ROLE OF THE COURT
(1)Marbury v. Madison-Emphatically the province and duty of the
judicial department to say what the law is.
(2)Martin v. Hunter
We don’t want state courts to be able to rule on constitutionality
because if every State is interpreting the Con differently it would
be trouble.
(3)Cooper v. Aaron- and particularly the United States Supreme
Court, has final authority in interpreting the Constitution, or saying
“what the law is.”
(4)McChulloch v, Maryland- Taxing a federal bank by the State
of Maryland, the power to tax is the power to destroy. The
NECESSARY AND PROPER clause, congress may choose any
means, not prohibitive by the constitution, to carry out its lawful
authority. Article 1 § 8 (18)
STANDING
(5)Allen v. Wright- To have standing to bring a lawsuit, plaintiffs
must sufficiently allege that they have personally suffered a
distinct injury, and the chain of causation linking that injury to the
actions of a defendant must not be attenuated.
(6)Lujan v. Defenders of Wildlife,
Injury-in- fact, an invasion of a legally protected interest. (a)
concrete and particularized, not conjecture or hypotheticalCausation, injury is fairly traceable to the defendantRedressability, whether the injury can be fixed.
RIPENESS: (a) already suffered a harm. (b) is faced with a
specific present harm. (c) under threat of a specific future
harm.
(7)District of Colombia V. Heller- Subject to certain safety
limitations, the Second Amendment to the United States
Constitution creates an individual right to keep and bear arms
apart from any military purpose.
BOBBIT’S
MODALITIES
textual (looking to the meaning of the words of the Constitution
alone, as they would be interpreted by the average contemporary
“man on the street”); historical (relying on the intentions of the
framers or ratifiers of the Constitution) [Prof. Fox adds: or the
meaning of the words at the time of ratification]; traditionalism
(relying on history of actions of three branches since ratification)
structural (inferring rules from the relationships that the
Constitution mandates from the structure it sets up) e.g. the
separations of powers, federalism)]; doctrinal (applying rules
generated by precedent – court decisions);ethos (deriving rules
from the moral commitments of the American ethos that are
reflected in the Constitution); prudential (seeking to balance the
costs
and
benefits
of
a
particular
rule)
POLITICAL QUESTION
(8) Baker v. Carr- a Republican living in Shelby County, Tennessee, A challenge to malapportionment of state legislatures brought under the
Equal Protection Clause is not a political question and is thus justiciable
1. ISSUE OF ANOTHER BRANCH 2. LACK OF STANDARDS 3.
IMPOSSIBLE POLICY DECISION 4. SHOWING DISRESPECT 5.
POLICY DECISION ALREADY MADE 6. EMBARRASSMENT FROM
CONFLICTING PRONOUNCEMENTS.
(8) Nixon v. United States- The constitutionality of Senate
impeachment proceedings is a non-justiciable political question
incapable of judicial adjudication. “textually demonstrable”
COMMERCE CLAUSE
(10) United States v. COMSTOCK- UNDER THE NECESSARY
AND PROPER Clause, Congress has the authority to enact a law
that allows civil commitment of mentally ill, sexually dangerous
federal inmates beyond the end of the prisoners' criminal
sentences.
(11) Gibbons v. Ogden- If a state and Congress both pass conflicting
laws regulating interstate commerce, the federal law governs pursuant
to Congress’s constitutional grant of power to regulate interstate
commerce.
(12) Hammer v. Dagenhart- Congress may not use its
Commerce Clause power to regulate child labor in the states as
this is a purely local matter.
(13) U.S. v. Darby-Congress may regulate the labor standards
involved in the manufacture of goods for interstate commerce and
may exclude from interstate commerce any goods produced
under substandard labor conditions.
(14) NLRB v. Jones and Laughlin Steel, the congressional
authority to protect interstate commerce from burdens and
obstructions is not limited to transactions which can be deemed
an essential part of the flow of interstate commerce.
(15) Wickard v. Filburn- Congress may regulate local activity if
that activity exerts a substantial economic effect on interstate
commerce.
(13) Heart of Atlanta v. U.S.- Congress may enact regulations
that prevent racially discriminatory policies in hotel
accommodations because of the negative effects of those policies
on interstate commerce.
(14) Katzenbach v. McClung (Ollie’s)- Congress may regulate
the discriminatory policies of restaurants through Title II of the Civil
Rights Act if those policies have a substantial effect on interstate
commerce
(15) United States v. Lopez- Congress may not, pursuant to its
Commerce Clause powers, pass a law that prohibits the possession of
a gun near a school Congress may regulate only three broad categories
of activities: THE CHANNELS OF INTERSTATE COMMERCE. THE
INSTRUMENTALITIES OF, OR PERSONS OR THINGS IN,
INTERSTATE
COMMERCE.
AND
ACTIVITIES
THAT
SUBSTANTIALLY AFFECT OR SUBSTANTIALLY RELATE TO
INTERSTATE COMMERCE.
(16) United States v. Morrison-(1) CONGRESS DOES NOT HAVE THE
AUTHORITY UNDER THE COMMERCE CLAUSE TO REGULATE
VIOLENCE AGAINST WOMEN BECAUSE IT IS NOT AN ECONOMIC
ACTIVITY.(2) UNDER § 5 OF THE FOURTEENTH AMENDMENT,
CONGRESS MAY ONLY REGULATE THE DISCRIMINATORY CONDUCT
OF STATE OFFICIALS, NOT PRIVATE ACTORS.
(17) Gonzales v Raich, giving some power back to congress and taking
some from the states, the court said that where the federal government is
regulating weed, the states can’t make laws that would be cross purposes.
(18) NFIB v. Sebelius I, congress cannot rely on the commerce power to
require individuals to buy into the health insurance marketplace if they are not
already in it. THE POWER TO REGULATE COMMERCE PRESUPPOSES
THE EXISTENCE OF THE COMMERCIAL ACTIVITY TO BE REGULATED.
RULE: TO SOLVE A PROBLEM THAT HAS A SUBSTANTIAL
EFFECT ON THE COMMERCIAL HEALTH OF THE UNITED
STATES,
A
LAW
PASSED
BY
CONGRESS
IS
CONSTITUTIONAL UNDER THE COMMERCE CLAUSE WHEN:
A. THE LAW RELATES TO ECONOMIC STRUCTURES THAT
SPREAD ACROSS THE STATES. (OGDEN) B. THE SCOPE OF
THE LAW INCLUDES MARKETS THAT HAVE NATIONAL
IMPLICATIONS. (FILBURN) C. THE PURPOSE OF THE LAW
MUST BE TO REGULATE AN ACTIVE MARKET. D. THE
STATES INTEREST IN ECONOMIC EXPERIMENTATION,
WHERE THEY ARE FAIR TO THE OTHER STATES, ARE NOT
UNDULY IMPINGED. E. NECESSARY AND PROPER
DORMANT COMMERCE CLAUSE
(21) Philadelphia v. New Jersey, the court struck down a New Jersey law
making it illegal to import waste from other states. Test for DCC: a.Facially
discriminatory-strict scrutiny b.Facially neutral but protectionist- stricken as
impermissibly burdensome on interstate commerce.c. Disproportionately
adverse impact on commerce then intermediate scrutiny
(22) Dean milk v. Madison, to permit Madison to adopt a regulation not
essential for the protection of local health interest and placing a discriminatory
burden would invite preferential trade areas.
(23) Pike v. Bruce Church, Pike balancing test – Do the burdens on
interstate commerce outweigh the benefits to the regulating states?
(24) Kassel v. Consolidated Freight, Iowa law to keep double trucks off its
highways was discriminatory and did not pass the Pike test. Forcing trucks to
go around Iowa or change trailers is more of a burden than is shown by the
state trying to exclude them.
(24.5) Southern Pacific v. Arizona, Limits train length, safety of the people
of Arizona? A. DISCRIMINATION/ BURDEN B. LEGITIMATE
INTEREST/BALANCING TEST? C.OTHER WAY POSSIBLE TO ACHIEVE
D. BURDEN ON THE EFFICIENCY OF THE INTERSTATE COMMERCE
TENTH AND ELEVENTH AMENDMENT.
(19) New York v. U.S., low level radioactive waste disposal case, forcing
states to accept ownership of nuclear waste would impermissibly
“commandeer” state governments. Where monetary inducements for the
states to comply are ok, “a choice between two unconstitutionally coercive
regulatory techniques is no choice at all.
(20) Prinz v. US, We cannot upset the delicate balance by allowing the federal
government to conscript state actors into execution of federal policies.
PRIVILEGES AND IMMUNITIES CLAUSE
1. Has the state discriminated against out-of-staters regarding the privileges
and immunities it accords its own citizens 2. If there is discrimination then, is
there sufficient justification for the discrimination?
SPENDING AND TAXING POWERS-taxes are regulatory
(25) U.S. v. Butler, department of agriculture pays farmers to not plant all
available acres, then paying the farmers using money it raises from taxing the
processors of those farm products. The court ruled both the tax and the
subsidy unconstitutional. Congress has leeway to spend in furtherance of the
general welfare if it does not violate some other part of the constitution.
(26) South Dakota v. Dole, where congress was withholding only 5% of the
subsidy and it was related to the funds it was ok. A PURPOSE TO SERVE
THE GENERAL WELFARE CLEAR STATEMENT OF THE CONDITION
RELATIONSHIP BETWEEN THE CONDITION AND THE PURPOSE OF
THE SPENDING (GERMANENESS) B NO INDUCEMENT OF THE
STATES TO VIOLATE ANY INDEPENDENTLY PROTECTED
CONSTITUTIONAL RIGHTS. C. DOES IT RAISE REVENUE?
(27) NFIB V. Sebelius II, on this issue the court found that the taxing power
was ok but the spending power was coercive... a gun to the head because
states had become so dependent on federal medicade money.If the law is
insufficiently germain to the funding purpose, or the federal tries to
commandeer a state for its own ends then the court will step in.
PRESIDENTIAL PRIVILEGE
(28) Youngstown Sheet and tube v. Sawyer, Truman tries to seize the steel
industry because a labor strike is keeping steel from being produced for the
Korean war effort. Even if it was a war, he didn’t have the power to interfere in
a civilian dispute by taking over the companies. A. POWER IS AT ITS MOST
WHEN PRESIDENT CAN RELY ON EXPRESS AUTHORITY OF
CONGRESS. B. WHEN THE PRESIDENT ACTS WITH HIS OWN
POWERS WITHOUT EXPRESS APPROVAL FROM LEGISLATURE
THEN HE IS IN THE ZONE OF TWILIGHT. C. WHEN HE TAKES
MEASURES INCOMPATIBLE WITH THE EXPRESS OR IMPLIED WILL
OF CONGRESS, HIS POWER IS AT ITS LOWEST EBB.
(29) Trump v. Hawaii, the travel ban was upheld because the statute “exudes
deference to the president in every clause.
(30) Ex Parte Milligan, Lincoln tries to try a civilian at a military tribunal and
the court says, no.
(32) Curtis Wright, the court says we won’t take this case “it is long standing
practice” that the president has powers of negotiating foreign affairs. The
power abrogates a treaty is a political question.
(31) U.S. v. Nixon, presidential privilege is not absolute. When unofficial
conduct is done then no absolute immunity. You must balance secrecy
against the criminal process.
(33) Trump v. Mazar, the process of congressional subpoena should not be
used as a police power. A. Warrants the step. B. Narrow scope C. Valid
legislative purpose. D. Burdens imposed.
(34) Humpries, ruled that the president can’t fire anyone he wants in an
agency whenever he wants.
(39) Clinton v. Jones, president can be sued for things that happened before
he was president if it is not going to impede the function of the office.
(40) Nixon v. Fitzgerald, the Nixon administration fired a guy for being
a whistle blower, and then the guy tried to sue Nixon, the court held that
the president had absolute immunity for actions taken under the normal
course of presidential duties. Absolute immunity from civil suit.
(35) Whitman v. American trucking, Plaintiffs contend that economic
costs of implementing stringent pollution rules,the plain and
unambiguous text of § 109 make clear that cost considerations do not
enter the decision-making process. “INTELLIGLEABLE PRINCIPAL”
can be vague in delegation
IMMIGRATION AND PRESIDENTIAL POWER
Preemption A EXPRESS PREEMPTION. B IMPLIED PREEMPTION.
C FIELD PREEMPTION WHERE THE FEDERAL GOVERNMENT
OCCUPIES THE WHOLE FIELD AND LEAVES NO ROOM FOR THE
STATE TO REGULATE D CONFLICT PREEMPTION- WHERE IT IS
IMPOSSIBLE TO COMPLY WITH BOTH THE STATE AND FEDERAL
LAW
(36) Arizona v. United States, A state law that addresses
immigration and alien registration is preempted where Congress has
completely occupied the entire field. A case about field preemption
(36.5) NLRB v. Noel Canning, is about recess appointments,
they must not while the senate is in session.
(37) Lucia v. SEC ruled that ALJ’s are inferior officers under the
constitution and must be appointed by the president or a delegated
officer.
(41) Fong Yue Ting v. U.S., Immigration law saying that a white person
had to vouch for an Asian person that they had been in the country for
two years or they would be deported.
(42) NFIB v. Sebelius part III, congress used the word penalty to
describe the “tax” the court used the operation and function the
collection of the tax to say that it is a tax even if the congress calls
it a penalty.
INCORPERATION Slaughterhouse Cases Thirteenth Amendment
was passed to specifically prohibit the evils of slavery as it existed during
the pre-Civil War enslavement of Africans in the United States. The
Court also shed any reluctance to hold that rights guaranteed by
the Bill of Rights met the requirements for protection under the
Due Process Clause. The Court eventually incorporated almost all
of the provisions of the Bill of Rights. Only a handful of the Bill of
Rights protections remain unincorporated."
INDIVIDUAL RIGHTS/ FUNDAMENTAL RIGHTS
(43) Lochner v. New York A state may not regulate the working
hours mutually agreed upon by employers and employees as this
violates their Fourteenth Amendment right to contract freely under
the Due Process Clause.
(44) West Coast Hotel Co. v. Parrish A state may regulate the
minimum wage paid to female employees when that regulation is for the
purpose of promoting employees’ health, safety and general welfare
(45) Williamson v. Lee Optical of Oklahoma, Inc
A state may regulate a business if its legislature determines there is a
particular health and safety problem at hand and that the regulation in
question is a rational way to correct the problem
(46) Pierce v. Society of Sisters Requiring children to be educated
only by public instruction violates the Fourteenth Amendment of the
United States Constitution.
(47) Skinner v. Oklahoma A state law requiring forced sterilization of
criminals convicted of crimes of moral turpitude unconstitutionally
infringes on the fundamental rights of marriage and procreation and
violates the Equal Protection Clause of the Fourteenth Amendment.
(48) Griswold v. Connecticut an implied “right of privacy” exists
within the Bill of Rights that prohibits a state from preventing married
couples from using contraception. PENUMBRAS FORMED BY EMINATIONS
(49) Roe v. Wade The constitutional right to privacy protects a
woman’s right to choose to have an abortion. Uses a trimester
construction, 1st all abortions ok 2nd. Ok with limitations. 3rd no go.
(50) Planned Parenthood v. Casey A state abortion regulation
places an undue burden on a woman’s right to an abortion and is invalid
if its purpose or effect is to place a substantial obstacle in the path of a
woman seeking an abortion before the fetus attains viability.
(51) Whole Woman’s Health v. Hellerstedt
A law with the purpose or effect of placing a substantial obstacle in the
path of a woman seeking an abortion imposes an undue burden on a
woman’s right to have an abortion and is thus unconstitutional. What
was a burden test is now a balancing test.
(51.5) Gonzales v. Carhart Congress may ban a specific type of
partial-birth abortion provided its restrictions on the practice are narrow
and clear and the ban does not constitute an undue burden on a
woman’s right to an abortion.
(52) Washington v. Glucksberg right to physician-assisted suicide
is not a constitutionally protected liberty interest under the Due Process
Clause of the Fourteenth Amendment. “History and tradition”
(52.5) Curzan you have a right to refuse medical treatment
(53) Loving v. Virginia A state may not restrict marriages between
persons solely based on race under the Equal Protection and Due
Process Clauses of the Fourteenth Amendment
(54) Lawrence v. Texas Due Process Clause of the Fourteenth
Amendment includes a right to liberty in individual decisions concerning
the intimacies of their physical relationship.
(55) Obergefell v. Hodges Under the Due Process and Equal
Protection Clauses of the Fourteenth Amendment, states must
issue marriage licenses and recognize lawful out-of-state
marriages for same-sex couples. Coverture, marriage has
changed.
(56) Cleveland Board of Education v. Loudermill Due Process
Clause requires a pre-termination hearing before the discharge of
an employee who has a constitutionally protected property interest
in his employment, followed by a more elaborate post-termination
hearing to challenge the discharge. PROCEDURAL DUE
PROCESS. Must have a property right that is deprived.
DISCRIMINATION-EQUAL PROTECTION
(57) Yick Wo v. Hopkins A facially neutral law that is applied in a
discriminatory manner based on race or nationality violates the Equal
Protection Clause of the Fourteenth Amendment.
(58) Washington v. Davis A state-sponsored racial classification
violates the equal protection provisions in the Fifth Amendment’s Due
Process Clause only if it is shown to have both a disproportionate impact
on a particular race and is motivated by invidious racial discrimination.
(59) Dred Scott v. Sandford People of African descent brought to the
United States and held as slaves, as well as their descendants (either
slave or free), are not considered citizens of the United States and are
not entitled to the protections and rights of the Constitution.
(60) Strauder v. West Virginia The Fourteenth Amendment
prohibits states from enacting laws that deny any of its citizens
equal protection under the law.
(61) Plessy v. Ferguson Public accommodations that are
segregated according to racial classifications do not violate the Equal
Protection Clause of the Fourteenth Amendment if such
accommodations are “separate but equal.”
(62) Brown v. Board of Education (Brown I) Separate educational
facilities based on racial classifications are inherently unequal and
violate the Equal Protection Clause of the Fourteenth Amendment.
(63) Grutter v. Bollinger Consideration of race as a factor in
admissions by a state law school does not violate the Fourteenth
Amendment because supporting student body diversity is a
compelling state interest; however, the school must demonstrate
it previously made a serious, good faith consideration of workable,
race-neutral alternatives to achieve the sought-after racial
diversity.
(64) Gratz v. Bollinger A university’s admissions policy that
automatically gives preference to minority students based on race,
“without additional individualized consideration, violates the Equal
Protection Clause of the Fourteenth Amendment.
(65) Fisher v. University of Texas (Fisher II)
A public university’s decision to consider race in admissions must be
reviewed under the strict scrutiny standard.
(66) Regents of University of California v. Bakke
Under the Equal Protection Clause of the Fourteenth Amendment,
a public university may not discriminate based on race in its
admissions policies, even if doing so benefits members of minority
races. RACE CAN BE ‘A’ FACTOR
GENDER DISCRIMINATION
(67) Orr v. Orr state alimony law may not discriminate based on
gender if the state’s compensatory and ameliorative purposes are
equally served by a gender-neutral classification
(68) United States v. Virginia All governmental gender
classifications must be substantially related to an important government
purpose that can be demonstrated by the government if it offers an
exceedingly persuasive justification for the classification.
OTHER DISCRIMINATION
(69) Graham v. Richardson Under the Equal Protection Clause,
states may not condition receipt of welfare benefits on the beneficiary
having United States citizenship or residing in the United States for a
specified number of years.
(70) Cleburne, Texas v. Cleburne Living mentally disabled are not
a quasi-suspect class and thus any legislative regulations affecting their
rights are subject to rational basis review and not intermediate scrutiny.
(71) Civil Rights Cases of 1883 Court ruled that, under the Equal
Protection Clause of the Fourteenth Amendment, Congress could
prohibit only discrimination by state actors, not private individuals.
(72) Jones v. Alfred H. Mayer Co. Congress may make whatever
laws are necessary and proper for enforcing the Thirteenth
Amendment’s abolition of slavery and the negative effects of slavery.
VOTING
(73) South Carolina v. Katzenbach provisions of the Voting Rights
Act of 1965 mandating the abolition of literacy tests require advance
federal approval of proposed changes to voting regulations and
authorize the Attorney General to appoint federal examiners to oversee
voter registrations do not violate the United States Constitution or
exceed the scope of congressional authority.
(74) United States v. Morrison (1) Congress does not have the
authority under the Commerce Clause to regulate violence against
women
because
it
is
not
an
economic
activity.
(2) Under § 5 of the Fourteenth Amendment, Congress may only
regulate the discriminatory conduct of state officials, not private actors.
Gov't interest
Fit
Frontiero Strict
Scrutiny
Compelling
Narrowly
Reed
Rational
Rational/legitimate
Ration/related
Orr
Intermediate
StereotypeAlimony
No subrelated
VMI
intermediate
We the people
AMENDMENT I Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the
Government for a redress of grievances. AMENDMENT II A wellregulated Militia, being necessary to the security of a free State,
the right of the people to keep and bear Arms, shall not be
infringed. AMENDMENT III No Soldier shall, in time of peace be
quartered in any house, without the consent of the Owner, nor in
time of war, but in a manner to be prescribed by law.
AMENDMENT IV The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.
AMENDMENT V No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger; nor shall
any person be subject for the same offence to be twice put in jeopardy
of life or limb; nor shall be compelled in any criminal case to be a
witness against himself, NOR BE DEPRIVED OF LIFE, LIBERTY, OR
PROPERTY, WITHOUT DUE PROCESS OF LAW; nor shall private
property be taken for public use, without just compensation.
AMENDMENT XIII Section 1.Neither slavery nor involuntary servitude,
AMENDMENT XIV No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws. Section 5. The
Congress shall have the power to enforce, by appropriate legislation,
the provisions of this article. AMENDMENT XV Section 1. The right of
citizens of the United States to vote shall not be denied or abridged by
the United States or by any State on account of race, color, or previous
condition of servitude-Section 2. The Congress shall have the power to
enforce this article by appropriate legislation. ARTICLE I, SECTION 8,
CLAUSE 18: To make all Laws which shall be NECESSARY AND
PROPER for carrying into Execution the foregoing Powers, and all
other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.
SAY HI TO STANDING—END WITH NECESSARY AND PROPER
Carolene Products- “discrete and insular” led to skinner
SUSPECT CLASS-1. HISTORY OF DISCRIMINATION 2.
IMMUTIBILITY 3. LACK OF POLITICAL POWER
TOPICS FOR REPRODUCTIVE RIGHTS 1. RELIENCE 2. STARE
DECISIS 3. PRUDENTIAL 4. FETUS NOT A PERSON IN
CONSTITUTION 5. STATES INTREST IN FETUS 6. WOMAN’S
HEALTH “ORDERED LIBERTY” “HISTORY AND TRADITIONS”
GLUCKSBURG- “DEEPLY ROOTED” GRISWOLD- “LIVING
TRADITION” BODILY INTEGRITY IS STRICT SCRUTINY
SUBSTANTIVE DUE PROCESS ISSUE involving (generally) the right
to privacy and autonomy, but the ideal answer will consider Griswold
(contraception), Casey (abortion), and Skinner (sterilization)
CASEY is very specifically about a woman’s right to choose abortion
pre-viability. Like all abortion cases, it balances the state interest in the
potential life/health of the fetus and the state’s interest in a woman’s
health with a woman’s privacy and autonomy rights of procreation and
bodily integrity. To get there you would have to argue that the state’s
interest in citizens making choices about procreation and being
informed about important medical procedures is analogous to Casey
and so one could argue that a court should similarly apply an undue
burden test to male reversable vasectomy. Griswold. This is after all
contraception. It’s actually confusing here because Griswold is not
clear about whether it applies a strict scrutiny test, but the cases after
Griswold make clear that that is the standard when it is contraception
at issue and not abortion. Casey changes the test to a more
permissive undue burden test, but only for abortion. So, you would
want here to make sure you also apply a compelling
interest/narrow tailoring analysis (you may want to argue in the
alternative using both the undue burden and a struct scrutiny
analysis). Under that analysis, would the restrictions on a 48-hour
waiting period and spousal notification be upheld? Is there a
compelling interest that the state has in the man’s education and
the spouse’s notice? Are those two provisions narrowly tailored?
Casey is relevant, but not dispositive on this since it applied a
lesser standard of undue burden. But note that on the spousal
notification issue, Casey overturned it in part because of the
concern of domestic violence against women – would the fact that
this fact pattern involves men make a difference?
YOU NEED TO IDENTIFY THE ARGUMENTS AND REASONS,
ESTIMATE THE RELATIVE STRENGTH OF THEM, BUT BE
CAREFUL NOT TO JUMP TO A CONCLUSION IF NO SINGLE
CONCLUSION CLEARLY FOLLOWS. Skinner, on the separate
part of the fictional law here requiring the procedure of male
felons. Some of you noticed that Skinner is an equal protection
case and so maybe not quite on point. However, the case has a
fundamental rights aspect to it and generally can support the claim
that mandatory sterilization is a violation of the right to procreate
and privacy (and Skinner has been so cited by later Court
decisions that we read). So, the basic analogy works here. This
means that strict scrutiny should apply and requires that the state
have a compelling interest and the law be narrowly tailored. One
twist is that this situation involves a reversible procedure, and so
is not strictly speaking sterilization in the same way.
Glucksberg mentions it and cites Cruzan) – observes that there is
also a fundamental right to choose medical procedures, and that
the law here appears to violate that. Also, even if a state could
show a compelling interest, the law is not narrowly tailored, as it
does not limit the procedure to unmarried men (it says the interest
is “out-of-wedlock” births). You might also point out that this law
applies only to male felons, which appears to raise an equal
protection issue of its own.
COMMERCE CLAUSE ANALYSIS- Lopez test then NFIB,
economic /uneconomic, then necessary and proper. See test on
other side.
Wickard-activities that affect commerce are considered in
aggregate. Lopez- limited it to areas directly economic in nature.
Congress cannot rely exclusively on indirect economic
consequences. Morrison- too attenuated for economic activity.
Raich- economic but intrastate- necessary and proper if rationally
related to broad federal scheme. (does not need to be over the
counter legal sales. NFIB- congress can’t regulate inactivity, and
cannot compel activity. Watch out for the GOV forcing someone
to do something ACTIVITY/INACTIVITY can be a tricky discussion
Levels of Scrutiny Under the Three-Tiered
Approach to Equal Protection Analysis
1. STRICT SCRUTINY (The government must show
that the challenged classification serves a
compelling state interest and that the classification
is necessary to serve that interest.):
A. Suspect Classifications:
1. Race
2. National Origin
3. Religion (either under EP or Establishment
Clause analysis)
4. Alienage (unless the classification falls within a
recognized "political community" exception, in
which case only rational basis scrutiny will be
applied).
B. Classifications Burdening Fundamental Rights
1. Denial or Dilution of the Vote
2. Interstate Migration
3. Access to the Courts
4. Other Rights Recognized as Fundamental
2. MIDDLE-TIER SCRUTINY (The government must
show that the challenged classification serves an
important state interest and that the classification
is at least substantially related to serving that
interest.):
Quasi-Suspect Classifications:
1. Gender
2. Illegitimacy
3. MINIMUM (OR RATIONAL BASIS) SCRUTINY
(The govenment need only show that the
challenged classification is rationally related to
serving a legitimate state interest.)
Minimum scrutiny applies to all classifications
other than those listed above, although some
Supreme Court cases suggest a slightly closer
scrutiny ("a second-order rational basis test")
involving some weighing of the state's interest may
be applied in cases, for example, involving
classifications that disadvantage mentally retarded
people, homosexuals, or innocent children of
illegal aliens. (See "Should the Rational Basis Test
Have Bite?")