con law outline 1

8/3/2019 Con Law Outline 1

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1. Modes of Constitutional Argumenta. Historical (original intent)Argument based on the original understanding of the

Constitution of the drafters of the provision in the context in which the provision

was written.

b. TextualArgument based on the current meaning of the words, not the pastmeaning.

c. DoctrinalBased on principles derived from precedent or commentary onprecedent. Often used to limit the Courts role to the narrowest issue presented by

the parties and applying general principles found in prior cases.

d. PrudentialArgument based on the political and economic circumstancessurrounding the decision. According to Munger, typically prudential argument is

given in reasons for not deciding a case.

e. StructuralArgument based on the allocation of power within the Constitution.f. Ethical Based on traditional notions of American institutions.

2.

The Federal Judicial Powera. Marbury v. MadisonIt is the job of the Court to say what the law is.

i. Does 3 things:1. Creates limited judicial review of the executive.2. Establishes Article III as the ceiling of federal court jurisdiction.3. Establishes judicial review of the legislature.

ii. Constitution is the supreme law of the land and overrides contradictoryfederal law.

b. Martin v. Hunters LesseeEstablishes Court review of state courts ininterpreting federal law.

c. Cohens v, VirginiaEstablishes Court review of state criminal convictions thatviolate the Constitution.

d. Limits on Federal Judicial Poweri. Interpretive limitsHow judges should interpret the Constitution.

Originalist, non-originalist?

ii. Congressional limitsCongress restricting federal court jurisdiction.1. The Exceptions & Regulations Clause. Article III, 2 cl. 2.

a. Congress can restrict the Courts appellate jurisdiction,though it cannot restrict the Courts original jurisdiction.

b. Ex Parte McCardle supports the proposition that Congresscan plainly limit appellate jurisdiction on the Court.

2. US v. KleinCongress cannot decide cases for the courts or usurpthe presidential power of pardon. Under Klein, Congress cannot

direct findings of fact (or law. See Marbury) or results. Congress

can, of course, change the law.


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3. Congress can decide the number of justices. Congress can also setthe terms for when the Court will sit.

iii. Justicability limitsSelf-imposed limits on types of cases heard by thecourt. These limits are court-created. Some are constitutional, meaning

Congress cannot override them. Others are prudential, meaning

Congress CAN override them. Federal courts are limited to cases and

controversies because these are best suited to judicial resolution.

1. Prohibitions against advisory opinionsa. Must be an actual dispute between litigants.b. Must be likelihood that decision will have an effect.c. Plaut v, Spendthrift Farm, Inc.Congress cannot force

rulings on courts without changing the law itself. Congress

cannot let federal courts be reviewed by the executive.

While retroactive laws can apply to cases being heard,

Congress cannot overturn a final judgment, or renderearlier opinions to be advisory.

d. Declaratory judgments are, of course, justicable.2. Standingthe determination of whether a specific party is the

proper party to bring a matter to the court.

a. Constitutional requirements:i. Plaintiff must allege that he has suffered or will

immediately suffer an injury.

ii. Plaintiff must allege that injury is traceable todefendants conduct.

iii. Plaintiff must allege that victory will address injury.b. Prudential requirements:

i. Plaintiff can generally only claim their injuries.ii. Plaintiff cannot sue as a taxpayer who simply shares

a grievance with all other taxpayers.

1. Taxpayers can sue for violations of theEstablishment clause only, which has never

been extended or overruled.

iii. Third parties cannot make a suit.iv. Generalized grievances are not a claim.v. Satisfying the elements of a cause of action is a

statutory requirement, but its also considered a

prudential element of standing.

vi. Legislative standing Allows members ofCongress to challenge executive actions that


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diminish their role as legislators under very limited

circumstances.

c. optional requirement Must be suing over a protectedright.

d. Allen v. WrightAssertion of a right to a particular kind ofgovernment conduct which the government has violated by

acting differently is not an injury. To get standing for a

discrimination case, a plaintiff must be personally denied

equal treatment.

e. Massachusetts v. EPAIf Congress gives a party a specialright to bring a case, it can.

3. RipenessCase is ready to be heard.4. MootnessCase isnt already somehow no longer an issue. An

exception is capable of repetition.

5.

Political Questiona. DefinitionAllegations of constitutional violations that

federal courts will not adjudicate, and that the Court deems

to be inappropriate for judicial review. Some constitutional

issues are for the political branches.

b. Court has long held that issues arising under the Guarantyclause (Article 4 4) are not justicable.

i. Baker v. Carr says that equal protection claimsarising under the Guaranty clause are valid. This is

how the Court can hear racial gerrymandering

claims.ii. For unfair redistricting plans, the Court has

noticed two big problems.

1. Impossible to draw neutral district lines.2. No rules to limit judicial intervention.

c. Congressional self-governance is NOT necessarily apolitical question, see Powell v. McCormack, which holds

that the framers clearly intended for people to be able to be

governed by those they chose who are qualified by the

Constitution. Article I sets the ONLY qualifications.

d. Courts are quick to label foreign policy cases as politicalquestions. Goldwater v. Carter.

e. Impeachment and removal of judges by the Senate arepolitical questions, as this power is the only real check on

the judiciary.

These doctrines must all be satisfied.


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3. Congressional Power in Generala. Congress can only do what is expressly or impliedly in the Constitution, listed in

Article I 8 and elsewhere. States can do whatever is NOT prohibited, listed in

Article I 10 and Article IV.

i. McCulloch v. MarylandCongress can exercise implied powers to furtherits express powers.

b. Shorthand evaluation of Congresss constitutionality of actions:i. Is it within enumerated powers?

ii. Does law violate separation of powers or individual liberties?4. The Commerce PowerThe source of federal criminal law, securities law, civil rights

law, and environmental law. The Commerce Power, like all enumerated powers, is

absolute.

a. Four eras of Commerce Power interpretation:i. Birth to 1890s Broadly defined but minimally used.

1.

Gibbons v. OgdenReads the Commerce Power broadly,excepting from Congressional control only purely internal state

commerce.

ii. 1890s to 1937 10th Amendment is the limit of the power.1. Court would argue by labels. Only things that was truly interstate

in nature could be regulated. Production could not Hammer v.

Dagenheart.

iii. 1937 to 1990s No limit to the power.1. NLRB v. Jones & Laughlin SteelThe NLRB did not violate the

10th Amendment, because labor disputes affected commerce. The

law must relate to commerce, the injury that Congress isattempting to redress neednt necessarily stem from commerce.

Congress can regulate an area of concern if there is a close and

substantial relationship to interstate commerce that it is

substantial to regulate it.

2. US v. DarbyCommerce clause is subject only to theConstitution. Anything affecting interstate commerce can be

regulated. Overrules Hammer. The 10th Amendment is merely

declaratory.

3. Wickard v. FilburnCongress can regulate prices and quotas.Even a de minimis activity can be regulated, as that activity in the

aggregate has an effect on interstate commerce. This is called the

accumulation principle. Rational basis review is announced.

4. Heart of Atlanta Motel v. USIf interstate commerce feels thepinch, it doesnt matter how local the squeeze.


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5. On regulationCongress must have a rational basis for regulationunder the Commerce power.

6. On criminal lawCommerce clause deals with three kinds ofproblems:

a. Misuse of interstate channels.b. Protecting instrumentalities of interstate commerce.c. Activities substantially affecting interstate commerce.

7. The 10th Amendment as a Limit on Commerce Powera. The states were expected to check Congress politically

through the representatives it sent to Congress. This is, of

course, absurd.

iv. 1990s to now 10th Amendment is the limit.1. US v, LopezThree categories of what Congress may regulate:

a. The use of channels of interstate commerce. Noneconomicactivities can be regulated here if there is a jurisdictionalelement (regulating guns that cross state lines, for

example).

b. Can regulate and protect the instrumentalities of interstatecommerce (see Pierce Co. v. Guillen), or persons or things

in interstate commerce, even if the threat may only come

from intrastate activities

c. Can regulate activities that substantially affect interstatecommerce.

d. Noneconomic activities that do fall outside of these threethings cannot be regulated by Congress.

2. US v. MorrisonCongress may not regulate violent, noneconomicconduct based solely on that conducts aggregate impact on

interstate commerce on a national scale. Wickard still stands as

good law for the proposition that economic activity may be

regulated based on its aggregate effect.

3. Gonzales v. RaichOne way of determining whether something iseconomic is if it is regulated as part of a larger comprehensive

scheme.

b. Questions the Court uses in interpreting the Commerce Power:i. What is commerce?

ii. What does among the several States mean?c. Does the 10th Amendment limit Congress?

1. Is the 10th Amendment a separate constraint, or a simple reminderthat Congress can only legislate under the enumerated powers?

2. Does it protect state sovereignty from federal intrusion?


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3. Gregory v. AshcroftFederal law cannot preempt state lawwithout express Congressional intent, otherwise the 10th

Amendment applies.

4. NY v USCongress may not simply commandeer the legislatureof the states by directly compelling them to enact and endorse a

federal regulatory program. Congress can tell states what to do, but

cannot tell states what laws to pass.

5. Congresss Power to Authorize Suits Against State Governmentsa. 11th Amendment bars citizen suits against states in federal courts.

i. 3 ways to get state governments into federal courts1. Sue the state official in his official capacity.2. State consents to be sued.3. Sue states under 5 of the 14th Amendment. See Fitzpatrick v.

Bitzer.

4.

Seminole Tribe of Florida v. Florida says that except for 5 of the14th Amendment, Congress cannot authorize suits against states in

federal courts.

5. Alden v MaineStates cannot be sued in state courts either.6. The Taxing and Spending Power

a. Congress can give conditional grants, provided conditions are related to thepurpose of the funds.

i. These conditions can go way beyond Congresss power to regulateotherwise.

b. Limits on the Spending Poweri. Is the spending in pursuit of the general welfare? (Court defers to

Congress on that).

ii. Conditions must be unambiguous.iii. Conditions must be connected to federal interest.iv. Other constitutional limits.

7. The Federal Executive Powera. Inherent power

i. Not taken seriously. The presidents power, if any, to act must stem fromeither an act of Congress or the Constitution itself.

ii. The scope of inherent power:1. the issue of executive privilegethe right to keep communication

with advisors secret.

a. US v. NixonThe general assertion of privilege must yieldto the demonstrated specific need for evidence in a pending

criminal trial. The Court took pains to note that this case


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concerned a criminal trial, and that privilege would be more

easily asserted in civil cases.

b. The Appointment Poweri. President can appoint principal officers. Inferior officers can be

appointed by the President, Dept heads, or judges. An inferior officer

can be determined by tenure, duration, and duties being limited.

c. The Removal Poweri. President can remove people unless limited by statute. Congress can limit

the removal if independence is desirable, and then the president must show

good cause in order to remove.

1. The president can remove at his sole discretion someone who wasnominated with the advice and consent of the Senate.

2. When an agency is partially legislative and partially judicial, andrequires independence from politics, good cause is required for

removal.3. Congress can only remove someone by impeachment.

d. Separation of Powers and Foreign Policyi. US v. Curtis-Wright Export Group says that the president does have

unilateral power in the realm of foreign policy.

ii. Treaties and Executive Agreements1. Executive agreements are effective when signed by the president

and a foreign head of state. Theyre constitutional and can do

anything that a treaty can.

a. Congress has implicitly approved claim settlement byexecutive agreement.

e. War Powersi. Article I gives Congress the ability to declare war.

ii. Article II makes the president commander-in-chief.iii. The questions of when Congress can declare war and when the president

can send troops without congressional approval are usually treated as

political questions.

iv. Congress adopted the War Powers Resolution in 1979.f. Presidential Powers and the War on Terror

i. Hamdi v. RumsfeldAlthough Congress authorized the detention ofcombatants, due process demands that a citizen held in the US as an

enemy combatant be given a meaningful opportunity to contest the factual

basis of that detention before a neutral decision maker.

g. The Authority of Congress to Increase Executive Poweri. The President was given the power to do line-item vetoes under the Line-

Item Veto Act. It was struck down by the Court in Clinton v. NYC.


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h. The Constitutional Issues of the Administrative Statei. Non-Delegation PrincipleCongress cant give away legislative power. It

can give specific rulemaking power. This principle is dead now.

ii. The legislative veto, killed by INS v. Chadha, as it violates the core issuesof bicameralism and presentment.

8. Limits on State Regulatory and Taxing Powera. 2 situations in which state law is unconstitutional:

i. Congress passes a constitutional law on the same topic: state and local lawis pre-empted under Article VI, the Supremacy clause.

1. Two situations that give rise to pre-emption:a. Express.b. Implied by clear Congressional intent.

i. Field pre-emptionregulation is so pervasive thatCongress left no room to supplement it.

ii.

Conflict pre-emptionfollowing both state andfederal regulations are impossible to follow at the

same time (In Florida Lime and Avocado Growers,

Inc. v. Paul, Director, Department of Agriculture of

California, when avocados were graded by different

criteria, the Court did not find pre-emption.), or the

state law stands in the way of Congresss purposes

or objectives.

ii. Congress hasnt passed a law, but state or local law runs afoul of:1. The Dormant Commerce clausestate and local laws are

unconstitutional if they place an undue burden on interstatecommerce.

a. Exists to prevent trade wars between the states.b. In Cooley v. Board of Wardens of the Port of Philadelphia,

the Court asked if a subject area is best suited for national

or local regulation.

c. In modern times, the Commerce Clause invalidates locallaws that impose commercial barriers or discriminate

against an article of commerce by reason of its origin or

destination out of state.

d. If the local law clearly benefits a public facility and treatsall private parties the same, it does not violate the Dormant

Commerce Clause.

e. Facially neutral lawsFacially neutral laws areeconomically protectionist if they have the purpose or

effect of discriminating.


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i. Hunt v. Wash. State Apple Advert. Commn strikesdown laws that

1. raise costs of doing business in one state forthose out of staters, leaving in-staters

unaffected.

2. Strip away competitive advantages out ofstaters have gained.

3. Have a leveling effect that operates to theadvantage of locals.

f. Analysis to Determine if a Law is Discriminatoryi. Is the law discriminatory against out of staters?

ii. Where simple economic protectionism is effectedby state legislation, a virtually per se rule of

invalidity has been erected. Dean Milk Co. v. City

of Madison, Wisconsin.iii. Discrimination against interstate commerce in favor

of local business or investment is invalid, save in

cases where the municipality can demonstrate under

strict scrutiny, that is has no other means to advance

a legitimate local interest. Maine v. Taylor & US.

iv. The state has the burden to prove this.g. Analysis if a Law is Deemed Non-Discriminatory

i. Upheld as long as the benefits to the governmentoutweigh the burdens on interstate commerce.

ii. Loren J. Pike v. Bruce Church, Inc. repeats thatwhen the statute regulates even-handedly to

effectuate a legitimate local public interest, and its

effects an interstate commerce are only incidental, it

will be upheld unless the burden imposed on such

commerce is clearly excessive in relation to the

putative state interest. However, the Court is

suspect of statutes that require business operations

to be performed in the home state that could be

more efficiently performed elsewhere.

iii. Safety laws are presumed valid. Protection must bevery slight to be invalid.

h. Pre-Emption and Dormant Commerce Clause analyses arevery fact-specific.

i. Do NOT use Commerce Clause cases in DormantCommerce Clause analysis.


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i. If the federal government is acting, regularCommerce Clause analysis.

1. Does the fed. have power?2. Remember, rational basis review is used for

commerce clause analysis.

ii. If a state acts, Dormant Commerce Clause analysis.1. Does state law discriminate a burden on

interstate commerce?

a. Is the law discriminatory on its face?i. If so, there must be a

legitimate state interest that

cannot be protected any other

way (strict scrutiny).

b. If the law is facially neutral, does thelaw have a discriminatory purpose oreffect?

c. Does it create too great a burden oninterstate commerce relative to its

benefit to the state, even if the law is

not discriminatory?

d. Is the law otherwise exempt from thedormant commerce clause?

i. Market participant rule.ii. Congressional approval.

2. Is there preemption?3. Is there a privileges and immunities issue?

j. Exceptions to the Dormant Commerce Clausei. Congressional approvalEven an unconstitutional

discriminatory state law is valid if Congress

approves it if the approval is a legitimate exercise of

Commerce power.

1. The law may still be challenged on othergrounds, like the Equal Protection or

Privileges and Immunities clauses.

ii. Market Participant ExceptionA state may favorits own citizens in receiving benefits from the

government programs or in dealing with

government-owned businesses.


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1. States participating in, not regulating, amarket, are not subject to the Dormant

Commerce clause.

2. States can impose conditions on theircontracts. When buying, some restriction is

ok, but when selling, restrictions have a

greater regulatory effect (called

downstream regulation) and are more

suspect.

2. The Privileges and Immunities clause (Article IV 2)statescant discriminate against out of staters with regard to

constitutional rights or important economic activities.

Discrimination can only be allowed if theres a legitimate states

interest. Discrimination against citizens is a prerequisite for a

privileges and immunities challenge. Corporations cant use it.Neither can aliens.

a. Analysis under the Privileges & Immunities Clausei. Has the state discriminated against out-of-staters

with regard to the privileges and immunities that it

accords to its own citizens?

ii. If so, is there sufficient justification for thediscrimination?

b. The modern view of Privileges & Immunities ofCitizenship is that the clause protects only with respect to

those privileges and immunities bearing upon the vitality ofthe Nation as a single entity. The Court has also said that

the issue is whether the interest is sufficiently fundamental

to the promotion of interstate harmony.

i. Fundamental rights under the Privileges andImmunities Clause

1. Access to courts and the government.2. Commercial hunting & fishing.3. Extending credit.4. Pursue a trade.

c. The Court has applied the Privileges & Immunities Clausein two contexts:

i. When state discriminates against out-of-statersconstitutional rights.

ii. Where a state discriminates with regard toimportant economic activities.


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d. State also includes municipalities.9. The Structure of the Constitutions Protection of Civil Rights and Civil Liberties

a. Most civil liberties are contained in the Bill of Rights, not the Constitution. TheBill of Rights did not apply to the states until it was incorporated through the Due

Process of the 14th Amendment.

i. Incorporation.1. Due Process issues arise when a state is impinging on a

fundamental right essential to a fair trial. Duncan v. Louisiana. The

right to a jury trial in state criminal trials is coextensive with the

6th Amendment.

2. Five provision of the Bill of Rights have yet to be incorporated:a. 2nd Amendment (has been incorporated by McDonald v.

Chicago).

b. 3rd Amendment.c.

The 5th Amendments right to a grand jury indictment hasnot been incorporated.

d. The 7th Amendment has not been incorporated.e. The 8th Amendments prohibition against excessive fines

has not been incorporated.

3. The incorporated rights are not necessarily identical to the federalrights in the Bill of Rights. For example, juries in state criminal

cases dont have to be 12 people, and they dont have to be

unanimous to convict. They just need to have a great majority of

votes.

b. The Application of the Bill of Rights and the Constitution to Private Conducti. The Requirement of State Action

1. Constitutional protection applies to state action (through the 14thAmendment), not private action. States alone can regulate private

conduct. This is enshrined in the Civil Rights Cases, not yet

overruled.

2. The 13th Amendment, however, does regulate private conduct, bybanning slavery.

ii. Exceptions to the State Action doctrine1. public functions exceptiona private entity must comply with

the Constitution if it is performing a task that has traditionally,

exclusively done by the government.

a. Marsh v. AlabamaThe more an owner, to his advantage,opens up his property for use by the public in general, the

more his rights become circumscribed by the statutory and


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constitutional rights of those who use it. This is no longer

the case with malls. Hudgens v. NLRB.

b. Jackson v. Met. Elect. Co.Public functions are found inactivities traditionally done by the government.

c. Terry v. AdamsStates violate the 15th Amendment whenthey allow for dummy elections that violate the constitution

to decide the result of the real election.

d. Evans v. NewtonThe service rendered by a private parkis municipal in nature.

2. entanglement exception private conduct must comply with theConstitution if the government has authorized, encouraged, or

facilitated the unconstitutional conduct.

a. Laws are state actions that must comply with theConstitution. Shelley v. Kraemer.

b.

Procedures created by the state are subject to Due Process.c. To find state action, there must be a close nexus between

the state and the action. Brentwood Academy v. Tenn.

Secondary Sch. Athletics Assn.

d. 2 areas where the Court has considered judicialenforcement to be state action:

i. Use of courts for prejudgment attachment.ii. The use of peremptory challenges at trials.

iii. Now, for state action to be found, there must bejudicial enforcement plus some other factor.

e. Conduct is fairly attributed to the state when:i. It is caused by the exercise of a right created by the

state AND

ii. The actor is one for whom the state is responsiblef. Government licensing or regulating is insufficient for a

finding of state action, unless there is other government

encouragement or facilitation of unconstitutional conduct.

i. Parts of a public building are public, even whenleased to private actors. Burton v. Wilmington

Parking Authority.

ii. Purely private actors who are merely receivingsome benefit from the state or are subject to a state

regulation is not enough to bring about the

entanglement exception.

iii. Subsidizing activity that the state could notconstitutionally accomplish on its own will bring


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about the entanglement exception. Norwood v.

Harrison.

1. A private, but heavily subsidized, schoolsdismissal of an employee is not a state

action, as employment law is not

iv. Regulations encouraging violation of rights byprivate actors are unconstitutional.

10.Equal Protectiona. The Court rarely found Equal Protection violations in state or local government

actions until Brown v. Bd. of Ed.

b. Equal protection is applied to the federal government through the 5thAmendments Due Process clause.

c. Equal Protection Analysis Framework1. What is the classification?

a.

How is the government distinguishing between people.b. Two ways to know:

i. The face of the law.ii. Law is facially neutral, but there is a discriminatory

impact to the law or discriminatory effects from its

administration.

1. Discriminatory impact alone is insufficientto prove racial or gender classification. Must

prove a discriminatory purpose as well.

2. What is the appropriate level of scrutiny?a. Depending on type of discrimination, different levels of

scrutiny.

b. Discrimination based on race, national origin, or alienstatus is subject to strict scrutiny, where government has

the burden of proof.

i. Government must prove that classification isnecessary to a compelling government purpose.

ii. Strict scrutiny was announced in Korematsu v. US.c. Discrimination based on gender & being a bastard is

subject to intermediate scrutiny, where government has

the burden of proof.

i. A law is upheld if it is substantially related to animportant government purpose. Means used must

have a substantial relationship to the end being

sought.


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d. All other laws are subject to rational basis review, wherethe challenger has the burden of proof.

e. In general, a persons immutable characteristics are thesubject of heightened scrutiny. A court also considers a

groups ability to protect itself through the political process

and history of discrimination.

3. Does the government action meet the level of scrutiny?a. Court evaluates the ends and means of the law. Is the law

underinclusive or overinclusive?

i. Under or overinclusiveness will not necessarilydefeat a law, as long as it meet the required level of

scrutiny.

d. The protection of fundamental rights under equal protectioni. Usually equal protection is used to analyze distinctions. Equal protection

is sometimes used if the government discriminates as to the exercise of afundamental right.

ii. The rational basis test1. The minimal level of scrutiny that all government actions must

meet. The actual practice of rational basis can be a little more strict

that the test would let on. Romer v. Evans.

a. The rational basis test requires that a classification bear arational relationship to an independent legitimate purpose.

A law declaring that in general it shall be more difficult

for one group of citizens than for all others to seek aid from

the government is itself a denial of equal protection of thelaws in the most literal sense.

2. Rational basis analysis:a. Is there a legitimate purpose?

i. State must have a legitimate purpose in passing thelaw. Its simply a conceivable purpose not

forbidden by the Constitution. When the Court is

using its higher rational basis test, it looks to the

laws actual purpose, not just any purpose.

b. Is the law reasonably related to that purpose?i. The requirement for a reasonable relationship

1. Underinclusiveness is what happens whenthe law does not regulate all who are

similarly situated.

a. Laws can be underinclusive becauseit is not a requirement of equal


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protection that all evils of the same

genus be eradicated or none at all.

2. Overinclusiveness is what happens when thelaw covers more people than it needs to in

order to accomplish its purpose.

a. Again, a law can be overinclusive ifit is the best way to right the wrong.

c. A classification that is irrelevant to the purposes of the actwill not survive.

iii. Classification Based on Race & National Origin1. 2 ways to prove existence of a race or national origin

classification:

a. Facially discriminatory.b. Discriminatory purpose and discriminatory impact or

administration. Discriminatory purpose MUST be shown,but it can be inferred from the circumstances.

Discriminatory purpose can only be shown when the

legislature does something because of not in spite of.

i. Civil rights statutes, unlike the Equal Protectionclause, allow violations to be proven on

discriminatory impact alone.

ii. Studies showing disproportionate administration oflaws is not enough to show Equal Protection

violation.

2. Laws that burden races equally are invalid if they rest solely onracial distinctions for no reason.

3. Separate is not equal.4. Remedies

a. Sometimes, the law is simply voided.b. Other times, the court will issue an injunction.c. Desegregation orders are struck down more often these

days.

d. Remedies must eliminate the burdens, not sidestep them.5. Racial classification benefitting minorities (affirmative action)

a. What level of scrutiny should be used?Strict scrutiny.b. What purposes can meet this level of scrutiny?Diversity

in education. A multi-factor test is ok, but not a simple

points test.

c. What techniques of affirmative action can meet this level ofscrutiny?


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iv. Gender Classification1. The Level of Scrutiny

a. Intermediate scrutinyMet when classification serves animportant government objective & means employed are

substantially related to the achievement of these

objectives.

i. Laws based on physical differences are ok.2. Proving the existence of a gender classification.

a. 2 ways:i. On the face of the law.

ii. Discriminatory impact plus discriminatory purpose.3. Military decisions by Congress are given more deference than

other laws.

4. Gender Classification Benefitting Womena.

Gender classifications based on role stereotypes are notallowed.

b. Gender classifications benefitting women designed toremedy past discrimination & differences in opportunity

generally are allowed.

11.Economic Libertiesa. Constitutional rights

i. To enter into and enforce contracts. Article I, 10.ii. Pursue a trade or profession. Due Process clauses.

iii. To acquire, possess & convey property. 5th and 14 Amendments.iv. During the Lochner Era, the Due Process clause was used to justify

freedom of contract instead of the Contracts clause. It was used to strike

down minimum wage and maximum hour laws.

b. Economic Substantive Due Processi. Two kinds of Due Process created by the Due Process clause

1. Procedural2. Substantivesufficiency of justification for government actions.

Government is forced to justify impingement of a fundamental

right or liberty.

a. Used in protecting economic liberties and safeguardingprivacy.

b. Legislature has the right to protect workers from predatoryemployers.

c. Since 1937, no state or federal economic regulation hasbeen struck down on a freedom of contract basis.


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d. Under rational basis, a law need not be logically consistentto be constitutional. It is enough that there is an evil at hand

for correction, and that it might be thought that the

particular legislative measure was a rational way to correct

it.

3. States cannot impose unconstitutionally punitive damages. Statescannot impose penalties designed to affect the tortfeasors

nationwide policy.

a. 3 guideposts in deciding punitive damages.i. Degree of reprehensibility.

ii. Harm or potential harm suffered.iii. Difference between this case and other comparable

cases.

b. Punitive damages must be limited to punishing the harmthe plaintiff suffered.

12.Fundamental Rights Under Due Process and Equal Protectiona. Laws that impinge on fundamental rights are subject to strict scrutiny.

i. Family autonomyii. Procreation

iii. Sexual activity & orientationiv. Travel, voting (15th Amendment), access to courts, medical decision-

making

v. Speech, religionb. Fundamental rights are protected under the Due Process and Equal Protection

clauses.i. If the law denies the right to all, Due Process issue. If law denies the right

to some, Equal Protection issue.

c. Framework for Analyzing Procedural Due Processi. Is there a fundamental right? If yes, strict scrutiny, otherwise, rational

basis.

ii. Is the right infringed? A question of degree.iii. Is there sufficient government justification?iv. Is means sufficiently related to purpose?

d. Constitutional protection for family autonomyi. There is a fundamental right to marry.

ii. There is a fundamental right to custody of ones children. However, theparent must be involved in the kids life, not just related.

iii. There is a fundamental right to keep the family together, not just a nuclearfamily.

e. Constitutional Protection to Reproductive Autonomy


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i. The Right to ProcreateA fundamental right that can only be overcomeby meeting strict scrutiny.

ii. The Right to Use ContraceptivesIn Griswold v. Connecticut, the Courtheld that the right to use contraceptives in a marriage was part of the right

to privacy. Eisenstadt v. Baird broadens the privacy right to individuals,

not just couples, so unmarried people can use contraceptives.

iii. The Right to AbortionRight to privacy allows for abortions. PlannedParenthood v. Casey says that regulating abortions is based on the point of

fetal viability, not the trimester system.

f. Constitutional Protection for Sexual Orientation and Sexual Activityi. The Court has ruled that criminalizing the sexual activity of two

consenting adults in private is unconstitutional.

g. The Right to Votei. Voting is a fundamental right. Poll taxes are unconstitutional.

1.

Laws that impinge on the right to vote must be based on validstates interests with no other efficient way to meet them.

h. Constitutional Protection for a Right to Educationi. Education is not a fundamental right, and is subject only to rational basis

review.

ii. However, laws the deny education to people because of their alien statusare subject to strict scrutiny.

i. Is It a Deprivation of Life, Liberty or Property?i. The process required before the termination of a government benefit varies

with the government function involved & private interest affected. Even

when the private interest is great, there need be a minimal level ofprocedure, not a full trial.

ii. There is a three-factor test:1. Private interest.2. Risk of government error & value of additional procedure.3. Governments interest, including function involved & additional

burdens.

j. Congresss Powers Under the Post-Civil War Amendmentsi. Can Congress regulate private conduct under civil rights provisions?

ii. Under 5 of the 14th Amendment, whats the scope of Congresss power?1. Congress cant create new rights, only pass remedial legislation to

protect a right that the Court has acknowledged.

a. The remedies may be preventative, and broader than therights themselves.

b. Remedies must be


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i. CongruentTailored to the frequency andwidespreadness of the violation.

ii. ProportionalThe remedy cannot go far beyond theviolation.

c. These remedies are subject to a heightened scrutiny by theCourt, as in Morrison, following Seminole Tribe of Fl..

d. For legislation to be ok under 5,i. The legislation must be designed to remedy state

action.

ii. Designed to be congruent and proportional to theconstitutional violation.

13.Analysesa. Broadly (the Munger steps, with stuff added in)

i. Decide whether the particular question involves the Constitutionality ofState/Local or Federal action.

ii. If the action is State/Local:1. Express Constitutional constraints on state power in the Articles of

the Constitution (Article I 10).

2. Express Constitutional constraints on state power in amendmentsto the Constitution (13th, 14th, 15th Amendments).

a. Due Process Analysisi. Is there state action?

1. Is there state action in the acts of privatepeople (by entanglement or public

function)?ii. Is the state impinging on a fundamental right?

3. Express grants of exclusive power to Congress (commerce power,Article I 4).

4. Implied limits derived from grants of power to Congress (dormantcommerce clause).

a. Does state law discriminate a burden on interstatecommerce?

i. Is the law discriminatory on its face?1. If so, there must be a legitimate state interest

that cannot be protected any other way

(strict scrutiny).

ii. If the law is facially neutral, does the law have adiscriminatory purpose or effect?


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iii. Does it create too great a burden on interstatecommerce relative to its benefit to the state, even if

the law is not discriminatory?

iv. Is the law otherwise exempt from the dormantcommerce clause?

1. Market participant rule.2. Congressional approval.3. Is there preemption?

v. Is there a privileges and immunities issue?5. Implied limits derived from federal sovereignty (McCulloch).6. Congressional legislative preemption of state power to regulate

(PG&E v. State Commission).

iii. If the action is Federal:1. An express or implied grant of power in the Articles of the

Constitution (commerce power).a. Is Congress regulating:

i. The use of channels of interstate commerce.Noneconomic activities can be regulated here if

there is a jurisdictional element (regulating guns

that cross state lines, for example).

ii. Can regulate and protect the instrumentalities ofinterstate commerce, or persons or things in

interstate commerce, even if the threat may only

come from intrastate activities

iii. Can regulate activities that substantially affectinterstate commerce.

1. Noneconomic activities that do falloutside of these three things cannot be

regulated by Congress.

2. Noneconomic activities can be shown tobe economic if part of a larger

comprehensive regulatory scheme.

b. Congress may limit Courts appellate jurisdiction, but notoriginal jurisdiction.

2. An express or implied grant of power in the amendments to theConstitution ( 5 of the 14th Amendment).

a. 5 of the 14th AmendmentUsed only when Congress istrying to pass remedial legislation.

i. State action is required.


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ii. Must be addressed to a violation of a right coveredby the 14th Amendment that Congress is trying to

remedyremember level of scrutiny.

1. If the Court uses a rational basis test toanalyze the purported violation that states

are committing, Congresss law is dead.

a. In the ADA case, the Court usedrational basis to look at the

violations. Since disability is not a

protected class (despite the

frequency of disability being an

immutable characteristic), the ADA

was gutted.

2. If the Court applies strict scrutiny to thepurported violation, Congresss law (theremedy) is more likely to survive.

a. In the FMLA case, SCOTUS, seeingthat it was a law to prevent gender

discrimination, used intermediate

scrutiny, and the law survived.

iii. Remedy must be congruent & proportional to theviolation. If it meets this test, Congress is passing

remedial legislation, not trying to create a new right.

3. Internal limits on that grant of power (commerce power, Lopez).a. If the activity is local, and not part of a larger regulatory

scheme, Congress cannot pass the law under the commerce

power.

4. External limits on the grant of power (Article I 9, Bill ofRights, including the 10th Amendment, 11th Amendment).

a. Congress cannot commandeer the state legislature underthe 10th Amendment.

b. Congress cannot pass legislation allowing citizens to suestates in the federal courts except under legislation passed

under 5 of the 14th Amendment.

c. Congress cannot pass laws that would render courtdecisions to be advisory, nor can it overturn verdicts.

Congress cannot direct verdicts or findings of fact.

d. Congress cannot usurp the presidents powers.iv. Justicability analysis

con law outline 1

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