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CON LAW OUTLINE Constitutionality of Federal Laws (Chem 234) Question 1: Does this level or branch of govt have

the authority under the Con to pass this kind of law? Question 2: If so, does the law violate another constitutional provision or doctrine (individual rights)? FRAME IT narrowly of broadly for each party Congressional Legislative Authority: Reconstruction Amendments 13th Am. 2 14th Am. 5 Commerce Clause Cgl Power Scope Slavery or Congruent & Substantial effect on - Necessary & Proper Clause badges & proportional to ISC: Jones & - Taxing & incidents: Civil courts interp of Laughlin; Darby; Spending Rights Cases EP 1: City of Lopez - Commerce Boerne v Flores -War & Military Level of Scrutiny Rationality: Jones McCulloch test: RBR Tribunals v Alfred Mayer Katzenbach; - No police Morgan but see power (states) Boerne; Garrett Can Cg reach Yes: Civil Rights No: Civil Rights Yes private action? Cases (black Cases codes, not race discrim.) Can Cg reach Yes: Civil Rights Yes: Civil Rights Yes: Garcia state action? Cases Cases No: Printz; NY 10th Am. No: Fitzpatrick v No: Fitzpatrick v Yes: Lopez, antilimitations? Bitzer Bitzer commandeering Pro: Use 13/14th Ams to do something that isnt commercial or that falls within the Lopez exception Pro: Commerce power more deferential (RBR) Equal Protection: Levels of Scrutiny Levels of Scrutiny: RBR: Carolene Prods., Williamson v. Lee Optical, etc. Governmental Legitimate govt purp Purpose/Objective - (Ct can hypothesize objective) Intermediate Strict Scrutiny: Scrutiny: Craig v. Loving, etc. Boren, etc. Important govt purp Compelling govt purp - (has to be real - (has to be real objective VMI) objective) [exceedingly persuas. jusficn? VMI] Means-end relationship Rationally related Substantial Narrowly tailored relationship Facially Neutral: (1) Invidious Purpose (Davis v. Wash., Feeny) or (2) pretext of invidious discrimination can push review past RBR to heightened scrutiny (Intermediate or Strict- depending on the subject) Invidious purpose = adopted because of and not in spite of Equal Protection (Supporters argue more deferential; challengers argue more skeptical) Nonsuspect Classifications: RBR - Deferential RBR Williamson v. Lee Optical - Less Deferential RBR Reed; Moreno; Cleburne; Romer Quasi-Suspect Classifications (sex, illegitimacy): Intermediate Scrutiny - Less skeptical IS Nguyen - Most skeptical IS VMI Suspect Classifications (race, nationality, origin): Strict Scrutiny - More deferential SS Grutter

- More skeptical SS Other Grounds of Discrimination More Searching Forms of RBR?

Loving; Parents Involved; Gratz; Johnson Bowen v. Gilliard Factors Moreno; Cleburne; Romer; Lawrence v. TX




What does Con do? a. Creates Natl govt b. Division power between levels of govt i. FEDERALISM 1. 10th am (bill of rights) reserves powers not delegated to congress for the state OR the people c. protect liberties i. BILL OF RIGHTS 1. Applies to federal govt, many rights incorporated at local level thru DP clause in 14th am 2. Check on govt power to protect freedoms/liberties How to interpret? a. ORIGINALISM i. For govt action to be constitutional, has to be in the actual text of the con, in the mind of the framers. 1. Why? Judges take oath to follow con 2. If the con says nothing about issue, legislatures job, not courts, to interpret. 3. Aim to restrain pwr of unelected, life-serving judges in dem society. b. NON-ORIGINALISM i. Wants to enforce norms not contained in con ii. Conscious of modern values/ideals iii. Want con to evolve iv. Why? Not a clear intent from framers on every issue JUDICIAL REVIEW: Who interprets the con??? a. One method: no branch has full authority to decide constitutionality over others b. Method 2: make each branch authoritative in certain provisions of con c. Method 3: make one branch above other two. Marshall opinion in MvM i. MARBURY V MADISON: 1. it is emphatically the province and duty of the judicial department to say what the law is. **supremacy clause** 2. Marshall court answers the question, establishes judicial review. a. According to Art. VI, con is supreme law of land, so the SC must be the body to interpret, enforce con b. Otherwise, constraint on govt power meaningless 3. Issue: can Marbury get his commission? Yes, there is a remedy when there is a wrong. a. Remedy can come from SC, since issue stems from executive duty, not political act 4. Marbury loses for lack of original jurisdiction though ii. MCCULLOCH V MARYLAND 1. Can congress create national bank? a. Yes. Bank had been chartered twice b. Marshall court rejects compact theory idea that states are ultimate sovereigns and con is a compact between them. For Marshall, govt is ordained and established in the name of the people, not states. i. Maryland cant tax US bank, b/c power to tax is power to destroy


ii. What is the scope of congs pwr to act? Con says nothing about chartering a bank. Marshall counters cong can go beyond enumerated pwrs, constitutions are different from statutes; cant enumerate everything, or it would partake the prolixity of a legal code. CONGRESS AND THE COMMERCE POWER a. Art 1 sec 8 congress shall have powerto regulate commerce w/foreign nations, and among several states b. GIBBONS V OGDEN i. What is the scope of congs pwr to regulate interstate commerce ii. Dispute over ferry licensing; ogden gets monopoly from NY, gibbons gets authority to run ferries from fed statute iii. Supremacy clausefed law trumps 1. Marshall says interal concerns that affect the states GENERALLY trigger comm clause and can be regulated by fed govt. VERY broad pwr. Only excludes entirely intrastate comm. iv. Commerce defined: traffic is commerce not just sale of goods, includes all phases of business c. 3 main eras i. late 19th c-1937: Lochner era 1. narrower construction of comm pwr. 2. Many laws struck down since court defines commerce narrowly, defines among the states as only when there is substantial effect on ISC 3. 10th am limits congs ISC pwrs, it reserves a zone of pwr for the state 4. HAMMER V DAGENHART a. Fed law prohibits ISC shipping of goods made in factories using child labor b. Court rules whole law unconst, even though only aimed at ISC, b/c law actually controls intrastate production, which exceeds congs ISC pwr 5. CARTER COAL a. Court invalidates new deal legislation saying coal production directly affects ISC and establishes local coal boards to set prices. i. incidents of production do not constitute commerce ii. Court narrowly defines commerce to protect states sovereignty 6. SCHECTER POULTRY a. Sick chickens sold in NYC b. Court finds legislation needs to be directly related to ISC c. Chickens were shipped interstate, BUT the law seeks to control what happens solely in NY, beyond scope of commerce pwr d. Direct/indirect analysis no longer used ii. 1937-1995: New deal expansionist view on comm pwr 1. court rejects direct/indirect formalism 2. doesnt overturn ONE SINGLE ISC law 3. Rule: congress could regulate ANY activity (intrastate too) as long as there was cumulatively substantial effect on ISC, or a rational basis to show activity affects ISC, reasonable connection between govts chosen means and desired ends. 4. Court no longer distinguishes btwn stages of commerce (like in hammer, carter)

Dont consider direct/indirect, but now examine cumulative effect b. 10th am not really a restriction anymore, power basically plenary 5. WEST COAST HOTEL a. Court upholds state min wage for women/kids b. Dismisses s argument of deprivation of freedom to contract c. Very deferentiallook @ congs stated intent rather than what they actually are doing 6. JONES & LAUGHLIN-major change in direction a. Challenges Natl Labor Relations Act b. Constitutional hook? cong finds relationship btwn labor + comm, labor conditions affect comm, labor disputes can affect comm c. Court says this plant clearly affects ISC; 4th largest steel producer in PA, has plants in other states. d. Comm pwr found to be PLENARY 7. US V DARBY-confirms shift in direction a. Challenge to fair labor standards act, which prohibited ISC shipment of goods using sub-min wage labor b. Espressly overrules HAMMER V DAG c. Court rules production end of commerce cant be left to states d. Court calls 10th am a truism, wouldnt be used to invalidate laws w/in scope of pwr 8. WICKARD V FILBURN a. Farmer violates his quota of wheat to grow under ag adjustment act, keeps some for himself to feed pigs after selling his quota. b. Filburn fined for going over quota, argues the wheat he grew on his farm to feed animals not interstate at all. c. Court rejects argument and limits on comm pwr. 9. US V CAROLENE PRODUCTS a. Congress passes law prohibiting interstate sale offilled milk b. Issue: is this ACTUALLY to regulate commerce? Or to look after health? c. Court says it doesnt care, is very deferential about what the real motive is, as long as there is a conceivable rational basis for enacting the law. d. ISC laws get the PRESUMPTION OF CONSTITUTIONALITY. 10. Civil Rights and ISC a. HEART OF ATL MOTEL i. Motel will not give rooms to blacks ii. Can cong prohibit discrimination in accommodations under title 2 of civ rights act? iii. Court rules yesprohibiting racial discrimination is a rational way to regulate ISC, since blacks wont travel to places that discriminate, which hurts other biz. iv. Doesnt matter hotel is local in character it serviced many people from other states. v. OK for there to also be a moral aspect to case, as long as there is also ISC motive b. KATZENBACH V MCCLUNG i. Bbq restaurant in rural Alabama wont serve blacks in violation of civ rights act a.

ii. Court rules regulation is ok b/c, cumulatively, restaurants discriminating has neg effect on ISC 1. Also, bbq place gets half of meat from out of state. iii. power of congress under comm clause is broad and sweeping. c. PEREZ V US i. Fed anti-loan sharking law upheld ii. argues law is unconst b/c he operated solely in NY iii. court defers to cong, says there is rational belief that even intrastate sharking can have interstate effects. iv. If the CLASS of activities can be regulated, then the INDIVIDUAL activities can be regd as well 11. 1995-present: Rehnquist and limits on comm pwr a. LOPEZ: is gun free school zone act unconst? i. Do guns near schools affect ISC? ii. In 5-4 split, court rules no, law invalid. iii. Law is not substantially related to comm and school violence will not affect econ iv. NEW RULE: cong can only reg 3 activities thru ISC 1. Use of ISC channels 2. Use of ISC instrumentalities 3. Activities w/substantial relship to ISC. Guns near school not substantially related v. Doesnt overrule DARBY, just reigns in plenary power vi. For cong to regulate, the activity has to be ECON in nature; court doesnt want to regulate local, NONECON activity. To aggregate effects (like FILBURN) activity has to be economic b. MORRISON: fed violence against women damages statute, related to ISC? i. Govt argues abuse of women restricts travel, damages econ ii. Court invalidates law, reaffirms 3 part test from LOPEZ. iii. Govt argues assaults on women have cumulative effect on econ, so law satisfies part 3 of test. iv. Rehnquist rejects argument: non-econ intrastate activity cant be ISC v. Even stricter than LOPEZ: non-econ activity cant be aggregated to affect ISC c. GONZALEZ V RAICH: Can cong regulate private, intrastate cultivation of marijuana? i. Citing FILBURN, court says yes, local commerce of commodity traded interstate has substantial effect when aggregated; marijuana is TYPE of good that will flow thru ISC. iii. IMPLIED LIMITS ON COMM PWR? (useful for ISC challengers) 1. 10th am violated when cong conscripts state govt as its agents ANTI COMMANDEERING PRINCIPLE 2. NY V US: can cong pass law making NY responsible for nuclear waste of private entities?



NO, violation of 10th am, cong cannot COMPEL state leg to take action. Can INDUCE behavior, but there has to be a choice. Why? i. States sovereign/autonomous b. Raises accountability issuescong can make decisions but states take political heat for it 3. PRINTZ V US: can cong require law enforcement officials at local level to run background checks? a. NO, 10th am violation, even if guns have substantial effect on ISC, cannot conscript state employees. i. Separation of pwrs issue 4. NFIB V SEBELIUS: afford care act a. Individual mandate INVALID exercise of comm pwr, cant regulate INACTIVITY. Activity v inactivityformalistic throwback to Lochner era? b. BUT, ind mandate held constitutional as a TAX c. All justices still agree the test for ISC is still rational basis, just cant regulate inactivity. d. Roberts reasoningif inactivity is commerce, then commerce is everything, and limited govt is at an end. i. His theory of federalism? States more protective of liberties, local govts accountable to peoples daily lives than central govt. e. Now, 3 major restrictions to ISC: i. Local, non-econ (lopez, Morrison) ii. Anti commandeering (NY v US) iii. Cant reg inactivity (sebelius) CONGRESSIONAL TAX/SPEND PWR: art I sec 8, cong has pwr to lay/collect taxesto pay the debts and provide common defense and general welfare a. Broad authority to tax for welfare of country b. US V BUTLER: 1933, challenge to ag adjustment act, giving subsidies to farmers i. Congress not limited by enumerated things in art 1, only constraints on tax/spend pwr are that it be for gen welfare of the states and NOT violate other provisions of the const. 1. Battle over scope of tax pwr going back to Madison v Hamilton. Court sides with expansive Hamiltonian view. c. US V DOREMUS: court upholds Harrison drug act, taxing narcotics i. Govt doesnt prohibit drugs, but heavily taxes and regulates them ii. Unlike BAILEY, court doesnt distinguish btwn revenue and regulatory taxes, holds non-revenue based motives irrelevant, not sufficient to invalidate. d. BAILEY V DREXEL: 1922, is ISC tax on goods made w/ child labor const? i. Court rules NO, cong has pwr to tax, but not if it actually a PENALTY for violating a regulation ii. Taxes can be incidentally regulatory, but not in the way penalties are outright regulatory. Tax cannot lose its character iii. 10th am infringement on state police pwr to regulate labor. e. STEWARD MACHINE CO V DAVIS: Is the fed unemployment provision of Social Security act const? i. Court says YES, wide authority under tax/spend pwr ii. Program induces states to participate, but does not MANDATE it. f. NFIB V SEBELIUS: is individual mandate constitutional as a tax? i. YES, court looks at taxation pwr w/more scrutiny, like ISC cases, but still rules it is valid tax, like in BAILEY SEPARATION OF POWERS: CONGRESS AND EXECUTIVE a. Justice Jacksons theory i. No unenumerated powers for president. a.


ii. emergency powers kindle emergencies 1. evidence from French rev, Weimar Germany 2. ermergency pwrs safer when overseen by legislature iii. prezs pwr really determined by deference of court. b. YOUNGSTOWN SHEET: Can prez take over steel mills with strike looming during wartime? Congress doesnt try to stop him. i. No, unconst. Majority opinion by Black finds NO inherent pwrs, Truman usurped congs authority. Prez pwr must come from const or cong. 1. Some concurring opinions find there may be unenum pwrs in catastrophic situations 2. Jacksons tripartite scheme for prez authority a. Zone 1: most authorityexpress or implied cong authority, actions presumed valid. b. Zone two: twilight zonedepends on imperatives of events and contemporary impoinderables unclear what prezs pwrs are. If cong is silent, actions upheld unless infringing on pwrs of other branch of govt. c. Zone 3: least pwrprezs action incompatible w/express/implied will of cong. c. WAR MAKING POWERS? i. Art I: cong declares war, raises/maintains army. ii. Art III: prez is commander in chief 1. Can make military decisions if US attacked 2. Day to day foreign relations pwr 3. Treaty pwr w/ 2/3 of senate. 4. Very little case law on prezs use of troops in foreing affairs, SC usually punts, calls it nonjusticiable political question. iii. WAR ON TERRORcourt deeply split on its role 1. What is executives authority to detain suspected terrorists? 2. Rule: American citizens captured abroad and detained as enemy combatants MUST be given due process, meaningful trial. 3. HAMDI V RUMSFELD: can fed govt hold American citizen as an enemy combatant? AND what sort of process does Hamdi get? a. First issue: detention is OK, congressional approval from Authorization for Use of Military Force (granting prez ability to use all nec and approp force) meets requirements of Nondetention act, which prohibited detention of citizens w/o act of congress (Youngstown zone 1) b. Second issue: must given due process, since habeas hasnt been suspended. Have to balance interests of personal liberty vs govt interests. 4. HAMDAN V RUMSFELD: can detainees be tried in military tribunals? a. NO, executive order doesnt comply w/Geneva conventions/uniform code of military justice b. Hamdan is a POW, not enemy combatant, gets to be tried in regularly constituted courts 5. BOUMEDIENE V BUSH: detainee treatment act restricts habeas, can only appeal points of law. a. Habeas only suspendable in times of rebellion or invasion. Since none present, cant curtail habeas, must allow meaningful opportunity to contest. EQUAL PROTECTION a. Before EP: SCOTT V SANDFORD



i. Scott, a slave, was taken into a free territory, then returned to MO. His master died, he sued in fed ct. Court rules slaves were never meant to be citizens, so no standing to sue in fed ct. ii. Goes one step further and invalidates MO compromise, improperly would take property from owners. RECONSTRUCTION: 13, 14, 15th ams passed i. 13th am prohibits involuntary servitude, discrimination based on badges/incidents of slavery ii. 14th- citizenship to those born in US, due process and equal protection. 1. SLAUGHTERHOUSE CASES: Is legislative monopoly granted to one slaughterhouse in violation of EP? a. Court says no, outside scope of 14th am, which was only implemented to protect freed slaves. b. Court also interprets enforcement VERY narrowly, says 14 th am protections ONLY apply to privileges and immunities of federal citizenship, not state citizenship. i. Much criticized, but still good law. 2. US v REESE: court invalidates statute prohibiting interference w/right to vote. a. Law exceeds scope of 15th am b/c it extends to non-racial discrim as well. b. Also, 15th am cant touch state elections, only covers FED privileges and immunities. 3. US V CRUIKSHANK, US V HARRIS: Can fed govt prosecute KKK for violating 14th am protections when they lynched people? a. NO, 14th am only applies to state actions, NOT private. 4. CIVIL RIGHTS CASES 1883: is civil rights law of 1875 banning private discrim const? a. No, cant regulate private conduct, and 13th am only protects against discrim for badges/incidents of slavery, not just racial discrim. Three step process in evaluating EP cases i. What is the classification? ii. What level of scrutiny should court apply? iii. In making the classification, does the govt pass that level of scrut? How do we know what level of scrut to apply? Some factors to consider from BOWEN: i. Historical discrim ii. Relative political powerlessness iii. Is the class a discrete minority group? iv. Immutability Does govt action pass the hurdle of scrutiny? i. Evaluate BOTH means and ends ii. How over/underinclusive is law? (court says laws can be both though) 1. Underinclusivelaw doesnt apply to all who are similar, like RAILWAY EXPRESS AGENCY (law doesnt have to touch every aspect of evil) 2. Overinclusiveapplies to more than nec to achieve purpose internment of ALL Japanese in KOREMATSU, discrim against ALL methadone users in BEAZER. Three tiers of scrut i. Strict: first articulated in KOREMATSU, law must be necessary to achieve compelling purpose. Very high burden, govt must show the law is necessary and cant be achieved thru less discrim process. ii. Intermediate: law ok if substantially related to important govt purpose. Govt has burden of proof






iii. Rational basis review: most deferential, law ok if conceivably related to legitimate purpose. Very hard to challenge law subject to rbr. RBR-all govt actions under equal protection clause must at least meet i. Rarely used to overturn ii. Law rationally related to legit purpose. 1. Purpose doesnt need to be govts ACTUAL purpose, just a purpose court could conceive of. iii. What purposes are legit? 1. RAILWAY EXPRESS V NY: NY bans ads only on rented trucks, whats the legit purpose behind this classification? Govt has interest in furthering public safety, doesnt have to tackle the ENTIRE problem w/one law. 2. WILLIAMSON V LEE OPTICALOklahoma law discrim against opticians. Valid under rbr, state purpose to advance public health, court doesnt question methods. 3. NYC TRANSIT V BEAZER: discrim against ALL methadone users in employment? Valid under RBR, even though very overinclusive. Court says state doesnt need to undertake most precise classification, as other bans would be costlier, not as effective. 4. CLEBURNE LIVING CTR: ok to make it harder for hospital for mentally challenged to get permit than other hospitals? a. NO, doesnt even pass RBR, no legitimate reasons. Private bias against people not enough of a reason 5. ROMER V EVANS: CO law banning gays from being included in antidiscrim law const? a. NO, law is overbroad, not related to any rational purpose. b. State purpose cant just be bare desire to harm minority from Moreno, cant stem just from animus 6. MORENO: law prohibiting food stamp collection if you live w/nonfamily member. a. Invalidated. Leg history shows meant to stop hippies from defrauding govt, just wanting to hurt a minority group not enough of a purpose. 7. LAWRENCE V TEXAS: invalidates TX law banning only homosexual sodomy. a. Oconnors equal protection argument: distinction btwn gay/straight sodomy has no purpose, can only be from desire to harm gays. Strict scrutiny: carolene prods footnoteprejudice against discrete minorities may be special condition and may call for correspondingly more searching inquiry. i. Dual hurdles govt action must overcome: purpose is extremely important AND cant be accomplished w/o making the distinction ii. Can show race classification either when the law does this on its face (strauder) OR is facially neutral but is applied w/discrim or is disparately impacting one group iii. Race and natl origin on face of law 1. STRAUDER V WV: excluding black from juries violation of EP 2. PALMORE V SIDOTI: state court denies mother custody of child after he is remarried to black man. a. Argued that child would suffer stigma b. Overturned by SC, b/c law can give effect to private bias, and mere prejudice not enough to justify keeping kid away from mom. 3. KOREMATSU: internment of Japanese OK, govt argues serious wartime risk, part of hardship of war.

Both over and under inclusive (ethnic germans not put in camps) iv. Laws burdening blacks and whites? 1. LOVING V VA: court invalidates VA miscegenation law. a. Court doesnt buy argument that its ok b/c both races treated equally. Just b/c classification affects both doesnt mean its not invidious. v. Racial separation 1. 14th am only applicable to govt action, not private action (slaughterhouse cases) 2. PLESSY: sep but equal train cars? a. Court upholds, says separation affects both blacks and whites, not a badge of inferiority, any such meaning is imposed upon blacks by themselves. b. Harlans dissent says con is colorblind 3. MISSOURI EX REL GAINES: MO law school wont admit black students, but pays for them to go to school out of state. a. Invalidated, distinguished from Plessy. MO doesnt give its students an equal school in state. 4. Sweatt v Painter: UT doesnt admit Sweatt, he files suit on basis black law school is inferior. a. Court agrees, finds both tangible factors (library size, etc) AND intangible factors (prestige, alumni network) are inferior, UT has to admit him. 5. MCLAURIN V OK: Mclauren let into OK law school, but kept segregated. a. Court finds violation of EP, as he is not given the chance to exchange ideas etc w/other students. b. This line of reasoning provides groundwork for brown. 6. Brown v Board: separate but equal ok in schools? a. NO, invalidated. Relying partly on social science data, warren court says segregation harms students, imparts feeling of inferiority on black students. b. Decision doesnt contain remedies. c. In Brown II, court remands case to trial level to determine remedies, all districts have to be desegregated w/all deliberate speed. 7. Bolling v Sharpe: companion case, ends seg in DC schools a. Problem: 14th am applies to STATES, not fed govt, which runs DC schools. How does court get around this? b. It would be unthinkable that const would impose less duty on fed govt than on states; possible 5th am violation of due process b/c race discrim so unjustifiable. vi. Classification benefitting minorities? 1. In Bakke, no majority, but 4 justices think intermediate scrutiny is appropriate 2. GRUTTER V BOLLINGER: Strict scrutiny is the appropriate level of review. a. ALL racial classifications need to be reviewed strict. b. Court decides colleges have compelling interest in fostering diversity 3. How to use affirmative action? a. Courts will be very wary of quota, like in Bakke, or strict awarding of points for race, like Gratz b. Use race as one of many factors, like Grutter. 4. Why have SS for AA?




ALL racial classification is divisive, sends a bad message, breeds hostility b. At odds w/supposed equality c. Only reserved for remedial uses 5. Why have less scrutiny for AA? a. There is a diff btwn classifications that hurt and those that help minorities b. Diversity is an admirable goal and a very compelling govt interest c. Long history of discrim makes equal playing field hard. d. Harder to achieve actual equality w/SS e. Diff btwn majority discrim against weaker minority and discrim against itself. vii. Facially neutral laws w/discrim impact/admin? 1. WASHINGTON V DAVIS: blacks failed police officer test in DC at much higher rate than whites, was test discrim? a. Court says no, incidental impact not enough, have to prove both discrim impact AND purpose. i. Very hard to do, since most laws can be given bullshit benign purpose. 2. FEENEY: MA law gives hiring preference to vets, overwhelmingly helps men. a. Law is ok b/c no proof of intent to discrim, only to help vets. b. MUST show that discrimination was desired; decision maker selected particular course of action at least in part b/c of adverse effects upon group GENDER CLASSIFICATIONS AND INTERMED SCRUTINY i. Inter/heightened scrutiny must be based on imp govt objectives, and objectives need to be substantially related to objectives. 1. For intermediate scrutiny, court will not just accept any conceivable purpose of statute, has to be ACTUAL, SUBSTANTIALLY RELATED purpose. ii. Similar factors btwn race and gender discrim, except 1. Women not minority 2. Actual biological difference btwn sexes. iii. REED V REED: Idaho law prefers men over women for being executors of estates. 1. Invalidated, classifications must be reasonable, not arbitrary. 2. Court finds sex has no rational relationship to ability to admin estate. iv. CRAIG V BOREN: state law bans men from buying 3.2 beer for 3 years longer than women. 1. Invalidated. While state had very imp purpose (reducing drunk driving and improving safety), discrim was not related to drunk driving, even though men made up large majority of drunk drivers. 2. Cant discrim against 98% of men who dont drink/drive v. HOGAN: state nursing school only available to women 1. Intermed scrutiny appliedno reason for excluding men, promotes stereotype of nursing as womens job. self fulfilling prophecy, since men cant get in to change the stereotype. vi. VMI CASE: women cant be excluded from military school. 1. VMI argues schools intense program would have to be fundamentally altered to accommodate women. 2. VA creates womens school, but its ruled unequal, and state is still denying an opportunity to women. 3. Just because MOST women cant do it doesnt mean there arent some who can/want to go to VMI





After this, burden to justify classification is on the state a. Ginsburg: parties who seek to defend gender -based govt action must demonstrate an EXCEEDINGLY PERSUASIVE justification. Real differences or discrim? i. GEDULDIG V AIELLO: CA disability payments exclude only pregnancy. 1. Upheld, CA argues not sex discrim, since women get benefits from everything else, the actual classification is just pregnant people v nonpregnant people. 2. Court finds there needs to be mere pretext designed to effe ct an invidious discrim which is not the case here, the state has legit interest in deciding how to allocate its funds. ii. MICHAEL M: Statutory rape laws only prohibit males from having sex with minor females, not the other way. 1. Rationale? State has legit interest in stopping illegitimate teen births, girls already have incentive not to have babies, criminal penalties for boys adds an incentive for them. iii. Nguyen v INS: law making it easier for children of unmarried us citizen mothers than fathers to establish citizenship? 1. Harder for child to become citizen if only father was citizen, rather than only mother. 2. Basis for distinction? Court argues state has interest in fostering family connections and connections w/US, easier to prove relation to mother than father. a. Mother/child relationship starts at birth, father could be nowhere to be found. b. Breyer, dissenting, says this is not a legit interest, based on broad stereotype, and DNA test could be just as effective. SEXUAL ORIENTATION i. What level to apply? Courts have used RBR, despite lgbt people fitting many of the factors of CAROLENE footnote 4. 1. Long history of anti-lgbt discrim 2. Discrim comes from prejudice rather than actual diffs 3. Somewhat powerless politically 4. Research indicates sexuality immutable. ii. ROMER V EVANS: CO statute preventing lgbt from being covered by antidiscrim laws const? sexuality never been a suspect class before. 1. NO, fails RBR, state couldnt come up w/legit reason for denying gays same rights everyone else has 2. Cite Morenogovt interest has to be more than bare desire to harm politically unpopular group. Mere animus not enough, doesnt matter that there is a moral element. 3. Making it harder for one group to be protected by govt EP violation. 4. First case in which SC invalidates sexual orientation discrim law. 5. More intensive version of RBR? Hard to say. iii. BOWERS V HARDWICK: GA law prohibiting sodomy const? 1. YES, law constantly based on notions of morality 2. Court doesnt think homosexual activity fits into any expr ess rights, important traditions, or framers intent. iv. LAWRENCE V TEXAS: Can TX outlaw gay sodomy but not straight sodomy? 1. NO, expressly overrules Bowers, says govt cannot intrude into bedrooms of consenting adults. The law cant inhibit these personal relationships 2. OConnor concurrence bases argument on equal protection, not due process. Kennedy majority says law touches both, but TX could just get around EP by applying law to straights too.




3. Case important in affirming right to privacy, const rights of lgbt. 4. However, NO MENTION of level of scrutiny used. l. DISABILITY DISCRIM? i. Level of scrutiny usedRBR ii. CLEBURNE: const to make it harder for hospitals for mentally handicapped to get permits? 1. NO, govt advances no believable arguments for discriminating against the disabled 2. Private biases/prejudices of nearby property owners not sufficient govt purpose. RECONSTRUCTION AMENDMENT ENFORCEMENT PWR a. 13, 14, 15th ams all have enforcement sections. i. The issue is, how closely does enforcement have to track language of the amendment? What is scope of their authority? ii. KATZENBACH V MORGAN: is ban on literacy tests in voting rights act const? 1. NO, overturns earlier ruling in Lassiter. 2. Court reasons cong not just limited to remedies, can also EXPAND protections, interpret amendments for itself and determine meaning. 3. Brennans ratchet-congress can expand protections but not dilute them 4. Very deferential, gives plenary pwr to cong to decide protections. Needs to pass McCulloch test: constitutional, legit ends, appropriate, adapted to the ends. iii. BOERNE V FLORES: religious freedom restoration act const? 1. NO, exceeds scope of congs 14th am enforcement pwr 2. Rejecting ratchet idea from MORGAN, court says not the place of congress to expand scope of 14th am rights 3. What is the test for determining if congs prevention or remedy is const? The law must be narrowly tailored, or PROPORTIONATE AND CONGRUENT to the violation being addressed. a. Here, RFRA not narrowly tailored enough to target laws that have the purpose of burdening free exercise of religion. The enforcement pwr of RFRA far exceeds scope of the problem. b. Congress cannot create NEW rights according to 14 th am 5 enforcement pwr, can only remedy/prevent violations of rights recognized by courts, cant expand rights. c. 10th am NOT a defense to intrusion on state sovereignty; reconstruction ams can intrude on state autonomy i. FITZPATRICK V BITZER: 5 enforcement pwrs authorize cong to intrude on states pwrs iv. US V MORRISON: can cong regulate private actions via 14th am 5 enforcement pwrs? 1. Court says NO, reaffirms 1875 civil rights cases prohibiting 14 th am legislation from reaching private action. 2. Civil damages provision of the law is private in nature, not covered by 5 v. BOARD OF TRUSTEES V GARRETT: Takes narrow approach to enforcement pwr 1. ADA requires employers to make accommodations for disabled, allows employees to sue employers (including states) for damages. 2. Disability is NOT a suspect class (CLEBURNE), only needs to satisfy RBR 3. Alabama argues it is protected by 11th am lawsuit immunity



Rehnquist says to abrogate this immunity and allow states to be sued, MUST show the state has a history and pattern of unconst employment discrim b. Majority unsatisfied that legislative record had found enough discrim c. The law was NOT proportional and congruent, as refusing to accommodate disability can be a rational choice for businesses. vi. NV V HIBBS: contrast to GARRETT, court found acceptable abrogation of state immunity and valid exercise of 5 enforcement pwr? Why? 1. FMLA forced employers (including states) to grant med leave regardless of gender and allowed for employees to sue. 2. Plenty of evidence that, prior to FMLA, where med leave discretionary, women severely disadvantaged in the workplace. a. Response to state sponsored stereotype that women should stay home and be with family. 3. Unlike Garrett, gender receives higher level of scrutiny than disability. a. Higher level of scrut=broader enforcement pwr DUE PROCESS: 14th and 5th am a. Govt cannot deny fundamental rights without adequate reason, have to meet strict scrutiny. Can govt take your life, liberty, or property? i. Some of these rights: 1. Family autonomy, procreation, sex and sexual orientation, decisions over medical care, travel, voting b. Relation to EP? i. If everyone deprived of rights, use DP ii. If law is denied only to some, DP or EP arguments valid c. 9th am also important: i. reserves right for the people, some opinions use 9th am to justify protecting unenumerated pwrs, like privacy ii. no explicit rights granted from 9th am d. How to analyze fundamental rights question: i. Issue 1: is the right fundamental? ii. Issue 2: is the right being infringed? iii. Issue 3: is there enough govt justification to infringe on the right? iv. Issue 4: means sufficiently related to ends? e. Level of scrutiny? i. Non-fundamental rights: RBR, laws infringe our rights all the time. 1. From CAROLENE PRODUCTS: defer to leg unless infringement of fundamental right/discrim against insular minority. ii. Fundamental rights: Strict scrutiny. iii. What are the fundamental rights? 1. One way of looking at them: deeply rooted in nations history/tradition 2. What level of abstraction do you characterize the right? a. At very general level, almost any right can be fundamental b. At more specific level, harder to justify iv. Is the right infringed? 1. Is there a direct/substantial interference? v. Justification govt just show 1. For non-fundamental rightonly has to be a legit govt interest 2. For fundamental rightgovt needs to show COMPELLING interest vi. Means/ends related? 1. For non-fundamental rightsonly need to be rationally related 2. For fundamental rightsgovt has to show the law is necessary to achieve objective





ECON SUBSTANTIVE DUE PROCESS i. LOCHNER V NY 1. NY law imposes 10 workday limit on bakers 2. Court rules law invalid, violation of 14th am a. Cant interfere w/individuals fundamental right to contract 3. Majority uses high level of scrutinydoesnt believe govt objective was to ensure employee health. 4. Restricting right to contract is not w/in states police pwr, which can regulate public health, morals, etc. 5. Dissent argues court should be deferential to legislature, not the courts place to determine wisdom of policy/prefer one econ theory over another. a. Rejects idea contracting is fundamental right ii. WEST COAST HOTEL 1937 1. Dispute over state min wage for women 2. Upheld, not a DP violation a. const does not speak of freedom to contract b. applies rational basis reviewthe law is an admissible means to legitimate ends i. OK to reasonably regulate subjects adopted in interest of community. 3. Explicitly overturns Lochner, court decides econ liberties ARE NOT fundamental, they get RBR Fundamental Rights i. Children + Family 1. MEYER V NEB: state law prohibiting foreign language instruction is unconst. a. Due process protects family autonomyliberty gives right to marry, establish home, bring up kids. b. This law violates parental rights c. Liberty not just freedom from physical restraint, but enjoyment of privileges long recognized at common law. d. Strict scrutiny applied 2. PIERCE V SOCIETY OF SISTERS: invalidates state law banning kids from attending private schools, compelling public edu. a. Violation of 14th am DP; interferes w/parents rights to raise kids. 3. BUCK V BELL: Upholds state eugenics law sterilizing feebleminded a. Not a violation of DP, govt has interest in improving society 4. SKINNER V OK: invalidates state sterilization law that omits most white collar crimes, against both DP and EP a. Classifications of criminals are non-suspect, but if a law burdens a fundamental right (having a family here), then it must pass strict scrutiny test. b. Also an EP violation, the distinction between which crimes get sterilization and which dont was irrational. ii. Marriage 1. LOVING V VA: Marriage is a fundamental right-depriving lovings of right to marry who they like is a due process violation, in addition to being an EP violation 2. Marriage is basic civil right iii. Contraceptives 1. GRISWOLD V CT: CT state law invalid, cant stop married couples from using contraception. a. Court finds privacy is a fundamental rightdont want police invading sacred marital bedrooms


i. In penumbra of other rights Douglas and majority say this right comes from 1 st, 3rd, 4th, and 5th ams, not 14th c. Concurring opinions find the right to privacy in 9 th am/ 14th am. d. White believes law even fails RBR, as regulating married couples use of contraceptives has no bearing on stopping illicit sexual relationships. e. Morality based leg still ok, court finds nothing wrong w/criminalizing adultery, homosexuality, etc. f. Courts interpretation of fundamental rights: i. Teachings of history, solid recognition of basic values that underlie our society.. ii. Also take into account dissent from POE V ULLMAN, look at natural law and living tradition. 2. EISENSTADT V BAIRD: strikes down MA law preventing distribution of contraceptives to unmarried persons, only let doctors distribute them to married couples. a. Both DP and EP issues i. EPunfairly discrim against unmarried, fails RBR, court says couldnt have been intent of legislature to want to deter premarital sex by punishing w/unwanted child. ii. DPprivacy at issue here, dont want state intruding on something as fundamental as choosing whether to procreate. b. Very significant rulingexpands Griswold to establish fundamental right to control reproduction. Regardless of if married or not. 3. CASEY V POP SERVICES INTL: invalidates NY law banning distributing contraceptives to minors. a. This type of law gets strict scrutiny. b. Choosing to have child is fundamental, in order to regulate states must have COMPELLING INTEREST in regulation, which must be NARROWLY TAILORED. c. This law fails strict scrutinydoesnt make sense to deter teen sex by making it more dangerous iv. Abortion 1. ROE V WADE: Invalidates TX law prohibiting abortions EXCEPT to save mothers life. a. Does 14th am give fetuses right to life? Unclear whether person in const referred to fetuses. b. Establishes right to terminate pregnancy prior to viability c. Level of scrutiny supposedly used, but not really here i. What are the govts compelling interests? 1. Mothers health-upheld, as at the time, after first trimester, abortions were more dangerous than birthing 2. Fetal health- upheld, state has interest in protecting fetus life after viability d. Woman has fundamental right to choose (profound, personal, intimate decision), infringing on this right can bring enormous physical/psychological burdens i. BUT, right to abortion not absolute, must be balanced against states interest in protecting life/potential life b.





ii. Govt cannot ban abortion prior to viability, but can regulate it according to trimester scheme as long as regulation not an UNDUE BURDEN iii. Trimester schemelater rejected by casey 1. 1st trimester: no prohibiting abortion, only regulate it like any other med procedure 2. 2nd trimester-cant outlaw abortion, but can regulate to reasonably protect maternal health. 3. 3rd trimester-govt can prohibit abortions except to save life/health of mother. PP V CASEY: reaffirms ROEs ruling that state cannot stop abortion prior to viability, rejects trimester framework from ROE. a. Now can BAN abortion after viability, can RESTRICT it as long as not an undue burden before viability. b. Examines PA law placing multiple restrictions on abortion. Upholds all except requirement to inform husband. c. Establishes review level for abortion restrictions: law cannot violate 14th am DP by placing undue burdens on abortion access. NOT STRICT SCRUTINY i. What is undue burden? 1. When the regulation has the purpose/effect of putting a substantial obstacle in way of woman seeking abortion. d. Plurality (OConnor, Kennedy, Souter)not job of court to mandate their morality, but to define liberty for all. i. essential holding of ROE reaffirmed e. instead of trimester system, now govt can regulate before viability as long as no undue burden, can prohibit after viability except if mothers health/life in danger f. DISSENT: Scalia + Rehnquistconcur in part, dissent by saying Roe should be overruled i. Looking at American tradition, abortion not a fundamental right, has long been prohibited. STENBERG V CARHART 2000 a. Nebraska partial birth abortion law has NO health exception for mother. b. INVALIDATED as overbroad, b/c in cases of medical uncertainty mothers health couldnt be protected. c. Even if med uncertainty, need a health exception. GONZALEZ V CARHART 2007 a. Response to Stenberg, fed govt passes fed partial birth abortion ban. b. W/Alito joining court switches in favor of banning abortion, gonzalez upheld. c. Upholds the central premise of CASEY, but: i. ADDS govt interests that can be seen as legit: 1. Dignity of life 2. Regulation of medical ethics d. Changes the UNDUE BURDEN standard, now looks to see if the law would be an undue burden on a large fraction of women. e. Says NO HEALTH exception required if med uncertainty i. Congress has wide discretion to legislate areas of uncertainty



Standard is RBR+ basically, state can act to prohibit abortion if it has RATIONAL basis to act, and it is connected to legit interest (now more interests than defined in casey)

v. RIGHT TO DIE? 1. CRUZAN V DIRECTOR 1990 a. State tries to stop family from pulling plug on vegetative daughter. b. Court upholds MO law barring surrogates from deciding on removal of life support absent clear and convincing evidence. c. NOT a violation of due process 14th am freedom. d. BUT, court DOES find COMPETENT adults have right to refuse medical treatment e. State has legit interest in protecting life, so OK for them to require clear and convincing evidence from family i. Court does NOT specify a level of review, never says that a right to refuse med treatment is FUNDAMENTAL 2. WASHINGTON V GLUCKSBERG a. UPHOLDS WA law outlawing assisting suicide b. What is the right at issue? i. Court defines it narrowly: the right to commit suicide c. Rehnquist test for FUNDAMENTAL right: i. Deeply rooted in nations history and tradition ii. Implicit in concept of ordered liberty iii. This court narrowly defines rights d. Court says the right has to be carefully defined aka at very specific level of abstraction. e. Only FUNDAMENTAL rights get higher than RBR i. Here, state has legit interest in preserving life, and stopping suicides is rationally connected to that interest. vi. SEXUALITY 1. BOWERS V HARDWICK 1986 a. Upholds GA law prohibiting sodomy b. States can prohibit same sex sex, it is NOT part of the fundamental liberty of privacy c. Like WASHINGTON, this court defines the right NARROWLY. Not as the right to choose relationships, but right to engage in gay sex. d. Court distinguishes from cases like Griswold, the privacy protection does not extend to gays i. no connection to families and reproduction ii. homosexuality not supported by const, framers, or nations history 2. LAWRENCE V TEXAS 1995 a. TX ban on gay sodomy b. VIOLATION of due process rights, EXPLICITLY overrules BOWERS, attacks its reasoning that gays have been legally targeted for hundreds of years c. Court defines right more broadly than Bowers court: i. Adults can choose private relationships w/o being criminalized (Griswold reasoning) ii. Right to intimate personal bonds



e. f.

g. h.

Criminalizing just the sexual aspect infringes on the personal bonds that usually go along w/sex. Court decides on Due Process grounds, OConnor thinks it could be EP also. Why does court go w/DP? i. Otherwise, state could simply rewrite the statute to apply to all sodomy, then selectively enforce. TX law, by invading private bedrooms, does NOT advance any legit interests freedom described here does NOT apply to: i. Minors ii. Incest iii. Prostitution iv. Public sex Court makes NO mention of level of scrutiny, BUT relies on cases like Griswold that used SS Importance of Lawrence? i. First time rights of gays and lesbians to equal treatment/dignity ii. Affirms powerful right to privacy, personal autonomy in choosing relationships/family.