Con Law Outline – American – Wermiel – S2007 – 1

Constitutional Law – American – Wermiel – Spring 2007

Judicial Review

• The Constitution is silent as to whether the Supreme Court and other federal courts have the authority to decide the constitutionality of federal, state, and local laws and executive actions

Marbury v Madison (1803)

• Establishes the authority for judicial review of both federal executive and legislative acts
• Judiciary Act of 1789
  • Gave the SC original jurisdiction to issue writs of mandamus
  • SC says that this Act is unconstitutional because Article III holds that the SC shall only have original jurisdiction for a limited number of cases, and shall have appellate jurisdiction for all other cases
    • Art III gives the SC original jurisdiction in all cases affecting:
      • Ambassadors, other public ministers and consuls, and those in which a state shall be a party
    • You may not change the meaning of the Constitution by passing a statute
• Executive action
  • SC differentiates between discretionary acts of the executive, which will not be reviewable, and those assigned by law, which the courts should afford a wronged individual a remedy
    • The political process is the only remedy for the former

Martin v Hunter’s Lessee (1816)

• Extends judicial review to state court decisions as well

Limits on the Federal Judicial Power

Interpretive Limits

• How should the Constitution be interpreted?
  • Some approaches seek to greatly narrow the judicial power, while others accord judges broad latitude in deciding the meaning on the Constitution
  • Originalists
    • Believe the SC is justified in protecting rights only if they are clearly stated in the text or intended by the framers
  • Non-originalists
    • Believe the SC should have substantial discretion in determining meaning and that it is important for the Constitution to evolve by interpretation and not only by amendment
• Example
  • 2^nd Amendment’s right to bear arms
    • 5^th Circuit (Emerson)
      • Individuals have a right to bear arms and it does not only address the states’ need to arm militias
    • 9^th Circuit (Silveira)
      • The Amendment does not confer an individual right to bear arms but covers the people’s right to maintain a state militia

Justiciability Limits

• Article III section authorizes federal courts to hear several types of cases and controversies
  • Cases arising under the Constitution
  • Federal laws and treaties
  • Cases involving citizens of different states
• In additional to satisfying federal jurisdiction, a party must satisfy the justiciability doctrines
  • Judicially created “gatekeeper functions” that individuals must satisfy, if they are present, in order for their case to by heard

Advisory Opinions

• Federal courts may not issue advisory opinions
  • Some state courts may
• There must be an actual dispute between litigants
  • Only present “flesh and blood” controversies

Ripeness (When)

• A federal court will not hear a case unless there is a present injury or significant threat of imminent injury
  • Seeks to separate matters that are premature for review because the injury is speculative and may never occur from those cases that are appropriate for federal court action
    • Rationale is to protect courts from entangling themselves in abstract disagreements over policy
• Facial challenge
  • In the rare instance that you can show that in no instance may this law be constitutional, the lawsuit may be filed even if it hasn’t affected you yet
• Must look to both the fitness of the issue for judicial decision and the hardship on the parties of withholding court consideration
  • Lawsuits that seek declaratory orders on statutes that have been on the books for years and never enforced may not be ripe

Mootness (When)

• There is not longer an actual controversy between adverse litigants
  • Parties settle, challenged law is repealed, futility of proceedings, etc
• Exception
  • “Wrongs capable of repetition but evading review”
    • If there is an injury likely to reoccur in the future and it is possible that it could happen to the P again
      • If a suit is not flied as a class action, the recurring issue exception applies only if the issue is capable of repetition for the litigating party

Political Question Doctrine (What)- rarely applicable

• Refers to allegations of constitutional violations that federal courts will not adjudicate, and that the SC deems to be inappropriate for judicial review
  • Broad criteria (Baker v Carr)

§         If there is a textually demonstrable constitutional commitment of the issue to a coordinate political branch

§         If there are judicially discoverable and manageable standards for resolving the question

§         If it is impossible for the court to decide the case without an initial policy determination clearly suited for non-judicial discretion

Standing (Who)

• 3 constitutional requirements
  • Injury
    • P must allege that he or she has suffered or immediately will suffer an injury in fact
      • Actual and immediate rather than ideological and speculative
        • The link between the chain of causation and asserted injury must be strong and apparent
        • “Some day” intentions, without description of concrete plans, do not support a finding of actual and immediate injury required
      • Particularized to the P rather than generalized to many citizens, and
      • Concrete rather than ideological
  • Causation
    • P must allege that the injury is fairly traceable to D’s conduct
  • Redressability
    • P must allege that a favorable federal court decision is likely to redress the injury

• 2 prudential requirements
  • P generally may only assert his own rights and cannot raise the claims of third parties not before the court
    • Trade associations may sue on behalf of their members if:
      • The members themselves were injured in fact
      • The interests involved in the litigation must be relevant to the organization’s purposes
      • The claims assets and the relief requested do not require the participation of the individual members
  • P may not sue as a taxpayer who shares a grievance in common with all other caretakers
    • Taxpayer standing has been allowed only to challenge government expenditures as violating the taxing and spending clause
      • It is not sufficient to allege an incidental appropriation of tax funds in the administration of an essentially regulatory statute, and
      • He must show that the challenged enactment exceeds specific constitutional limitations on the taxing and spending power
        • Ex. Federal funds going to parochial schools

The Federal Executive Power

• If the President has explicit constitutional authority for particular conduct, then the issues are strictly whether the President is acting within the scope of the granted power and whether the President is violating some other constitutional provision.
• If there is a statute authorizing the President’s conduct, then the question is whether the law is constitutional.

Inherent Presidential Power

Youngstown Sheet & Tube Co. v. Sawyer (1952)

• If there is no statutory authority, you must look to the Constitution
  • In the text of the Constitution, the President’s power is to see that the laws are faithfully executed, which refutes the idea that he is a lawmaker
    • Can go to Congress and ask for emergency legislation, but cannot himself take legislative action

• Three types of presidential action (Justice Jackson’s concurring opinion – cited frequently by both side of the argument)
  • Acting directly pursuant to Congressional authorization
    • Strongest authority
  • Acting in the absence of Congressional authorization or prohibition
    • Zone of twilight
      • The President and Congress might have concurrent authority in which the distribution is uncertain
  • Acting in a way that is incompatible with the will of Congress
    • Only support is the inherent powers under the Constitution
    • Weakest authority
• “Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress”

The Scope of Inherent Power: The Issue of Executive Privilege

• Executive privilege
  • The ability of the President to keep secret conversations with or memoranda to or from advisors
  • Not mentioned in the Constitution, but claimed by all Presidents and the SC has acknowledged “constitutional underpinnings” for such a conditional, yet not absolute, privilege

Nixon (1974)

• When the ground for asserting executive privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the demands of due process
  • Cheney (2004)
    • In a civil case, executive privilege may outweigh due process
• When the claim of privilege rests on a need to protect military, diplomatic, or sensitive national security secrets, the privilege may outweigh other interests

The Authority of Congress to Increase Executive Power

• Line Item Veto
  • Gave the President the power to “cancel in whole” three categories of provisions in statutes that had been signed into law
    • Any dollar amount of discretionary budget authority
    • Any item of new direct spending
    • And limited tax benefit
• SC declared the Line Item Veto Act unconstitutional
  • The Constitution states that if the President disapproves of a bill, he may only return (veto) it to Congress which can then override such veto by a two-thirds vote in each House
  • If there is to be a new procedure in which the President will play a different role in determining the final text of what may become a law, such change must come not by legislation but through the Amendment procedures set forth in the Constitution

The Constitutional Problems of the Administrative State

The Non-Delegation Doctrine and Its Demise

• Doctrine
  • The principle that Congress cannot delegate its legislative power
• Demise
  • In only two cases, has the SC ever overturned statutes as invalid delegations of legislative power to administrative agencies
    • Congress established no procedural or substantive standards to guide the agency

The Legislative Veto and Its Demise

• Legislative Veto
  • When Congress enacts legislation containing a broad delegation of power to the Executive but then provides for congressional review and veto of executive actions taken pursuant to the grant
• One-House legislative vetoes are unconstitutional because of the bicameralism and presentment clauses of the Constitution
  • Bicameralism
    • No law can take effect without the concurrence of the prescribed majority of the members of both the House and Senate
  • Presentment
    • All legislation must be presented and signed by the President before becoming law

Checking Administrative Power

The Appointment Power - Article II, § 2

• Hierarchy of appointment power
  • Principle officers (along with ambassadors, consuls, SC judges, etc.)
    • Appointed by the President with Senate confirmation
      • Congress can put restrictions on the President’s appointment powers
        • BUT, the restrictions can then be limited by the Presidential duties to faithfully execute the law
  • Inferior officers
    • Congress may grant appointment power to the President alone (without Senate approval), Heads of Departments, or Courts of Law
  • Employees
    • No restrictions

• Criteria
  • Is the officer subordinate or independent?
  • What is the scope and breadth of the officer’s jurisdiction?
  • What is the extent of the duties performed?

Morrison v Olsen (1988)

• Independent counsel was an inferior officer because her appointment was temporary, limited in jurisdiction, and was removable by the Attorney General for cause
• Independent counsel statute was not renewed though

Buckley v Valeo (1976)

• Congress may not have a role in appointing executive officers
  • Principle officers must be appointed by the President
  • Congress can vest appointment power of inferior officers to the President, Heads of Departments, of Courts of Law

The Removal Power

• Other than impeachment of certain officials, the Constitution is silent as to the removal of executive officers, but the principle that has emerged is the President may remove such officers unless removal is limited by statute
  • Congress, by statute, may limit removal both if it is an office where independence from the President is desirable and the statute does not prohibit removal, but limits it to where there is good cause

Myers (1926)

• The President may remove purely executive officials without cause
  • Congress may not fetter with the President’s ability to faithfully execute the laws

Humphrey’s Executor (1935)

• Statute held that FTC commissioners could only be removed for good cause
• This limitation on the President’s removal power was upheld because this position is not purely executive but quasi-legislative and quasi-judicial
  • Illimitable power of removal is not possessed by the President in respect to independent agency officers

Bowsher v Synar (1986)

• Congress can play no direct role in the execution of the laws
• Congress assigned the Comptroller General executive duties, in that he was placed in a position of interpreting and implementing legislation
  • Therefore, Congress may not hold removal power over him since it would in effect make an executive official an agent of Congress

Separation of Powers and Foreign Policy

• Congress has frequently declared that issues concerning foreign policy are non-justiciable political questions-matters for the executive and legislature to resolve without judicial review

Are Foreign Policy and Domestic Affairs Different?

• The President has inherent powers, independent of the Constitution, in the realm of foreign affairs
  • The President is the sole organ of the Federal government in the field of international affairs
    • But, see Jackson’s concurring opinion in Youngstown Steel

War Powers

• Congress-Article I
  • The power to declare war and to raise and fund armies
• President-Article II
  • Commander in Chief

War Powers Resolution

• Area of contention
  • President can introduce troops, but within 90 days the President must inform Congress
    • Congress can then authorize the action or disagree and withdraw the troops
      • We have not gotten to the point where Congress has tried to assert this power
• Most presidents have felt that this is unconstitutional
• SC has denied standing in any claims brought challenging the Act

Hamdi

• The US may detain, for the duration of the hostilities, individuals legitimately determined to be enemy combatants who engaged in armed conflict against the US
• Detainees who are US citizens and seek to challenge their status as an enemy combatant must receive notice of the factual basis for this status and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker
  • Mathews balancing test used to tailor these proceedings
    • Sliding due process scale
• In a moment of emergency, when the government must act with no time for deliberation, the Executive may be able to detain a citizen if there is reason to fear he is an imminent threat to the nation

The Federal Legislative Power

Congress and the States

• A basic principle of American government is that Congress may act only if there is express or implied authority in the Constitution, whereas states may act unless the Constitution prohibits the action
• Two questions to ask in evaluating the constitutionality of a statute
  • Does Congress have the authority under the Constitution to legislate?
  • If so, does the law violate another constitutional provision or doctrine, such as by infringing separation of powers or interfering with individual liberties?

McCulloch v Maryland (1819)

• Does the United States have the authority to create a national bank, and if it does do the states have the authority to tax it?
• Although, among the enumerated powers of government, we do not find the word “bank” or incorporation, we find the great powers to lay and collect taxes; to borrow money; and to regulate commerce
  • Congress must have discretion with respect to means by which the powers are to be carried into execution
    • Art I, § 8 Necessary and Proper Clause
      • Congress has the power to make all laws that are necessary and proper for executing the powers that the Constitution vests in it
• States have no power, by taxation or otherwise, to retard; impede; burden; or in any manner control, the operations of the Constitutional laws enacted by Congress

The Commerce Power

• Article I, § 8 Commerce Clause
  • Congress shall have the power to regulate commerce among the several states

Gibbons v Ogden (1824)

• When Congress has the power to regulate something, it can regulate it to the full extent it can, unless there is some other Constitutional limitation
  • Everyone else must get out of its way
• Very broad interpretation
  • Commerce among the states does not stop at the external boundary line of each state, but may be introduced into the interior
    • But, commerce which is completely internal, and which does not extend to or affect other states, is reserved to the state itself

1890s – 1937: A Limited Federal Commerce Power pre-New Deal

• Beginning in the 1890s, the SC took a very different approach to the Commerce Clause than that expressed in Gibbons v Ogden and interpreted it very narrowly
  • Congress can regulate local activities which directly affect interstate commerce but not those local activities where the effect was only indirect

What is “Commerce”?

EC Knight (1895)

• “Commerce” comes after manufacturing, and is not a part of it
  • Manufacturing is covered by the state’s police powers

Carter Coal (1936)

• Minimum wage and maximum rate statute deemed unconstitutional
  • The incidents leading up to and culminating in the mining of coal do not constitute intercourse for the purposes of trade and therefore are not subject to Federal regulation

What Does “Among the States” Mean?

• During this period, the SC did not adopt a consistent approach to defining what constituted commerce “among the states”

Shreveport Rate Cases (1914) - broad close and substantial relation approach

• Congress has the right to control the operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate
  • Wherever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress that controls
  • See NLRB below for similar approach

Stafford (1922) - broad stream of commerce approach

• SC holds that Congress can prescribe stockyard standards because they are but a throat through which current flows, and the transactions which occur therein are only incident to this current from one state to another

Schechter Poultry (1935) - narrow direct effect on commerce approach

• Congress does not have the power to regulate where the effect of intrastate transactions upon interstate commerce is merely indirect
  • Congress can only regulate intrastate activities if there is a direct effect
    • Slaughterhouses where poultry comes in from out of state, but once it gets on their property stays local, do not have a direct effect on interstate commerce

Does the 10^th Amendment Limit Congressional Power?

• “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”
  • Two different interpretations
    • “But a truism”
      • This is not a separate constraint on Congress, but rather is simply a reminder that Congress may only legislate if it has authority under the Constitution
    • Protector of state sovereignty from federal intrusion

Hamer v Dagenhart (1918) – overruled by Darby

• Child labor laws are not within the Federal powers because they relate to production, and production of articles intended for interstate commerce is a matter of local concern

1937 – 1990s: A Broad Federal Commerce Power

• From 1937 to 1995, not one Federal law has been declared unconstitutional as exceeding the scope of Congress’s commerce power

• Three categories of activities have been able to regulate under the Commerce Clause
  • The channels of interstate commerce
    • Roads, waterways, airways, etc
  • Instrumentalities of interstate commerce
    • Cares, boats, planes, etc
  • Activities affecting interstate commerce

NLRB v Jones (1937)

• Federal statute regulating fair labor standards
• Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate, Congress may regulate them
  • It is the effect upon commerce, not the source of the injury
    • BUT, the SC still believes that some point along the way the manufacturing of certain things is not interstate commerce

US v Darby (1941)

• Does Congress have the right to prohibit the shipment in interstate commerce of products manufactured by employees whose wages are less than a prescribed minimum?
  • The power of Congress over interstate commerce is not confined to the regulation of commerce among the states
    • This power extends to those local intrastate activities which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end
• Congress’s motive and judgment is not judicially reviewable so long as it is regulating commerce
  • Congress basically established an unwritten Federal police power rooted in its commerce power

Wickard v Filburn (1942) - modern standard to apply – but consider US v Lopez (1995)

• Local farmer was producing wheat, most of which was for personal use
• Even if an activity is local and not regarded as commerce, it may still, whatever its nature, be regulated by Congress, if looked at cumulatively throughout the country, it has a substantial economic effect on interstate commerce

What Does “Among the States” Mean?

Heart of Atlanta Motel (1964)

• Motel on a major highway that served interstate clientele barred blacks
• There was evidence that uncertainty stemming from racial discrimination had the effect of discouraging travel on the part of a substantial portion of the country
  • If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze

§         How obstructions to interstate commerce may be removed is within the sound and exclusive direction of Congress

• The means chosen must only be reasonably adapted to the end permitted by the Constitution
  • Congress’s motive is not reviewable so long as it is regulating commerce

Katzenbach v McClung (1964)

• Restaurant refused to serve blacks
• Even if this one restaurant affects interstate commerce in a trivial way, the cumulative effect of what this restaurant and other restaurants have on interstate commerce makes it far from trivial and may be federally regulated

Does the 10^th Amendment Limit Congressional Power?

National League of Cities v Usery (1976) - overruled by Garcia

• Federal minimum wage statute that applied to state (public) employees
  • SC says that this is within the scope of the Commerce Clause, but the 10^th Amendment limits Congress’s ability to regulate activities that the states have traditionally controlled
    • Accepts the protector view

Garcia v SAMTA (1985) - overruling Usery

• Rejects the rule of state immunity from Federal regulation that turns on a judicial appraisal of whether a particular governmental function is “traditional”
  • Federal regulation addressing minimum wages of public employees does not violate the 10^th Amendment or destroy state sovereignty
    • Accepts the truism view

1990s – ?: Narrowing of the Commerce Clause and Revival of the 10^th Amendment as a Restraint on Congress

• In 1995, for the first time in 60 years, the SC found that a Federal statute exceeded Congress’s Commerce Clause authority

US v Lopez (1995)

• Federal statute, enacted under the Commerce Clause, making it illegal to carry a gun in a school zone
• SC holds that the statute neither regulates an economic activity nor contains a requirement that the possession be connected in any way to interstate commerce
  • The language of the statute must particularly address interstate commerce and cannot just rely on Congress’s authority under the Commerce Clause

What Does “Among the States” Mean?

US v Morrison

• Federal statute, enacted under the Commerce Clause, granting Federal damages to victims of gender motivated violence
• Congress may not regulate non-economic conduct based solely on the conduct’s aggregate effect on interstate commerce

Reich

• Federal statute, enacted under the Commerce Clause, prohibiting the local cultivation and use of marijuana
  • Production of a commodity, be it wheat as in Wickard or marijuana here, considered cumulatively, has a substantial effect on supply and demand in the national market and can therefore be federally regulated
    • These activities are clearly economic

Does the 10^th Amendment Limit Congressional Power?

• The first indication of the revival of the 10^th Amendment occurred in 1991 and was strengthened in NY v US and Printz
• SC ruled that a Federal statute that imposes a substantial burden on a state government will be upheld only if Congress clearly indicated that it wanted it to apply

NY v US (1992) - invalidated the Federal law

• While Congress has substantial power to encourage the states, via incentives; access; etc., to legislate according to its will in state matters, the Constitution does not confer upon Congress the ability to compel the states
• Congress may not require the states to govern according to Congress’s instructions or use the states as implements of Federal regulation
  • Congress may pass laws to preempt state legislation contrary to Federal interests, but cannot pass laws that in effect require states to enact or administer them
    • See Preemption Power section below

Printz (1997) - invalidated the Federal law

• Federal statute required state and local law enforcement officers to conduct background checks on prospective handgun purchasers
• Congress may neither issue directives requiring the states to address particular problems nor command the states’ officers to administer or enforce a Federal statute

Reno v Condon (2000) - upheld the Federal law

• Federal statute that prohibited state DMVs and private individuals from releasing personal information to individuals and businesses
  • This statute regulates the universe of entities that participate as suppliers to the market for personal information
    • It does not require the states in their sovereign capacity to regulate their own citizens, enact any laws or regulations, or assist in the enforcement of Federal statutes

The Taxing and Spending Power

• Article I, § 8
  • Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but they must be uniform throughout the United States
• At the moment, Congress can essentially do a number of things though the spending power that it may not do through the Commerce Clause
  • Although many commentators have speculated that the recent SC will limit Congress’s spending power, a broad scope has been maintained

For What Purposes May Congress Tax and Spend?

US v Butler (1936)

• Congress has the ability to impose taxes to provide for the general welfare independent of its other powers
  • SC held that Federal spending is not simply a means for accomplishing Congress’s enumerated powers, it is an independent source of Federal power (Hamilton’s view)
    • As opposed to be just a means for furthering enumerated powers (Madison’s view)

Fullilove (1980)

• Congress may further broad policy objectives by conditioning Federal grants upon compliance with statutory and administrative directives and may use its spending power to induce governments and private parties to cooperate voluntarily with Federal policy

Conditions on Grants to State Governments

• Congress is free to spend and impose reasonable conditions on state and local grants so long as the conditions are:
  • Expressly and unambiguously stated,
    • States must know the consequences of their choosing to take Federal funds
  • Have some relationship to the spending program, and
    • US v Dole
      • Federal statute withholding highway funds to states in which it is legal to drink under 21
        • Condition was held to be related to the purpose of allocating highway funds-safe interstate travel
  • Are not coercive
    • If the states would lose a large percentage of funding

Congress’s Powers under the Post-Civil War Amendments (13^th -15^th)

• 13th Amendment
  • Prohibits slavery and involuntary servitude, except as punishment for a crime

§         Provides that Congress shall have power to enforce this article by appropriate legislation

• It is well-established that Congress may prohibit private racial discrimination

• 14^th Amendment
  • Provides that all persons born or naturalized in the US are citizens and that no state can abridge the privileges or immunities or such citizens; nor may states deprive any person of life, liberty, or property without due process of law or deny any person the equal protection of the laws

§         § 5 provides that Congress shall have power to enforce this article by appropriate legislation

• Congress has made it clear that Congress’s authority under the 14^th is only over action taken by state and local governments and their officials, and does not extend to regulation of private behavior

• 15^th Amendment
  • The right of citizens of the US to vote shall not be denied or abridged by the US or by any state on account of race, color, or previous servitude

§         Provides that Congress shall have power to enforce this article by appropriate legislation

What is the Scope of Congress’s Power?

Katzenbach (1966)

• Voting Rights Act that superseded state laws was upheld under § 5 of the 14^th

City of Bourne (1997)

• Federal legislation which deters or remedies constitutional violations can fall within the sweep of Congress’s enforcement power even if in the process it prohibits conduct which is not itself unconstitutional
  • BUT, if the statute is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior, Congress is exceeding its § 5 authority

Congress’s Power to Authorize Suits against State Governments

Background on the 11^th Amendment and State Sovereign Immunity

• 11th Amendment
  • The judicial power of the US shall not extend to any suit commenced or prosecuted against one of the states by citizens of another state, or by citizens of any foreign state
    • States may therefore not be sued in Federal court, even for egregious violations of Federal rights

Hans (1890)

• • SC held that the 11^th also bars suits against a state by its own citizens

• Three ways around the 11^th to hold state governments accountable in Federal court
  • State officers may by sued in Federal for injunctive relief or for damages to be paid by them (not the state treasury)
  • States may waive their 11^th immunity
  • Congress may abrogate a state’s 11^th immunity if: :
    • It makes its intention to abrogate unequivocally clear in the language of the statute, and
    • Acts pursuant to a valid exercise of its power under § 5 of the 14^th
      • If a law is within that authority, states can be sued in Federal court for violating it
      • If a law is not under that authority, states cannot be sued in Federal court

Cases Denying Congress Authority to Act under § 5 to Authorize Suits against State Governments

Kimel (2000) and Garrett (2001)

• Congress enacted statutes under § 5 giving private citizens a remedy in Federal court when a state agency discriminates in hiring someone based on age or a physical disability
• SC holds that Congress made its intention to abrogate the 11^th clear in both, but exceeds its authority under § 5
  • In order for Congress to authorize private individuals to recover money damages against the states, there must be a pattern or practice of discrimination by the states which violates the 14^th, and the remedy imposed by Congress must be rationally related to a legitimate government purpose
    • Neither age nor disability was determined to be a suspect classification covered by the 14^th Amendment and therefore was not given heightened scrutiny
      • These types of discrimination pass muster if there is a rational relationship to a legitimate government purpose

Nevada HR Dpt. (2003)

• Congress enacted a statute under § 5 giving private citizens different remedies based on gender
• Unlike age and physical disability in the above cases, the SC has held that gender-based classifications are subject to heightened scrutiny
  • Intermediate scrutiny is applied to gender-based classifications

The Preemption Power

• Art VI Supremacy Clause
  • The Constitution, and laws made pursuant to it, are the supreme law of the law
  • If there is a conflict between Federal and state law, the Federal law controls and the state law is invalidated

• Express preemption
  • Where a Federal law expressly preempts state or local law
• Implied preemption
  • Field preemption
    • Where the scheme of Federal law and regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it
  • Conflict preemption
    • Where compliance with both Federal and state regulations is a physical impossibility
  • State law impedes the achievement of a Federal statute
    • Where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress

Individual Rights and Liberties

• Limited government in the US is achieved not only through the constitutional allocation of powers but also through the recognition of rights and liberties

The Application of the Bill of Rights to the States

• The Bill of Rights is the first ten Amendments to the Constitution
  • The first eight Amendments detail protection of individual rights
    • On their face, these Amendments do not look as though they were intended to apply to state and local governments and limit their power to legislate
      • Before the Civil War, they were not so applied

The Debate over Incorporation of the 14^th Amendment

Slaughter-House Cases (1873)

• State legislature granted a monopoly in the livestock slaughter business to one company so long as it allowed any person to slaughter there for a fixed fee
• Individual butchers sues saying the state legislature was denying them of some of their 14^th Amendment rights (in addition to other rights under the Constitution)
• SC narrowly interpreted the:
  • Due Process Clause

§         Interpretation quickly overruled

o       Equal Protection Clause

§         Interpretation lasted until well into the 20^th century

o       Privileges and Immunities (of citizenship) Clause

§         Interpretation lasted until very recently

• Once the SC found that the Due Process Clause protected fundamental rights from state infringement, there was a major debate about which rights are safeguarded
  • Total incorporationists
    • All of the provisions in the Bill of Rights should be covered by the Due Process Clause
  • Selective incorporationists
    • Only some of the provisions in the Bill of Rights addressed sufficiently fundamental rights and should apply to state and local governments
• Today only five provisions within the Bill of Rights have never been incorporated:
  • Right to bear arms
  • Right to quarter soldiers
  • Right to a grand jury indictment
  • Right to a jury trial in civil cases
  • Prohibition of excessive fines

The Application of the Bill of Rights and the Constitution to Private Action

• The Bill of Rights only applies to government action, and private conduct generally does not have to comply with the Constitution
  • There are two exceptions to this general rule

The Public Functions Exception

Jackson (1974)

• The Constitution applies if there is a sufficiently close nexus between the state and the challenged action so that the action of the latter may fairly treated as that of the state itself
  • There mere fact that a business is subject to extensive state regulation does not by itself convert its action into that of the state
• Must ask whether the challenged action has been traditionally and exclusively done by the government

The Entanglement Exception

• The 14^th applies if the state government affirmatively authorizes, encourages, or facilitates private conduct that violates the Constitution
  • Either the government must cease its involvement with the private actor or the private entity must comply with the Constitution

Shelley (1948)

• State court enforcement of private restrictive covenants that did not allow the sale of private property to blacks was deemed to be state action
  • Private restrictive covenants themselves do not invoke the 14^th, but state enforcement of the agreements does

Economic Substantive Due Process – Rational Basis Review

• 14^th Amendment provides that the state may not take a person’s property (life or liberty) without due process of law
  • Substantive due process
    • Whether the government has an adequate reason for taking away a person’s life, liberty, or property
    • Has been used in primarily two areas
      • Protecting economic liberties from government interference
      • Safeguarding privacy from government interference
  • Procedural due process
    • Whether the government follows adequate procedures and allows a person to defend himself when taking away their life, liberty, or property

Pre-Lochner Era (Before 1905)

• SC rejected the idea that the Due Process Clause could be used to invalidate government economic regulations

The Lochner Era (1905-1937)

Lochner v NY (1905)

• State law that set maximum hours for bakers
  • SC holds that the state legislature is trying to pass laws under the guise of its police power, but was instead interfering with an individuals’ right to make contracts
• Established principles followed until 1937
  • Freedom of contract was a right protected by the Due Process Clause of the 5^th and 14^th Amendments
  • The government could interfere with freedom of contract only to serve a valid police purpose such as protecting the public health, safety, or morals
    • In this era maximum hours, but not minimum wage, legislation for women was deemed an appropriate use of a state’s police power
  • The judiciary should carefully scrutinize legislation to ensure that it truly served such a purpose
    • Very limited deference to legislative judgment during the era

Nebbia v NY (1934)

• Beginning of the end of the Lochner era
• In the absence of other constitutional restrictions, a state is free to adopt whatever economic policy it reasonably deems appropriate to promote the public welfare and to enforce that policy by legislation adapted to its purpose
  • The judiciary is without authority either to declare such policy, or, when it is declared by the legislature, override it
    • If the laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of the Due Process Clause are satisfied

Post-Lochner Era

• The Depression created a widespread perception that government economic regulations were essential
• Since 1937, the SC has used the rational basis test to review economic regulations, and not one state or federal economic regulation has been found unconstitutional as infringing freedom of contract under the Due Process Clause
  • One exception may be found in BMW (1996), which held that a state punitive damage award violated the substantive due process
    • Factors courts must look to:
      • Degree of reprehensibility of D’s conduct
      • Ratio of compensatory damages to punitive damages
        • More than 4:1 might be close to the line
      • Sanctions for comparable misconduct

West Coast Hotel (1937) - overruled Adkins

• SC upholds a state law that required a minimum wage for women
• State legislatures have the right to consider that its minimum wage requirements are an appropriate way to promote the public welfare
  • Such a law cannot be seen as arbitrary or discriminatory

Carolene Products (1938) ­- initial mention of heightened scrutiny

• When reviewing economic regulations, the SC shall use the rational basis test
  • Footnote 4
    • There may be a narrower scope when considering legislation which appears on its face to:
      • Be prohibited by the Bill of Rights
      • Discriminate against discrete and insular minorities
      • Interfere with the political process
        • Voting, organizing, disseminating information

Individual Rights under the Due Process Clause

• Generally, if a law denies the right to everyone then the Due Process Clause would be the best grounds for analysis; but if a law denies a right to some, while allowing it to others, the discrimination can be challenged as offending the Equal Protection or Due Process Clauses

Rights Held to be “Fundamental”

• SC has held that some liberties are so important that they are deemed to be fundamental rights and that the government generally cannot take action to infringe them unless the government action is necessary to achieve a compelling purpose (strict scrutiny)

FRAMEWORK

• Is there a fundamental right?
  • No exact test; provokes a judiciary debate about its proper role in classifying the importance of each right

• If it is a fundamental right, has it been infringed?
  • Must pass strict scrutiny analysis
    • The government must present a compelling purpose to justify such infringement

• If it has been infringed, is the means sufficiently related to the purpose?
  • Must pass strict scrutiny
    • The government must show that the law is necessary to achieve the compelling purpose
      • Must show that no other less-intrusive alternative can work

Rights Relating to Family Autonomy

• Right to marry
• Right to custody of one’s children
  • SC has held that the tradition is protecting the legal family and not other forms of family relationships

• Right to keep the family together
  • SC has held that this includes the extended family
  • SC has held that individuals must be related by blood to be considered a family
• Right of parents to control the upbringing of their children
  • SC has held that it is the natural duty of the parent to give their child an education suitable to their station in life
    • Parents should be able to send their children to whatever school they feel is best

Rights Protecting Reproductive Autonomy

• Right to procreate
  • Government-imposed involuntary sterilization must meet strict scrutiny

• Right to purchase and use contraceptives
  • SC has held that this is covered by the implied right to privacy, which is found in the shadows of the 1^st, 3^rd, 4^th, 5^th, 9^th, and 14^th Amendments

Right to privacy

• Individuals have the right to be free from unwarranted governmental intrusion into matters fundamentally a person’s decision whether to bear or beget a child

Right to Abortion

Roe v Wade (1973)

• This implied right of privacy, wherever it be found, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy
  • This right is not absolute though, but must be considered in light of the state’s interest in regulation
    • Given the fundamental character of the right involved, state limitations can be justified only by meeting strict scrutiny
      • In applying strict scrutiny here, the SC dismissed the claim that the right’s of the fetus should be included in the balance
• SC then holds that there are three stages of pregnancy
  • 1^st trimester
    • States have no interest in this stage, and therefore may not regulate beyond ensuring that the woman consults with her doctor
  • 2^nd trimester
    • States do have an interest in protecting the woman here, and can therefore regulate for this reason
  • 3^rd trimester
    • After viability, the states have an interest in protecting the woman and the fetus here, and can therefore regulate for these reasons

Planned Parenthood v Casey (1992)

• SC reaffirms the essential holding in Roe v Wade, and states three key determinations:
  • A woman has the right (no mention of “fundamental” right, or “right to privacy”) to choose to have an abortion before viability and to obtain it without an undue burden presented from the state
    • States, therefore, can regulate abortions performed prior to viability so long as there is not an undue burden on access to abortions
      • SC overrules the use of strict scrutiny analysis called for in Roe v Wade
        • Under the undue burden analysis, states are permitted to enact persuasive measures which favor childbirth over abortion
  • States have the power to restrict abortions after viability so long as the state regulation provides an exception to those pregnancies which endanger a woman’s life of health
  • States have a legitimate interest from the outset of pregnancy in protecting the health of the woman and the life of the fetus that may become a child
• SC, therefore, overrules the trimester distinctions used in Roe v Wade in addition to the use of the strict scrutiny standard for evaluating state laws concerning abortion

Government Regulation of Abortions

Stenberg (2000)

• SC holds a state law banning partial birth abortions unconstitutional because:
  • The law lacks any exception for the preservation of the woman’s health
  • The law imposes an undue burden on the woman’s ability to choose the most commonly performed procedure for pre-viability second trimester abortions, thereby unduly burdening the right to choose abortion itself

Federal Ban of Partial Birth Abortions Act of 2003 (upheld this month)

• Congress is entitled to reach its own findings-findings that the SC then accords great deference-and to enact legislation based upon these findings so long as it seeks to pursue a legitimate interest that is within the scope of the Constitution and draws reasonable inferences based upon substantial evidence
  • Congress used its authority to base its ban of partial birth abortions on substantial evidence showing these procedures were never medically necessary and actually harmed the woman

Government Restrictions on Funds and Facilities for Abortions

• SC has consistently held that the government is not constitutionally required to subsidize abortions even if it is paying for childbirth

Harris (1980)

• SC upholds state laws that deny public funding for medically necessary abortions except where they are necessary to save the life of the woman, or for rape and incest

Spousal and Parental Notice and Consent Requirements

Danforth (1976)

• SC has held that the government may not require either spousal consent or spousal notification as a prerequisite for a married woman’s obtaining an abortion

Hodgson (1990)

• SC has held that a state may require parental notice and/or consent for an unmarried minor’s abortion, but only if it:
  • Creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding that:
    • It would be in the minor’s best interest, or
    • The minor is mature enough to decide for herself

Constitutional Protection for Medical Care Decisions

Right to Refuse Treatment

• Generally, there is a right competent individuals have to refuse unwanted medical treatment, but it is certainly not absolute and can be regulated by the state

Cruzan (1990)

• Without using strict scrutiny, the SC upheld a state law stating that clear and convincing evidence of a patient’s intent to have life-sustaining treatment withdrawn was required in order to do so
  • This state’s standard could apply in proceedings where a guardian seeks to take the patient off life support as well

Right to Physician-Assisted Suicide

Washington v Glucksberg (1997)

• There is not a fundamental right to physician-assisted suicide and state laws can therefore outlaw it if they have a rational basis

Vacco v Quill (1997)

• SC holds that it is reasonable for a state to differentiate between a patient refusing life sustaining treatment and physician-assisted suicide and this does not violate the Equal Protection Clause
  • When there are two different situations, it may be reasonable for a state to treat them differently

Constitutional Protection for Sexual Orientation and Activity

Bowers v Hardwick (1986) - overruled by Lawrence

• SC upholds a state law criminalizing sodomy
  • In doing so, the SC states that the right to privacy does not protect a fundamental right to engage in private consensual homosexual activity

Lawrence v Texas (2003)

• SC deems a state law criminalizing homosexual sodomy unconstitutional
  • Overrules Bowers, and holds that there is a liberty interests adults have in engaging in private conduct covered by the Due Process Clause

Individual Rights under the Equal Protection Clause

• The 14^th Amendment guarantees that no state shall make or enforce any law denying to any person the equal protection of the laws
• Scope
  • Like the Due Process Clause, the Equal Protection Clause of the 14^th Amendment only regulates state action
  • Even though there is not a specific Equal Protection Clause in the 5^th Amendment, the SC interprets the 5^th Amendment’s Due Process Clause as encompassing equal protection and therefore applies it to Federal government action

• Overview
  • The issue in all equal protection cases is whether the government can identify a sufficiently important objective for its discrimination and whether the means it uses are sufficiently tailored

FRAMEWORK

• What is the classification?
  • Where the distinction among groups of people exists on the face of the statute
  • Where the statute is facially neutral, but there is a discriminatory impact to the statute or discriminatory effects from its administration
    • If a statute is facially neutral, demonstrating a race or gender classification requires proof that there is a discriminatory purpose behind the law

• What is the appropriate level of scrutiny?
  • Strict scrutiny
    • Applies to discrimination based on:
      • Race, national origin, and alien status
    • Standard
      • A law is upheld if the government proves that it is necessary to achieve a compelling government purpose
        • The means must be the least restrictive alternative to achieving the purpose
  • Intermediate scrutiny
    • Applies to discrimination based on:
      • Gender or non-marital children
    • Standard
      • A law is upheld if the government proves that it is substantially related to an important government purpose
        • The means do not need to be necessary, but must have a substantial relationship to the end being sought
  • Rational basis
    • Applies to discrimination based on:
      • Anything else
    • Standard
      • A law is upheld unless a challenger can show that it is not rationally related to a legitimate government purpose
        • The purpose need not be compelling or important, just something that the government legitimately can do
          • The means need only be a rational alternative to accomplishing the end

• Does the government action meet the level of scrutiny?
  • Depends on the level of scrutiny for how narrow or broad the scope of the law is allowed to be
    • Overinclusiveness
      • If it applies to those who need not be included in order for the government to achieve its purpose
      • Legislators may have a hard time identifying any bright line marking the point at which individuals should not be covered
    • Underinclusiveness
      • It does not apply to other individuals who are similar to those to whom the law applies
      • But, the SC has held that a law does not need to address the entire problem at once, and the legislature can take it a step at a time
        • There is no requirement of equal protection that all evils of the same genus be eradicated or none at all
  • Virtually all laws are either or both to some extent
    • Under the rational basis test, the SC will allow laws that are both significantly under and over inclusive
      • A classification having some reasonable basis does not offend equal protection merely because it is not made with mathematical nicety or because in practice it results in some inequality

The Rational Basis Test

• Since 1937, the SC has made it clear that it will defer to government economic and social regulations unless they infringe on a fundamental right or discriminate against a discrete and insular group that warrants heightened judicial protection

Does the Law Have a Legitimate Purpose?

• Virtually any legislative goal that is not forbidden by the Constitution will be deemed sufficient to meet the rational basis test

Romer v Evans (1996)

• Using rational basis, the SC holds that a state statute banning all government action designed to protect homosexuals from discrimination is purely a status-based enactment divorced from any factual context from which the SC could discern a relationship to a legitimate state interest

FCC v Beech (1993)

• Any conceivable legislative purpose is sufficient and those attacking the rationality of the legislative classification have the burden of negating every conceivable basis which might support it
  • The actual purpose behind a law is irrelevant and the law must upheld if any state of facts reasonably may be conceived to justify its discrimination

The Reasonable Relationship Requirement

• Under the rational basis test, laws will be upheld unless the government action is clearly wrong, a display of arbitrary power, and not an exercise of judgment
  • As a result, under the rational basis test, the SC will allow laws that are both significantly under and over inclusive
• Rational basis “with teeth”
  • While claiming to be using rational basis review, the SC has occasionally been more combing
  • Moreno (1972)
    • Amendment to the Food Stamp Act excluding from participation in the food stamp program any household containing an individual who is unrelated to any other member in the household
    • SC holds that this change is clearly irrelevant to the stated purpose of the Act which was to mitigate fraud involving food stamps

Classifications Based on Race

Dred Scott (1856)

• In the Missouri Compromise, Congress admitted Missouri as a slave state, but prohibited slavery north of a certain boundary line
• SC held that the Missouri Compromise was unconstitutional and broadly held that slaves were property and not US citizens
  • Since slaves were not US citizens, they could not sue in a federal court

The Emergence of Strict Scrutiny as the Test

• It is now clearly established that racial classifications, whether disadvantaging or helping minorities, will be allowed only if the government can meet the heavy burden of demonstrating that the discrimination is necessary to achieve a compelling purpose and it is the most narrowly tailored means of achieving such purpose

Classifications on the Face of the Law

Classifications that Disadvantage Minorities

• The rulings affirming the constitutionality of the Japanese evacuations during WWII, is the only situation in which the SC expressly upheld, under equal protection, racial classifications burdening minorities

Korematsu (1944)

• SC announces that it will use the strict scrutiny standard for evaluating laws that classify individuals based on race or national origin
  • It is not clear whether the SC actually applies the new standard in this case
• SC holds that exclusion from a threatened area has a definite relationship to the prevention of espionage and that the military was justified in its assertion that it was impossible to separate the loyal from the disloyal

Classifications Burdening Both Whites and Minorities

• A second type of racial classification that can exist on the face of the law is government action that burdens both whites and minorities

Loving v Virginia (1967)

• SC recognized that racial classifications are impermissible under the Equal Protection Clause because they are based on assumptions that blacks are inferior to whites
  • There is no legitimate purpose independent of racial discrimination which justifies such classifications

Palmore (1984)

• While the objective of granting custody based on the best interests of the child represents a substantial state interest, the effects of racial prejudice and the reality of private bias and possible injury do not justify racial classifications

The Doctrine of Separate but Equal

• A third type of racial classification that can exist on the face of the law is a requirement of racial separation

Plessy v Ferguson (1896)

• SC upheld a state statute that provided for separate but equal railway cars
• The object of the 14^th Amendment was to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions
  • Laws permitting, and even requiring, their separation in places where they are likely to be brought into contact, do not necessarily imply the inferiority of either race to the other

Attack on Separate but Equal

• In several cases between 1938 and 1954, the SC found that states denied equal protection by failing to provide educational opportunities for blacks that were available to white
  • SC did not question the doctrine of separate but equal, but rather held that the lack of opportunities for blacks was unconstitutional

Brown v Board of Education (1954)

• Segregation of the schools solely on the basis of race, even when the facilities and other tangible factors may be equal, violates the Equal Protection Clause
  • This generates a feeling of inferior status in the community
• The rejection of state sanctioned racial segregation was summarily extended to other public facilities

Brown II (1955)

• SC held that states were to desegregate their school districts at the earliest practical date, with prompt and reasonable compliance
• This didn’t do anything

Civil Rights Act of 1964

• Title VI prohibited discrimination by schools receiving federal funds and gave the Justice Department the authority to intervene

Swann v Charlotte-Mecklenburg (1971)

• If school authorities fail in their affirmative obligations, judicial authority may be invoked; this authority enters only when local authorities default
  • Once a right has been shown to be violated, the scope of a district court’s equitable powers is broad and is determined by the nature and extent of the violation

§         A reasonable amount of busing where needed to remedy past discrimination was approved

Milliken (1974)

• A federal court may not impose a multidistrict, area-wide remedy to a single district segregation problem absent any finding that the other included school districts have failed to operate unitary school systems within their districts

Dowell (1991)

• No more court orders from the federal courts

Facially Neutral Laws with a Discriminatory Impact

Proof of a Discriminatory Purpose Required

• Some laws that are facially neutral are administered in a manner that discriminates against minorities or has a disproportionate impact against them
• SC holds that there must be proof of a discriminatory purpose for such laws to be treated as racial or national origin classifications

Washington v Davis (1976)

• If a neutral statute has a disproportionate impact, rational basis will still be used unless it is also shown that there was a discriminatory purpose
  • If both impact and purpose are shown, strict scrutiny will be used
    • Impact may be evidence of a discriminatory purpose, but standing alone it will not trigger strict scrutiny

Village of Arlington Heights (1977)

• Racial discrimination need not be the sole or even the primary purpose for the law, but once it is shown to have been a substantial or motivating factor behind the enactment of the law, the burden shifts to the law’s defenders to demonstrate that the law would have been enacted without this factor
  • Factors to look at
    • Clear patterns, unexplainable on grounds besides race
    • Historical background of the decision
    • Legislative and administrative history
    • Departures from normal procedural sequence

• The fact that the government adopts a policy knowing discrimination will result does not by itself satisfy the purpose requirement

Affirmative Action

Affirmative Action in School Admissions

Bakke (1978)

• SC, without yet agreeing on which standard of scrutiny should be applied, ruled that public colleges may use race as one factor in admissions decisions to benefit minorities but invalidated the use of a set-aside method

Grutter and Gratz v Bollinger (2003)

• Student body diversity is a compelling state interest that can justify the use of race in public college admissions but the means but be narrowly tailored
  • Race may not be a decisive factor
    • It can be used as a plus factor so long as members of the non-favored racial groups are not unduly harmed
    • It must also be limited in time

The Emergence of Strict Scrutiny as the Test

Croson (1989)

• The standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification
  • Strict scrutiny should therefore be applied to all remedial racial classifications
• Elimination for a government’s passive support for private racial discrimination in a certain area would be a compelling government interest
  • However, past societal discrimination alone may not serve as the basis for rigid racial preferences without evidence that the city previously systematically excluded minorities from the field of work in which affirmative action is now trying to be used
    • Since no compelling purpose was shown here, the SC did not rule on whether the means were sufficiently narrowly tailored
      • SC did state that racially neutral means should always be considered and used when possible

Adarand (1995)

• SC extends its holding in Croson and holds that all racial classifications, remedial or benign, must be analyzed by a reviewing court under strict scrutiny

Classifications Based on Gender

The Emergence of Intermediate Scrutiny as the Test

Craig v Boren (1976)

• State statute that allowed women to buy beer at 18, yet men could not until 21
• While the state had an important interest in traffic safety, statistics offered by the state on the incidence of drunk driving among males and females did not establish that the gender classification was substantially related to that objective
  • Though statistics such as these could be used, but when the disparity in numbers is small, they may not form the basis for such a classification

US v Virginia (1996)

• US sued VMI alleging that its male only admissions policy violated equal protection
  • As a consequence of this case, the intermediate standard of review may be applied more rigorously in the past in light of the “exceedingly persuasive justification” the SC called for in reviewing statutes that classify based on gender

Gender Classifications Based on Role Stereotypes

• SC has invalidated laws that benefit women and disadvantage men when the SC perceives that the law is based on stereotypical assumptions about gender roles

Orr (1979)

• Remedying past discrimination against women in marriage is invariably held to be an important interest, but the a law that makes husbands pay alimony but not wives is not substantially related to this compensatory end
  • The state’s compensatory purpose here would be equally well served by a gender neutral classification as one that classifies based on gender and carries with it stereotypical baggage
• Similarly, the SC has on several occasions, declared unconstitutional; laws that automatically allow women economic benefits, but permitted men the same benefits only if they proved dependence on their wives

• In some cases, however, the SC has upheld laws benefiting women even though they seem to be based on stereotypes

Michael M (1981)

• SC upholds a state statutory rape law that makes men alone criminally liable for the act of sexual intercourse challenged on equal protection grounds
• A gender classification which realistically reflects the fact that the sexes are not similarly situated in certain circumstances will be upheld
  • Women suffer disproportionately from the consequences of teenage pregnancy
    • The state has an important purpose in preventing such pregnancy
    • Significantly less women would come forward to report such sexual activity if they were also punished under the statute

Rostker (1981)

• Congress reinstituted the draft in order to have a pool of people available to be drafted, but only required men to register
  • The purpose of the draft is to have combat ready forces

Classifications Based on Alienage

• Generally it can be said that when a state awards public benefits to citizens, but denies them to aliens, such classification is inherently suspect and subject to strict scrutiny
  • However, there is a broadly interpreted “political function” exception
    • Rational basis review is to be applied when analyzing laws that contain alienage classifications related to self-government and democratic process
      • There must be a rational relationship between the job and the concerns legitimizing the objective
        • When jobs call for a high degree of judgment and discretion and substantially affect members of the political community
          • SC has held that a state can bar aliens from being teachers and state troopers, but not from being notary publics

Constitutional Protection for Education

San Antonio School District (1973)

• There is not a fundamental right to education
• State statutes that rely on property tax within the school district to fund the schools are acceptable
  • The judiciary should refrain from imposing on the states inflexible constitutional restraints that could circumscribe them in making decisions about how to fund their schools
    • This is a complicated arena in which no perfect alternative exists
      • Rational basis review of such statutes should be applied

Plyler v Doe (1982)

• SC held that discrimination against illegal aliens in providing a free education violates equal protection
• While public education is not a right granted by the Constitution, education has a fundamental role in maintaining the fabric of our society
  • Denying children whose children decided to enter the country illegally an education is unconscionable