: loosened nexus btwn activity and comm. i. NLRB v. Jones Steel Corp.: NLRA established system for regulating labor and management relations. Looked at D‟s multistate network and concluded PA intrastate manufacturing operations has a substantial effect on interstate commerce. Labor of it can be regulated*. (Before/After distinction rejected.) b. Cumulative Effect: P‟s own effect on the market may be trivial but taken together w/ that of others similarly situated it far from trivial i. Wickard v. Filburn: D went over wheat ratio by a little and was fined – said it was unconstitutional b/c he grew it for private use. Court said used cumulative test to deem constitutional. c. Commerce prohibiting effect: broadened police power – prohibit interstate transport for furtherance of general welfare i. U.S. v. Darby: D violated Fair Labor Standards Act; Unanimously constitutional. Reach desired end by extending powers – reasonably relatable means. Overrule Hammer ii. Early Civil Rights cases: iii. Heart of Atlanta Motel v. U.S.: (title II of 1964, all persons entitled to full and equal enjoyment of services and goods). Declared constitutional, motel advertised nationally and 75% of guests were out of state – had qualitative and quantitative effect on travel  court recognized moral problem iv. Katzenbach v. McClung: BBQ restaurant: 46% of food from out of state, although no evidence it significantly served out-of-staters. Upheld anyway  used the Wickard logic that it would have an aggregate effect on Commerce and dissuade blacks from travelling Lopez and New Federalism A. At time CC power seemed limitless – jurisprudence expanded greatly a. Some worried it destroyed federalism B. U.S. v. Lopez: Gun Free School Act, banned guns in school zone  no distinction, didn‟t relate to interstate commerce. Rehnquist: 3 areas: channels; instrumentality; activities w/ substantial relation. Weak argument about educational link. Majority feels it simply goes to far (slippery slope) a. Clear and Convincing relation: economic; interstate; Congressional findings supporting link; how attenuated is the link C. U.S. v. Morrison: Violence Against Women Act (here, Congress provided findings of link). Ultimately said gender motivated crimes were non-economic. Cant make aggregate case here, too attenuated. D. Gonzales v. Raich: Marijuana CA case. CA residents suffering from illness grew pot legal under CA law. Upheld right to regulate even purely intrastate noncommercial marijuana. Used Wickard aggregate logic and said marijuana was a commodity. E. Today, Need Rational Basis: reasonably related. a. 4 Categories: i. Channels: roads, waterways, air ii. Instrumentalities: people, machines iii. Articles moving in stream iv. Substantially Affecting 1. Commercial v. Non 2. Little deference to Congress (Court discretion) 3. Traditional Domain of States: education, family, and general crim. law – unless outweighed by national need Limits of Federalism and the 10th Amendment A. Powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively. a. May limit CC power – need to determine whether an incident of state sovereignty b. Between 1967-1985: treated as an important limit to federal power B. National League of Cities v. Usery: CC did not empower Congress to enforce the minimum wage and overtime – these were areas of traditional governmental functions; found was related but violated 10th Amendment C. Garcia v. San Antonio MTA: Overruled Usery. Concluded the traditional governmental functions test was unworkable. CC invalidates state regulations that interfere with commerce and the Supremacy Clause allows Congress to preempt state laws that conflict w/ federal law in this area. a. Framers believed state sovereignty was maintained by the Senate (chosen by people)  supposed to maintain best interest of State D. N.Y. v. U.S.: NY Radioactive Waste Management. While Congress can encourage states to do something, they cannot compel states to do so; Cannot commandeer legislative process by compelling to enact a regulatory program. E. Printz v. U.S.: Brady Bill – gun control by background checks; Unconstitutional: can reserve duties for those CLEOs that accept but cant commandeer state officials F. Medellin v. TX: Mexican national convicted and sentenced to death in TX. Vienna Convention says a foreign national detainee had right to contact consulate and he did not. President wrote order urging. Court said unless enacted into law it was not binding. Executive was overstepping*. G. Today: 10th Amendment seems inconsequential a. Prevent Congress from interfering with state law-making process b. Congress may not compel state or local government The Spending Power A. Taxing Power: (Art. I, § 8): a. Congress can regulate under guise of taxing b. Limits: must be allocated in proportion to population; all taxes must be uniform through US B. Spending Power: (Art. I, § 8): a. Congress has the power to pay debts and provide for the common defense and general welfare of US citizens b. Does not confer any independent source of power i. Could spend to achieve local benefit prohibited under CC c. Conditions: i. General welfare ii. Can place conditions (i.e. make speed limit certain rate, get funds for repairs) 1. Usually justified under n&p C. South Dakota v. Dole: Congress enacted legislation to w/hold 5% from highway funds if they did not higher drinking age to 21. Constitutional b/c (1) related to the pursuit of general welfare; (2) condition may be enforced if done in an unambiguous way and unrelated to federal interest project; (3) 5% is reasonable not unduly coercive D. Cutter v. Wilkinson: as-is  limited governmental funding for religious accommodations in prison. Said on its face was okay (didn‟t discriminate or violate free establishment) Congress, the Court, and Federalism A. Limits on State Power: a. Dormant Power Commerce Clause: restricts states from discriminating against or unduly burdening interstate commerce i. 3-Prong Test: satisfy each to avoid violating Dormant CC 1. Regulation must pursue a legitimate state end 2. Regulation must be rationally related to that end 3. Regulatory burden imposed by the state on interstate commerce must be outweighed by the state‟s interest in enforcing its regulation  balancing test b. Federal Preemption: about regulation i. Congress can preempt state action by 1. If congressional and state action are in conflict – state is automatically invalidated 2. States can add regulation but cant take away 3. Congress can consent to state action that may conflict c. Supremacy Clause: Constitution and Laws of US are Supreme Law of the Land d. Interstate Privileges and Immunities: the citizens of each state are entitled to P&I of citizens of several states. i. Prevent state discrimination against non-residents 1. Unless prevent source of evil or related to state objective III. Checks and Balances in the Federal Government: Separation of Powers Role of the President A. Article II: President and VP cl 1 Power vested in President cl 7 Uphold the Constitution §2 Presidential powers, cl 1 Military, cabinets, pardons cl 2 advice and consent – treaties and appointments §3 Presidential responsibilities – (cl1: state of the union… 4 full faith execution of laws) §4 Impeachment Authority, Responsibility and Limitations: a. Cannot make laws  Faithfully executes laws b. Though Commander and Chief – cannot declare war (only repel of sudden attack) c. Can enter into treaty with foreign nation w/ 2/3 Senate approval – Can enter into executive agreement w/o consent d. Only President can appoint and remove federal officers B. Implied: “executive powers shall be vested in a President…” inherent vagueness C. Executive Authority a. Youngstown Sheet & Tube Co. v. Sawyer: Steel Seizure case. President ordered seizure of steel mills to prevent strike – thought necessary b/c of military engagement in Korea. Court held there was no Congressional statute that allowed Pres to take property; Commander in Chief did not relate to labor relations; and he is not a lawmaker. Concurrence, Jackson: „twilight‟ President‟s powers are not fixed b. Dames & Moore v. Reagan: Iran Hostage Crisis. Froze Iranian assets and suits in American courts. Unanimous that it was constitutional. (1) Tradition of acquiescing in conduct; (2) Power was limited, here was necessary for major international conflict – Congress did not dispute. c. Hamdan v. Rumsfield: implied acquiescence not found, here. 9/11 Joint Resolution gave President all necessary and appropriate force against nations, etc who commit or aid terrorism. Court was reluctant with §1 ambiguous Congressional statute of acquiescence. d. Clinton v. City of NY: Line-item veto violated the Presentment clause. Could cancel any individual spending-tax benefit w/in 5 days of signing. Failed to follow layout (1) after signature; (3) cancellation only part of bill i. President not allowed to formulate own bill D. Presidential Immunity and Privilege: a. Executive Immunity: i. Absolute immunity from civil liability for official acts – cant sue for what is done in official capacity ii. No immunity for acts that are unrelated to job – not even temp. 1. Clinton v. Jones: established a sitting President has no immunity from civil litigation against him for acts committed prior to him taking office and unrelated to the office. iii. No immunity from criminal charges b. Executive Privilege: i. Presidents have qualified right to refuse to disclose confidential information relating to their performance 1. May be outweighed by other compelling governmental interest (discretion) 2. U.S. v. Nixon: Court sought audiotapes concerning Watergate. Refused citing privilege. Court weighed balance of privilege and the fair administration of criminal justice The Role of Congress Legislative Authority, Delegation and Administrative State A. Legislative Authority: Requires Presentment + Bicameral approval a. Legislative power defines as having the purpose and effect of altering the legal rights, duties and relations of persons outside the legislative branch b. INS v. Chadha: Congress has right to establish rules of naturalization – delegated power to Attorney General but retained some power in form of veto that could be made by one house. Unconstitutional because inconsistent w/ bicameralism and Presentment Clause (both houses and to President). B. Delegation a. To the President or Executive branch i. i.e. Federal agencies have ability to legislate (reason okay, Congress w/o expertise or too politically vulnerable) b. To the Judiciary: only if subject matter is related i. Mistretta v. U.S.: Congress delegate to judiciary to decide maxmin sentencing standards. Okay b/c judiciary plays a major role in said subject C. Separation of Powers a. Bowsher v. Synar: usurping exec power. GRH Act mandated a Comptroller Genl to eliminate federal deficit. States CG was removable by Congress by impeachment and w/ good reason. Unconstitutional b/c CG becomes agent of Legislature b/c they can remove him but he is carrying out executive powers. Only President can remove executive officials b. Morrison v. Olson: Congress may limit the President‟s right to remove a purely executive officer so long as the restriction “isn’t of such a nature that they impede the President’s ability to perform his constitutional duty”. Ethics in Government Act – Attrny Gen appoint special counsel to investigate Exec official. Could be removed by AG (violation usurping President‟s traditional role to remove). Foreign Affairs, War Powers and Anti-Terrorism A. Foreign Affairs: a. States never have power to declare war or enter into a foreign treaty. b. External sovereignty i. US v. Curtiss-Wright: CW charged with selling guns to Bolivia – which was restricted by Executive Order (argued it was Congress place to regulate under CC) Court held Constitution constrains only domestic activities. Abroad President acts as representative and implied that President can manage foreign affairs (i.e. embargos). ii. Basic Rule: interpreted that Exec can do what they want in foreign arena (not so as seen in Hamdi) iii. Hamdi v. Rumsfeld: Hamdi, American citizen arrested in Afghanistan and deprived Due Process b/c enemy combatant. He has the right to due process and exec cant usurp right to challenge status as enemy combatant in Court. B. War Powers: a. Basic notion: congress declares war and maintains armed forces; President as Commander and Chief carries out any war so declared C. War Power Resolution: a. Emphasize collective decision making between Congress and Exec b. Absent declaration – 60 days for Congress approval or retreat c. Congress allocates money President wants d. Defines military action IV. Individual Rights Bill of Rights A. Bill Of Rights (1789): not directly applicable to the states (though 14th amendment and incorporation changed this; 1-10 are liberties) a. 1st Amendment – Establishment Clause, Free Exercise Clause; freedom of speech, of the press, Freedom of Religion, and of assembly; right to petition b. 2nd Amendment – Militia (United States), Sovereign state, Law of Arms. c. 3rd Amendment – Protection from quartering of troops. d. 4th Amendment – Protection from unreasonable search and seizure. e. 5th Amendment – due process, double jeopardy, self-incrimination, eminent domain. f. 6th Amendment – Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel g. 7th Amendment – Civil trial by jury. h. 8th Amendment – Prohibition of excessive bail and cruel and unusual i. 9th Amendment – Protection of rights not specifically enumerated in the Bill of Rights. j. 10th Amendment – Powers of States and people. B. Olmstead v. U.S.: interpreting 4th Amendment. Ps arrested on conspiracy to violate Prohibition. Used evidence on wiretapped phone convos. Court used textual interpretation: there was no search and no seizure and no evidence they were compelled to say what they did  Constitutional. Recommend Congress pass legislation to accommodate new technology C. D.C. v. Heller: 2nd amendment in DC law. Banned handguns and required firearms be kept unloaded and disassembled. Said it infringed on individual right to firearm for use and protection. Interpretation problem, than fear form state militias, not today. V. Equality and the Constitution Race and the Constitution: Slavery and Civil Rights A. US Const. Art. I, § 3, Cl. 9; Art. IV, § 2  Amendments XIII – XV B. State v. Post: Can slavery exist w/in the limits of the state under the Constitution and laws? Yes, no man is truly free but Declaration and Constitution recognized inherent rights and still uphold legality of freedom. (originalist argument) C. Dred Scott v. Sanford: infamously bad. Says under Constitution it is not intended that slaves have citizenship (not entitled to rights and privileges) and they are property, so under 5th amendment, due process due to owner. D. 13th Amendment: (1) neither slavery nor involuntary servitude except as punishment shall exist (overturned Dred Scott); (2) Congress has power to enforce (*only provision that affects private citizens) E. 14th Amendment: (1) citizenship; (2) requires states provide due process, equal protection and privileges and immunities a. Restraint on classifications made by government concerning: race, sex, illegitimacy, alienage, wealth, etc. b. Guarantee people similarly situated will be treated similarly c. 3 Levels of Review: Rational; Intermediate; Strict* th F. 15 Amendment: bars states from denying voting rights on basis of race or previous servitude “Separate but Equal” & Brown v. Board of Education A. Plessy v. Ferguson: Plessy refused to move to back of train car, claimed LA statute to separate railroad passengers infringed on rights under EPC. Court said social forces or racism were undeniable and had to change on their own but same B. C. D. E. civil and political rights okay b/c separate and equal. Dissent, Harlan: said it was facially neutral but knew it was to keep blacks away from whites. Said Constitution was color blind. Brown v. Board of Education of Topeka (I):overturned separate but equal doctrine. Court reasoned even if segregated schools were equal in tangible factors – it was intangible factors that prevented children from receiving equal educational opportunity. (feeling of inferiority; affect hearts and minds in a way never to be undone). Said tradition and orignalist argument was not helpful here. a. Criticized for relying on empirical evidence, social science b/c unknown life expectancy and it ignored evidence to the contrary Brown v. Board of Education (II): implementation of Brown. Started to lay down specific guidelines; originally gave no direction De jure: segregation by law De facto: segregation by fact – need good faith effort to have segregated (what we see in North).  required schools to be converted to a unitary non-racial public school system a. Wanted Result of integration: in Brown i. When to stop? When achieve unitary school system Post-Brown Cases in North and South A. Refer to notes for expanded list of cases: Griffin (unconstitutional if purpose to avoid desegregation); Swann (may not order to integrate if de facto segregation); Keyes (remedy de jure segregation that was not express); Milliken (cross-district = scope and extent unconstitutional); Washington (can only reallocate governmental power in a racially neutral manner); Crawford (prevent busing in de facto) B. Parents Involved v. Seattle School Dstr. No.1: Came up with a system of tiebreakers for school choice, race being important. APPLIED STRICT SCRUTINY. (1) compelling interest is to remove past effects of desegregation (Seattle never had de jure though); (*) cant limit diversity to race; (2)there are other factors beside race that can be sued to achieving the state interest C. Fulfilling Brown II: When is the unitary status of public schools met? a. Now use strict scrutiny. b. In Parents Involved – house patterns caused racial isolation – no reason to have race conscious pupil-assignment Equal Protection Methodology: RATIONAL BASIS Review A. The claim will not be stricken if there is some rational relation between the means selected and the legitimate legislative objective. a. Generally economic or social welfare; Neither a fundamental right nor a suspect class; Review with extreme deference. B. Requirements: a. Legitimate public objective (any conceivable) i. Judge with deference – cant be grossly unfair or irrational ii. Under-inclusive: may be that persons w/o trait will contribute to C. D. E. F. G. H. harm (okay usually; seen as “one-step-at-a-time” iii. Over inclusive: people w/ trait may not contribute to harm – don‟t want to create unnecessary burden b. Means-End Link i. Need to be reasonably related – or rationally believed to be related c. Cant be motivated by animus or hostility towards politically unpopular group d. Highly deferential: loose fit acceptable e. Non-suspect classes: Age, Wealth, Mental illness, Sexual orientation i. Likelihood of bias no so much it should raise level of scrutiny. NYC MTA v. Beazer: Constitutional ban on methadone users. Objective is capable and reliable workforce and question is employability. [though over and under inclusive] U.S. Dept. of Agriculture: Unconstitutional to exclude non-family participation in food stamps b/c passed to preclude Hippie communes. (cant harm politically unpopular group) City of Cleburne v. Clebeurne Living Center: Unconstitutional to ban mentally retarded from a home on a flood plain, by a school. (Rational was unfair and irrational – what made old people less susceptible?) Romer v. Evans: To ban “special rights” or rather protections to homosexuals in unconstitutional. Forbid them to safeguards others may seek. Irrational and unfair Railway Express Agency v. NY: Constitutional to ban ads on cars for sale (but not ad for own business). Ends justify means to prevents distractions though clear, under-over inclusive Williamson v. Lee Optical: Constitutional to prevent opticians (w/o license) from fitting old lenses or duplicates w/o prescription. Said no invidious discrimination and gave conceivable legitimate reason. Heightened Scrutiny and Racial Classification A. Footnote 4 of Carolene Products: Prejudice against discrete and insular minorities may be a special condition which tend seriously to curtail the operation of these political processes ordinarily to be relied up on to protect minorities and which may call for a correspondingly more searching judicial inquiry B. For any classification that involves a suspect classification a. Where differential treatment is intentional or incidental effect has a disproportionate impact or burden i. Will be constitutional if passed in spite of (not b/c of ) C. Types of Purposeful: a. On its face: explicit terms i. Strauder v. West VA: black man convicted by all white jury (statute prohibited blacks from servingViolated EPC b/c it denied citizens participation in the administration of justice solely on racial grounds*. b. As-applied: neutral on its face – discriminatory administration i. Yick-Wo: permit for Laundromats; 200 given to non-Chinese and all Chinese denied. D. E. F. G. c. Circumstantial evidence: legislative intent i. Washington v. Davis: questioned the validity of DC Police Dept. qualifying test – had a disproportionate outcome: high % of Blacks failed test not relevant to job performance. Did not have evidence to show it was an intentional act of discrimination. Court upheld the test: needed more than disproportionate outcome – needed to be product of provable discriminatory purpose (not here, Dept. seemed to actively recruit minorities). d. Under guise of equality: “equal application of law” („separate but equal‟) i. Purpose must be invidious: prejudice to denigrate disfavored class ii. Loving v. VA: Challenge to conviction under VA law making inter-racial marriage a felony. Legislative history provided actual intent was racial integrity  not a compelling state interest. Traits of a Suspect Class a. Explicitly singles out group in legislation b. Immutability: discrimination on basis of something you cant change c. Stereotypes: based on false generalization d. Political powerlessness: disenfranchised i. Discrete and Insular minority: group disfavored and outside of the political process  court must provide protection* BOP on state b/c presumption of unconstitutionality. Requirements (to pass strict scrutiny) = Compelling State Interest + Necessary and Narrowly Tailored Law. a. Necessary Means: must be narrowly tailored – always use less discriminatory means (even if objective not achieved as well) i. Often fails  ii. Cant get around and modify the political process to failing these acts more difficult (Romer and Hunter v. Erikson: allowed voters to amend housing charter so residents could prohibit an antidiscrimination law) Korematsu v. U.S.: Executive order during WWII to exclude JapaneseAmericans – criminalized violations. Upheld under EPC b/c despite suspectness – they did so on the compelling need to prevent espionage and sabotage. Court agreed there was no other practical and sufficiently rapid way to do otherwise, thus met the necessary means test. [Discuss responsibilities of citizenship]. a. Dissent: Murphy: Due Process should be applied and citizens should get hearings; Jackson: points out Italian and German- Americans not excluded Heightened Scrutiny and the Criminal Justice System A. Peremptory Challenges: Batson set up challenge for racial discrimination – can demand their reason and use discretion in deciding whether they are racially neutral reasons B. McCleskey v. Kemp: Petitioner argued the state‟s capital sentencing process was administered in a racially discriminatory manner. – Baldus Study. Court denied claims and said disproportionate effect not enough to show intent in order to reverse the P‟s conviction. “Benign” Racial Classification and Affirmative Action A. Benign: not designed to be invidious  usually attempt to remedy past discrimination a. Same strict scrutiny is applied for affirmative action based on Race. b. Not always struck down b/c may be justified as necessary to fulfill compelling necessary objective c. City of Richmond v. J.A. Croson: Richmond tried to remedy what it saw as past discrimination against black owned construction by giving them 30% of city contracts. Did not meet requirements: Need hard proof of discrimination (stats not enough, intent); Need to show by whom (domain or government). Rejected Fullilove. d. Fullilove v. Klutznick: required 10% of federal funds going towards public works program to go to minority-owned companies. Court split. OK under Spending and Commerce Power b/c in remedial context Congress did not have to act wholly in color-blind fashion B. Good intentions alone are insufficient  “special preference” implies that the group is somehow less qualified by virtue of race a. Rule: Congress must provide a reason for implementing a spending act. C. Governmental Objectives approved: a. (1) Redressing of clear past discrimination and i. Adarand Constructions v. Pena: Government agency gave financial incentive for gen contractor to choose subs that are owned by socially and economically disadvantaged individuals. Ruled Strict scrutiny was not fatal in fact – Compelling interest was reversing past discrimination and race conscious methods are okay if narrowly tailored b. (2) The pursuit of diversity in a student body. i. Regents of Univ. of CA v. Bakke: reserved 16/100 for disadvantaged minorities – apply S.S. Compelling interest was the educational benefits from ethnically diverse student body BUT quota system did not pass necessary means test. RULE: treat students individually and use race as a plus factor. D. Requirements: a. Need proof of past discrimination and intent b. Discrimination by whom: particular governmental entity; general domain  societal discrimination is not enough to justify race conscious measures E. *Strict scrutiny for acts that include rather than exclude are far more forgiving. Affirmative Action, Race and Higher Education A. Pursuit of diversity in a student body is a compelling interest a. Individualized student evaluation + race as a factor = sufficiently narrowly tailored (Powell‟s approach in Bakke) b. Quota or fixed points are not considered narrowly tailored i. Gratz v. Bollinger: UMich Undergrad. B/c of large volume of applicants admissions gave automatic 20 points to an underrepresented minority. Said point system was not narrowly tailored. The defense of implementing a constitutional program capable of individual consideration presented significant admin. challenges was not a valid constitutional argument. B. *Critical mass = Meaningful representation a. Grutter v. Bollinger: UMich Law School. Used approach of considering whole application and racial plus. School said they were seeking to enroll a critical mass of underrepresented minorities. Said that critical mass was a compelling interest and their holistic approach was narrowly tailored. i. Critical mass: fostered racial understanding, break down stereotypes, extend to whole society ii. Plus factor: holistic approach – said race neutral schemes were unworkable 1. O‟Connor – must be limited in time (25 years?) iii. Dissent: Rehnquist: veil to achieve racial balancing; Kennedy: said bad b/c still automatic; Thomas: bad for its beneficiaries C. Side Note: this is for public institutions – but if receives federal funds under Title VI (as most schools do) can be race conscious acts can be struck down Heightened Scrutiny and Gender A. Intermediate Level of Scrutiny: any gender-based classification must be substantially related to important governmental objectives a. Quasi-Suspect class b. Skeptical scrutiny  must show exceedingly persuasive justification B. Encapsulated in 14th amendment, EPC? C. Requirements: a. Must be an important interest and must be the actual objective b. Must be substantially related  doesn‟t have to be perfect fit i. Cannot be the accidental by-product of “traditional way” women were thought of – paternalistic ii. Example: Michael V. v. Superior Court: Upheld CA statute that made men but not women liable for statutory rape; wanted to prevent pregnancy and men cant get pregnant; Rostker v. Goldberg: Upheld federal statute that barred women from draft registration b/c “not fit for combat”. c. Statutes based on faulty generalizations or stereotypes about differing abilities and interests of two sexes will invalidate it D. Reed v. Reed: Idaho statute preferred men over women as administrators of estates. Struck down law b/c of dissimilar treatment of men and women was unconstitutional. The statute did not provide a rational way to pursue a state interest.  1st gender-based law invalidated under the 14th amendment ever! E. Frontiero v. Richardson: Benefits given by the US military to the family of service members given to wives automatically but not husbands – although similarly situated. Military said it was to save administrative costs – but still incurred bureaucratic costs. Not under mere rationally basis related here. F. Craig v. Boren: OK alcohol law. 3.2% = women 18, men 21 b/c of drunk driving stats. Articulated standard: classifications by gender must serve an important governmental interest and must be substantially related to achieve those objectives. Means-End fit here was simply too tenuous to constitute a substantial relationship G. U.S. v. VA: VA Military Institute only single sex public institution. Claimed tradition and program would be materially altered if they allowed women – provided remedy by supporting similar women‟s program at another school. Unconstitutional – b/c a. (1) It made broad generalizations about women and what is appropriate for them; b. (2) Other program was insufficient, like separate but equal – needed to put them is position absent discrimination c. (2) Did not have an exceedingly persuasive justification: court said “diverse educational options” was not sufficient, nor their real reason H. Benign Use: use same intermediate standard a. Means: relationship between statute and discrimination to be remedied i. Nguyen v. INS: courts will tolerate some imprecision in meansend. Federal statute made it easier for child out of wedlock of an American mom to gain citizenship than for a child of American dad. Objective of having dad w/ son – cant just get citizenship before 18. Ruled in favor – saying no statute has been said to have to achieve goal, only rationally related. b. Verify Benignness: careful it does not reinforce untrue stereotype (i.e.: women need protection) i. Califano v. Goldfarb: SSA widow of a covered worker – but widower had to show dependency on wife. Unconstitutional because there was an innate presumption that women were dependent and needier. c. Attempt to Remedy Past Discrimination: more likely to be upheld if it is specific objectively verifiable past (i.e. job discrimination) i. Can remand to legislature to remove classification ii. Califano v. Webster: Remedy for job discrimination under the correct presumption that women have historically received lower paying jobs. Valid benign discrimination because based on verifiable discrimination and substantially related to important governmental objective. Heightened Scrutiny and Sexual Orientation A. see Romer v. Evans (in Rational Basis section) a. Court invalidated statute b/c it was motivated by animus toward an unpopular group and desire to harm an unpopular group is not a compelling state interest. Furthermore, means were poorly linked the objective they did give (removal of “special treatment”). b. Applied Rational Basis with bite. i. Also look to Lawrence v. Texas (in substantive due process). Alienage and Wealth A. Alienage: does not have US citizenship a. Discrete and Insular: politically powerless and there has been a tradition of discrimination i. Though lacks status of immutability – eligible for citizenship 1. Explain wavering commitment to strict scrutiny? b. 3 Main Cases: i. Graham v. Richardson: aliens are a discrete and insular minority and health that the state‟s fiscal interest in preserving limited resources for citizens was not a sufficiently countervailing interest (aliens pay taxes*) ii. In re Griffiths: Connecticut's exclusion of aliens from the practice of law violates the Equal Protection Clause of the Fourteenth Amendment. Classifications based on alienage, being inherently suspect, are subject to close judicial scrutiny, and here the State through appellee bar committee has not met its burden of showing the classification to have been necessary to vindicate the State's undoubted interest in maintaining high professional standards. iii. Sugarman v. Dougall: state may not bar aliens from holding positions of state civil service; B. Wealth: not-suspect class (look to welfare cases in Liberty section) a. Wealth does not heighten scrutiny b. Welfare is not a fundamental interest c. Cases: (again, look to fundamental interest section on the matter) i. James v. Valtierra: upheld CA constitutional amendment that provided no low-income houses be built w/o community majority ii. Dandridge v. Williams: upheld MD statute that set minimum $250 for welfare, regardless of size or need. Was defferential. 1. Dissent: Marshall‟s sliding scale (most famous) a. Spectrum: type of classification, relative importance to individuals balanced against strength of interest asserted by state VI. Liberty and the Constitution: Implied Fundamental Rights, and the Constitution and the 14th Amendment The Privileges and Immunities Clause A. 14th Amendment: no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the U.S. a. Restraint on state government on individuals b. Interpretation of rights of national citizenship: right to travel and to vote. i. Gets strict scrutiny c. Slaughterhouse cases: Monopoly: violated one practicing one‟s calling. LA passed a law giving monopoly to New Orleans slaughterhouses. Constitutional b/c right to practice one‟s calling was domain of the state. Told P‟s to turn to state legislature. The Incorporation Debate A. Originally, Bill of Rights not binding on states – Marshall “if drafters intended them to be would have explicitly stated do” a. Federal courts could not significantly control he substance of state legislation B. Shift after Civil War Amendments: Selective v. Total Incorporation a. Cardozo/Frankfurter: selective: denies that entire BOR may unquestionably be applicable to states via 14th. Whether is it very essence of ordered liberty or does it lie at the base of civil and political institution i. Palko v. CT: said double jeopardy was not sufficiently fundamental b. Black: total: should be read as guaranteeing that no state shall deprive its citizens of the p & i of BOR. Believed framers wanted it to apply to all citizens. i. Adamson v. CA: Majority rule right against self-incrimination was not fundamental – Black dissented: did extend via 14th – right to not testify is not insinuation of guilt c. Modern approach: court today incorporates into 14th any guarantee that is fundamental in the context of the judicial process maintained Substantive Due Process and Economic Interests A. 14th Amendment: Due Process Clause a. Limitation on substantive power of the state.  Review substance legislation through the interpretation of the term liberty. b. Early Substantive Due Process (SDP) claims dealt with economic interests i. Slaughterhouse cases allowed for broader freedom ii. This was tightened by willingness to apply SDP c. Lochner Test: Early scrutiny of economic regulation; freedom to contract i. Need very close fit between objective and statute ii. Certain objectives are okay (health and safety) iii. Lochner v. NY: NY law limited number of hours a baker could work. State said it was a valid labor law and it protected health and safety. Court said it abridged to freedom of contract and granted no deference to the legislature. Said means were not narrowly tailored could have inspections to regulate health and safety. 1. Dissent: Harlan saw enough evidence to support labor law; Holmes said test should be found to be violated when a ration and fair man would admit the statute infringed on principal. iv. Aftermath: widespread invalidation of economic legislation on SDP 1. Muller v. Oregon: allow laws for special classification; set max hours for women working in factory 2. Adkins v. Children’s hospital: struck down minimum wage for women b/c of freedom to contract d. New Deal program of expansive economic legislation conflicted* Shift. i. Nebbia v. NY: milk price fixing ok – found a real and substantial relationship with objective. State is free to adopt whatever economic policy may be reasonably deemed to promote public welfare and to enforce legislation adapted to its purpose ii. West Coast Hotel v. Parrish: overturned major Lochner precedent. Upheld state minimum wage for women – gave substantial weight to the state‟s interest in redressing women‟s inferior bargaining power iii. U.S. v. Carolene Products: prohibition on filled milk, health hazard – did not violate SDP b/c used lower scrutiny characterized test as minimum rationality w/ presumption of constitutionality.  *Footnote 4 e. Today, court has withdrawn almost completely from reviewing state legislative economic regulation for SDP violations. Williamson v. Lee Opt. i. Minimal relation for means-end test ii. Presumption of constitutionality iii. For social welfare and economic regulation as long as no fundamental rights are infringed Substantive Due Process and the Right of Privacy A. If a state is impairing a fundamental right the court strictly scrutinizes the regulation a. Objective being pursued must be compelling and b. The means chosen must be necessary to achieve that compelling end B. Fundamental Right v. Interest a. Right: State has BOP to show that it is pursuing a compelling objective b. Interest: Attacker has BOP to show illegitimate interest C. Privacy is a fundamental right. (or autonomy to make one‟s own decision in highly personal matters – usually thought as marriage, child bearing and rearing) a. Griswold v. CT: contraception case. Law forbade the use and counseling in use of contraception. Court found unconstitutional b/c it infringed on fundamental right of privacy (derived from the penumbra the BOR made which protected citizens from government intrusion). i. Concurrence: Goldberg, not all enumerated bout found right to marital privacy in 9th; Harlan said could regulate forbidden relations, not married; White used means-end test that banning birth control didn’t end promiscuity and extramarital affairs ii. Dissent: Black and Stewart – only what is specifically enumerated in BOR is protected. b. Roe v. Wade: TX had nearly a complete ban on abortion. Unanimous but almost legislative as it proscribed rules for each trimester. (1) may not ban or even closely regulate abortions; (2) may protect in interest of mother‟s health by regulating in a reasonably related way; (3) when fetus becomes viable state can regulate in interest of unborn (hence trimester regs). i. No compelling interest before viability that overwhelms fundamental right of right to privacy ii. Dissent: White: Court is imposing own value scheme; Rehnquist: should apply rational basis and court was being legislative Substantive Due Process and the Right to Abortion A. Funding: limiting funding is constitutional – b/c don‟t have to provide women with abortions just cant deny them the right. a. Maher v. Roe: Allowed state to limit Medicaid to abortions that were medically necessary. Upheld (*financial need does not make a suspect class). CT placed no obstacles and did not impinge on a fundamental right. Distinction between interference with protected activity and state encouragement of activity. b. Harris v. McCrae: Congress passed act to severely limit the use of federal funds to reimburse the cost of abortions under Medicaid. Court said (1) freedom of choice did not carry with it a constitutional entitlement to financial resources; (2) wealth was not a suspect classification so was not entitled to due process under 5th; (3) coincidence of funding restriction w/ position of Catholic Church was not violation of Free Establishment B. Regulations: a. City of Akron v. Akron Center of Reproductive Health: Court affirmed its commitment to protecting a women‟s reproductive rights by invalidating statute that required all abortions be performed after the first trimester be done in hospitals. Powell said it was unconstitutional b/c it clearly was intended to direct women away from choosing an abortion. b. Webster v. Reproductive Health Services: Court upheld statute (emphasized it had no bearing on Roe though). (1) the preamble that discussed life at conception did not do anything; (2) DPC did not require states enter into the business of aiding or providing abortions; (3) found no case or controversy in relation to provision; (4) state‟s interest in protecting life could test for viability c. Planned Parenthood of SE.PA v. Casey: Partially overruled Roe. Important aspects (abortion as a fundamental right, complete inability to regulate first trimester and trimester framework) were overturned. Result was that states may restrict abortions so land as they don‟t place undue burdens on the woman‟s right to choose; made abortion quasifundamental. i. Upheld: Parent consent; 24 hour waiting period (maybe asapplied); Informed consent; Statistical Reporting ii. Struck down: Spousal consent iii. STARE DECISIS argument: 3 questions 1. Has Roe proved unworkable? 2. Has rule engendered great reliance? 3. Has rest of laws and tech developed in such a way to make it not necessary? 4. O‟Connor says should be inexorable command like in Plessy or Lochner – not the case here iv. NO undue burden – court can want decisions to be thoughtful but a married woman doesn‟t relinquish rights when married. v. Dissent: Rehnquist, says public interest shouldn‟t sway justices admit they got it wrong and overturn – not amend as so. Accuses court of legislating and should leave it to state legislature d. Today, state has far greater ability to regulate abortion process – still not undue burden. A woman has constitutionally protected privacy interest in choosing to have an abortion before viability. i. States do not have to give funding or have public hospitals perform ii. May require minor consent – but not spousal iii. May insist on informed consent C. Partial Birth Abortion: a. Stenberg v. Carhart: Nebraska law prohibited partial birth abortion and criminalized the act. Favored P and said the act placed an undue burden b/c it used a method of threatened prosecution against Drs and did not allow exception in cases of threatened health. b. Gonzales v. Carhart: Partial-Birth Abortion ban. Upheld Congress‟s ban on partial birth abortion b/c it was not vague since it applied to a specific method of abortion and was not an undue burden on the decision to obtain an abortion. Also followed selective medical advice that it was never medically necessary. Dissent, Gisburg said the majority hostility towards right Roe and Casey was apparent. Boundaries of Privacy A. Family Privacy: a. SCOTUS has found person‟s decision about how to conduct family life often raises to the level of fundamental right (live together, marry, raise children – may conflict with public policy concerns though) b. Government may not pass law which impairs these fundamental rights. c. Moore v. City of E.Cleaveland: Zoning law interpreted family narrowly. The Court struck it down b/c family is traditionally conceived as broader than nuclear and the ordinances goals were legitimate but not served well. d. Zablocki v. Redhail: Right to marry. WI law denied a marriage license to anyone with children unless they provided proof of support was invalid under equal protection b/c the classification interfered with right to marry. i. Invalid b/c burden fundamental right though it served a compelling state interest. e. Bowers v. Hardwick: upheld statute prohibiting all sodomy – said sodomy was not a fundamental right and thus could be regulated. Use rational basis and is law for 20 years. f. Lawrence v. TX: TX prohibited same sex sodomy. Overturned Bower and used (covertly heightened) rational basis. (1) Looked at previous privacy cases – said cant look at this just as sodomy but about personal decisions between consenting adults; (2) Looked at tradition and history of sodomy laws was to prevent non-procreative sex – but that changed and also there was increasing acceptance of homosexuality; (3) respect for sexual liberty i. Dissent: Scalia saying it was start of „parade of evils‟; preparing for gay marriage; was promoting liberal social agenda; Thomas says not job of judiciary to fix stupid legislation The Right to Die A. Right to Treatment v. Right to Die a. A competent adult has the 14th amendment liberty interest to not be forced to accept life-saving treatment. i. SCOTUS found court can have countervailing interest to preserve right* b. An incompetent patient cannot refuse artificial life saving treatment unless parties can bring forward clear and convincing evidence that was their wishes. i. NO Right to commit suicide – or assist c. Cruzan v. Missouri Dept. of Health: Woman in permanent vegetative state – feeding tube to live. Family thought it would be her wishes to be taken off life support. State statute said there needed to be clear and convincing evidence absent a will. State favored life. Curt upheld the statute (argument that family may not always have best interest; cannot deprive due process from incompetent person). i. Dissent, Brennan: said individuals are entitled to determine own destiny and this clear and convincing standard was an impermissible burden; Stevens: interest in personal dignity and family concerns ii. Concurrence: Scalia said in essence this was assisted suicide and law never accept suicide as legal in any form d. Washington v. Glucksberg: WA statute prohibited assisted suicide. SCOTUS upheld the statute. Court said there was an unbroken tradition of criminalized suicide – Distinguish Cruzan – this is an affirmative act, as opposed to failure to act. Procedural Protection of Liberty and Property A. 5th applies to federal; 14th applies to state a. State action – not private action B. What procedural safeguards are in place to prevent deprivation that could occur? a. If you have life, liberty or property government cannot deprive it w/o the due process of law. C. Requirements met? : a. Is there a life, a liberty or property involved? (no, go home) b. Yes – then process if due. c. What process is due before deprivation occurs? D. Elements: a. Property and liberty b. Serious situation c. Context matters d. Public v. private e. Balance interest and cost E. Goldberg v. Kelly: state terminated welfare w/o hearing. State said it was benefit not privilege. SCOTUS said it was an entitlement once they began to give it – and evidentiary hearing was required. (this is limited by Eldridge balancing test) F. Board of Regents of State College v. Roth: Non-tenured professor contract wasn‟t renewed w/o a reason. SCOTUS said it was not a legitimate claim of entitlement and there was no liberty interest. Came up with present enjoyment requirement: unless already is enjoying he has no procedural due process to right G. Perry v. Sinderman: contrasting view. Untenured but there for 10 years and though there was an understanding. Said P was entitled to claim. Such an interest will be found if there are mutually explicit understandings. (implied property) H. Cleveland Board of Education v. Loudermill: Protected interest in public sector position. Required limited hearing prior to discharge. (full trial would be unwarranted intrusion government bureaucracy). I. Matthews v. Eldridge: Balancing Test. Social Security terminated – said he was entitled due process under 5th. 3 Factors: (1) Magnitude of property interest; affected how?; (2) What is the risk of an erroneous deprivation?; (3) What is the burden on government if additional process? VII. Fundamental Interest and the Equal Protection Clause A. Non-Fundamental v. Fundamental a. Non: Gets virtually no scrutiny; Legitimate interest + Rational relation b. Fundamental: Gets strict scrutiny; need to show the legitimate interest cannot be achieved in a less burdensome way. i. Viewed as holding liberty guaranteed in the 14th Amendment B. Fundamental Right or, v. Fundamental Interest a. Will be subject to strict scrutiny regardless of the characteristics of the people burdened. b. Rights are independently and explicitly guaranteed by some provision of the Constitution OR c. Rights that are felt to be both important and implicitly granted by the Constitution. i. E.g. Right to vote and Interstate travel ii. Develop by Warren Court: saw these principles at stake iii. Burger/Rehnquist Court refused to expand the list of fundamental rights (necessities like education and welfare not fundamental) iv. Skinner v. OK: performed compulsory sterilization on 3x felony offenders (white collar crimes excluded). Used strict scrutiny to strike down stating marriage and procreation are fundamental to existence and survival. (implied Right)  [note: Today would be protected under Right to Privacy.] Voting as a Fundamental Right A. XV (voting and race); XXIV (voting and poll taxes); XXVI (voting and age) B. US Constitution does not place explicit limits on the power of states to control state and local elections. a. Courts have held that state may exercise substantial control – as long as the do not violate constitutional provisions. i. Regulate voter qualifications – age, citizens and residents b. Can regulate for federal elections, as well C. Voting determined fundamental b/c it relates to political expression and the maintenance civil liberties by preserving a representative electorate a. Inequality in the way states allocate voting rights will be struck down absent a compelling state interest. b. Right to vote PRESERVES ALL RIGHTS and is therefore strictly scrutinized. (Harper) D. Harper v. VA State Board of Elections: imposition of a poll tax is unconstitutional. State made argument it was okay b/c put fee on other rights (i.e. driver‟s license). SCOTUS ruled that means-end lacked though b/c wealth, like creed or color, is not germane to one‟s ability to participate in the electoral process. E. Kramer v. Union Free School District: Restricted school board elections to “interested voters” (1) either leased or owned property and (2) parents of children in district. Ruled it was an unreasonable restriction. It was not sufficiently tailored b/c people not interested could vote while those who were (P w/ parents) couldn‟t. F. Reynold v. Sims: one man-one vote. Alabama‟s apportionment violated EPC b/c it diluted some people‟s votes. Said it was a fundamental right to not have vote diluted at very least. Direct representation was the bedrock of our political system and states were required in good faith to make it districts representative. G. Crawford v. Marion County Election Board: Required photo IDs. Ps said it was an undue burden. State legitimate interest prevent fraud. Court upheld b/c a slight burden to protect integrity of voting and was neutral and non-discriminatory Right to Travel A. Freedom of Interstate Travel a. Basic Principle: any citizen is free to travel from state to state and to change his residence whenever he so desires i. States can treat new citizens less favorably or different than those who have lived there. b. Treated as fundamental – strict scrutiny may be triggered c. 14th Amendment protected right to travel in 3 ways: (Saenz) i. Allow citizens to move freely between states ii. Secure the right to be treated equally when visiting iii. Securing the rights of new citizens to be treated like long-time citizens; treat the same* B. Shapiro v. Thompson: CT statute denied P welfare benefits b/c she did not satisfy the 1-year residency requirement. (combined w/ PA and DC). Court said the regulation touched on the fundamental right to interstate movement and to be allowed must promote a compelling state interest (FAIL). Preventing indigents is not a permissible interest. This was an undue burden to freely moving. C. Saenz v. Roe: (struck down under p&i). TANF allowed states to pay the benefit amount of another state‟s welfare to new residents of less than a year. Court struck down the statute b/s it treated new residents differently that those who lived there longer. Welfare A. Wealth classifications do not trigger heightened scrutiny. a. SCOTUS has rejected claims that various necessities of life were fundamental interests that should trigger heightened scrutiny b. Doesn‟t fit suspect elements: large, amorphous, diverse (Rodriguez) B. Dandridge v. Williams: MD set statute set welfare at $250 no matter size or need of family. It was upheld b/c economic and social welfare merely triggered rational basis and welfare was not a fundamental right. Was rational to state objective: encourage employment. a. Dissent (most famous for) Marshall‟s sliding scale: conceded not strict scrutiny but higher than rational basis  Spectrum that depended on (1) Types of classification; (2) Relative importance to class discriminated; (3) Strength of interests asserted by state in support of classification – Said here would have favored Ps Education A. Education is not a fundamental right. B. San Antonio Independent School District v. Rodriguez: Funding was from state + property tax. Challenged this funding scheme by saying that it underprivileged students that lacked greater property value. Refused to review under strict scrutiny b/c not a fundamental right. Said system did not systematically discriminate. C. Plyler v. Doe: Struck down a statute denying funding for education to children who were illegal aliens. Court found that where state limit the rights afforded to people based on their status as aliens, this limitation must be examined under and intermediate scrutiny. Aliens people by ordinary sense of the word in 14th amendment. VIII. Implementing the 14th Amendment The State Action Doctrine A. State Action Federalism and Autonomy a. History: i. Old view: if not clear and obvious it was a private action. ii. Shifted in 1920‟s with “white primaries” – held by private political parties but expanded to be seen as state action iii. Burger/Rehnquist court: construed narrowly; mirrored economics 1. Laissez-faire: “hands-off” iv. Shift: with industrialization and harm of monopolies (became part of domain classified as state action) v. Then took on Civil Rights* b. Federalism i. To maintain this government constitutional rights need to kick in over state government c. Civil Rights Cases: i. If not state action cant reach; Commerce Clause can but considered a police power. ii. Federal Rights Act of 1875: provided criminal penalties for racial discrimination in a place of public accommodation 1. Majority opinion against: State means state. Such places are private entities and not implicated in state action, thus Congress power wont reach. 2. Dissent, Harlan: companies are big and powerful enough to act like a government Congress should be able to; Enforcement Clause applied to entire amendment and the affirmative prohibition of citizen by private citizens is a violation  privates are included. iii. White primaries cases: looked like private action but SCOTUS ruled it was encompassed in state action and had to allow them to vote B. Pure Action and the Theory of Governmental Neutrality a. Flagg Brother v. Brooks: (Public Function Test) P was evicted and Flagg stored her stuff. She signed receipt for payment but refused. They said if she didn‟t pay they would sell. She brought Due Process and State Action suit. Rehnquist failed to point to any governmental entity. Sale of plaintiff's possessions by defendant garage, as authorized by NY's version of the UCC, did not constitute state action, and thus did not create a federal due process claim under the Fourteenth Amendment. C. Judicial Action and the Theory of Governmental Neutrality i. (Restrictive covenants: prohibited selling house to someone based on religion/race) D. 3 Theories of Frameworks: a. Public Function Theory: does your private activity perform like a public function? i. State like power (equivalent to strength and scope) ii. State delegation (delegate to you) b. Nexus Theory: problems being complained of has connection with the state c. Symbiotic Relationship: d. Shelley v. Kraemer: sold to Black buyer. Sued to divest African American of title b/c it was a racially restrictive neighborhood. Asks court to restore to original owner. i. SCOTUS says contract alone does not trigger state action. Individual alone can discriminate w/o tripping 14th amendment. ii. But because went through the judiciary machinery (court would have to evict Shelley) it became a state action* 1. Freedom from discrimination by the states and enjoyment of property rights is basic fundamental principle 2. Let Shelley keep house – reversed. e. Burton v. Wilmington Parking Authority: Symbiotic. Coffee shop in parking garage owned by state. State owns, profits, and protects – symbiotic relationship establishes state action. Relief is granted. f. Moose Lodge No. 107 v. Iris: Nexus Theory: Private club receiving no public funding but was given a liquor license. Discriminated against Black man. License not enough need state activity involved in the invidious action. License – club needed to have a constitution and in the bylaws had compulsory racism – sufficient nexus via the license. g. Jackson v. Metropolitan Edison Co.: Nexus theory. P is a low income resident and D the electric company shut off power. She said violation of due process b/c right to reasonably entitled to power. Rehnquist said no state action –monopoly did not make sufficient connection. Section 5 and Congressional Enforcement Powers A. How far does Congress‟ power extend to enforce post Civil War amendments? a. 13, 14, 15 are extremely broad. b. Can stop a facially constitutional act if they fear it will effect with guaranteed rights i. Voting rights: prohibited Grandfather clauses and literacy tests ii. 15th amendment available for relief in these situations iii. Voting Rights Act of 1965: eradicated discrimination in voting by dealing wholly rather than by case by case. 1. Factfinding to show discrimination -absent when prohibited 2. Upheld in S.C. v. Katzenbach: Court construed Congress‟ power to enforce broadly and held by any rational means could enforce ban. a. Rational test: use test or devise clearly furnished as a means of carrying out racial discrimination and low registration figures obvious of that. iv. Katzenbach v. Morgan: NY provision to ensure Puerto Ricans weren‟t denied franchise. Voters said it violated 10th amendment and rights designated to States. Upheld under §5,14th b/c positive grant of legislative power authorizing Congress to exercise discretion in this matter  ratchet theory: allowed Congress to ratchet up civil rights beyond what the court recognized but not that Congress could ratchet down rights. 1. Dissent, Harlan: claimed violation of separation of powers v. City of Boerne v. Flores: Congress has no right to specify substantive contours of constitutional rights. Could not use 14th AM remedial powers to prevent local government from unintentionally burdening individual‟s religious freedom in certain way. Zoning was set to protect historical area. Said that there must be congruence and proportionality between the injury to be prevented and remedied. IX. Revisiting Justiciable Standards: Determine whether potential cases present actual cases/controversies that can be reviewed under Article III. Standing A. Adversarial System: Judicial power extends over cases and controversies in Art. III B. 3 Elements: a. Harm to Plaintiff b. Reasonable causal connection c. Likelihood that the P’s injury will be remedied by favorable ruling C. Who? a. 1st party injured b. 3rd party organization for the protection of P class c. Tax standing: only if related to tax constitutional issues  cant just be you are an unhappy tax payer D. Harm must be concrete and particularized a. Legally recognizd form of harm b. Injury affects P in personal, individual way c. Have to be able to point to injury in fact E. Causal Relation: larger chain, less likely F. Likelihood: wont vindicate parties if they have no stake in outcome G. Allen v. Wright: Injury brought by 3rd party (fail). Compel IRS to deny tax exempt status to private schools that encourage segregation. O‟Connor said they H. I. J. K. could not act since they were not judicially recognizable and that they were not fairly traceable to the assertedly unlawful conduct form IRS  an assertion that the govnerment is not acting in bounds of the law is not enough to bring fed suit. Lujan v. Defenders of Wildlife: “Hurting the environment” not a recognizable harm. Limited Agency threatened animal to US and high seas. Wanted to amend scope. Scalia said there was no proof these action would produce actual or eminent injuries – who may someday visit. Disregarded ecosystem nexus Mass. v. EPA: MA and other states wanted to compel EPA to regulate greenhouse gases by Clean Air act. Stevens held that MA had a state in protecting quasi-soverign interests” Flast v. Cohen: Tax for school expenditures  established that tax payers must establish a logical link between the status as tax payers and the type of legislation enacted and cant be incidental expenditure. Hein v. Freedom from Religion Foundation: Bush passed Faith-Based Initiative; argued it favored religious groups and violated Free Establishment Clause. Ruled that taxpayers do not have the right to challenge the constitutionality of expenditures by the exec branch. If taxpayer bringing forth suit must have case or controversy against a congressional expenditure. Ripeness/Mootness A. Mootness: no longer has a practical significance a. Events occur that render the court unable to offer relied b/c P no longer has a stake in the outcome. b. Basic Rule: article III federal courts will dismiss cases when there is no longer a case or controversy. c. Ask: i. Continuing harm? ii. Voluntary cessation?  make sure in goo faith iii. Capable of repetition  Like Roe - knew she would have the baby by the time it was decided but it was capable of repetition and evading review. iv. Class Action exception. B. Political Question (see other section; Vieth v. Jubelirer; Bush v. Gore). Bush v. Gore Facts of the Case: Following the U.S. Supreme Court's decision in Bush v. Palm Beach County Canvassing Board, and concurrent with Vice President Al Gore's contest of the certification of Florida presidential election results, on December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by hand 9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all "under-votes" (ballots which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. Governor George Bush and his running mate, Richard Cheney, filed a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the Florida Supreme Court's decision. The U.S. Supreme Court granted review and issued the stay on December 9. It heard oral argument two days later. Question: Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution? Conclusion: Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the "safe harbor" provided by 3 USC Section 5). Loathe to make broad precedents, the per curiam opinion limited its holding to the present case. Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the recount scheme was also unconstitutional because the Florida Supreme Court's decision made new election law, which only the state legislature may do. Breyer and Souter (writing separately) agreed with the per curiam holding that the Florida Court's recount scheme violated the Equal Protection Clause, but they dissented with respect to the remedy, believing that a constitutional recount could be fashioned. Time is insubstantial when constitutional rights are at stake. Ginsburg and Stevens (writing separately) argued that for reasons of federalism, the Florida Supreme Court's decision ought to be respected. Moreover, the Florida decision was fundamentally right; the Constitution requires that every vote be counted.