CONLAW

OUTLINE I. The SC goes back & forth between 2 viewpoints: a. Constitution is supreme, but the judiciary interprets the meaning of the Constitution. i. Based on theories of judicial supremacy & distrust of elected government 1. 0 % trust = no regard for elected officials 2. Change will be slower b/c the judiciary won't be paying as much attention to the quickly changing preferences of elected government b. All 3 branches of government play an equal role in interpreting the Constitution i. Based on judicial deference & more trust of elected government 1. 100% trust = the judiciary really doesnt do anything 2. Changes will be faster b/c the court will defer more to elected government preferences a. Implementation: Court doesn't control the budget or military & must rely on elected gov't to implement its decisions; if it believes elected gov't won't implement a decision, the Court might tweak the decision to avoid the conflict. i. Ex. Marshall knows the gov't won't enforce if Marbury wins; the Court knows in Brown v. Board of Ed. that state gov'ts won't enforce desegregation, so declares it unconst. but makes no enforcement orders. b. Public Response: Court might alter decisions, such as from Roe to Casey, based on the response of elected gov't to an earlier decision. c. Changing Social Norms: Court may also respond to changing societal norms, i. ex. the Court reversing itself on same-sex sodomy from the 1980's until 2003. II. Language does not always answer the Q, different theories of interpretation lead to different arguments. a. Adultery Clause Hypo: interpreting words when meaning is not obvious. i. Claimant A: wants original meaning @ time 10 Commandments were enacted: adultery is a married woman having sex with a man other than her husband. ii. Claimant B: wants the meaning to evolve and modernize against sexism. Adultery used to be based on the property interest of a man in his wife; today the purpose of adultery is to protect against dishonesty and deception between spouses. iii. Claimant D: has had lustful thoughts but no physical affairs. In the New Testament, Christ stated that having lustful thoughts means you have committed adultery in your heart. 1. you are the trustee of a foundation. So you could look to what the founders of the "Concerned Citizens" think adultery means. A PAGE OF HISTORY (10-20% of the exam, thematic Q) III. Marbury v. Madison Establishes power to interpret the Const. and declare govt acts invalid. (2 ways to look @ this case. (1) Cynical: Marshall was pushing a federalist agenda. (2) Less cynical: Marshall was a Federalist and couldnt help but see the world through a federalist lens.) a. Facts: Big issue of the day is the power of the courts to check the other branches of govt. President Adams (federalist), appointed Marbury as a justice of the peace in the last days of his administration. The commission was not officially delivered before Jefferson took office. John Marshall was the secretary of state in the Adams administration, the one who didn't deliver the original commission. Arguably he should have recused himself from presiding over the case. Marshall has a balancing act. Marbury can't win, b/c (1) Jeffersonians would ignore and disobey the order (2) could impeach Marshall (3) damage the court. However, he also opposes the Jeffersonians & politically wants to make them look bad. So he has to find that Marbury is right, but Marbury also can't win. Also wants to strengthen the judicial branch, which was dominated by Federalists at the time.

b.

IV.

Holding: Congress was without the authority to grant the Court the power to issue a mandamus c. Reasoning: Marshall first discusses merits: Marbury should get his commission. Starts w/the merits instead of jurisdiction. Sequence allows him to 1st side w/the Federalists & essentially say the Jeffersonians are acting illegally, but then later avoid the ire of the Jeffersonians by finding there is no jurisdiction to give a remedy. i. Vesting: finds that a commission is vested when signed by the President. Delivery is not necessary. 1. If he had come to the opposite conclusion, Madison would have acted legally and Marshall couldn't make any of the other arguments he wanted to ii. Remedy: it is the essence of liberty that an individual can seek a remedy from the law. Is Marbury entitled to a legal remedy at all, or does the executive branch have discretion on whether to deliver the commission? How do we figure out whether mandamus is appropriate? Marshall focuses on the distinction between decisions that are purely political, or that affect individual rights. 1. Ex. Secretary of State is a purely political officer who serves at the pleasure of the president, so there would be no authority for the court to determine who the cabinet officers are. On the other hand, Marbury is not a purely political office and has a five year term to serve. This is an individual right, not a discretionary Executive act, so the Executive is amenable to litigation. So the judiciary has power over this situation. Any other conclusion would lead to an all powerful president who is not subject to lawsuit. d. Then he discusses jurisdiction: Even though Marbury should get his commission, the court has no power to decide the issue b/c of lack of jurisdiction. i. Meaning of 13: The Judiciary Act authorizes the Court to issue a mandamus. 1. The statute gives the Court power to issue writs of mandamus in original cases. a. If Marshall had concluded that it gave power only in appellate cases, Marbury would have missed out on declaring the act unconstitutional. b. If the statute said either original or appellate, would have concluded that it should have been an appellate case, but could have still given the mandamus. c. Only way under the statute that Marbury went to the right court according to the statute is if the statute gives mandamus powers only in an original case. Judicial Supremacy v. Deference: a. Abortion example: 1973: Roe v. Wade recognizes women's rights to terminate a pregnancy, at least in first trimester. Before Roe, elected gov't had outlawed abortion. When the gov't enacted the legislation, they had the opportunity to debate whether the statute is Constitutional. By enacting the statute, Congress essentially states that they think it's constitutional (Congress did not debate constitutionality of the Affordable Care Act). i. When the case works into court, elected gov't must defend its own laws. The Solicitor General's office participates in federal cases and sometimes in state cases. Usually the SG defends constitutionality of federal laws, but not always (ex. not defending DOMA). In state cases, SG might be on either side. States are parties to litigation over state laws and usually have state SG offices, defending their own laws.

V.

If we lived in true judicial supremacy, this decision would have been the end of it. Roe would stand and judiciary would not respond to efforts of elected gov't to undermine Roe. But we dont live in complete Judicial Supremacy, so: b. How can elected gov't respond to a decision? i. Legislative branch: 1. Try to pass laws to get around the decision: try to cut into the abortion right without specifically disobeying the decision. a. Create limitation on abortion availability, make it so expensive to operate an abortion clinic that it's prohibitive economically b. Regulate the procedure, ex. limits on trimesters or techniques c. Refuse public funding for abortion providers, don't fund Medicaid or assistance for abortion. d. Create protections for medical personnel so that they don't have to perform the procedure. e. Limit who can seek the procedure: age limits, notification for husbands and parents, veto power for parents f. Waiting periods 2. Amend the Constitution a. Congress considered amending the Constitution to define a fetus as a person, but never did ii. Executive branch 1. Regulations and gov't agencies a. Ex. FDA could refuse approval of particular drugs, regulate the use of fetal tissue for research 2. Federal aid: restricting foreign aid to nations which perform abortions 3. Public speech by President against the decision Factors affecting Court's decisions: a. Outcomes: Marshall, Southern Justices/ Dred Scott, laissez faire b. Precedent: distinguish (blue on handout) / overturn (red on handout) / following (as in Casey) c. Visions of the Court's role: Marshall (judicial duty to say what the law is), Cooper (last word), Lochner (majority v. Holmes). See Griswold d. Socio-political: historical periods reflect changes in response to changes in society. i. Ex. Justice Roberts after 1936 elections, "switch in time," realizes changes in society; Presidential appointments, ex. Alito replacing O'Connor; risks of elected gov't not enforcing, or knowledge it will enforce, judgments ex. Marbury, Cooper. MARSHALL COURT: Marshall interprets several provisions of the Const. to strengthen federal powers to limit state prerogatives. As a federalist, he wanted to strengthen the judiciary-- He had a broad view of the role of the judiciary. a. Martin: USSC disagreed with VA Ct. App. After USSC remanded a decision, VA Ct. App. declared that USSC lacked the authority to review VA courts. VA argued that it was its own sovereign and its own interpretation of the federal Constitution should stand. Reasoning: must ensure uniformity. State interests might obstruct or control admin. of justice. Federal system sees that the federal courts ensure uniformity of federal law. b. Cowens v. VA: State granted a monopoly and excluded someone from operating under a federal license. USSC said it was within Congress' power under the Commerce Clause, and Congress can pre-empt the

1.

VI.

VII.

state's power to regulate. States can't override valid federal actions. c. Chisholm v. Georgia (11th amend.): USSC confronts the issue of whether a citizen of another state can go into federal court and sue a state for a debt. USSC upheld this. Georgia and other states were freaked out. Outlawed collection of debts against states and made it a crime punishable by death without benefit of clergy. This prompted 11th Amendment to protect the states. d. Gibbons: NY had granted a state monopoly on steamboats, prevented people with federal licenses from operating. What is the scope of Congress' power to regulate interstate commerce? i. Ex. is child labor part of interstate commerce? Does the fed gov't have power to regulate some intrastate activities? What about 10th amend.: some argue that it is intended to preserve state prerogatives and limit the commerce clause. ii. In Gibbons, USSC says that Congress' power is complete under the commerce clause and is not limited by the 10th Amendment. On the commerce clause itself: broad interpretation. Commerce is traffic, but "something more:" includes all phases of business. Congress may regulate activities occurring inside a state as long as it has some effect on interstate activity. e. McCulloch: Was the interpretation of the Const. in McCulloch inevitable, or could we answer these legal questions differently? Const. challenge to the 2nd National Bank. Congress and the executive had debated the constitutionality of the Bank at the time it was enacted. Big question: must Congress have explicit authority, or are there implied powers? i. State of MD taxed the federal bank. MD wanted its own state bank and wanted to destroy the federal bank. 1. MD argument: power of the states emanates from the people and states have authority as sovereigns to regulate the federal gov't. a. Marshall refuses that and argues that the power of the federal gov't derives not from the states' ratification, but directly from the people. (This is debatable). Marshall also says "We must never forget it is a Constitution we're expounding." Courts must remember the document was intended to stand the test of time. It can't become outdated. f. Necessary and proper clause i. Congress has power to enact laws necessary and proper with respect to its explicit powers. ii. Is "necessary and proper" limited to what is absolutely necessary? 1. This would be a restraint: can only enact laws vital to exercising explicit powers. 2. Marshall rejects the "absolute" view. a. The Framers used the word "absolute" in other places and chose not to use it in this clause. b. Necessary and proper follows the explicit powers. By coming at the end of the list, it is intended to expand those powers. c. Test: if the ends are legitimate, all means which are appropriate to those ends, and not prohibited, are constitutional. d. This is an expansion of Congress' powers. g. 10th Amendment i. Doesn't use the word "express" ii. Broad view of Congressional power, not limiting power h. Supremacy clause i. If federal laws are supreme, can't allow states to take action which will effectively nullify the federal law. ii. If states can tax the bank, states can effectively destroy the bank. This would undermine the federal law. Civil War/ Reconstruction Period

a.

b.

Dred Scott: Deciding the constitutionality of the Missouri Compromise (effort to keep slave and free states together in the union by dividing slave and free states by latitude). Dred Scott was a slave in MO, traveled to IL (free state), and returned to MO. Argued that because he had been in a free state, he should be a free person. i. Holding: the court has no jurisdiction because Dred Scott is not a citizen and cannot invoke jurisdiction of federal court. 1. Originalist argument. ii. Dicta: the court still wants to decide the constitutionality of the compromise. Court declares the MO Compromise unconstitutional b/c Dred Scott is the property of his owner & MO Compromise, by declaring certain states to be free, unconstitutionally takes property without due process of law. 1. Obviously the nation rejected this as seen by the Civil War and Emancipation Proclamation, 13th Amendment Cases during this era generally recognize states' rights (all of these cases limit the 14th Amendment). i. Plessy and Slaughterhouse were after the Civil War, interpreting the reconstruction amendments, particularly the 14th. 1. Interpreted this in a way to bolster states' prerogatives. Limit power of fed govt, limit power of individuals to use the const. to challenge state action. a. Plessy: Court upholds "separate but equal," allowing some rail cars to be reserved by race against an Equal Protection challenge (only exception to the rail-car separation is for caretakers). b. Slaughterhouse: effort by butchers to challenge a monopoly, using 14th Amend. LA granted a monopoly; those who didn't benefit from the monopoly sued under Equal Protection (right to pursue a job) and under Due Process and Privileges and Immunities.

i. Under EP: court said EP was only about race and this is a non-
race case. to pursue a job. 1. DP: nothing in DP about unenumerated rights. (This view is later overturned) 2. PI: court rejects idea that PI provides any rights besides national rights (like habeus corpus) and doesn't incorporate the Bill of Rights against the states. (Of course, now we know this was overturned and the BofR is incorporated against the states) ii. Note: original Bill of Rights applied only to the fed govt. 14th Amend. was first time we've seen limits on state rights. c. Hans v. LA: even if you're suing your own state for money damages, cannot use 11th Amendment to bring suit. d. Civil Rights Cases: Court invalidates a public accommodation statute by Congress, which stated that hotels and restaurants must serve all races. Court said that Congress' power to enforce the 14th amendment can be directed only against states, not against private businesses like public accommodations. Lochner era (1900-1936) Free market, laissez-faire econ to strike down govt. regulations. US has changed: increased manufacturing and infrastructure, urban population explosion. Govt is much more active and regulatory, seeking to control businesses

ii. Under DP and PI: this is an economic liberty argument, freedom

VIII.

a.

IX.

Lochner: economic liberty. i. State regulation/ Congress imposes restraints through Commerce Clause 1. Congress placed maximum hours on a bakery. Owner of bakery argued that Congress was interfering with his freedom to contract with employees. 2. Court sees itself as a monitor on govt choices: why did NY have this regulation? a. According to the state, working too many hours in a hot bakery is damaging to health. Police power argument, health and safety of citizens. b. Bakery claim: this law is really about unions trying to control terms of employment. ii. Holding: the law is about redistributing wealth, not health and safety. Concentrates on the quality of the bread people are eating, not the health of the baker. The law is not about health, it's about economics, thus invalid. iii. Dissent: questions Court's authority to investigate the purpose of the law/ the law really is about health and safety/ Holmes: Court can't use its own power to decide this economic regulations are appropriate or not. b. Law limiting women's work hours: upheld because women's physical structure justifies limits on the "conditions in which she should be permitted to toil." Women's physical condition should allow special regulation. So the Court is picking and choosing the reasonableness of the regulations. c. **Hammer**: 1916 law passed by Congress to limit child labor, based on commerce clause. In NC, father sues to say the law is unconstitutional. Law applied only to goods used in interstate commerce produced by child labor. i. Holding: Goods that cross state lines are not inherently dangerous; thus, Congress' authority is limited to the actual movement of those goods, not the manufacture of those goods. The mining of coal or making of goods is not commerce. 1. Some say this misconstrues Gibbons, because child labor affects the price of goods and thus the market, which would mean that Congress should have power. Court doesn't overrule Gibbons but tries to distinguish it. ii. Second holding: though some states having child labor could be unfair and create unequal competition, court says this doesn't matter iii. Dissent: Congress has the power to regulate interstate commerce; the law speaks only to goods moving across state lines; thus Congress has the power to regulate the production of those goods. 1. Over time, the Court overturned the Hammer view and took a broader reading of the Commerce Clause. The New Deal a. West Coast Hotel: overturns some Lochner era restrictions-- freedom of contract isn't in the Const. With respect to economic liberty, essentially says it's not real. i. Rejects unenumerated rights 1. (But we have unenumerated rights all over the place now, especially the spectrum of privacy rights Later revival of unenumerated rights for personal rights, not economic liberty). b. Darby: overturns Hammer, Congress reenacts child labor legislation and court upholds the law (commerce clause). c. Wickard v. Fillburn: issue is Congress' power to regulate the production of wheat. Farmer grew homegrown wheat for his own use; was this subject to the commerce clause?

lines, not being sold. But then court changes its mind. 1. Potential relationship between homegrown wheat and national market: the farmer then is not buying the wheat from a distributor, so it affects demand in the national market. The wheat then isn't entering the market; aggregated among all the farmers growing wheat, it's enough to impact the market. a. Court doesn't ask Congress to prove these economic facts; but says "we cannot say" that Congress was wrong. i. Very deferential ruling to elected government. Discussion of Affordable Care Act: sounds like if Congress can regulate homegrown wheat, can probably regulate healthcare. Argument against: farmer was already going wheat, but ACA seeks to make people engage in commerce they weren't already engaging in. Argument in favor: the uninsured are still part of the marketplace because they use emergency rooms, people choosing not to purchase insurance are affecting rates for those who do purchase insurance. b. Devins: "wrong" theory to explain this is that the court was worried about court-packing i. (Idea that justices over 70 who didn't retire would be assigned a junior justice, up to 15 justices. So if Roosevelt appointed the 6 justices, they could get a few allies among the original 9 and rule in favor of any of Roosevelt's policies). Problem: Roberts, had cast his vote before the court packing plan was introduced c. More likely: after Roosevelt's 1936 landslide, Roberts realized the nation had committed itself to natl regulation & there was nothing he could do to stop it. i. Over the next 3-4 years, Roosevelt appointed several justices who embraced the New Deal d. Heart of Atlanta: ct upholds public accommodations legislation enacted under the Commerce Clause as part of 1964 Civil Rights Act. Rather than overturn civil rights cases and say Congress can legislate this under 5, court said Congress could do this under CC. i. Easier to give the court an "out" to interpret in a different way than try to get the court to overturn a precedent. ii. Congress feared that using 5 would make the court resist overturning its precedent. So Congress relied on commerce powers instead. People using hotels and restaurants influences the national market. iii. But Congress did push the Court to overturn Hammer & there weren't many other routes to take. X. Warren Court, Nationalistic; Restrains state authority; expanding rights under Constitution for private individuals to go against states in court a. Heart of Atlanta and Katzenbach uphold Congress' power under the commerce clause (CC) Why didn't Congress use CC in 1875? i. Society was very different; business was more contained within a state ii. Economy was more national in the 60's iii. In 1875, there were new Constitutional amendments so it was natural for Congress to view civil rights more under the new 14th amend. iv. 1964 Civil Rights Act dealt with race and ethnicity; gender wasn't included. b. Court upholds the Constitutionality of the Public Accomodations Act under the CC b/c commerce was being restricted because African Americans were not traveling. i. since it was so hard to find lodging; they aren't spending money at hotels and restaurants. Less food being sold, less food transported across state lines.

i. Justice Roberts: initially says, not interstate commerce. Wheat's not moving across state

c.

Standard of review: rational basis test. (Is there a rational basis for finding that racial discrim. by hotels affects interstate commerce? Are the means selected reasonable and appropriate?)

Heightened Review (burden on government) 1. 2. Is it explicitly a categorization or implicit? If so, is it a problematic classification

y Rational Review (presume govt is acting rationally) x Is it a fundamental right? Is it a problematic classification? If its a fundamental right (OR) a problematic class, the case is subject to heightened review. d. Deferential standard-- Congress doesn't have to make factual findings to the court, not a strong burden e. Doesn't need to be supported by evidence. Just needs to be not irrational, common sense. Just rationally related. XI. Hypo: Congress makes a law defining "improper marriage" as a marriage where both people are not 21, and "improper divorce" as anything other than adultery or desertion. Employers who put goods in interstate commerce cannot hire employees who have had an improper marriage or improper divorce. a. Arg 1: This may not be rational. Nothing to show that commerce would be affected by this law. b. Arg 2: This may be rational: if employers can't employ those people, this would restrict business. OR, if employers do hire those people, employer can't move goods across state lines. c. This is like the child labor setup. If the Act would influence interstate commerce, it's rational that the Act falls within the CC power. i. Distinguish from Child Labor theory? It cost less money to hire a child, and therefore lowered the cost of the good. Presumably people with/without "improper" marriages and divorces might be getting paid the same. ii. Is marriage being regulated by this law? Assume there's a right to marry and a right to divorce. Indirectly, it increases the cost of getting a divorce under certain circumstances and could influence whether you get the divorce or not. iii. Is it rational to think that improper marriage or improper divorces have anything to do with the quality of the worker? iv. Separate from CC: could also attack the statute under EP or other amend. XII. Rational Basis & Heightened Review a. will push for heightened review i. Will frame this as about the rights of individuals to define themselves through their sexual relations, not necessarily about sodomy itself ii. Implicit and ordered liberty iii. Argue that this is a problematic classification: homosexuality, gender

b.

XIII. XIV.

Govt will push for rational basis review i. Will look to the particular activity, not the right it implicates (privacy) ii. History and tradition iii. Argue it's not a problematic classification: 1. 1st, not a classification at all, and 2. 2nd, even if it is a classification it's not a problematic one c. Hypo: there is a law that you must pay money to use a public swimming pool. i. Fundamental right? No. ii. Categorization 1. explicit? No, everyone must pay. 2. Implicit? This does separate people into those who can pay and those who can't. Disparate impact creates a categorization based on wealth. 3. Arguendo: let's say this is an implicit categorization on wealth. Is this problematic? What makes a categorization, like race, problematic? a. Immutable, can't change it i. Some degree of control over wealth, more control than over your race ii. But those born into low socio-economic classes have a harder time earning wealth b. History of discrimination i. Low income has a strong history of discrimination c. Group lacks political power today i. If group has access to modern political process, may not be problematic because that group can advocate for itself: Poor lack political power as compared to other groups 4. As compared to race, does wealth share these qualities that make race problematic? a. Race should be irrelevant to gov't because there's no real difference among people on the basis of race. The only reason there are differences among races is that gov't has taken action against groups of people for nonsensical reasons. It's a social construct, discrimination. Races are essentially the same. b. Different from, ex., people with disabilities. There are real differences between people with different abilities (such as needing a wheelchair to enter a building) Hypo II: now it's a racially exclusive swimming pool. a. Clearly a problematic classification UNENUMERATED RIGHTS, FUNDAMENTAL? a. Some justices may recognize unenumerated rights as fundamental, while others may not. b. Some may see problematic classifications where others may not. Ex: is abortion a problematic classification or not? i. So the line on the RBR/ HR chart may be higher or lower depending on the issue and the Court.

Griswold v. CT Douglas, Clark Goldberg, Warren, Brennan Main opinion Concurrence Subst. DP rejected 9th Penumbras (1, 3, 4, Enumeration of certain rights does not deny or 5, 9) abridge others retained by people

c.

Harlan Concurrence Subst. DP/ 14th Balance needs of society with

Black, Stewart Dissent No Subst. DP No 9th No penumbras

 (not followed as precedent)

indiv. freedom Look to history and tradition to figure out what is Rational basis a fundamental right Implicit and ordered liberty review (RBR)

XV.

cast shadows of other rights (penumbras). 1. Doesn't want to impose laissez-faire, doesn't want to follow Lochner. ii. Goldberg, reads the 9th amend. to give unenumerated rights. 9th Amend. argument: different from the common view, that the 9th amendment was a Federalist amendment. Meant to say that the states could grant other rights; Bill of Rights is a floor, not a ceiling on what the states can provide. d. Griswold is a "wedge decision;" not framed in terms of the 14th Amendment. Once Roe happens, it's all about the 14th. In 1987, Bork argued that there were no privacy rights. Now every Justice on the SC agrees that there is a right of privacy, but the disagreement is over the test. i. Goldberg and Harlan's opinions start the trend toward recognizing unenumerated rights, how to identify fundamental rights Hypos: "implicit and ordered liberty" (Harlan) or "history and tradition" (Goldberg) a. What would you look to under each of these theories to figure out if there is a right to contraception? b. History and tradition i. Time of ratification of 14th, state practices ii. Or broader: traditions change. Look to recent Court approach, new legislation and state practices, popular opinion iii. How the ratifiers thought society might change in the future c. Implicit and ordered liberty i. Look back at history and tradition, societal norms ii. Plaintiff would argue that we should look to current norms iii. Consider consequences if this wasn't a right: gov't controlling your marriage or your right to seek medical care, bodily integrity 1. This is controversial because SC has the power to assess which gov't intrusions are tolerable and intolerable d. Once you find a fundamental right, what does heightened review mean? i. State must show a "compelling" end and that the means chosen are "necessary" to those ends. 1. CT argues that the law intends to prevent extra-marital affairs, preserve the family unit a. Goldberg agrees that preserving the family is a compelling end b. Traditionally, determining the "ends" of the law is for the legislature; court will sometimes challenge the ends, but it's less likely c. Anti-contraceptive statute intends to increase the risk of adulterous relationships, adding risk of pregnancy and disease i. But these means are too broad, and probably not even effective. d. Under RBR, this might pass muster: it's not irrational to think that prohibiting access to contraceptives might decrease the number of extra- marital relationships. However under HR, the means are not very well tailored to the ends. There are statutes which outlaw infidelity outright, which is a much better way to accomplish the ends. It's unnecessary to broadly include all married couples in the contraceptives ban. i. Ex. if the end is to prevent drunk driving, this CT statute is like outlawing all alcohol, but the narrowly tailored approach would be to simply outlaw drunk driving.

i. Douglas: penumbra argument. There are some amendments which mention privacy, and they

10

e.

f.

CT didn't really enforce this law against individuals; so if the state thinks the means of enforcement aren't worth it, then the law may not really work. Further, since some people could get contraceptives for the purpose of disease protection, this raises two issues: a. 1) contraceptives are available anyway. There are so many exceptions given for disease prevention that this law isn't really working towards the ends. b. 2) class problem: richer people can get contraceptives prescribed, but poor people can't, so they fall under the law. ii. Minnesota enacts an environmental statute, stating that plastic recyclables are outlawed, and only allow pulp recyclables. But it turns out that pulp recyclables are actually worse for the environment than plastic. 1. Under HR: the ends are to protect the environment. Legitimate. The means are ineffective, thus not necessary to the ends. Not Constitutional. 2. Under RBR: ends are still legitimate. Is it irrational that a lawmaker who's never studied the issue might think that pulp products are less harmful than plastic? a. Not obligating govt officials to study the issue. Question is whether it's rational for an ordinary person, who hasn't studied the issue, to think the law might work. b. Theory is that govt has an opportunity to return to the issue and fix its own mistakes. Not unconstitutional to make a simple mistake. CT has a statute outlawing marijuana. A married couple says that marijuana is a sex stimulant, and they should have a constitutional right to have access to marijuana for the purposes of their sexual relations. i. What's the right here? Put as sympathetically as possible, plaintiff would say this is like Griswold because it's about private sexual choices of married couples. Unlike Griswold because this is not about limiting the size of your family, but about simply using an aphrodisiac. 1. Under RBR: preventing drug use is a legitimate end: it's a harmful substance. Banning it is rationally related to preventing drug use under RBR. 2. Under HR: ends are still legitimate. State's argument that there should be no exemption in the marital bedroom: marijuana is inherently harmful, so the state's interest in regulating drugs is compelling no matter where the drug use occurs. Prohibition is the only way to accomplish the ends. Other argument by the state: the problem is how people behave when they consume the drug. State could still say that this is compelling because consuming a drug in the marital bedroom can still affect behavior outside in the world. Counterproductive environmental statute. Under RBR, gov't has no burden to show that the law works; under HR, gov't would have a burden to show the law works. This is a RBR because there's no fundamental right to use plastic and the classification is not problematic. Also, if plastic is harmful and the gov't bans it, gov't can uphold its burden even under HR, even if there are other harmful substances the gov't doesn't ban.

2.

PRIVACY

I.

Roe v. Wade, Strict scrutiny case a. Application of the standard, under RBR, state would probably win. i. Ends must be legitimate 1. TX is trying to protect maternal health and future life 2. Nobody disputes these ends; in fact, they are not only legitimate but also compelling

11

ii. Means must be rationally related

It's rational that w/out a fact-finding burden, one might think maternal health might be adversely affected by the abortion procedure (even though facts speak otherwise) 2. Of course, prohibiting abortion promotes the interests of future life, so that's also rational Strict review (what the ct uses) Ends must be compelling, means must be least restrictive and narrowly drawn i. Ends must be compelling 1. Court accepts that the interests are compelling ii. Least restrictive means 1. sweeping ban of abortion is not the best way to advance these ends a. Maternal health: For the purposes of maternal health, may prohibit abortion if it can be shown that the abortion would be inherently dangerous to the mother i. In the first trimester, an abortion is no more dangerous than pregnancy & in fact is probably less dangerous. Prohibition of abortion doesn't serve maternal health at all. ii. In the second trimester, state may regulate abortion for the purpose of ensuring maternal health b. Future life: i. State interest in future life vests when the human life is viable, which happens sometime around the third trimester 1. State wants future life to be compelling at conception; but can't sustain its burden of proof because there's so much disagreement. Court doesn't say that Texas is actually wrong; just says that physicians, philosophers, and theologians all disagree. It's thus not enough that the state is maybe right; the state must be really right (maybe not 100%, but close) This is beneficial to the plaintiff; state must prove that it's right, not just maybe right. 2. Court does not always hold to this standard in strict scrutiny cases, though. a. Ex. Japanese internment cases: gov't contends that in order to prevent espionage by Japanese-Americans, it's necessary to inter them. Of course the gov't can't prove that Japanese-Americans will definitely engage in espionage if not deterred. Roe is also controversial because of the Court's determination that there's a fundamental right HISTORY & TRADITION: No Fundamental Right. i. Justice Rehnquist, in dissent, does not find a fundamental right. He looks to history and tradition, finding that: 1. a majority of states ban abortions, so there can't be a fundamental right to abortion.

1.

b.

c. d.

12

XVI.

At the time of the adoption of the 14th Amendment, many states prohibited abortion. ii. Justice Blackmun looks all the way back to Rome and Greece in his history and tradition analysis. He also concentrates on implicit and ordered liberty. 1. Different periods to look to for history and tradition: a. Rome and Greece (allowed) b. Constitution ratified (allowed) c. 14th ratified (prohibited) d. State practices since the 14th (46 of 50 states prohibited at the time of Roe) e. Blackmun looks at implicit and ordered liberty: i. Is control over your body paramount? Can you exercise choice irrespective of someone else's life? Lady Gaga blood connection example; once someone agrees to donate blood, can that person rescind help if it would mean that Lady Gaga would die? 1. Pregnancy is not always voluntary, unlike Gaga example. 2. Lady Gaga is an actual human life, out of the womb 3. Bodily integrity is most extreme when it's about something that is physically part of your body 4. No serious risk or consequences to the volunteer after the contract with Gaga is over, but consequences of childbirth are both risky and lifelong ii. Blackmun focuses on the experience of the woman after pregnancy, relationship between mother and child, social stigma, financial and family obligations 1. This all starts from the point that the fetus is not yet a human life 2. What about adoption: does that negate some of Blackmun's points about lifelong burden? a. Adoption isn't always an option: family situations can prevent adoption, perhaps someone may not be available to adopt the child, foster care system is not necessarily effective or acceptable conditions b. Simply being pregnant, even if you give up the child for adoption, is extremely expensive, social stigma, might lost your job or have other issues Casey, the court concludes that the trimester test is not central to Roe. Jettisoned in favor of the "undue burden" test. Court upholds Roe, but applies a different test which gives the state greater authority. a. POLITICAL CONTEXT: In between Roe and Casey: i. Ronald Reagan and George H.W. Bush nominate 5 Justices to the SC ii. Both of these Presidents call for the overturning of Roe iii. 3 of those 5 justices vote to uphold Roe, while trimming it back iv. Why are abortion rights reaffirmed, instead of rejected, with this political background in mind? 1. Perhaps the Justices did not have really strong anti-abortion feelings v. 1973: Roe --> States pass laws limiting abortion rights, Congress restricts abortion funding but protects clinic access, Executives waffle depending on political party --> 1983-85: Akron/Thornburgh: waiting periods and informed consent are rejected --> 1989: Webster: RBR for 2nd trimester regulations --> pro-choice movements in politics, states affirm abortion rights --> 1992: Casey: public opinion strongly supported abortion rights, but with more regulation.

2.

13

b.

c.

d.

e.

Court reaffirms Roe but mostly because of stare decisis, not because the Court would decide the same way if it came before them without precedent. Case is entitled to stare decisis if: i. It's a workable standard ii. There's a reliance interest on the judgment iii. No change in doctrine iv. No change in the underlying facts Compares Roe to Brown. It's a different magnitude of precedent than most cases. The country has been disagreeing about the issue, and the Court adopted a Constitutional standard and asked the country to agree around that standard. Political pressure: by bending to political pressure, Court would be fundamentally weakened. O'Connor, Souter, and Kennedy were appointed by Republican presidents, and it would look especially bad for them to make a political decision i. Court notes sometimes it's OK to overturn: Brown overturning Plessy, West Coast Hotel overturning Lochner. 1. Ironic: Brown doesn't really overturn Plessy. Court was too worried about the consequences and restricted the holding only to education. 2. Lochner was in the middle of the court-packing fight; it was a political situation. Could argue that this analysis doesn't follow. What exactly is the court reaffirming from Roe? a. The trimester test was a major part of Roe; however, the Casey court jettisons the trimester test and adopts an "undue burden" test. But actually overturns Akron, Thornburgh (said waiting periods and informed consent unconstitutional during the first trimester, because under Roe, no regulation was allowed during the first trimester. b. Under the undue burden test: do these regulations place a substantial obstacle before the woman seeking a first trimester abortion? i. Yes: rural areas: a waiting period can impose a costly travel burden, delaying the procedure and raising the risk ii. No: waiting another 24 hours isn't much more of a difference once you've decided to have the procedure Hypo: mandatory ultrasound laws. i. Not a substantial obstacle: the woman can still get the abortion after viewing the ultrasound. 1. Substantial obstacle: present opportunity for nurse/doctor to advocate when showing the ultrasound ii. Another part of the test: consider whether the regulation serves a legitimate purpose or not. iii. Why does the Court say that spousal notification is an undue burden, but parental consent is not? Consider differences between a minor child and married woman, relationship of husband v. parents v. "father" of the fetus. Undue burden standard is indeterminate: can change depending on whether you look at it in the abstract or as applied, lots of arguments on either side. 1. Spousal notification: woman must sign that she notified her husband, or that she falls under an exception (ex. spousal abuse) Concerns about spousal notification: unreported domestic abuse; some women may choose to carry the fetus to term rather than tell their husbands. Practical effect of spousal notification is that fewer women would get abortions; court finds this is a substantial obstacle 2. Parental consent: young woman under 18 must have consent from one of her parents; if no consent, judge may make the decision. Between the two, it seems like parental consent would be a bigger obstacle because parents have veto power over the abortion, but husband has no veto power.

14

XVII.

Changes in abortion since Casey a. Very few states sought to restrict abortion rights farther than the PA law at issue. States more active since last election in imposing regulations b. The decision to uphold the ban on partial birth abortion, after O'Connor left and Alito entered, did not really spur the states into action until the 2010 elections. Partial birth abortion: undue burden test applied in different ways. i. Two late-term procedures: D+X, or D+E. D+X is the focus of these cases. 1. 2000: rejects partial birth abortion ban: Said the statute was too broadly drawn, and might also be read to encompass D+E (even though the state AG said that it didn't include D+E, statute was overbroad). Court said there may be circumstances where D+X is preferred for medical reasons, don't want to deny the doctor the choice to do what is best for the patient 2. 2008 (The 2008 case did not specifically overturn the 2000 case, but they are hard to reconcile): approves the ban. This was a federal statute which did not include a medical exception. Court says this is Constitutional because maybe you never need D+X, you really only need access to the D+E. Basically abandoning the prior fact finding that D+X may sometimes be necessary. Competing medical evidence. AMA backed the statute, College of Gynecologists opposed. Unlike Roe, which said govt must prove it's right, did not put burden on govt. Assumed govts judgment was correct, and said if govt wasn't correct, court could deal with it later in an as- applied case. a. This was because O'Connor was gone and Alito was in; see O'Connor's public statements about the case c. The Hyde Amendment, litigated in Harris v. McRae, Medicaid provides medical funding to states for the needy. Hyde Amendment: carves out funds, prohibits federal funds from being used for abortion. Does allow funds for a woman who carries her fetus to term. i. Plaintiff's argument: 1. First, she might argue that she's part of a problematic classification a. Wealth: the regulation is explicitly about wealth b. Gender: only women can become pregnant, only women can have abortions c. Is wealth classification a proxy for race? Will have a disproportionate impact on racial minorities. 2. Then, argue it's a fundamental right a. Positive right to terminate your pregnancy b. Or frame this an an impingement: gov't is prohibiting women from choosing abortions, essentially telling poor women they must carry their fetus to term because gov't will fund childbirth but not abortion ii. State: 1. Argue against classification: Gender a. Govt can argue that the regulation is about an activity, not explicitly about gender. Women just happen to be the only ones who can do the activity. b. Aristotle: Likes should be treated alike, unlikes should be treated differently according to their differences. So explicit different treatment of people who are alike is a problem. Neutral treatment of those who are alike is fine. Treating unlikes (ex. handicapped) differently only according to those differences is OK (ex. handicap ramps, because that applies to the difference). Also not okay to treat unlike people the same under this principle (ex. refusing to provide a handicap ramp). So according to the Aristotle argument, state could say that even if the regulation is about women, women are different so it's okay to treat them differently i. But the Supreme Court refuses to impose affirmative obligations on the gov't

15

I.

II.

III.

Can also argue that the regulation affects those who are not pregnant (Men, women who aren't pregnant, women who will never become pregnant) d. Wealth: state can argue that wealth is not immutable e. Race: Disparate impact is not considered f. Argue that this isn't a fundamental right. Const. is a charter of negative liberties, stopping the govt from doing wrong to you. Const. does not grant positive rights.There are no positive rights; no right to have the govt fund your abortion. 2. Under Rational Basis Test: Abortion is inherently different from other procedures, so it is not irrational that the govt might assign funds for some procedures and not others. Woman has the same choice that she would have if Medicaid didn't exist at all. Indigency is not an obstacle that the govt has created. Govt has no affirmative obligation to remove that obstacle. d. Legal rule from Harris v. McRae: state has no affirmative duty to fund abortions. No positive right. Positive rights: DeShaney v. Winnebago County Dept. of Social Services a. State social service system was negligent. Child had been beaten before, the hospital contacted social services, schools had contacted social services. Social services workers stated that they "feared the day" when the father would kill or permanently disable the son. However, they did not investigate adequately. The father beat his son so badly that the son was permanently disabled. i. Court concluded that there was no affirmative duty of social services to take care of the child. Draws the line at custody: govt has a duty to protect those who are in its care-- if the state has taken away your freedom, then the state has duties. But no duties if the person is not in the custody of the state. 1. State cant be a barrier to your exercising a fundamental right, however, state is also not obligated to assist you in your exercise of a fundamental right. ii. s argument: can argue that there is a negative right which has been violated? 1. State has taken on an obligation when it got involved with the case 2. Neighbors, schools, hospitals report abuse, and the State is telling these other people that there is no abuse. State has shown these other parties that they are taking care of it: assuming some duty of care in regard to the child. Hypo: what if police arrive at the scene of an accident, direct everyone away from the accident, and don't look closely enough to realize that someone was trapped in the car? If that person dies, does their family have a cause of action against the police? a. Police have signaled that they are taking care of it, essentially preventing others from assisting i. In this exact fact scenario, court said that police had no affirmative duty to rescue. Draconian but simple. Hypo: What if the state had intervened in the DeShaney case, and took Joshua DeShaney out of the house? a. Parents might have a potential case for custody, especially if the state had been wrong and there actually wasn't abuse b. There is (arguably) a fundamental right of the parent to have some kind of control over the upbringing of their child. i. So the state was hesitant to run litigation risks by taking away the child c. Does the child have a fundamental right to be in the care of his or her parents? i. Ex. case involving classification of unwed fathers. Some may argue the father is unwed by choice and doesn't have a fundamental parental right, but those same people may be more sympathetic to the rights of the children. d. Public policy of this decision? i. Fairness: the dissent's argument would compensate the child for harms he's suffered. 1. But if the state social service system is subject to lawsuits for negligence, it will try to raise its level of care.

c.

16

I.

Argument the other way: costs would rise, state might limit or abandon the program. State bans on sodomy and same-sex sodomy a. Hypo: there is a ban on sodomy. What are the rights and classifications issues with a sodomy ban? i. Fundamental rights: 1. Plaintiff (Winner in Lawrence v. Texas) a. Privacy in the bedroom: right for the govt not to interfere b. Bodily integrity? Can only take this so far (ex. no right to suicide) c. Sodomy can be tied to the definition of the relationship (this will be a major issue in Lawrence v. Texas, but that was a ban only on same-sex sodomy, so not discussing that yet) d. Implicit and ordered liberty OR history and tradition: P will argue that if it's either of these, then it's a fundamental right 2. State (Winner in Bowers) a. Sodomy is not a protected right because it's not related to the means of reproduction. Different from a right to contraception. b. More like the marijuana hypothetical: about enhancing the sexual experience, not about controlling one's procreation c. State will want to focus on history and tradition only ii. Classifications: 1. Plaintiff a. Sexual orientation: disparate impact. More same-sex couples engage in sodomy, will be more affected by this ban 2. State a. Disparate impact should not be included. b. On its face, the law bans sodomy for anyone, not just same-sex couples. b. Hypo: there is a ban on sodomy written in a neutral way, like above. The only people who are ever arrested are gay individuals. Let's assume that an across-the-board sodomy ban is Constitutional. i. Does the enforcement raise EP issues? 1. The problem is how the law is applied, not necessarily the law itself. 2. Law may be valid, but administration of it may be unconstitutional. 3. Selectively enforcing a law is itself unconstitutional. Don't have to rewrite the law, instead need to administer it in a constitutional way. a. Like San Francisco Laundromat case; the law requiring a license to run a laundry was OK, but racist administration of the law was unconstitutional. This is RBR, but still unconstitutional. c. Hypo: same-sex sodomy ban. i. Fundamental rights: 1. State will argue history and tradition. All previous privacy cases are about procreation, marriage, heterosexual couples. 2. will argue hist/trad and implicit and ordered liberty. Same-sex couple: access to sodomy is more important because sodomy is core to their sexual relationship. Heterosexual couple has other ways to have sexual relations and define an intimate relationship. ii. Classification: 1. Sexual orientation a. Stronger for because it explicitly separates people by sexual orientation. b. Govt: can argue that sexual orientation is a "choice," activity, etc. 2. GenderLaw doesn't necessarily preclude either men or women from having sodomy; but it does preclude them from having sodomy with people of certain

2.

17

genders : the law is gender directive State: not preventing anybody from having sodomy. II. Bowers v. Hardwick, (Overturned by Lawrence, but relies on a history and tradition test, which actually is not really overturned by Lawrence. Assisted suicide cases rely on the same type of argument. Lawrence rejects the conclusion of Bowers, but it's unclear what else it rejects.) a. History and trad: bans on sodomy have existed throughout history and continue today. (Court is most vulnerable when it finds new rights). b. GA statute is an across-the-board sodomy ban, but court only considers the Const. issue with respect to same-sex sodomy. Treats the issue as different than the way the statute is written. So to treat it as an across the board ban implicates the marital issues at the heart of Griswold, makes it harder to say this isn't about "marriage, procreation, and family." But by treating it as only a ban on homosexual sodomy raises classification issues, which the court doesn't accept. i. Rational basis review: the court finds this is not a fund right or problematic class. 1. States Interest: GA's interest in regulating sodomy? a. Morality is biggest argumentSufficient in this case i. What else could be the state interests here? Health and safety: communicable diseases maybe? ii. When the statute was enacted in the 19th century, GA wasn't concerned with health and safety; concerned about morality, so we need to look at morality if were looking at it from a history & tradition standpoint. b. How do we deal with a post hoc rationale under RBR? i. Without allowing post hoc rationale, lawmakers would have to renew legislation to state the new rationale. ii. Under RBR, asserting a legitimate purpose is enough whether it's post hoc or not 1. Not enough under HR: Morality is enough for RBR b/c it is a legitimate interest; but morality alone is not compelling, so not enough for HR. ii. Justice Powell notes that if there was a jail sentence imposed, he could go the other way because of 8th amendment concerns. But b/c no jail sentence, Powell joins majority. Powell was completely confused by homosexuality, didn't think he had ever met a gay person (even though his law clerk was gay), couldn't understand attraction between men. Totally alien issue for the Justices, didn't understand it, thought homosexuality was outlier behavior. Social norms had changed by the time Lawrence came around, court had changed. III. Changes between Bowers and Lawrence a. Composition of the court: Powell is out, Kennedy in; Marshall is out, Thomas is in; White is out, Ginsburg is in. But these other changes sort of cancel each other out. b. States had changed their laws i. Half the states with sodomy bans repealed them 1. 1985: 25 states with sodomy bans 2. 2003: 13 states, & only 4 states specifically banned same-sex sodomy c. Change in understanding of purpose behind sodomy bans i. Court is informed that the colonial sodomy bans were focused on procreation, not on prohibition of homosexuality ii. Current same-sex sodomy bans arose in the 1930's-1960's, a time of anti-gay legislation IV. Lawrence as a hypo a. Rights issues i. : privacy of sexual relations, privacy in one's own home

a. b.

18

b.

Stronger claim to privacy in your own bedroom than in public: no spillover to other people; home is your castle 2. implicit and ordered liberty a. Ability to define your relationships b. Self expression c. Consequences of criminalizing same sex sexuality: prison term, impact on employment, sexual registries 3. History and tradition is changing, trending toward acceptance of sodomy a. States have changed their laws, repealing bans on sodomy b. MPC doesn't outlaw sodomy c. British Parliament has repealed its bans d. Colonial laws were based on the Biblical imperative to procreate, not on prohibition of homosexuality e. At time of ratification, colonial lawmakers would have had no concept of homosexuality. Sodomy was intended to ban any non-procreative sex. i. Kennedy says that contemporary practices are most relevant to history and tradition ii. Govt: frames as a right to homosexual sodomy 1. History and tradition a. Homosexual sodomy is not "deeply rooted" in US history b. Founding: banned in all colonies c. Ratification: 11 of 13 states banned 2. Contemporary practices: a. 13 states is still a substantial number; also look at populations of states. b. TX is a pretty populous state. c. A couple of decades of a recent trend isn't really persuasive; a trend doesn't mean it won't trend the other way. 3. Public policy: since the states are changing their laws, the court should back off and let the states decide the issue legislatively. Classification issues i. Plaintiff will argue for problematic class. This targets homosexuals: the purpose of the law is important here. O'Connor: moral disapproval of an activity is fine, but moral disapproval of a group of people is not enough to sustain legislation 1. History of discrimination 2. Political power marshalled against homosexuals a. Govt employment, 1950 initiatives to proscribe gays from civil service b. Military bans, DADT in 1990's c. Marriage bans d. Sodomy bans e. Other examples even before 1950 3. Immutability a. Scientific evidence for genetic traits, but not conclusive b. Correlations between brain traits and homosexuality, statistical evidence that gay men are more likely to have a gay brother, especially if they're twins. c. Anecdotally most gay people have always been attracted to members of the same sex, generally don't say it's a conscious choice. No significant difference for govt purposes. ii. State will argue not targeting a class, or even so, that it's not problematic 1. This is really about regulating an activity, not the sexual orientation of those performing it a. Some non-gay individuals may engage in same-sex sodomy, but not all gay individuals engage in same-sex sodomy. So this affects some non-gays, doesn't affect all gays, so it's really about the activity

1.

19

iii. Even if this does target sexual orientation, sexual orientation is not a problematic class. 1. Not immutable a. Scientific evidence is not conclusive, P can't prove it b. Try to shift burden of proof to P 2. Political power a. Gays have always been allowed to vote b. Never explicitly banned from participating in elected govt c. Homosexuals are active politically, effective in having some of the sodomy d.
bans repealed Public opinion is evolving, laws may be antiquated and not reflecting where the current power is.

V. Prop 8: recent ruling, a. Judge Walker: strikes it down on all three possible grounds. Protected class, fundamental right, no b.

IV.

rational basis. 9th circuit: strikes down on rational basis review. Finds that the only reason for the law is animosity against same sex couples. Not a legitimate state interest. i. What possible legit state interests are there? 1. Influence on heterosexual marriages; if marriage is exalted only for certain people, heterosexual couples will seek marriage 2. Practical concerns: ex. D.C. lost assistance from catholic charities when it allowed same sex marriage Wrapping up Privacy Doctrine does seem to track social changes a. P: i. Fundamental Right 1. This is about the broader right to make intimate choices 2. Broad view of history and tradition, including ancient and very recent 3. Implicit and ordered liberty ii. Classification 1. Broad view of problematic classification, look for classifications created by regulation b. State: i. Not a fundamental Right 1. Will frame in a narrow way about the specific action 2. Deeply rooted in history and tradition 3. Will not discuss implicit and ordered liberty ii. Classification 1. Narrow view: regulating an activity, not drawing classifications c. Difference between rational basis review and heightened review: i. Ex. sodomy: state says the purposes are morality and disease prevention (health and safety) 1. RBR: morality is a legitimate state interest (see Bowers). Disease prevention is a legitimate state interest. a. Law assumes that same sex sodomy is inherently unsafe and heterosexual sodomy is inherently safe. (Of course we know that's factually untrue, but the State doesn't need to prove that the rationale is completely true or that the law is not over broad it just needs to be "debatable" or be not patently irrational). In the NYC car advertisement case, it was enough that the State legislature may have thought there was a difference. d. Is overinclusivity or underinclusivity necessarily a problem in RBR? i. Ex. driving limits; some who are allowed may not be the best drivers, but some who are not allowed might be good drivers. But this isn't problematic under RBR because legislature may have thought it made sense. 1. Post hoc justifications are pretty much OK in the RBR world. 2. HR: morality by itself is not a compelling state interest.

20

 Equal Protection School Desegregation I. Plessy v. Ferguson , The worst decision ever. Upheld segregation of rail cars, with an exception for African American caretakers of white children. Court doesn't use the fundamental right/ problematic class language, but standard used is close to RBR: police power must be reasonable and extended only to those laws enacted in good faith for the public good so once the court finds that the law has good faith, the work of the court is done. a. The law recognizes that each race may want to hang out only with itself; this isn't oppression, it's just separation. References school segregation for support of separate but equal. b. Famous dissent from Justice Harlan: Constitution is colorblind; all citizens are equal before the law. Harlan just states a rule: you can't use race as the basis for a law EVER this is embraced by opponents of affirmative action. c. Strategy for those who wanted to strike down separate but equal: either try to have Plessy overturned; or, use Plessy to your advantage. II. HYPOS: a. All white law school with no alternative: Plessy can strike this down because there is no alternative, so it's not equal. b. One white law school, one black law school: you could argue several factors to show that the two law schools are not equal. i. Ex. look at the faculty, facilities, US News, job placement. III. Brown: separate will never be equal in the context of public education. (Does not overrule Plessy; avoids major conflict) a. Policy of separation implies that a group of people is inferior. Relies on psychological studies b. No remedy given: i. finds that school segregation is unconstitutional, but does not order schools to desegregate. Waits a year for Brown II, and then issues a weak remedy. Says school authorities must take action for "good faith implementation" and should be evaluated locally. 10 years after Brown, only 2% of African American students in the South attended a school that had any white students. Accomplished essentially nothing. 1. Did the court do the right things by issuing a weak remedy & then refusing cert to the interracial marriage case soon after? a. Pragmatically: public opinion was in flux, Southern opposition was pretty strong, wouldn't get a lot of implementation support. b. Court legitimacy: don't want to overstep bounds; court looks weak if it makes a strong proclamation and then it's not enforced. i. But court also looks weak by giving a weak remedy, allowing activities it has stated are unconstitutional. IV. Green: Schools embraced "freedom of choice" policy, white students could attend a previously African American school and African American students could attend a previously white school. The practical effect was that practically no students went to the other school, mostly stayed segregated. a. Public opinion and public policy had changed. This was 1969. b. A provision in the Civil Rights Act said that federal aid could not go to institutions that discriminated on the basis of race. c. HOLDING: Court ruled that freedom of choice was no longer acceptable and desegregation had to happen now. V. Legal issues post-Green

21

a.

b.

Court has to figure out: i. Exactly what is and what isn't segregation? In the South, Jim Crow laws are obvious. But what about policies in the North that create segregation without being so explicit? ii. Whether a world after segregation would be balanced or imbalanced. 1. Naturally integrated: without governmental segregation, races would naturally integrate themselves and be balanced. a. So by this standard, whenever we see imbalance, the gov't has acted unconstitutionally. i. Look @ the impact of the policy. Focus on groups and how they are impacted. Doesn't matter whether a law is on its face neutral or explicit; irrelevant because impact is most important 2. Possibly imbalanced: without government segregation, races may or may not be balanced a. Imbalance doesn't necessarily mean gov't acted wrongly b. Look at intent, not at impact c. Explicit v. neutral is important here d. Focus on individual, not groups Post-Brown, laws explicitly based on racial classifications become rare. So without that, the only way to go after the gov't is to prove a bad intent, and how do you go about doing that? i. Must show intent of law is unequal. 1. Remedy: court takes "naturally integrated" model to look at the black/white student population ratio and try to balance. But over time, court shifts away from the naturally integrated view and recognizes the possibility of imbalance. ii. Court demands more proof of discriminatory intent as time goes on iii. Court finds that local control of school system is vital

Rational Basis Review

I.

Different Levels of Rational Basis Review, a. Railway Express, NYC law allows ads on vehicles which advertise the owners' own product, but not if the ad is "for hire" not advertising the product of the owner. So the same car with the same ad would be allowed / not allowed based on who owns it. City states that the purpose of the law is to prevent traffic distractions. i. It has over- and under-inclusivity problems. 1. Over-inclusive: Not all distracting ads are for hire, not all for hire ads are distracting. a. Over-inclusive: Court finds that the lawmakers "may have concluded" that there was a difference. 2. Under-inclusive: Don't need to go all or nothing. Can solve the problem piecemeal. ii. Very deferential. b. Williamson v. Lee Optical, OK law requires a prescription to replace glasses at an optician's; but not to just pick up glasses at a ready-to-wear seller. Law assumes that opticians who replace glasses are doing something unsafe. But they may not all be unsafe. (over inclusive) The law presumes that all ready-to- wear retailers are acting safely, while they really may not all be safe. (under inclusive) i. Court doesn't engage in problems of over/under inclusivity so long as the legislature "may have thought" there was a difference between the two groups. Very deferential. c. Minnesota v. Cloverleaf Creamery, Environmental statute actually counter-productive: plastic milk bottles not allowed, paper cartons allowed. Court says the facts don't matter about whether the law really works. What matters is that the legislature may have thought there was a different. So long as the matter is "debatable," the classification is allowed. Very pro-government: court assumes that the stated purposes and the actual purposes are the same, unless the circumstances force a different conclusion. Facts dont matter so long as theres an empirical connection between the stated purpose and the law. Statements of the sponsors are not enough to say it's impossible that the state has a legitimate purpose (environmentalism). i. Not allowed to have economic protectionism as a purpose.

22

II.

Traditional RBR v. More rigorous RBR a. Traditional RBR: i. Purpose: court accepts stated purpose unless that purpose is impossible ii. Over-inclusivity: lots of latitude for gov't. If gov't may have thought the categorization was rational, good enough for the court. Law doesn't have to be narrowly tailored. iii. Under-inclusivity: also lots of latitude for gov't. It's okay to move one step at a time, don't have to address all parts of the issue. iv. NYC Transit Authority v. Beazer, NYC Transit Authority has a regulation that states that people who use narcotic drugs cannot work there. ***Note: this is only a Constitutional issue because it's a public employer. Private employers have a lot more leeway, Const. only applies to state actions. 1. : a. Classification: i. explicitly states drug users; ii. Implicit: could have disparate impact on poor and minorities who are more likely to be drug users b. Fundamental rights: i. right to employment (maybe?), ii. right to seek employment in a discrimination-free process, iii. privacy regarding medical records, iv. right to pursue methadone treatment (ex. heroine addict who wants to work at TA could be influenced not to use methadone) 2. Gov't: a. Classification: i. Status as drug user is not immutable. b. Fundamental right: i. Const. doesn't recognize positive rights such as employment; applicants aren't compelled to seek the job, so if they want privacy over medical records or the ability to seek methadone treatment, they should just not apply for the TA job. b. If this had gone under heightened review: i. Over/under inclusive: The law is clearly over-inclusive. There are lots of people who are on methadone programs who are just as employable as anyone else. Clearly under- inclusive. There are lots of people who are not drug users and are unsafe for plenty of other reasons. Ex. people with psychological conditions, alcoholics, etc. are not affected by this law but are just as unsafe as a drug addict. ii. Less burdensome, more narrowly drawn alternative? Yes: individual judgments would be better tailored to ensuring that each applicant would be employable. 1. E.g. no meth users in safety sensitive positions; condition eligibility on satisfactory performance in methadone program for @ least a year; etc. c. Court actually analyzes this law under RBR. i. Purpose: gov't says the purposes are safety and efficiency. 1. Does anything suggest there might be a bad purpose behind the law? Footnote 2: concerns that drug users historically tend to be poor and minorities. The law does not affect, ex., alocholics or those with mental illness; these characteristics tend to be more distributed across races and income levels. ii. Fear of adverse public reaction is not a legitimate reason. Nor is bare dislike of one group. BUT: the stated purpose, safety and efficiency, is not impossible. Thus under RBR, the court

23

III.

accepts the stated purpose. City of Cleburne v. Cleburne Living Center, Court uses a different type of RBR here. City places extra requirements on zoning for homes for the mentally impaired. Other group homes, such as fraternities and sororities, nursing homes, etc. do not need to get this special zoning permit a. Stated reasons: i. There is a school nearby and the students might harass the residents: security, could require extra police ii. The area was on a 500 year flood plain iii. Fear of legal responsibility for actions the residents might take iv. Adverse public reaction from neighbors v. Size of the group home, noise, etc. b. Over/under inclusive: i. Under-inclusive: these other groups could pose the same problems (such as size, noise, flooding), but they aren't burdened by the law. ii. Over-inclusive: the nearby school has students who are mentally impaired and those students do not pose a security concern, so it doesn't seem that mentally impaired residents would pose a security concern either. c. Under traditional RBR: 1. Under-inclusive: Legislature may move one step at a time. Under-inclusivity doesn't matter. 2. Over-inclusivity: as long as legislature could have thought there was a difference between the groups, it's okay 3. Purpose: one bad purpose among other stated purposes which are legitimate does not kill the law. As long as the stated purposes are possible, it's fine. d. But the court does not apply traditional RBR. Applies RBR with more "teeth." i. What makes this case different from traditional RBR cases like Beazer? 1. Classification: close to a problematic class a. Mental retardation is immutable; history of discrimination and lack of political power 2. Fundamental right: close to a fundamental right a. In Beazer, there's really no positive right to employment. But here there is a liberty argument to make: people should be able to live where they choose, including that it might be important to live with other people with the same mental condition that you do. b. Property rights of the owner of the land, wants to be able to use his/her property as they see fit 3. Issues of over and under inclusivity are more severe in Cleburne than in Beazer. Connection between safety and drug use seems stronger than that between mental retardation and flooding, noise, etc. a. Infers that there really isn't a legitimate gov't purpose here-- purpose is more likely to be discriminatory. 4. Cleburne s were more sympathetic than drug users 5. Context: "war on drugs" during Beazer era

24

e.

IV.

Would have found problematic class, but the mentally impaired are different so the gov't should be able to take their differences into account. i. Class is differently situated: If the class is immutable, is the class differently situated? Yes. There are real differences with respect to certain things (ex. driving) ii. Differently situated w/respect to this law? 1. White says they should defer to the legislature, but then he goes ahead and analyzes the legislative justifications, and determines that they don't add up. What he says v. what he does are different a. POLICY: Making gov't justify its conduct could hurt the mentally impaired, because gov't would be less likely to enact helpful laws if it would be subject to heightened review for those laws iii. Legislative victories for the mentally impaired? There are some legislative victories for the mentally impaired, recent laws enacted to help f. Hypo: Gender i. Under traditional analysis, gender would be a problematic class. Immutable + history of discrimination ii. Under Cleburne formula: there are real biological differences between men and women. There have been some legislative victories. Cleburne formula would mean that gender wouldn't get heightened review. iii. So there are two main reasons to argue for/against heightened review: 1. Immutability + political power formula is more friendly to 2. Cleburne formula is more friendly to gov't a. Cleburne = strange precedent: the formula makes it harder to get to heightened review, more friendly to govt. But the way it applies RBR is much more -friendly. HRBR (heightened RBR): Dept. of Agriculture v. Moreno, Law passed requiring that in order to get food stamps, your household had to be made up of only related people. Stated interests were that unrelated households were somehow more likely to fraudulently claim for food assistance. a. Over and under inclusivity: related families may defraud the program, and some unrelated households may not defraud the program. b. was very sympathetic: a mother who couldn't afford to live near the best school for her disabled child unless she got an unrelated roommate. c. Fundamental/ like a fundamental right: Ability to use federal food assistance, control over who you live with, parental rights to live in the best area for children d. Classification: Poverty e. Governmental purpose: Stated purpose is legitimate, however, sponsors of the bill explicitly intended this as an action against "hippie communes." Court looks at the legislative history and finds that the purpose really was animosity against this one group; not really serving the stated purpose.

Strict Scrutiny I. Korematsu v. US, (Strict scrutiny here is much different from Roe. More deferential to govt ). Japanese internment law being challenged by a loyal American citizen who refused to move from his home. a. Stated purpose: severe risks to national security that couldn't be detected on the spot, gov't needed to relocate all Japanese-Americans on the west coast.

25

Court says they are using HR, because racial classifications are "immediately suspect" and says it must be justified by "pressing public necessity" and that the law must have a "definite and close relationship" to the ends. i. Over/under-inclusive: 1. Over-inclusivity: not all Japanese-Americans are disloyal-- in fact, nearly all are loyal. This is grossly over inclusive: burdening a group, nearly all of whom ought not to be burdened. Under-inclusivity: lots of disloyal people are not Japanese-American and thus are not targeted by this law. Ex. no effort to consider German-Americans, Italian-Americans, or just disloyal people in general. ii. Less burdensome, more narrowly drawn alternative? Investigation of spies, rely on other citizens to report, curfew 1. Govt asserts there's not enough time for investigations. Investigation might have been effective, but the time and resources would have taken too long. Range of Strict Scrutiny Standards Heightened Strict Scrutiny Very deferential to the Govt Palmore Roe Grutter Korematsu

b.

II.

Palmore v. Sidoti, 2 white parents got divorced; mother got custody; mother remarried a black man; father sued to get custody based on changed circumstances. Trial court gave custody to the father: the child would suffer hardship and abuse because of the mother's mixed-race household; so in the interest of child welfare, the child should go with the father to avoid abuse from racist people. SCOTUS rules against the state court, because taking private bias into account is impermissible even if it might be true. Govt. actors can't take private bias into account, ex. can't segregate schools because white and black students might not get along. By taking private bias into account, govt. validates the prejudice.

Discriminatory Intent I. Washington v. Davis, Verbal aptitude test required to become a police officer disproportionally affected black applicants. Holding: a law that is neutral on its face is not unconstitutional just because it has a disparate impact. II. Arlington Heights, (stated purpose & actual purpose are presumed to be the same unless that is impossible). (totality of circumstances test/ Arlington Heights Test): i. 1) the official action affects a protected class in greater proportion than others, and if such is established,

26

III.

IV.

To determine intent: 1. Disproportionate Impact 2. Historical background 3. Sequence of events 4. Procedural departures (holding/not holding hearings) 5. Substantive departures (types of ev. considered) 6. Legislative history b. No one factor is dispositive, look at all factors c. Difficult to prove bad purpose under this test. Explicit classification | | Problematic? | | ______ / \ Y N | | | | HR RBR | Arl. Heights Yick Wo v. Hopkins, San Francisco required a license to operate a laundry business. All Chinese applicants were rejected; all but one non-Chinese applicants were accepted. a. Disparate impact is quite severe b. The legislature in enacting the license requirement wasn't necessarily racist; but the public authorities which approve the licenses are enforcing the law in a racist way. i. RBR because the law is neutral on its face, but the discriminatory intent is so obvious that the application of the law is Unconstitutional. Don't have to repeal/rewrite the law; just have to enforce it equally. Gormillion v. Lightfoot, City of Tuskegee redrew its boundaries from a rectangle into a 28-sided figure, excluding all but about 4 of the former 400 African American households. Did not remove a single white voter. a. Strict review here b. The law here has to be changed, not just its application like above. (Cases like the above two are rare, in which the impact is so obvious that it shows a discriminatory intent).

ii. 2) that the official action was intended to discriminate against a suspect or protected class.

The real analysis comes in with using the other Arlington Heights factors as well as impact. V. Hypos: determining bad purpose from AH factors a. Birmingham, AL is told it can no longer have any segregated swimming pools. Birmingham's solution is to shut down all the public swimming pools. i. Plaintiff 1. Historical background: Jim Crow 2. Sequence of events: response to a court order 3. Legislative history: try to find discussions about the decision ii. Govt: 1. Economic argument for legitimate purpose: fewer people might use the pools, so they would become too expensive to run with nobody going there 2. Resource prioritization: it's expensive to desegregate everything, so they are closing the pools because it's more important to spend the money on other areas for desegregation

27

b.

Public pools are not an affirmative right, so govt. can just choose not to provide it. Similar situation to the swimming pool hypo above. Let's assume that its demonstrated that racism is one of the factors which influenced the decision to close the swimming pools. i. Govt can still show that although racism was one factor, the law still would be the same even if race wasn't considered. But the burden is then shifted to the state to prove that it would have enacted the same law anyway. Presence of a bad purpose is not dispositive. If these factors show a bad purpose, burden shifts to govt. to demonstrate it would have made the same decision anyway.

3.

GENDER/AFFIRMATIVE ACTION I. Affirmative action: In some cases, the Court was willing to take a hard look both at the government's asserted ends, the tightness of fit between means & ends, & the question of whether the tightness of fit might not matter if the means were deemed too burdensome. a. Wygant ruled that (1) some of the stated ends (societal discrimination, role model) were impermissible, (2) that the means-ends fit was not sufficiently tight because the layoff plan included groups that could not have been discriminated against by the school system, & that the layoff plan was impermissible because it imposed too great a cost on those who were laid off. --In contrast, b. Grutter deferred to the university both on (1) the question of ends (diversity) and on (2) several means-ends questions, including the Q of who should benefit from diversity plans, the Q of what constitutes a critical mass for different racial groups, and the question of whether the university could simultaneously pursue its critical mass policy while nonetheless making individual judgments about applicants. [Note: Notwithstanding this deference, the Court did insist that the university assert that it was making individualized determinations and, for this reason, the Court rejected an undergraduate admissions program in which each diversity applicant received a fixed number of diversity points.] c. The sharply conflicting approaches in affirmative action cases make clear that: i. pro-plaintiff litigants will argue for Wygant like scrutiny of ends & the means-ends nexus. ii. pro-government litigants will argue for more deferential Grutter-like review of ends & means- ends. d. Grutter is a counterpoint to Roe i. the state in Roe must prove the correctness of its claims; ii. in Grutter, there is deference both about ends (diversity) and about the means-ends nexus (especially the Court's failure to accept the University's claim that it made individualized judgments on all applicants). e. The variability in approaches highlights the role of social & political forces in shaping Court decisions. i. In Grutter, the opponents of affirmative action were politically isolated. As we discussed in class, all members of Congress, all but one state, Fortune 500 companies, former military officials, and a broad spectrum of interest groups backed the University. Even the George W. Bush administration argued that race conscious affirmative action is appropriate when race- neutral alternatives are unavailable. f. The dramatic difference in the application of strict review highlights that precedent can be of limited effect in binding the Court (especially precedent --like strict review--that calls for the Court to assess the soundness of the government's policy). Another example of the thinness of precedent is Parents Involved. Here, the replacement of Alito for O'Connor shifted the balance of power on the Courtso that Kennedy's views became controlling (and the values of diversity extolled in Grutter gave way to a more skeptical view of the government's pursuit of race diversity)

28

II.

GENDER: a. The gender cases are quite ad hoc, although it is possible to sort out a series of questions that the Court will ask in deciding a gender issue. The principal question in gender cases is which box to place the government's action. i. Is there a classification. It may be, for example, that a regulation may be about a status (military veterans) or activity (abortion) that is arguably a surrogate for gender. 1. The plaintiff will argue that both explicit classifications and surrogates are gender classifications. 2. The state will argue that only explicit classifications are about gender. ii. Assuming a gender classification, Is the law about a stereotype or about a real sex difference? 1. the will try to push the case into the Craig methodology; and 2. the state into the Michael M methodology. a. For example, the fact that women, on average, live longer than men DOES NOT NECESSARILY mean that women are differently situated than men with respect to their ability to live a long life. i. The state will say it is a real sex difference and deferential Michael M review should be invoked. ii. The will argue that the asserted difference reflects a stereotype--men are expected to take on high stress, high risk jobs and statistics on longevity are simply manifestations of those assumed gender roles. iii. Assuming the convinces the Court that the case is not about a real sex difference (so that Craig is the key precedent), 1. the will argue that the law simply reinforces a stereotype. 2. The state will argue that the law is remedial (remedying a disparate impact). iv. may argue that there is enough funky stuff going on that Cleburne should be pursued to find a bad purpose. 1. For example, Michael M. The original purpose of the law was grounded in impermissible gender stereotypes (the law smells bad), the stakes were high (jail), the fit issue problematic (no reason to think that the exemption of women would make the law work better), etc. For all these reasons, the plaintiff would assert bad purpose under Cleburne--even if the law was in the Michael M box. v. State would say--under Arlington Heights--that the fact that the original purpose included impermissible objectives does not negate the law--that the state would have pursued the same policy for the legitimate (important) purpose of preventing teen pregnancy.

Affirmative Action I. What is affirmative action? Affirmative action is when the govt acts voluntarily: deploying race to give an advantage to racial minorities a. Ex. Alabama ordered to hire African American state troopers; court says they must desegregate and hire a certain number until races are balanced. Is this affirmative action? i. NoTechnically this wouldn't be affirmative action: it's a remedy to discrimination. b. Hypo: Cal Tech grants preferences to increase the number of women. i. Potential justifications: educational diversity; diversity in employment and scientific research; remedy societal discrimination; remedy previous institutional discrimination; encourage husband-wife donor couple.

29

c.

Supreme Court embraces some of these arguments in Grutter, especially remedy for the institution's own past discrimination, but has not embraced remedy for societal discrimination: how to quantify this? Court allows a carve-out in higher education, different from employment cases

II.

III.

IV.

V. VI. VII.

Court breaks up into polarized blocs on affirmative action a. IN FAVOR OF AFFIRMATIVE ACTION: Ginsburg, Breyer, Souter, Stevens (presumably Kagan, Sotomayor) "Constitution is at once colorblind and color-conscious" --Ginsburg i. Colorblind: govt can't discriminate on basis of race ii. Color-conscious: minorities in a sense are victims of discrimination, so govt may try to remedy that b. OPPOSED TO AFFIRMATIVE ACTION: Roberts, Alito, Thomas, Scalia i. Lesson of EP is that race ought not to be taken into account by govt c. IN THE MIDDLE: Powell and OC, OC and Kennedy, Kennedy i. Indeterminate, "standards" justice ii. Their views are less firm; more subject to taking context into account iii. Policy briefs may matter more to these justices Wygant ** not responsible for this case ** 1986: layoffs of school teachers were done out-of-turn to make sure the percentage of minority teachers was maintained a. Court declared unconstitutional. i. Societal discrimination doesn't matter ii. Rejects the "role model" idea: presupposing that black students are better off taught by black teachers is counter to Brown 1. Really this probably wasn't the argument: probably the govt was trying to argue that all students are better off with teachers of multiple races b. Out-of-turn layoffs unduly burden identified individuals i. Hiring would be more diffuse c. Very strict review d. Court says govt must have some type of evidence suggesting its responding to its own discrimination i. Could be like the labor market has 20% black teachers, we have 10%, we're trying to get to the same level ii. Doesn't have to be a huge amount but must be concrete Metro Broadcasting 1990: federal preference to minority-owned TV broadcasting companies a. Court accepts Congress' assertion that diverse ownership of broadcasting stations will result in more robust on-air programming i. No certain proof, debatable ii. But court defers to Congress b. Applies a lesser version of heightened review: mid-tier, like gender Aderand 1995: overturns Metro Broadcasting a. Says the standard is strict review, remands the case b. No actual opinion Grutter and Gratz 2003 (see below) Parents Involved 2007: student was told can't attend a nearby school because of racial balancing a. 4-4 split with Kennedy in the middle b. Factually different from Grutter, no overturning c. Court rejects the diversity argument: doesn't say diversity is not compelling. Says instead that U Mich didn't care exclusively about racial diversity, also considered musicians, etc. in adding to diversity d. Racial balancing is totally counter to Brown i. Roberts said Brown was about ending race-conscious decision in public school assignments ii. Breyer dissent: Brown is about stopping the use of race assignments to discriminate against African Americans, Roberts is misconstruing the decision. e. Kennedy: deciding justice i. Disagrees with Roberts' assertion that race can never be taken into account. Ending racial isolation is a compelling govt interest ii. But the problem here is the means: this could be done by, for ex., redrawing school boundaries, build new schools in locations that will have a more diverse population. This plan is not the least restrictive means.

30

VIII.

Grutter v. Bollinger 2003, (less demanding than Roe, but more so than Koramatsu). U Michigan Law School considered race as a factor in admission. Court upheld the program. a. Diversity is a compelling govt purpose b. The means chosen, i.e. individual treatment of each applicant, is the least restrictive means i. With respect to diversity as an end, court says educational institutions should have autonomy on their educational policies ii. With respect to the means, court is also deferential to the university and believes what the admissions officers say. Deferential to University's opinion of what the "critical mass" is of different racial groups. 1. Rehnquist very critical of this. Number of African Americans admitted was much higher than that of Hispanics, which in turn was much higher than Native Americans. Rehnquist: this isn't about diversity, this is about getting certain racial groups into the student body Gratz v. Bollinger 2003, U Mich undergrad affirmative action program. Point formula: each student was given a certain number of points for race. Clearly not making individual judgments. Justification: U Mich is a big school, too many applications to consider individually a. Court: administrative convenience can never be a justification for racial decisions i. Distinguish from Grutter: The difference is that Grutter showed the Law School was making individualized judgments; Gratz could not show the same thing for the undergrad admissions Fisher: assume arguendo that the Court will strike down the Texas plan. U Texas automatically admits the top 10% of in-state high school students. This was intended as a race-neutral alternative. Since some schools are overwhelmingly minority, top 10% of those students will automatically be admitted. Increases amount of minority students. Beyond the top 10%, U Texas takes race into account within each major, not just University-wide. a. How will argue to strike this down: i. TX is already using a race-neutral means, so additionally using the race-conscious means is not the most narrowly tailored means ii. Go after the idea of "critical mass." Argue that admissions officers must make more individualized decisions iii. Attack diversity as a compelling interest: university must prove that racially mixed classes have better results than those that are not racially mixed b. University: i. This is about geographical diversity (arguendo) Really there's evidence that they're taking account of race after the top 10% c. It's likely that if Court strikes this down, Kennedy will write the opinion. Kennedy's past opinions have focused on whether there are less restrictive alternatives, can say that this plan is thrown out for not being the most restrictive means, without attacking diversity as the ends. Will make it harder to pursue affirmative action but won't be a general ban

IX.

X.

Gender

I.

If a law is neutral on its face RBR, (ex. Feeney) If a law is explicit w/respect to gender HR a. Remedy for discrimination constitutional b. Reinforcing stereotypes unconstitutional Craig v. Bowen, Law regarding purchase of "near beer," not consumption. Women can purchase at 18; men can purchase at 21.law is explicit w/ regard to gender classification. Stated purpose for the law: prevent drunk driving

II.

a.

Different standard of review for gender i. Ends: court says must be "important" (not compelling) 1. Preventing drunk driving is importantmaybe even compelling. ii. Means: court says must be "substantially related" to the ends (not least restrictive/not rationally related.

31

VI.

VII.

State argues that the gender classification is necessary because men in this age group are more likely to drink and drive. 2% of men between 18-21 get arrested for DUI while only 0.18% of women between 18-21 get arrested for DUI iii. Majority rejects State's evidence because the statute is over broad: burdens 98% of young men who don't get arrested. 1. Other problems with the statistics: Only reflects arrests for DUI; unclear how much the "near beer" has anything to do with these arrests. Statute doesn't prohibit the consumption of near beer, so the men could drink anyway so the statute doesn't seem very well-related to the ends. iv. Philosophy underlying EP clause is that if a law appears to reinforce gender stereotypes, presumption is that it does 1. The statistics can be influenced by these same stereotypes, so statistics can't really be used by the State to rebut the presumption that the law reinforces gender stereotypes 2. If the Court thinks that the law is reinforcing a stereotype, State pretty much will lose because all their evidence is affected by that stereotype as well Hypos: what's a remedy v. what reinforces stereotypes? a. Law presumes that men are wage earners for the purposes of military benefits; women must prove that they are the principle wage-earners. Stereotype b. Widows get survivor benefits without having to prove dependency, but widowers must prove dependency. Still reinforces stereotypical idea that men are almost always the principle wage earner i. State's argument: administrative efficiency. Since men almost always are the principle earner, it's easier to only put women through the justification. 1. Court: can never justify upholding a stereotype through administrative convenience c. In the Navy, women were given longer than men to be promoted. The reason: women were fenced out of certain categories of service which earned points toward promotion. Question is whether the prohibition on women in combat or in certain tasks is rooted in a real biological difference. Court at the time of this case said yes; today we might say it's a stereotype. d. Widows but not widowers are given a $500 tax credit to make up for lost income of spouse. State says this is a remedy for past discrimination against women in the workforce. Court accepts State's argument here, but we can also argue that this reinforces the stereotype that the woman is dependent on the male. Administrative efficiency is not a valid reason; this could be better implemented by compensating widows and widowers who were dependent on their spouse. This would require more investigation and more cost to administer. Michael M. v. Superior Court of Sonoma County, CA has a law which exempts underage women from being prosecuted for statutory rape. So even when two parties are the exact same age, the man can be prosecuted for statutory rape but the woman cannot. a. The law on its face explicitly differentiates between the genders. i. Purpose: 1. State asserts that the law is intended to prevent teen pregnancy. Women disproportionately bear the negative effects of teen pregnancy. Legislature is trying to equalize the deterrents between young men and women; women are already deterred from underage sex because of pregnancy, so men should be deterred because of criminality. 2. Original purposes are outdated: Women's chastity, dowry, women as property/ Women of a certain age cannot consent, but men of the same age can ii. Majority, Rehquist: it doesn't matter if the original supporters of this bill supported it for reasons that are no longer accepted. The question is whether the currently asserted purpose violates the EP clause. So post-hoc justifications are okay 1. Purpose is preventing teen pregnancy

1.

32

b.

Women and men are biologically different with respect to pregnancy so this is about a biological difference. 3. State asserts that a neutral statute would not be as effective. "We cannot say:" doesn't require state to prove this assertion What if we applied Brennan's standard from Craig? i. He would see this as a stereotype case, because the whole reasons behind the enactment of the law were based on stereotypes about women as property. ii. He would put the burden on the State to produce evidence to persuade the Court that the gendered law is more effective than a neutral law would be Fact: women live longer than men. State takes that into account when paying Social Security and other benefits. Men get a bigger paycheck than women because it's expected that they will die sooner. i. Reinforcing a stereotype? Men having harder jobs? State prohibits all women from working in certain categories of jobs where there is potential fetal harm. Evidence shows that pregnant women working in certain chemical plants experience harm to the fetus. No evidence about men. No evidence to show whether or not there is a danger to men's fetuses as well, ex. through harm to the sperm or by carrying these chemicals home to a pregnant wife. i. Stereotype or real sex difference? 1. It's a real biological difference because the only harm is to pregnant women. No harm to men; or 2. Stereotype argument: prohibits all women, not just pregnant women. Law is assuming that all women will become pregnant. Is it permissible for the law to be over broad in this sense?

2.

VIII.

Hypos

a.

b.

Separation of Powers Separation of Powers 1. (Dont need to write down step 1 on the exam). Think about what the statute is doing. What type of statute is it? (This controls whether you do Youngstown or Morrison analysis) a. Does it give the Pres authority to act?; Tell President he cant act? i. If about a Presidential action, go to Youngstown. b. Congressional delegation scheme? What is the act/ Who is the actor? *** this is where the points are*** (policy making issue, should be congressional; interpreting the law/executing the law, executive Devins e-mail look at factors of how to classify 2. Morrison What are the constitutional textual issues? Will vary depending upon how you characterize act/actor. (explicit textual constitutional bars to this being invalid) Functionalist if the proper actor maintains sufficient control over the act (but dont go through the functional analysis. Mention it, but dont go through the analysis) Formalist argumentact/actor must match up. Youngstown Framework argues 1. Category 3 a. Congress said no, and no inherent Presidential power 2. Category 2

33

3.

Congress hasnt said anything either way, and Presidential authority/facts dont warrant Presidential action Category 1 a. Even though Congress did authorize this action, Congress didnt have the authority to do so b/c of inherent Constitutional conflict (Violates Due Process; etc.).

a.

President 1. Category 1 a. Congress gave me the authority 2. Category 2 a. Congress hasnt spoken, but the circumstances do warrant 3. Category 3 a. Even though Congress said no, the exigencies of the situation, President still has inherent power to act Exec power and Commander in chief. argues COC really only for foreign affairsnot domestic. Exec power have to tie the ex of exec power to a specific statute President argues Coc means natl security, defense of nation, just needs to relate to foreign affairs Exec Congress clearly has a purpose in mind when they pass the laws, and you look @ all the laws together to determine the meaning. You dont look at one specific statute. SEPARATION OF POWERS: IN DEPTH I. Before sovereign can take away your property or jail you: a. Congress must enact a law b. Executive must enforce the law c. Judiciary will have an adjudication of whether the law, as applied to you, is legitimate or not So even though we're shifting away from our focus on individual liberties, separation of powers protects individual rights. II. Sep of Powers problems: a. Power sharing. i. Ex., Congress passes a law specifying that the legislative branch should enforce the law. Mismatch between the branch that should be doing the work and the branch that is actually doing it. b. One branch claims inherent power to do something. No legislation authorizes this, but the branch claims it has inherent power to do something. i. Ex., Bush sets up military tribunals in Guantanamo and claims that he has inherent power because he is the Commander in Chief. c. Whether there's a textual command that clearly and explicitly prohibits the action in question. If the President releases an executive order that is a legislative action, there is part of the Constitution which specifically prohibits the President from enacting law. i. Or ex., if the Senate Judiciary Committee tried to start appointing federal judges. There's a specific part of the text which prohibits this. III. First part of the inquiry: characterize the action a. For our purposes: i. legislative act involves policymaking, not implementation. Executive act is about implementation. Judicial act is about adjudication. 1. We can disagree about whether something is a legislative or executive act.

34

IV.

V.

VI.

can we include in the executive act because it's an inherent power of the President? What are the inherent powers of Congress? 1. Ex. hold hearings and call witness; gather information. Power of appropriations. Second part: who is doing the action-- what branch? Seems easy but sometimes isn't. a. Ex. the Controller General of the Accountability Office was named by the President, but the list of nominees was given by Congress. The term was for ten years, and Congress may remove him. Do we consider him part of the executive because the President named him? Or legislative because Congress nominated and may remove? Working through the process: a. If act and actor match up, probably constitutional. Unless there's a textual prohibition b. If act and actor do not match up, obviously a problem. i. Formalism: Court can just say, whenever the act and actor don't match up, it's Unconstitutional. ii. Functionalism: Court says it's okay for the executive to do a certain amount of lawmaking so long as Congress maintain sufficient control over what's going on so that it can assert itself if need be. 1. Ex. Congress "punts" a policy-making task to an agency, but to avoid having too much power concentrated in the executive, either house of Congress can veto that policy. a. Pernicious view of the legislative veto: Congress has created the agencies. They are part of the executive branch. When those executive agencies perform their functions, this is part of the scope of implementation. So the legislative veto is Congress micromanaging the executive branch. HYPOS: Congress passes a law that agency heads are to be appointed by the Senate. a. Constitution specifically authorizes the President to make appointments, so this is a clear prohibition. i. Mismatch: legislative branch is doing an executive act. 1. Formalist would say automatically unconstitutional. 2. Under Functionalist analysis, this seems to undermine the President's powers too much and not be here either a. Ask whether this interferes too much with each branch's control relationship. Is this interfering too much with the President's power to implement the laws? Has the President lost control over the agency if he doesn't get to appoint the agency head? Or is the agency head beholden to Congress in a way that undermines the President's control? . b. Congress creates an independent agency, the FCC, that is authorized to regulate the airwaves "in the public interest." This agency regulates indecency. Fox News broadcasts an award show in which the f word is used. FCC launches an administrative prosecution and fines Fox. Fox challenges the whole proceeding as unconstitutional. The FCC decision makers are 5 commissioners, appointed one per year. Must be three from one party and two from the other party. President cannot remove them except for cause. i. Textual: is there an explicit textual provision that is at odds with this? 1. President's appointment power is being limited. Only gets to appoint one commissioner per year, only can remove for cause; not total control over who runs the agency. Dem/Rep balance limits Presidential powers of appointment. But the President's appointment power only applies to officers. If these commissioners aren't officers, President has no power.

ii. Inherent power: what is the scope of authority by virtue of being Commander in Chief? What

35

VII.

For our purposes, we'll assume they are officers and have substantial authority to implement the law. 2. Are these constraints at odds with Presidents appointment powers? a. Argument yes: President doesn't have enough control, he can't appoint all five commissioners immediately, can't remove them for political reasons, balance is an infringement. b. Argument no: President still has enough control. He gets to select one commissioner per year, will eventually have control. ii. Note: Potential second textual issue: the indecency policy is like legislation, but it hasn't been through both houses of Congress and signed by President (bicameralism & presentment). Assume, arguendo, this doesnt exist. iii. "Who is the actor?" Is FCC executive or legislative? 1. For convenience's sake: we'll assume that FCC is in the executive branch and is not an independent agency. iv. "What?" Is this a legislative or executive action? 1. Congress gave FCC the power to enact indecency requirement. But it was the FCC that deemed the awards show indecent. So was FCC doing a legislative or executive act? a. Argument for executive: Congress directed FCC to do the action within certain boundaries, and FCC carried it out. So this makes it sound executive. i. Actor = Act: both formalism and functionalism would say this is Constitutional. b. Argument for legislative: Congress directed FCC to create a policy. FCC created a policy decision, not just an implementation decision. i. Actor Act 1. Formalism: this would be Unconstitutional because there is a mismatch between the act and actor. 2. Functionalism: this would be Unconstitutional b/c Congress doesn't have enough power over the policy. a. Or, can argue that since Congress wanted to delegate this policy-making, it's Const. Two types of Sep of Powers cases where there would definitely be power allowed: a. Constitution explicitly gives power to the President to seize the steel mills b. Constitution explicitly gives power to Congress, which explicitly gives the power to the President c. Hypo: Congress enacts legislation granting an executive agency the power to regulate public interest, ex. OSHA. OSHA decides benzine is toxic and passes a regulation that outlaws benzine. Is this regulation implementing the law? Or is the regulation so unbounded and nonspecific that OSHA is creating law? i. If the underlying law which gives OSHA power is specific and establishes the policy, then OSHA is just implementing the policy that Congress set. This would be an executive act. ii. If "regulate in the public interest" is so broad that the agency is deciding the policy, then the act would be legislative because the agency is making law. iii. If the act is executive: no mismatch, no problem. Say we find that the act is legislative. OSHA is part of the executive branch, so there's a mismatch. 1. Formalism: anytime there's a mismatch, unconstitutional. 2. Functionalism: a. Does Congress have sufficient control over the legislative act that Congress' interests are preserved? i. Congress could limit OSHA's budget (needs bicameralism and Prez signature)

a.

36

ii. Congress could pass its own legislation on the issue (needs
bicameralism and Prez signature)

iii. Hold hearings, make lots of information requests, notify the press
What powers does President have over OSHA? i. Appoints OSHA head; Submits budget; Regulatory review at OSHA c. So, do Congress' powers outweigh the President's? Does Congress have sufficient control? i. Yes: Congress can pass legislation, rescind the powee (or) No: Bicameralism limits the above powers. Passing legislation still requires Presidential approval Youngstown Sheet & Tube Co. v. Sawyer, Truman executive order during Korean War (not declared by Congress) seizing steel mills to prevent a strike a. Majority: Black i. No legislation on the matter ii. What Congress has done cuts against the claim that Congress' policy would support it-- So you can't say the President is executing the law, since Congress implicitly opposes it b. Next question: Does President have inherent Constitutional power to seize the steel mills? i. Presidents argument: he has executive power, faithfully execute the law, commander in chief power ii. Against: no inherent power since Constitution doesn't specifically give ability to seize property. Congress has not specifically given this power. iii. Black applies formal analysis. Mismatch means unconstitutional. 1. Taking of property is legislative in nature 2. Commander in Chief power needs boundaries, otherwise when we are at war the President would have unlimited domestic power ****Jackson: 3 tiers**** a. Three situations in which Presidential power can be questioned, in descending order of legitimacy i. Power at apex: when President acts pursuant to an expressed or implied authorization of Congress. 1. President has his inherent powers, plus whatever Congress delegates (not guaranteed to win, but this is where his power is the strongest). a. President doesn't always win, ex. limiting habeus corpus in terrorism case because even if Congress passed, still wouldn't be unconstitutional. 2. Middle, twilight zone: President acts in absence of congressional will. a. Test: look at exigencies, circumstances. Practical concerns "rather than on abstract theories of law." 3. Lowest power: President's actions are at odds with Congress' express or implied will. a. President would only have his own inherent power here, no delegation from Congress. i. Youngstown b/c Congress specifically rejected the steel seizure. Hypo: Congress creates FEMA. During a recess in Congress, a storm hits the state of Washington making road and air travel impossible. The only way to transport food and supplies is the railroad. The relevant railroad is on strike and the President asks Attorney General if he can seize the railroad. No statute explicitly allows or forbids the seizure; when the proposal was introduced, it died in committee. a. How would Justice Black (usually only finds Presidential power in tier 1) handle this problem? Look for a statute that Prez is implementing. President can claim that he is implementing the FEMA statute. But no statute expressly grants the seizure authority. Probably would not allow because not expressly granted by statute.

b.

VIII.

IX.

IX.

37

X.

XI.

Justice Jackson: three categories : Pro-President: Congress has not spoken; arguably belongs in middle ground. i. Contra: if Congress has informally rejected the statute in committee, Congress must not support this policy, so should go in last category. c. DOJ would argue: i. First: inherent power always means President wins 1. Category 1: look for implicit approval 2. Category 2: would still win because Congress hasn't spoken and the exigencies are very important 3. Category 3: would probably lose unless can argue fallback of inherent power d. Other side: i. Do your best to argue it is Category 3, so that all President has left is inherent, then argue against ii. If in Category 2, argue against circumstances iii. If in Category 1, must argue something else in Constitution forbids it. Hypo: Pentagon papers case: 1st amendment prior restraint case with sep of powers overtones. DOD prepares a report on the history of military in Vietnam. Someone with access to the report leaks it to NY Times and Wash Post, which are intent on publishing the papers. The President is of the view that the release of the Pentagon papers will not only be embarrassing to the military, but also will risk lives because it could cause the loss of allegiances and alliances with other nations, names names and could leave individuals at risk of assassination. Criminal statute criminalizes the dissemination of information when the possessor has reason to believe the information is damaging to the United States. President wants to prevent the publication of this information before the fact: prior restraint. a. Prez: i. Argue for inherent power: Commander in Chief powers to protect the nation in times of war. Category 1: Congress has criminalized the dissemination after the fact, so Congress must not want the information published. ii. Category 2: Even if you look at the statute as not specifically allowing the prior restraint, look at Congress as silent. If Congress is silent, argue that exigencies are important because lives are at stake. iii. Category 3: Prez still has Commander in Chief powers. b. Plaintiff: i. First argue for category 3: by leaving out the prior restraint, Congress does not approve of this action. No inherent power because it's not related enough to Commander in Chief. ii. Then 2: Even if Congress is silent, exigencies don't support the restraint. iii. 1: Even if find that congress supports, look for another Constitutional block. First Amendment argument. 1. Even if we find inherent power or category 1, any other blocks? a. First Amendment. President can't simply assert the risk. He must prove the risk exists. (not learning prior restraint doctrine, but that would be the argument). War on Terror Cases a. After Youngstown and before the 2004 cases, courts had largely steered clear of war powers issues. Courts would typically throw these cases out on jurisdictional grounds. Quote from Justice Ginsburg on DC circuit on a unilateral Presidential initiative: "Congress has formidable weapons at its disposal if Congress chooses not to confront the President, it is not our task to do so." By 2004, there have been 50 years of the courts steering clear of these disputes. Presidential power has expanded in the theater of war. Presidents have huge incentive to make arguments that expand presidential power because it advances the Prez' policies. On the other hand, Congress has a huge problem with collective action. Members of Congress advance local constituencies, mostly are not institutionally minded and especially in a polarized Congress, no incentive to act as one to resist the President.

b.

38

b.

Hamdi, American citizen detained in Afghanistan, fighting against the United States. Administration is holding him without judicial process; arguing that Hamdi has essentially no rights because he is an enemy combatant.

XII.

detained except pursuant to an act of Congress. Response to Authorization of Military Force Act: too broad, does not directly authorize detention. NDA is very specific; should trump the more broad act. 2. If lose on category 3, go to category 2: If Congress has not authorized or forbidden the act, then Congress is silent. No direct authorization or prohibition. Exigencies don't justify. 3. Then 1: even if Congress has authorized, argue that there is a separate Constitutional bar. Here, it's due process: can't carte blanche detain people without habeus corpus. ii. Argument for administration: 1. Argue for category 1: Authorization of Military Force Act (2001) authorizes necessary force to pursue terrorists. Response to Non-Detention Act: this act does authorize detention in this case, so supersedes the NDA. 2. Then 2: If Congress hasn't specifically allowed it, legislative silence. The exigencies are important because we are in a war. 3. Then 3: Even if 3, argue that inherent powers of Commander in Chief include detention. Administration would argue there are not other constitutional bars, and that this doesn't violate 5th amendment. iii. Court here decided to agree with DOJ about authorization of military force, but that due process lives. DP limits the amount of time without a hearing. So even though administration lost, secretly happy about this: 1. Only applies to citizens 2. Court ruled that AUMF authorized detention, overriding the NDA. Broad power for administration beyond this case. iv. Context: During oral arguments, assistant to the solicitor general was asked whether there were no boundaries under his view, and whether this power would include torture. Paul Clement, the assistant to SG, said the military would never torture and operated within international customs. The Abu Ghraib pictures came out on that same day. Hamdan, Prez Bush launched an initiative on military commissions. While the case was being filed, Congress enacted the Detainee Treatment Act, placing boundaries on federal court review of military tribunal decisions. DTA did not authorize military commissions; it just presupposed the existence of military commissions. a. DTA: Category 1: Congress presupposed the existence and funded the commissions, even expanded their power. Category 2: not specifically speaking. Hard to get to category 3, so would have to look to other statutes. b. Court wanted to rule against the administration, but had a dilemma since it looked like the administration and Congress were aligned. Too direct to just outlaw military commissions. c. Court said the DTA was irrelevant, because it only applies prospectively, not to Hamdan, who was already in custody when the act was passed. i. Congress, through the Uniform Code of Military Justice and ratification of the Geneva Convention, held that Congress did not authorize the President's military commissions. So there isn't inherent power; if Bush had inherent power, wouldn't need Congressional authorization. ii. Court kicks the issue back to Congress to decide.

i. Argument against administration: 1. Argue for category 3: Non-Detention Act (1971) provides that no citizen shall be

39

X.

XI.

XII.

Boumediane, Congress has authorized military tribunals; can Prez make use of these? a. Classic Category 1. Only way can prevail is if the underlying statute, Military Commission Act, is unconstitutional. i. SCOTUS: MCA is unconstitutional b/c the suspension of habeus corpus is not allowed. ii. Context: both Presidential candidates vow to close Guantanamo; Congress has been taken over by Democrats who wanted to protect habeus. Lower risk of backlash, unlike the earlier cases when public opinion and Congressional will favored Presidential power. Hypo: NSA domestic wiretapping. Warrantless wiretapping of people inside the US so long as it's suspected that one person in the communication is outside the country a. Plaintiff, ACLU: i. Category 3: FISA demands probable cause that the target is a foreign power or agent of a foreign power, requires warrant except for limited grace period. Differentiate Hamdi: Hamdi dealt with the field of combat, and this is domestic. ii. If not 3, then 2 iii. Even if 1, rely on 4th amendment protections b. President: i. Category 1: FISA doesn't apply because there is another statute-- the AUMF. AUMF authorizes this: look to precedent of Hamdi, which held that AUMF trumped the DTA. ii. If not 1, then 2-- not specific iii. Even if 3, argue for inherent power. Commander in Chief, history of domestic secretive surveillance (maybe McCarthy era, Cointelpro) c. Judicial avoidance of making Constitutional rulings: 4th Amendment should overturn this statute anyway no matter the Sep of Powers issues. A federal judge might want to avoid this though to make the most narrow ruling possible. So, instead look at the FISA statute as very specific: "except as authorized by statute" requires a specific authorization about domestic wiretapping, not the sweeping authorization in the AUMF. Never went to SCOTUS. District court ruled against the Prez. Morrison v. Olson, Ethics in Government Act: independent counsel, who prosecutes crimes in the high ranks of the executive branch, is appointed by a special court created by the judiciary-- special panel of the DC circuit. a. Act: prosecuting a crime (executive). b. Actor: Attorney General (acting independently or at the behest of Congress), and judiciary (the Special Division). i. Independent counsel is given a charge to investigate criminal wrongdoing by this-or-that person. Investigation is ended one of several ways: IC can end by concluding there's not enough evidence, or prosecuting the case; the AG can seek to remove the IC and declare the investigation over (especially if IC oversteps bounds of investigation); Special Division can end the investigation if declares it's complete. c. Mismatch or not? i. AG is part of the executive branch, so there's no mismatch there. ii. Judicial body terminates an executive function, so can DC Circuit have the power to end the investigation? 1. Can the DC Circuit appoint the IC? IC is really outside any of the three branches. IC is independent exactly because he's investigating the executive branch. iii. Formalism: this is a mismatch, so (see Scalia's dissent), the inquiry would end here. iv. Functionalism: does the judiciary overstep the President's power too much, or does the President retain enough control? 1. Executive power retained: AG triggers the appointment, AG can fire IC for good cause. 2. Infringement on exec power: AG cannot fire the IC except for "good cause." Judiciary appoints the IC in the first place. v. Textual barriers?

40

1.

Appointments clause: The President shall nominate officers, but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, courts of law, or heads of departments. a. This is an appointment by a court of law. If inferior officer: Constitutional i. Power is bounded by AG and Special Division ii. Scope and duration of investigation are predetermined iii. Subject to DOJ guidelines b. If not inferior, principal officer: Unconstitutional i. Power to investigate the highest levels of the executive (Devins: this is less important. Don't look to the subject of the investigation, look to the power) ii. Not much oversight within the boundaries preset iii. No at-will firing iv. Can result in jail, death, humiliation

Federalism Today Commerce Clause Congress has passed a statute. will argue against it, Congress will argue why it has the power to regulate this activity. I. a. Starts w/ Lopez/Morrison (argues that the factors that the ct highlights in the Lopez and Morrison cases dont allow Congress to regulate whatever its regulating under the cc i. Jurisdictional does the law on its face speak about interstate commerce? ii. Is it commercial/ec activity? 1. Commerce substantially impacted/affected. Need to have substantial impact on commerce to regulate activity under the commerce clause. Can abrogate single pieces of economic activity to get to substantial impact, but cant aggregate non- commercial activity to get to that substantial impact. So if its non-commercial non economic, no aggregation. 2. If it IS an ec activity, see b. below iii. Congress doesnt have the authority to regulate what its regulating iv. Connection is too attenuated v. 10th Amendment (value issue) is Congress intruding on the traditional sphere of State authority b. Law fails under Heart of Atlanta, straight RBR. II. Congress a. Heart of Atlantaits just ratl basis review. i. Clear regulation of ec activity. Ratl basis that 1. it affects commerce; and 2. that the means are necessary b. If not HoA, then Raich triggered, 00:45:00 i. So Congress engages in all of this fact finding/ but once ec activity is triggered (in Raich) they dont need to do the ff, they just need a ratl basis to believe that it does affect commerce. ii. Necessary & Proper clause (Scalia opinion) when theres also an interstate market and a natl policy that Congress is trying to regulate and affect, then iii. The law passes under Lopez/Morrison (but Congress doesnt want to be here, very difficult for the law to be sustainednon commercial activity then very diff to aggregate to get substantial affect on commerce. (might be able to achieve the exact same thing under one of its other powers) 1. Spending power is really only about the states FEDERALISM TODAY: IN DEPTH I. Congress' powers to regulate the states or create incentives for the states: Commerce clause, 5 of 14th amend, spending power (Ex. commerce: set wages, regulate child labor, regulate medical marijuana).

41

a.

II.

Three categories of commerce power: i. Regulate channels of interstate commerce (highways, rivers, etc.) ii. Regulate things in interstate commerce (people, goods) iii. Regulate things that affect interstate commerce (indirect regulation) b. 5 power to enforce 14th amend (Ex. a state is discriminating against the disabled. Congress legislates to create a remedy for those individuals so that they can sue the state). i. Spending power: (Ex. states have agreed to set the speed limit at a certain speed in return for federal highway funds. Congress will not give federal highway funds unless the state sets a particular speed limit. Same thing for minimum drinking age). c. 10th Amend limits: state sovereignty (Ex. Congress clearly has power to regulate interstate hazardous materials. Congress chooses to enforce that by requiring the states to enact laws regulating hazardous materials). i. This law would be invalidated by the 10th Amend, even though Congress could directly regulate those same materials b/c the 10th Amend sets certain boundaries protecting the states from some federal encroachments. d. 11th Amend limits: protection for states from suits: Ex. Congress enacts a minimum wage. The enforcement mechanism is to allow citizens to sue the state. i. This law would be invalidated by the 11th amend, even though Congress could directly enforce the minimum wage.11th Amend protects states from some types of lawsuits from citizens. Standard for federalism is the rational basis test (explained in Heart of Atlanta). Deferential to Congress. Other case we haven't covered: 10th Amend doesn't limit Congress either. a. Would the Lopez statute be upheld under Heart of Atlanta standard? (Prohibits gun possession near a school). i. Is there a rational basis for thinking that this could affect interstate commerce? 1. Argument yes (in dissent): violent crime impacts community health costs, people might avoid areas where there has been violent crime, crime affects learning environment which affects future economic earning power of students. Congress could have thought there was a rational basis. 2. Argument no (majority): crime is not a commercial activity. If the costs of crime are held to be sufficient rationale for federal regulation, Congress could regulate any crime or pretty much anything that might eventually affect interstate commerce (such as school curriculum). b. Would the Heart of Atlanta statute (Civil Rights Act) be upheld under the Lopez standard? (Hotels and restaurants "if operation affects commerce" or "serve or offer to serve interstate travelers" or "if a substantial portion of the food which they serve or produce has moved in interstate commerce"). 64 CRA (Heart of Atlanta) Jurisdictional element: Commerce itself Economic regulation: hotels & restaurants are commercial entities. GFZA (Lopez) Does not reference Not economic: people who own guns are not commercial entities Indirect/ attenuated No findings, no legislative record

strong causal link (direct regulation of interstate actor). Congressional hearings & findings: testimony about minorities who were reluctant

42

to travel if they couldnt get lodging Civil Rights Act is a response to the failure of states to act in a non-discriminatory way. States have shown that they can't adequately regulate this on their own. Race is traditionally a federal prerogative. CRA is a response to failure of the states to act in some way so it required a natl solution

etc POLICE POWER traditionally left to the states, not the federal govt Whats the next step? Curriculum control? This is a States prerogative.

III. IV.

How to fix the Gun-Free School Zones Statute? a. Limit to guns that have crossed state lines (which Congress in fact did later) Morrison: Violence Against Women Act creates civil cause of action for victims of domestic violence. First Congressional justification of authority to regulate violent crime against women: Commerce Clause a. Chart: Morrison Is domestic violence an ec activity? Not reallybut could affect ec activity. Might not be direct enough LOTS of findings: Extensive congressional hearings focused on chain of events leading from violent crime to interstate commerce (deterrence of travel, deterrence from employment) Is gender violence more like race (fed govt) or private tort behavior (state)? Congress will argue more like race; states havent adequately dealt w/ gender bias Opponents will argue that private tort behavior = traditionally in realm of the state.

GFZA No jurisdictional element Not economic Indirect/attenuated connection No findings

States Perogative

b.

court: in Lopez we held that the activity itself must be economic, effects aren't enough. Doesn't consider Congress' evidence. i. H of A test, according to CJ Rehquist, eviscerates distinction between fed and state power because Congress could theoretically have a rational basis for thinking that anything could affect the economy. This is an unbounded reading of the Commerce Clause. 1. Then, Morrison raises the question: should the test deny Congress the ability to make the case and present evidence that tens of billions of dollars a year are affected by this activity? Have we moved too far in the other direction?

III.

Partial-birth abortion ban Court never decided the issue of whether the ban was authorized under the Commerce Clause a. Arguments against interstate commerce i. It's extremely rare, so no substantial effect on the economy ii. Procedure is performed within a state b. Arguments for interstate commerce i. Patients and/or doctors may travel across state lines for the procedure ii. Medical goods may be transferred between states c. Arguments against economic activity i. If a woman is going to get an abortion anyway, her choice of method is irrelevant to the economy because she would incur those healthcare costs regardless d. Arguments for economic activity i. It's not a question of how big the impact is, the fact is that money is being spent.

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IV.

V.

Gonzalez v. Raich, Federal ban on marijuana, including for medical purposes. CA enacts the Compassionate Use Act, which allows seriously ill people to use marijuana for medical purposes. Question for the court: can Congress regulate marijuana in a way to prevent CA from carving out medical use? a. State of CA's argument: i. This is intrastate. The marijuana is cultivated and used in-state. ii. Impact is not substantial because the number of people using medical marijuana is small iii. Medical users would suffer, look for prescription drugs, do something else legal if medical marijuana were illegal iv. Don't assume illegal conduct: either that med users would use black market marijuana if legal marijuana were unavailable, or that med users would share/ sell surplus. v. The plaintiff here is an individual using only intrastate supplies. She's not in the economic marketplace in any meaningful way vi. Differentiate Wickard: Wickard was a commercial farmer. P's here are just individuals cultivating and using only for themselves. Wickard was taking away from the legal wheat market, but there is no legal marijuana market 's here are affecting. 1. Court isn't troubled by the fact that the market is illegal, just treats it as an economic activity. b. Federal govt's argument: i. Assumption that medical marijuana users, at a minimum, will share the surplus or sell the surplus in the black market ii. Wickard argument: someone growing their own marijuana at home probably will not always produce the exact amount that they need is unlikely. Assume the potential for illegal conduct here. 1. A commodity is a commodity, marijuana market is not specifically different from wheat market iii. Aggregate affect of all the med users in CA is huge. iv. Cultivation of marijuana is inherently economic because there is a demand for the substance; it's a commodity that is bought and sold. c. Policy questions: i. O'Connor: this goes too far. If anything that affects supply/demand in the national market is economic activity within Congressional regulation, then there is nothing that the market can't touch. (Derek and Jim) ii. Political overtones: fear of drug use, political constituency against marijuana d. Other options for once she loses on commerce grounds? i. Privacy 1. Medical decisions between patient and doctor 2. Not really history and tradition, but free society rights to determine how you will alleviate your pain. Once the analysis under the commerce clause is successful that the activity actually is interstate commerce, then turn to these analyses. If Congress is regulating the states, have to get through 10th and 11th Amends. a. 11th Amend: can't have private citizens seek money damages against a state. Ex. Congress sets minimum wage and overtime laws. Congress has constitutional authority to enact these laws (commerce clause) and constitutionality to bind the states (10th Amend). Individuals cannot go into court against the state to enforce the federal law. (But individuals can sue their employers as private actors. Just not the states, or state actors like a public school).

ii. If abortions are an economic activity, any method is also an economic activity.

Structure of this minimum wage argument: Arguments made in commerce clause cases Congress: Regulating something economic, like Heart of Atlanta or Raich. Direct regulation.

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Plaintiff:

Even if not actually economic, within "necessary and proper" power to facilitate economic marketplace Once it's economic: RBR, probably Constitutional.

Look to Morrison and Lopez factors Jurisdictional element: is Congress regulating something moving across state lines or substantially affects interstate commerce? Is this an economic activity? Economic implications aren't enough under these two precedents. No but-for causal link. Is this a traditionally state function? Is there substantial impact on interstate commerce? (once you say it's economic, this won't be much of an issue because Congress could have thought there was a substantial impact for almost anything) Fact finding doesn't matter much once activity is economic, even if Congress finds there's a huge impact, ex. Raich. If Plaintiff wins, what can Congress do? Limit the law to apply only, for ex., to products that actually have moved across state lines 10th Amend Tremendous movement on 10th Amend over the last 50 years. Wirtz 1968 -- (Nixon appoints 4) --> Usery 1976 -- (Blackmun flips his position) --> Garcia 1985 -- (Thomas, Reagan/Bush appointees) --> New York v. US 1992 Wirtz: Warren court held that 10th amend really didn't limit Congress' commerce power. Usery: there are certain traditional state powers that Congress cannot regulate (ex. police and fire). But nobody knows precisely what a traditional gov function is. Garcia: are mass transit systems trad gov functions? Dept of Labor: no, this can be done by a private system. It only happens to be done by a gov body, but doesn't have to be. So federal labor laws should apply to mass transit. Dept of Transportation: yes, this is a trad gov function. Dept of Labor prevails. San Antonio transit system doesn't like the ruling and appeals. The Court backs up the Dept of Labor view, but they repudiate and overturn Usery. This is an unworkable standard because nobody knows what a trad gov function is. Real protection for states regarding the 10th Amend comes not from the judiciary overturning federal actions, but from the legislative process itself. Each state is amply represented in Congress and the federal gov, and states must look after their own interest in the national legislature. So SCOTUS says it will get out of the business of interpreting the 10th Amend. This is a political protection; states don't need help from the courts. Dissenters of course said that the courts should play a role. NY v. US: repudiates Garcia and goes back to a substantive theory. The commandeering test. The legislation in this case (disposal of low-level radioactive waste) was actually written by the states. Only three states had dump sites and all the states got together to make a compact: negotiated a deal for disposal of waste, submitted it to Congress, which then enacted the law. Three aspects to the statute, only one of which is struck down States with waste sites can impose surcharges on those who dump their waste in those sites. If the state complies with the surcharge, they get back some of this money from fed gov. Spending power: OK. Surcharges increase over time. This is permissible under commerce power: direct regulation over those who deposit waste, just like minimum wage or overtime pay. Congress is directly responsible for the activity. Take title provision: unconst. Congress is not regulating private individuals, but regulating the States. 10th Amend is an issue when Congress regulates the states. Congress gives state two choices if State hasn't created a waste site: State can take title over the waste, thus owning it and all liability Or, State can enact legislation governing the disposal of the waste. Congress has written this legislation that State must enact. Court says Congress can't do this. Main argument is historical: choice between VA and NJ congressional plans during the creation of the constitution. Framers embraced the VA plan: Congress can regulate private actors, cannot regulate the states.

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Take title provision regulates the state directly. This is like the NJ plan to regulate the states, which was rejected. Congress is "commandeering" the states to enact legislation that Congress wants. Not OK. Dissent: by approving the VA plan, framers wanted to expand congressional power to give power to both: direct regulation of individuals and the states. Hypotheticals on the commandeering test: Fed gov mandates that gun sellers check a national registry before selling guns. Commerce clause: econ activity, rational, it's fine. 10th: this is direct regulation of individuals, not states. This is fine. Prince: period of time before national registration is up and running. In the intermediate period, police must do background checks and figure out whether or not the individual poses a problem. 10th: this is unconst., because the police are state actors. Congress is commandeering the states into how they should regulate their citizens. Reno v. Condon: Congress prohibits everyone, both individuals and states, from reselling private information from driver registration records. This imposes an administrative cost on the States. Is this commandeering? No: this isn't making the state into an instrument of the fed gov. Not telling state what federal law to enforce or what laws to pass. Here, fed gov is taking the heat for enforcement of the fed standard itself, not forcing states to enforce its will. Unlike the nuclear waste case: Congress tells state what law to pass, to enforce the federal law. This is unconst. because Congress is using the state to enforce the law rather than enforcing the law itself. Argument against: it will cost the state some money to comply with this statute. Does that count as requiring the state to take on the enforcement of Congress' law? Yes: this is an enforcement cost that Congress should absorb. (court doesn't buy this) No: this is just another unfunded mandate, ex. minimum wage or environmental laws. Good question to think about: are the states spending money to comply with the federal law? --> Constitutional. Or are the states spending money to administer the federal law against their own citizens? --> Unconstitutional. Court upheld this statute, but everybody was surprised. Categories: Fed regulating private actors Commerce clause: is it like Heart of Atlanta/ Raich or Lopez/ Morrison? 10th: not a problem, no states involved 11th: not a problem, no states involved Fed regulating private and state actors doing same activity Commerce clause: see above 10th: Garcia, Reno v. Condon. 10th amend not a problem because states are regulated just like private actors 11th: cannot have private citizens sue states to enforce statute, but private citizens can sue each other Fed regulating states to enforce fed standards against private actors Commerce clause: see above 10th: Prince. Fed gov commandeering the states 11th: cannot have private citizens sue states to enforce statute How does 11th amend fit in? 11th has no bearing on regulating private actors, only on states. First question: can Congress do this under CC? If yes, move on. If no, unconst. Second: if states are involved, can Congress do this under 10th? Make commandeering arguments yes and no. Third: if states are involved, can Congress do this under 11th? 11th is a barrier to some types of fed regulatory schemes. 11th amend doctrine: citizens of a state cannot go into court, fed or state court, and seek money damages against the state if the underlying law is enacted pursuant to the commerce power. Don't confuse with 5 of 14th amend: Congress can abrogate state immunity in that situation. Was initially intended to shield states from litigating by people from other states and countries. But over time, it was interpreted to shield states from lawsuits even by their own citizens. Congress can seek to override the 11th amend. Berger court: 11th amend doesn't prevent Congress from using the commerce power to allow citizens to sue their state to enforce the fed law. But then

46

SCOTUS overturned in Seminole Tribe: commerce power can't abrogate state immunity against money damages. Citizens can seek injunctions, but not money damages. Then extended: citizens can't even go into state court. Congress would like to have private citizens enforce in court, because costless for fed gov and big incentive for citizens to enforce. But this is generally not allowed. Logic of cases is that fed gov should take responsibility to enforce its own laws. Bottom line: if Congress is using commerce power, enforcement against the states can't involve private citizens seeking money damages. Go over this structure independently at home and on Thursday we'll do another hypo with an environmental statute. Wrap up: With private actors, commerce clause is the big question. With state actors, more is involved. 10th amend, commandeering principle 11th amend, private enforcement with money damages if authority based on commerce clause: not OK if authority based on 5, 14th Amend: look at scope under 5 Counseling question: if you say something is unconstitutional, look at whether there's some other way Congress can achieve the same policy goals. Ex. if commerce clause doesn't allow, can Congress refashion the law to apply more to interstate commerce? Ex. if Congress is commandeering states, how else to use commerce or spending powers to achieve same thing? What other options given Congress' three main powers? Spending, commerce, 5.

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