Outline - Constitutional Law - Fall 2020
Professor Asbury
Constitutional Law - Outline
Constitution Summary
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Anti-Slavery or Pro-Slavery
- Fehrenbacher v. Douglass
Federal Judicial Power
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Authority for Judicial Review
- Article III, § 1
- “The judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time
ordain and establish. The Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behaviour, and shall, at stated Times,
receive for their Services, a Compensation, which shall not be diminished
during their Continuance in Office.”
- Marbury v. Madison (U.S. 1803)
- Holding:
- The Judiciary Act of 1789 is unconstitutional.
- Congress CANNOT expand the original jurisdiction of SCOTUS.
- The Court can’t order the writ of mandamus.
- Rule:
- The Court establishes JUDICIAL REVIEW – the ability to review laws
and strike as unconstitutional.
- The Supreme Court has limited jurisdiction, the bounds of which are
set by the United States Constitution, which may not be enlarged by
Congress.
- Takeaways:
- The Constitution is regulatory. It’s law, it’s binding, and you can rely on
it.
- Congress can’t increase the original jurisdiction of SCOTUS. It’s a
ceiling, not a floor.
- SCOTUS can review executive actions for constitutionality (except
discretionary acts)
- SCOTUS can review legislative actions for constitutionality
- “It is emphatically the province and duty of the judicial department to
say what the law is.”
- Judicial Review - State Judgments
- Martin v. Hunter’s Lessee (U.S. 1816)
- Facts:
- The Virginia Court of Appeals declared that the Supreme
Court lacked the authority to review state court decisions.
- Rule:
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SCOTUS can review state judgments under appellate
jurisdiction (criminal too)
- Cohens v. Virginia (U.S. 1821)
- SCOTUS can review cases where the state is a party
- The Court emphasized that state courts often could not be trusted to
adequately protect federal rights because “[i]n many States the judges
are dependent for office and for salary on the will of the legislature.”
Limits on Judicial Review
- Three primary limits exist:
- Interpretive Limits
- Raise the question of how the Constitution should be interpreted;
some approaches seek to greatly narrow the judicial power, while
others accord judges broad latitude in deciding the meaning of the
Constitution
- Congressional Limits
- Refer to the ability of Congress to restrict federal court jurisdiction
- Justiciability Limits
- Refer to a series of judicially created doctrines that limit the types of
matters that federal courts can decide
- Interpretive Limits
- Nonoriginalism
- Nonoriginslists agree that text and original meaning are important, but
they also advocate looking at how language reflects broad values.
- They argue that the framers understood they were drafting a
document that would long outlive them, and thus they wrote
language to create a “living constitution” that changes with the times.
- Critiques of nonoriginalism:
(1) Why do 9 unelected judges get to say what the people value;
(2) Many nonoriginalists are progressives, but that is not a
necessary trait of nonoriginalism.
(3) Throughout US History several ugly, truly despicable things
happened because SCOTUS justices decided on their own
what the constitution meant without deferring to the
legislature
- Orginialism
- Originalists are interested in what a word meant at the time of the
founding.
- Any time a modern-day judge applies meaning to a word, like
liberty, that the framers of that language would not have
agreed with, originalists say the judge is “legislating from the
bench.”
- Originalists say that if you want to add new meaning to the
constitution, you gotta amend that jawn
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Problems w/ originalism:
(1) How are we supposed to figure out what a bunch of long-dead
people thought?
(2) Amending the constitution is incredibly difficult
Justiciability
- Doctrines (Article III § 2 authorizes federal courts to hear several types of
cases, all doctrines must be met for a federal court to hear a case)
- They are all judicially created limits on the matters that can be
heard in federal courts.
- The Supreme Court has declared that some of these are
“constitutional,” meaning that Congress by statute cannot
override them.
- The Court also has said that some of the doctrines are
“prudential,” meaning that they are based on prudent judicial
administration and can be overridden by Congress since they
are not constitutional requirements.
- All of the justiciability doctrines raise basic policy questions
about the proper role of the federal judiciary in a democratic
society.
- Intended to improve judicial decision making by providing the
federal courts with concrete controversies best suited for
judicial resolution.
- The justiciability doctrines, by limiting the availability of
federal court review, conserve judicial resources.
(1) Prohibition
- What are the characteristics that must be present in a lawsuit
to avoid being an advisory opinion?
1. There must be an actual dispute between adverse
litigants
2. There must be a substantial likelihood that a federal
court decision in favor of a claimant will bring about
some change or have some effect
- Opinion of the Justices: ​
- Must be adversaries & a conflict/dispute​
- Separation of Powers (No dispute – let the political
branches handle it & the people)​
- Hayburn’s Case (U.S. 1792) and Plaut v. Spendthrift (U.S.
1995)
- Rule:
- Court doesn’t make AOs/recommendations;
they issue final decisions.
- Congress can’t re-open case once it’s been
determined.​
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The Court is not in the business of making
recommendations
(2) Standing
- The determination of whether a specific person is the proper
party to bring a matter to the court for adjudication
- Three Constitutional Requirements:
1. Injury
- Concrete & particularized
- Actual or imminent
2. Causation
- Fairly traceable to D’s conduct
3. Redressability
- Court’s decision can redress the injury.
- Two Prudential Requirements (overridable by statute):
1. P may assert own rights and can raise the claims of
third parties not before the court in certain
circumstances (3rd party standing)
2. P can’t sue as taxpayer who shares a grievance
common with all other taxpayers in very specific
circumstances (generalized grievances)
- ALL REQUIREMENTS MUST BE MET FOR THERE TO BE
STANDING!
- Allen v. Wright (U.S. 1984)
- Facts:
- Plaintiff claims that:​
1) Govt giving tax exemptions to private
schools creates a stigma​
2) Our kids aren’t getting a desegregated
education. All of the white kids are
going to private schools.​
- Rule:
- Article III standing requires that a plaintiff
allege a harm directly traceable to specific
action on the part of the defendant.
- Holding​:
- P’s first claim fails because it’s not a cognizable
injury. The injury can’t be general; it has to be
concrete.​
- Second claim is an injury because this is a
personal, concrete claim. It was specific.​
- BUT the second claim still fails. Why?​
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Lack of causation. Injury not fairly
traceable to IRS. Too many actors
involved that broke causal chain.​
- Massachusetts v. Environmental Protection Agency (U.S.
2007)
- Facts:
- Mass. and other states challenged EPA for not
properly regulating greenhouse gas emissions. ​
- Rule:
- In order to have standing to sue in a federal
court the petitioner must have; injury in fact,
causation, and redressability in the claim,
these elements are easier to meet if you are a
State rather than an individual.
- Holding:
- Standing requirements are met.​
- Injury:​
- Global warming affects Mass’s
coastal areas. Particularized to
Mass; not every state shares
that harm.​
- Loss of coastline is actual &
imminent; environmental
changes already inflicted harm.​
- Causation​:
- There may be other causes
(China & India), but this poor
regulation is still a cause.
Incremental cause is enough.​
- Redressability:​
- Might be a small effect, could
still help. Regulating emissions
will slow the destruction of the
coastal areas even though it
can’t reverse the effects.
(3) Ripeness (not covered)
(4) Mootness (not covered)
(5) Political Question
Principles of Avoidance
- The Court will not pass upon the constitutionality of legislation in a
friendly, nonadversary, proceeding, declining because to decide such
questions “is legitimate only in the last resort, and as a nece\ssity in
the determination of real, earnest, and vital controversy between
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individuals. It never was the thought that, by means of a friendly suit, a
party beaten in the legislature could transfer to the courts an inquiry
as to the constitutionality of the legislative act.”
The Court will not “anticipate a question of constitutional law in
advance of the necessity of deciding it.” “It is not the habit of the court
to decide questions of a constitutional nature unless absolutely
necessary to a decision of the case.”
The Court will not “formulate a rule of constitutional law broader than
is required by the precise facts to which it is to be applied.”
The Court will not pass upon a constitutional question although
properly presented by the record, if there is also present some other
ground upon which the case may be disposed of. This rule has found
most varied application. Thus, if a case can be decided on either of
two grounds, one involving a constitutional question, the other a
question of statutory construction or general law, the Court will decide
only the latter. Appeals from the highest court of a state challenging
its decision of a question under the Federal Constitution are
frequently dismissed because the judgment can be sustained on an
independent state ground.
The Court will not pass upon the validity of a statute upon complaint
of one who fails to show that he is injured by its operation. Among the
many applications of this rule, none is more striking than the denial of
the right of challenge to one who lacks a personal or property right.
Thus, the challenge by a public official interested only in the
performance of his official duty will not be entertained.
The Court will not pass upon the constitutionality of a statute at the
instance of one who has availed himself of its benefits.
“When the validity of an act of the Congress is drawn in question, and
even if a serious doubt of constitutionality is raised, it is a cardinal
principle that this Court will first ascertain whether a construction of
the statute is fairly possible by which the question may be avoided.”
Fed. No. 78
- The Power of Judicial Review
- Argues that the federal courts have the duty to determine whether acts of
Congress are constitutional and to follow the Constitution when there is
inconsistency.
- “Nor does this conclusion by any means suppose a superiority to both”
- Protection against abuse of power by Congress.
Federal Executive Power
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Article II, § 1
- “The executive Power shall be vested in a President of the United States of America.”​
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Inherent Presidential Power
- When, if ever, may the president act without express constitutional or statutory
authorization?
- Alexander Hamilton: the difference in the wording of Articles I and II reveals
the framers’ intention to create inherent presidential powers.
- Article I: “All legislative Powers herein granted shall be vested in a
Congress of the United States.”
- Article II: “The executive Power shall be vested in a President of the
United States of America.”
- Because Article II does not limit the president to powers “herein
granted,” Hamilton argued that the president has authority not
specifically delineated in the Constitution.
- Others, beginning with James Madison, have disputed this interpretation of
Article II, contending that the opening language of Article II was “simply to
settle the question whether the executive branch should be plural or single
and to give the executive a title.”
- According to this position, the president has no powers that are not
enumerated in Article II and, indeed, such unenumerated authority
would be inconsistent with a Constitution creating a government of
limited authority.
- The leading Supreme Court decision concerning this issue is Youngstown
Sheet & Tube Co. v. Sawyer
- Youngstown Sheet & Tube Co. v. Sawyer (U.S. 1952)
- Facts & Issue:
- President issued executive order for seizure of steel mills b/c we were
in war and needed steel mills to keep working.
- Congress did nothing.
- Was the President's action constitutional?​
- Majority Holding (Black): ​
- NO! What the president did was NOT okay - majority sides w/ the
steel mills.
- No act of Congress gave the president the authority, and the
Constitution doesn’t give him this authority.​
- "The Pres. Power, if any, to issue the order must stem either from an
act of Congress or from the Constitution itself" ​
- Douglas:
- President has inherent authority but cannot take power away from
other branches​
- Here, it is unconstitutional because legislative in nature ​
- Frankfurter:
- President has inherent power to do anything unless it violates act of
Congress or Constitution ​
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Here, it is unconstitutional because he interprets congress's silence as
a NO
- Jackson (Controlling; Rule/Test):
1) When the president acts pursuant to express or implied congressional
authorization, presidential authority is at its maximum.​
2) When Congress is silent, the President can only rely on independent
power.​
- This will depend on the facts/circumstances.
- “Twilight zone”​
3) When the President acts against Congress, his power is at its lowest
ebb unless he can claim a constitutional authority to do so.​
- So it’s not ALWAYS unconstitutional, but the president has to
be able to point to authority in the Constitution in order to
justify his actions.​
- Steel Seizure falls under this category.
- Felt Congress said no here b/c Congress denied the
President the authority to seize the mills in a prior
statute about industrial disputes so their current
silence = no, therefore President was acting against
Congress.​
The Issue of Executive Privilege
- "The ability of the President to keep secret his conversations with or
memoranda to and from advisors"​
- Power not explicitly mentioned in Constitution ​
- Necessary to receive candid advice​
- Protects national security ​
- Often exercised with foreign affairs/diplomacy ​
- Note:
- Executive privilege is not explicitly mentioned in the Constitution ​
- President has the most leeway with claiming exec. privilege in foreign
affairs/diplomacy ​
- United States v. Richard M. Nixon, President of the United States (U.S. 1974)
- Facts:
- Watergate Scandal - President wants to exercise executive
privilege because he doesn’t want to turn over confidential
information.
- District Court names Nixon as an unindicted co-conspirator
who must turn over the tapes because it is a criminal
investigation.
- Nixon resigns. ​
- Issue:
- Under Art. II, does the president have executive privilege over
conversations between the president and his advisors?​
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Holding:
- Nixon had to hand over the tapes.​
- Takeaways:​
- Is there such a thing as an executive privilege?
- YES!​
- Is the executive privilege absolute?
- NO!​
- Court makes 3 points:​
1) Role of the Court to decide whether President has executive
privilege and, if so, its scope​
2) Court recognizes the existence of executive privilege as an
inherent presidential power ​
3) Executive privilege is not absolute but must yield when it
infringes on the functioning of another branch of government ​
- Keep in mind this case involved non-military &
non-diplomatic communication.​
- Maybe would have come out differently if there were
military/diplomatic/national security communications​
The Constitutional Problems of the Administrative State
- Congress makes the laws; the President enforces the laws; Judiciary adjudicates
disputes arising under them. ​
- However, Congress has had the authority to create agencies since the late
1800s.
- The creation of the Interstate Commerce Commission in 1887 ushered
in a new era for the federal government: the creation of federal
administrative agencies with broad powers.
- Agencies exercise legislative, executive, and judicial power in their respective
fields
- The Nondelegation Doctrine
- Congress cannot delegate its legislative powers to administrative agencies
- One solution to the problems posed by administrative agencies
- Article I, § 1, vests all legislative powers in the Congress of the United
States.​
- Delegation is permitted if Congress provides administrative agencies
with an “intelligible principle” upon which to base their regulations
- If Congress cannot delegate lawmaking authority to agencies, then the
federal government may not be able to function in complex modern
society. ​
- Agencies may have specialized expertise that make them
effective policymakers (EPA; SEC).​
- Crowded legislative agenda may not lend itself to Congress to have
enough time to become knowledgeable about all of the issues
surrounding a complex area. ​
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Legislative process is slow and cumbersome, making it difficult to
enact laws quickly.​
- Political pressure and partisan politics may inhibit Congress from
effectively and efficiently enacting a statute.
A.L.A. Schechter Poultry Corp. v. United States (U.S. 1935)
- Facts:
- Congress delegated to the President the authority to approve
codes of “fair competition.”
- President set forth the Live Poultry Code, setting forth labor
provisions to promote fair competition in the live poultry
industry.
- Notably, codes are first advanced by industries to be
approved by President.
- The statute itself gave the President a lot of discretion to
approve codes
- The guidelines were very vague.
- President only had to find that the code “imposed no
inequitable restrictions to membership” and that they
were not designed to “promote monopolies… and tend
to effectuate the policy” of the Act
- The President may also impose conditions that are “in
furtherance of the public interest” and other “exceptions as he
deems necessary”
- Holding:
- The boundaries that are supposed to delineate the Presidential
discretion are far too vague (almost no limitations are
imposed)
- Does not prescribe any rules of conduct or boundaries.
- Rule:
- “We look to the statute to see whether Congress has
overstepped these limitations – whether congress in
authorizing ‘codes of fair competition’ has itself established
the standards of legal obligation, thus performing its essential
legislative function, or, by the failure to enact such standards,
has attempted to transfer that function to others.”
- Congress cannot delegate its legislative power to industrial or
trade groups (who submitted proposals for codes)
- Additionally, Congress cannot delegate its legislative power to
the President to exercise an unfettered discretion to make
whatever law he thinks may be needed or advisable for the
rehabilitation and expansion of industry
- Note: Until 2019, only one other case invoked the nondelegation
doctrine: Panama Refining Co. v. Ryan, (U.S. 1935)
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Panama Refining Co. v. Ryan (U.S. 1935)
- Struck down provision of the National Industrial Recovery Act which
allowed the president make it a violation of federal law to sell oil
produced in excess of production quotas imposed by state law.
- Gundy v. United States (U.S. 2019)
- Facts:
- Gundy convicted of sexual assault while on release for federal
offense.
- He served time and was to then be transferred to federal
prison to serve a sentence for violating his supervised release.
- Gundy traveled from PA to NY, but did not register for the sex
offender registry.
- Then he was indicted for not registering, and sentenced again.
- Issue:
- Does the sex offender registration requirement delegate too
much authority to the US Attorney General in violation of the
nondelegation doctrine?
- Holding:
- No nondelegation issue here.
- The registry law contains an “intelligible principle.”
- Note:
- In Alito’s concurrence he advocated for revisiting the
nondelegation doctrine.
- But this case did not “revive” it.
The Legislative Veto
- Congress included in statutes provisions authorizing Congress or one of its
houses or committees to overturn an agency’s action by doing something
less than adopting a new law
- A typical form of a legislative veto provision authorized Congress to
overturn an agency’s decision by a resolution of one house of Congress.
- Legislative vetoes also took the form of overturning agency rules by
resolution of both houses of Congress or even by action of a congressional
committee.
- Immigration & Naturalization Service v. Jagdish Rai Chadha (U.S. 1919)
- Facts:
- Chadha applied for a suspension of deportation by AG.
Congress overrides AG’s decision pursuant to the “one house”
legislative veto which was written into the statute (House or
Senate could overrule AG’s decision).
- No procedures are provided (public hearing, statement of
reasons) for House’s action. No recorded vote.
- Holding:
- The legislative veto is unconstitutional
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Rule:
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Court examines the text and history of the
Constitution which lay out the importance of
Presentment and Bicameralism. It was impermissible
for only one legislative organ to operate.
- Presentment was meant to protect executive
branch and the people from improvident laws.
- Bicameralism ensured deliberation and full
debate.
When any branch acts, it is presumptively exercising
the power the Constitution has delegated it.
- Thus, the only way congress may act is
through its legislative powers. This veto is
characterized by the Court as legislative; that
power can only be effectuated through
bicameralism + presentment.
- The legislative veto would essentially
effectuate a work-around of the
bicameralism + presentment process, and is
thus unconstitutional.
Congress’s authority to delegate portions of its power does not
support the argument that Congress can constitutionally
control administration of the laws by way of a Congressional
veto.
Justice Powell’s Concurrence:
- Argues that the characterization of the nature of the act
should not guide the inquiry (legislative, judicial, executive),
but rather whether the “act in question raises the dangers the
Framers sought to avoid.”
- Worried about the lack of internal constraints over Congress’s
choice, and no democratic accountability (who really cares
about Mr. Chadha? No majority will support him)
- The real underlying concern about separation of powers is
about abuse of discretion
Justice White’s Dissent:
- Argues that really the legislative veto process allows all three
branches to participate (executive through AG, and each
branch through either their action or inaction) (the
disagreement of any one of the three maintains the alien’s
pre-existing status)
- Sees the legislative veto as a “necessary check on the
unavoidably expanding power of the agencies, both Executive
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and independent, as they engage in exercising authority
delegated by Congress…”
Separation of Powers and Foreign Policy
- Distinguishing Foreign Policy and Domestic Affairs
- United States v. Curtiss-Wright Export Corp. (U.S. 1936)
- Facts:
- Congress authorizes the president to issue an executive order
that bans the sale of munitions to countries involved in the
Chaco Border War.​
- Holding:
- President can do this
- Takeaways:
- The court here makes a distinction between powers of internal
matters vs. foreign affairs.​
- Internal powers are enumerated powers carved out of
powers typically reserved to States.​
- Foreign affairs powers are different because the states
never really had foreign affairs powers.​
- So when we got rid of the King, the powers possessed by the
King were transferred to the Executive.​
- "The president alone has the power to speak or listen as a
representative of the nation. He makes treaties with the advice
and consent of the Senate; but he alone negotiates."​
- "But with such an authority plus the delicate, plenary and
exclusive power of the President as the sole organ of the
federal government in the field of international relations."​
- Treaties and Executive Agreements
- Article II, §2
- The president “shall have Power, by and with the Advice and Consent
of the Senate, to make Treaties, provided two thirds of the Senators
present concur.”
- Treaty
- An agreement between the United States and a foreign country that is
negotiated by the president and is effective when ratified by the
Senate
- Requires Senate approval
- Prevail over state law and policy
- Executive Agreement
- An agreement between the United States and a foreign country that is
effective when signed by the president and the head of the other
government
- No Senate approval is necessary
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No mention in the Constitution about executive agreements, but it’s
established that they are constitutional
- Prevail over state law and policy
- Dames & Moore v. Regan, Secretary of the Treasury (U.S. 1981)
- Facts:
- Iran holding US hostages.
- President Carter and leader of Iran enter into an executive
agreement to freeze all Iranian assets in response to the Iran
Hostage crisis.​
- Executive Agreements are different than treaties because,
unlike treaties, there is no collaboration with the Senate.
- Holding:
- The executive agreement is a valid international practice and is
within the president’s authority
- The US, along with a majority of countries, has traditionally
had the power to settle claims against foreign governments.​
- Usually done through treaties, the President has traditionally
used executive orders to settle claims without the advice of
the Senate.​
- Furthermore, Congress has previously acquiesced to this by
creating the International Claims and Settlement Act and has
amended it without limiting or taking away power from the
executive.​
- This illustrates approval of the President's power to settle
international claims.​
- Note:
- This would be under the First Prong of Jackson's concurrence
in Steel seizure.​
- The Court also notes that this holding is a narrow one - the
President may act where Congress has acquiesced to a
President's action.​
Presidential Power over Immigration
- In considering the constitutionality of President Trump’s travel ban, the
Supreme Court expressed the view that the President has broad powers as to
immigration and that only a rational basis test is to be used for restrictions on
immigration.
- Rational Basis Review
- Under rational basis review, a court asks only whether there is a
conceivable permissible purpose for the government’s action; its
actual purpose is irrelevant.
- The Court found national security to be a conceivable permissible
purpose, whereas the dissent focused on what it saw as the actual
purpose: a ban on Muslims entering the United States.
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Trump v. Hawaii (U.S. 2018)
- Facts:
- Trump issues travel ban on entry of foreign nationals from
eight, predominantly Muslim, countries, citing the need to
identify “public safety threats.”
- Plaintiffs claim that the ban unconstitutionally excluded
Muslims from entering the country.
- Holding:
- The travel ban is constitutional
- There is a legitimate state interest in preventing nationals who
cannot be adequately vetted and inducing other nations to
improve their vetting practices
- The ban does not explicitly mention religions
- Rule:
- Presidential immigration policy is constitutional so long as it is
plausibly related to the Government’s stated objective and is
not merely a “bare . . . Desire to harm a politically unpopular
group”
- Kennedy Concurrence:
- Paraphrasing: “Really, we promise, this travel ban is definitely
not Islamophobic.”
- Breyer Dissent:
- Despite the Proclamation including a system of exemptions
and waivers that permit entry on a case-by-case basis, the
Government’s overwhelming underuse of those exemptions
demonstrates a huge possibility that the travel ban is based on
animus toward Muslims.
- Breyer would remand to give the Gov’t the opportunity to
explain its consistent denial of waiver applications
- Sotomayor Dissent:
- Bruh this is clearly anti-Muslim. Have you ever listened to
Donald Trump speak? And like, even when criticized that the
ban is anti-Muslim, Trump just CONTINUES to say super
hostile things about Islam
Checks on the President
- Executive Immunity
- Article II specifies no privileges and immunities for the President or members
of the Executive Branch, but the courts have developed implied executive
privileges and immunities from the structure of the Constitution and analogies
to common law.​
- Qualified v. Absolute Immunity
- Qualified Immunity
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Grants government officials performing discretionary
functions immunity from civil suits unless the plaintiff shows
that the official violated "clearly established statutory or
constitutional rights of which a reasonable person would have
known”
- Absolute Immunity
- Complete immunity from criminal prosecution and suits for
damages, so long as officials are acting within the scope of
their duties
Suing and Prosecuting
- Richard Nixon v. A. Ernest Fitzgerald (U.S. 1982)
- Facts:
- Fitzgerald is fired, Nixon assumes responsibility for his firing,
but then retracts his statement.
- Fitzgerald sues Nixon personally. ​
- Issue:
- Is the president shielded by absolute immunity from civil
damages liability?
- Can President be sued for official acts while in office?​
- Holding:
- Nixon has absolute immunity from damages liability based on
his official acts while in office.​
- Takeaways:​
- Established absolute immunity - complete protection from a
civil suit
- President has a unique position.
- He has to be able to manage the executive branch, which
might require removing people from positions.​
- If the president was always concerned about being involved in
private lawsuits, there would be risks concerning effective
functioning of the govt.​
- President is prominent. Actions are visible. He’d be a target for
suits, and he’d be distracted. Remember: there’s only one
president!​
- William Jefferson Clinton v. Paula Corbin Jones (U.S. 1997)
- Facts:
- Sexual harassment case against Bill Clinton​.
- Not an official act of the president.
- Paula Jones alleges Clinton harassed her before he was
president.
- Clinton does not ask for absolute immunity.
- Rather, he asks for temporary immunity until after his term
- Holding/Takeaway:
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Presidential immunity does not extend to unofficial acts
The president can be sued while in office when the conduct at
issue occurred prior to his term in office and was unrelated to
his conduct in office.​
Essentially, actions that a President take "outside of office"
(actions while they are not being president) are not entitled to
executive immunity.​
Notes:
- There is still ambiguity on actions the president takes that
aren't in his officially capacity but occur during his term.​
- Ie. President Josiah Bartlet goes on his morning jog and
negligently hits someone as he's running around DC. Would
he be immune from a civil suit? When does he stop being the
president?​
- Answer is super unclear.​
Rejected any immunity for acts that occur before a president takes
office
Impeachment
- Article II, § 4:
- The President, VP and all civil officers of the United States shall be
removed from Office on Impeachment for Conviction of, Treason,
bribery, or other high Crimes and Misdemeanors​
- Article 1, § 2:
- The HOR . . . shall have the sole Power of Impeachment.​
- Article 1, § 3:
- The Senate shall have the sole Power to try all Impeachments. When
sitting for that Purpose, they shall be on Oath of Affirmation. When
the Prez is tried the Chief Justice shall preside: And no Person shall be
convicted without the concurrence of two thirds of the Members
present.​
- Judgment in Cases of Impeachment shall not extend further than to removal
from Office, and disqualification to hold and enjoy any Office of honor, Trust
or Profit under the US: but the Party convicted shall nevertheless be liable and
subject to Indictment, Trial, Judgment and Punishment, according to Law.​
- Treason and Bribery have defined terms.​
- The real question is what does "high crimes and Misdemeanors" mean?​
- Well we don’t really know..​
- At one end (according to the book) is the narrow view that its limited
to acts that violate criminal law.​
- Other is the broad view that its whatever the HOR decides it is.​
- Plus we don’t have a lot of case law to determine what the procedure
or definition is.​
- Scratch that, we have ZERO cases to tell us what it is.​
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Federal Legislative Power
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Congress and the States
- McCulloch v. Maryland (U.S. 1819)
- Facts: ​
- Congress chartered The Second Bank of the U.S. and Maryland passed
legislation to impose taxes on the bank (1818)​.
- McCulloch (cashier of Baltimore branch) refused to pay the tax​.
- State App. Ct: the Second Bank was unconstitutional because the
Constitution did not explicitly/textually say the federal government
can charter a bank. ​
- Issue:
- Did Congress have the authority to establish the bank?
- Did the Maryland law unconstitutionally interfere with congressional
pwr (tax)?​
- Holding: ​
(1) Congress had the power to incorporate the bank; and
(2) Maryland could not tax instruments of the national government
employed in the execution of constitutional powers.​
- Analysis:​
(1) Doesn’t abandon Judicial Review but looks to history to interpret what
the Const. means ​
- EX: The First Congress passing the law to establish the Bank ​
(2) The people chose to ratify the Const. and give it power
(3) Const. is not a legal code/statute/regulation - Framers made it general
for a reason ​
- “We must never forget that it is a constitution we are
expounding” ​
(4) Framers use restrictive language intentionally ​
- EX: “necessary” v. “absolutely necessary” language (Art. 1, Sect.
8, Cl. 18) ​
(5) Under N+P Clause, Congress can choose any means not prohibited by
the Const. to carry out its express authority (AKA its enumerated
powers)​
- Takeaways: ​
- Const. grants Congress implied powers to implement the Const.'s
express powers to create a functional government​
- Balance of federal government v. states' rights ​
- State action cannot impede valid constitutional exercises of power by
the federal gov’t.​
- Congress may choose the means ​(N&P Clause)
- “Let the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited, but
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consist with the letter and spirit of the constitution, are
constitutional.” ​
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The Necessary and Proper Clause (Article I, § 8)
- Art. I, § 10, cl. 2
- Note:
- The Necessary and Proper Clause rarely comes into play.
- Here’s what CJ Marshall had to say about it:
- There are degrees of “necessity.” If necessity had one meaning, then the
phrase “absolutely necessary” elsewhere in the constitution would be
redundant. see e.g. Art. I § 10, cl.2 “Necessary” alone allows Congress to create
the means to achieve its goals. “Let the end me legitimate, let it be within the
scope of the constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited but consistent with the
letter and spirit of the constitution, are constitutional.” Political accountability
is what stops Congress from choosing the wrong means to the end.
The Commerce Power (Article I, § 8)
- Initial Era
- Gibbons v. Ogden (U.S. 1824)
- Facts:
- NY state law gave individual right to operate steamboats on
waters within state JD​.
- Gibbons was steamboat owner who did business in NY/NJ
under federal license​.
- Gibbons challenged monopoly license granted by NY state to
Aaron Ogden​.
- Ogden (NY state power) v. Gibbons (fed. statute power) = fed.
license supreme over state​. Gibbons says yes NY/NJ is
commerce “among states” ​. Ogden says commerce is NOT
navigation ONLY buying/selling ​
- Key Language: ​
- Article I, § 8: "The Congress shall have the power … to regulate
Commerce with foreign Nations, and among the several
States, and with the Indian Tribes."​
- Issue:
- Under the Supremacy Clause, does Congress’ license to
operate a steamboat between NY/NJ trump NY’s monopoly to
do so?
- "Commerce" - (Marshall reads broadly)​
- Ogden argues commerce = buying/selling goods and that is
not what happening here​
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Rule:
-
Gibbons argues commerce = more than just buying/selling;
transportation is included ​
"All America understands … the word 'commerce' to
comprehend navigation" ​
Because the waterways are interstate channels the federal
gov't has the authority to regulate under the CC ​
- Regulation of navigation for purposes of conducting
interstate commerce was a power reserved to and
exercised by the Congress under the Commerce
Clause. ​
- As interstate navigation fell under interstate
commerce, New York could not interfere with it, and
the law was therefore invalid. ​
- "In regulating commerce with foreign nations, the power of congress
does not stop at the jurisdictional lines of the several states." ​
1890s - 1937: Limited Federal Commerce Power
- Limited Commerce Power
- During this time very few cases considered scope of CC Power​
- Some cases expanded the power; Other cases invalidated fed.
legislation as exceeding scope of CC (see US v. Dewitt; The
Trademark Cases)​
- During Industrial Revolution, Congress used the CC to regulate
business ​
- 1890s – SCOTUS narrowly interpreted scope of Congress's
commerce power and used 10th Am. To constrain power ​
- WHY? Conservative justice on Court who opposed economic
regulation by the gov't ​
- Why does this matter?​
- First time SCOTUS aggressively used its power of judicial
review to invalidate federal and state laws
- Dual Federalism
- View that federal and state gov'ts were separate sovereigns and has
separate zones of authority ​
- Judicial role to protect the state by interpreting and enforcing
the Const. To protect the zone of activities reserved to the
states ​
- The court in this era developed 3 doctrines:
(1) Court narrowly defined meaning of commerce to leave zone
of power to the states​
(2) Court restrictively defined among the states as allowing
Congress to regulate only when there was a substantial effect
on interstate commerce​
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(3) 10th Amendment reserved zone of activities to the state and
that even federal laws within scope of CC were
unconstitutional if they invaded that zone
What is “Commerce”?
- Commerce should be narrowly defined as one stage of business
separate and distinct from earlier phases (ex. manufacturing,
production)​
- U.S. v. E.C. Knight (1895)​
- Sugar industry – risk of monopoly​
- Too far reaching to allow Congress to act "whenever interstate
or int'l commerce may be ultimately affected"​
- Relationship was too indirect to allow federal regulation under
CC​
- Carter v. Carter Coal Co. (1936)​
- Bituminous Coal Act – regulates coal industry ​
- Court held that the 1935 Act overstepped the bounds of
congressional power – cannot regulate ​
- The Court ruled that "commerce" is plainly distinct
from "production."​
- Congress cannot regulate wages, hours, or production (all local
activities) as interstate commerce even if the goods to be
produced eventually move between the states.​
What does “Among the States” mean?
- Direct v. Indirect Effects ​
- Shreveport Rate Cases (1914)​
- Congress can regulate intrastate rail rates b/c it is
among the several states​
- Must have a direct effect on IC – ICC can set RR rates
b/c direct impact on Interstate Commerce​
- ALA Schechter Poultry (sick chicken case) (1935)​
- Congress cannot regulate because of indirect effect on
interstate commerce ​
- Rule:
- Congress can only regulate when there is
direct effect on interstate commerce. ​
- “The federal gov’t has authority to regulate when there
are direct effects on commerce but where effect is
merely indirect transactions remain in domain of state
power.” ​
- "Among the States" requires a direct effect on interstate commerce
Does state sovereignty limit Congressional Power?
- Even if an activity was commerce and was among the states, Congress
still could not regulate if it was intruding into the zone of activities
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reserved to the states. 10th Am. reserved control of activities such as
mining, manufacturing, and production to the states. ​
- The Lottery Case (Hammer) (1903)​
- Court said power was within CC power - Court was more
willing to defer to moral laws than economic regulations ​
- Rule:
- Power to regulate includes the power to exclude.
- Congress can exclude from the commerce articles
whose use in the states for which they are destined it
may conceive to be injurious to the public health,
morals or welfare even though the state has not
sought to regulate their use. ​
- The Child Labor Case (Ames) (1918)​
- Rule:
- Distinguished from The Lottery Case b/c here, the
goods themselves are harmless.
- Congress doesn't care about the goods, but it is trying
to regulate what it believes is “fair labor”​​
- Note: Isn’t child labor also immoral? Who gets to decide?
1937 - 1990s: Broad Federal Commerce Power
- During this period, the court shifted back to a broad view of congress’s power
under the commerce clause.
- The court no longer looked at congress’s motives when they wrote
laws, just whether the law was constitutional or not.
- It is distinguishable from the Marshall Era though, because this period
also saw vast amounts of regulatory activity from the federal
government under the commerce clause. ​
- NLRB v. Jones & Laughlin Steel Corp. (U.S. 1937)
- Facts:
- Ten employees are fired for trying to unionize and the NLRB
brings a suit saying that this is a violation, JLSC claims that the
NLRA is unconstitutional.​
- CJ Hughes takes a huge chunk of the opinion talking about
how big the company and how it moves its iron all throughout
the country, we get it big company got it.​
- Rule:
- Acts that directly burden or obstruct interstate commerce, or
its free flow, are within the reach of the congressional power. ​
- "Although activities may be intrastate in character when
separately considered, if they have such a close and
substantial relation to interstate commerce that their control is
essential or appropriate to protect that commerce from
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burdens and obstructions, Congress cannot be denied the
power to exercise that control."​
- "The close and intimate effect which rings the subject within
the reach of fed power may be due to activities in relation to
productive industry although the industry when separately
viewed is local."​
- Dissent:
- Not really cool with this interpretation.
- They raise the slippery slope question of "so where is the line?"
- Are we really going to allow small companies that may impact
interstate commerce be subject to regulation?
United States v. Darby (U.S. 1941)
- Facts:
- The court now looks at provisions of the Fair Labor Standards
Act, as applied to a Georgia Lumber Manufacturer.
- This was the type of New Deal legislation that the court had
struck down in Hammer, Schechter and Carter Coal.
- It sought to proscribe wage and hour requirements for entities
even engaged in only production.
- The specific provisions at issue sought to
1) Prohibit the shipment (in interstate commerce) of
lumber manufactured by employees whose wages or
maximum hours were not in compliance with those
proscribed in the act. And then
2) To prohibit the employment of workmen in the
“production for interstate commerce” at wages and
hours other than those proscribed.
- Rule:
- Congress may choose the means reasonably adapted to the
attainment of the permitted end, even though they involve
control of intrastate activities.​
Wickard v. Filburn (U.S. 1942)
- Facts:
- The Agricultural Adjustment Act of 1938 set market quotas for
the amount of crops that individual farmers could grow and
harvest.
- This was an attempt by the US gov. to manipulate the market
for crops and keep the demand relative to the supply. ​
- Filburn is a dairy farmer in Ohio.
- He grows wheat to feed his farm animals, and he doesn’t sell
this wheat in the market.
- His farm has more acres of wheat than is allowed under the
quota set by the AAA.
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This triggers a fine under the act, and Filburn sues.
He alleges that the federal government doesn’t have the
power to regulate his wheat under the commerce clause,
because his wheat never touches the intra- and interstate
markets for wheat.
- The court rules that even though activity may be purely local, and
even though the activity may not even be considered “commerce,”
congress may still reach that activity if it “exerts a substantial
economic effect on interstate commerce.”​
- The court holds that even though taken on its own, Filburn’s wheat has
a “trivial” effect on interstate commerce, if thousands of farmers
began to adopt the same practice, the national demand for wheat
could be substantially diminished, because homegrown wheat would
compete with wheat in commerce. This is the aggregation principle. ​
- So one Filburn hoarding his wheat is whatever right. But imagine if we
had 1,000/10,000/100,000 people hoarding their wheat, big
problem.​
- This essentially affords congress near limitless power under the
commerce clause. Any activity, even inactivity, may be regulated by
congress, if when considered in aggregate, that activity/inactivity could
exert a substantial effect on interstate commerce.
1990s - ???: Narrow Federal Commerce Power and Revived 10th Amendment
- United States v. Lopez (U.S. 1995)
- Facts:
- In the Gun Free School Zones Act of 1990, congress made it a
federal offense “for any individual knowingly to possess a
firearm at a place that the individual knows, or has reasonable
cause to believe, is a school zone.
- Lopez was a 12th grade student who was convicted for
knowingly possessing a concealed handgun and bullets at his
San Antonio HS.
- Holding:
- The Act cannot be sustained as an exercise of the commerce
clause.
- Court argues that possession of a firearm is not economic
activity.​
- The court analyzes the act under the 3rd prong of
congressional power under the commerce clause, the
regulation of an activity that substantially effects interstate
commerce. ​
- Rule:
- Congress May regulate:
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The use of channels of interstate commerce [think
railroad routes in Shreveport]
The instrumentalities of commerce (like the things
that travel on the channels, cars or trains), and persons
or things “in interstate commerce”; and
Activities that substantially affect interstate commerce
Dissent:
- This is a break with recent CC precedent
- Court’s reasoning for holding that regulating gun possession is not
regulating an activity that substantially effects interstate commerce:
- Finding the possession of a gun economic activity would require the
court to “pile inference upon inference,” that would result in converting
congressional commerce power into a general police power.
- The court finds it relevant that this law contains no “jurisdictional
hook,” that would put the activity within the second prong of the
three-part test as a 'thing in interstate commerce.
- Remember the second part of the second prong a few slides back,
“people or things ‘in interstate commerce.’” That phrase, “in interstate
commerce,” is a jurisdictional hook and could have completely
changed the outcome of the case. In fact, the Gun Free School Zones
Act was re-drafted and is still in effect because congress just added
the jurisdictional hook.
- The Court leaves the possibility open for regulation such as this, where
the regulation is an “essential part of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless the
intrastate activity were regulated.” (Ultimately the holding in Raich).
United States v. Morrison (U.S. 2000)
- Facts:
- Congress passes the Violence Against Women Act of 1994,
which provided that “a person (including a person who acts
under color of any statute, ordinance, regulation, custom, or
usage of any State) who commits a crime of violence
motivated by gender . . . shall be liable to the party injured, in
an action for the recovery of compensatory and punitive
damages, injunctive and declaratory relief, and under such
other relief as a court may deem appropriate.”
- Congress alleges that this law may be held constitutional as a
valid exercise of their power under the commerce clause.
- Specifically, that the VAWA was a regulation of activity
that substantially affect interstate commerce.
- Holding:
- The court, relying on the analysis in Lopez, responds, “in those
cases where we have sustained federal regulation of intrastate
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activity based on the activity’s substantial effects on interstate
commerce, the activity in question has been some sort of
economic endeavor.”
They argue that gender motivated crimes of violence are not,
in any sense of the phrase, economic activity.
Note:
- Basically​
- Noneconomic –> no aggregation​
- Economic -> aggregation
Gonzalez v. Raich (U.S. 2005)
- Facts:
- California passed the Compassionate Use Act of 1996.
- This state law created an exemption from criminal prosecution
for physicians, patients, and primary care givers who possess
or cultivate marijuana for medicinal purposes with the
recommendation of an approved physician.
- The Controlled Substance Act was passed in 1970.
- It placed categorical prohibitions on the manufacture and
possession of marijuana, making no distinctions between
medicinal or recreational use.
- The Respondents Angel Raich and her partner were California
residents.
- They suffered from a number of different conditions and
sought to avail themselves of medical marijuana pursuant to
the compassionate use act.
- They argue that the CSA is an unconstitutional exercise of the
commerce power, but only as it applies to the intrastate
manufacture and possession of marijuana for medical
purposes, pursuant to California’s law.
- Holding:
- In upholding the Controlled Substance Act (so applied to
intrastate growing), the court relies on its reasoning in Wickard.
- It argues that, pursuant to Wickard, “congress can regulate
purely intrastate activity that is not in itself ‘commercial,’ in
that it is not produced for sale, if it concludes that failure to
regulate that class of activity would undercut the regulation of
the interstate market in that commodity.”
- This assertion relies on the same aggregation principle from
Wickard.
- In passing the CSA, congress’s goal was to control the supply
and demand of controlled substances in both lawful and
unlawful drug markets.
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Allowing home-grown pot to go unregulated would undercut
congress’s overall purpose in regulating the commercial
market.
- When viewed in aggregate, home grown wheat or pot still has
a substantial impact on the interstate market for that
commodity.
- Dissent:
- The dissent responds to the majority’s “broad economic
scheme” rule, stating that it would allow Congress to create
broader, omnibus legislation
- The majority’s response is that if a law has a broad impact, that
must mean more people supported it (voters elected
congresspeople to legislate)
- Making Sense of Wickard, Morrison, and Raich
- When a law regulates economic activity, those activities may be
aggregated to support an inference of substantial effect on commerce
and will be upheld.
- But at the same time, the Court will not excise noneconomic,
components of a larger regulatory scheme if Congress has a rational
basis for concluding that the “class of activities” substantially effects
interstate commerce
Federalism’s Limits on Congressional Power
- N.F.I.B. v. Sebelius (U.S. 2012)
- Facts:
- Constitutional Challenges to:
- ​The individual mandate
- Individuals who are not exempt and do not receive
healthcare through a third party must purchase
insurance from a private company to satisfy the
mandate requirement ​
- Act describes a "penalty" paid to IRS for
non-compliance with the mandate. ​[Be careful here
with "penalty" v. "tax"] ​
- Guaranteed-issue and community-rating ​
- The Medicaid expansion
- Expands scope of program and increased number of
persons the States must cover ​
- If State does not comply with new coverage
requirements, it may lose ALL of its federal Medicaid
funds!​
- Issue:
- Does Congress have the power under the Constitution to enact the
challenged provisions? ​
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Specifically … does Congress have the power under the Commerce
Clause to require people to purchase insurance through the Individual
Mandate? ​
What doctrines are implicated?​
- The Commerce Clause
- Necessary and Proper clause
Government’s Arguments in favor of ACA
- #1: the individual mandate is a valid exercise of Congress's power
under the Commerce Clause and Nec. & Proper Clause​
- Congress is trying to solve a variety of problems … ​
- Cost-shifting problem (uncompensated care)​
- Issue of healthy persons who choose not to buy
insurance until they get sick​
- Adding more healthy persons to the insurance pool
will subsidize unhealthy persons ​
- Healthcare = 17% of the U.S. economy
- #2: Indiv. Mandate is within Congress's power because failure to
purchase insurance has a "substantial and deleterious effect on
interstate commerce" by creating the cost-shifting problem​
- Congress has broad authority under the CC clause to "regulate
commerce" ​
- What does the court say here? ​
- "construing the CC to permit Congress to regulate
individuals precisely because they are doing nothing
would open a new and potentially vast domain to
congressional authority" ​
- Congress is solving the health insurance problem by
forcing everyone to buy insurance ​
- This would be the same as Congress ordering
everyone to buy vegetables to solve the diet problem​
- The CC is not a general license to regulate every
activity an individual engages in – police power to
regulate individuals is left to the states!​
- Inactivity is NOT commerce under the Constitution ...
in order to be "commerce" we need economic activity​
- #3: Congress has the power under the Nec. & Proper Clause to enact
the individual mandate because the mandate is an "integral part of a
comprehensive scheme of economic regulation" ​
- What does the court say? ​
- Individual mandate cannot be sustained under the
N&P clause either! The mandate vests in Congress the
ability to create a necessary predicate to the exercise
of its enumerated power
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Note: the joint dissent tries to say there are
other ways to achieve the ACA’s goals other
than the individual mandate (radically departs
from McCulloch’s “let the end be legitimate”)​
Overall, the power under the Commerce Clause DOES
NOT authorize the individual mandate!​
Holding: ​
- The individual mandate CANNOT be upheld under the Commerce
Clause.​
- What prong of Lopez?​
- 3rd!​
- Takeaways:​
- Congress can only regulate existing commercial activity, not inactivity. ​
- Can’t compel people to become active in commerce.
Sebelius on the Taxing Power
- Facts: ​
- A penalty must be paid, with taxes, if individuals do not comply with
the mandate beginning in 2013. ​
- Issue: ​
- Under the Taxing and Spending power, Art. I Sec 8, does Congress
have the power to enact the Affordable Care Act? ​
- Holding:
- The tax power can uphold the individual mandate
- "The mandate may be upheld as within Congress's enumerated power
to 'lay and collect Taxes.'"
- The Individual Mandate penalty is a tax for the purposes of the
Constitution's Taxing and Spending Clause and is a valid exercise of
Congressional authority.
- The payment is not so severe as to be coercive, is not limited
to willful violations like fines for unlawful acts, and is collected
by the IRS.
- Facts that make the ​mandate look like a tax: ​
- Paid to the treasury while filing tax returns ​
- It “produces some revenue” – and the fact that it has a regulatory
effect doesn’t matter ​
- IRS enforces it like all other taxes​
- Codified in the internal revenue code ​
- Congress has broad power to tax for general welfare and discourage
behavior (like no insurance) ​
- Looks like a tax … feels like a tax, etc. ​
- Facts that make the mandate ​look like a penalty: ​
- Regulatory purpose ​
- Congress CHOSE to call it a penalty throughout the entire bill ​
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Scalia: they called it a penalty because they didn’t mean to make it a
tax – we have precedent that makes the penalty/tax distinction
perfectly clear – the court could’ve easily applied that​
- Sebelius on the Spending Power
- Facts:
- The ACA requires Medicaid coverage expansion and threatens to
revoke any noncompliant state’s entire Medicaid funding
- Holding:
- This is an impermissible use of Congress’ spending power because it is
compulsory: it is a “gun to the head” and threatens the termination of
a state’s longstanding Medicaid program. There’s no real option for the
state
- Sebelius Takeaways
- Commerce Clause Issue:
- Fed. Gov't does not have the power to order people to buy health
insurance. ​
- Taxing Clause Issue:
- Fed. Gov't does have the power to impose a tax on those without
health insurance. Section 5000A is therefore constitutional because it
can be reasonably read as a tax​​
- Spending Clause Issue:
- Medicaid expansion provision was unconstitutionally coercive as
written. Congress does not have authority under the Spending Clause
to threaten the states with complete loss of Federal funding of
Medicaid, if the states refuse to comply with the expansion. ​
- First time EVER court finds exercise of Congress's spending power
unconstitutionally coercive!​
- Note:
- The remainder of the Medicaid expansion provision, without the
unconstitutional threat to completely withdraw Medicaid funding,
could stand as a valid exercise of Congress' power under the Spending
Clause​
Congress’s Powers Under the Post-Civil War Amendments
- Amendment 14, § 5
- The Congress shall have power to enforce, by appropriate legislation, the
provisions of this article.
- Broad View
- Katzenbach v. Morgan & Morgan (U.S. 1966)
- Facts:
- Voting Rights Act of 1965 §4(e): no sixth-grade
graduate of a non-English instructed school accredited
by Puerto Rico shall be denied the right to vote on
account of their inability to read or write English.
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New York has a law that requires the ability to read and
write English as a condition of voting.
Holding:
- §4(e) is a valid exercise of Congress’ power pursuant to
Amend. XIV sec. 5.
- § 4(e) was enacted to enforce the Equal Protection
Clause
Takeaway:
- “A construction of § 5 that would require a judicial
determination that the enforcement of the state law
precluded by Congress violated the Amendment, as a
condition of sustaining the congressional enactment,
would depreciate both the congressional
resourcefulness and congressional responsibility for
implementing the Amendment.”
- The framers of the 14th Amendment sought to enact
in §5 a provision with the same effect of the Necessary
and Proper Clause
Harlan Dissent:
- New York’s law deals in an area exclusively reserved for
the state
- A judicial determination that a state law violates the
constitution is a “necessary prerequisite to bringing the
§5 power into play
Narrow View
- City of Boerne v. Flores (U.S. 1997)
- Facts:
- Congress enacted the RFRA to prohibit laws that
substantially burden the exercise of religion even if the
law is generally applicable (essentially a legislative
overruling of Employment Div. Dept. of Human
Resources of Oregon v. Smith)
- Boerne City rejected a building permit to enlarge a
church given its designation as a historic landmark
- Holding:
- Congress did not have the power to enact the RFRA
- It can displace any Federal, State, and local law
- It would reject laws that Smith would validate
- “RFRA was designed to control cases and
controversies”
- Rule:
- Legislation valid under §5 must demonstrate “a
congruence and proportionality between the injury to
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be prevented or remedied and the means adopted to
that end. Lacking such a connection, legislation may
become substantive in operation and effect.”
- Congress’s power under §5 is remedial: it may
not determine what constitutes a
constitutional violation but rather can only
enforce a right already existing under the 14th
Amendment. In other words, when it comes to
the 14th Amendment, the Court decides the
substantive rights it creates, and Congress can
enact laws to enforce those rights alone
- The Committee in the Reconstruction
Congress that drafted the 14th
Amendment initially included a
“necessary and proper” provision, but
that draft was rejected
- Precedent confirms that §5 is limited
and merely remedial (Civil Rights
Cases of 1883)
- Allowing Congress to create
substantive 14th Amendment rights
would shift the constitution into
nothing more than a legal code
Shelby County, Alabama v. Holder (U.S. 2013)
- Facts:
- § 4(B) of the Voting Rights Act defies jurisdictions with
a history of race discrimination in voting that must
receive “preclearance” before altering their election
systems.
- In 2005, Congress extended that provision for another
25 years,
- AG Holder opposed voting changes in Shelby County,
Alabama.
- Holding:
- The court invalidates §4
- The list of states is based on “decades-old data and
eradicated practices”
- Note:
- Although the Court does not invalidate §5 of the VRA,
which requires preclearance, it spends quite a bit of
time explaining why something like §5 is usually
unconstitutional and the circumstances that validated
its enactment
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Justice Thomas jumps on this logic to argue in
favor of invalidating §5.
He says that Congress cannot point to any
current voting discrimination
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Limits on State Regulating and Taxing Power
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Preemption of State and Local Laws
- Express Preemption
- Lorillard Tobacco Co. v. Reilly
- Riegel v. Medtronic
- Chamber of Commerce v. Whiting
- Implied Preemption
- Conflicts Preemption
- Florida Lime and Avocado Growers v. Paul
- Preemption Because State Law Impedes the Achievement of a Federal
Objective
- Pacific Gas v. State Energy Resources Conservation
- Preemption Because Federal Law Occupies the Field
- Hines v. Davidowitz
- Arizona v. United States
The Dormant Commerce Clause
- What is the DCC?
- State and local laws are not constitutional if they place an undue burden on
interstate commerce when the federal government is silent.​
- Is this expressly written into the Constitution?
- NO. ​
- It is an implied limitation that only applies when the federal gov't is
silent ​
- What happens when the federal government has spoken?​
- Fed law preempts state law​
- When the government is silent, what is the assumption?​
- That Congress wanted an open & free market.​
- Why the DCC?
- Tennessee Wine and Spirits Retailers Associations v. Thomas (S. Ct. 2019)
- Facts:
- Tennessee requires that first-time liquor license applicants
reside in the State for at least 2 years
- Holding:
- The 2-year residency requirement violates the DCC and is thus
unconstitutional
- It favors state residents and “has little relationship to public
health and safety”
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Takeaways:
- Without the DCC, states could participate in “protectionism”
- Should there be a DCC?
- The DCC exists because:
1) The constitution unified the States, and the framers wrote the
Commerce Clause after the Articles of Confederation failed
because states competed economically
2) A closed-off market only harms producers and increases costs
for consumers
3) State A could harm consumers/producers in State B, even
though State B citizens have no authority to hold State A
government officials accountable (no political representation)
- Criticisms of the DCC
1) It has no basis in the text of the constitution
2) There is no such thing as congressional “pre-emption-by-silence.” We
must effectuate congressional intent through its legislation, not
through its failure to legislate. Courts engaging in this logic are acting
as policymakers
The History of the DCC
- Aaron B. Cooley v. The Board of Wardens of the Port of Philadelphia ex. rel.
Society for Relief of Distressed Pilots (U.S. 1851)
- Facts:
- PA law required all ships entering Philly ports to use a local
pilot or pay a fine to support retired pilots
- Holding:
- This law does not violate CC/DCC
- This kind of regulation is reserved for the states, it is local and
not national
- Also, it makes good sense to require people unfamiliar with
Philly waters to get a local pilot with navigation knowledge
- Rule: (REMEMBER, THIS IS AN OLD RULE)
- States should have the “legislative discretion” to regulate the
“local peculiarities” of activities within their jurisdiction
- The Cooley Test (Local/National Subject Matter Test)
Analyzing Whether a Law Violates the DCC
- Determining Whether a Law is Discriminatory
- Facially Discriminatory
- City of Philadelphia v. New Jersey (U.S. 1978)
- Facts:
- NJ passed a law prohibiting other states from
dumping trash in Jersey landfills. Philly and
other landfill owners sued. State regulations
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subject to the Commerce Clause may not
burden interstate commerce
Holding:
- The NJ law violates the DCC
- The state had a legitimate reason to ban waste
(environment, public health) but the means it
chose to address the issue was by banning
waste based entirely on its origin
Note:
- Ask: does the law discriminate against out of
state citizens?
- NJ’s refusal to allow waste, simply based on its
origin, is facial discrimination that violates the
CC
Facially Neutral
- Hunt, Governor of the State of North Carolina v. Washington
State Apple Advertising Commission (U.S. 1977)
- Facts:
- Washington sells apples, and its legislature
wanted to enhance the state’s reputation by
establishing an inspection program to test
apples under a quality standard/grade.
- The grades are comparable to the US Dep’t of
Agriculture standards; North Carolina enacted
a law requiring that containers of apples
shipped in-state must have US grade
- Holding:
- A facially neutral law that violates the DCC
- The law requires out-of-state producers to
expend time and money to meet the new
regulations, thus NC growers had a
competitive edge over out-of-state growers
because the already conformed to the state’s
labeling standards, while Washington growers
lose their edge because they had to adjust
production to comply with other standards
- Thus, this facially neutral statute
unconstitutionally burdens interstate
commerce because it has a discriminatory
effect and would ultimately reduce the quality
of apples
- Exxon Corp. v. Governor of Maryland (U.S. 1978)
- Facts:
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Maryland statute says that a producer or
refiner of petroleum cannot operate retail
service stations in the state.
- Exxon challenged the statute because it would
force them to discontinue operations of 36
retail stations.
- Here, the law does not favor instate or
out-of-state producers because Maryland
does not produce oil (all of its oil comes from
out of state)
Holding:
- No discriminatory effect
- Both in-state and out-of-state refiners are
impacted.
- If all gasoline comes from out of state
producers, instate producers will not gain an
advantage.
- Also, many out-of-state retailers fell no impact
from this law.
- Just because the burden of state regulation
falls on some companies doesn’t, by itself,
establish a claim of discrimination against
interstate commerce.
Blackmun Dissent:
- A state’s law will violate the CC when its
practical effect is invalid discrimination against
interstate commerce.
- Here, it looks like the state is just protecting
instate retailers from out-of-state competition
and the burdens on out-of-state producers is
significant.
Notes:
- Hunt:
- NC law affected out-of-state apples
but not in-state apples, so there is a
discriminatory effect from the state
law.
- Only out-of-state apple producers are
impacted.
- Exxon:
- Not discriminatory because there is no
difference in how out-of-state and
in-state refiners are treated.
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The law does not affect the flow of
goods because refiners can still
operate in other states (there's not
enough of a discrepancy to find a
discriminatory effect).
- West Lynn Creamery, Inc. v. Healy, Commissioner of
Massachusetts Department of Food & Agriculture (U.S. 1994)
- State of Minnesota v. Clover Leaf Creamery Co. (U.S. 1981)
Analysis if a Law is Deemed Discriminatory
- Dean Milk Co. v. City of Madison, Wisconsin (U.S. 1951)
- Facts:
- Madison enacts a law that says nobody can sell milk
until it was processed at a plant within a radius of 5
miles from the central square of Madison, and there
was a 25 mile limit on milk sources.
- Dean Milk is an Illinois corporation that distributes milk
in Illinois and Wisconsin.
- Dean Milk argues that the 25-mile limit on plants is
unconstitutional because it purchases milk from farms
outside 25-miles of Madison and its plants are more
than 5 miles way so it could not sell milk in Madison
- Holding:
- This law discriminates against interstate commerce
- There were nondiscriminatory means available to
achieve Madison’s ends other than banning all milk
outside of a certain radius.
- For instance, the city could have regulated milk within
its borders with stricter inspection methods to screen
out bad milk before it reached the consumer.
- Rule:
- If a statute discriminates against interstate commerce,
it violates the CC if other nondiscriminatory means are
available, no matter what the policy underlying the law
is
- Maine v. Taylor & United States (U.S. 1986)
- Facts:
- Taylor operates a bait business in Maine. Maine had a
statute prohibiting importation of live baitfish, but he
arranged to have baitfish delivered to him from out of
state.
- Taylor indicted for violating Lacey Act.
- Holding:
- Law Does not violate DCC
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Rule:
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Since this law discriminates (facially or in effect)
burden falls on state(strict scrutiny) – legitimate local
purpose of statute, purpose can’t be served by
non-discrim. alternatives.
Legit local purpose:
- Harm fish cause when they’re out of state –
contamination and disease.
- Maine wanted to protect ecosystem.
No nondiscriminatory alternatives – couldn’t test all
fish; would kill them.
Thus, Maine satisfied the burden of showing a legit
state purpose and that there were no less dicrim alts.
STRICT TEST: once a state law is shown to
discriminate against IC, the burden falls on state to
show both (1) legit local purpose and (2) that the
purpose could not be served as well by available
discriminatory means.
Analysis if a Law is Deemed Nondiscriminatory
- Loren J. Pike v. Bruce Church, Inc. (U.S. 1970)
- Facts:
- Cantaloupe Case.
- AZ law defines how to pack cantaloupe to prevent
contamination.
- Benefit for AZ: - want to preserve the reputation of AZ
cantaloupes.
- Burden on I.C. - farmers don't have means to pack
cantaloupes or $ to ship to packing companies.
- Holding:
- The law is unconstitutional
- Too much of a burden on interstate commerce
- Arizona growers that don’t have packaging plants
would have to build expensive new plants
- Rule:
- Pike Balancing Test
- Where the statute regulates even-handedly to
effectuate a legit pub interest and its effects
on IC are only incidental, it will be upheld
unless the burden imposed on such commerce
is clearly excessive in relation to the putative
local benefits.
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Bibb, Director, Department of Public Safety of Illinois v. Navajo
Freight Lines, Inc. (U.S. 1959)
- Facts:
- Illinois requires curved mud flaps on trucks. Most
surrounding states only require straight mud flaps
- Holding:
- Unconstitutional law
- Places an undue burden on interstate commerce
- There is no actual safety benefit to the state by this
law.
- There is a big burden on other states that have
lower mud flap standards and would have to
spend a bunch of money to meet Illinois
standards
Exceptions to the DCC
- Congressional Approval
- Western & Southern Life Insurance Co. v. State Board of
Equalization of California (U.S. 1981)
- Facts:
- Congress’ McCarran-Ferguson Act gave States
the authority to regulate and tax certain
businesses
- Holding:
- No violation
- Rule:
- When the federal government has not acted,
the state markets should be open.
- If the federal government has acted, that
limitation on interstate commerce is not
violative of the Dormant Commerce Clause.
- The Market Participation Exception
- Reeves, Inc. v. William Stake (U.S. 1980)
- Facts:
- South Dakota had a state-run cement plant
that produced cement in excess of what its
citizens required, so it sold to out-of-state
cement buyers.
- Production slowed at the plant in 1978, and
the demand for cement out of state declined.
- The plant faced a serious cement shortage and
thus enacted a policy to prioritize South
Dakota customers first and them provide to
out-of-staters on a first come, first serve basis
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Holding:
- Prioritizing South Dakota consumers does not
violate DCC
- South Dakota itself was acting as a cement
seller
- Rule:
- States themselves may act freely as a
participant in the market.
- When they run a business, they can favor
in-staters.
- “There is no indication of a constitutional plan
to limit the ability of the States themselves to
operate freely in the free market.”
- Note:
- This is different from when the States act as a
“Market regulator” i.e., in all of the other cases
the states were regulating the market
White v. Massachusetts Council of Construction Employers,
Inc. (U.S. 1983)
- Facts:
- Mayor of Boston issued an executive order
requiring that all construction projects entirely
or partially funded by the city should include a
workforce at least half composed of Boston
residents
- Holding:
- No violation of CC
- City expended only its own funds in the
contracts
South-Central Timber Development, Inc. v. Commissioner,
Department of Natural Resources of Alaska (U.S. 1984)
- Facts:
- Alaska required timber purchasers to partially
process timber after the purchase
- Holding:
- This violates the DCC
- Even though Alaska was running its own
timber business, it attempted to control
purchaser behavior too long after purchase
- Rule:
- The market participant exception applies only
to the first transaction.
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Once the state begins telling a purchaser what
to do with a good (downstream) it is a market
regulator.
Economic Liberties
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Generally economic liberties are constitutional rights concerning the ability to enter into and
enforce contracts, pursue a trade or profession, acquire/possess/convey property ​
- The Framers were worried about protecting economic rights and included provisions
like the Contracts Clause and the Takings Clause ​
5th and 14th Amendments provide that neither the federal nor state gov'ts can "deprive any
person of life liberty, or property without due process of law"​
- Due Process has 2 types of protection:​
- Procedural Due Process: procedures the gov't must follow when it takes away
a person's life, liberty, or property (i.e. notice, opportunity to make case)​
- Substantive Due Process: asks whether the gov't has an adequate reason for
taking away a person's life, liberty, property​
- Looks at actual substance of reason for denial of right provided by
government ​
Substantive Due Process
- Early History
- SCOTUS rejected early attempts to use DPC to protect economic rights from
gov't interference​
- Murray v. Hoboken
- DP is met as long as gov't procedures are in accordance with
law ​
- The Slaughter-House Cases
- Butchers brought suit against constitutionality of the grant of a
monopoly by arguing it denied their right to practice their
trade and thus violated DPC (they raised other claims too).
- Court expressly rejected substantive DP claim and idea that
DPC could be used to safeguard a right to practice a trade or
profession from arbitrary government interference
- 1870s gov't regulation increased with industrialization to protect workers &
employers turned to courts to support laissez-faire philosophy ​
- Loan Association v. Topeka
- Early instance of Court using natural law to limit gov't
regulatory power​
- Munn v. Illinois
- Court declared it was the judiciary's role to evaluate
reasonableness of state regulations​
- The Railroad Commission Cases
- Upheld state RR rate regulation but said DP could be used to
challenge rates in future​
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Mugler v. Kansas
- Upheld state law that prohibited sale of alcohol but said state
laws would be invalidated unless they were truly using state
police power
The Lochner Era
- Allgeyer v. Louisiana (U.S. 1897)
- Facts:
- Allgeyer began business transactions/negotiations with NY
insurance company - requesting insurance for cotton
shipment.
- LA statute prohibited business transaction (i.e., can't do
business with foreign corporations).
- Issue:
- Can state adopt statute that prohibits citizens and foreign
corporations from entering into business transactions without
violating [Substantive] Due Process?]
- Holding:
- LA statute unconstitutional.
- Statute deprived Allgeyer of economic freedoms
- Allgeyer had right to enter into business with NY insurance
company
- Takeaway:
- Due Process protects economic freedoms --> right to work -->
right to contract
- Lochner v. New York (U.S. 1905)
- Facts:
- Bakery owner violated NY law. Wanted his employees to work
more than the law allowed. NY passed the law b/c of
health/safety.
- Bakery said the law was unconstitutional.
- Holding:
- Law was unconstitutional because it violated the liberty of K
under the DP
- Takeaway:
- Right to K is protected by 14th Am; it’s a fundamental right.
Workers can work more hours if they want to, and employers
can have their employees work longer if they want to. Their
rights were being infringed upon.​
- The court said a state can restrict the right but only for certain
reasons the Court would judge. Here, the court decided health
and safety of bakers wasn’t good enough. The state can
regulate health, safety, morals, and the general welfare, but
this law was about health of bakers, not the public. Bakers
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should be able to protect themselves. Want less hours?
Bargain it away.​
- Court also said it would make sure the law was really
connected to the state’s reasons, and here the law apparently
only had a remote relation public health or welfare.
Justice Holmes Dissent:
- “The 14th Amendment does not enact Mr. Herbert Spencer’s
Social Statics.”
Three-Step Analysis
- First prong: Fundamental right? Liberty in DPC includes
freedom to K: right to purchase or sell labor.​
- Gov’t involvement here would be paternalism. Laissez
faire belief. ​
- Second prong: Can the gov’t restrict the right? (Ends: Reason
for the law) Freedom to K is not absolute, but can only be
restricted under narrow circumstances​
- State can restrict the right as part of its police powers:
related to the safety, health, morals, and general
welfare of the public.​
- This doesn’t affect the general welfare (doesn’t affect
the bread), bakers aren’t wards of the state whose
health/safety/bargaining power needs to be specially
protected.​
- Concerned this regulation would cause freedom of
contract to disappear​
- Not deferring to the legislature, which thought the law
was for the general welfare. Substituting court’s
decisions​
- Third prong: Is the method used to restrict the right closely
related to the goal? (Relationship between means and end)​
- Court claims there is no connection, this law is a
special interest law against immigrants and the first
step in wealth redistribution (Court’s fear)​
Lochner announced 3 themes that were followed until 1937​
(1) Freedom of contract was a right protected by the DPC of 5th
and 14th Amendments
(2) The gov't could interfere with freedom of contract only to
serve a valid police purpose of protecting public health, public
safety, or public morals ​
(3) The judiciary would carefully scrutinize legislation to ensure
that it truly served such a police purpose. ​
Classic substantive due process:
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The DPC was used not to ensure that the government
followed proper procedures but to ensure that laws served an
adequate purpose. ​
Note:
- Over the next three decades, the Court followed the principles
articulated in Lochner and declared almost 200 state laws
unconstitutional as violating the Due Process Clause of the
14th Amendment.​
- BUT - during this time, the Court upheld many state and
federal economic regulations as sufficiently related to a valid
police purpose. ​
- If the court's actions do not make sense to you … don't worry
it's hard to reconcile some of the decisions from this era! ​
Laws Protecting Unionizing
- As workers attempted to unionize, many states and the federal
government adopted laws to facilitate unionization by prohibiting
employers from insisting, as a condition of employment, that
employees agree not to join a union.​
- The Supreme Court declared the laws unconstitutional as
impermissibly infringing freedom of contract​
- Adair v. United States (1908)
- The Court declared unconstitutional such a federal law ^​
- Coppage v. Kansas (1915)
- The Court declared a state law that stopped employers from
prohibiting unions unconstitutional because “it takes two to
make a bargain” (i.e., freedom of contract)
Maximum Hours Laws
- In Lochner, the Court declared unconstitutional a state law setting
maximum hours for bakers.
- The Court’s opinion in Lochner distinguished Holden v. Hardy,
in which the Court had upheld a maximum hours law for coal
miners.
- The legislature sought to protect the health of miners
by limiting their exposure to coal dust.
- In Lochner, the Court distinguished Holden as a
legitimate exercise of the police power of the state
and concluded that there “is nothing in Holden v.
Hardy which covers the case now before us.”​
- Muller v. Oregon (U.S. 1908)
- Facts:
- Maximum hours for women in machine shops
- Holding:
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This does not unconstitutionally restrict the right to
contract
“Women need help in the bargaining process”
“We need women to birth and rear children”
Note:
- This case includes a litigation strategy—the women’s
movement and attorneys who litigated the case
played off of the Justices’ sexism to make them
conclude that women actually do need help
- When the Court claims it has the authority to make
means/goals determinations, inconsistency arises b/c
the Court will inject its ideology and overstep the role
of the legislature
SDP After 1937
- The End of the Lochner Era
- Things got weird in the mid-1930s:
- Laissez-faire economics led to the Great Depression and the
public became confident that the government needed to step
in to save the economy. The familiar outcome of striking laws
that impede on the freedom to contract under Lochnerism
began to look like a losing theory
- Also, the “intellectual foundations” of Lochnerism started to
break down amongst legal scholars. People started to discredit
natural law approaches, and found that there was no such
thing as natural liberties like the freedom to contract. The
Lochner era gave birth to the legal realism movement, that
says judges come with their own biases and there are no
neutral principles
- There was also political pressure: FDR wanted to pack the
court because it was opposed to the New Deal policies
- West Coast Hotel Co. v. Parrish (U.S. 1937)
- Facts: ​
- Washington had a law for minimum wages for women
& minors.
- Appellant was a hotel.
- Parish was a maid and sued to get the difference
between the wages paid to her and the minimum
wage fixed pursuant to state law.
- Hotel challenged the act.​
- Holding:
- State Law is Constitutional! ​
- The health of the community/workers is a good
enough reason for protection here ​
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Here the legislature could consider situation of women
and their unequal bargaining power, and adopt a law
that would stop exploiting them with low wages.
- Could also consider the minimum wage requirement
was important to help carry out its policy to protect
women
- Takeaway:​
- No right to contract protected under the Due Process
clause ​
- Gets rid of the 1st part of Lochner – Freedom to K isn’t
a fundamental right​
- More deference to the legislature​
- Reasonable for legislature to believe unequal
bargaining power exists. It’s not for Scotus to decide,
it’s for the legislature to decide. Legislature can create
policy as long as it’s rational. ​
United States v. Carolene Products Co. (U.S. 1938)
- Facts: ​
- Filled Milk Act by Congress prohibits the shipment in
interstate commerce of skimmed milk compounded
w/ fat or oil other than milk.
- Appellee indicted for violating the Act for shipping in
interstate commerce Milnot (had oil in it).
- Indictment said Milnot was injurious to public health.
(5th Am. Issue). ​
- Holding:
- Act is constitutional.​
- Takeaway:​
- As long as there is a rational basis to support the
legislature’s actions, then the legislature can act.
- It would only be unconstitutional if facts known or
assumed preclude the assumption that there is
rational basis.​[STRONG PRESUMPTION OF
CONSTITUTIONALITY]
- Got rid of the 2nd part of Lochner (where the court
said the state can restrict the right but only for reasons
the court will judge).
- Now we use rational basis.​
- If there’s a rational basis for the reason behind the law,
that’s enough.
- SCOTUS’ job is just to make sure there is a
legitimate basis for the law, and if there is, it’s
good.
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SC doesn’t have to agree w/ it or make sure the
reason is actually correct.​
Challenger bears the burden of proof in showing
there’s no rational basis.​
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Note:
- Footnote 4 opens up the possibility of strict scrutiny
for racial classifications.
- This footnote is the rational for why, even after the
post-1937 cases, the court still analyzes laws under
strict scrutiny.
Williamson v. Lee Optical Products Co. (U.S. 1955)
- Facts:​
- Law said if you’re not an optometrist/ophthalmologist, you
can’t fit lenses or duplicate/replace the frames for the lenses
w/o authority from a licensed doctor.
- Opticians couldn’t fit lenses w/o prescription from the doctors.​
- Holding:
- Law is constitutional.​
- Reason to enact the law: health and safety.
- Means: not allowing opticians to fit glasses. ​
- Takeaway:​
- Court abandoned 3rd prong of Lochner. Court will let the
legislature decide if there’s a good enough reason to enact the
law, and they can decide the means to accomplish the goal as
long as it’s rational.​
- Rational basis replaces “purpose must be closely related to the
goal” – Lochner​
- Reasonable connection that people w/ more experience do a
better job of fitting glasses. ​
- It is enough that there is an evil at hand that needs correction
(unfit glasses) - does not have to be the best/perfect way to fix
this issue … just needs a rational basis for correction ​
Equal Protection
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14th Amendment
- “No State shall . . . Deny to any person within its jurisdiction equal protection of the
laws.”
Beginnings
- Brown v. Board of Education (U.S. 1954)
- Brown really started the conversation in the Supreme Court about how useful
the Equal Protection Clause was to combat “invidious discrimination for
safeguarding fundamental rights.”
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Bolling v. Sharpe (U.S. 1954)
- “Discrimination may be so unjustifiable as to be violative of due process.” – CJ
Warren essentially saying that although the 5th amendment (which applies to
the federal government) has no express equal protection clause, invidious
discrimination violates the 5th amendment’s due process clause
E.P. Framework
1. What is the classification of the law?
- 2 ways to establish:
a) On the face of the law
b) Facially neutral but discriminatory effect
2. What is the appropriate level of scrutiny?
- Rational Basis
- Intermediate
- Strict
3. Does the government action meet the level of scrutiny?
Protection of Fundamental Rights Under E.P.
- Skinner v. Oklahoma ex rel. Williamson (U.S. 1942)
- Facts:
- Oklahoma Habitual Criminal Sterilization Act requires sterilization for
individuals convicted 3+ times of crimes involving moral turpitude
- Holding:
- Law is unconstitutional in violation of the Equal Protection clause
- Discriminated against the fundamental right to procreate
- Takeaway:
- Marriage and procreation are rights “fundamental to the very
existence and survival of the race.”
- Note:
- Striking a law under the equal protection clause only means that the
government may not discriminate in its application of certain policies .
. . It does not mean the government is prohibited from applying those
policies universally
- The Court sometimes looks to the EP clause to protect fundamental
rights, because using the DP clause looks a little bit like Lochner
Rational Basis
- The Test
- Gov't needs to have a reasonable/rational basis for the law​
- Means must be rationally related to the goal​
- Deferential standard to the govt.​
- Challenger bears burden​
- Law will probably pass rational basis​
- All laws must at least pass this baseline if you aren’t using strict/intermediate​
- BUT – the law can’t be based on ANIMUS (Moreno & Cleburne)
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Cases in which Laws are Deemed Arbitrary and Unreasonable
- U.S. Department of Agriculture v. Moreno (U.S. 1973)
- Facts:
- Food stamp program looks to household to establish eligibility. ​
- Holding:
- Law unconstitutional under Rational Basis Review
- Analysis:
- Apply rationality test – court struck down food stamps
provision limited to “households” of only related people
(wanted to prevent hippie communes)​
- Congress “wanted” to raise levels of nutrition in low
income houses ​
- Express congressional purpose of excluding an
unpopular group (hippies) is not a legit gov’t interest ​
- Underinclusive because it's not reaching everyone
who may need it ​
- City of Cleburne, Texas v. Cleburne Living Center, Inc. (U.S. 1985)
- Facts:
- City denied a permit for the operation of a home for
individuals with mental disabilities.
- Appeals court struck the law under EP clause, finding that
mental disability is “quasi-suspect,” thus subject to a level of
scrutiny greater than rational basis.
- Holding:
- Mental disability is not quasi-suspect, thus the conduct is only
subject to rational basis
- There is not enough commonality in the community – some
folks are significantly disabled, and others are much less so
- National and state legislatures consistently seek to protect the
community, so (1) there must be room for governments to
decide what forms of protection are best, and (2) the
community does not lack representation or political power
- The city’s ordinance fails rational basis review, and thus
violates the EP Clause
- The city’s only reason for prohibiting the permit is “negative
attitudes, or fear, unsubstantiated by factors which are
properly cognizable in a zoning proceeding”
- Fear that others will harass the occupants of the home are not
related to any gov’t purpose
- Public safety fear of floods that are just as likely to impact any
structure on the land at issue
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There is no reason to cap the number of occupants in the
home when occupants that are not disabled would not be
subject to occupancy limits
- Takeaway: (from Cleburne and Moreno)
- policies based on irrational prejudice, or that a gov’t enacts to
harm politically unpopular groups, even if those groups do not
belong to a protected class, fails rational basis review
Classifications Based on Race and National Origin
- Race Discrimination and Slavery Pre-13th and 14th Amendments
- The Constitution was written to protect slavery.
- SCOTUS consistently protected slavery and the rights of slaveowners
during the almost the entire first century of the republic.
- State high courts protected slavery.
- Throughout the 18th and early-to-mid 19th century, western expansion
posed a new question: would the growing American empire continue to
enshrine slavery in its new jurisdictions?
- That question bubbled all the way to SCOTUS in the 1850s, when
Dred Scott and a slaveowner went to Illinois.
- The slaveowner died, and the administrator of his estate tried
to say Scott was not a free man, even though he resided in a
free state.
- Dred Scott v. Sandford (U.S. 1857)
- Facts:​
- Missouri Compromise - Congress admitted Missouri as a slave
state, but prohibited slavery in the territories north of a certain
latitude.
- Scott was a slave owned in Missouri by Emerson and was
taken into Illinois, a free state.
- Scott sued Sanford in federal court, based on diversity of
citizenship, and claimed that his residence in Illinois made him
a free person. ​
- Holding:​
- Court held slaves (freed slaves & their descendants) were not
citizens and could not invoke federal court diversity of
citizenship jurisdiction. ​
- Takeaway:​
- 14th amendment overturns dred scott- 1st clause overturns itall persons born or naturalized in the U.S. and subject to the
jurisdiction therof are citizens of the U.S. and of the state
wherein they reside. ​
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Strict Scrutiny for Discrimination Based on Race and National Origin
Proving the Existence of a Race or National Origin Classification
- Race and National Origin Classifications on the Face of the Law
- Race-Specific Classifications that Disadvantage Racial Minorities
- Korematsu v. United States (U.S. 1944)
- Facts:​
- Placed Japanese Americans in camps out of
fear of disloyalty during the World War. ​
- Holding:​
- Court upheld the constitutionality of the
evacuation of Japanese Americans, racial
classification allowed because it was an
emergency- a time of war. ​
- Takeaway: ​
- Current justices feel this case was wrongly
decided.​
- It was never officially overruled but Trump v.
Hawaii claims to have overruled it. ​
- First time court articulates the idea of strict
scrutiny.​
- Racial Classifications Burdening Both Whites and Minorities
- Loving v. Virginia (U.S. 1967)
- Facts:​
- The Lovings, a black woman and white man,
got married in DC. They returned to Virginia &
were charged w/ violating Virginia’s
miscegenation laws. They were banned from
Virginia for 25 years.​
- Holding:​
- Virginia law is unconstitutional under the 14th
amendment.​
- Takeaway:​
- Court rejects the equal application test urged
by the VA​court
- Classified based on race - fails strict scrutiny
test​
- Palmore v. Sidoti (U.S. 1984)
- Facts:​
- Palmore & Sidoti divorced. Mother got child
custody. Father wanted custody b/c mom was
living w/ a black man she married.​
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Lower court sided w/ father – society will
disapprove, will negatively impact daughter
(teasing/treated poorly)​
- Holding:​
- Taking away a child from custody of mom b/c
she was living w/ and married a black person
violates the EPC.​
- Takeaway:​
- Effects of racial prejudice can’t justify a racial
classification that removes a child from
custody of the mother.​
- Constitution cannot control private prejudices
but also cannot give them effect.
Laws Requiring Separation of the Races
- Plessy v. Ferguson (U.S. 1896)
- Facts:​
- Louisiana law required railroad companies to
provide separate but equal accommodations
for whites and blacks, the law required there to
be separate coaches, divided by a partition for
each race.
- Plessy, a man who was 7/8th Caucasian,
refused to leave the railroad car assigned to
whites. ​
- Holding:​
- The Supreme Court upheld laws that
mandated that blacks and whites use separate
but equal facilities. ​
- Takeaway:​
- Court draws a distinction of social equality and
political equality. ​
- Political equality is what the 14th amendment
is about- participation in government, using
the courts, before government you have to be
equal. ​
- In terms of society, beyond government, 14th
amendment does not guarantee social
equality- who you sit next to on the train,
schools.​
Initial Attack on “Separate but Equal”
- Between 1938 and 1954, SCOTUS slowly started to chip away
at the separate but equal doctrine
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Most of these cases dealt with states’ failures to
provide equal educational opportunities to black
students (oftentimes in law school)
- Missouri ex rel. Gaines v. Canada (1938)
- SCOTUS found denying admission to black
law students was unconstitutional
- Missouri argued it provided equal opportunity
because it paid for black students to attend
out-of-state law schools, but SCOTUS said the
equal protection inquiry looks at what the
state itself provides, not at what other states
provide
- Sweatt v. Painter (1950)
- SCOTUS ordered that U of Texas Law School
had to admit a black student
- Court did not review separate but equal, and
instead said that the Texas law school that
previously admitted black students was not
equal to U of Texas
- McLaurin v. Oklahoma State Regents (1950)
- SCOTUS said that once black students were
admitted to previously all-white schools, those
schools could not segregate facilities
Brown v. Board of Education (U.S. 1954)
- Facts:
- Segregation of white and black children in
educational institutions
- Takeaways:
- Separate but equal inherently unequal within
the framework of the 14th amendment
- Plessy was wrongly decided; separate but
equal is unconstitutional
- Rationale:
- Even where all black schools are equal in terms
of tangible factors, intangible factors prevents
blacks from equal educational opportunities. In
particular, feeling of inferiority . . . Separate
but equal is inherently unequal
- Relied on expert opinions
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Facially Neutral Laws with a Discriminatory Impact or with Discriminatory
Administration
- The Requirement for Proof of a Discriminatory Purpose
- Washington v. Davis (U.S. 1976)
- Facts: ​
- Test 21 was a test used in order to become a
cop in DC.
- African Americans disproportionately fail.
- Davis said this prevents African Americans
from becoming cops.
- He didn’t claim purposeful discriminatory acts,
but only that the test has a discriminatory
impact in screening out African Americans. ​
- Holding:​
- The test was not unconstitutional.​
- Takeaway:​
- Must be proof of discriminatory purpose for
facially neutral law to get strict scrutiny.
- Impact alone isn’t enough.​
- Here, no purpose to discriminate.​
- McCleskey v. Kemp (U.S. 1987)
- Facts:
- D sentenced to death after 2 armed robberies
and murder of white cop.
- D argued that Georgia’s capital sentence
structure was administered in racially
discriminatory manner – in violation of 14th
amendment (i.e., disproportionate impact on
blacks).
- Holding:
- Death penalty imposition is constitutional
- Takeaway:
- D must prove discriminatory purpose.
- Discriminatory purpose = decision-maker
picked a course of action b/c of, not merely in
spite of, the adverse effects on a group.​
- D offered no evidence that state’s DP law was
enacted because of some anticipated racially
discriminatory effect
- City of Mobile v. Bolden (U.S. 1980)
- Facts:
- Class action suit alleging that city’s electoral
system violated 14th and 15th Amendments.
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Electoral system in City of Mobile
commissioners were elected by entire city,
making it more difficult for geographical
concentrated constituency to elect a
representative of their interests (e.g., never
was there a black commissioner elected).
- Holding:
- No violation of 14th or 15th amendments.
- Takeaway:
- Racially neutral state action is unconstitutional
only if motivated by discriminatory purpose.
- Was state’s purpose to invidiously minimize
voting potential of racial/ethnic minorities?
- No
- Past discrimination does not condemn
current state action
Is Proof of a Discriminatory Effect Also Required?
- Palmer v. Thompson (U.S. 1971)
- Facts:
- City of Jackson, Mississippi operated public
pools – 4 for whites, 1 for blacks.
- City refused to desegregate pools.
- City, instead, closed the pools.
- P brought suit to reopen pools on
non-segregated basis.
- Takeaways:
- Closing of all public swimming pools clearly
done to avoid integration does not violate EP,
because (i) government has no affirmative
duty to operate pools and (ii) city not giving
money to white private pools
- Dissent:
- Closing violates EP because animus obviously
behind closing
- Rule:
- Proper violation of state action based on racial
classifications are proven by both
discriminatory purpose and impact.
- Summary
- Need discriminatory purpose AND effect to get
heightened scrutiny​
- Effect alone is not enough – Washington​
- How do we know if there’s a discriminatory effect?​
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- Purpose alone is not enough – Palmer ​
- How do we know if there’s a discriminatory purpose?​
How is a Discriminatory Purpose Proven?
- Personnel Administrator of Massachusetts v. Feeney (U.S.
1979)
- Facts:​
- Veteran’s preference statute allegedly
discriminates against women.
- Under statute, all veterans who qualify for civil
service positions are considered for
appointment before non-veterans.
- Preference operates to advantage of men b/c
more men are veterans.​
- Holding:
- No discriminatory purpose, effect wasn’t
enough.
- But satisfies Rational Basis Review. ​
- Takeaway:​
- Showing discriminatory purpose requires proof
that the govt desired to discriminate.
- It’s not enough to prove the govt did
something w/ knowledge of discriminatory
consequences.​
- Discriminatory purpose = decision-maker
picked a course of action b/c of, not merely in
spite of, the adverse effects on a group.​
- Here, legislators knowing women would be
hurt wasn’t enough; they needed to pass the
law b/c it was going to hurt women. Statute
passed in spite of hurting women, not because
of.​
- Classification: Veteran's status ... Review:
Rational Basis …​
- Village of Arlington Heights v. Metropolitan Housing
Development Corp. (U.S. 1977)
- Facts:​
- Metropolitan Housing Development Corp.
applied to Village of Arlington Heights for
rezoning of a parcel from single-family to
multiple-family classification.
- MHDC wanted to build townhouses for low
income tenants.
- Village denied rezoning request, MHDC sued.​
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Holding:​
- No proof of discriminatory purpose motivating
Village’s decision.​
- Takeaway:​
- Arlington factors help you determine whether
there is discriminatory purpose​:
- If the impact “bears more heavily on one race
than another” that may be an important
starting point
- If “the historical background of the decision . . .
reveals a series of official actions taken for
invidious purposes”
- If “the specific sequence of events leading up
to the challenged decision” highlight a
significant change
- If there is a “departure[] from normal
procedural sequence”
- If there is a “substantive departure . . .
particularly if the factors usually considered
important by the decisionmaker strongly favor
a decision contrary to the one reached”; or
- If “the legislative or administrative history . . .
[show] contemporary statements by members
of the decision-making body, minutes of its
meetings, or reports.”
Racial Classifications Benefiting Minorities
- Affirmative Action is probably constitutional law’s most controversial topic
- Three key questions:
(1) What level of scrutiny should be used for racial classifications
benefiting minorities?
(2) What purposes for affirmative action programs are sufficient
to meet the level of scrutiny?
(3) What purposes for affirmative action programs are sufficient
to meet the level of scrutiny?
- University of California v. Bakke (1978)
- UC Davis set-aside 16 slots in entering class of 100
- One of the first instances of determining what level of scrutiny
should apply to racial classifications benefitting minorities
- No majority opinion
- Fullilove v. Klutznick (1980)
- The Court upheld a federal law that required that 10 percent of
federal public works monies given to local governments be set
aside for minority-owned businesses.
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Concluded that the affirmative action program was justified to
remedy past discrimination but said that the “opinion does not
adopt, either expressly or implicitly, the formulas of analysis
articulated in cases such as University of California Regents v.
Bakke.”
- Still no consensus, but dissent argued for strict scrutiny
- U.S. v. Paradise (1987)
- Upheld a federal court order that was designed to remedy
proven intentional discrimination by the Alabama Department
of Public Safety and mandated that a qualified black had to be
hired or promoted every time a white was hired or promoted.
- Strict scrutiny becomes apparent standard —> found that “the
relief ordered survives even strict scrutiny analysis”; “the
race-conscious relief at issue here is justified by a compelling
interest in remedying the discrimination.”
- Wygant v. Jackson Board of Education (1986)
- Supreme Court declared unconstitutional a city’s attempt to
achieve faculty diversity in its schools by laying off white
teachers with more seniority than black teachers who were
retained.
- “…even if prior discrimination was proven, the layoff provision
was not a constitutionally acceptable means of achieving even
the compelling purpose of remedying prior discrimination.”
The Emergence of Strict Scrutiny as a Test
- Richmond v. J.A. Croson Co. (U.S. 1989)
- Facts:
- City of Richmond adopted Minority Business
Utilization plan that required contractors to
subcontract at least 30% of business of Minority
Business Enterprises. Croson sued when they lost
their contract w/ city for failing to abide by plan.
- Issue:
- Is set-aside constitutional?
- Takeaways:
- Unconstitutional
- Strict scrutiny appropriate standard (“narrowly tailored
to accomplish a compelling state interest”)
- No direct evidence exists of particularized past
discrimination
- Stevens Concurrence:
- Agrees w/ equal opportunity afforded by 14A. “In my
view there is only one circumstance in which the
States may act by race to “undo the effects of past
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discrimination”: where that is necessary to eliminate
their own maintenance of a system of unlawful racial
classification.
- Marshall Dissent:
- There is sufficient evidence (i.e., Richmond being
former capital of confederacy and notoriously known
for a history of discrimination).
Arguments For and Against Strict Scrutiny
- For:
- Justice Thomas: “In my mind, government-sponsored racial
discrimination based on benign prejudice is just as noxious as
discrimination inspired by malicious prejudice. In each
instance, it is racial discrimination, plain and simple.”
- Constitution requires gov’t to treat each person as an
individual w/out regard to his or her race; strict scrutiny is used
to ensure that this occurs
- All racial classifications stigmatize and breed racial hostility
- Against:
- There is a significant difference between the government
using racial classifications to benefit minorities and the
government using racial classifications to disadvantage
minorities.
- Achieving social equity requires affirmative action in, generally,
American history; applying strict scrutiny would impede such
remedial efforts because most programs don’t survive strict
scrutiny
The Use of Race to Benefit Minorities in College and University Admissions
- Grutter v. Bollinger (U.S. 2003)
- Facts:
- University of Michigan Law School gave great weight
to race of applicant in admissions decisions, in
addition to standard criteria (academic and
non-academic). White resident sues school for their
denial (3.8 GPA and 161 LSAT).
- Issue:
- Is using race as a factor constitutional?
- Takeaway:
- Yes. Student body diversity is a compelling state
interest.
- Deference given to admissions department.
- Uses narrowly tailored means to accomplish its
purpose because no quota system is in place -- rather,
a holistic view of applicant and reasons are considered.
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However, admissions should stop race considerations
when past discrimination is remedied
- Ginsburg, Concurrence:
- Policy is fine, but means should be provided to phase
out policy when race discrimination ceases to be
problematic
- Scalia, Concurrence and Dissent:
- Majority is right in this instance but holding could be
overly-fact specific and difficult to apply in future
cases
- Thomas Dissent:
- Policy is enacted only to further own elitist goals, not
to truly remedy social problem.
- Policy does not remedy past effects of discrimination
of minorities
Gratz v. Bollinger (U.S. 2003)
- Facts:
- 2 white ppl applied to the University of Michigan
undergraduate program and were denied. Diverse,
minority students were allocated higher points (20) if
a member of underrepresented class. Ps filed suit re:
unconstitutionality of policy.
- Issue:
- Is using race preference in undergrad admissions
constitutional?
- Takeaway:
- No. Not narrowly tailored to achieve compelling gov’t
interest.
- Race is elevated factor while other factors are given
extremely lower weight.
- O’Connor’s concurrence:
- Difference b/t Grutter and Gratz —> The law school’s
policy required an individual evaluation of each
applicant and permitted the consideration of race as
merely one factor given equal weight among other
factors.
- Here, the admissions policy has the effect of making
the admission of minority students automatic due to
its assignment of twenty points to these students.
- Ginsburg Dissent:
- Greater deference should be given to school’s
admissions policy; admissions policies designed to
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promote equality should not be analyzed under strict
scrutiny
Fisher v. University of Texas at Austin (U.S. 2016)
- Facts:
- Top 10% students granted automatic admission to
university to all students from TX high schools in top
10% of their classes.
- Few yrs later, additional program was granted - race
was one factor considered in admitting portion of
entering class that was not admitted under Top 10%
students. P sued school alleging 2nd program was
unconstitutional.
- Issue:
- Is consideration of race in admissions reviewed under
strict scrutiny?
- Takeaway:
- Yes.
- Strict scrutiny applied - narrowly tailored to attain
diversity.
- Race cannot be defining feature of application.
- If non-racial approach could achieve same outcome,
university cannot consider race.
- Here, other approaches have failed (i.e., considering
new scholarship programs, new regional admissions
centers, increased recruitment budget, etc.)
- Alito Dissent:
- University should not be permitted to choose which
minorities are favored and which are disfavored —
favoring black and Hispanic students over others, like
Asians.
Gender Classifications
- The Level of Scrutiny
- Long history of discrimination against women in every aspect of society
- Many factors that explain the use of strict scrutiny for racial
classifications also apply to gender discrimination
- Ginsburg writes that although the post-Civil War amendments were
added to the constitution, women were not accorded the vote
- As a result, gender classifications, like race and national origin, are
usually based on stereotypes rather than important government
interests
- Sex, like race and national origin, are immutable characteristics
- Should have same level of scrutiny applied
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Intermediate scrutiny argument —> historical: framers of 14A meant to
outlaw only race discrimination; biological: biological differences b/t
men and women make it more likely that gender classifications will be
justified and strict scrutiny not needed
Early Cases Approving Gender Discrimination
- Bradwell v. The State of Illinois (1872)
- Upheld an Illinois law that prohibited women from being
licensed to practice law.
- Reject argument that practicing law was a “privilege” of
citizenship protected under the Privileges or Immunities
Clause of the Fourteenth Amendment.
- “Destiny of women is to fulfill noble and benign offices of wife
and mother.”
- Minor v. Happersett (1875)
- Practicing law was a “privilege” of citizenship protected under
the Privileges or Immunities Clause of the Fourteenth
Amendment. Of course now revered by 19A in 1920
- After Lochner era, S.C. aggresivelyy protected freedom of
contract and invalidated many regulatory laws for violating
right to vote.
- However, Court more willing to uphold such laws if women
were being regulated. All of which were based on stereotypes.
- Lochner v. N.Y.
- Although Lochner v. New York declared unconstitutional a
maximum hours law for bakers,115 three years later, in Muller v.
Oregon, 208 U.S. 412 (1908), the Supreme Court upheld a
maximum hours law for women employed in factories.
- Radice v. N.Y. (1924)
- The Court upheld a state law that prohibited women from
being employed in restaurants between 10:00 p.m. and 6:00
a.m.
- Goesaert v. Cleary (1948)
- The Supreme Court upheld a Michigan law that prevented the
licensing of women as bartenders unless the woman was the
wife or daughter of a male who owned the bar where she
would work
- Hoyt v. Florida (1961)
- The Court upheld a state law that made men eligible for jury
service unless they requested and were granted an exception,
whereas women were automatically exempted unless they
waived it and expressed a desire to be included on the jury
rolls
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The Emergence of Intermediate Scrutiny
- Reed v. Reed (U.S. 1971)
- Facts:
- Law in Idaho imposed a mandatory preference for
selecting men over women for administering an
estate.​
- Takeaways:
- The 14th Amendment does not prohibit different
treatment of different groups, but it does prohibit
different classifications unrelated to a government
goal. ​
- Any such classification may not be arbitrary and must
be rationally related to the goal.​
- While the goal of promoting efficiency in estate
resolution may be legitimate, eliminating a class of
potential participants is not chill under the EPC.​
- Court purported to use rational basis review, but their
reasoning was characteristic of intermediate scrutiny
→ intermediate scrutiny emerged
- Frontiero v. Richardson (U.S. 1973)
- Facts:
- Congress passes a law that increased the amount of
support to servicepeople's' families. Under the law, a
man could claim his wife as a dependent but a women
had to prove that her husband depended on the
servicewomen's income to be claimed as a dependent.​
- Holding:
- A plurality acknowledged that, like racial minorities,
women have dealt with a history of discrimination.
Furthermore, that sex is an immutable characteristic
and has no relationship to an individual's capabilities.​
- Here, the government fails to produce evidence that
this policy saves time or promotes efficiency that
justify the policy.​
- Thus, the law unfairly discriminates between similarly
situated servicewomen and servicemen.​
- Powell concurrence:
- The court is right in its decision, but they improperly
applied strict scrutiny to all cases involving gender
discrimination. (this is answered in Craig)​
- Craig v. Boren (U.S. 1976)
- Facts:
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OK law prohibited the sale of beer that was over 3.2%
to men under the age of 21 but allowed women to
purchase said beer. (OK still has super weird ABV laws
fun fact).​
- Holding​:
- Law does not violate EP
- OK offered evidence that 2% of males in the age
group were arrested for drunk driving, compared to
.18% of women, to prove that this law was
substantially related to road safety.​
- Rule:
- The Court creates intermediate scrutiny: a
classification must be substantially related to the
achievement of an important governmental purpose.
United States v. Virginia (U.S. 1996)
- Facts:
- VMI set up a women's version of VMI called VWIL in
response to a court case that challenged VMI's male
only policy.​
- Virginia argues that having single sexed schools
promotes the diversity of higher education in VA, this
is rejecting on the grounds that VMI never existed to
promote diversity. The State further argues that the
intense training and psychological treatment is
something that would have to be changed if women
were accepted and it's that quasi-hazing that is VMI's
essential character.​
- Theses justifications are rejected since this is the very
justification that was used to discriminate against
women. Also, although many women may not be able
to meet these standards, there are definitely some
that could.​
- Also, the creation of a substandard version of VMI,
VWIL, does not justify the VA's action. In many senses
it’s a completely different "alternative" that doesn’t
give graduates the same and equal experiences that
they could have gotten at VMI.​
- Holding:
- The Court holds that this fails intermediate scrutiny as
the government has not provided an exceedingly
persuasive justification (new language).​
- Scalia dissent:
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The Court completely disregards the tradition and
history that is associated with having an all-male
institution. Furthermore, that the people should decide
whether VMI should allow women and it is not up to
the courts.​
- Intermediate Scrutiny Standard
- To pass intermediate scrutiny, the challenged law must:​
(1) Further an important government interest; and ​
(2) Must do so by means that are substantially related to
that interest.​
- What type of laws will be analyzed under Intermediate
Scrutiny? ​
- Statutes which discriminate based on gender​
- Statutes which classify based on illegitimacy (i.e.
children born out of wedlock) ​
Proving the Existence of a Gender Classification
- 2 ways of proving gender discrimination:
(1) Classification can exist on the face of the law - draws a distinction b/t
people based on gender
- E.g., Craig v. Boren -- involved a facial gender classification in
that the Oklahoma law provided that women could buy
low-alcohol beer at age 18, but men could not until age 21.
(2) If facially gender neutral, than by proving discriminatory impact and
discriminatory purpose
- E.g., Personnel Administrator of Massachusetts v. Feeney -the Supreme Court upheld a state law that gave a preference
in hiring to veterans even though it had a substantial
discriminatory impact against women.
- When is it Discrimination?
- Geduldig v. Aiello (U.S. 1974)
- Facts:
- CA disability insurance system does not cover
disabilities suffered by pregnant women. System pays
benefits to persons in private employment
temporarily unable to work. P brings suit arguing
program violated EP clause.
- Issue:
- What level of scrutiny applies?
- Holding:
- Rational basis review. Doesn’t rely on state funding CA chose to include most employment-related
disabilities but not all. Program does not discriminate
against all women; divides ppl into pregnant persons
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who are not covered and non-pregnant who are
covered, both involve men and women. Program
rationally related to state’s interest in maintaining
program’s self-sustainability.
- Dissent:
- By singling out for less favorable treatment a
gender-linked disability peculiar to women, California
is essentially creating a gender-based double-standard
for disability insurance coverage. California imposes a
limitation upon the disabilities for which women
workers can receive benefits, while men receive full
compensation for all disabilities suffered, including
those unique to their gender.
Gender Classifications Benefitting Women
- Gender Classifications Based on Role Stereotypes
- Orr v. Orr (U.S. 1979)
- Facts:
- Alabama required ex-husbands, but not ex-wives, to
pay alimony. Ex-wife sues ex-husband for his failure to
pay alimony. ​Alabama states two justifications for this
law, 1). To provide for needy spouses and 2). To
compensate women for past discrimination in
marriage and divorce. ​
- Holding:
- Fails intermediate scrutiny
- The state’s justification do not justify the goal they are
trying to accomplish.​
- Every alimony is decided by a hearing officer to decide
what the payment is going to be, so the hearing officer
can just decide who is more in need.​
- The state may not use generalization about gender as
a proxy for determining need.​
- Mississippi University for Women v. Hogan (U.S. 1982)
- Facts:
- Men excluded from MUW School of Nursing​.
- Party seeking to uphold a statute that classifies
individuals on the basis of their gender must carry the
burden of showing an ‘exceedingly persuasive
justification’ for the classification.​
- Holding:
- Violates EP
- State made “no showing that women lacked
opportunities to obtain training in the field of nursing
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or to attain positions of leadership in that field when
the MUW School of Nursing opened its doors or that
women currently are deprived of such opportunities”​
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​Rule:
-
The burden is met only by showing that the
classification serves ‘important governmental
objectives and that the discriminatory means
employed’ are ‘substantially related to the
achievement of those objectives.
- It must be applied free of fixed notions concerning the
roles and abilities of males and females.
- Care must be taken in ascertaining whether the
statutory objective itself reflects archaic and
stereotypic notions.​
- A policy can be enacted to correct past discrimination
but only if such policy allow the disadvantage group to
"catch up."
- Here, the evidence show 98% of nurses were female
at the time and MWU's policies actually perpetuated
the stereotype that only women should be nurses. ​
Michael M. v. Superior Court of Sonoma County (U.S. 1981)
- Facts:
- CA statutory rape law that said men could only be
offenders and females only victims under it. The State
has a significant interest in preventing teen
pregnancies due to the significant emotional, physical,
and financial harm that could happen.​
- Holding:
- CA acted rationally in accomplishing its goals and this
doesn’t violate the 14th.​
- This law is fine because it deters males from engaging
in activity and there are limited risk to males. ​
- Stevens dissent:
- This law is not going to decrease teen sexual activity
and is not narrowly tailored to accomplish the goal.
The EPC requires that impartially to the genders and
women are equally guilty as men when this happens.​
- Note/Takeaway:
- Where the gender classification is not invidious and
realistically reflects the fact that the sexes are not
similarly situated in certain circumstances, a legislature
may provide for the special characteristics of women.
Outline - Constitutional Law - Fall 2020
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Rostker v. Goldberg (U.S. 1981)
- Facts:
- Court held that Congress acted within its constitutional
authority when it authorized the registration of men,
and not women, under the MSSA.
- Men and women, because of the combat restrictions
on women, were not similarly situated for purposes of
a draft or registration for a draft.
- Congress's decision to authorize the registration of
only men, therefore, did not violate the Due Process
Clause and the gender classification was not invidious.
- The exemption of women from registration was not
only sufficiently, but was also, closely related to
Congress's purpose in authorizing registration.​
- Issue:
- Did the MSSA violate the Fifth Amendment in
authorizing the President to require the registration for
the draft of males and not females?​
- Holding:
- No. The different treatment of men and women naval
officers reflects the demonstrable fact that male and
female line officers in the Navy are not similarly
situated with respect to opportunities for professional
service. ​
- In light of the combat restrictions, women do not have
the same opportunities for promotion as men, and
therefore, it is not unconstitutional for Congress to
distinguish between them.​
- Exemption of women did not violate the equal
protection clause under the Fifth Amendment b/c: ​
- #1: Congress did not act unthinkingly and its
decision was not the accidental byproduct of a
traditional way of thinking about women ​
- #2: women as a group are not eligible for
combat so the exemption of women was
closely related to the congressional purpose in
instituting registration for a draft ​
- Not invidious but realistically reflected the fact that the
sexes were not similarly situated.​
- Court gave deference to Congress with military and
under Craig this was an “most important gov’t interest” ​
- Note:
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Congress banned women in combat b/c of legal
construct here not b/c of biological differences like
Michael​
- Why is this analyzed under the 5th Amendment?
Gender Classifications Benefitting Women as a Remedy
- Califano v. Webster (U.S. 1977)
- Facts:
- Social Security Act benefits resulted in slightly higher
average monthly wage earnings for females over men.
- P brought suit against Califano, administrator of the SS
program, arguing that statutory scheme privileging
women was unconstitutional.
- Issue:
- Is there an EP Clause violation?
- Takeaway:
- No. Intermediate scrutiny standard applies.
- Purpose of SSA is to correct economic disparities
historically affected women in job force.
- Congress’ method is substantially related to achieving
purpose b/c provides direct economic benefits to
women who were primarily affected.
Classifications Benefitting Women Because of Biological Differences Between
Men
- Nguyen v. Immigration & Naturalization Service (U.S. 2001)
- Facts:
- A son was born outside the U.S. to unwed parents.
- The father was a US citizen and the son became a
lawful permanent resident.
- The son's claim to citizenship was also rejected.
- Statute imposed different requirements for a child's
acquisition of citizenship depending upon whether the
citizen parent was the mother or the father. ​
- Issue:
- Is the law unconstitutional for providing different
requirements for a child's acquisition of citizenship
depending upon whether the citizen parent was the
mother or the father?​
- Holding:
- No. For a gender-based classification to withstand
equal protection scrutiny, it must be established at
least that the challenged classification serves
important governmental objectives and that the
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discriminatory means employed are substantially
related to the achievement of those objectives.​
The court found the requirement for a paternal
relationship, but not a maternal one, was justified by
two important governmental objectives. ​
#1: the importance of assuring that a biological
parent-child relationship existed. ​
#2: the determination to ensure that the child and the
citizen parent had some demonstrated opportunity or
potential to develop a relationship that consisted of
the real, everyday ties that provided a connection
between child and citizen parent. ​
The means adopted by Congress to further its
objectives substantially related to the facilitation of a
relationship between parent and child. ​
The difference between men and women in relation
to the birth process was a real one.​
Note:
- Equal protection does not forbid Congress to address
gender-related problems in a manner specific to each
gender. ​
Equal Protection Summary
(1) The government cannot classify without a sufficient justification​
(2) Classifications on the face of the law ​
- Levels of Scrutiny – Strict, Intermediate, Rational Basis​
(3) Facially neutral laws that classify based on discriminatory purpose/effect​
- Need to prove discriminatory effect AND purpose ​
Outline - Constitutional Law - Fall 2020