Constitutional Division and Allocation of Power: Federalism and Separation of Powers ● Article III and Federal Judicial Power ○ ○ Marbury v. Madison ■ The Supreme Court has the power of judicial review ● Art III SCOTUS original jurisdiction is both a floor and a ceiling ■ While Marbury has a right to the commission, SCOTUS cannot hear the case b/c SCOTUS does not have original jurisdiction in a mandamus case ● Article III does not permit Congress to grant SCOTUS original jurisdiction in mandamus cases ○ Section 13 of Judiciary Act of 1789 ● Marshall adopts viewpoint that Art III fonts of original SCOTUS jurisdiction are a ceiling ○ Art III grants SCOTUS the power to issue writs of mandamus in appellate cases ■ If there is a conflict between congressional statute and the Constitution, then Constitution must prevail and outweigh the statute ● SCOTUS must apply Article III over the Judiciary Act of 1789 ■ Marshall turns to merits of case first, then to jurisdiction ● Also issued judicial review of executive branch ○ NOBODY IS ABOVE THE LAW ■ U.S. is a gov’t of laws, and not men Martin v. Hunter’s Lessee ■ SCOTUS has power to exercise judicial review of state court interpretations of federal law ● VA Court of Appeals reversed SCOTUS’ rulings on remand ○ SCOTUS lacked appellate jurisdiction over decisions of a state court on federal law ● Why did VA think that SCOTUS lacked appellate jurisdiction over decisions of a state court? ○ Under their theory of federalism, the courts of each state may interpret federal law, and SCOTUS cannot overrule these interpretations ■ Co-equal sovereigns ■ Compact federalism (each state is its own independent sovereign) ■ What does SCOTUS say? ● Virginia courts are subordinate to federal courts on questions of federal law ○ Not a co-equal sovereign entity ● ○ Art III req’s that the federal court system MUST have jurisdiction over the entirety of judicial power ○ Some federal court needs to adjudicate on issue of federal law ● Need for uniformity in the law Cooper v. Aaron ■ State gov’t official may not ignore SCOTUS’ interpretation of the Constitution if they were not parties to the litigation that produced the interpretation ● Court’s interpretation of the Constitution is supreme law of the land ● All must adhere to SCOTUS interpretations of the Const, parties or not ○ Under Supremacy Clause, no gov’t actor can violate Brown ● Constitutional Limits on Judicial Power ○ ○ In order to be justiciable, a dispute must meet requirements ■ Political Question Doctrine ■ Congressional check on jurisdiction ■ Standing ■ Ripeness and mootness ■ Rule Against Advisory Opinions Political Question Doctrine ■ SCOTUS declines to hear certain cases to review challenged gov’t actions, on the ground that they were outside the province of judicial power ■ Has NOTHING to do with federalism ● All about separation of powers ■ Baker v. Carr ● 14th Amendment’s EPC makes legislative apportionment cases justiciable ○ b/f Carr, this was litigated as violation of Guarantee Clause ○ SCOTUS is going to issue decisions that are involved in politically charged situations ● Whether a case implicates non justiciability due to political question doctrine requires several factors ○ Whether there is a textual commitment in the Constitution of the issue to POTUS or Congress ○ Whether there are judicially discoverable and manageable standards for resolving question ○ Whether resolution call for policy decisions inappropriate for judicial branch ○ Whether resolution of question will express lack of respect for political branches ○ ○ Whether there is unusual need for adherence to a political decision that has been made ○ Whether there is potential for embarrassment from inconsistent resolutions from judicial branch & political branches ■ Nixon v. United States ● Senate impeachment trial process is a non-justiciable political question ○ Judiciary must take a hands-off approach to impeachment to not interfere with this “important constitutional check” ○ A textually demonstrable commitment to a coordinate branch of gov’t ■ Constitutional requirements of Senate impeachment trials are a ceiling ● Courts cannot add more requirements The Requirement of “Case” or “Controversy” ■ In Article III, courts are given one power - to adjudicate cases ● Hearing a case is how courts utilize power ■ Article III Case or Controversy Requirements ● Elements of a Case ○ Actual dispute between adverse litigants ○ Substantial likelihood that favorable ruling will have some effect ○ Presented in a suit instituted according to regular course of judicial procedure ○ If it’s not a case, then federal courts can’t hear it! ● Rule Against Advisory Opinions ○ Any abstract legal question that isn’t essential to deciding an actual case ■ A legal issue outside context of a case ○ Muskrat v. United States ■ Neither the legislative nor the executive branches can constitutionally assign to the judicial any duties but such as are properly judicial, and to be performed in a judicial manner. ■ SCOTUS doesn’t adjudicate disputes where litigants aren’t adversaries ■ It’s unconstitutional when Congress passes statute allowing suits against feds for these claims of land ● Ripeness ○ Gov’t policy has yet to be applied ○ An unenforced law or policy is ripe if P can establish both ■ Hardship (Probability that it will be enforced) (Significant magnitude of harm) ■ ● ● ● Sufficiently developed factual record Mootness ○ No longer a case ○ Parties are no longer adverse due to subsequent events ■ Law has been repealed, etc. Standing ○ Plaintiff must satisfy three requirements ■ Injury in fact ● Must be concrete and particularized ● Not conjectural or hypothetical ■ Causal relationship between injury and challenged conduct ● Injury can be fairly traceable to defendant’s conduct ■ Injury will be redressed by favorable decision ○ Allen v. Wright ■ Citizens do not have standing to sue a federal government agency based on the influence that the agency’s determinations might have on third parties ● One doesn’t have standing merely on the claim that gov’t is acting illegally ● Generalized grievance is insufficient ○ Lujan v. Defenders of Wildlife ■ Congress cannot authorize suits by persons lacking Article III standing ● Standing emanates from “case” or “controversy” ● Proper P - someone who is actually injured by gov’t policy ■ Causation + redressability also at issue ● Federal funding was only partial ○ Environmental damage would still ensue ■ Vindicating public interest is function of Congress and Executive branches Congressional Check on Jurisdiction ○ As a floor, “shall” indicates there MUST be a SCOTUS ■ There doesn’t have to be lower federal courts ■ Congress confers jurisdiction upon lower federal courts ● Congress is not req’d to grant lower federal courts the constitutional maximum of jurisdiction (not a floor; not a minimum) ○ Ex parte McCardle ■ ○ The Exceptions Clause confers on Congress plenary authority to deprive SCOTUS of appellate jurisdiction ● As long as SCOTUS hasn’t fully adjudicated a decision, Congress may remove appellate jurisdiction of SCOTUS in certain cases ● SCOTUS appellate jurisdiction = ceiling, not a floor Are there limits to Congress’ power to control jurisdiction of lower federal courts? ■ No meaningful limits ■ If Congress can refuse to create lower courts, than it follows that Congress can create them but refuse to confer full range of Art III jurisdiction upon them ● Article I and Legislative Powers ○ The Necessary and Proper Clause ■ McCulloch v. Maryland ● If an end is enumerated in the Constitution, then any reasonable means to achieve that end is within scope of the Constitution ○ Federal gov’t is supreme within sphere of action ○ All means do not have to be enumerated ● Means have to be”plainly adapted” to help achieve an end ■ But the ends do! ■ Enumerated powers imply subsidiary ones ● Rejected compact federalism espoused by Maryland ○ Gov’t proceeds directly through the people ● Necessary and Proper clause must link back to enumerated power ○ “Necessary” = appropriate, not indispensable or requisite ● Allowing states to tax the Bank would invert supremacy of national over the state gov’ts ○ The inferior cannot have the power to destroy the superior ● Two-part question analysis ○ Q1(ends): Is the end legitimate (enumerated)? ○ Q2(means): What means does the Constitution permit Congress to use in achieving a permitted end? ■ Any means that is “plainly adapted” to help achieve that end? ■ United States v. Comstock ● Criminal statutes can be enacted as necessary and proper means of regulating interstate commerce ○ ○ Regulating interstate commerce thru criminal statutes = constitutionally permissible ○ Congress has broad authority to enact criminal statutes, enact prisons, etc. b/c those are reasonable means of advancing enumerated power of regulating commerce ● Rational Relation Test ○ In determining whether N&P Clause grants Congress authority to enact a given statute, look to see whether statute constitutes a means that is rationally related to implementation of enumerated end. ■ Whether the means chosen are “reasonably adapted” to the attainment of a legitimate end ○ Is the means (federal statute) rationally related to advancing an enumerated power end? The Interstate Commerce Clause ■ The Early View ● Gibbons v. Ogden ○ Congress’ power to regulate commerce is expansive (prohibit, facilitate, etc.) ■ Congress is only barred from regulating intrastate commerce which does NOT affect other states ● Congress CAN regulate intrastate activity that affects other states ■ 10th Amendment does not truncate Congress’ commerce power (or any enumerated power) ○ State law is subordinate to federal law ● If Congress has power to regulate a subject, its power is plenary ○ If Congress has power to pass a statute, then they may choose any means it wishes(so long not expressly prohibited by Constitution) ○ Prescribe the rule by which commerce is governed ○ Only check on Congress’ commerce power is electoral politics ■ The Middle Years: Uncertainty and a Restrictive View ● United States v. E.C. Knight Co. ○ Congress may not use its Commerce Clause power to legislate purely local matters that have indirect effects on interstate commerce. ■ Cannot regulate effects of local activity on interstate commerce ■ Manufacturing is antecedent to commerce ● Direct vs indirect effects of intrastate activity ○ No mention of N & P Clause ■ ● ● ● Some means are not permitted under the Constitution ○ As-Applied challenge (specific scenario in which statute is applied is unconstitutional) ■ The case in E.C. Knightl Shreveport Rate Case ○ Congress has power to regulate intrastate commerce that has “close or substantial relation” to interstate traffic ■ Intrastate commerce that affects interstate commerce is allowable for Congress to regulate ● Congress regulating instrumentalities of interstate commerce ■ N & P Clause reappears Champion v. Ames ○ Since Congress has plenary power over the channels or facilities of interstate commerce, it may prohibit their use for any activity that it deems adverse to public health and welfare ■ N&P Clause reappears! ● Congress may choose as a means the prohibition of selling lottery tickets across state lines ○ 10th Amendment does not truncate ○ Whatever Congress finds immoral, it can ban via commerce clause powers ■ Congress can prohibit arranging the movement of articles of commerce ● Hoke v. U.S. ○ Congress may prohibit interstate movement of prostitutes for work ● Hipolite Egg v. U.S. ○ Congress may prohibit interstate shipment of food & drug items that contain “deleterious” ingredients ● Champion, Hoke, & Hipolite Egg ○ Court relies on N & P Clause Hammer v. Dagenhart ○ Congress cannot regulate even interstate commerce if the effect of that regulation is to control intrastate activity ■ How does SCOTUS distinguish this case from Champion, Hoke, and Hipolite Egg? ● ■ In those cases, the use of interstate transportation was necessary to accomplishment of harmful results ● Hammer doesn’t regulate transportation among the states, but aims to standardize labor conditions ■ There is no power vested in Congress to require the states to exercise their police power so as to prevent unfair competition ○ Means of prohibiting interstate shipping allowed by SCOTUS if the thing or person crossing state lines is immoral, but means is NOT ALLOWED if thing isn’t immoral ● Carter v. Carter Coal Co. ○ Congress has power to regulate only an intrastate activity’s direct effect on interstate commerce ■ 10th Amendment truncates enumerated powers ■ Manufacturing/Production distinct from distribution/transportation ● manufacturing/production = local activities ○ Emanates from E.C. Knight The New Deal and Beyond: An Expansive View ● NLRB v. Jones & Laughlin Steel Corp. ○ Congress has the power to regulate intrastate activities that potentially could have a significant impact on interstate commerce ■ Commerce Clause extends to labor relations ○ SCOTUS abandons direct vs. indirect rule ■ Adopts rule that Congress can use C.C. powers to regulate intrastate phenomenon that has “substantial effect” on IC ● United States v. Darby ○ The power of Congress under CC is plenary to exclude any article from interstate commerce subject only to specific prohibitions of the Constitution ■ Can prohibit interstate shipment of goods produced in violation of congressional statute (FLSA) ○ Exemplary of plenary powers doctrine ■ Power to regulate interstate commerce is expansive and only limited by specific prohibitions ■ Deferential treatment to legislative enactments ○ Overrules Hammer ● Wickard v. Filburn ○ ■ Congress has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on interstate commerce ■ “Aggregation Principle” ● “Taken together with that of many others similarly situated” ○ “Rational Basis” approach to reviewing exercises of Commerce Power ● Heart of Atlanta Motel, Inc. v. United States ○ The power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof which might have a substantial and harmful effect upon that commerce ■ Aggregation of segregated hotels impedes interstate commerce ● Substantial + harmful effects ● Katzenbach v. McClung ○ If operations of a restaurant including its practice has a direct and adverse effect on the free flow of interstate commerce, Congress has power to regulate under the Commerce Clause ■ Prohibition of race-based discrimination seen as means to facilitate commerce Recent Cases: New Limits - or Old? ● United States v. Lopez ○ Congress has authority to regulate local activity on the theory that, in the aggregate, it substantially affects interstate commerce only if that activity is “economic” in nature ■ Draws a line between what is national and what is local ○ 3 broad categories of activity that Congress can regulate under Commerce Clause ■ 1) channels of IC ■ 2) instrumentalities of IC ■ 3) activities that substantially affect IC ○ Is the thing being regulated “economic activity?” ■ If not, SCOTUS will no longer grant rational basis review ● United States v. Morrison ○ Congress may not regulate noneconomic, violent criminal conduct under Commerce Clause solely b/c the conduct, in the aggregate, effects interstate commerce ■ Doctrine post Lopez & Morrison ● ● ● ○ Intra-state economic activity ○ Rational basis deference Intra-state noneconomic activity ○ NO rational basis deference Gonzales v. Raich ○ Congress may regulate the production, distribution, possession, and consumption of marijuana under the CSA, so long as Congress’ means are rationally related to the objective ■ If you produce a commodity, you engage in economic activity (even if you don’t sell it) ● Doesn’t qualify as intra-state noneconomic activity ○ Scalia’s concurrence (relies on N & P Clause) ■ If you take away Congress’ power to regulate local cultivation, that would totally restrict Congress’ ability to construct scheme of regulation ● A means to a legitimate end ● National Federation of Independent Business v. Sebelius ○ The power to regulate commerce presupposes the existence of commercial activity to be regulated ■ Congress cannot compel commerce ○ How does Sebelius alter the C.C. Doctrine? ■ Depends if someone is active in a market ● If no, then no purchase mandates ● If yes, then revert to Lopez & Morrison distinctions ■ Some means appear to be off limits ● Sebelius doesn’t follow plenary power theory articulated in Gibbons ■ Congress can’t use N&P Clause powers if it would upset federalism The Taxing Power ■ Bailey v. Drexel Furniture Co. ● Congress cannot use their power to tax in order to regulate ○ Court focused on three reasons why tax functioned as a “penalty” ■ 1) exceedingly heavy burden ■ 2) scienter requirement ■ 3) tax enforced by Dept of Labor ● A regulation under the guise of a tax is improper use of taxing power and will be held invalid ■ United States v. Kahriger ● ○ Unless there are provisions extraneous to any tax need, courts are without authority to limit exercise of taxing power ○ Remedy for excessive taxation is in the hands of electoral politics, not the courts ○ As long as it produces revenue, it counts as a tax ■ National Federation of Independent Business v. Sebelius ● The Constitution does not guarantee that individuals may avoid taxation through inactivity ○ Labels are not dispositive to determine whether something is a tax or a penalty ○ Does not abandon Bailey approach ■ Still possible for Court to strike down taxes as “penalties” The Spending Power ■ Congress can spend money on matters unrelated to its express powers so long as the spending promotes the general welfare ● What that means is entirely within discretion of Congress ■ 3 interpretations of General Welfare Clause ● 1) a grant of authority that is separate from preceding provision that confers power to tax ○ Congress would have power to pass any legislation, as long as the regulation be in “general welfare” ● 2) a shorthand reference to enumerated powers that follow in Article I ○ Power to tax and spend only when in relation to enumerated powers ● 3) Congress permitted to spend for general welfare even if Congress could not achieve its desired objective pursuant to other enumerated powers (Hamiltonian view) ■ United States v. Butler ● The power to confer or withhold unlimited benefits by Congress is the power to coerce or destroy, which is deemed unconstitutional ● SCOTUS adopts Hamiltonian view of “tax & spend” for general welfare ● AAA taxing and spending is violation of 10th Amendment ○ Plan to regulate agricultural production = matter beyond powers to fed gov’t ■ South Dakota v. Dole ● Congress can condition receipt of federal funds by incentivizing states to enact policies, but cannot cross the line into coercion ○ 5-part test to determine limits of exercise of spending power ■ 1) must be in pursuit of general welfare ■ 2) must unambiguously condition receipt of funds ○ ○ ■ 3) conditions must be related to federal interest ■ 4) not prohibited by different part of Constitution ■ 5) financial inducements cannot amount to coercion ● Continues broad judicial deference to Congress’ judgment on taxing & spending powers that began in 1937 ■ National Federation of Independent Business v. Sebelius ● Exercises of the spending power cannot coerce states to adopt federal regulatory systems for themselves ○ Coerced states into accepting a federal policy by threatening to withhold all of their Medicaid funds State Immunity from Federal Regulation ■ National League of Cities v. Usery ● 10th Amendment is a limit on Congress’ power to apply federal standards to state gov’ts ○ Congress lacks authority pursuant to Commerce Clause to regulate the states in same fashion it regulates private actors ○ State immunity from federal regulation invariably looks to “traditional”, “integral”, or “necessary” nature of gov’t functions that are supposed to be in states’ purview ■ Garcia v. San Antonio Metropolitan Transit Authority ● The political safeguards of federalism is the principal limit on Congress’ ability to regulate the states ○ Overrules Usery ○ The states’ essential roles in selection of POTUS and the composition of Congress provide adequate protection for states’ interests from federal interference ● Electoral check is more potent to defend against federal encroachment than judicial restraints on fed gov’t power New York v. United States ■ The federal government may not compel the states to enact or administer a federal regulatory program ● Take Title provision is deemed coercive ○ Assume liability unless they adopt FEDERAL LAW standards ■ Choice is illusory ■ Congress cannot use enumerated powers to commandeer the states ● Commandeering - federal law commanding a state to change its law or to provide their own resources to enforce federal law ■ This is all a matter of political accountability ● The fed gov’t forcing states to take ownership of federal prerogatives is not allowable ○ ○ ○ ○ State officials will suffer electoral consequences for something federal officials did Printz v. United States ■ The federal government may not command the states’ officers to administer or enforce a federal regulatory program What may Congress do in anti-commandeering era? ■ Congress can use Spending Power to incentivize states to enact federal policy objectives ● Can’t be so coercive that it creates illusion of choice ○ New York, NFIB ● If it’s not so coercive, conditions will be upheld ○ South Dakota What may Congress not do in anti-commandeering era? ■ Commandeer state legislatures ● Require them to pass a law, use funds to coerce ■ Commandeer state executive branch officials ● Require them to enforce federal law ● Article II and Executive Power ○ Domestic Affairs ■ Unlike Article I, which purports to vest only legislative powers “herein granted” in Congress, Article II simply vests the “executive power” in POTUS ● This leaves open the question whether POTUS can rely on implied executive powers just like Congress relies on implied legislative powers ● Tough to define exact contours of “executive power” ■ Youngstown Sheet & Tube Co. v. Sawyer ● POTUS’ power must stem from either an act of Congress or from the Constitution itself ○ Does POTUS have implied powers, like Congress does? ■ No, there aren’t any implied powers POTUS possesses (seizing power not enumerated) ○ POTUS does not have inherent power to act, but instead is limited to those powers granted in the Constitution and by statute ● Concurring opinions - POTUS may have implied powers depending on circumstances, but what Truman did in this case is not authorized by the Constitution ○ Tripartite Framework by Justice Jackson: ■ 1)If Congress delegates power to POTUS, then POTUS’ acts = probably acceptable ● Only way it would be unconstitutional is if federal gov’t as a whole lacked power to act ■ ○ ○ 2) If Congress indicates no opinion, then decide on case-by-case basis ● “Zone of twilight” ■ 3) If POTUS acts against authorization of Congress, then POTUS’ acts are presumably unconstitutional ● If this involves unenumerated powers, then Congress’ thoughts are relevant Over time, Justice Jackson’s concurring opinion has been heavily cited and has overtaken majority opinion as main way to analyze executive authority in domestic affairs Foreign Affairs ■ Dames & Moore v. Regan ● Congressional consent to an executive action does not have to be explicit, and can instead be surmised from the character of Congress’ legislation, and Congress’ historical practices. ○ POTUS acted w/in 1st level of Justice Jackson’s Tripartite Framework ■ Congress implicitly endorsed POTUS’ actions ● International Claim Settlements Act of 1949 ■ Distinguished from Youngstown ● Congress didn’t endorse Truman’s actions with regard to steel seizures ● POTUS does have more leeway in foreign affairs, but SCOTUS still largely adhered to Youngstown’s scope of POTUS’ powers ■ United States v. Curtiss-Wright Export Corporation ● “The President is the sole organ of the nation in its external relations, and its sole representative with foreign affairs.” ● Delegation Doctrine ○ 1) delegated w/in specific issues ○ 2) intelligible principle (some constraint on POTUS’ authority) ● Congress did NOT delegate away its Article I powers to the Executive ○ POTUS has authority to deal with matter pertaining to foreign relations and foreign conflicts ○ If Congress had delegated away some of its legislative powers to POTUS, that would’ve been constitutionally suspect ■ Congress can’t delegate away its power of creating generally applicable rules ■ Zivotofksy v. Kerry ● POTUS alone has the Recognition Power ○ ○ ○ Congress cannot abrogate that power away from POTUS ■ Goldwater v. Carter ● As a practical matter, a POTUS may unilaterally withdraw from a treaty ○ This is a nonjusticiable issue (majority view of scholars) ○ Textual silence on abrogation of a treaty implies no Senate role ○ Effect of this action is “entirely external to the United States” ■ Deference must be given to POTUS Executive Privilege ■ What is it? ● NOT an enumerated power ● Allows POTUS to keep secret their communications with close advisors ○ Asserted when Congress is investigating executive actions and in judicial proceedings ■ United States v. Nixon ● Presidents do not have an inherent, absolute privilege over their confidential communications ● Nixon relies on theory of unitary executive ○ Nixon = head of Executive Branch, and as a result he cannot be ordered and commanded by a subordinate of the Executive Branch ○ SCOTUS rejects this view ■ POTUS cannot order around every member of Executive Branch ● Executive Privilege is not all-encompassing ○ Have to balance it against interests of the adversarial system and need for evidence in criminal prosecution ■ POTUS isn’t insulated from judicial subpoena simply because Executive Branch is independent branch of gov’t ■ POTUS doesn’t have absolute privilege over confidential communications in all realms ● Maybe in foreign communications, though? Executive Immunity ■ Nixon v. Fitzgerald ● POTUS has absolute immunity from civil liability for official acts ○ SCOTUS fails to adopt a qualified immunity for the presidency ○ Why can’t civil actions be seen as a check on the Presidency? ■ POTUS’ actions affect millions of people ■ ■ ■ ■ If POTUS has to face civil lawsuits stemming from official acts, it would serve as a disincentive structure to perform executive functions ○ Other checks are sufficient for presidential misconduct ■ Political checks (elections) ■ Impeachment ■ Congressional investigation ■ Negative press ■ Importance of historical stature Clinton v. Jones ● The doctrine of separation-of-powers does not require POTUS to be immune from civil actions arising out of his unofficial acts ○ Exemplifies a functionalist approach to executive immunity ■ Can only be immune from civil liability arising out of “official acts” pertinent to the Office ● SCOTUS does not buy argument that civil lawsuits will “engulf Presidency” and interfere w/ functioning of Executive Branch ○ Trial could proceed while Clinton was in office ■ District Court must evaluate management of case as it pertains to POTUS Trump v. Vance ● POTUS is neither absolutely immune from state criminal subpoenas seeking private papers nor entitled to heightened standard of need ○ If regular citizens must respond to subpoenas, so must POTUS ■ Prior POTUS’ have done same thing ○ Distraction not sufficient to confer absolute immunity ● No basis in law in subjecting state subpoenas to a higher standard than federal subpoenas ● Interest of conducting investigative procedures outweighs categorical immunity ○ POTUS still has protections at his disposal ■ Challenge subpoenas on applicable grounds ■ Explain a conflict between executive functions and judicial proceedings Trump v. Mazars USA, LLP ● In assessing whether a subpoena directed at POTUS’ personal information is “related to, and in furtherance of, a legitimate task of the Congress”, courts must perform a careful analysis that takes adequate account of separation of powers principles ○ There must be limits on congressional subpoenas to demand documents from POTUS ○ ● ● Congress MAY subpoena POTUS’ financial records if in furtherance of legitimate legislative purpose SCOTUS emphasizes the separation-of-powers dilemma inherent in this case ○ Have to factor institutional relationship between POTUS & Congress ○ Without limits on Congress’ subpoena power, Congress could exert “imperious control” over Executive Branch and aggrandize itself at POTUS’ expense ■ Disincentivizes negotiation and compromise 4-Part Test ○ Information requested not available elsewhere ○ Subpoena no more broad than necessary ○ Courts must scrutinize whether there is legitimate legislative purpose ○ Courts must scrutinize whether subpoena over-burdens POTUS’ time and energy ● Legislative Process and Separation of Powers ○ ○ Delegation of Legislative Power ■ Whitman v. American Trucking Association ● When conferring decision-making authority upon agencies, Congress must lay down an intelligible principle to which the person or body authorized to act is directed to conform. ● Why did SCOTUS find that the delegation was constitutionally permitted? ○ “Intelligible principle” rule ■ Statute rules something out ● EPA must evaluate cost considerations when making decisions ● SCOTUS affords Congress great leeway in reviewing cases challenging delegations of its authority ○ Functionalist approach to incentivize workable government ○ One consequence ■ Officials in Executive Branch have considerable power to make policy decisions Excluding POTUS from the Legislative Process ■ Immigration and Naturalization Services v. Chadha ● Legislative vetoes are exercises of legislative power, and they bypass the Constitutional requirements of bicameralism and presentment ○ Unconstitutional to legislate w/o bicameralism + Presentment ○ “Legislative Veto” is unconstitutional in nature ● Congress unilaterally altering legal rights of citizens ○ ○ “Legislative” in nature ● To make new law, the principles of Article 1, Sect. 7 must be met ○ SCOTUS adopts a formalistic approach in how Congress can check Executive Branch agency abuses ■ Constitution creates set form for law-making process, and any deviation must be unconstitutional ● Powell concurrence ○ What House did was adjudicatory in nature, and that’s why this is unconstitutional ■ Legislative Vetoes in general are OK Implications of Bicameralism and Presentment ■ Clinton v. New York ● There is no provision in the Constitution that authorizes POTUS to enact, amend, or repeal statutes. ○ ○ POTUS cannot amend legislation by essentially changing text of statutes ● Line Item Veto Act - POTUS enacting personal policy preferences ○ Another formalistic approach to making or amending law ■ Subject to Article 1, Section 7 limitations ● Scalia concurrence ○ Could be viewed as “decline to spend” power Congressional Control over Executive Officials ■ Two questions to ask ● 1) Who counts as an officer versus who is a mere gov’t employee? ○ Officer = somebody who has “substantial authority” ■ Policymaking discretion ● 2) Among officers, which are principal & which are inferior? ■ Lucia v. Securities and Exchange Commission ● The Securities and Exchange Commission’s administrative law judges are inferior officers of the United States, subject to the Appointments Clause. ○ Decisions subject to review by higher authority ● Congress cannot give appointment power to subordinates ● How much is Congress able to limit POTUS’ Appointments Power? ○ Can describe appointment process of executive employees ○ If the situation involves inferior officers, then there must be limits on congressional directives on Appts. Power ● SEC ALJ’s hold continuing office & wield “significant authority” and “extensive power” ■ ■ ■ ■ ■ ■ Myers v. United States ● Congress cannot interfere w/ POTUS’ removal of principal executive officers ○ Silence on removal doesn’t grant Congress right to interfere w/ POTUS’ removal powers ○ “Unitary executive” theory Humphrey’s Executor v. United States ● POTUS cannot unilaterally remove certain officers who engage in quasi-legislative or quasi-judicial functions ○ Myers involved “purely executive” officials ● There is a need to insulate these officials from political pressures ○ Maintain independence of some administrative agencies Bowsher v. Synar ● Congress cannot reserve for itself the power to remove officials that perform executive actions ○ Congress cannot delegate executive functions to legislative officials ○ Formalistic viewpoint expressed Morrison v. Olson ● Congress can insulate an executive branch officer from POTUS removal power if their function doesn’t impede POTUS’ ability to perform constitutional duties ○ Ultimate question is whether a removal restriction is “of such a nature that it impedes POTUS’ ability to perform constitutional duties ○ Congress can provide tenure protections to certain inferior officers w/ narrowly defined duties ● Morrison jettisoned distinction between “purely executive” & quasilegislative + quasi-judicial functions ○ Upholds statute that limited POTUS’ ability to remove independent counsel except for “good cause” ● Independent counsel = inferior officer ○ Has an superior to report to Free Enterprise Fund v. Public Company Accounting Oversight Board ● Congress’ ability to provide tenure protections to certain inferior officers is limited to strictly one level ○ Unconstitutional design when there’s two levels of tenure protections ○ POTUS unable to execute Art II functions ● “Take Care Clause” exemplified in POTUS’ policy preferences ○ Seamless operation of Executive Branch is necessary b/c presidency never adjourns Seila Law LLC v. Consumer Financial Protection Bureau ● Congress may not grant “for cause” removal protections to a single agency head ○ POTUS needs to be able to hold executive officers accountable by removing them from office ○ Humphrey’s Executor permits Congress to give for-cause protections to multi member body of experts ■ Not to single agency heads Constitutional Rights and Liberties ● Application of the Bill of Rights ○ ○ ○ Early History ■ Against whom or what do federal constitutional rights apply? ● State Action Doctrine ○ Constitutional rights apply against gov’t entities, not private actors ● Big Q: Which gov’ts are we referring to? ■ Barron v. Baltimore ● The Bill of Rights is a limitation on the exercise of power of the federal government and is inapplicable to state legislation. ● 5th Amendment’s Takings Clause applies to limit the federal gov’t ○ Imposes no limits on acts of state gov’ts ● Bill of Rights only applies to federal gov’t, not state gov’ts Privileges or Immunities ■ Slaughter-House Cases ● Privileges and Immunities of state citizenship may be expansive, but Privileges and Immunities of national citizenship is narrower ○ 14th Amendment P&I Clause prohibits states only from denying the narrower P&I of national citizenship Incorporation ■ Adamson v. California ● State failure to offer full protection against the right against selfincrimination does NOT violate 14th Amendment ● Rights to be incorporated to the states are rights “implicit in the concept of ordered liberty” ● Justice Black dissent ○ Argues for “Total Incorporation” of Bill of Rights to the states via DPC ■ McDonald v. City of Chicago ● The Second Amendment right is fully applicable to the States. ○ Incorporated through 14th Amendment DPC ○ right asserted is deeply rooted in our nation’s history ■ Sticking to SCOTUS incorporation precedents ● ● Selective Incorporation ○ 14th Amendment DPC incorporates only those rights which ■ Are implicit in OUR concept of ordered liberty ■ Essential to fundamental scheme of ordered liberty ■ Essential to fair & enlightened system of justice Substantive Due Process ○ ○ What does “liberty” mean in context of 14th Amendment DPC? ■ What are fundamental rights inherent in the clause? ■ What are constitutional rights? If there are any, how broad in scope are they? Substantive Due Process and Economic Liberty ■ Lochner v. New York ● States cannot burden the fundamental liberty to contract for one’s labor ● Concept of substantive due process embodied by this case ○ There is a substantive component to the “liberty” protected by the DPC that cannot be deprived regardless of the adequacy of the process provided ● SCOTUS substituting its policy judgments for that of the state legislatures in invalidating legislation posed to cure social ills ● SCOTUS sits as “decider” whether state police power is worth burdening an unenumerated fundamental right ○ If SCOTUS has recognized a right as fundamental, then it applies strict scrutiny ■ If not, then rational basis ● Lochner-era - SCOTUS majority skeptical of gov’t regulation ○ Use 14th Amendment to limit state police power ○ SCOTUS decides if legislative enactments are aimed at promoting general welfare and advancing the public interest ● post-Lochner era - heightened scrutiny for fundamental rights, rational basis for non-fundamental rights ■ Munn v. Illinois ● Unenumerated rights are read into the DPC of the 14th Amendment ○ Accept concept of substantive rights that are provided by DPC ● States may burden any 14th Amendment right only if its affected with the public interest ■ Allgeyer v. Louisiana ● SCOTUS strikes down state action as violation of DPC of 14th Am ○ First successful “liberty of contract” challenge ■ West Coast Hotel Co. v. Parrish ● ○ Minimum wage laws for women do not violate the Due Process Clause. ○ Beginning of rational basis deference to state legislative judgment on whether public interest is served ■ Fully withdraw from arbitrariness in liberty of contract cases ○ SCOTUS overturns Lochner & Adkins ■ State legislatures entitled to their judgment about social and economic affairs ● The essential limitation of liberty in general governs freedom of contract in particular ○ There is no fundamental right to liberty of contract ■ United States v. Carolene Products ● SCOTUS upholds a federal law prohibiting interstate shipment of filled milk ○ Narrower scope for operation of presumption of constitutionality ■ 1) enumerated fundamental rights (apply heightened scrutiny) ■ 2) state action that rigs political channels ■ 3) state action that burdens minorities and/or creates barriers to minority influence in normal political channels ● Prejudice against discrete & insular minorities ● Judiciary must protect them against majoritarian abuse ■ Williamson v. Lee Optical Co. ● A state law must be reasonably and rationally related to the health and welfare of the public to fall under a state’s Police Powers. It must also not be an arbitrary or discriminatory law. ○ Paradigmatic of SCOTUS’ rational basis deference to legislative judgments on the public interest ■ Court will not seek to determine the legislature’s ACTUAL objective in enacting a challenged statute ■ Instead it will judge in light of POSSIBLE objectives that legislature might have sought to accomplish Substantive Due Process and Fundamental Rights ■ Meyer v. Nebraska ● Parents have a right to have their children be taught in different languages ○ Fundamental right to direct childrearing ○ States cannot restrict the spectrum of knowledge ■ Pierce v. Society of the Sisters ● ■ ■ ■ States cannot require parents and guardians to send their children to public schools instead of private schools. Parents and guardians have the liberty to direct the upbringing and education of children under their control. ○ Fundamental theory of liberty excludes any general power of the state to standardize its children by forcing them to accept instruction from public schools only Skinner v. Oklahoma ● When the law concerning those who have committed intrinsically the same type of offense punishes one, but not the other by depriving the one of a fundamental right, an invidious discrimination has been made. ○ Oklahoma statute violates basic liberty to reproduce ■ Right to procreate ● Unenumerated, fundamental right Griswold v. Connecticut ● Marriage lies within the zone of privacy, created by several fundamental, constitutional guarantees. ○ Analysis grounded in Bill of Rights plus penumbras & emanations of textually enumerated rights ○ Utilizes substantive due process, but doesn’t explicitly invoke it ● Liberty guaranteed by DPC of 14th Amendment guarantees a right to privacy, which includes a right to access contraceptives Roe v. Wade ● A woman’s decision whether or not to terminate her pregnancy is protected by the right to privacy under the Due Process Clause of the 14th Amendment. ○ Strict scrutiny judicial analysis = ends-means analysis ■ End must be a “compelling gov’t interest” in order to burden a constitutional right ■ State action must be narrowly tailored to achieve that end ■ When SCOTUS recognizes an unenumerated, fundamental right in the Constitution, the Court applies strict scrutiny to states enacting legislation burdening the right ● Gov’t has burden of proof to show legislation is narrowly tailored ● The right depends on timing within Trimester Framework ○ 1st Trimester ■ State has no compelling interest ○ 2nd Trimester ■ ■ ■ ■ ■ State has interest in health of the pregnant woman ● Regulation must reasonably relate to preservation and protection of maternal health ○ 3rd Trimester ■ State has interest in potentiality of human life ● Subsequent to viability ● State can proscribe abortion at this point ● The unborn are not people as used in the 14th Amendment Planned Parenthood of Southeastern Pennsylvania v. Casey ● Laws restricting abortion must be evaluated under the undue burden standard. ○ A state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of nonviable fetus ● SCOTUS rejects Trimester Framework as adopted in Roe ○ There is still a constitution right to terminate a pregnancy ■ 14th Amendment liberty interest ○ Past viability, states can proscribe abortion ■ Pre-viability, abortion cannot be banned ● Does open the door to the political process in regulating abortion ○ Previability stage, states can enact legislation “encouraging” childbirth ● What constitutes an undue burden? ○ 24-hour waiting period = no undue burden ○ Spousal consent provision = undue burden ● What guides judicial recognition of fundamental liberty rights? ○ “Reasoned judgment” Whole Woman’s Health v. Hellerstedt ● When analyzing state statutes regulating abortion, the purported benefits must outweigh the burdens ○ Analyzed under the “effects” prong of Casey ○ Overlaps “purpose” with “effects” of state legislation ● Does the state law purport to negatively impair a woman’s opportunity to obtain an abortion as one of its effects? ○ Is this legislation achieving one of the benefits the state intends to pursue? June Medical Services, LLC v. Russo ● Balancing test from Hellerstedt = improper ○ Louisiana law similar to Texas law; deemed unconstitutional ○ Goes back to “undue burden” test from Casey Loving v. Virginia ● ■ ■ ■ To deny the right to marry as so unsupportable a basis as racial classifications is surely to deprive the state’s citizens of liberty w/o Due Process of law ○ 14th Amendment requires freedom of choice to marry not be restricted by racial discriminations ■ Doesn’t follow “history and tradition” model ○ Democracy needs judicially-enforced rights Michael H. v. Gerald D. ● 14th Amendment does not protect the rights of a biological father to establish paternity when the child is conceived in an adulterous relationship ○ “History and tradition” model ○ The interest denominated as “liberty” must be “fundamental” and it also must be an interest “traditionally protected by our society” ■ “So rooted in the traditions and conscience of our people as to be ranked as fundamental” ● Narrow level of generality which to identify fundamental rights Lawrence v. Texas ● Intimate sexual relationships between consenting adults are protected under the Due Process Clause of the 14th Amendment. ○ Enhancing majoritarian moral sentiment is NOT a legitimate state interest ○ Does NOT follow “history and tradition” model of identifying fundamental rights ● Liberty gives substantial protections to adult persons in deciding how to conduct their private lives pertaining to sex ○ Broad level of generality which to identify fundamental rights Obergefell v. Hodges ● Same-sex couples may exercise the fundamental right to marry, and state laws prohibiting same-sex marriage are now held invalid to the extent they exclude same-sex couples from civil marriage on same terms and conditions as opposite-sex couples ○ Inquired about the right to marry in its comprehensive sense ■ Broad view, just like in Lawrence ■ Marriage and intimacy are different and distinguishable from other fundamental rights ○ Does not follow “history and tradition” model ■ Do not set its “outer boundaries” of identifying fundamental rights ● Court defined the right as of “two consenting adults to marry” ■ ○ Washington v. Glucksberg ● The liberty protected by the Due Process Clause of the Fourteenth Amendment does not include the right to physician-assisted suicide ○ Follows “history and tradition” model of analyzing issue of fundamental rights ○ Not framed in majoritarian morality sentiment ■ Must follow ethics of medical profession ● A right falls within substantive reach of DPC only after it has been “carefully described” and is “deeply rooted in Nation’s history and tradition” ■ Dobbs v. Jackson Women’s Health Organization ● The right to an abortion is not deeply rooted in Nation’s history and tradition ○ Installs Glucksberg’s filter for unenumerated fundamental rights Unenumerated Rights Theories ■ Rights “essential to the orderly pursuit of happiness by free men” ● Meyer v. Nebraska ■ Traditionally Protected Rights (“History & Tradition”) ● Michael H., Glucksberg, Dobbs ■ Penumbras and Emanations of Bill of Rights ● Griswold ■ Zone of Privacy ● Roe, Casey, Lawrence, Obergefell, Loving ■ SCOTUS failed to articulate clear fundamental rights standards ● Equal Protection ○ ○ Equal Protection Judicial Review ■ Q1: Has gov’t treated similarly situated persons differently? ● 1a: Similarly situated? ● 1b: Differently treated? ■ Q2: Does gov’t have a sufficient justification for unequal treatment? ● 2a: What level of judicial review applies? ○ Case qualifies for heightened scrutiny if challenger can prove discriminatory effect + intent/purpose ■ Mere knowledge of + indifference to discriminatory effects is NOT sufficient to est EPC violation ● 2b: Does the govt’s actions pass the applicable judicial scrutiny test? Different types of judicial review ■ ○ ○ Strict Scrutiny ● The gov’t must demonstrate that the classification advances a “compelling” state interest and is “narrowly tailored” to achieve the desired end ○ Could not be achieved through any less discriminatory means ● ENDS: must be legitimate + compelling ● MEANS: must be necessary + narrowly tailored to achieving the compelling state interest ■ Intermediate Scrutiny ● The gov’t must demonstrate that the statute advances an “important” state interest and must do so by means that are “substantially related” to that interest ● ENDS: must be legitimate + important ● MEANS: must be substantially related + narrowly tailored to achieving the important end ■ Rational Basis ● If classification is not based on suspect class, then court will defer to legislative judgment ○ Highly deferential standard ● ENDS: must be legitimate ● MEANS: rational basis for advancing that end Bolling v. Sharpe ■ Equal Protection constitutional rights apply to both states and federal gov’t ● The Due Process Clause of the 5th Amendment includes an equal protection component and prohibits racial discrimination specifically ○ Incorporated the rights afforded by the Equal Protection Clause ■ “Reverse incorporation” Rationality Review ■ Railway Express Agency v. People of State of New York ● The Equal Protection Clause does not demand that all evils of the same category be eradicated. ■ New York City Transit Authority v. Beazer ● State legislation does not violate the Equal Protection Clause of the United States Constitution (Constitution) merely because the classifications that it makes are imperfect. ■ What are the major implications from Railway Express & Beazer? ● Rational basis review encompasses acceptance of underinclusive and over-inclusive regulation ○ If not a suspect class, then courts are very deferential to legislature’s judgment ○ Classifications Based on Race and National Origin ■ Dred Scott v. Sandford ● Slaves are not citizens under the United States Constitution. ○ The Missouri Compromise is unconstitutional and there is a right to own slaves as property embedded in Constitution ○ Dred Scott cannot bring his freedom suit in U.S. courts ■ Lacked jurisdiction ● Later overturned by 14th Amendment ■ ○ Strauder v. West Virginia ● If there is explicit discrimination based on race encoded in a statute, it is violative of 14th Amendment EPC ○ EPC does not extend to gender discrimination ■ Reflects originalist understanding ○ Discrimination against ANYrace disallowed under EPC ■ Korematsu v. United States ● Legal restrictions that curtail the civil rights of a single racial group are subject to the most rigid scrutiny, but pressing public necessity may sometimes justify such restrictions. ○ Interest of preventing sabotage outweigh rights of Japanese-Americans ○ The end was legitimate but SCOTUS got it wrong in retrospect by sanctioning the means ■ Not narrowly tailored to accomplish legitimate state interest ● Always possible for prioritization of values to work around doctrinal black letter law Discriminatory Purpose and Effect ■ Yick Wo v. Hopkins ● A facially neutral law applied in a discriminatory manner violates the Equal Protection Clause ○ EPC’s limitation on discriminatory exercises of discretionary authority ■ Washington v. Davis ● A facially neutral law’s discriminatory effect is not alone sufficient to establish an equal protection violations ○ Courts must consider all relevant direct + circumstantial evidence ■ Disproportionate impact is relevant, but not dispositive by itself ○ SCOTUS refuses to embrace the proposition that a law or other official act is unconstitutional solely b/c it has a racially disproportionate impact ● ○ ○ A discriminatory effect w/o discriminatory purpose is not sufficient to establish heightened scrutiny ■ Village of Arlington Heights v. Metropolitan Housing Development Corporation ● Insufficient proof of discriminatory intent when Chicago suburb enacted zoning laws to prohibit multi-family dwellings in township ○ How does a challenger prove discriminatory purpose? ■ 1) Not the sole factor ■ 2) A significant motivating factor ■ 3) Direct + circumstantial evidence ■ 4) Burden shifting ■ Current EP doctrine for Facially-Neutral Laws and Policies ● Challenger must produce evidence of ○ 1) state action ○ 2) discriminatory effect ○ 3) discriminatory purpose Race-Specific but Facially Symmetrical Laws ■ Plessy v. Ferguson ● Racial segregation is not unlawful discrimination, so long as accommodations are “separate but equal.” ○ Races not treated differently (rail cars are the “same”) ● SCOTUS applies rational basis review (hands-off approach to issue of racial segregation) ■ Brown v. Board of Education of Topeka, Kansas ● In the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal. ○ Overturns Plessy ■ Separate but equal in public schools is unconstitutional ● Segregation does embody badge of inferiority Affirmative Action ■ City of Richmond v. J.A. Croson Co. ● Affirmative action programs can only be maintained by a showing that the programs aim is to eliminate effects of past discrimination. ○ Vague, amorphous claims of racial discrimination is NOT a compelling justification for state action that survives strict scrutiny ● While states may take remedial action when they possess evidence that their own practices exacerbate discrimination, they just identify that discrimination w/ some specificity b/f they may use raceconscious belief ○ City did not provide sufficient evidence to justify raceconscious relief ● ○ SCOTUS adopts short list of what constitutes a compelling state interest that survives strict scrutiny ○ 1) gov’t has engaged in explicit past discrimination & wishes to remedy it ○ 2) prevention of taxpayer dollars to facilitate private discrimination ■ Grutter v. Bollinger ● Enhancing student body diversity in order to produce better learning outcomes is a compelling state interest ■ Gratz v. Bollinger ● While the end of producing better learning outcomes via student diversity is a compelling state interest, the means must be narrowly tailored ○ Race can be considered on an individualized basis as was the case in Grutter, but it cannot be given a heightened emphasis like in Gratz ■ Fisher v. University of Texas at Austin ● University’s admissions policies were narrowly tailored in order to meet its burden of surviving strict scrutiny ○ University engaged in holistic review ■ Wanted to achieve “critical mass” not just within entire student body, but in specific classes ○ Pragmatic approach to strict scrutiny ■ Defer to university's judgment ● Including race will enhance educational benefits ■ Parents Involved in Community Schools v. Seattle School Dist. No. 1 ● Achieving racially balanced school districts does not amount to a compelling government interest that satisfies strict scrutiny. ○ The racial classifications employed by the districts were not narrowly tailored to the goal of achieving educational & social benefits asserted to flow from racial diversity ■ Plans amount to racial balancing ○ In this case, race was dispositive in school admissions decisions ■ Contrasted w/ Grutter & Fisher, where race was one factor considered as part of holistic, individualized review ■ What are the appropriate means? ● 1) Factor (not predetermined) vs. quota ● 2) individual assessment (race a single part of holistic review) ● 3) narrow tailoring Race and Redistricting ■ Shaw v. Reno ● ○ ○ Redistricting based on race must be held to a standard of strict scrutiny under EPC ○ Districts drawn based solely on race are unconstitutional and set a dangerous precedent ● If there is a substantial “political gerrymander” justification, then there is no EPC violation ○ Race typically overlaps w/partisanship, so race is a big factor in redistricting, but legislature’s motivations or stated rationale must be in “partisanship” language ● Compelling state interest - complying w/ 1965 VRA by creating minority-majority districts Sex Classifications ■ Craig v. Boren ● For gender classifications, the main level of judicial review is intermediate scrutiny ○ Means must be “substantially related” to achieving an important state interest ○ State cannot rely on “archaic and overbroad” generalizations concerning gender roles ■ United States v. Virginia ● The male-only admission policy of a state-run university violates the EPC ○ If a state engages in gender-based discrimination, the State must have an “extremely persuasive” justification ○ Can’t rely on generalizations as a means for exclusion and discriminatory actions ■ Including women will not significantly alter the university’s pedagogical methods Sex Differences and Stereotypes ■ Orr v. Orr ● Promoting traditional gender roles is not an important state interest for surviving intermediate scrutiny ○ What would pass muster? ■ Alabama’s desire to remedy past societal discrimination against women ● SCOTUS utilizes same level of scrutiny for discrimination against men as it does against women ■ Michael M. v. Superior Court of Sonoma County ● A state may provide for punishment only for males to equalize deterrents to teenage pregnancies ○ Sexes are not similarly situated in all contexts ● Legitimate end - reducing teenage pregnancies ● Legitimate means - criminal sanction as deterrent for engaging in teenage sex ● ○ ○ ○ Significance of case ○ Illustrative of deferential intermediate scrutiny ■ California didn’t offer definitive proof Purpose and Effect ■ Personnel Administrator of Massachusetts v. Feeney ● A gender neutral statute that adversely impacts one gender doesn’t violate the EPC if it doesn’t have a discriminatory purpose ○ No discriminatory purpose, no intermediate scrutiny ○ Purpose element is a problem in EPC doctrine ● This case is similar to Washington v. Davis Disability ■ Cleburne v. Cleburne Living Center ● Mere dislike or irrational fear of a group cannot count as legitimate state interest ○ Amounts to animus ● The disabled are not a quasi-suspect class, so rational-basis applies for purposes of EPC ○ Case is illustrative of “rational-basis with bite” ■ SCOTUS is less willing to supply justifying rationales during rational-basis review Sexual Orientation ■ Romer v. Evans ● A bare desire to harm a politically unpopular group cannot constitute a legitimate gov’t interest ○ Merely preserving tradition is not a constitutionally permissible end ● Disqualifying a class of persons from protection of the laws and the political process is not a legitimate means and runs afoul of constitutional jurisprudence ○ However, sexual orientation still not a quasi-suspect class for EPC purposes
