Whenever you have to decide whether a congressional statute falls within an enumerated power, check the Commerce Clause

first. It encompasses a broad variety of congressional power. 5 of 1

th

!mend. 1" #oes it violate $% clause and then does act enforce $% clause under &oerne'

STANDING
STEP #1:- WRITE THIS: (he )tanding re*uirement emanates from Art 3 which e+tends federal ,udicial power to -cases. and -controversies.. (he )tanding re*uirement promotes /1" ,udicial restraint and /0" )o% b1c it limits ,udicial attention to matters b1w individual parties who have a stake in the controversy b1c they have actual in,uries. STEP 2: Is there standing? If an Ad is!r" #$ini!nN! standing, need a case and a live controversy. (his is outside the conte+t of a litigated case b1c only gives advice about particular legislative and e+ecutive action. If this is a %iti&en s'it $r! isi!n Needs standing Constitutional Requirements1. In('r" in )a%ta. Concrete and particulari2ed to the plaintiff3 not a generali2ed in,ury of the public. 4eed to suffer more than the public at large. /*'(an- n! standing +% there ,as a genera-i&ed grie an%e./ b. In,ury must be imminent or actual3 not speculative. 5ust be likely. )ee if the economic harm is direct. c. 5ere ideological ob,ection is not an in,ury6 E0%e$ti!n7 (a+payer standing for -establishment clause.. If the *uestion is h!, 1'%h the g! 2t %an ta3e, there is standing b1c there is in,ury, &8( if the *uestion is what can the gov9t do with the money once they have the money, there is no standing e+cept for ta+payer standing. 0. 4a'sa- Ne0's7 in,ury must be fairly traceable to the challenged conduct /can have this without having an in,ury in fact". 3. Redressa+i-it": (here must be an ade*uate remedy which the Court can provide. :elief sought must be able to eliminate your in,ury. a/ %ast in,ury is redressed by money damages, future in,uries redressed with in,unction. 0 common situations where this arises is where you don9t name the party who should supply the relief or the ct decision would not provide the relief 5*'(an" . Targets7 targets are people sub,ect to regulation, 1'%h easier f!r targets t! ha e standing than f!r +enefi%iaries/ STEP #37 A*WA6S IN4*7DE Alternative Merits Based View to Standing ; 8nder a merits based approach, rather than asking who has in,ury in fact, the ct asks if the P has a -egaright t! ('di%ia- enf!r%e1ent !f a -ega- d't"? If yes, then Congress has intended to give a legally enforceable right to sue and plaintiff can sue regardless of traditional standing criteria. (his is a *uestion of statutory construction6 /if statute says that any citi2en can sue, then there would be standing". <ook at legislative intent. H!,e er8 %t has n!t ad!$ted this 1eth!d/ If %iti&en s'it $r! isi!ns are a--!,ed8 then ct intended to give citi2ens the right to sue.
4ote7 )ee what they are suing under, if #CC6then it protects everyone from state9s interference with I)C, even though 1 can argue it protects only non6citi2ens of the )tate instead of )tate citi2ens.

97STI4IA:I*IT6
STEP 1: WRITE THIS: (he )C won9t hear cases that the Constitution leaves to the discretionary powers of the other branches. /:a3er / 4arr". (hus, Art 3 -case and controversy. must be ,usticiable=committed to the court. :e*uiring justiciability ensures /1" 4!n%reteness ; actual parties w1 actual disputes3 courts perform better where concrete factual disputes e+ist, > /0" 9'di%ia- Restraint;S#P ; keeps courts out of other branches STEP 2: Dis%'ss the fa%t!rs f!r de%iding ,hat 1a3es it a P< )a%t!rs f!r de%iding ,hat 1a3es an iss'e a P< and theref!re n!n-('sti%ia+-e 5ina$$r!$riate f!r ('di%ia- attenti!n. fr!1 Ba er v! Carr- claim didn9t involve any of them so it was n!t a P</ A/ 9'risdi%ti!na- )a%t!rs7 51. #oes the Constitution empower another branch to deal w1 the issue' :/ =erits-+ased7 52. #oes the ?udiciary lack the resources or apparatus to provide ade*uate discovery and management standards to give the % ade*uate relief' 4/ Pr'dentia-;deferentia- ; (he need to speak with one voice as a @ederal Aovernment7 53. impossibility of deciding *uestion w1out making an initial policy determination3 5>. impossibility of resolution w1out disrespecting other branches3 5?. unusual need for un*uestioning adherence to a political decision already made3 5@. potential for embarrassment from varied pronouncements on a single *uestion D/ Rea$$!rti!n1ent iss'es are 4B( %Cs E/ $+amples7 51. )!reign Re-ati!ns ; strictly delegated area to the %resident who speaks for the nation 52. 4!nstit'ti!na- A1end1ents A Court hesitant to intervene and decide whether an amendment has been adopted3 remember constitutional amendments are a primary check on the ,udiciary. 53. Redistri%ting;gerr"1andering-Ct is reluctant to hear cases about this 5>. 4!ngressi!na- a$$!int1ents STEP 3: Is the %!ntr! ers" ri$e !r 1!!t? A/ =!!tness ; -<ID$. controversy /i.e. unsettled such that a favorable ,udgment will address in,ury". "#ce$tions to t%e Mootness &octrine /1" Doluntary Cessation of a challenged practice that # can resume at any time. /0" Wrong capable of repetition but nonetheless evading review b1c the review does not occur *uickly enough /e.g., abortion lawsuit" :/ Ri$eness ; need a present controversy, not ,ust a remote possibility of future conflict. % must show actual present harm or immediate threat of harm. 4ASES: 1. *'ther / :!rden-N!n ('stifi%a+-e P< bc it was under Auaranty Clause and this was up to Congress to decide and not the cts, introduces ,udicial restraint and ,udicial activism. 0. Ni0!n / 7S-)enate shall have sole power to try all impeachments so this is a P< and )enate and not Ct should have the power. 0

DISTRI:7TI#N #) NATI#NA* P#WERS E0e%'ti e A'th!rit"

STEP 1: WRITE THIS: Art 26 B$+ecutive power shall be vested in a %re2. that -he shall take Care that the <aws be faithfully e+ecuted. and that he -shall be Commander in Chief of the !rmy and 4avy of the 8) /but Congress has a role in regulating armed forces". P'r$!se !f Se$arati!n !f P!,ers: promotion of efficiency and accountability /through a strong e+ecutive", prevention of tyranny by separating the creation of law from the enforcement of law and by making sure one branch doesn9t get too strong and have too much power.. (he %resident has no right to make laws, he may only carry them out. %re29s power to issue an order must stem either from an act of Congress or from the Const itself 56!'ngst!,n./ ?ackson9s 2ones of presidential authority6 %residential powers fluctuate in E categories, although this is not spelled out in Constitution. /6!'ngst!,n concurrence" STEP 2: D!es the 4!nstit'ti!n !r 4!ngress e0$ress-" grant the e0e%'ti e +ran%h the $!,er? I) 6ES %resident can act b1c his power is at a ma+imum. I) N# ?ustice &lack9s formalist approach would say that the %re29s action is unconstitutional if not e+pressly enumerated in Constitution or contained in Congressional legislation. STEP 3: A$$-" %ateg!ries fr!1 9a%3s!n2s %!n%'rren%e 51. Has 4!ngress s$!3en !n the iss'e at a--? 4ateg!ries fr!1 6!'ngst!,n 9a%3s!n2s %!n%'rren%e ,hi%h 4t ad!$ts in Da1es C =!!re: 1. =a0i1'1 P!,er7 when %resident acts $'rs'ant t! e+press or implied congressional authori2ation. 0. =!derate P!,er7 when %re2 acts in the absence of either a congressional grant or denial of authority, he is said to be in the D!ne !f T,i-ight where he and Congress may have concurrent authority or in which its distribution is uncertain. Where Congress remains silent look to /a" stat't!r" -ang'age in related legislation /broad or narrow in scope"/b" s'+seE'ent %!ngressi!na- a%E'ies%en%e3 /c" -!!3 at hist!r"8 is this an area where the %resident has traditionally had broad power' )ilence could mean implicit approval if in furtherance of Congressional silence, /Da1es and =!!re. or e+presius unius6 if they specified other stuff and didn9t include this, it could mean implicit disapproval, *!!3 at %ir%'1stan%es t! see if it is !3 E. *!,est P!,er7 Where %resident acts in dire%t %!ntradi%ti!n to the e+press or implied will of Congress, %residential power is at its lowest and the court should strictly scrutini2e %residential action. /e+. )teel )ei2ure" %resident is disobeying a federal law and such action are only permissible if the law enacted by Congress is unconstitutional. <ook at the history here. If in this category, act needs to withstand heavy scrutiny or else is will be held unconst. STEP >: Is it a 1atter !f f!reign affairs? In a matter of foreign affairs, %re2 en,oys a large amount of discretion6 4'rtis Wright/ !s opposed to domestic affairs, foreign affairs concerns are more sympathetic and deferential to %resident since the %re2 needs to speak with a unified voice to avoid embarrassment and %resident is more knowledgeable in this E

area. Da1es C =!!re said8 in a matter of foreign affairs, %re2 can take actions not authori2ed by Congress or enforce laws Congress has not passed Da1es C =!!re-Carter fro2e assets and blocked removal or transfer of all property in the gov of Iran. Ct applies Foungstown categories and says Congress has implicitly sanctioned the %re2 to do this /,as si-ent !n the iss'e and it 1eans there ,as i1$-i%it a$$r! a- and this is a %ase !f f!reign affairs".

$+ecutive %rivilege STEP 1: WRITE THIS(he so6called e#ecutive $rivilege is a %resident9s qualified right to w1hold confidential 11 from the other branches of government relating to the performance of her duties. It is qualified, b1c it is ,usticiable /sub,ect to ,udicial review". It is the province of the Court, not of the %resident, to decide the scope of the privilege, Marbury/ E0a1$-es: 1. 'S v! (i#on ; the need for 11 in a criminal prosecution outweigh %residential desire to keep that 11 private by invoking e+ecutive privilege. 0. C%eney ; the need for 11 in a civil prosecution does not carry the same urgency, and doesn9t trump the privilege of the e+ecutive to w1hold 11. $specially where the nature of the suit, itself is a fishing e+pedition for possible violations of law /as opposed to re*uests to substantiate actual claims of violation" N!te: %residents try to invoke the privilege as minimally as possible, and the Courts uphold invocation minimally/

*egis-ati e A'th!rit"
STEP 1: WRITE THIS7 )eparations of powers not e+pressed in the constitution but there is a notion of strong, independent branches of government, but also a notion that they should not be too independent b1c the branches should e+ercise checks and balances on each other. (he president e+ecutes the law, congress makes the laws, and the ,udiciary interprets the law. (he purpose of separation of powers is to promote efficiency and accountability and prevent tyranny from other branches getting too strong and having too much power. STEP 2: Was 4!ngress2s a%ti!n -egis-ati e !r e0e%'ti e? /argue bothG" 1" *!!3 at ,hether7 (he act seems legislative given the $res'1$ti!n of legislation when Congress is acting. (he e+ercise of authority will affe%t the -ega- rights of individuals' /e.g. deporting C%ad%a H leg" !n a-ternati e 1eans for achieving the result e+ists /e.g. a private bill" (he act has overruled the decision of a member of the $+ecutive /e.g. !ttorney Aeneral in Chada" Congress is acting through an agent. If *egis-ati e Ste$ 3 STEP 3: When 4!ngress a%ted8 ,as there +i%a1era-is1 and $resent1ent? When Congress acts, must meet 0 re*uirements to avoid /1" violating )B%, > /0" t"rann", C%ad%a. 1. +i%a1era-is17 passage of bill by both houses 0. $resent1ent: bill must be presented to %res for it to be signed or vetoed

If n! :CP8 4!ngress is i!-ating S#P and infringing !n E0e%'ti e $!,er $+ception where the Constitution e+pressly provides that &>% is unnecessary7 Impeachment $+ecutive !ppointments (reaties )(S v! C%ad%a stands for the proposition that a Congressional reservation of a one6house veto is unconstitutional b1c Congressional action re*uires bicameralism > presentment. @unctionalism argument7 the one6house veto had the same effect as the old system=one house voting no /vetoing" is the same as both houses voting no, or one voting no and the other yes. As3 : Is this $r!1!ting a%%!'nta+i-it"? STEP >: Is it a -egis-ati e f'n%ti!n +eing de-egated +" 4!ngress? 1. 4!ngress %an de-egate $!,er as -!ng as it is n!t de-egating it t! itse-f 5:!,sher./ N! %!ngressi!na- se-f-aggrandi&e1ent a--!,ed-Congress cannot try to take away e+ecutive authority to make itself stronegr. Arg'e +!th f!r1a-ist a$$r!a%h and f'n%ti!na-ist a$$r!a%h/ a/ )!r1a-is1 5:'rger. &ranches must strictly adhere to the powers granted so if it9s a legislative function being delegated by Congress which ,i-- n!t +e s'+(e%t t! +i%a1era-is1 and $resent1ent8 the delegation is unconstitutional according to the Art 18 Se% F. /4hadha7 -egis-ati e et! is 'n%!nstit'ti!na- because it violates the 0 re*uirements for legislation. ! report and wait provisions would be ok though. $+. :!,sher- e0e%'ti e a'th!rit" +/ )'n%ti!na-is1 5White. (his approach gives fidelity to the purposes of the separation of powers and it only find a violation if one branch aggrandi2es its power at the e+pense of another or if there is a radical redistribution of power. If not, than delegation is BI. $+7 =!rris!n/7 4o aggrandi2ement b1c the original legislation delegating the power was approved through bicameralism and presentment, and Congress retained a check on the legislation through a one6house veto". STEP ?: Is 4!ngress a$$!inting !r re1! ing an !ffi%er? A/ A$$!inting- A$$!int1ent 4-a'se 5Art 38 Se% 2. gives the %res, not Congress, the power to appoint principal federal officers. 1"Prin%i$a- !ffi%ers- must be appointed by %res with the advice and consent of )enate. $+. of principal officers. members of Cabinet, ambassadors, federal ,udges 0" Inferi!r !ffi%er-Congress can appoint them. $+. of inferior officer6 special prosecutor /may be removed only for cause". (oo see if it is an inferior officer, see if its duties are limited in purpose and time6 must be for it to be an inferior officer. $+ec branch will be denied power to appoint and remove inferior officer even when the appointment is related to purely e+ecutive power6 this is bc !A has the power to remove, not the %re2. /=!rris!n. 5

N!te: =!rris!n accepted some inter6branch appointments, but not appointments by Congress.

:/ Re1! ing-Congress cannot reserve for itself the power of removal of an officer charged with the e+ecution of the laws, e+cept by impeachment. (he e+ec branch may be deprived of the power to remove an inferior office if the appointment was related to purely e+ecutive power. !sk if Congress retain the right to remove an e+ecutive officer' If yes, this %!n erts that !ffi%er int! an agent !f 4!ngress, and legislative officers cannot perform e+ecutive functions. :!,sher-Comptroller general was part of the legislature since he can be removed by Congress /since Congress does not have the power to remove an e+ecutive officer" and was doing e+ecutive powers so it i!-ated se$arati!n !f $!,ers.

STEP @: Did this ha e t! d! ,ith ,ar? Art 18 Se% G: Congress shall have the power to declare war, to make rules concerning captures on land and water, to raise and support armies, to provide and maintain a navy etc. 7n%!nst if Pre& is de%-aring ,ar/ Art 28 Se% 2: %re2 shall be the commander in chief of the army and navy of the 8.).

S!P C Terr!ris1
Ha1di / R'1sfe-d @acts7 Jamdi, 8)6born, was captured by 4orthern !lliance and suspected of fighting w1 the (aliban. Issue7 What is the power of the e+ecutive to retain a citi2en as an enemy combatant' !rguments7 Aovernment7 Jolding citi2ens as enemy combatants falls w1in the powers delegated to the %resident to prosecute wars. @urthermore, %resident is acting at the height of his power as Congress has authori2ed the detention. 8nder these circumstances, the ,udiciary should restrain itself from intervention in individual determinations. Jamdi7 %residential actions are generally sub,ect to ,udicial review, Marbury* +oungstown. Writ of habeas corpus renders all detentions sub,ect to ,udicial review.#etention based on classification as an enemy combatant. (hus, he has the right to appeal that determination to the open courts. Bpinions3 %lurality /B9Connor, :ehn*uist, Iennedy, &reyer"7 #etention is authori2ed. %roblems with the e+ecutive9s position7 /1" 8.). citi2en can be an enemy combatant, but he has the right to the writ of habeas corpus. $ntitled to the opportunity to present evidence to say that he is not the enemy combatant. $ven if the government has the authority to hold enemy combatants, that is not him ?ustice B9Connor9s scheme7 /1" %rocedure7 :ebuttable presumption is okay. Jearsay evidence is okay. /0" $vidence7 5obbs report /Jamdi9s details of where he was captured" not enough to show that he is an enemy combatant ; Jamdi must be allowed to rebut the 5obbs report ; Jamdi has the burden to prove he is 4B( an enemy combatant. /E" (ribunal has to be a neutral tribunal, but could be a military tribunal. )outer, Ainsburg7 !85@ doesn9t empower e+ec. w1 detention authority here )calia, )tevens7 5ake a distinction b1w aliens and citi2ens vis6K6vis enemy combatant. &1c he is a citi2en, the government must either /1" put him in the C?), or /0" suspend the writ of habeas corpus. 4!ngress has n!t s's$ended the ,rit ;!85@ not e+plicit enough to serve this purpose. (he plurality is on shaky ground in w1 its -fi+6it. mentality, trying to make everything fit. L

 (homas7 (his is an e+ecutive decision, most important role he has is defending the country

1Hth A=END=ENT *I=ITS #N NATI#NA* G#IERN=ENT

STEP 1: WRITE THIS(he 1Mth amendment provides that Nthe powers not delegated to the 8nited )tates by the Constitution, nor prohibited by it, are reserved to the )tates respectively, or to the %eople.N (his !mendment today seems to limit Congress9 ability to regulate the states. STEP 2: Is 4!ngress $assing a genera--" a$$-i%a+-e -a,? I) 6ESnot infringing on 1Mth amendment. Cite Gar%ia which involved genera--"-a$$-i%a+-e -a, 'nder IS4 the!ries that a$$-ied t! a-- $arties where the states were treated the same as private parties. I) N# Cite Gar%ia-Pr!te%ti!n !f states %!1es fr!1 4!ngress and n!t fr!1 the 4!'rts/ 4!ngress %an reg'-ate state and federa- g! / It is not the role of the cts to interpret the Const. er" deferentia- t! 4!ngress/ 4ite N6 / 7S, ,hen 4!ngressi!na- a%ti!n a$$-ies t! the States as States /not generally applicable N!te: (he fact that the regulation affe%ts the states has virtually no practical significance, and the 1Mth amendment never comes into play. If the regulation would be valid if applied to a private party, it is also valid as to the state. 1. See if 4!ngress is %!11andeering the states- (he 1Mth amendment $re ents Congress from interfering in certain ways with a state2s -a,-1a3ing $r!%ess. Congress can regulate but may not N%!11andeer the -egis-ati e $r!%esses of the states by directly compelling them to enact and enforce a federal regulatory program but can encourage them by giving them incentives. N/6/ / 7/S/, e+. conditional spending might be a way to commandeer 0" See if there is an a%%!'nta+i-it" $r!+-e17 When the federal government compels states to regulate, the accountability of both states and federal officials is diminished. Congress cannot escape $!-iti%a- heat f!r 'n$!$'-ar de%isi!ns by forcing state officials to make those decisions. E" See if 4!ngress is %!1$e--ing an e0e%'ti e +ran%h t! $erf!r1 f'n%ti!ns- Congress may not compel a state or local government9s e0e%'ti e +ran%h to perform functions, even ones that are ministerial /easy tasks, no discretion". Print& / 7S

4#==ER4E 4*A7SE
STEP 1: WRITE THIS: Art 18 Se% G7 Congress shall have the power to regulate commerce w1 foreign nations, tribes, and among the several states. It also has the power to pass legislation that is necessary and proper /useful not absolutely essential, McCulloc%" Gi++!ns / #gden7 (he @ederal commerce power reaches only interstate commerce, not activities wholly w1in a given )tate. :egulation of wholly intrastate commerce is reserved to the several )tates by the 1Hth !mendment. Congress cannot legislate if actions7 /1" are completely internal to the state, /0" do not affect other states, and /E" do not re*uire Congressional regulation STEP 2: D!es %!11er%e $!,er rea%h this a%ti it"? See if it is intrastate !r interstate a%ti it": The 4!11er%e $!,er rea%hes three different t"$es !f a%ti ities7 a. 4hanne-s !f IS4 /Dar+"8 Gi++!ns. - highways, waterways, air traffic, hotels - Congress can regulate this even if the activity seems *uite intrastate b. Instr'1enta-ities !f IS4 /Heart !f At-anta- reg'-ati!n !f $e!$-e8 Dar+"-1ini1'1 ,age" - (hings used in carrying out commerce7 e+. railroads, ferries, machines, people /hours and wages". - Congress can regulate this even though the threat may come only from intrastate activities c. A%ti ities that ha e a s'+stantia- effe%t IS4 /Wi%3ard. 4ase %!1$aris!ns: If it is the +eginning !f a strea1 !f %!11er%e %ite N*R: / 9!nes- 5anufacturing is ,ust the beginning of a stream of commerce. (he activity that Congress wants to regulate may occur substantially before the interstate movement or long after the interstate commerce. Congress can regulate anything as a means to end of regulating interstate shipment of goods. If 1!ti e and $'r$!se are +eing %!nsidered %ite 7S / Dar+"- )ays motive and purpose are no longer considered. $+panded I)C to touch intrastate activity that substantially effects I)C, as long as it does not violate the Const. If 4!ngress d!esn2t reg'-ate it8 there 1ight +e a %!!rdinati!n $r!+-e1 %ite 7S / Dar+"8 e+. hard to make a minimum wage in one state if other states don9t have one, would lead to a race to the bottom and unfair regulation. If 4!ngress is $!sing %!nditi!ns !n an a%ti it" that s'+stantia--" affe%ts IS4 7S / Dar+"Congress can impose whatever conditions it wishes upon the privilege of engaging in an activity that substantially affects I)C, so long as the condition does not violate the Const. Congress can regulate anything as a means to end of regulation of I)C. STEP 3: Is the a%ti it" %!11er%ia-? I) 6ES If the activity is a %!11er%ia-1economic transaction, then it doesn9t matter whether the particular instance of the activity directly affects I)C as long as the instance is part of a general class of activities that collectively have a substantial effect on I)C. Wi%3ard says that even if activities are local and not regarded as commerce, government can still regulate them if they have a substantial effect on I)C. (he %'1'-ati e effe%t the!r" says that Congress can regulate not only acts taken alone which would have a substantial economic effect on I)C, but also an entire class of acts that would have a substantial effect on I)C so you can aggregate the effects. &road interpretation of I)C. P

Wi%3ard / )i-+'rn- Aovernment set *uota for wheat, and said that even though this seems like intra state activity, there is a %'1'-ati e effe%t if people don9t followwheat prices will increase and affect commerce. &ecause 4!ngress %an reg'-ate an entire %-ass !f a%ts and %an aggregate the effe%ts !f -!%a- a%ti ities, it has +r!ad a'th!rit" 'nder the 4!11er%e 4-a'se %!n%erning %!11er%ia- a%ti it"/

I) N# N! aggregati!n *!$e&- Congress overreaches it Commerce Clause authority when it seeks to aggregate the effects of n!n-%!11er%ia- a%ti ities to ,ustify it actions, ,o$e-. Lopez which sought to control guns in schools, is distinguishable from Wickard in that the purpose of the Lopez regulation=controlling guns in schools was a non6commercial activity. !lso, crime is traditionally left to the )tates =!rris!n- Can9t aggregate non6commercial activity, 4!ngress %ann!t +r!ad-" reg'-ate i!-en%e against ,!1en/ 8sually a state area or regulation. ). (/ ,oo at t%ese to see i0 t%ere is a substantial e00ect on )SC even w%en its not economic . 1. Need a 9'risdi%ti!na- e-e1ent6an obvious connection b1w the activity and I)C for Congress to be able to regulate it. Jave to $r! e that the affe%ted ite1 !f %!11er%e has $assed thr!'gh IS4/ If no ,urisdictional element, this is n!t fata- t! the a%t +'t it is har1f'-/ $+7 *!$e&- needed to show that an element of the crime of having the gun at school is that the gun had passed through I)C, could not do it b1c it is tough to prove something substantially effects I)C if it is not commercial". 2. *egis-ati e )indings7 ?ust the e+istence of findings or history of substantial affect on I)C is n!t s'ffi%ient t! $r! e its %!nst8 +'t it is he-$f'-. $+. =!rris!n, *!$e&/ 3. Rati!na-it" Test7 from Heart !f At-anta. Congress must have a rational basis for finding that this activity substantially relates to I)C > the means selected to achieve the end must be reasonable. Heart !f At-anta- e+pansive view of CC, h!te- dis%ri1inating against $e!$-e i1$edes interstate tra e- instr'1enta-ities !f %!11er%e so Congress can prevent hotel from discriminating since commerce is adversely effected when people have no place to stay. 5otive doesn9t matter as long as is it substantially related to Commerce /t%er considerations1 1. Is this reg'-ati!n an area !f traditi!na- state %!n%ern? (his is important because we do not want to blur lines of political accountability/ 4ri1e8 fa1i-" -a,8 and ed'%ati!n are traditi!na- state !r -!%a%!n%erns- *!$e&/ Jowever, these can be outweighed by showing that a national solution is needed and that one state9s choice heavily affects other choices. 2. Sh!'-d ,e gi e deferen%e t! 4!ngress- motive is irrelevant. $ven though a motive may seem suspect, Ct will not interfere as long as the CC is applicable 3. Is this a nati!na- ne%essit"' 4ITE NE4ESSAR6 AND PR#PER 4*A7SE /$+. )tates not doing a good ,ob in regulating violence against women so there was a need for the national government to step in but didn2t +e%!1e i1$!rtant in analysis of constitutionality of !ct and effect in I)C in =!rris!n and it was still held unconst" >. Is there a %!!rdinati!n $r!+-e1' (here is a legitimate coordination problem if this might frustrate the purpose of other states. In #arby, the Ct argued that without coordination, businesses would relocate to Q

states without minimum wage1hour laws to give themselves an unfair advantage. (ravel usually presents coordination problems, such as could go to neighboring state. If it would be difficult to regulate on state by state basiscoordination problem. ?. Is the a%t %!11andeering a State f'n%ti!n? 5N6 / 7S.: Congress %ann!t %!11andeer the state -egis-ati e $r!%ess t! ad!$t a federa- reg'-at!r" $r!gra1 ia the 44. (his violates the 1Mth amendment. (his set limits on regulating state9s activities. )ee if the act is compelling or prohibiting state1local conduct. !" E0%e$ti!n: Genera--" a$$-i%a+-e -a, that a$$-ies t! states as ,e-- as indi id'a-s is !3 and does not violate the 1Mth amendment. 5Gar%ia.. 4ann!t target !n-" state;-!%a- a%ti!n/ :. N!t %!11andeering if ('st a$$-"ing federa- -a, @. W!'-d it threaten )edera-is1 and $!-iti%a- a%%!'nta+i-it"' If legislation blurs the line of political responsibility, then it may result in confusion as to whether to lay blame on the state or the federal govt. F. Stare De%isis7 ,udge could make argument that <ope2 cannot be overruled.

1M

SPENDING;TAJING P#WER
STEP 1: WRITE THIS: Art 18 Se% G gives Congress the power to ta+ > spend. It9s a fairly broad power that gives Congress the ability to condition the receipt of federal money by the )tates on their promise to spend it a certain way. I) G#I IS TAJING 1@th a1end1ent: %ower of federal government to ta+ w1o limitation, gives tremendous authority to the national gov. N!te: 4!ngress %an ta0 +'t %ann!t reg'-ate/ State %an2t ta0 the fed g! 5=%4'--!'%h / =ar"-and. I) SPENDING Inde$endent $!,er t! s$end6 Congress has the power to spend for the general welfare or to further one of Congress9s other enumerate powers 4!nditi!na- S$ending: Congress can give federal funds to the states with strings attached but there must be a close connection b1w the spending and the regulation. Congress can specify a condition but not a regulation/ ! regulation is valid only if its falls under delegated powers. STEP 2: If %!nditi!na- s$ending8 d!es s$ending 1eet these reE'ire1ents? 5fr!1 SD / D!-e. 1. 4!nditi!n 1'st $r!te%t the genera- ,e-fare /Court is deferential to Congressional ,udgment w1 regard to what is necessary for the general welfare" 2. 4!nditi!n 1'st +e 'na1+ig'!'s /Clear such that the )tates can make informed choices". 3. 4!nditi!n 1'st +e re-ated t! the s$ending- spending must be related to a federal interest or national pro,ect or program and cannot be too broad /e.g. SD / D!-e- drinking age is related to highway safety, >. N! inde$endent %!nstit'ti!na- +ar7 4ann!t %!er%e int! 'n%!nst/ %!nd'%t. Congress cannot use the money to circumvent the Const. )tates must have a choice. /you can9t induce a state to do something that would be unconst". /t%er1 1" #oesn9t matter if the regulatory impact of the spending1ta+ could be achieved directly by the use of another enumerated power. 0" Congress can condition funding on a state9s waiver of )overeign Immunity STEP 3: Is 4!ngress ! erste$$ing its +!'nds? 1. If there is %!er%i e $ress're %!1$'-si!n/ )tates must have a choice. #istinguish b1w encouragement and compulsion. 2. If -ines !f a%%!'nta+i-it" are +eing +-'rred %an2t d! it/

TREAT6 P#WER
STEP 1: WRITE THIS: Art 28 Se% 2: (he %resident has the power, by and with the advice and consent of the )enate, to make treaties provided 01E of the )enators present concur. Art @: (reaties, current > future, under the !uthority of the 8), shall be the supreme law of the land. =iss!'ri / H!--and /1Q0M"6 tells us that (reaty %owers are not limited by the 1Mth amendment and Congress can use the treaty power to regulate things which it could not by regular legislation STEP 2: 4an 4!ngress reg'-ate thr!'gh a treat"? Congress can regulate through a treaty as long as7 1. A state -a, that %!nf-i%ts ,ith a treat" is in a-id/ 2. Treat" %ann!t i!-ate 4!nst/ 3. Treat" %ann!t tr'1$ indi id'a- rights 5Reid / 4! ert. 11

D#R=ANT 4#==ER4E 4*A7SE 5D44.

STEP 1: WRITE THIS: Art 18 Se% G- assigns the CC power to Congress (he D44 applies when 4!ngress has neither s'$$!rted n!r $r!hi+ited a%ti!ns +" the se era- States3 thus, there is 4!ngressi!na- si-en%e/ (he primary concern is how the ,udiciary ought to interpret this silence. (he in*uiry7 WWC#' What would Congress do /have done" in this situation' (he purpose7 (o prevent )tate infringement on I)C. STEP 2: D!es the a%t reg'-ate %!11er%e? Heart !f At-anta- movement of ppl across state lines for economic purposes is commerce /but it regulated commercial activity". STEP 3: Is the -a, fa%ia--" dis%ri1inat!r" against IS4? 1" Are there ge!gra$hi% reE'ire1ents? If the law is geographically discriminatory, then there is a presumption of invalidity, City o0 2%il v! (3 /e.g.. restricted to Aa only, or O5R restricted to Aa." 4ar+!ne stands for the proposition that ge!gra$hi%a- dis%ri1inati!n is essentia--" dis%ri1inating a+!'t state -ines/ 0" Are there in-state %!sts;+enefits / !'t-!f-state %!st;+enefits' 5e0/ h!arding a -!%a- res!'r%e./ If so, that is discriminatory. E" Are !'t !f state residents fa%ia--" dis%ri1inated;s'+(e%t t! different treat1ent' If so, this would be interstate discrimination even if discriminating against all out of state parties or even if in state parties affected also, Carbone " &iscuss 'nderlying 4%eories and see i0 t%ey a$$ly1 P!-iti%a-7 when a state impedes I)C, it is dividing our unity and creating political divisions. )ee if this could lead to +a-3ani&ati!n bc you don9t want to separate the state from the rest of the union. E%!n!1i%7 Court needs to step in and police the political process to keep states from imposing costs on other states. )ee if this could lead to costs on out of staters. )ree trade6 when states regulate, they interfere with the free market and everyone loses. )ee if this would interfere with regulation of free trade. I) 6ES per se unconstitutional 1" :e*uires the )tate to make a rigorous showing of n! a-ternati e to achieve this compelling1legitimate state interest, City o0 2%iladel$%ia /It was based on need, not geography" *egiti1ate state interests: @acially discriminatory )tate actions are Constitutional B4<F I@ they affe%t the hea-th8 safet"8 !r genera- ,e-fare /e.g. *uarantine laws". If the )tate action affects I)C, but does not protect health1welfare, then this action does not fit w1in the *uarantine e+ception, Maine v! 4aylor/ 0" Pr!te%ti!nists 1eas'res of state9s economic interests are unconstitutional b1c 'nd'-" +'rden IS4/ Dis%ri1inati!n 1'st +e +ased !n g!!ds and n!t ge!gra$hi% !rigin/ State %ann!t %!st-e0$!rt/ 10

I) N# )A4IA**6 NE7TRA* If there is a legitimate state interest and its effects on I)C are incidental /a mere burden", then the law will be upheld unless the burden on I)C is clearly e+cessive in relation to the local benefits :a-an%e the *!%a- :enefits / :'rdens !n IS48 City o0 2%il 1" <ess deference will be given to the state legislature where the local regulation has a dis$r!$!rti!nate effe%t on out of state residents and businesses or when there is a dis%ri1inat!r" intent;effe%t/ 0" Pr!te%ti!nist -egis-ati!n is 'n%!nstit'ti!na- 'nder the D44, even if its purpose is to promote safety rather than economic purposes. e.g. Kessel v. Consolidated rei!ht"ays /the Iowa truck case". )tate9s purpose for regulating is to protect the safety of its citi2ens /facially neutral". (hus, applied balancing test. (his is a burden on I)C bc these trucks would have to go on backroads and would cost companies a lot of money to get new trucks and no real safety benefits so +enefit d!es n!t !'t,eigh the +'rden/ STEP >: D!es 1ar3et $arti%i$ant e0%e$ti!n a$$-"? 1" If the )tate is a market participant, then it applies=action is not presumptively invalid. !s a market participant, the )tate, like any private industry, is permitted to show favoritism to in6state citi2ens. )tate 8niversity common e+ample of )tate as market participant )tate can %h!!se t! ,h!1 the" ,ant t! se-- a $r!d'%t they manufacture o e.g. Reeves upheld law that prohibited the sell of governmentally produced cement outside the )tate. #istinguished from the trees in Sout% Central 4imber in that cement, unlike trees, is not a natural resource and re*uired the e+penditure of capital and labor to produce. )tate can %h!!se ,h! ,!r3s !n its $r!d'%t. o e.g. 5%ite upheld law that mandated 5MR of employees working on a city construction pro,ects had to be local residents. 2. E0%e$ti!ns t! =ar3et Parti%i$ant E0%e$ti!n /When )tate is acting as market regulator" Reg'-ati!n %ann!t +e t!! d!,nstrea1 if it is8 then it is 'n%!nstit'ti!na-. $+. S!'th 4entraTi1+er. #ownstream regulation occurred when the state tried t! %!ntr!- ,hat ha$$ens t! ti1+er /processing" after it ,as s!-d. <ook for the state doing something else after the fact. /e+. regulating subcontractors instead of employees is downstream". Restri%ti!ns !n f!reign %!11er%e6state restrictions on foreign trade are sub,ect to stricter scrutiny. @ederal gov9t must regulate commerce with foreign nations. =PE d!es n!t a$$-" t! nat'ra- res!'r%es'n%!nst 5S!'th 4entra- Ti1+er- natural resource." Can only hoard if state is investing capital and labor in manufacturing a produce. 4an2t affe%t re-ated 1ar3ets6 state can affect the market it participates in only/ E0/ S!'th 4entra- Ti1+er7 state is a market participant in the sale of timber but not the processing of it and all e+port of timber was banned. #efinition of market needs to be narr!,-" defined as only encompassing initial act of selling not all steps to follow.

1E

S#IEREIGN I==7NIT6
STEP 1: WRITE THIS: 11th amendment6 the ,udicial power of the 8) shall not be construed to e+tend to any suit in law or e*uity, commenced or prosecuted against any one of the states by citi2ens of another state, or by citi2ens or sub,ects of any foreign state.N (e+tually, the 11th amendment. clearly bars suits against a state brought by citi2ens of a different state or by foreigners. (he 11th amendment has been inter$reted to apply also to bar a damage suit where the plaintiff is a %iti&en !f the defendant2s state. (his is true even if the suit is based on a %!ngressi!na--"-granted federa- right. P'r$!ses !f the 11th A1end1ent7 /1" %revention of obligation of state treasury to pay out federal ,udgments3 !4# /0" avoid indignity to the state of being sub,ected to ,udicial proceedings at the instance of private individuals. STEP 2: Is this an e0%e$ti!n t! the 11th a1end1ent? 1" Can sue a state official for an in('n%ti!n +'t n!t da1ages when violates federal law or %9s constitutional rights 0" Can sue a state official for money damages if $aid !'t !f !ffi%ia-2s $!%3et E" )edera- g! ern1ent %an s'e a state " N! SI f!r -!%a-ities- Individual %an s'e a %it" !r %!'nt". *!!3 t! the s!'r%e !f f'nding to see if it is local/ 5ust see if a ,udgment against that entity will operate largely as a suit against the state treasury. Bther relevant factors7 e+tent of state control over the entity, the type of functions the entity performs, and how the state has designated the entity. 5" )tate %an %!nsent to suit in federal court L" 4!nditi!na- s$ending6 consent to waive )I for money. O" Bnly time a citi2en can sue a state in federal court ,ith!'t %!nsent is when 4!ngress $asses stat'te $'rs'ant t! its $!,er 5Se%ti!n ? !f 1>th. t! enf!r%e the 4i i- War a1end1ents 5EE'a- Pr!te%ti!n %ases. STEP 3: Is P a %iti&en !f a different state !r sa1e state than the defendant state? )tates have a constitutionally6guaranteed sovereign immunity from private damage suits brought against the state in the state9s own courts, Alden v! Maine STEP >: Is this a s'it +" states !r federa- g! ern1ent? 11th !mend does 4B( bar federal suits brought against one )tate by /1" another state, or /0" @eds. STEP ?- Has 4!ngress a+r!gated the state2s s! ereign i11'nit"? ASK 2 <7ESTI#NS 1. Jas 4!ngress has 'neE'i !%a--" e0$ressed its intent t! a+r!gate the i11'nit" AND Congress must provided an Nunmistakably clearN statement of its intent to abrogate 2. Jas 4!ngress has a%ted $'rs'ant t! a a-id e0er%ise !f $!,er. Congress is acting properly pursuant to a valid e+ercise of power if Congress employs its re1edia- $!,ers under )ection 5 of the 1 th amendment. (hus, Congress may B4<F abrogate the states9 11th amendment immunity via 5 of 1 th amendment8 6at-enbac% v! Morgan! o Congress can no longer abrogate )tate sovereign immunity via the 4!11er%e 4-a'se, but it can condition S /spending power" on the waiver of sovereign immunity, S!&! v! &ole! STEP @: A-,a"s 1enti!n ,here there is a right there is a re1ed": Cite =ar+'r" / =adis!n. Citi2ens are not powerless, have redress against state action for grievances bc 4!ngress %an a+r!gate 5ta3e a,a". s! ereign i11'nit" thr!'gh Se% ? !f 1>th a1end1ent/ 1

EN)#R4ING the RE4#NSTR74TI#N A=END=ENTS

I=P: 1st see if ,hat state is d!ing is %!nstit'ti!na- 'nder EP4)A !r DP4)A/ STEP 1: WRITE THIS: 4ow that the state has the power to act, we need to look at the relationship b1w what activity is unconstitutional and what activity has been made illegal by the statute. Se% ? !f 1>th a1end1ent: Congress may abrogate /overcome" a state9s )I if it is a valid piece of legislation enforcing a :econstruction act /1Eth, 1 th or 15th amendment" 8nder Boerne* /1QQO" Congress does not have the power to rede0ine t%e sco$e of the rights protected by the Civil War amendments in a way that is different from the way the )upreme Court would define their scope/ Jowever, 4!ngress %an see3 t! re1ed" !r t! $re ent %!nstit'ti!na- i!-ati!ns. (hus, Congress may prohibit conduct that is not otherwise unconstitutional as long as the legislation is %!ngr'ent and $r!$!rti!na- t! the %!nstit'ti!na- i!-ati!n as defined +" the %!'rts. Congress can regulate more broadly and has deferential power when dealing with a :econstruction !mendment. Congress cannot ma e substantive c%anges in constitutional law* but it can e#$and rig%ts7not dilute t%em8! N!te: 1
th

> 15th !mend. Can9t be used to reach purely private conduct /doesn9t involve )tate in anyway"

STEP 2- The 4!'rt accepts re1edia-;$re entati e the!r" !f 4!ngressi!na- a%ti!n6 (he Court says what is unconstitutional > inviolate of 1 th !mend. 5, 1 th !mend empowers Congress to adopt remedies1preventative measures to unconstitutional conduct as defined by the ?udiciary, Boerne/ 0 types of remedies 1" 4!1$-e0 re1edia- - comple+ process to achieve a remedy of past const. violations. 0" Pre entati e re1edia- - legislation to prevent future const. violations. STEP 3 Identif": 51. the 'n%!nstit'ti!na- %!nd'%t 4!ngress is tr"ing t! rea%h8 52. ,hat 4!ngress is +anning: Courts employ a rati!na- standard to determine unconstitutional discrimination, meaning unless they are applying heightened scrutiny or undue burden, !n-" irrati!na- dis%ri1inati!n is 'n%!nstit'ti!na- /not related to a legitimate governmental interest" Heightenedunconstitutional if it9s not narrowly tailored to achieve compelling govt. interest 7nd'e +'rden unconstitutional if it places a substantial obstacle in obtaining an abortion STEP ?- :!erne test 5%!ngr'ent and $r!$!rti!na-.: 8nder &oerne, Congress9s action has to be N$r!$!rti!na- and %!ngr'entL to the constitutional violation as defined by the ,udiciary, lest the Congressional action be invalid. 1" Pattern !f dis%ri1inati!n6 refer to the legislative record to show that there is a pattern of unconstitutional behavior. /past lawsuits" $+. Garret6 fact that there wasn9t a lot of lawsuits against the states for discriminating against people w1 disabilities shows that there wasn9t a pattern of irrational discrimination. 5ight be able to be countered by the fact that there is )I so people know they can9t sue a state. 0" 4!ngr'en%e C $r!$!rti!na-it" +;, re1ed" and %!nd'%t E" Differen%e +;, !'t-a,ed a%ti it" and 'n%!nstit'ti!na- a%ti it" 1'st +e s1a-- /)chapiro9s circle" Bver6 and under6inclusiveness 8nwarranted :esponses to inconse*uential problems 15

o Aarret6Congress did not have )ec 5 power to bar the states from discriminating against employees with disabilities. )tate argued that disabled were not a suspect class /Cleburne". (he duty of accommodation went far beyond what could possibly been re*uired to address the small $% violations the states were allegedly guilty of. Th's n!t %!ngr'ent and $r!$!rti!na- and Congress failed to show a pattern of irrational discrimination in employment /what is unconstitutional" Ne ada De$t !f H'1an Res!'r%es / Hi++s- 4t '$h!-ds )=*A as a a-id e0er%ise !f Se% ? a'th!rit"/ (here was a pattern of discrimination by only giving maternity leave and not paternity leave and it is congruent and proportional to the conduct b1c there is a fi+ed time limit for unpaid leave. (his is narrowly targeted unlike Aarret which targets all discrim against the disabled.

STEP @: 4!nsider the %!11andeering $r!+-e1 fr!1 N6 / 7S. 4ot commandeering if it is general Gar%ia. )ee if certain kinds of state actions are re*uired. Bk if it is ,ust following federal law /not being forced to make policy or law" !llowed to do federal action contemplated to apply to states under 1 th amendment

1L

DP4)A
1>th A1end1ent7 4o state shall deprive any person of life, liberty, or property w1o #% of law. (he &ills of :ights /fundamental rights" places limitations on the power of the @eds. #%C@! incorporates limitations to the several )tates. STEP 1: Is there a f'nda1enta- right i1$-i%ated in the a%t? )'nda1enta- rights are th!se that are dee$-" r!!ted in this Nati!n2s hist!r" and traditi!n/ 1" Te0t'a- arg'1ent= $ven though there is no e+plicit grant of a privacy right in the Constitution, 9riswold holds that privacy rights are embodied in the penumbra of the 1st, Erd, 5th, and Qth amendments. 0" Pre%edent +ased arg'1ent' I.e. cases involving privacy or autonomy. $specially relevant in cases involving7 marriage, bearing children, raising children, declining med treatment Gris,!-d8 Eisenstadt8 R!e8 and 4ase": right to se+ual autonomy as a means of self6definition. Gris,!-d: 8nconstitutional to prohibit use of contraceptives b1c of fundamental right to privacy. (his is about the sacred precincts of marriage Eisenstadt: 8nconstitutional to prohibit sale of contraceptives to unmarried persons. :ight to reproductive autonomy now e+ists even in non6private situations /outside of the bedroom" R!e: @undamental rightt to privacy includes right to choose. :ight is *ualified by a )tate legislation that is narrowly tailored to serve a compelling )tate interest=the bar or restriction is so narrowly drawn that it fulfills only the )tate interest and does not reach more. 4ase": A+!rti!n is n! -!nger a f'nda1enta- right and restri%ti!ns !n it are n! -!nger t! +e stri%t-" s%r'tini&ed=must analy2e under the 7nd'e :'rden Test o if it is not related to a substantial state interest or if it is too limiting on the woman9s right, even if there is an interest, it will be an undue burden. Can re*uire informed consent, info by dr. and 0 hour waiting period, but cannot re*uire husband notification. o State %an reg'-ate +an a+!rti!ns $!st age !f ia+i-it" if it in%-'des an e0%e$ti!n f!r the hea-th !f the 1!ther/ West 4!ast H!te-- overruled Lochner. 4o fundamental right to contract. )tate can protect freedom of oppression as wells as health, safety and morals. o <aw imposing minimum wage for T is valid b1c it protects their freedom from oppression. Stern+erg7 partial6birth abortion /post6viability" bans must include an e+ception for the health of the mother lest it serves as an undue burden. *a,ren%e7 overruled &owers. :ight to autonomy > privacy are fundamental. #o"ers asked too narrow a *uestion6 if there was a right to homose+ual sodomy. o (U statute criminali2ing only homose+ual sodomy unconstitutional b1c it furthers no legitimate governmental interest.. Da+-!%3i7 fundamental right to get married, such that a law prohibiting marriage by persons who owe back child support is unconstitutional. /(his case combined w1 a few others makes the prohibition against homose+ual marriage hard to uphold". Washingt!n / G-'%3s+erg: decisions related to autonomy do not necessarily implicate fundamental rights. 4o fundamental right to assisted6suicide or to commit suicide. 4r'&an: @undamental right to refuse unwanted medical treatment. If the right to bodily integrity means anything it9s the right to choose whether to undergo a given medical procedure. #oes e+tend to situations where death will occur in the absence of the treatment o Where person is in a %D), the family can decide to refuse medical treatment on her behalf if they can show by clear and convincing evidence that the decision is in accord w1 her desires. 1O

3. Traditi!n- Is right deeply rooted in the nation9s history > tradition' Was it around in the country9s laws or customs when the 1 th !mendment was adopted' If n! s$eci0ic tradition* try the general tradition !f $ri a%" and +!di-" integrit"/ o $.g. !bortion, suicide, > sodomy were illegal historically in the 8.). (hus, they lack a favorable tradition and were not e+pressly contemplated as being protected by the 1 th !mend. &ut the penumbra9s inclusion of a right to privacy does en,oy such protection3 those activities fall w1in privacy. !rg'e ,hether a%ti it" in !- ing $ri a%"/ >. @actors the Court usually considers when invoking the 1 /0"intimacy, /E" criminali2ation, and / " unusual law
th

!mendment7 51" marital relationship,

STEP 2- A$$-" Stri%t S%r'tin" f!r f'nda1enta- rights8 and rati!na- +asis f!r 1ere -i+ert" interests STRI4T S4R7TIN6: @or governmental action to be constitutional w1 regard to limiting a fundamental right, the action must be narrowly tailored to promote a com$elling State interest! Interests related to the police power are compelling )tate interests, ,awrence o 5orality is %!'-d +e a compelling )tate interest, $ it doesn9t intrude too deeply into the private lives of individuals, ,awrence Narr!,-" Tai-!red o Bver6inclusiveness7 burdens a group w1o advancing )tate interest /i.e. more than necessary". o 8nder6inclusiveness7 fails to burden a group that would advance )tate interest o !lternatives /i.e. least restrictive means" of finer calibration are indications that !ct is 4B( narrowly tailored. RATI#NA* :ASIS: @or governmental action to be constitutional w1 regard to limiting a fundamental right, the action must rationally related to a legitimate State interest! #ifficult to strike down a law as unconstitutional under this test. 5orality is always a legitimate )tate interest. 7ND7E :7RDEN /abortion"7 @or statute to limit right to abortion, it must not impose an undue burden on the women9s access to the procedure Casey, abortion is not a fundamental3 thus, all abortions, pre6 and post6 viability, are sub,ect to the test )tatutes restricting abortions pre6viability are more suspect as constitutional violations than post6 $+amples of constitutional restrictions7 /1" informed consent re*uirements, /0" mandatory 11 about alternatives, 0 6hour waiting period 8nconstitutional restrictions7 /1" total bans pre6viability, /0" total ban post6 w1o e+ception for mother9s health, /E" consent of1notification to husband STEP 3: D!es the stat'te %!11andeer the reg'-at!r" a$$arat'ses !f the se era- States? Congress can9t commandeer )tates9 regulatory functions3 act must pass constitutional scrutiny, (+ v! 'S. STEP >: 4!ngr'en%e and $r!$!rti!na-it" 1 th !mend, so apply Boerne 5p.156L"

1P

EP4)A
-Vnor shall any )tate make or enforce any law which shall deny to any person within its ,urisdiction the e*ual protection of the law.. :everse incorporation7 $%C@! applies to the @ederal Aovernment by way of the #ue %rocess clause of the @ifth !mendment. Congress lacks authority to outlaw private discrimination3 $%C@! applies only to )tate actions. STEP 1: Is the State %-assifi%ati!n in !- e a s's$e%t %-ass? )uspect Classes7 race, ethnicity, national origin, color creed Cuasi6)uspect7 gender /p. )pecial /not sure what to call it"7 se+ual orientation /p. 0 1. Whether the %-ass is s's$e%t depends on7 (e+t o 4ever b1c it doesn9t mention race or gender Jistory of 1 th !mendment o @ramers had race in mind, as its purpose was to protect !frican6!mericans /race" by striking down e+plicit racial discrimination. o 4ation9s history plagued w1 invidious race discrimination %roblem of stigmati2ing or creating a caste system b1c the characteristic about which the classification is made is /1" immutable and readily identifiable o Immutable traits /unchangeable" re*uire protection b1c those w1 the characteristic can do nothing to change it. o Identifiable minority the characteristic creates a -class. b1c it is so readily identifiable Concerns about the political process o %re,udice undermines the political process and makes democracy fail. o Where other groups have historically refused to form coalitions w1 a given group b1c of their common characteristic, that group needs protection in the political process, lest their minority voices fall silent. Race is a discrete and insular minority STEP 2: A$$-" a$$r!$riate Standard !f Re ie, 5a$$-" +!th if 'ns're. I) N#T RATI#NA* :ASIS 5a$$-ies t! ,ea-th8 age8 disa+i-it"8 1enta- retardati!n-4-e+'rne. :ational &asis (ypical legitimate governmental interest is an e+ercise of the police power Bften a means6end analysis. )tate usually wins b1c of ,udicial deference. o <aw that discriminate against an identified class need only be rationally related to a legitimate )tate interest if that class is not suspect Considerations: 1. What prompted passage in the first instance /i.e. what is the real purpose"' 2. Jarp on the deference afforded legislative action under rational basis scrutiny a/ When Congress identifies a problem, it is up to that body to determine the contours of the problem and the appropriate remedy, 5illiams v! ,ee /$tical +/ %ne step at a time. Congress need not address an entire problem at once. It can ban activities piecemeal. Counter argument to -you don9t allow U, but you do allow F. 1Q

%/ )pecial interest legislation is irrelevant. It is not the province of the court to support a class who has lost a legitimate legislative battle /e.g. tobacco lobbies". 3. It is the <egislative &ranch, not the ?udiciary that is accountable to the people. a/ If Congress makes the wrong decision, the political process will sort it out. +/ %roblematic argument when Congress discriminates against a class w1o political power. Certain groups cannot find protection in the legislative process /discrete >insular minority" >. 5ust have a rational basis. a/ Cleburne7 )tatute re*uired group home for the mentally retarded to get a special permit. @!I<$# rational basis review b1c it was under6inclusive and lacked any relation to a legitimate governmental interest. +/ %rotection from mere pre,udice is not a legitimate interest /reasons why ordinance is invoked is so absurd that they are obviously pre,udicial" ?. Is the rule ! er-in%-'si e' #iscuss less restrictive means @. Is the rule 'nder-in%-'si e' 5ay be irrational if a more finely calibrated rule e+ists, &8( this is particularly susceptible to the -one step at a time. argument. a/ Bea-er e+emplifies constitutional )tate action notwithstanding both over6 and under6 inclusiveness7 4FC(! prohibited employment of persons using narcotics, including methadone /drug for recovering heroine addicts"3 methadone users are not a suspect class. It9s important to decision that administrative costs to make a tighter6fit classification would be very high. )trict )crutiny !naly2e the actual purpose. Aovernment bears the burden of showing that a compelling interest cannot be established though less restrictive means. @or action to be repugnant to constitutional based on strict scrutiny review, the classification must have disproportionate effects b1c of the classification, not in spite of it. (hat is to say, unintended and incidental effects on suspects classification w1 survive strict scrutiny, 5as%ington v! &avis. 1. Is it ra%e s$e%ifi% and fa%ia--" dis%ri1inat!r" against ins'-ar 1in!rities? When there is facial discrimination or race specific legislation then there is a $res'1$ti!n !f dis%ri1inat!r" $'r$!se/ Fou don9t have to show an actual discriminatory impact, the risk of discriminatory impact from a facially discriminatory law is enough, Strauder 6orematsu: Court applies strict scrutiny and upholds law placing ?apanese6!mericans in camps b1c the law was narrowly tailored /too difficult to separate the loyal from the disloyal, so put them all in camps" to promote a compelling )tate interest /national security". o (he last case in which a racial or ethnic classification survived strict scrutiny. 2. Is it ra%e s$e%ifi% +'t fa%ia--" ne'tra-? 4o specific proof of discrimination needed If yes, go to )tep E, 4arrowly (ailored !nalysis :ationale for applying strict scrutiny to facially neutral law o &ade of inferiority if race6specific o Creates potential for creating a caste system once we classify by race and separate o )eparate is inherently une*ual o <esser standard is too easy to pass given the high cost of a racially stratified society Cases o Brown: )egregation in schools unconstitutional. )eparate schools are une*ual b1c the purpose of segregation is to subordinate !frican6!mericans to Caucasian6!mericans3 violates $%C@!. 0M

o ,oving v! Virginia: law criminali2es marriage b1w white person and non6white person is unconstitutional. #espite e*ual application to all races, the purpose to protect the alle!ed superiority of the white race /emphasis mine". 3. Is it fa%ia--" ne'tra- and n!t ra%e s$e%ifi%? ='st $r! e a dis%ri1inat!r" $'r$!se;intent t! $ass stri%t s%r'tin" where racial classification is absent3 e+ception for !ting restri%ti!ns" While 1ere dis$arate i1$a%t passes strict scrutiny, facial neutrality is not a shield, +ic 5o o +ic 5o: facially neutral statute pertaining to permits to operate cleaners had an overwhelming negative impact on Chinese6!mericans on the -left coast. o 5as%ington v! &avis: #C9s re*uirement that applicants to the police pass a literacy test passes strict scrutiny despite the disparate numbers in passage rates b1w Caucasian6!mericans and !frican6!mericans, especially where police force had policies in place to attract minority applicants. /disparate racial impact is important but never solely sufficient to prove discriminatory intent" #iscriminatory effects are insufficient b1c of slippery slope. 5any )tate actions have a disparate impact. $%C@! provides for e*ual opportunity, not e*ual results. %roving purpose7 o $ffects on suspect classes /relevant but not dispositive" o )tatistics $.g. Mc6les ey: Dictim9s race impacted imposition of the death penalty. !lthough death penalty law is facially neutral, its application has a racially disparate impact. 4onetheless, it9s constitutional b1c it was applied in spite of race, not b1c of it. (hus, no established purpose apply rational basis review. o Classification adopted -because of. its effects on a suspect class /purposeful discriminationH heightened scrutiny", not -in spite of. effects on suspect class STEP 3: Is it narr!,-" tai-!red? 4ann!t +e ! er- !r 'nder-in%-'si e o # er- discuss less restrictive alternatives o 7nder- discuss unburdened group whose inclusion would further the compelling interest STEP >: Is a%t %!ngr'ent and $r!$!rti!na-? 1 th !mend, so apply Boerne 5p.156L"

Affir1ati e A%ti!n C EP4)A

STEP 1: APP*6 STRI4T S4R7TIN6 P'r$!se !f 1>th amendment is to remove the huge blemish on the face of this great nation=racial discrimination. Croson stands for the proposition that all affir1ati e a%ti!n $r!gra1s that classify on the basis of race are sub,ect to strict scrutiny* even if they are desi!ned to remedy this nation&s discrimination a!ainst minorities, namely 'frican-'mericans. Adarand stands for the proposition that strict scrutiny to @ederal > )tate governments/ STEP 2: ! race6conscious affirmative action plan must be adopted for the $ur$ose of furthering a compelling governmental interest, and the racial classification must be necessary /no racially neutral alternative" to achieve that interest. 01

STEP 3: What %!nstit'tes a %!1$e--ing g! ern1enta- interest? 1. :emedying past general societal discrimination is not a compelling governmental interest, Croson. 2. :emedying past specific discrimination by )tate actor is a compelling governmental interest, Croson 5ust show s$e%ifi%8 identifia+-e C %'rrent dis%ri1inati!n Can use stats, but have to use the -right. ones /comparisons b1w whole > local pops insufficient" o 5ust be clear and convincing Bb,ective must have a close ne+us w1 undoing past discrimination trying to balance the work force /render minorities more economically successful" is not a tight enough fit. 3. #iversity in higher education is a compelling )tate interest, Ba e Cuotas are 4B( ok, but giving bonus points to minority applicants is fine, as long as the bonus is too large. :edressing clear past discrimination and the pursuit of diversity in the student body are the only things that pass strict scrutiny8 9rutter 5ake the argument that the classes percentages tend to be the same annually /e.g. <atinos comprise 1ER of every class" and thus, the school effectively operates w1 a *uota STEP >: Is the re1ed" narr!,-" tai-!red t! a%hie e this interest? 1" !re ia+-e /versus arbitrary" race neutral alternatives available' 0" Jave they been considered' 1
th

!mend, so apply Boerne 5p.156L"

Gender C EP4)A
STEP 1: Se0-+ased %-assifi%ati!ns re%ei e inter1ediate s%r'tin"8 Craig v! Boren. Intermediate scrutiny re*uires that the intentional classification is substantially related to an im$ortant governmental interest. 1. Hist!r": 1 th !mendment6there is nothing in the te+t or conte+t. %urpose was to address race. &ut past discrimination of women does e+ist. 2. Stig1a7 there are both immutable and identifiable characteristics. <esser treatment was based on physical differences and perceived physical inade*uacies, which led to a caste system. Well, gender might not be so immutable these days, but it is outside the )tate9s authority to demand one change her gender. 3. P!-iti%a- Pr!%ess: technically women are not a minority in the electorate and women are not a minority and they are not discrete and insular. >. :enign as ,e-- as in idi!'s: (he same standard of review is used whether the se+6based classification is Lin idi!'sL /intended to harm women" or L+enignL /intended to help women, or even intended to redress past discrimination against them", Mic%ael M ?. Stere!t"$es: <egislatures are permitted to pass laws if real differences b1w genders are involved, but not based on stereotypes alone8 Craig v! Boren /either gender can attack classification" 00

STEP 2: A$$-" Inter1ediate S%r'tin" 'S v! VA A D5I can9t e+clude women on the theory of building a citi2en soldier when /1" gender6 neutral alternatives e+ist to achieve the same goal, /0" the )tate doesn9t provide an e*ual alternative for women. (he governmental interest is building a citi2en6soldier, not using the tactic that was effective in a male6only environment. Craig v! Boren A )tatute prohibiting men under the age of 01 from purchasing E.0R beer, but not women in the same age bracket was passed to ensure traffic safety b1c 1M+ more men than women in that age bracket were involved in traffic accidents. Court said that the statute was not substantially related b1c /1" it was over6inclusive, /0" the amount of accidents of that age group compared to all accidents was de minimis, /E" the #8I stats may have been unreliable due to evidence suggesting women were convicted less ,ust for being women. Mic%ael M! A )tatutory rape law applied only to men who had se+ w1 women under the age of 1P. Court upheld the statute b1c true differences e+isted b1w the genders7 /1" women, not men are the ones who get pregnant, /0" women have a natural disincentive, )tate can create an artificial one for men, /E" wanted to fi+ teenage pregnancy and the subse*uent ta+ation on the )tate welfare system. N!te: N!n-1arita- %hi-dren get inter1ediate s%r'tin" a-s! 5children whose parents are not married to eachother" 1
th

!mend, so apply Boerne 5p.156L"

Se0'a- #rientati!n C EP4)A

STEP 1: Sh!'-d h!1!se0'a-it" +e a s's$e%t %-assifi%ati!n? 1.Te0t ; nothing in te+t of 1 th amendment that says no discrimination based on se+ual orientation 2. Hist!r" A it was not a special concern of the 1 th amendment like race, there is a history of discrimination against homose+uals though it makes it more likely to get heightened scrutiny. 3.I11'ta+-e A immutable b1c one can9t change one9s se+ual orientation. $ven if one could change, the government wholly lacks the authority to impose such a onerous burden on a citi2en. >. Identifia+-e ; 4otwithstanding the -si+th sense. that many homose+uals and allies coin -gaydar. /the intuition to know when another is gay or lesbian", se+ual orientation is not per se identifiable. Indeed, many homose+uals are -in the closet. and share their se+ual orientation w1 no one. 4onetheless, a group9s lack of ready identifiableness should not e+empt it from governmental protection, especially when the government acknowledges that such a group does in fact e+ist. >.Stig1a;4aste A While the ability to hide one9s se+ual orientation may reduce the likelihood of stigmati2ation, the discovery of the same could re,ect one to second class citi2enship /e.g. known homose+uals are barred from adopting children and @<, and homose+uals generally are barred from marrying in all )tates save 5assachusetts". ?. P!-iti%a- Pr!%ess Iss'es ; !lthough they aren9t a discrete and insular minority, homose+uals are susceptible to alienation in the political process due to refusal of others /read narrow6minded heterose+uals" to coalition build. Bn the other hand, this might be fallacious argument considering /1" best estimates place the homose+ual population at 1MR of the total, and /0" despite this significant minority, many )tate governments afford homose+uals some rights and protections. 0E

Sa" that arg'a+-"8 dis%ri1inati!n against ga"s and -es+ians sh!'-d re%ei e stri%t s%r'tin" b1c of discrimination, representative6reinforcement argument /they might be a discrete and insular minority". 4onetheless, the supreme court has not e+tended the suspect categori2ation to homose+uals. STEP 2: Rati!na- :asis Re ie, !lthough Bowers ruled out suspect classification when it upheld a A! law that outlawed homose+ual sodomy, ,awrence overruled that decision stating that the privacy right includes the ability to engage in intimate consensual acts, even homose+ual ones, w1o the stigma of )tate condemnation. Romer v! "vans stands for the proposition that classifications concerning homose+uals are sub,ect to rational basis review. &ut the standard appears to be stricter in application=-rational basis w1 bite,. if you will /)calia, ?. dissenting" It affords homose+uals a good deal of protection ; purpose cannot be arbitrary, unreasonable or pre6 te+tual ! bare animus to harm a politically unpopular group is not a legitimate )tate interest. 5ere moral antipathy to a particular conduct is not a legitimate )tate interest b1c morality, alone, is not a legitimate )tate interest. (he people cannot sub,ect the rights of a politically unpopular group to a vote 5aybe if the CB referendum were a result of a Iulturkampf and not, in fact a fit of spite, then the 9oodrigde1 5assachusetts decision that stands for the proposition that a +an !n sa1e-se0 1arriage d!es n!t f'rther a -egiti1ate g! ern1enta- interest/ STEP 3: W!'-d it $ass stri%t s%r'tin" if it ,ere a$$-ied? 1
th

!mend, so apply Boerne 5p.156L"