INTRO TO THE CONSTITUTION AND ITS INTERPRETATION

Two kinds of issues:

Substantive what the Constitution says o Powers and rights grants powers to national government and protects rights that cant be infringed upon by the government o Structural principles powers not explicitly stated Separation of powers Federalism Interpretative how the court interprets the Constitution o Text text or absence of text, an appeal to the unadorned language of the text the inclusion of one thing is the exclusion of another does the text ACTUALLY address the issue? is it dispositive? o History /original intent look at historical background what did the Framers think? look at the Federalist Papers o Structure Structural inferences o Separation of powers: executive/legislative/judicial o Checks and balances o Federalism: state/national gov analysis from particular structures established by the Constitution three branches state and national government role of citizens o Precedent the legislature cannot override the Constitution specifically but can change laws broadly o Prudential/pragmatic emphasis on the consequences of adopting a particular decision in any given case o Other values? all men created equal with certain rights natural law? Promote justice International law? When interpreting our Constitution it should harmonize with the laws of other nations -funtionalism/formalism

THE CONSTITUTION AND THE COURTS Foundations Background Articles of Confederation

SCOTUS Power of Judicial Review Marbury v. Madison (1803) o Facts: Marbury was a last minute judicial appointment before Jefferson took office but Jefferson refused to deliver his commission o Judciary Act of 1789 and Article III of the Constitution were in conflictbut court said whenever two are in conflict the constitution is supreme over statutes Judiciary Act gave SC original jurisdiction over writs of mandamus Article III gave SC original and appellate jurisdiction o Justice Marshalls holding stated that whenever there is a law in conflict with the Constitution, side with the Constitution Established the power of judicial review of the federal legislature and executive action (key) Federal courts have the authority to review the acts of state and local govs and the decisions of state court decisions the right of every individual to claim protection of the law, whenever he receives an injury Tensions over whether or not president could be sued but court said the executive can be sued Congress cannot add to SCs original jurisdiction Precedential effect: the most important parts of the opinion could actually be called dicta because they had nothing to do with the judgment of the case Power of judicial review o The authority of a court to review legislation for conformity with the Constitution and to refuse to apply the legislation if its in conflict with the Constitution Arguments FOR the power of judicial review The constitution is written Judicial role Supremacy clause all cases provisionArt. III Sec. 2 justices took an oath to uphold Constitution the court must protect the country from the other two more dangerous branches of government courts special job is to interpret law Arguments AGAINST Justices are appointed not elected Congressmen know what the Constitution means Congressmen also took an oath The Constitution isnt law, its guiding principles o Countermajoritarian problem There are undemocratic features of judicial review Judges are appointed for life (not elected) Constitution is difficult to change

Intergeneration problem: C. written by dead hand of the past Is judicial review undemocratic? Yes, so avoid if possible Sometimes, but not necessarilylimit to reinforcing democracy No, will of the people DOES NOT EQUAL will of legislature Yes, but other values are important: human rights stability Arguments about standard of review: deferential v. strict review strict review to protect democratic process and fundamental rights deferential review for everything else

SCOTUS Power of Review of State Court Decisions Martin v. Hunters Lessee o Facts: state of VA granted same tract of land to Hunter that a federal treaty gave to Martin o Result: the Constitution is the supreme law of the land (not state action, so Martin gets land) o Storys holding: Supremacy clause, Art. VI, clause 2 federal law trumps state law judges in every state shall be bound thereby Rejected sovereignty argument Article III, Sec. 2 gives SC appellate review of state courtspeople can appeal state supreme court when that deny a claim of federal right Uniformity among states is important other wise we could have 50 different interpretations of the constitution State court might not be the best impartial judges when interpreting federal law o Arguments for State court independence Judiciary Act of 1789 statute that confers jurisdiction to SCt is unconstitutional Supremacy clause only applies in cases of conflict of state and fed lawno conflict here This gets in the way of federalism Case must be REMOVED from state court to fed court in order for SCOTUS to get jxn Interpreting the Constitution Textualist originalists see themselves as agents of the founders o Plain meaning rule Originalism: give the Constitution its original meaning and original intended application o Problems: The electorate then was woefully undemocratic Originalism would upend centuries of jurisprudence

 Historical review doesnt provide neat answers Purposivists nonoriginalists see themselves as partners of the founders o Holy Trinity Church v. US Congress would not have intended for a pastor to be a criminal and excluded Pragmatists - reject borders and methods of interpretation and says to use whatever argument are handy or work Natural law something may not be explicitly prohibited, but it can be prohibited nonetheless o Calder v. Bull (1798) gov has no authority to interfere with an individuals rights, and the general principle of law and reason forbid the leg from interferingjudges ought to rely on natural law when making decisions Iredell (concurrence) natural law may exist but a court cant give it effect More common view today Subjectivity Precedent International law o Roper v. Simons: case about capital punishment that goes into how other countries have banned it. Congressional Regulation of the Judiciary Article III o Sec 1 judicial power is vested in the SC and other courts that Congress establishes o Sec 2 in cases with foreign officers, SC has original jurisdiction Suspension Clause, Art I, 9 habeas corpus shall not be suspended unless the safety of the public requires it o Habeus Corpus Act (1867) allows a person to contest at court to say that an inmate is being illegally held; produce the body so court can determine whether they should be released from custody o Military Reconstructin Act (1867) Civil War cases avoid defining scope of congressional power until 2008 o Ex Parte McCardle (1869) Facts: while McCardles habeus corpus petition was pending before the SC, Congress amended the law repealing SCs jurisdiction over the case Result: The SCs appellate jurisdiction lies in the Constitution but with exceptions and under regulations of Congress so it could lawfully repeal the law that gave SC habeus corpus jurisdiction o Ex Parte Yerger (1869) Similar case; but SC had discretionary review and not appellate review: McCardle could have asked for SCs to decide his plight on original jurisdiction grounds rather than on appellate review Recent cases (until 2008 when Obama) in general Congress can limit SCs jurisdiction but it never did if it could accomplish its aims another way

o Boumedine v. Bush (2008) Military Commission Act (2006) combatant status review tribunal sole review in DC circuit no other judicial review (excluded SC) Facts: Boumedine was a Bosnian citizen being held in Cuba under the Military Commissions Act; Result: He had a right to habeas corpus under the US Constitution and the Military Commission Act was an unconstitutional suspension of his right Adequate substitute: If congress had taken away HB and given something else similar that would have been okay Limits on Congressional Control o Text: exceptions clauseArt. III Sec. 2.2 The grant of authority to congress to control the jurisdiction of SCt. Does the exception imply a limit to the courts power that can be determined by congress? o Structure-essential functions Difficult to deny the importance of uniformity and need for fed law to be supreme Need a federal court to challenge federal laws o Suspension clause o Independent unconstitutionality Whatever congress does based on Art. IIIit cannot violate other provisions of the constitution

Limits on Judicial Review Justiciability requirements ALL must be present in order for case to be able to be heard in court; apply in ALL cases o Justiciable subject to trial in a court of law Not an advisory opinion Have standing Not a political question Ripe Not moot o Nonjusticiable NOT subject to trial in court o Policy reasons Keep separation of powers Conserve judicial resources Improve judicial decision-makingconcreteness Promote fairness Forces court to exercise judicial restraint o The justiciability requirements come from Article III, but are not explicitly stated. 1. Prohibition against federal courts issuing advisory opinions

o President cant get opinions from the SC; o Courts can only respond to real disputes o Courts cant address hypothetical questions about the constitutionality of an issue not before the court Policy- keep courts out of legislative process o Criteria for avoiding being an advisory opinion Must be actual dispute between adverse litigants Must be a substantial likelihood that a federal court decision in favor of claimant will bring about some change or have some effect 2. Plaintiff must have proper standing o P is the proper to the bring a matter to court for adjudication o Injury in fact - P has suffered or will suffer an injury Personally suffered/particularized (not general) imminent (not in the future or speculative) injury cannot be to another person ideological objection is not enough does not have to be economic o Causal nexus the injury must be fairly traceable to Ds conductcausal connection between injury and act o Redressability P must allege that favorable federal court decision is likely to solve the problem closely related to nexus o Does allowing this P to sue, mean that ANYONE could sue?dont want that. Lujan v. Defenders (1992) Facts: wildlife activists lacked standing to sue the federal government for limiting the Endangered Species Act to not apply to actions taken in foreign nations because the activist did not personally suffer any actual injury in fact o Even if you have the right to bring a suit to enforce a law, you still have to have an injury! o Redressability issuein plurality: hard to see how the court can fix this problem based on the party being sued Massachusetts v. EPA (2007) Facts: MA sues EPA out of their belief that the EPA should regulate carbon dioxide under the Clean Air Act because their coastline is receding. Court decides MA has standing because MA is representing all of its citizens who would be affected by global warming. Injury: global warming causing coastline to recede; Causation: EPAs refusal to regulate emissions/global warming contribute to the water to rising; Redressability: Risk would be reduced to some extent if EPA regulated emissions o In this case, it was easier to show standing because the P was a state and not an individualwould be harder for individual to prove direct injury from green-house gases

o Standing is a constitutional requirement for jurisdiction in federal court; Congress cant override the requirement that P have standing o Court has long accepted procedural injury when tied to injury in fact o Alternative merits based view to standing P can sue regardless of whether he has standing if he has legal right to judicial enforcement of a legal duty Does P have a legal right to enforcement of a legal duty? Does the legal provision give a right/cause of action to P? Another way to analyzing injury in fact is to use the merits based approach. This approach looks more a whether the P has a valid and true interest at stake. It does not matter whether the interest was motivated by economic, professional, or simple aesthetic factors. OR Under a merits based approach, rather than asking who has injury in fact, the ct asks if the P has a legal right to judicial enforcement of a legal duty? If yes, then Congress has intended to give a legally enforceable right to sue and plaintiff can sue regardless of traditional standing criteria. This is a question of statutory construction- (if statute says that any citizen can sue, then there would be standing). Look at legislative intent. However, ct has not adopted this method. If citizen suit provisions are allowed, then ct intended to give citizens the right to sue. 2. Not a political question cant go to court for political questions o a political question is anything the court believes should be decided in the political/executed branches (President or Congress) o Strands of PQ Doctrine, fitting into at least one strand is necessary, perhaps not sufficient: Jurisdictional: textually demonstrable commitment Does the C. say that this issue is for another branch of the courts? Merit-based Would lose on the merits anyway Prudential/Deferential Court think the issue is inappropriate for the court to decide it Most controversial to rely solely on this strand o PQ and judicial restraint: court should refrain from those matters that are best decided by other branches of government

o Cases that invoked the criteria Impeachmentsnonjusticiable Foreign relations: US needs to speak with one voice so courts dont undermine thisnonjusticiable Electionsjusticiable/not a political question Constitutional amendments: one of the few checks on the courts Global warming o Baker v. Carr (1962) Facts: Baker sought injunction prohibiting further elections because the apportionment of congressional seats was unconstitutional and court decided this was NOT a political question and thus could be decided by the courtrooted more in equal protection than PQ Situations in which a case falls under PQ p.107: o Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department (i.e. foreign affairs or executive war powers)? o Is there a lack of judicially discoverable and manageable standards for resolving the issue? o Unsuitable policy determination: The impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial discretion. o The impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government. o Is there an unusual need for unquestioning adherence to a political decision already made? o Would attempting to resolve the matter create the possibility of embarrassment from multifarious pronouncements by various departments on one question? Difficult to follow DISSENT: This is state matter that doesnt invoke the courts interference; citizens can VOTE if they want to change/fix something (counter: the whole point was that votes were not being counted meaningfully); no way to decide what is and is not fair or come up with a standard to apply; they knew this was leading to one-vote/one person and thought this had not basis in the constitution o Nixon v. US (1993) Facts: Judge Walter Nixon claims that Senate Rule XI violated constitutional grant of authority to the Senate to try all impeachments (Art. 1 3) because it prohibits the entire Senate from taking part in the trial and evidentiary hearings. Result: Issue was nonjusticiable because it involved a political question for two reasons

Textual: Duty was clearly delegated to Congress Lack of standard for resolving the conflict (meaning of the word Try in this context) o Davis v. Bandemer (1986) SC said partisan gerrymandering is a justiciable issue Gerrymandering on basis of race is unconstitutional o Vieth v. Jubelirer (2004) Facts: Vieth, Democrat, alleged the redistricting plan violated Art 1, 2 (one person, one vote) and EPC of 14th Amend. Result: no majority overruled Davis v. Bandemer 4 justices: political gerrymandering is nonjusticiable because lack of standard to determine issue high hurdle for pure partisan gerrymandering claims 4. Must be ripe review is ONLY appropriate when harm has been suffered o standing and ripeness overlap o can be premature to hear a case ie. Not ripe 5. Not moot if the dispute is done or has been resolved, the issue is moot and the court does not have jurisdiction o Exceptions voluntary cessation of a challenged practice by D that can be resumed at any time that doesnt deprive a federal court to determining the legality of the practice when the D voluntarily haults the offending practice but is free to resume it at anytime, the case will not be dismissed as moot DISTRIBUTION OF NATIONAL POWERS Separation of powers v. Checks and Balances o Tension: Strong independent branches that also have to be checks on one another o Purposes of separation of powers and checks and balances: prevention of tyranny Tyranny accumulation of all 3 branches power American Revolution was result of English tyranny efficiency of administration o Formalism/Functionalism (be aware of these themes throughout executive authority/see class outlines) Formalism: demands adherence by each branch to the powers grant to that branchtakes separation of powers as a command of the constitutions text and structure Clear lines that have formal limits Functionalism: command fidelity to the purpose of the distribution of powersviews such separation as a component of fulfilling the constitutions goal Executive Authority Test:

President CAN act in foreign affairs with OUT Congresss approval

o 1. Congressional approval = good o 2. Congressional silence = further analysis statutory language in related legislation subsequent congressional acquiescence role of history; is this an area where the president has traditionally had broad power? The President can NOT make the law o Youngstown Sheet & Tube Co. v. Sawyer (1952) Facts: During Korean War, President Truman seized steel mills and designated new management to keep them running in order to avoid a strike that would affect the war efforts; Youngstown sues because alleges Trumans actions were unconstitutionaldomestic affairs Result: Trumans seizure was unconstitutionalno statutory or constitutional power to do what he did Jacksons concurrence(dominant framework for analyzing executive authority) functional: three zones of pres authority President acts pursuant to an implied or express authorization of Congresspresidents power at a max (Congress says its ok) President acts without congressional grant or denial of authoritytwilight zone (unclear what Congress says) President acts against the express or implied will of Congresspresidents power at lowest ebb (Congress said no) o Could lead down the road to Tyranny! Use Jacksons framework: To be able to make arguments about the implied will of congress See how the framework applies in domestic and foreign affairs (reconcile curtiss-wright) Understand how framework is different from Blacks formal approach o Black: asks does a statute or the constitution confer the power upon the executive? Frankfurter concurrence: Taft-Hartley Act that was enacted over Trumans veto sets guidelines for dealing with industrial conflicts like this one o US v. Curtiss-Wright Corp (1936) Facts: President banned sale of weapons from Curtiss-Wright to men engaged in conflict in Bolivia; President was given authority under Joint Resolution of Congress (1932); Result: The Joint Resolution was constitutional because it was a foreign affairs power and not a domestic affairs powerPres has

broad power to act when it comes to foreign affairs w/or w/out congressional authority o Dames & Moore v. Regan (1981) (becomes new standard) Facts: Carter had presidential authority to suspend claims pending in American courts under the Hostage Act and/or IIEPA Result: Even though neither Act explicitly authorized the President to suspend claims, because the Acts were passed by Congress they show congressional approval of giving President broad power during hostile times with another country Long history of acquiescence to similar presidential conduct Jacksons Youngstowns three category approach was oversimplifiedcourt says this case didnt fall into any of the three Distinction with Youngstown o Youngstown: congressional silence indicated disapproval o Dames: statutory silence = acquiescence Separation of Powers, Foreign Affairs and War Implementation of Treaty Obligations State laws that conflict with treaties are invalid Conflict between treaty and federal statute, the one adopted last in time controls Treaties are invalid if they conflict with the C. Medellin v. Texas (2008) o Facts: 51 Mexican national claimed they were entitled to review and reconsideration of their state court convictions because of a treaty from the Intl Court of Justice. o Held: absent an Act of congress or constitutional authority, the president lacks the power to enforce international treaties or decisions of the ICJnot binding domestic law; no congressional legislation that expressly or implied vested the pres with the unilateral authority to make a non-self executing treaty self executing o Jacksons third category War of Terror

Constitution art 1 sec 8 o Congress shall have power to Constitute tribunals inferior to the SC Define and punish offenses against the law of nations Declare war, grant letter of marque and reprisal, and make rules concerning captures on land and water AUMF President authorized to use all necessary and appropriate force against those nations, orgs, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on 9/11 or harbored such orgs or persons in order to prevent any future acts of international terrorism against the US by such nations, orgs or persons NSA surveillance o Under Fourth Amendment, government generally needs warrant before wiretapping o FISA (Foreign Intelligence Substance Act) o Authorization for Use of Military Force (AUMF) o After 9/11, NSA authorizes wiretapping Bybee Memo o President has constitutional authority to order interrogations of enemy combatants to gain intelligence info Legislative Authority in Domestic Affairs Legislative powers MUST adhere to bicameralism principles Congress CAN delegate ALL LEGISLATIVE powers, BUT CANNOT delegate powers of other branches to ITSELF o Tyranny o Reality of complex administrative state o Expansion of executive power? For congress to act there must ALWAYS be Bicameralism (passage by both house and senate) and presentment (president signs or vetoes) Legislative vetoes that do not adhere to bicameralism are ALWAYS unconstitutional o INS v. Chadha Facts: Immigration judge ruled Chadha should not be deported; the House adopted a resolution ordering him deportedlegislative veto Result: (Burger-formalistic) the legislative veto was unconstitutional because it was not approved in both houses and by the President; o Bicameralism (Art 1 1, 7) both houses must pass a bill before it can become law o Presentment (Art. 1 7 cl. 2) requires that every bill be presented to the President for his signature so that he may have the opportunity to veto Concurrence, (White-functional): legislative veto power is central means to ensure checks and balances on other branches Legislation any act of Congress o Acts which require only one house are clearly defined

Impeachment, treaties, appointments, hearings, etc (Art II 7 cl. 2) o Congress cannot assign executive powers to a legislative officer. Bowsher v. Synar (1986) o Facts: Gramm-Rudman Act was designed to achieve budget goals by end of year and gave Comptroller General power to implement automatic cuts; Comptroller could be removed by Congress o Result: Congress cannot delegate executive powers (to interpret laws) to a congressional appointment Was executive power because he was executing and interpreting laws Executive powers cannot be vested by Congress in itself or its agents Was an agent because he could be removed The automatic reduction provision is invalid then. o Concurrence, Stevens: Since Congress cant delegate part of its legislative power to the executive branch, Congress cannot give these powers to the Comptroller. It lacks bicameralism and presentment. Inferior officers v. superior officers o Appointments Clause, Art II, 2 Inferior officer IS mentioned in Constitution o Appointed by congressional delegation Principal officer is NOT mentioned in the Constitution o Appointed by President with congressional approval Constitution doesnt state how to tell difference between the two categories Constitution doesnt state how to appoint o Myers v. US (1926) Congress may not limit the presidents ability to remove postmaster o Humphreys Executor v. US (1936) Upholds limits on removal of FTC commissioners o Morrison v. Olson (1988) Facts: Congress adopts Ethics in Government Act after Watergate; Result: (Rehnquist, functional) o Independent counsel is inferior rather than principal officer Because he could be removed by AG for sufficient cause Does not possess equal power as AG (limited jurisdiction and duties) Appointed for limited tenure o Ethics in Government Act was constitutional Federal judges can appoint independent counsel Dissent, Scalia (formalistic): power to prosecute is quintessentially executive authority and that it usurps

presidential power for Congress to vest this authority in the independent counsel Largely avoided functional/formal approach by relying on text of Article II

THE FEDERAL-STATE ALLOCATION OF POWERS Framework of Congresss Powers Congress can act ONLY if there is express or implied authoritythere is NO federal police power Federalism Values: (caution: values (policy) are not doctrine) o Economic: state as firm, responsive to consumer/citizens Values Choice: states to experiment to make citizens happy Competition: competing for optimal policies Innovation/experimentation: best solution to citizens problems Counter-values Effect on other states externalities: uniform rules; certain things not want different race to the bottom: help business but difficult for citizens rights of national citizenship: allow states to discriminate against people in a state; certain values exist everywhere o Participatory democracy: state as town meeting Value: participatory democracy Counter-values Representative democracy Guarantee of republican governance o Liberal: state as bulwark against tyranny Value: prevent national tyranny Counter-value: prevent local tyranny WHO DECIDES: Federalism v. Decentralization Necessary and Proper Clause Necessary and proper clause- Article II, Section 8, clause 18 o The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Traditional analysis o McCulloch v. Maryland (1819) Facts: Congress created national bank; Maryland objected by taxing the bank; the bank refuse to pay the tax; Maryland sues to recover the money owed under the tax Result: Marshall

Congress does have power to create the Bank. o Although not expressly stated in the Constitution, it is an implied power. o Congress may choose any means not prohibited by the C. to carry out its authority o Necessary and proper clause (Art 1 8) Congress shall have the power to make all laws which shall be necessary and properexpansive interpretation is a power of Congress, not a limitation on it enlarges (doesnt diminish) governments vested powers o rejects compact federalism compact federalism view that states retain ultimate sovereignty bc they ratified the Constitution The state tax on the national bank was unconstitutional. o Power to tax is the power to destroy o No where in the constitution is the state given this power o States cant interfere with federal activities by imposing taxes or regulations Necessary and Proper Clause: Contemporary Analysis US v. Comstock (2010) o Facts: Court can have mentally disabled person detained who have committed previous sexually violent crimes if he would be a danger to the public if released; o Result: 2838 is necessary and proper 5 considerations to determine if power within Necessary and Proper Clause Breadth of the necessary and proper clause Long history of federal involvement in this arena Sound reasons for the statutes enactment Statutes accommodation of state interest Statutes narrow scopelink to enumerated power not too attenuated The Commerce Clause Power Article I, 8 Congress shall have the power to regulate commerce with foreign nations, and among the several states and with the Indian tribes. Tenth Amendment powers not given to national government are reserved to the states Avoid coordination problem could one state regulate on its own if they wanted to? If one state doesnt regulate, how will it affect other states? Eras of the commerce clause:

o 1887 1937: post-gibbons; court adopts narrower restrictive construction of commerce clause and invalidated many federal laws as exceeding the scope of this authority manufacturing? Police power? Indirect affect? NOT COMMERCE o 1937 1995: no federal laws were declared unconstitutional as exceeding the scope of the commerce clause expansive, almost unlimited view of the commerce clause o 1995 Present; US v. Lopez Pre-New Deal - restrictive categorical approach Manufacturing v. Commerce US v. EC Knight (1895): Sugar monopoly lawsuit is about NOT commerce, but about manufacturing; and if it can be categorized as manufacturing, then it is beyond the power of the federal government Regulation of commerce v. police power: purpose review Hammer v. Dagenhart (1918) child labor laws unconstitutional o Police power is regulation of health, safety, morals o Congress doesnt have police power; the purpose here wasnt commercial but was to advance police purpose. o Purpose was more social than economic o The fact that the goods are intended for and shipped in interstate commerce does not make their production a part of that commerce subject to the control of Congress. Direct v. indirect effects on commerce Schechter Poultry v. US (1935): Regulating chicken industry doesnt affect commerce o Congress can only regulate that which directly (not indirectly) affects commerce Recognize, but limit affecting commerce theory Instrumentalities (railroads) current of commerce Classic View Traditional view most expansive view of the scope of the commerce clause Gibbons v. Ogden (1824) Facts: federal law trumps NY law = Gibbons can operate his ferry in NY waters; NY cant have a monopoly; monopoly was restriction on interstate commerce Result: Congress has power to regulate intercourse among the states Commerce clause isnt restricted to buying and selling BUT Completely internal commerce of a state may be considers as reserved for the state itself Rise of the New Deal State

US v. Darby (1941) radical shift o Facts: GA lumber company is shipping lumber to other states and paid its workers less than the federal minimum wage (Fed. Fair Labor Standards Act) and has not compensated them for overtime work o Result: Congress has authority to regulate working conditions because they are related to commerce-UPHELD FLSA working conditions had previously been regulated by state power, but SC found them related to interstate commerce if the regulated intrastate activity has a substantial effect on interstate commerce, Congress may regulate the activity regardless of Congresss motivein this case labor standards Ban on shipment: this is commerce Ban on production: this is NOT commerce Coordination problem: The motive and purpose of the FLSA are to make effective the Congressional conception of public policy that interstate commerce should not facilitate competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the States from and to which it flows. o Overrules Hammer v. Dagenhard which said congress could only regulate the shipment of commerce if it was a dangerous substance being transported Wickard v. Filburn (1942) o Facts: Quota in the Agricultural Adjustment Act for wheat growth and consumption was constitutional o Result: if behavior would have cumulative effect on wheat market, it can be regulated; if we look at ALL of the wheat that ALL of the farmers grow for home consumption cumulative there is a substantial effect on ISC; since wheat is a commodity sold and bought in ISC congress was regulating economic activity o Focus on Substantial economic effect on ISC: It may be local and it may not be commerce, but it still can be reached by Congress if it has substantial economic effect on interstate commerce How to establish: Aggregation Congressional decision ONLY APPLIES to cases dealing with economics o Rejects labels from the prior cases Heart of Atlanta (1964) o Congress can prohibit racial discrimination through lodging; this more than a local matter because it affects tourism to the city o COURT: The power invoke here by Congress is a specific and plenary one authorized by the constitution itself. The only questions are: 1. Whether congress had a rational basis for finding that racial discrimination by motels affected commerce

2. And if it had such a basis, whether the means selected to eliminate that evil are reasonable and appropriate o Doesnt matter that motive was social and not economic Limits on Congressional Power Three broad categories of activity that congress may regulate under commerce power: o 1. The use of channels of interstate or foreign commerce (Darby, Heart of Atlanta) ex: the shipment of stolen goods or of persons who have been kidnapped o 2. Regulate and protect instrumentalities of interstate commerce or persons or things in interstate commerce (even though the threat may come only form intrastate activities) (Gibbons v. Ogden) things that facilitate commerce: trucks, planes, internet person/things: commerce refers to all forms of intercourse: electricity, radio waves, stocks, people, cattle, if they go across state line o 3. Economic activities which substantially affect interstate commerce Other factors discussed in commerce clause cases o Economic/commercial activity is the case about larger scheme of regulation of economic activity? If so would the regulatory scheme be undercut without this regulation? o Commercial/noncommercial activity o Jurisdictional element nexus between regulated activity and ISC connection to commerce gives federal government jurisdiction case by case inquiry o Express findings or legislative history o Areas of traditional state concern o coordination problem Distinguishing features (from Lopez): o Noncommercial activity o Lack of jurisdictional element o Lack of express legislative history (not determinative) o Area of traditional state concern (important) o Lack of national necessityare states addressing this issue? o No coordination problem o Is Congress commandeering state governments? US v. Lopez (1995) o Result: Court finds federal statute creating gun-free school zones unconstitutional because it was beyond Congresss commerce powerSTRIKES DOWN LAW; exceeded the scope of the commerce clause authority o Reasoning: (1) education has little connection to commerce; (2) must substantially affect commerce o Concurrence (Kennedy/OConnor): if federal law can charge for something that state law has already covered, this creates an accountability issue

o Crime and education are typical state issues o Concurrence (Thomas): if this test were taken to logical extreme, police power could include anything o DISSENT: says to afford more deference to congress, guns in school do substantially affect ISCcrime causes economic activity U.S. v. Morrison (2000) o Rape victim sued attackers under federal law (VAWA) providing relief to victims of gender-motivated violence but court says it does not have power under commerce clause to regulate INTRAstate violence that is not directed at instrumentalities, channels, or goods.STRIKES DOWN LAW o Violence doesnt affect commercethis is non-economic o No need to adopt categorical rule as to whether rape is economic because the court has never upheld an activity for commerce clause if the activity was not economic in nature o Court says Wickard aggregate test does not apply because in Wickard they were aggregating economic activity; here the activity is noneconomic o Must distinguish between what is truly national and what is truly local Gonzales v. Raich (2005) o The Controlled Substance Act is within Congresss authority of the Commerce Clause and applies to respondents; UPHELD o Facts: Cultivation of weed for personal medicinal use o Court will uphold the INTRASTATE regulation if it is of economic or commercial activity and the courts can conceive a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce o If noneconomic/noncommercial: it cannot be regulated under CC UNLESS Congress can factually show a substantial economic effect on interstate commerce o Court compares to Wickard- growing a fungible commodity to say this is economic o Court defines economics as the production, distribution and consumption of commodities o Because weed is a commodity sold; its economics activity affects o Concurrence (Scalia) congress gets its power from the Necessary and Proper Clause; where necessary, congress can regulate activity even if it is not directly related to interstate commerce; the real question is whether the means chosen are reasonably adapted to the attainment of a legitimate end under the commerce power Health care debate o 11th circuitagainst the individual mandate not similar to Wickard because people arent left with any other choices and it is more far-reaching regulating inactivitynot activity aggregation principle there would be nothing left that Congress couldnt mandate that people purchase

individuals did not choose to enter the stream of commerce health care is a traditional state concern not necessary and proper because government can still regulate insurance companies its a tax, not a penalty Liberty University v. Geithner o 4th circuitfor the individual mandate insurance is not fungible good cost-shifting is real failure by some has a huge billion dollar impact on others must make sure this is not police power of a social issue

Implied Limits on Congresss Powers Regulation of States 10th amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Congress cannot state legislative or regulatory activity National League of Cities v. Usery (1976): Congress violates Tenth Amendment when it interferes with traditional state or local government concerns/functions in this case fed gov couldnt regulate state gov employees Court says it that its job is to protect the PEOPLE not the states Generally applicable (apply to state and private sector) federal laws that regulate the states do not violate the 10th amendment o Garcia v. SAMTA (1985) Facts: (constitutional) the state was not immune from the Fair Labor Standards Act because it should be decided by legislation or in the political process Result: The Sct did not strike down on 10th amendment grounds a regulation that applied to BOTH the public and private sector. Overturned National League of Cities v. Usery Blackmun changed his mind from Usery for two reasons Usery was unworkable and states shouldnt be immune Protection of state prerogatives should be through the political process and not the judiciary th amendment DOES limit the Congresss power to regulate the states The 10 alone by requiring state to act in a particular way. o NY v. US (1992) Facts: (unconstitutional) A federal statute requiring states to either regulate radioactive waste or take title to it is beyond Congresss powercongress may not compel state to enact or enforce a regulatory program Congress MAY NOT commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program

Congressional coercion Creates accountability problem: if Congress orders states to enact regulations, federal officials can avoid accountability if local citizen disapprove of the regulation o Distinguishes Garcia: Generally applicable law in Garcia; this case is about regulating states as states Other Powers of Congress Other Article I Powers Taxing o 16th amendment Taxing power enacted in 1913 giving government ability to tax incomes The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. Spending o Congress may induce states by attaching strings to grants o Butler (1936) You dont have to point to an enumerated power to spend money Spending power is an independent power not limited by enumerated powers o South Dakota v. Dole (1987) It is constitutional for federal statute to withhold percentage of federal highway funds from states not implementing a minimum drinking age because Four restrictions on spending power: General welfare - The spending power must be in pursuit of the general welfare and courts should defer to the judgment of Congress Unambiguous conditions - If Congress desires to condition the states receipt of federal funds, it must do so unambiguously Condition related to spending - Conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs No independent constitutional bar - Constitutional provisions may provide an independent bar to the conditional grant of federal funds OConnors Dissent: conditions on the states must be reasonably related to the expenditure of fundsdidnt think they were in this caserelation between condition and spending too attenuated; OConnor thinks if you FAIL this part of the test then it is outside the scope of Congresss power under C. Treaty and war powers o Missouri v. Holland (1920) Treaty power not limited by the 10th amendment

 Treaty was created to protect birds o Reid v. Covert (1957) Treaty power does not trump individual rights Limits the treaties congress can enter intocannot enter treaties that would abridge due process rights Makes it so federal government cant expand its power too much Dormant Commerce Clause Dormant because it involves areas that the federal government could regulate, but has chosen not to but nevertheless, it is unconstitutional for state to regulate in this area because it interferes with interstate commerce o preemption Congress could create laws that states could NOT interfere with ex. Semi trucks must be certain length o consent Congress could consent to state action ex. Congress will allow state to regulate semi length Theories: reasons why courts uphold this idea that states cannot regulate o Political Unity o Economic: free trade o Political/economic theory Summary of Doctrine o Discrimination against ISC in order to benefit local economic interests: Statute targets interstate commerce Unconstitutional unless rigorous showing of no alternative (e.g. quarantine) How to determine if it is a discrimination against ISC: o Look for geography as part of the regulatory scheme tends to mean there is discrimination against ISC The statute could attempt to impose restrictions uniformly, without regard to geography Is the activity done instate different from what it would be if done out of state? o Burden on ISC: state law is unduly burdensome Weigh local benefit v. burden on ISC: the incidental burden on ISC does not outweigh the legitimate local benefits produced by regulation o Market Participant Exception States when acting as market participants (and not regulators) get to do whatever they want to do even if they are discriminating against ISCstate can prefer its own citizens when acting as market participant o Government Run Businesses Exception Gov performing traditional gov functions Cannot discriminate against interstate commerce o Regulation cannot discriminate against out of state competition to benefit local economic interests

o Unconstitutional UNLESS rigorous showing of no alternative o TEST: Look for geography as part of the regulatory scheme: tends to mean there is discrimination Regulations on basis of geography (mileage) are discrimination against interstate and intrastate commerce o Wilson v. Black Bird Creek Marsh (1829) A dam obstructed an interstate waterway was a permissible exercise of a states police power and thus was a burden that outweighed the local benefit o Facially discriminatory law the law draws a distinction between in-staters and out-of-staters City of Philadelphia v. New Jersey (1978) NJ law unconstitutional which prohibited importation of waste from outside the state all objects of interstate trade merit commerce clause protection NJ attempted to keep its natural resources and limit accessibility to in-staters onlyoutright discrimination against ISC Before trash is allowed into the state, have to ask WHERE it is from: discriminatory Regulations protecting ONLY local businesses Dean Milk Co. v. Madison: A city ordinance that places discriminatory burden on interstate commerce that is NOT essential for protection of local health interest violates CC. The city has a variety of alternatives that impose less burden on interstate commerce Carbone: a law requiring all locally produced solid waste to be processed at a local waste processing business was held to violate the CC because it was a trade barrier against competitions from out of state waste processors Facially Neutral Statutes treats in-staters and out-of-staters alike but in purpose or effect, it discriminates o Kassel v. Consolidated Freightways (1981) Court declared an Iowa law unconstitutional that banned 65-foot semi trailers Weighed asserted safety purpose against the degree of interference with interstate commerce No convincing evidence that 65 trucks are less safe than 55 trucks The law substantially burdens interstate commerce bc trucks would have to avoid Iowa Brennan: if its really about safety, its ok, but if purpose is to discriminate, its unconstitutional Market participant exception doctrine CC does not prevent a state from preferring its own citizens when the state is action as a market participant. (ex: city

is buying or selling products, hiring labor, giving subsidies)looks at regulation v. participation o Reeves v. Stakes (1980) SD restricted the sale of cement from a state owned plant to in-state residents, constitutional because SD was acting as a market participant. SD isnt regulating anything Cement is not a natural resource o White (1983) a city may require that all construction projects funded by the city be performed by contractors using a workforce composed of at least 50% bona fide residents of the city o Alexandria Scrap (1976) A state may purchase scrap automobiles from its citizens at a higherthan-market rate and refuse to pay nonresidents the same amount. o LIMITATIONDownstream Restrictions While a state may choose to only sell to state residents, it MAY not attach conditions to a sale that would discriminate against ISC South-Central Timber Development v. Wunnicke (1984) Alaska was acting a market participant AND a market regulator and its law violated the DCC when it required trees purchased in the state to be processed within the state lumber is a natural resourcestate cant hoard a natural resource (contrast to SD making its OWN cement) downstream regulation: once the timber is sold, any restrictions are regulations. Current Synthesis: Favoring Government performing traditional Government functions: o SC applies more lenient standard when a law favors gov action involving the performance of a traditional gov function. Discrimination against ISC in such cases is permissible because it is likely motivated by legitimate objectives rather than by economic protectionism o United Haulers v. Oneida Solid WMA (2007) A mandatory flow ordinance for waste to a state-owned waste management facility is constitutional because (1) the facility is government-owned, (2) trash is a traditional government activity and (3) the state is not discriminating against out of staters because everyone must use the in-state facility. Flow ordinances had previously been unconstitutional but this one is different (public owned, everyone uses) Discrimination under DCC is found when there is a cost-shift to out-of-state business and citizens, NOT when the burden falls on all parties equally Not a market participation case INDIVIDUAL RIGHTS

Background Pre-Civil War: Barron v. Baltimore (1833) o Bill of Rights only limits the national government; does not apply to the states, but there were other protections against what the states might do o Every state had a constitution that had similar protections as the fed gov. states are allowed to grant even broader protections than C. In wake of Civil War come amendments o 14th Amendment (1868) NO STATE SHALL deprives any person of life, liberty, or property without due process and equal protection of the law. Privileges or Immunities Due Process prohibited arbitrary exercises of state power Equal Protection Incorporation o Doctrine that makes important parts of the BOR applicable to the states Selective Incorporation/Total Incorporation selective incorporation survives today; every bill of rights that matters is incorporated against the states Not incorporated: 3rd, 5th, 7th, 8th Substantive Due Process: The Rise and Fall of Lochner Economic Due Process Lochner v. NY (1905) o Facts: The Bakeshop Act, unconstitutional, which prohibited bakers from working more than a maximum number of hours was not police power because baking isnt as dangerous as mining o A law that infringes on freedom in the marketplace and freedom to contract is unconstitutional if it does not bear a reasonable relation to a legitimate governmental purpose. o Laws must be fair, reasonable and appropriate exercise of police power (health, safety, morals) Court says this Act is wrongfully under the guise of police power was not really about health, but labor regulation o Court was essentially using substantive due process right to invalidate legislation that regulated economic activity o Whether or not a law is unconstitutional should be determined by the natural effect of statutes when in operation, NOT by the statutes proclaimed purpose o This case led to the decades of the court invalidating legislation aimed at regulating business West Coast Hotel Co. v. Parrish (1937) o Overrules Lochner, UPHOLDS the constitutionality of minimum wage legislation for women because the states special interest in protecting their health and ability to support themselves o The C permitted the restriction of liberty to contract by state law where such restriction protected the community, health and safety or vulnerable groups. NON-Economic Substantive Due process o Buck v. Bell (1927)

Declared involuntary sterilization of mentally disabled constitutional for protection and health of the state o Pierce v. Society of Sisters (1925) State law requiring students to attend public schools, NOT private schools held unconstitutionalthe traditional understanding of liberty prevented a state from forcing students to accept instruction as public schools Modern Substantive Due Process NOT about process; o Certain rights are so fundamental that the government cant interfere with them no matter what process it follows Source of Fundamental Right analysis: o Text o Precedent o history Emerging awareness v. deeply rooted

Levels of scrutiny in DPC

o If fundamental right, apply strict scrutiny Infringement must be narrowly tailored to advance compelling government interest o If nonfundamental right, (liberty interest) Must be rationally related to a legitimate governmental interest Right to privacy - Abortion o Griswold v. Connecticut (1965) Facts: Griswold, ED of Planned Parenthood, gave advice to married couples about birth control and were convicted under state law which prevented counseling about preventing conception Result: Source of fundamental right to privacy (although not explicit in Constitution it is implicit in 1st, 3rd, 4th and 9th amendments) and the state statute conflicts with that privacy so it is null and void Dont interfere with individual autonomy Physical intrusion into home Private matters that gov should not be able to intrude inex: marriage Eisenstadt extend Griswold to individuals and says states cannot ban the sale of contraceptives to the unmarried DISSENT: No textual basis for this and if it is not explicitly in the C. then courts cannot prohibit states from doing it or strike it down. o Roe v. Wade (1973) Facts: Roe sought an abortion but TX law prohibited Result: a womans right to an abortion is a right protected by the 14th Amend. Established trimester framework States interest in protecting fetal light not compelling

Fetal life only becomes a compelling interest when the fetus reaches viability o Planned Parenthood v. Casey (1992) Facts: CT state statute that made women follow certain rules if they wanted an abortion Undue burden test court says this is the proper test to apply; does a restriction/regulation on abortion before viability pose an undue burden on the health of the woman Reject trimester standard No undue burden: informed consent, waiting period, parental consent, physicians only, partial-birth abortion ban Undue burden: spousal consent. Maintained the viability standard o Pre-viability no undue burden Other privacy rights o Zablocki v. Redhail (1978): right to marry State Law: required noncustodial parent attempting to marry to seek a court order before receiving marriage license to make sure that the parent was not behind on child support payments Gov interest: child welfare and counseling noncustodial parents and their obligations Did not apply strict scrutinyinstead asked if law was supported by sufficiently important state interest and is closely tailored to effectuate only those interest Court found that the state could have found other ways to achieve interests without interfering with fundamental right. o Washington v. Glucksberg (1997) right to die Right to die is NOT a fundamental right The state has a countervailing interest in preserving life. A terminally ill patient has not right to assisted suicide (can forgo right to treatment) o Lawrence v. Texas (2003) homosexuality Court applied a stringent form of rational basis review and held that a statute making it a crime for a person to engage in deviate sexual intercourse with another individual of the same sex furthered NO LEGITIMATE state interest o Goodridge v. Department of Public Health (Mass. 2003) same sex marriage State Supreme Court giving same sex couples the right to marry State may not deny the protections, benefits and obligation conferred by civil marriage to two individuals of the same sex who wish to marry. Applied rational basis test: says state does NOT have rational basis for denying gay marriage on the ground of due process and equal protection

EQUAL PROTECTION Intro to Equal Protection Background: the 14th amendment provides that no state shall deny to any person the equal protection of the laws. The SCT has ruled that equal protection also applied to the fed gov through reverse incorporations under the due process clause of the 5th amendment. o Equal protection is triggered where persons similarly statute are treated differently. Race and the Constitution o Plessy v. Ferguson: (1896) Separate but equalseparation not necessarily subordination Laws cannot erase SOCIAL prejudice Statute was seen as reasonableseen as taking into account social preferences DISSENT(Harlan): Purpose of the statute: subordinate and stigmatize ONE race and deem whites superior Constitution is colorblind o Brown v. Board of Edu (1954): Segregation violated the EPC because it harmed black children by stamping them with a badge of inferiority Not clear that racial desegregation was the original intent of the 14th amendment No place for separate but equal in public school education Court held that school segregation violated the EPC Standards of review: Strict Scrutiny: classification must be narrowly tailored to advance a compelling governmental interest (law is necessary to further interest) o Suspect classes: applies to Race, National Origin, Alienage o Law is presumptively valid o Burden on government o Narrowly tailored: there is no less restrictive alternative means available to achieve the interest Means/end: there must be a close fit between the means and the end o Law ALMOST always FAILS under this test Intermediate Scrutiny: classification must be substantially related to an important governmental interest o Quasi-suspect classes: Gender o Substantially relegated: an exceedingly persuasive justification must be shown (not too far under strict scrutiny) o Burden on government Rational Basis review: classification must be rationally related to a legitimate governmental interest

o Rational relationship: a minimal requirement which means law cannot be arbitrary or unreasonable o Legitimate: almost any police power will be found legit o Burden on challenger o Law ALMOST always UPHELD o Classes: all that do not fall under the aboveage, poverty, wealth, disability Rational Basis Review Overview ASK: is the classification made in light of the purpose of the legislation? What: means/end review: overinclusive/underinclusive? o Overinclusive: Law regulates individuals who are not similarly situation grasp of the law is too broad and affects more people than necessary to achieve its goal. o Underinclusive: fails to regulate ALL individuals who are similarly situated to the target group. Justified most of the time because legislatures are permitted to solve problems one step at a time Why: Equal treatment? Purpose: Be more deferential o Efficiency argument: The reason for certain classification is because it much more efficient to use them than look at individual treatment o Legislature is accountable to the people and if a decision is wrong, the people will speak Application of Rational Basis Review o Railway Express: Banning vehicles with advertisements no related to the business interest of the vehicle owner was not unconstitutional because the law although under-inclusive, was rationally related to the governmental interest of limiting distractions to motoristtraffic safety (upheld) Underinclusive: Court said there is no constitutional requirement to eradicate ALL evils of the same genus o Beazer: (1979) MTA and methadone users. Although the policy of banning narcotics users, including methadone(used to offset symptoms of heroine addiction) users from working for MTA was highly overinclusive, it was rationally related to the governmental public safety interest in keeping narcotics users out of MTA (upheld) States are allowed consider the cost of differentiation and draw the line somewhere cheap and easydont have to make things more complicated just to be fair Underinclusive in that it didnt keep ALL-unsafe people from getting hiredalcoholics. o Cleburne (1985)FAILED RBR City required special permit to start group home of mentally disabled

FAILED rational basis test because the irrational prejudice is not a legit gov interest when irrational prejudice (against developmentally disabled) then look to see if the interest cited are REAL and if they are enough to overcome the irrational prejudice. Court did not want to create a new class to get heightened scrutiny so basically applied a stricter form of rational basis o Romer (1996): CO Constitutional amendment banning local laws that prohibited discrimination based on sexual orientation Court applies RBR: says the only explanation for the amendment is animus toward the class if affect and lacks a rational relationship to a legit state interest Court says purpose was to harm a politically unpopular group Moral disapproval of a certain kind of people not a legit gov interest Intermediate Scrutiny: Gender Why heightened scrutiny: gender, like race, is immutable. o History of gender subordinationbut not discrimination o Women underrepresented at the federal gov level o 14th amendment doesnt address gender o women have historically been treated as lessor because of physically difference and perceived inadequacies Dev. and Application of Intermediate Scrutiny o Craig v. Boren (1976) Drinking age for 3.2% beer: women-18 and men-21; state says they are trying to prevent drunk drivingsay male account for 2% of accidents while women .18%. COURT: says unconstitutional because the classification is not substantially related to the interest of traffic safetytoo tenuous Stats likely reflect a social stereotypecourt does not completely trust the statstoo much room for error Broad generalities about boys and girls is not enough to substantially connect the law to traffic safety Sex-based classification that reinforces stereotypes will likely not survive intermediate scrutiny o Michael M. (1981) Law only prosecuted men for statutory rape and not women. Court UPHOLDs this statute under equal protection: a state may provide punishment for only males to equalize deterrents to teenage pregnancy Substantially related to the goal of equalizing the deterrence on the sexes for rape Men and women situated differentlyonly women can get pregnant Enforcement of statute is more feasible if girls are exempt because otherwise they wouldnt come forward for being raped.

Application of Intermediate Scrutiny o US v. VA (1996) VA public college only admits men because of the highly adversarial method used The important gov interest advanced to justify categorization on the basis of gender must be genuineNOT hypothesized for the purpose of litigation defense Gov interests: offering a diversity of educational approaches within the state yields important educational benefits (no evidence that this is why the school was established or had been maintained) Govs justification cannot rely on overbroad generalizations about male and females that will create legal, social and economic inferiority of women. Another gender stereotype case o Nguyen v. INS (2001) Valid discrimination: a law granting automatic US citizenship to nonmarital children born abroad to American mothers, but requiring American fathers of children born abroad to make specific steps to establish paternity in order to make such children US citizens Promotes the important gov interest of avoiding proof of paternity problems, which are more difficult to resolve for fathers Stereotype that mothers are more likely than father to develop relationship with child ignored here real difference like in Michael M. Strict Scrutiny: Race Why race is a suspect class? o 14th: intent to protect discrimination based on race but nothing in text mentions this Strauder (1880): 14th was fundamentally about protecting blacks and racestruck down explicit discrimination based on race o Stigma/Caste: Does this kind of discrimination create a stigma or case because of characteristic is really immutable or identifiable? Immutable: Things that cannot be changedthere is class can do about this and therefore no behavioral modifications can come from gov regulationsthis NEEDS protection Identifiable: Class stands out on face (like race or gender) o Representation Reinforcement/Political Process: Prejudice undermines the political process and makes democracy fail Carolene Products FN4: discrete and insular minorities When does race trigger strict scrutiny? MUST SHOW INTENT/PURPOSE TO discriminate o Facial discrimination against minorities: discrimination is blatant Korematsu

o Facially Neutral/Race specific: the legislation purport to treat all races equally but still in fact uses race Loving and Johnson o Facially neutral/non-race specific: a law that appears to be neutral on its face will be applied in a different manner to different classes of persons Yick Wo Invidious Race Discrimination (intended to harm the class) Facially discriminatory o Strauder (1880) WV state allows only white sot be jurors. When a law is discriminatory on its face you dont have to show an actual discriminatory impactrisk of discriminatory impact enough Categorical exclusion of blacks for not other reason than race o Korematsu (1944) Detainment of people of Japanese decent including US citizens during WWII Court applies SS but UPHELD a facially racial classification because of the compelling governmental interest of national security and protecting public interest Pressing public necessity may sometimes justify the existence of such restrictions Only explicit race discrimination ever upheld Facially Neutral/Race Specific o Loving (1967) State law prohibiting interracial marriage held UNCONSTITUTIONAL Law was held to be racist and enacted only to perpetuate white supremacy No legit overriding purpose independent of invidious racial discrimination o Johnson v. CA (2005) CA prison racial-segregation polices were subject to strict scrutiny Court rejects argument that the policy was neutral because all prisoners were equally segregated Facially Neutral/non-race specific o Yick Wo (1886) A law prohibited operating a laundry in wooden buildings (most owned by Chinese), but gave gov agency discretion to grant exemptions Law deemed to involve racial/national origin classification and was invalidated as applied The purpose of the law was proved by the effect and context of itno Chinese laundryman was issued a permit Discriminatory Motive: when a law is neutral on face and in application but has a disproportionate impact on a class

o MUST PROVE: law-making body enacted or maintained the law for a discriminatory purpose Washington v. Davis (1976) More white cops than blacks Mere disparate impact is insufficientmust prove that the classification was because of an intent for this disparate impact not just in spite of the effect No proof that this outcome was employed for the purpose of less black cops McCleskey v. Kemp (1987) Statistical study showed that black s that killed while Vs were most likely to get capital punishment Not enough to establish that a PARTICULAR black was denied equal protectiondisparate impact in a systematic sense is not enough A statistical study alone is insufficient to prove purposeful discrimination Affirmative Actionbenign government discrimination o Gov action that favors racial or ethic minorities is subject to strict scrutiny o Compelling gov interest: Remedying indentified past discriminations Promoting diversity o Not compelling: General social discrimination Racial balance o Croson (1989) Even where a state or local gov has not engaged in past discrimination, it may have a compelling interest in affirmative actions BUT gov action must still be narrowly tailored Without a showing that a race-based initiative was created to remedy past racial discrimination and that it supports a compelling gov interest, the initiative is unconstitutional and cannot withstand SC Makes only a generalized assertion that there has been past discrimination in the construction industry and provides not guidance for a legislative body to determine the precise scope of the injury it seeks to remedy Failed to consider race-neutral measures that would encourage more minority participation o Grutter (2003) Diversity in higher education is a compelling gov interest Dont need to consider EVERY possible alternative Narrowly tailored because looks at the whole picture Critical mass is okay because not a fixed number; Quota is NOT Gratz: 20 bonus points for being minority NOT okay

Quota: 16% of seats for minority students NOT OKAY o Parents Involved (2007) Racial balancedifferent from diversitynot a compelling governmental interest Classifies people as a group and not individuals Affirmative Action and theories of Equal Protection o Anti-classification o Anti-subordination: a theory of affirmative action where the policy is favorable to keep a group from being subordinated o Anti-balkanization: leads to divided communitygoal is social cohesion the real harm is social cohesion Compelling Interest Good o Remedying past racial discrimination Only when that school district had discriminated in the past o Diversity in Higher Education to train future leaders to make school legitimate in eyes of all Americans Compelling Interest Bad o Achieving racial balance for pure demographics (Parents Involved) o Remedying past discrimination after vestiges have already been eliminated (Jefferson) Narrowly Tailored Good o Diversity is not defined as including black or Latino. Race is just one example of many types of diversity the school looks for. o Race is just a plus not a quota o School also considers all ways other than race that any individual can contribute to school diversity o Each student is considered individually, holistically o School looked into other race neutral alternatives. o Affirmative Action policy must be limited in time. Narrowly Tailored Bad o Rigid quota (Croson) o 20 points basically assured entry (Gratz) o Binary classification (white and black) (Parents Involved) o No sunset provision or periodic review (Croson and Parents Involved) o Other race neutral alternatives (Kennedy-Parents Involved) strategic site selection of schools drawing different attendance zones targeted recruiting