Professional Documents
Culture Documents
Article III courts are those established by Congress pursuant to the provisions
of Article III, Section 1. Congress has power to delineate the jurisdictional
limits, both original and appellate, of these courts, although it is bound by
the standards of judicial power set forth in Article III as to subject matter,
parties, and the requirement of case or controversy. Thus, Congress cannot
require these courts to render advisory opinions or perform administrative or
nonjudicial functions
Constitution applies to Government actors, not private parties, unless there is a state action
when
The Civil Rights Cases - Civil Rights Act of 1875 prohibited private discrimination in
hotel, inns, etc unconstitutional - The Fourteenth Amendment restrains only state
action. And the fifth section of the Amendment empowers Congress only to enforce the
prohibition on state action. Private acts of racial discrimination were simply private
wrongs that the national government was powerless to correct
; Marsh v. Alabama; - company town public function broad reading of the exception -
there was no significant difference between the relationship between Chickasaw and
private citizens and the relationship between any other town and its citizens. As such, it
employed a balancing test, weighing private property rights against an individual's right
to free speech
Public function traditionally and exclusively reserved for the government here no
(i) channels of interstate commerce; (rivers, airspace over the US, the internet;
railroads)
(iii) economic (not non-economic, Lopez & Morrison; economic includes any commodity
-Raich) activity (not inactivity, NFIB v. Sebelius) that
1) has substantial effects on interstate commerce (Wickard); - aggregate some small
local activity
o Rational Basis review still alive (?) - congresss conclusion that economic
activity affects subst. interstate commerce need only be reasonable
2) 1890 1937 Lochnr Era Conservative court narrow CC and broad 10th A.
Interpretation
Wickard v. Filburn (1942) Filbirn ordered to pay a penalty for producing wheat in
excess of quata, purely local activity
Rejects distinction between direct and indirect
Substantial economic effect on interstate commerce
Maybe commutative
Rational basis
; Heart of Atlanta Motel (1964) Civil Rights Act, hotel geographically near interstate highway
Affects interstate travel affects interstate C - As 75% of the Heart of Atlanta Motel's clientele came
from out of state, and it was strategically located near Interstates 75 and 85 as well as two major U.S.
highways, the Court found that the business clearly affected interstate commerce
Motivation for law does not matter
Rational basis review for means
Katzenbach v. McClung (1964)truly local restaurant gets portion of food from interstate
commerce
Economic activity with a substantial effect on interstate commerce
Congress can regulate and prohibit racial discrimination
4) 1990 - ?? Limiting CC
U.S. v. Lopez (1990) federal gun -free zone Act exceeded Congresss CC powers
Gonzales v. Raich (2005) controlled substance act Can Congress ban locally grown
marijuana for permitted medicinal use in CA
Ct:-Yes, local economic activity that substantially affects the nationwide interstate market for
marihuana fungible commodity
Unlike Lopez economic activity necessary to regulate for larger scheme
Scalia concurrence use the Necessary and Proper Clause for regulation of the larger scheme
Natl Fed. Independent Bus. v. Sebelius (2012) individual mandate and the Medicaid expansion
of the 2010 Patient Protection and Affordable care Act
Issue 1: Does Congress have the authority to pass the individual mandate under the CC or the
CC+the N&P C?
Passed because of the free-rider problem if you do not purchase a insurance pay a penalty with
our taxes
o Not a valid regulation under the CC Congress can regulate only economic activity not
inactivity; cannot create activity by regulating inactivity
o Not valid under the CC + N&P C has to be derivative from and in service to a granted
power
the shared responsibility payment may for constitutional purposes be considered a tax, not a
penalty: First, for most Americans the amount due will be far less than the [485] price of
insurance, and, by statute, [71] it can never be more. It may often be a reasonable financial
decision to make the payment rather than purchase insurance, unlike the prohibitory financial
punishment in Drexel Furniture. 259 U.S., at 37, 42 S. Ct. 449, 66 L. Ed. 817.
Third, the payment is collected solely by the IRS through the normal means of taxation--except
that the Service is not allowed to use those means most suggestive of a punitive sanction, such as
criminal prosecution.
Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2595-96 (2012)
Issue 2: Is the Medic Aid expansion valid under the Spending and Taxing Power?
No, dramatic expansion ; crossed the line from encouragement to coercion
Fed funding to be withdrawn for non-complainace was 50 -80% of State MedicAid and 20% of
all state budget state did not have a meaningful choice
Prinz v US (1997) Gun Control Act of 1986 requiring state officers to perform
background checks on prospective gun purchasers
Ct guns are things in interstate commerce so authority to pass act under the CC
But violate the 10th A Congress cannot commander state and local officers to administer a
federal program and congress cannot commandeer state legislation
B: Congress Taxing & Spending Powers - Congress has the power to lay and
collect taxes, imposts, and excises, but they must be uniform throughout the
United States. [Art. I, 8]
Congress may spend to provide for the common defense and general
welfare. [Art. I, 8] This spending may be for any public purposenot
merely the accomplishment of other enumerated powers.
Congress can Tax and Spend for the general welfare (US v. Butler)
South Dakota v. Dole (1987) IS the federal withholding of a small percentage of highway funds
to states allowing public possession or purchase of alcohol by individuals under 21 years is
constitutional? yes
U.S. v. Morrison (2000) civil remedy for violence against women- No, congress cannot reach
private conduct under section 5 of the 14th A.
Katzenbach v. Morgan (1966); Voting rights Act- prohibits restriction on English literacy test
where applicant had studies in Spanish in Puerto Rico
Analyze under the necessary and proper clause is it plainly adapted to the goal of enforcing EP
and is it consistent with the letter and spirit of the constitution - Yes
City of Boerne v. Flores- REFRA
Congressional act to prevent or remedy a violation of the 14th A must be congruent and
proportionate, cannot redefine the scope of protection this is for the judiciary; so as applied to
the states it is unconstitutional; Ok as applied to the federal government
Nevada v. Hibbs (2003) - May an individual sue a State for money damages in federal court for
violation of the Family and Medical Leave Act of 1993?
Ct. Yes, Congress both clearly stated its intention to abrogate the States' 11th A. immunity from
suit in federal court under the FMLA and acted within its authority under section 5 of the 14th
A. by enacting prophylactic, rather than substantively redefining, legislation. "In sum, the States'
record of unconstitutional participation in, and fostering of, gender-based discrimination in the
administration of leave benefits is weighty enough to justify the enactment of prophylactic
[section] 5 legislation,"
congruent and proportional to its remedial object, and could be understood as
responsive to, or designed to prevent, unconstitutional behavior
Hamdi v. Rumsfeld (2004) habeus petition from designation and detention as an enemy
combatant
Does Pres. Have power to detain? Ct. yes, statutory power -
Does Hamdi have the right to due process? Ct-H. Fifth Amendment due process guarantees
give a citizen held in the United States as an enemy combatant the right to contest that detention
before a neutral decisionmaker. The plurality rejected the government's argument that the
separation-of-powers prevents the judiciary from hearing Hamdi's challenge
Boumediene v. Bush Military Commissions Act does not satisfy Suspension Clause
(i) Actions taken while in Office (official acts) President has absolute immunity in
perpetuity (Nixon v. Fitzgerald)
Nixon v. Fitzgerald (1982) civil suit for damages against a sitting President for Actions while
in office absolute immunity unique role of the president
(ii) Actions taken prior to Office (unofficial acts) President has no immunity, not even
temporary immunity while in office (Clinton v. Jones - no worry about decisions while in
ofiice no chilling effect
1. Is it state action?
3. Level of scrutiny
4. Goal
5. Fit
14th A applies to the states reverse incorporation through the 5th A. and applicable to the federal
government
US v. Carolene Products higher scrutiny for fundamental rights and for discreet and insular
Rational Basis Test (Exceptional Cases with Bite) when? Severely under or
overinclusive - nature of the burden & bare animus
U.S. Department of Agriculture v. Moreno (1973) fed law denying food stamps to households
containing unrelated individual unconst
Ct. legislative history revealed acct motivated by desire to exclude hippie communities Bare
congressional desire to harm a politically unpopular group cannot constitute a legitimate
purpose
City of Cleburne v. Cleburne Living Center, Inc. special permit required by city for building a
home for the mentally retarded violates EP
CT rational basis for clarification based on mental disability, but cannot be based on irrational
prejudice and cannot give effect to private biases through law
Why RB?-amourphous group, not politically powerless, slippery slope
U.S. v. Windsor (2013) Does the Defense of Marriage Act, which defines the term "marriage" under
federal law as a "legal union between one man and one woman" deprive same-sex couples who are legally
married under state laws of their Fifth Amendment rights to equal protection under federal law?
Yes: the purpose and effect of DOMA is to impose a "disadvantage, a separate status, and so a stigma" on
same-sex couples in violation of the Fifth Amendment's guarantee of equal protection. the majority opinion
did not address the issue of whether or not the Equal Protection Clause required laws restricting the
definition of marriage to be reviewed under a rational basis or strict scrutiny standard so rational basis with
bite
Affirmative Action & School Integration, - SS Why? (1) never benign;(2) badge of
inferiority on benefitting minority; (3)color blind principle; (4) racial classification
prolongs civil strife; (5) smoke out invidious discrimination
Grutter v. Bollinger (2003) - Grutter, a white resident of Michigan, applied for admission to the University
of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161. She was
denied admission. The Law School admits that it uses race as a factor in making admissions decisions because
it serves a "compelling interest in achieving diversity among its student body. critical mass upheld
Ct. Const. SS!!!!
Diversity in higher education is compelling goal!
Fit narrowly tailored 5 factors
Parents Involved (2007) - School District allowed students to apply to any high school in the District. Since
certain schools often became oversubscribed when too many students chose them as their first choice, the
District used a system of tiebreakers to decide which students would be admitted to the popular schools. The
second most important tiebreaker was a racial factor intended to maintain racial diversity. At a particular
school either whites or non-whites could be favored for admission depending on which race would bring the
racial balance closer to the goal.
Ct. Uncost.
The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
racial diversity can be a compelling government interest in university admissions, but it ruled that "[t]he
present cases are not governed by Grutter."
no individualized consideration of students, and it employed a very limited notion of diversity ("white" and
"non-white").
"Racial balancing is not transformed from 'patently unconstitutional' to a compelling state interest simply by
relabeling it 'racial diversity.'"
. The District also failed to show that its objectives could not have been met with non-race-conscious means.
Kennedy concurrence - District's use of race - unconstitutional but stressed that public schools may
sometimes consider race to ensure equal educational opportunity.
Compelling inetret diversity; integration
Fit considere race-neutral alternatives
1) site selection
2) attendance zone
4) recruitment
5) track data
Washington v. Davis (1976) literacy tests for policy officers disparate impact on blacks does
it violate the EP?
Ct. No - in order to violate EP both disparate impact + discriminatory purpose
Palmer v. Thompson (1971) desegregating city closed down 5 public swimming pools does it
violate EP?
Ct. No only discriminatory purpose but has to have discriminatory impact no right affected,
city could choose not to have swimming polls at all and all were equally affected
Personnel Administrator of Massachusetts v. Feeney (1979) preference for hiring veterans in
civil service jobs is facially neutral but has a desperate impact on women, does it violate EP?
Ct. No.
Even if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional
under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose
Discriminatory purpose implies more than intent as volition or intent as
awareness of consequences. It implies that the decisionmaker - selected or
reaffirmed a particular course of action at least in part because of, not merely in
spite of, its adverse effects upon an identifiable group
1. What is the classification? For a facially neutral law, plaintiff must show that the law nevertheless is a
racial classification (or gender or other category of heightened scrutiny) because it is a pretext for discrimination by
proving:
YES for BOTH IMPACT & PURPOSE= NO for Either IMPACT or PURPOSE=
Law classifies based on race (or gender, etc.) Law does not classify based on race (or gender, etc.)
4. Burden on govt
Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724 (2003)
state
Miss. Univ. v. Hogan(1982) nursing school only for females, males allowed to audit
Ct Unconst.
Goal state argues affirmative action; court looks at ACTUAL PURPOSE = gender stereotypes
Fit men are allowed to audit
2) Too adversarial for women have to change the whole program not fit for all men
either, some women and some men would do it
Nguyen v. INS (2001) different rules for citizenship depending on mother or father citizen
Goal actual parent prevent fraud; opportunity for a relationship; facial discrimiantion on
gender
Ct. based not on stereotype but on biological differences
(2) Action by Congress or the President, ( but not federal administrative agencies) RB
Illegal Aliens RB
Banning contraceptives for under 18; age under EP does not get SS, but contraception is
fundamental right so SS
A. Incorporation the Application of the Bill of Rights to the States Due
Process Clause of the 14th amendment the liberty interest protected substantive
Due Process. The privileges and immunities Clause if the 14th A. not used for
incorporation and not used at all until 1999.
West Coast Hotel v. Parrish (1937) validity of min. wage law in Wshington for
women and minors.
Ct. upheld. Rational basis review for economic legislation reasonably related
to legitimate purpose No fundamental right to freedom of contract!! Death of Lochner Era.
Defer to legislature to fix markets.
Ft4 heightened scrutiny for fundamental rights should not be trampled upon
by political process - Bill of Rights and some other rights (important for political
process)
1. First trimester state my not regulate, no state interest in fetal life before
viability; no interest in maternal health abortion safer than childbirth
No trimester framework
Line is viability post viability state can regulate and ban, with exceptions for liwf and
health of mother
Before viability state can regulate for health of mother and life of fetus as long as no undue
burden when regulation has purpose or effect of placing substantial obstacle in the path of
the womans choice small obstacles,
incidental increase of expense is not;
court is actually looking at effects
promotion of childbirth and promotion of womens helth- - permitted
7thc circuit heightened scrutiny balancing test govt. burden to how promotion of goal,
plaintiff burden to show obstacle
2nd Circuit rational basis, only complete ban I uncost.
D. Right to Marriage
Loving v. Virginia (1967) Virginia interracial marriage ban
Marriage I fundamental rights Skinner procreation
Ban is uncontitutional
Zblocki v. Redhail (1978) statute - if a person has minor child and you owe child support you
have to have proof that you paid and evidence child will not be burden on the state; did not
provide for an exception for the truly indigent
FR to marry; significantly infringed direct and substantial interference, (not every regulation
amounts to a significant infringement, if not rational basis) ; SS should be applied: goal
substantial, but mean not narrowly tailored, there are other less restrictive ways like garnering
wages
Lawrance v. Texas (2003) Texas ban on homosexual sodomy uncont. Under the Due Process
Clause
Majority, Kennedy
Overrule Bowers v. Chadwick Bowers wrongly framed it as right to engage in homosexual
sodomy and held no such FR
Kennedy - FR to intimate association or consensual private adult sex (not clearly framed)
History and tradition - history and tradition are the starting point, but not in all cases the
ending point in substantive Due Process
Morality Our Obligation is to define the liberty for all, not to mandate our own moral code
(How I then this different from Gonzlez v Berhrard, where it was moral outrage tht motivated the
law)
OConner want to use EP moral disapproval of group, bare animus against politically weak
groups
Robertss dissent: this I changing the definition of marriage, leave it to the states; judicial
overreach; what about multiple marriages? How can state ban polygaamy
E. Right to Bear Arms
DC v. Heller (2008)
Enumerated right
RB with bite? cannot survive under any scrutiny
Narrow reading - It is in your home, cant have an outright ban, but all kinds of other
regulation are OK
Text
Scalia prefatory clause, does not limit or expand the operative clause
Srevens dissent about state militias, militia men in the several states
History
Scalia self-defense of home
Stevens
Precedent
200 years of precedent with no such right
Scalia it w not on point the precedent
Harper v. Virginia State Board of Elections (1969) poll taxes ($1.50 as a prerequisite to vote)
violate the EP Clause
Right to vote - FR, therefore any classification that burdens it is subject to Strict Scrutiny
Wealth, like color and race irrelevant to ones ability to participate intelligently in the electoral
process
Invidious discrimination there are less restrictive alternatives
Literacy test constitutional ability to read and write relevant to exercise of franchise, although
subsequently outlawed by federal statutes. Court upheld the federal statutes in Katzenbach v.
Morgan, (1966) valid exercise of section 5 of the 14th A. power
Reynolds v Sims (1964) malapportionment in state elections rural areas dramatically more
voting power than urban areas violates the EP clause
Legislators represent people, not trees or acres.
One person, one vote! And democratic process will not resolve the problem, because political
incumbents have a vested interest in the system as it is.
Federal analogy with the Senate does apply the state were sovereigns, political compromise,
not the same with cities and counties they were never sovereign and were created by the state
One person, one vote applies to the state elections and the House of Representatives, but
not to the Senate
Bush v. Gore (2000) Does the Florida State Supreme Court order standard intent of the
voter for the manual recount violate EP? Yes
Request for injunction was granted to Bush and stopped the hand recount 5-4 decision on
Heard the case on the merits
Ct. Majority no standard, because different counties different standards; arbitrary;
Remedy Ct reverse the Florida S. C
Why protect?
1. self-governance
3. promoting tolerance
4. advancing autonomy
o Vague if a reasonable person cannot tell what speech is prohibited and what is
permitted (unduly vague law violated Due Process, whether or not speech I
regulated) powerful tool, because it allows even those whose speech could
lawfully be prohibited under the law to mount a challenge!!!
Fairness
o does not burden substantially more speech than necessary but does not have to
be the least restrictive alternative)
Compelled speech
Government as a speaker
o Is it government speech? Govt can speak anyhow. May be view point based
Rust v. Sullivan (1991) Title X Funds may not be used by the recipient doctors for abortion
related services such as counselling, information, etc upheld
Ct. govt may choose the type of subject matter subsidized; doctors are free to speak about
abortion outside of the title X project
Later in Velazquez characterized as govt. speech
Spending programs may not impose conditions that limit First Amendment
activities
of fund recipients outside of the scope of the spending program itself.
While the government could prohibit the use of federal funds to advocate for
or support
abortion [Rust v. Sullivan, supra], it could not require recipients of federal
funds
given to organizations to combat HIV/AIDS to agree in their funding
documents that
they oppose prostitution. [Agency for International Development v. Alliance
for Open Society International, Inc., 133 S. Ct. 2321 (2013)]
United States v OBrian (1968) draft card burning to protest the Vietnam war, convicted for
violating a federal statute prohibiting willful destruction and mutilation of a registration
certificate upheld, no violation of the 1st A.
Ct. Purpose unrelated to suppression of expression , Ct should not look after an illicit
motive by the legislature
Ct. directed at the message and does not survive strict scrutiny
Austin govt can restrict corporate expenditures, limit distortions on the market place
Citizens untied v. Federal election Commission (2010) read it!
Spending money as expression effects the quantity and depth of issues covered direct
regulation of political speech
Ct. Austin overruled corporations may spend as much as they want do not have to go trough
pacs?
Can limit direct contributions to an individual candidate only both individuals and corporations;
FCC v. Pacifica Foundation (1978) GCs filthy words show aired on the radio
Medium by medium approach
Low value speech, invasive; once harm is done - too late to turn off
Internet different more protected under First Amendment affirmative steps; filters by parents;
warnings protected
Students speech
Tinker v Des Moines students wearing black armed bands to school to protest Vietnam War and
get punished violation of the 1st A.
Ct. only when school meets the burden of proving substantial disruption of school
environment
Roberts v. United States Jaycees (1984) by laws od organization excluding women and men
above 35 as regular members, admitting them as associates with limited rights; mission to foster
young men civics organizations; two local chapters started including women as regular
members, central organization threatened to revoke their charters and local chapters argue that
this violated Minnesota HR Act, Court of Appeals held requiring the organization to admit
women violated their right to freedom of association, Supreme court reversed.
Ct: Intimate association vs expressive association
Intimate association enjoys utmost protection - SS for infringement; Govt cannot enforce anti-
discrimination laws
Family and friends associations
Factors closeness, selectivity, small numbers, seclusion from others (choices in family
and friends)
Expressive association enjoys protection together for some 1st A. purposes (not for purely
economic purposes- not protected by the 1st A
Compelling state interest
Unrelated to suppression of ideas!!!!
Cannot be achieved through means significantly less restrictive Strict Scrutiny
If core purpose is discriminative govt cannot force it to change its core message
Ct. not an intimate association indiscriminate admission except for older men and women,
large group; ; HRA burdens expressive association but interest is compelling and burden is
very small on the expressive purposes (the records, the by laws allowing women as associates)
Boys Scouts v. Dale (2000) openly gay scouts leader, Boy Scouts revoke his membership
2. Does govt. significantly affect the ability to advocate public or private viewpoints?
Rumsfeld v. FAIR (2006) Solomon Amendment if law schools do not give equal access to
military recruiters they would loose certain federal funds
Issues: Can Congress pass this law yes, spending power; but Congress could have used the
power for raise and support money and regulate directly
Issues: Unconstitutional conditions? No, because they Congress can regulate directly because
there is no violation if free speech or freedom of association
No that deferential. Back to Jacees the court will enquiry into the message and how it is
burdened, but Dale is still alive so use on exam
Will the regulation impede the groups message? Defer or not to the group?
Jacees not deferential to the groups, lets examine what the message is; only groups openly
discriminative are outside the applicability of anti-discrimination law
Dale court derefs to the message stated in litigation; big hole into anti-discrimiantionlaw
FAIR seems to return to Jacees, and limit Dale to its facts?
Hybrid claim
RFRA - City of Bouerne beyond Congress authority as to the states, but valid as to federal
acts the Sherbet test has been revived for the federal government
B. Establishment Clause
Theories
Wall of Separation
Neutrality netral b/n rel and b/n rel and atheism
Accommodation - no coercion and establishment of official church
1. Secular purpose
Van Orden v. Perry (2005) monument on Texas Capitol Hill, been then for 40 years, among other
monuments in a large physical setting
Ct. distinguishable from Mc Creary Breyer if its not divisive, and not overtly religious
purpose ineed not purge public s[ace from all religion this would be more divisive and hostile
to religion
Incorporation
Reverse incorporation