cases/rule statements

Question 1

stuart v laird – the case where congress tried to change some law that abolishes the circut judgeship

In 1802, Congress repealed the Judiciary Act of 1801, eliminating the circuit courts and circuit judges that the 1801 act had established. Soon after the repeal, Congress passed the Judiciary Act of 1802, which authorized Supreme Court justices to sit on circuit courts. The plaintiff filed a petition to overturn a judgment by a circuit court, arguing that the repeal of the 1801 act was unconstitutional.

Does congress have the power to make judges ride circuit?

Answer 1

congress has the constituonal autority to estsablish from time to time such inferior tribunals as they may think proper– there are no words in the constuion to prohibit or restrain the xcerise of legislative power

Question 2

what does stuart v laird tell us about understanding the constiiton – (ie the case where congress established the judicary act of 1801)

Answer 2

Past practice is a way of understanding the constitution

Congress has the congressional power to establish from time to time inferior tribunals as they see fit
Also, they’ve done it for so long, so why change it?

Question 3

Marubury v madison: marbury tries to make madison deliver his commission; signed sealed but not delivered

what power does the supreme court/judicary have/ what is the nature of the judicuary

Answer 3

The Supreme Court of the United States has the authority to review laws and legislative acts to determine whether they comply with the United States Constitution.

aka the power of judicial review

It’s the nature of the judiciary to say what the law is/when the laws come into conflict with the constitution
Idea of a hierarchy with constitution being the supreme law of the land

Question 4

cohens v virginia : does the supreme court have power to tell state courts what to do? how does this play into the role of the consittion?

VA had prosecuted persons who sold lottery tickets in the state in volation of state law, and the people prosecuted claimed that the sales were permitted via federal statute

Answer 4

yes!

while holding the federal act didn’t protect the prosecued, marshall asserted federal authority to review state acts and criminal proceedings

the nature of the constitutions control of state acts was that the constition was an og act of the people, which was apart from and supeiror to any concept of state sovereignty

Question 5

martin v hunters lease: does the supreme court have the power to tell state courts what to do? what article of the constition answers this question

Answer 5

yes! the grant of jurisdction to the supreme court in article three over ALL CASES within the judicial power of the united states was intened to incldue decesions.

the sc had the juridcition and authoity to review ALL state acts under the constitution

Question 6

fletcher v peck: Does the legislature of Georgia have the power to pass a law that would render Plaintiffs purchase of an estate constitutionally and legally impaired and render it null and void? – what did this decsion also hold

facts: GA statute tried to annul earlier convyances of land to innocent privte persons, whose rights in the land had already vested

Answer 6

no!
here, the supreme court invalidated a STATE LAW under the us constiuion

the court held that the annulment was an impairment of the obligation of k within the meaning of aricle one, and ruled that the statute was unconstitutional.

Question 7

what was the natural law principle argument made by the flecter maj? (aka the case with the GA statute that wanted to annull land ks to private citzens)

what about the dissent?

Answer 7

The case talks about whether the nature of society and of government does not prescribe some limits to the legislative power – a natural law principle
It was beyond legislative power to take away vested right

The concurrence suggests that even God, in effect, has a duty to obey what may be termed general principles of reason

Dissent’s reasoning: so if God has the duty to obey, then so do I

Question 8

calder v bull – does a government/legislature have the power to deprive a citizen of a vested property and can that be decided via natual law theories?

what does the maj/dissent have to say

A Connecticut probate court disapproved a will that designated the respondents as beneficiaries, which allowed the petitioners to inherit the as the decedent’s heirs

Then, the Connecticut legislature passed a law setting aside the finding and granted a new hearing, at which the initial will was approved

Answer 8

maj says no

maj – the proper role of the supreme court was to invalidate legilastion if it interfered with rights that the NATURAL LAW had vested in the people

dissent – doesnt think natural law should be a factor; that the people had limited the acts of congress and the states with SPECIFIC CONSTITUIONAL CHECKS

Question 9

what view have courts taken on invalding legilsative acts as between using natural law and not using natural law princples (via calder)

Answer 9

the court has adopted the view that it may only invalidate acts of the legislature and executive on the basis of SPECFIC PROVISIONS from the constituion

Question 10

McCulloch part one: does congress have the power to create a bank?

Answer 10

yes! when asserting a power, congress MUST POINT TO A SOURCE OF ENUMRATED POWER – in this case it was the necessary and proper clause

This opinion does a lot of inferring, via making the logical inference that if congress has the explicit power to do something, they should have implicit powers to carry it out (within reason of course)

Question 11

McCulloch part two: does the state of maryland have the power to tax the bank of the united states?

Answer 11

no

No democratic accountability to the US population by Maryland

The power of taxation that states have does not extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the united states

The people of one state would not trust those of another state to control their taxes, wo why should we assume that the people of one state would be willing to trust those of another with a power to control the us bank

Question 12

what test was develpted from mcculloch via the exsistence of federal power

Answer 12

federal laws are valid so long as they bear a reasonble relationship to an enumerated power of the government

let the end be legitimate

Question 13

what are the 7 methods of constituonal argumentation/interpretation

Answer 13

textual
structural
prudential
appeals to purpose or intention
past practice and inter-branch convention
judicial precednet
national ethos and politcal tradition

Question 14

describe the textual argumentation/interpretation of the constitution

Answer 14

Can use text to make arguments via pulling phrases or words

Includes more than just arguments about the meaning of particular words and phrases

It can also be in relation to the specific location of the text within a bigger body of a work

Question 15

describe the structural argumentation/interpretation of the constitution

Answer 15

the theory and structure of the government established by the Constitution

Asks how a constitution is supposed to operate

Ex: how does Marshall believe the constitution is supposed to work? How did Maryland think it should work?

Question 16

describe the Prudential argumentation/interpretation of the constitution and the two types of prudential arguments

Answer 16

what are the likely consequences of a decision?

Where the text is unclear, constitutional interpreters often pay attention to the likely consequences of different interpretations.

Two types of prudential arguments

Broder= whether a given interpretation (and the doctrine, rule, or result it produces) would have good consequences or bad

Narrow= whether allowing this particular decisionmaker to decide the question in a particular way would have good or bad consequences

Question 17

describe the appeals to purpose/intentions argumentation/interpretation of the constitution

Answer 17

Arguments from purpose can appeal to the particular intentions or understandings of specific individuals or groups of individuals

We reason from the language used and the issues that the language addresses to figure out the likely purposes of a provision

Question 18

describe the past practice and inter-branch convention argumentation/interpretation of the constitution

Answer 18

If people have already spent some time thinking about the problems, we should defer to their considered judgments

One might argue that past practices establish a convention that should govern later actors.

Question 19

describe the judicial precedent argumentation/interpretation of the constitution

why follow precedent?

Answer 19

Both lawyers and judges rely on judicial precedent

Courts might look not only to their own decisions, but to the decisions of state courts, and perhaps more controversially, to the decisions of courts in other countries

Why follow precedent?

Past judges have thought hard about a problem, and later courts should default to that judgment

Fidelity to the rule of law

Following precedent lends order and stability to legal arguments

Question 20

describe the National ethos and political tradition of the constitution

Answer 20

It asks whether a proposed interpretation is faithful to the meaning or density of the country, its deepest commitments, or some important aspect of national character

These may also be called arguments from the American political tradition

Arguments about national ethos and political tradition are often narrative or historical in character, and are often continuous with the other forms of constitutional argument

Question 21

why did we read the Andrew jackson veto message

Answer 21

to show the constitnual interpreations outside of the court as between the legilsature and the execuitve brahces, introduced us to the exectives roles in all of this

o Veto Power should only be used for very important decisions (however t

Question 22

united states v Cox (the prosecution power) Does the court have the power to compel the AG to prosecute someone?

Answer 22

No; the executive has prosecution (or non prosecution) power – this power is discretionary!

Question 23

united states v nixon : (Executive privilege v judicial need)
can the court compel Nixon to hand over the tapes? /may the president of the US assert an absolute claim of privilege over all confidential communications?

ie what power does the court have in prosecuitons?

A grand jury of the US returned an indictment charging seven named people with conspiracy to defraud the US
Upon motion of the special prosecutor, there was a subpoena issued to the president to require him to product certain items
The presidents counsel tried to file a special appearance to quash the subpoena

Answer 23

absent a special need (ie national security) a presidential claim of privilege asserting only a generalized interest in confidentially is not sufficient to overcome the judicial interest in producing all relevant evidence in a criminal case

Court is allowed to get evidence that will point to the truth – ie the truth finding function of the court

Question 24

in terms of lack of an absolute and unqulaifed presidential immunity, what kind of trial are we talking about

Answer 24

criminal

Question 25

what is the mucculloch test

Answer 25

aka the means end test: congress may use any means not prohibited by the constution to carry out their express authority

Question 26

trump v vance: does article two and the supremacy clause preclude/require a heightend standard for the issuance of a STATE criminal subpeona to a sitting presidet

Answer 26

no! the grand jury in a state criminal prosecution may subpoena a sitting president’s records without a heighted showing of need.

absolute immunity is not necessary or approptriate

Question 26

how are the vance case and the cox case different

Answer 26

vance=state criminal proceeding, cox was a federal criminal proceeding

Question 27

how are the vance and cox the same and how is mazars different?

Answer 27

vance and cox: about the courts need of info from the pres
mazars: about congress’s need of info from the prez

Question 28

trump v mazars: does congress have the power to subpoena the presidents personal financial information?

Answer 28

Yes, as long as it is related to and in furtherance of a legitimate task of the congress

Question 29

what is the mazars test in terms of congress being able to subpeona a presidents fincial records?

Answer 29

1. courts should assess whether the asserted legislative purpose warrants the significant step of involving the president and his papers
2. courts should insist on a subpoena no broader than reasonably necessary to support congress’s legislative objective
3. courts should be attentive to the nature of the evidence offered by congress to establish that a subpoena advances a valid legislative purpose
4. courts should be careful to assess the burdens imposed on the president by a subpoena

Question 30

morrison v olson (the appointment power): can congress vest the judiciary with the power to appoint a special prosecutor? and does it violate the princple of seperation of powers

Congress passed a law allowing a special court to appoint an independent counsel to investigate high-ranking government officials. The Attorney General could only remove the counsel for a good reason. Alexia Morrison was appointed to investigate possible wrongdoing by Department of Justice officials. When she asked for certain documents, Ted Olson said the law was unconstitutional. The lower court said the law was fine, but the appeals court disagreed. Morrison then appealed to the Supreme Court.

Answer 30

yes congress can! they were creating an instution to solve the problem of policing the executive branch

Congress is not violating separation of powers because it’s still up to executive who to prosecute,their power is just limited

the act didnt completly strip the prez of the power to remove the independent counsel; there could be removal of the independent counsel by the prez if there was cause

Principal Must be appointed by the President
Inferior OfficerMay be appointed by a counsel

Question 31

what did the dissent say in morrsion v olson in terms of the prez’s removal power

Answer 31

the idea of a unittary exective; that the president has ALL of the exectuive power, not just some nor is any of it limited

Question 32

free enterprise fund vs pcaob: can congress insulate an inferior officice from removal by a princapal officer who is also insulated

In 2002, a law called the Sarbanes-Oxley Act was made. This law created a new group to regulate the accounting industry. This group, called the Board, was made up of five members who were watched over by the Securities and Exchange Commission (SEC). The SEC could only remove Board members for a good reason, and the President could only remove SEC Commissioners for a good reason. An accounting firm and a non-profit organization sued, saying the Board was not constitutional because it was too protected from removal. The lower courts did not agree with them.

Answer 32

No! because the board memebers had TWO LEVELS OF PROTECTION from presidental removal, the restirction on the power of the presidnet to dismiss the board members diminished the executive power granted to teh pres by article two

Question 33

why was the provsion limiting the exectuitve power to remove the independent consel in morrison v olsen constitioonal

Answer 33

because the removal restrictions didnt impede the presindents ablity to peform his comstitional duty

some officials are so purley executive that the prez MUST be able to remove them at will; BUT THE INDEPEDNDNET COUNSEL IS NOT THE CASE HERE -

Question 34

what did humphrey’s executor hold about presidental removal power

President Roosevelt fired William Humphrey from the Federal Trade Commission (FTC). After Humphrey died, his estate sued the United States for his lost pay. They said Roosevelt broke the law because the FTC Act says a commissioner can only be fired for not doing their job well or doing something wrong. The government said the estate couldn’t get the lost pay because the part of the FTC Act about firing was against the Constitution. The Court of Claims didn’t agree with the estate about the lost pay and asked the Supreme Court to decide if the part of the FTC Act about firing was against the Constitution.

Answer 34

the presidnet cant remove a memeber of an INDEPENDENT regulatory agency

the constitution does not grant the president unlimted removal power as to quasi legislative or quasi judicial officers, even where such hold office through presidnetal appointment

Question 35

selia law v cfpb: can congress vest agency power in a single director only removavle by cause by the prez AND NOT AT WILL? – and what textual argument does the court make

Congress placed the CFPB under the leadership of a single director, appointed by the president with the advice and consent of the senate
The director serves a term for 5 years, during which the prez could only remove for inefficiency, neglect of duty, or malfeasance in office
Selia law argued the agency structure violated the separation of powers

Answer 35

no! It is a violation of the separation-of-powers doctrine for an administrative agency to be headed by a single director not removable by the president at will.

single director as historical outlier
worries about making the director accountable to no one

article two provides that the executive power shall be vested in a persend who must take care that the laws be faithfully executed

The CFPB’s structure CONTRAVENES this carefully calibrated system by vesting significant governmental power in the hands of a single individual ACCOUNTABLE TO NO ONE

Question 36

national labor relations board v noel canning: can the president make a recess appointment during a pro forma break in congress?

The U.S. president nominated three people to the National Labor Relations Board (NLRB) during a Senate break. The Senate didn’t confirm these nominations before their break. The president used the Recess Appointments Clause to appoint these individuals without the Senate’s approval. A company, Noel Canning, challenged the NLRB’s authority to issue an order because they believed the new members were not validly appointed.

Answer 36

Under the recess appointments clause, the president of the united states may fill a vacancy during a senate recess only if the recess is at least ten days long or very unusual circumstances exist

Question 37

INS v Chada: can congress give itself a one house veto against executive decision? (ie the legislative veto)

hint: what is bicameralism and what is presentmetn

Answer 37

no! the court held that the legislative veto(which was really an act of legislation) violated bicameralism and presentment

Majority says its a misuse of leg power by usurping what should’ve been exectvie power

bicameralism –is a type of legislature that is divided into two separate assemblies, chambers, or houses, known as a bicameral legislature.

presentment-
After a bill passes both Houses, it must be presented to the President for his approval

Question 38

what did the chada dissent say

Answer 38

It functions like bicameralism, chada gets to stay only if all three bodies agree, the order win whch things happen is just different

Question 39

clinton v new york: can congress enact the line item veto, thus allowing the president to enact, amend, or repeal statues?

The Line Item Veto Act let the President cancel parts of laws. President Clinton used this Act to cancel a part of the Balanced Budget Act of 1997. This part would have let New York not pay back some money it got from the Social Security Act. Some people who would have gotten benefits from this part of the Social Security Act didn’t like this and said it was not fair. The lower court agreed with them and said the Act was not allowed by the Constitution. The case then went to the Supreme Court

Answer 39

no, Court says you cant do it because the prez is participating in law making

violates presentment clause

Question 40

what does the presenment clause say

Answer 40

the President must sign or veto an entire bill

Question 41

youngstown sheet and tube v sawyer: does the president have the power to authorize the secretary of commerce to seize the steel industry?

In 1951, steel mill owners and workers couldn’t agree on work conditions. The workers planned to strike, which would stop steel production. President Truman thought this would harm national security, so he ordered the Secretary of Commerce to take over the steel mills. The steel mill owners sued, saying the President was making laws, which is Congress’s job.

Answer 41

no! just because the prez has the duty to care care that the law be faithfully execduted doesnt mea they have the power to make law – that power is reserved to congress

this particufits under the third part of the jackson twilight analysis

Question 42

what do we pull from jacksons concurrence in youngstown ? is it outcome determintaive?

hint – three part twighlight zone

Answer 42

his three part analysis of presidental power! still good law – not outcome determintive but a good place to start

1. When the president acts pursuant to an express or implied authorization of congress, his authority is at its MAXIMUM
2. When the president acts in ABSENCE of either a congressional grant or denial of authority, he can only rely upon his own independent powers via article two – AKA THE TWILIGHT ZONE
3. when the president takes measures INCOMPATIBLE with the express or implied will of congress, Your power as prez is at its lowest

Question 43

what is the formalist approach to analysling presidential power (the youngstown maj)

Answer 43

The check the box method
Are there sources of power the prez can point to justify his actions?

Question 44

what is the functionalist approach to analysing presidential power (jackson concurrence in Youngstown)

which prong will the prez most likely always argue

Answer 44

Three prong approach
Analytic framework used to decide if a prez can do a thing
The prez will always argue hes in the first prong

Question 45

what was the war powers resolution/the purpose

Answer 45

it restricts the executives authority to involve the us in foreign controversies without congressional approval

The purpose of the war power resolution was to increase congress role in decision making regarding the commitment of american troops

Question 46

hamdi v rumsfeiled: does the president have the power to detain unlawful enemy combatants unilaterally without checks?

hint – why is due process so important that it needs to be considered in cases like these

The resolution passed by congress (AUMF) authorizing the president to use all necessary and appropriate force against the people and things he thinks planned 9/11

Answer 46

Yes, with qualifications of adherence to due process rights – the govt has to give a us citizen held in the us some type of hearing at which he could contest the facts on which the govt based a decsion to treat him as an enemy combatant

Why does the court want strict adherence to due process?
Liberty is at stake
Where the rights of citizens are at stake, the court must interject

Question 47

korematsu v united states ( NOT GOOD LAW) : does the president have military power to exclude citizens from the west coast on the basis of race?

During World War II, the U.S. government ordered Japanese-Americans, including Korematsu, to move to camps. This was because of an order called Civilian Exclusion Order No. 34. Korematsu didn’t follow the order and was convicted.

Answer 47

NOT GOOD LAW

where the pressure is strong enough (ie pressing public necessity) it may justify presidential powers

the court concluded that the needs of the nation, as percived at the start of the war, justifed the tempoary exclusion and detention of persons of Japanese ancestors

Question 48

US v Trump – does the president have the power to raise presidential immunity for CRIMINAL charges after he is no longer president?

Answer 48

No, the defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal criminal acts undertaken while in office.

Question 49

nixon v fitzgerald ; Does the President of the United States have absolute immunity from suits for damages when ACTING in his official capacity?

hint: chilling presidential behavior

Fitzgerald was a whistleblower who alleged that the president had fired him in retaliation for his testimony before congress about military cost overruns
He claimed that the firing violated his first amendment rights

Answer 49

no

ex-President Nixon COULD NOT BE SUED for allegedly had violated the P’s first amendment rights while ACTING as president
Nixon was abosulutly immune for all conduct arising OUT OF HIS OFFICAL DUITIES as president

The court, assuming that the allegations were true, said that it did not matter – such damage lawsuits might CHILL PRESIDNETIAL BEHAVIOR, and so they should be barred

Question 50

clinton v jones : Does the United States Constitution protect the President of the United States from suits based on actions committed BEFORE entering office?

Jones alleged that Clinton had sexually harassed her and violated her civil rights BEFORE he became president

Answer 50

sitting President Clinton COULD BE SUED in federal court for allegedly having violated P’s civil rights while ACTING AS THE GOV OF ARKANSAS

Clinton had no immunity for private actions that did not arise out of any presidential conduct

Question 51

what are the justicablity doctrines (aka the structual limits on the court’s power)

Answer 51

judical stripping, standing, and politcal questions

Question 52

what is judical stripping

Answer 52

congress has the power from time to time to ordain and establish inferior courts

this theorteically includes the power to get rid of inferior federal courts

Question 53

what is the standing doctrine (via article three) and what must a P show (hint they must show three things)

Answer 53

it says that litigants must assert thier own case or controversty

1. injury in fact – must be a legally protected intrest that is both CONCRETE AND PARTICULIZED and ACTUAL OR IMMINENT
2. causation: must be a CAUSUAL CONNECTION BETWEEN THE INJURY AND THE CONDUCT COMPLAINED OF – ie in a but for manner
3. redressability – must be likely AS OPPOSED TO SPECULATIVE that the injury will be redressed

Question 54

what is the political question doctrine

Answer 54

says that certain matters are really political in nature and best resolved by the body politic rather than suitable for judicial review

when applied, it holds that the subject matter is not appropirate for judical consideration

Question 55

what are the six circumstances in which a legal issue might not be justicable via the political question doctrine

Answer 55

1. where the constituion makes a textually demonstraable constiuonal commitment of the issue to another branch of the governemtn
2. where there is lack of judicially discoverable and manangable standard for resolving the question
3. where the court would have to make a policy determination of a kind clearly for nonjudicial discretion
4. where a decsion would be disrespectful to coordinate branches of the government
5. where there is an unusual need to treat a political branch’s decsion as final
6. where it is necessary for the federal governmnt to speak with one voice on an issue

Question 56

what is mootness

Answer 56

a case is moot when the judgment of the court would not affect the parties to the case in the real world; any court ruling on the question would be academic in nature

Question 57

what is ripeness

Answer 57

when a case is brought too early; meant to prevent the court from entanglining themselves in abstract disagreements over issues that may never need to be decided

Question 58

allen v wright: do parents of black children have the power to sue the IRS for failing to penalize segregated schools? what was the main problem

Parents of black children attending public schools in districts undergoing desegregation brought nationwide class action alleging that the IRS had not adopted sufficient standards and procedures to fulfill its obligation to deny tax-exemption status to racially discriminatory private schools

Answer 58

no, the parents lacked standing

standing was lacking because the injury was not fairly traceable to the challenged IRS conduct – ie lacked that causation needed that is more than attenuated

Question 59

what does the 13th ammendment do and how can congress enforce it

Answer 59

makes involuntary servitude/slavey illegal

via section 2 of the 13th congress shall have the power to enforce it, but the black codes underscored this

Question 60

what does the 14th ammendment do ‘no state shall’

how can congress enforce it

Answer 60

imposes important limitations on the states

directly overrules dredd scott and tells STATES that they have to treat all persons the same with respect to basic rights, regardless of thier citizenship status

section 5 gives congress the enforcment power against state actors, not indvudial actors

Question 61

Slaugterhouse cases : does LA have the power to order butchers to do their slaughtering at a designated place?

Answer 61

Yes! LA is using its police power

the privlages and immunites clause of the 14th neither incorporates any of the bill of rights nor protects all rights of indiviudal citzens

Question 62

what does section one of the 14th ammendmet say (hint the privlages and immunites clause)

Answer 62

prohibits the states from making laws which would abridge the privalges OR immunites of citizens of the united states

Question 63

united states v cruikshank: can congress use its section five power of enforcement to enforce civil rights laws as against private individual

Colfax massacre
Fed government tries to enforce rights via 1870 enforcement act

BAD LAW

Answer 63

No, those rights are only protected by the states

There is no federal government right to protect, the STATE has to protect those rights

Question 64

Bradwell v illiinois : does IL have the power to ban women from practicing law, despite the Privileges and immunities clause of the 14A?

The case where the woman wanted to practice law
BAD LAW

Answer 64

BAD LAW

The Privileges and Immunities Clause of the Fourteenth Amendment does not guarantee women the right to hold the same occupations as men.

Legal condition of women
‘The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman’
Practicing law for a woman is not a privilege or immunity

Question 65

minor v happerstaff – can a state bar women from voting, depsite the 14a

Answer 65

The right to vote is not a necessary privilege of a United States citizen.

Question 66

the civil rights cases: can congress forbid private actors engaging in private business from racially discriminating?/ does congress have the power to regulate private action that racially discriminates?

hey all arose out of the exclusion of black people from inns, theaters, and a railroad on account of their race

STILL GOOD LAW

Answer 66

SC held that the civil rights act of 1875 was unconstitutional; under the equal protection clause of the 14th ammemdnet, congress could prohibit only discrimination by state actors, not private individuals

Under the 14th, congress can use its powers only to regulate STATE ACTION
13th doesn’t fly because the private right violated was not one that the court is willing to protect

Under the 13th, there was no authority given to congress to adjust the social rights of men and races in the community; but only to declare and vindicate those fundamental rights which pertain to the essence of citizenship

Question 67

plessy v ferguson: does a state have the power to require public accommodations be racially segregated?

Answer 67

public accommodations that are segregated according to racial classifications do not violate the EPC of the 14th amendment as long as such accommodations are ‘separate but equal’

Separate but equal does not violate equal protection clause

Question 68

what is the equal protection clause of the 14th ammendment

Answer 68

says that no person shall be denied equal protection of the law by any state

Question 69

giles v harris: Does AL have the power to pass nominally impartial voting laws with racially discriminatory impact?

P wants an injunction to order county official to register a black man to vote

Answer 69

the federal judiciary has no authority over local conspiracies to systematically disenfranchised black individuals by preventing them from exercising their right to vote

SC says we’re done with reconstruction, to to congress for all your qualms

Question 70

trump v anderson (go back and add cams stuff from outline)

does Colorado have the power to exclude trump from the ballot under Section 3 of the 14th amendment

Question 71

term limits v thorton

Answer 71

the requirements for membership in the united states congress are established by the qualifications clause of the united states constitution and MAY NOT be ammendned by individual states

Question 72

what is incorporation

Answer 72

a constitutional doctrine through which parts of the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment. Incorporation applies both substantively and procedurally.

Question 73

lochner: does ny have the power, consistent with the due process clause, to regulate the hours of bakers?//is NY power to regulate business consistent with its obligation via constitution to uphold liberty of k?

BAD LAAW

Answer 73

a state may not regulate the working hours mutually agreed upon by employers and employees as this violates their 14th amendment right to contract freely under the due process clause

court thought it was just a labor law and an improper excersise of the states plolce power

Question 74

what is the due process clause of the 14th ammendment

Answer 74

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Question 75

coppage: does a state have the power to ban employers from making their employees sign yellow dog contracts?

A Kansas law forbade employers from making their employees sign yellow dog ks in which the employees promised that they would not join a union

Answer 75

the due process clause of the 14th amendment prevents states from making laws that prohibit employment contracts barring employees from joining a union.

Question 76

Jacobson: does a state have the power to mandate vaccination?

Answer 76

a state has the authority to enact reasonable laws under its police power to protect the public health and safety of its citizens.

Question 77

Muller: does a state have the power to regulate labor hours for female factory and laundry workers?

Answer 77

under the 14th amendment, a state may constitutionally limit the working hours of women and not men because of the state’s strong interest in promoting the health of women as the ‘weaker sex’

Question 78

Champion: does congress have the power to regulate lottery ticket sales across state lines?//does congress have the power to ban interstate transport of lottery tickets?

ie the plenary view of the cc

Answer 78

the power of congress to regulate commerce amoung the states is PLENEARY, complete in itself, and subject to no limitations except as they may be found in the constituion.

a carrying of an article of commerce of commerce of one state into another state is under congress’s control

Question 79

Hammer: does congress have the power to regulate/prohibit commerce based on whether or not child labor was used? // does congress have the power to ban interstate commerce of goods produced by child labor?

Answer 79

Majority says no

congress may not use its commerce clause power to regulate child labor in the states as this is a purely local matter.

Question 80

Bailey: does congress have the power, pursuant to its article 1 taxing power, to TAX child labor?
Congress enacted the child labor tax law of 1919, which imposed a 10% tax on the net income of any manufacturer employing children below specified ages
BAD LAW

Answer 80

congress may not attempt to regulate through a tax matter that is reserved to the states by the tenth amendment to the constitution.

Question 81

Holland: does the federal government have the power to ban the killing of migratory birds via a treaty?

Answer 81

a treaty which infringes the rights reserved to the states under the 10th amendment to the United states constitution may nevertheless be considered valid if its made under the authority of the united states and is thus the supreme law of the land

Question 82

West coast hotel: does a state have the power to set a minimum wage for female workers?

Answer 82

a state may regulate the minimum wage paid to female employees when that regulation is for the purpose of promoting employees health, safey, and general welfare

Question 83

Carolene Products: does congress have the power to ban the interstate transport of filled milk?
SEE FN FOUR PLEASE

Answer 83

congressional legislation of common commercial products will be scrutinized under a rational basis test

the filled milk act is rationally related to the public’s health and safety

Question 84

Willimson: does a state have the power to regulate opicitans business?

Oklahoma made a law that said only certain people could fit lenses to glasses or put old lenses into new frames. Lee Optical didn’t like this law and said it was against the Constitution. The lower court said some parts of the law were okay, but it wasn’t okay to need a prescription just to put old lenses into new frames. The court said this didn’t really help keep people safe. The case was then taken to the Supreme Court.

Answer 84

a state may regulate a business if its legislature determines there is a particular health and safety problem at hand and that the regulation in question is a rational way to correct the problem

 Example of an extremely deferential standard
 In this case, even where Congress offered no reasoning, the court was happy to supply reasoning
 As long as the legislation had some basis, it was fine

Question 85

what does footnote four say in carolne products

Answer 85

ustice Stone wrote that that Court would apply stricter standards of review to laws that targeted “discrete and insular minorities.” This footnote influenced the Court in its subsequent development of the standard of review today known as “strict scrutiny.”

Question 86

what was the switch in time

Answer 86

when the court began to sustain economic laws passed by the states and a broaden inertp of the commerce clause

Question 87

schecther poultry v united states :does congress have the power to regulate NY poultry slaughterhouse? BAD LAW

Schechter Poultry Corp., a wholesale poultry business in Brooklyn, was convicted for violating the Live Poultry Code (LPC) regulations and for conspiracy. The LPC was created under the National Industrial Recovery Act, which let the president approve ‘codes of fair competition’ for industries. Schechter appealed, saying Congress overstepped its power by regulating their IN STATE ACTIVITES and that the president shouldn’t have full power to approve or disapprove the LPC provisions.

Answer 87

BAD LAW – no! congress does not have the power to regulate wholly intrastate activities that have only an indirect effect on interstate commerce

Question 88

NLRB v jones: does congress have the power to regulate manufacturing and labor relations via the NLRA

In 1935, Congress created the National Labor Relations Board (NLRB) to enforce fair labor practices, including the right to form unions. Jones & Laughlin Steel Corp. (JLSC) fired ten employees who tried to form a union, and the NLRB punished the company. JLSC sued, saying that Congress didn’t have the power to regulate labor relations.

Answer 88

yes! congress may regulate labor relations under its commerce clause power because labor relations have such a close and substantial relationship to interstate commerce that their control is essential to protect that commerce from burdens and obstructions

If there is a substantial economic effect that crosses state lines, that is COMMERCE, and within commerce power!

Question 89

what case marks the shift in how we think of the commerce clause?

Answer 89

NLRB! – congress can now regulate intrastate commerce if they had a close and substantial relation to interstate commerce

Question 90

how does fdr define commere in his fireside chat

Answer 90

gives it a broad defintion

Question 91

united states v darby: does congress have the power to regulate employees who make goods to be sold in interstate commerce

Congress made a law called the Fair Labor Standards Act (FLSA) to stop goods made under bad labor conditions from being sold in interstate commerce. The U.S. government sued Darby Lumber Company because they said the company was not following the FLSA’s rules and was planning to sell their goods in interstate commerce.

Answer 91

OVERRULES HAMMER. yes!

congress may regulate labor standards involved in the manufacture of goods for interstate commerce and may exclude from interstate commerce any goods produced under substandard labor conditions

If effects don’t say local, congress has the power to regulate

The commerce clause is to be understood BROADLY

Question 92

what new reading of the 10th ammendment does darby have

Answer 92

States only retain the powers NOT given to congress – aka power to regulate commerce
If congress doesn’t have it, it doesn’t have it
But you have to go to commerce clause to see if they have it

Question 93

what does darby do with the direct v indicret standandr via commerce clause

Answer 93

says its too arbitrary to use and also discards the production-commerce disction

Question 94

wickard v filburn: does congress have the commerce clause power to regulate a purely in state wheat farmer?

In the 1930s, during the Great Depression, President Roosevelt and Congress made a law to limit how much wheat farmers could grow to help control the price of wheat. Filburn, a farmer, grew more wheat than the law allowed and was punished. He sued the Secretary of Agriculture, Wickard, saying that the law shouldn’t apply to him because he only used the extra wheat for himself and didn’t sell it.

Answer 94

congress may regulate local activity if that activity exerts a substantial economic effect on interstate commerce

Even if its just one farmer cheating,its one element in a bigger national market for wheat
In the AGGREGATE it is a substantial effec

Question 95

united states v butler: Does congress have the power to spend federal funds to incentive farmers to reduce acreage?

n 1933, Congress made a law called the Agricultural Adjustment Act (AAA). This law let the Secretary of Agriculture limit how much of certain crops farmers could grow and tax farmers who grew too much. It also gave money to farmers to help control how much they grew. Butler, a crop processor, sued the U.S. government because he thought the AAA violated the Constitution.

Answer 95

no! congress may not use its taxing and spending powers to obtain an unconstitutional result, such as invading the reserved rights of the states under the 10th amendment

Bad law with regard to the TAXING POWER but gives back bone to lack of 10th amendment restriction on spending power

Question 96

steward machine company: does congress have power to pass the tax portion of the social security act/can congress impose a tax on employers based on their employees wages?

The Social Security Act has a program for unemployment compensation. In this program, employers have to pay a federal tax. However, if these employers give money to a state unemployment fund that meets federal standards, they can get a 90 percent credit on this tax.

Answer 96

in exercising its constitutional spending power, congress may not enact a law that COERCES the states contrary to the autonomy guaranteed to them under the 10 amendment

Question 97

Heart of atl: does congress have the commerce clause power to prohibit racial discrimination by hotel

In 1964, the Civil Rights Act was passed by Congress to stop racial discrimination in public places like hotels. The Heart of Atlanta Motel in Georgia, which mostly served out-of-state guests, refused to rent rooms to African Americans. They sued the U.S. government, saying the Civil Rights Act was an overstep of Congress’s power to regulate interstate commerce.

Answer 97

congress may enact regulations that prevent racially discriminatory polices in hotel accommodations because of the negative effects of those policies on interstate commerce

There was an overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse

Question 98

katzenbach v mclung (ollie’s bbq) : does congress have the commerce clause power to prohibit racial discrimination by restaurants?

In 1964, a law was passed to stop places like hotels and restaurants from treating people differently because of their race. The McClungs, who owned a restaurant in Alabama, didn’t let black people eat in their dining area. Half of the food they served came from other states. They sued the government to stop them from enforcing this law

Answer 98

congress may regulate the discriminatory policies of restaurants through title 2 of the civil rights act if those policies have SUBSTANTIAL EFFECT ON THE INTERSTATE COMMERCE

The racism might be insubstantial, but its substantial enough! See wickard!

Question 99

united states v lopez: does congress have the cc power to ban gun possession in public schools

Answer 99

no – having a gun is not commerce!

congress may not, pursuant to its CC powers, pass a law that prohibits the possession of a gun near a school

You can regulate the behavior IF you can link to commerce
Here, the link is just too speculative so the court strikes down the act as beyond congress commerce power

Question 100

piggie park: is piggie park a place of public accommodation within the meaning of the CRA? Are drive in restaurants places of public within the meaning of CRA? Should winning ps under the cra get attorneys fees?

Answer 100

come back to it

Question 101

gonzales v racih: May Congress regulate the use and production of homegrown marijuana?

Answer 101

congress may regulate the use and production of home grown weed as this activity , taken in the AGGREGATE, could rationally be seen as having a substantial economic effect on interstate commerce

Question 102

sebulis (commerce clause) Does congress have the power to enact the ACA as an incentive for people to buy healthcare under the commerce clause?

Answer 102

no

Instead, HERE, they are CREATING the activity that they are trying to regulate

The commerce clause is not a general liscene to regulate an individual from cradle to grave
This is beyond the CC power

Question 103

sebulis(the taxing power) Does congress have power to impose a tax on those without insurance via aca

Answer 103

yes

the individual mandate is a valid use of congress’s TAXING POWER,

The taxing power is constructed broadly
If it looks like a tax, it must be a tax, NOT A PENALTY – the quack test
Statute refers to person paying it as ‘taxpayer’

Question 104

sebulus(the spending power) Does congress have the power to penalize states via taking away medicaid funding for not participating in the aca program under the spending power

Answer 104

No, its a gun to the head

States were not on notice that their choice to opt out would loose all of its funding
This is not a proper choice; its compelling and not incentive and was not a meaningul choice

Question 105

united states v comstock: does congress have the necessary and proper clause power to require civil commitment of mentally ill, dangerous prisoners?

Answer 105

yes

under the necessary and proper clause, congress has the authority to enact a law that allows civil commitment of mentally ill, sexaully dangerous federal inmates beyond the end of the prisoners’ criminal sentences

Question 106

south dakota v dole: does congress have the power to enact a statute that withholds money from states who allow drinking under 21?

South Dakota allowed people 19 and older to buy beer with up to 3.2% alcohol. In 1984, a federal law was passed that said states allowing people under 21 to buy alcohol could lose some highway funds. South Dakota sued, saying this violated limits on Congress’s spending power and the 21st Amendment.

Answer 106

The receipt of federal funds may be conditional if the exercise of the spending power is for the general welfare, the conditions are unambiguous, the conditions are related to a federal interest in a particular national project or program, and the conditions do not violate any other constitutional provisions such as the Tenth Amendment.

broad spending power if under general welfare, conditions relate to federal interest

Question 107

what are the dole factors (spending power)

Answer 107

1. the exercise of the spending power must be reasonably calculated to advance the general welfare
2. congressional condtioning of the states’ funds must be UNAMBIGOUS, allowing states to excersise thier choice knowingly, and be aware of the consequences
3. the condition should be related to the federal interest in particular national projects or programs
4. the spending power cant be used to induce the states to do anything unconstuional

Question 108

katzenbach v morgan: does congress have the 14th amendment section 5 power to prohibit ny from denying the vote to Puerto ricans?

Answer 108

yes

congress may pass legislation to enforce the EPC of the fourteenth amendment even when the legislation conflicts with state law

Congress saw a harm in NY law, and under their enforcement power they can remedy it
This opinion is an example of the court being deferential to congress

Question 109

jones v alfered mayer: does congress have the power to enforce the 13th amendment by passing laws that govern the actions of private actors?/ does congress have the 13A section 2 power to prohibit private racial discrimination in the real estate market?

Answer 109

yes!

This cases uses the McCulloch test again so gives deference to congress
The right of universal freedom

The court held that to be within congress’ 13 amendment power, a federal statute only had to have some arguably rational connection with the ERADICATION AND INCIDENTS OF SLAVERY

Question 110

what is the mcuclloch test

Answer 110

whether a law is appropriate legislation to enforce the EPC, i.e. whether a law may be regarded as an enactment to enforce the EPC; whether it is plainly adapted to that end and whether it is not prohibited by but is consistent with the letter and spirit of the constitution.

Question 111

oregon v mitchel: does congress have the reconstruction power to prohibit states from denying the vote to those under 18/does congress have the power to lower the voting age in STATE elections?

Answer 111

no

The EPC is meant to remedy RACIAL discrimination – so unlike Katzenbach, congress trying to protect young adults is not racial!

Maj Found that congress could not usurp the role of the courts ny determining the boundaries of the equal protection clause

Question 112

boerne: does congress have the 14A section 5 power to prohibit states from burdening a persons exercise of religion?

In 1993, Congress made the Religious Freedom Restoration Act (RFRA) to overturn a Supreme Court decision. The RFRA stops the government from heavily limiting a person’s freedom to practice their religion. Archbishop Flores sued the City of Boerne under the RFRA when the city didn’t let his church expand its building. The city said no because the church was in a historic district.

Answer 112

no

In exercising its remedial and preventive power to enforce a constitutional right under Section 5 of the Fourteenth Amendment, Congress may enact only legislation that utilizes congruent and proportional means for achieving that legislative purpose.

Congress can ENFORCE OR REMEDY – NOT CHANGE
To test this, we use the congruent and proportional test

Question 113

what is the congurent and proptortial test creaed in bourne used to test congress ability to enfoce the epc

Answer 113

There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end

Question 114

united states v morrison: does congress have the 14a section 5 power to provide a federal civil remedy against gender motivated violence?

Answer 114

no

under section five of the 14, congress can only regulate the discriminatory conduct of state officials , not private actors

Question 115

brown v board of edu: Do states have the power to require or permit racial segregation in public schools?

Answer 115

separate education facilities based on racial classifications are inherently unequal and violate the EPC of the 14th amendment

While there is evidence that the white and black schools are being equalized, we cant let the decision turn on tangible matters like this – IE GETS RID OF SEPARATE BUT EQUAL STANDARD

Question 116

boiling v sharpe: does the federal government have the power to racially segregate public schools?

Bolling, an African-American, and others sued the federal court in the District of Columbia. They said racial segregation in the district’s public schools was not constitutional. The district court didn’t agree with them and dismissed the complaint

Answer 116

racial segregation of public schools in DC violates the DPC of the 5th amendment

reached this conclusion via reverse incorporation

Question 117

brown two: what is the appropriate relief for the brown Ps?

Answer 117

adequate compliance with the court’s previous holding that racial discrimination in public education is unconstitutional requires public schools to desegregate ‘with all deliberate speed’

Question 118

loving: does VA have the power to ban interracial marriage?

Answer 118

no! a state may not restrict marriages between persons solely on the basis of race under the EPC and DPC of the 14th

Have to ask the question: what is the state’s purpose in passing a law like this?
The state had no good reason, so violates epc and dpc
States CAN regulate marriage BUT – a state has a limit on how a state can regulate marriage

The court rejected the notion that the mere equal application of a statute containing a racial classification is enough to remove the classification from the 14th amendment’s proscription of racial classification

Question 119

what is the difference between anticlassification and anitsubordination?

Answer 119

anticlassification: argues that harm of inequality stems from classifying perons according to race, a practice that is assumed by its nature to be invidious. – looks to whehter a statute or other government action invovles a FACIAL classiifcation (or is secerlty intended to classify)

antisubordination: argues that the harm of inequality arises from unjust forms of social heircy or social subordination – looks to the impact of state action in fostering or reproducing an unjust social structure

Question 120

what is the strict scruity test and what classfications does it apply to

how do we apply it in a dp case

how do we apply it in epc cases

Answer 120

whehter the law in question is NARROWLY TAILORED to acheive a COMPELLING GOVERNMENT INTEREST

the court will require the government to show a close relationship between the classifcation and promotion of a compelling overriding intereset

with EPC – applies to RACIAL CLASSIFICATIONS, NATIONALITY/ALIENAGE, FN4 OF CAROLENE PRODUCTS

with DP – applies to fundamental rights – presumed to be Unconstitutional

Question 121

Palamore v sidoti: Whether the removal of custody of her child from a woman on the grounds that she entered into an interracial relationship violated the Equal Protection Clause of the Fourteenth Amendment.

Answer 121

the deprivation of custody of an infant child from her mother solely because of the risk racial biases violates the EPC of 14th

Question 122

griggs v duke power: does a private employer, consistent with the civil rights act have the power to require its employees to have a GED?

GOOD LAW

Answer 122

GOOD LAW –

NO – EPC) Police Test 21. A gov’t practice or law must have a “discriminatory purpose,” not merely a disproportionate effect on a minority.

Question 123

what is the griggs test (hint disprate impact test)

Answer 123

it probes facially netural practices to ensure their enforcement does not unessciarly perpetrate the effects of past intentional discrimination

Question 124

what are the two paths to ligigation for strict scruity race classfications

Answer 124

when the law on its face discriminates – de jure

when the laws are faciclally netural but have racially signficant impact – defact

Question 125

what are the two disprate impact analysis when we talk about facially neutral laws

Answer 125

one test under title vii –can be appplied to private indivudals becase its a statue

another test under the constiioun – only applied ot states

Question 126

washington v davis: Does a public employer have the constitutional power to apply a test with a racially disparate impact?

Davis, an African American man, and another African American man applied to join the Washington, D.C. police department but were turned down. They sued the mayor of Washington, D.C., claiming that the police department used a verbal skills test that African Americans failed more often.

Answer 126

no, but you have to show that the test both has a a disproportionate impact on a particular race and is motivated by invidious racial discrimination.

just a disproportionate impact doesn’t trigger strict scrutiny by the courts without more.

In this case, the administration of the test by the Washington, D.C. police department doesn’t show a discriminatory purpose.

The test is neutral and was given to all applicants to see if they had the necessary verbal skill to be a successful police officer.

Question 127

village of arlington: Does a zoning board have the constitutional power to forbid the building of low-income housing?

The Metropolitan Housing Development Corp. (MHDC) wanted to change a piece of land’s zoning classification so they could build a racially-integrated housing complex. The Village of Arlington Heights said no to their permit request. MHDC then sued, saying that the denial was racially discriminatory and broke the Fourteenth Amendment and the Fair Housing Act of 1968.

Answer 127

A state-sponsored racial classification will not be held to violate the Equal Protection Clause of the Fourteenth Amendment unless a plaintiff shows that the law is motivated by a discriminatory purpose and has a discriminatory impact.

Question 128

what are the 6 factors the court used in arlington that is used to determine whehter governmental decsions were racially motivated (OTHER THAN THE OBVIOUS OVERT DISPLAY OF A STATEMENT OF DISCRIMINATORY INTENT)

Answer 128

1. impact of the offical act shows a clear pattern of discrimination unexplanible on any grounds OTHER THAN DISCRIMINATION
2. HISTORICAL BACKGROUND of decsions
3. specfic sequnece of events leading up to the decsion
4. departutes from normal procedures
5. departures where factors usually considered strongly favor a contrary decsion
6. legislative or administrative history

Question 129

feeeny: Does MA have the constitutional power to pass a law that will foreseeably disadvantage women?

Massachusetts made a law that said veterans should be considered for state jobs before non-veterans. Feeney, a woman who wasn’t a veteran, did really well on some tests for these jobs, but men who were veterans and did worse on the tests got the jobs instead. She said this was unfair and took the case to court, saying the law was against the Equal Protection Clause because it hurt women.

Answer 129

BECAUSE OF NOT IN SPTIE OF!

To prove that a state actor violates the Equal Protection Clause by enacting legislation with a discriminatory purpose, a plaintiff must show that the decisionmaker selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.

Question 130

ricci v destefano: Does a public employer have the Title VII power to throw out exam results directly because of race? (de facto – disparete test)

Firefighters in New Haven, Connecticut (the city) had to take a written exam before they could be promoted to lieutenant or captain. Each open position would be filled using one of the three top-scoring candidates. The exam results would determine promotions for the next two years. Based on the exam results, the 10 candidates eligible for the current lieutenant openings were all White. For the captain exam, seven White candidates and two Hispanic candidates were eligible for the current openings. The city was concerned about legal liability. If the city used the test scores, it would be sued by the minority candidates denied promotions. Alternately, if the city did not use the test scores, it would be sued by those who would have been promoted if it had. The city decided not to use the test to make promotion decisions. White and Hispanic firefighters (plaintiffs) sued the city, arguing that they had been denied promotions in violation of Title VII of the Civil Rights Act of 1964 and the Fourteenth Amendment’s Equal Protection Clause

Answer 130

in this case,no

before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an uninetional disparte impact, the employer must have a strong basis in evidence to believe it will be subject to disparte impact liabilty if it fails to take the race conscious, discriminatory action

Question 131

city of richmond v cronson: Does the city of Richmond have the power to adopt the minority business utilization plan?

Answer 131

no! Without evidence of past particular race-based discrimination, a city may not enact a plan to provide a race-based set-aside to exclusively promote minority business enterprises, as this does not constitute narrowly tailored means geared towards accomplishing a compelling state purpose.

Richmond fails to show COMPELLING PROBLEM or how the specific design of the promotion is meant to fix a SPECIFIC PAST HARM

Court couldn’t see any clear link between past discrimination and whats happening now

Question 132

how did the goals of the racial classfication between loving and corson differ

Answer 132

The one in loving was a negative one, and the one in cronson was positive (even though it failed SS)

Question 133

adarand v pena: whether the government program that gives money to companies for hiring subcontractors run by ‘socially and economically disadvantaged’ people, who are usually racial minorities, goes against the part of the Fifth Amendment that says everyone should be treated equally

Answer 133

All racial classifications imposed by the federal, state, or local government must be analyzed by a reviewing court under strict scrutiny; that is, such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.

Question 134

grutter v bolliger: does the school have the power to use race in considering admission? / does a public university have the power to consider race in its admission decisions, consistent with the 14a?

Answer 134

Yes because it had a compelling interest in attaining a diverse student body –however, the school must demonstrate it previously made a serious, good faith consideration of workable, race-neutral alternatives to achieve the sought-after racial diversity.

Diversity in student body IS A COMPELLING INTEREST
Here, the program is narrowly tailored!
Its not quota based but they use CRITICAL MASS

Question 135

what is the temporal upstream/downstream argument used in grutter

Answer 135

places up stream from the university want more diverse applicants but cant get them if the university is not admitting a more diverse student body

Question 136

gratz v bolligner: does a public university have the power to award extra points for race in its admission decisions?

Answer 136

A university admissions policy that automatically gives preference to minority students on the basis of race, without additional individualized consideration, violates the Equal Protection Clause.

Held that the undergrad admin plan was not NARROWLY TAILORED to achieve a compelling interest in diversity

Question 137

students for fair admissions: Does a public university have the power to consider race in its admission decisions, consistent with the 14A?

Answer 137

essesntially overturns grutter but not really because it just made SS even stricter

the use of race reienforces a sterotype

If you’re gonna follow grutter, you need the math/numbers – court isnt gonna turst you without the numbers

Question 138

graham v richardson: does a state have the power to deny welfare benefits to resident aliens, or require a residence period?

Arizona and Pennsylvania had assistance programs that were partly funded by federal grants. But they added extra rules. Arizona said you had to be a U.S. citizen or have lived in the U.S. for at least 15 years. Pennsylvania said you had to be a U.S. citizen. Two people who were legally living in the U.S. but weren’t citizens were denied benefits because of these rules. They sued, saying the rules broke the Equal Protection Clause of the Fourteenth Amendment.

Answer 138

no, it violates the epc

classifications based on alienage are the same as those based on race in that they require strict judicial scrutiny – the classification is valid only if it is necessary to promote a compelling state interest

Question 139

bernal v fainter: does the epc preclude states from denying aliens the opportunity to become notaries public?

Answer 139

a state that imposes a requirement of the US citizenship upon an applicant to become a notary public violates the 14

Notary public not within the public function that would allow a state to do this without strict scrutiny

Question 140

what is the political function exception that says that alienage wont trigger strict scuritny (comes from bernal)

Answer 140

applies to laws that exclude aliens from positions intimatly related to the process of democratic self government

the state may exclude noncitizens from elected gov positions and also from those posistions that are related to the democratic process

if the alienage classification relates to self governance or to posistions that to to the HEART OF REP GOVERNMENT, teh court will uphold the classfication with a DEFRENTIAL standard to review

Question 141

fronterio v richardson : does the 5A preclude the government from discriminating on the basis of sex?

Answer 141

yes! developed an intermediate level of review for gender based discrimination

is it importnat government interest and is the classification a means to achieve that goal?

Question 142

US v virginia (VMI) Does the EPC preclude VA from maintaining a uniquely prestigious school as male only?

Answer 142

All governmental gender classifications must be substantially related to an important government purpose that can be demonstrated by the government if it offers an EXCEEDINGLY PERSUASIVE JUSTIFICATION for the classification.

VA’s attempt to justify fall short

Question 143

What is the intermediate standard that a state must meet when it comes to gender classification (via VMI)

Answer 143

substaqtial relationship to an importat governmetal interest

Question 144

how can you dial up/dial down within intermediate ?

Answer 144

both deal with an important government interst, but they differ in terms of how close the classfication needs to be to meet that gov interst

sufficiently related= at the lower end (sounds like rational basis) – see Micheal M

Exceedingly persusuasive = the stricter end – see VMI maj

Question 145

Micheal M: can a state attack the problem of sexual intercourse and teen pregnancy directly by prohibiting a male form having sex with a minor female?

Answer 145

yes – via the dialed down intermdiate, such a statute is SUFFICENTLY RELATED to the state’s objectives to pass constitutional muster

Question 146

Nguyen v Ins: :does congress have the power to grant citizenship on a sex differential detail without violating equal protection rights?

what are the two gov intersts that the gov presents and ultimaly wins on?

Answer 146

Maj says yes

Two key justifications – see numeral one and two in the case
1. Court reasons that mother HAS to be present at birth so you know of the birth and it’s yours!
Men could become fathers but could possibly never know it
2. Kinda patriotic reasoning
Socializing someone as a us citizen
Maj says these two are important govt interest and the means is substantially related to the govt wins

Question 147

how could the ngyen case fail under SS?

Answer 147

The dna test as an alternative
The presence of dna is a gender neutral test
This would fail SS but we are in intermediate

SS tells us that if there is a neutral alternative that would do the same thing, we should pick that instead of the classification

Question 148

morales-santana: Does equal protection preclude Congress from setting different rules for citizenship based on the parent’s sex?

A law said that if a child was born in another country to an American dad, the dad had to have lived in the U.S. for 10 years for the child to be a U.S. citizen. But if the child was born to an American mom, she only had to have lived in the U.S. for one year. Jose Morales moved to the Dominican Republic when he was 18 and had a son, Luis. Luis moved to the U.S. when he was 13, but got in trouble with the law. The government wanted to send Luis back to the Dominican Republic, but Luis said the law was unfair to men.

Answer 148

A law that discriminates based on biological sex is unconstitutional if it is not substantially related to the accomplishment of an important governmental purpose.

Not a strong policy reason for it so doesn’t meet intermediate scrutiny
Assumption about who would be more apt to assume parental responsibility
A stereotype and congress cant make policy from sterotype

Question 149

how are morales and nguyen different even though they both were classifcations based on biologcal sex and both based in sterotypes

Answer 149

nguyen: biologically based with stronger policy reason

morales: based on stereotype with weak policy reason

Question 150

feeny(again): the veteran case where the lady was like the knew that most veterans were men and they knew what they were doing

Answer 150

No narrow tailoring requirement, just substantial relation
Disparate impact so its neutral on its face, so they have to show intent, and that fails here because of the ‘because of vs in spite of’ analysis

Question 151

nevada department of hr v hibbs: does congress have the 14a section 5 power to pass the FMLA?

Answer 151

yes! because the fmla set a minimum standard of family leave for ALL eligable employees regardless of gender - ie it is narrowly tailored

Question 152

what are the steps in applying the congruent and proportional test (ie when congress is trying to use their section 5 power of enforcemnt under the 14th) ie the bourne test

Answer 152

Step one: what would the court do
Step two: what did congress do
Step three: how does what congress do relate to what court would do
Step four: is congress action congruent and proportional to what the court would do?
Yes – constitutional, see hibbs
No - unconstitutional, see city of bourne

Question 153

city of cleburne: does a city council violate the EPC by requiring a permit for a home for intellectually disabled persons? what level of scruitny is used?

Answer 153

yes: the record does not reveal and rational basis for beleving that the home would pose any special threat to the city’s legitmate interests

court opts to use rational basis not intermediate for this classiccation via disabled persons

court does opt to use rational basis with bite though

Question 154

when will a court decide to dial up rational baisis for a classfication (ie like the city of cleburne case)

Answer 154

Where there looks like government is using its power to validate irrational biases, the court will dial up the level of scrutiny even within rational basis!

Question 155

what are some potential downsides to dialing up rational basis

Answer 155

Rational basis meant to limit judicial review, so adding teeth kinda defeats the purpose
Dialing up rational basis invites more litigation and judicial is more involved

Question 156

what is the test for rational basis

Answer 156

A classification is presumed valid so long as it is rationally related to a constitutionally permissible state interest.

Question 157

griswold v Connecticut: does a state have the power to ban the use of contraceptives by married couples?

Answer 157

Griswold is the first to say we have a fundamental right to privacy that prevents certain government/state action

An implied “right of privacy” exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception.

Question 158

meyer v nebraska: May a state law forbid the teaching of any subject in a non-English language in local schools without violating the Due Process Clause of the Fourteenth Amendment?

Answer 158

no

No explicit enumerated right to learn a lang, BUT its still a fundamental right to learn lang of your choice

Liberty denotes not only freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to marry… to generally enjoy those privlages long recognized as common law as essential to the orderly pursuit of happiness by free men.

Question 159

what is the due process clause of the 14th

Answer 159

nor shall any State deprive any person of life, liberty, or property, without due process of law

Question 160

what is the equal protection clause of the 14th

Answer 160

a governmental body may not deny people equal protection of its governing laws

Question 161

skinner v oklahoma: Does a statute that allows for the forced sterilization of persons deemed to be “habitual criminals” violate the Equal Protection Clause of the Fourteenth Amendment?

Answer 161

yes

this use of police power via the classfication violated the epc because it could not properly justify any promtion of health wealth or morals that would justify taking away the right to procreate

Fundamental right to procreate
State cant create unequal class distinctions (ie deciding who will be steralized)
No textual right to procreate in the constitution
BUT THE CONSTITUTION PROTECTS UNENUMERATED RIGHTS

Question 162

how is griswold (contraceptive case) different from lochner

ie what is the court hesitant to say because it would require them to differentate from lochenr

Answer 162

Liberty of due process encompasses a privacy right

Lochenr era laws restricted stranger to stranger interactions (ie can’t buy goods made by child labor laws)
BUT HERE: now allowing use of contraceptives, the court is reaching into the bedroom, far more personal interaction

Question 163

what does the douglas concurrence in griswold say about the zone of privacy

Answer 163

relies both on precendet/case law and textual arguments from tehe constuion to create a zone of privacy via unenumerated rights

EX: the third amendment to not have soldiers in your home alludes to an unenumerated right to privacy
This amendment is not just about quatering soldiers, but about what quartering soldiers violates –PRIVACY OF THE HOME
Ex: the 9th amendment: ‘the enumeration in the constitution, of certain rights, SHALL NOT BE CONSTRUED TO DENY OR DISPARAGE OTHERS RETAINED BY THE PEOPLE

Question 164

hunt v washington apples: does NC have the power to prohibit the display of state grades on imported apples?

Answer 164

A facially neutral statute still violates the Commerce Clause if it discriminates against interstate commerce in practice.

Even though facially neutral, the burdens and costs on interstate commerce that it produces far outweigh the benefits
Also suspicion that the nc statute was trying to protect nc apple growers
Cant have protectionist statutes under the dormant commerce claus

Question 165

what do we do with a state law that have the effect of burdening out of staters

ie dormant commerce clause

Answer 165

1. If facially discriminatory, its per se invalid
2. If neutral regulation that has the effect of burdening out of state commerce/interstate commerce COURT WILL USE THE BALANCING TEST USED IN PIKE, HUGHES, AND HUNT
   Cost and benefits test

Question 166

what is the pike test for the dormant commerce clause

Answer 166

If neutral on its face, and only an incidental effect, then balance the burden and benefit

Local purpose must be legit
Purpose should be obtained as effective without the effects on interstate commerce

Question 167

what is the domrant commerce clause

Answer 167

means that states cant enact laws that have the effect of burdening interstate commerce

Question 168

excpetion to the dormant commerce clause?

Answer 168

market participation
The state is the market participant itself using state funds
If you decide that the state itself takes ownership of an issue/solving a problem, the state becomes the market itself
Therefore, private actors who would have liked to been involved in this business cant complain that thre is a dormant commerce clause violation

Question 169

gregory v ashcroft: does MO’s automatic retirement age for judges violate the ADEA?

Judge Ellis Gregory Jr. and other Missouri state judges sued the State of Missouri. They said a rule in the Missouri constitution that makes state judges retire at age 70 was against the Age Discrimination in Employment Act

Answer 169

A statute should not be construed in a manner that would alter the usual constitutional balance between the states and the federal government, unless Congress’s intent to do so is unmistakably clear in the language of the statute

Where congress is regulating under its section 5 power or its commerce clause power in a way that has effects on government functions of a state, congress must UNAMBIGUOUSLY PROVIDE A CLEAR STATEMENT THAT IT INTENDS FOR ITS LIMITATIONS TO APPLY SPECIFICALLY TO STATE GOVT FUNCTIONS

Because congress did not specifically say that the age discrimination act was meant to apply to even those kinds of state functions, it doest apply

Question 170

new york v united states: can the federal government force state legislatures to enact or administer a federal regulatory program?

whats the democratic accountabilty argument for anticomendeering?

Answer 170

Congress may not compel states to enact or administer a federal regulatory program.

Congress cant tell states how to legislate
Also cant tell states that they have to take title to a thing
Congress CAN incentive!

ig democratic accountability problem that doesnt maintain the separate lines of auhtoiry and separate lines of democratic accountability
It blurs accountability via locals v federal spheres
Also about preserving national and state in the federalism sense

Question 171

whats the key thing to understand from the new york radioactive waste case

anticomdeering

Answer 171

Understand the difference btwen being commanded to legislate (which you cant do) vs being incentivised by spending power (which congress can do) vs CONGRESS OWNING THE WHOLE THING

Question 172

printz v united states: can the federal government force state executive officers to administer federal programs?

Answer 172

no

Objections under anti commandeering succeeded because of federalism concerns that congress cant commendeer state executive officials to enforce federal law
Vertical structure- keep the separate lines of govt septerate better protects liberty –see page 814
Horizontal structure - also make sure there is unity in the federal executive office
Ie dont let congress assign executive duties to state officials

Question 173

what is the plain statement rule from gregory

federalism

Answer 173

The rule says that the court will not interpret a federal statute in a manner that will interfere with essential state or local government functions UNLESS congress plainly states its intention to do so in the statute itself

Question 174

roe: can a state regulate or prohibit abortion?

Answer 174

The constitutional right to privacy protects a woman’s right to choose to have an abortion; violated due process clause

the trimester test: first trimester= woman can get abortion as long as they can find a doctor to do it – other triemesters= compelling interest to regulate

Focus is on the woman’s interest

Question 175

planned parenthood v casey: Can a state regulate or prohibit abortion?

Answer 175

A state abortion regulation places an undue burden on a woman’s right to an abortion and is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

upheld roe but overtured the trimester test for the undue burden test

Privacy and liberty take precedent
State is limited in its ability to interfere in a person’s personal life

Question 176

what is the undue burden test that comes out of casey

Answer 176

an abortion restriction is unconstitutional if it imposes burdens that outweigh its benefits.

regulations designed to foster the health of a woman seeking an abortion are valid if they do not consitute an undue burden the womens right to privacy

Question 177

dobbs: should roe and casey be overturned

Answer 177

maj says yes

Dobbs: (1) The United States Constitution does not confer a right to abortion.
(2) The Supreme Court may overrule a wrongly decided constitutional decision.

Question 178

what reasoning does the dobbs court use to justify that the right to abortion is not fundamental

Answer 178

1. Not in history or tradition
   The right was not deeply rooted in tradition and history – this was used in incorporation cases too
2. Not important for ordered liberty
   Also holds that nothing in the constitution protects the right to privacy – textual argument

Question 179

how do the dobbs maj/roe dissent and dobbs dissent/roe maj view the right to abortion

Answer 179

Dobss maj Argues that abortion is different because it destroys potential life
The roe maj argues that abortion wasnt different than the other unenumerated liberty rights

Question 180

eisenstadt v baird: May a state statute permit the giving of contraceptives to married persons and not to unmarried persons without violating the Equal Protection Clause of the Fourteenth Amendment?

Answer 180

no;

there is no rational or legitmate way for the legislature to distingusih between contraceptives used by married or unmarried persons

Question 181

how does the epc serve as a limitation on states and enforncing sterotypes

Answer 181

Epc a limitation on who a state might embark stereotypes on men and women’s sphere in society
State cant use or reinforce these stereotypes in making laws and shaping society

Question 182

lawrence v texas: Does a state have the power to prohibit sodomy?

Answer 182

no – overturns bowers

Yes. The Due Process Clause of the Fourteenth Amendment includes a right to liberty in individual decisions concerning the intimacies of their physical relationship

Question 183

bowers v hardwick: Does the U.S. Constitution provide a fundamental right to engage in homosexual sodomy?

Answer 183

no

Only those fundamental liberties that are implicit in the concept of ORDERED LIBERTY or deeply rooted in the NATIONS HISTORY AND TRADTIONS may be considered fundamental constitutional rights deserving of heightened protection.

Question 184

Windsor: does a state have the power to prohibit sodomy?

Two women, Edith Windsor and Thea Spyer, got married in Canada and then moved to New York, which recognized their marriage. When Spyer died, she left everything to Windsor. Windsor tried to claim a tax break for surviving spouses but was denied because of the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman. Windsor paid the taxes and then sued, saying the law was unconstitutional.

Answer 184

a federal law that doesn’t include same-sex couples in the definition of marriage for federal benefits is not constitutional.

Question 185

what is the griswold test for uneumerated rights (family resemblance test)

Answer 185

does the right fit within a family of related rights

Question 186

obegerfell v hodges: do states have the power to exclude same sex couples from the defintion of marriage

Answer 186

Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples.

Question 187

glucksburg: is there a fundamental right to commit suicide?

Answer 187

There is no fundamental right to assisted suicide that is protected by the Due Process Clause.

Question 188

describe the pre lochner era of substansive due process

via slaugterhouse

Answer 188

no substantive due process; police power prevails

sluagherhouse court didnt think 14th ammendment should limit the state’s police power

Question 189

describe the lochner era of sub due process

lochner and allgeyer

Answer 189

broader meaning of what liberty means, less deference to state police power and robust judical review

economic sub due process trumps police power

allgyer= liberty also means right to enter into ks

Question 190

describe the fall of the lochner era

west coast

Answer 190

states police power makes a return

all asserted liberty interests are restrained by the health, safety, and general welfare interests that compromise due process

Question 191

describe modern substanstive due process

us v carolne products fn 4 and willsioms lee

Answer 191

high deference to state police power and low judicial review

FN4: judiciaL review is not proper for mere naked claims of of a liberty violation unless its clear that there is no rational basis for congress judgment

Question 192

what was the lochner era courts view on the commerce power?

see hammer (child laobor case) and schecter poultry (both bad law)

Answer 192

the no era; they dont think that the commerce clause gave congress the power to pass laws that got in the way of them being able to k

hammer – can only regulate inherlty harmful goods and things of commerce and not manufacering (whcih proceeds commerce)

poultry: can only regulate commerce in the flow and only direct impacts on commerce

Question 193

what was the post lochner era courts view on the commerce power (ie whats the new borader rule)

see NLRB and Darby (reversed hammer)

Answer 193

the yes era

NLRB: ends the direct/indrect effect dissection set in poultry

new rule: intrastate ACTIVITIES that have a substnatial and close relation to interstate commerce that their control is ESSENTIAL OR APPROPRIATE to protect that commerce from BURDENS OR OBSTRUCTIONS can be regulated

Question 194

what are the three categories of commerce that can be reguated

Answer 194

channles
instrumntailites
substantial affect on commerce – either in the aggregate, (wickard) economic(lopez) or activity(sebulis)

Question 195

how do you know if something is a tax (which is allowed) vs unlawful penalty

remember the quack test

5 things and remember, the words used dont impact it; just because its labled as a tax doesnt make it a valid tax

Answer 195

1. tax can incentivize but it cant madate the behavior ie it needs to be low enough as to not coerce
2. tax is not structured like a criminal penaltiy
3. tax is administered and collected by the irs
4. failure to comply cant be treated as an unlwful act and no adverse consequenses other than having to pay the tax
5. tax does not burden fundamental rights

Question 196

whats the main diff between the tax power and teh commerce power

ie why was ACA able to go through via the tax power and not commerce c;lause

Answer 196

the taxing powr can reach inactivity and are broader than the cc, BUT the cc has more teeth to it if you can meet the elements

taxing power also regulates the induviduals, cc has abilty to regualte state

Question 197

what is the constiuonal disparte impact test - ie when a law is netural on its face

this cant be applied to private individuals

Answer 197

p must show the law had a disparte intent (high burden to meet, see feeny ie must have been adopted because of its dispproprtionate impact) AND

that it was adopted with a discriminatory intent – see arlignton factors for what could mean intent

Question 198

what is needed for cc to kick in after lopez

Answer 198

ECONOMIC ACTIVITY WITH SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE

Question 199

When is it an epc fact pattern

Answer 199

when the government treats a person differently based on that persons memebership in a specfic classification of people

Question 200

what is a dp fact pattern

Answer 200

p is saying that the law is taking away some subtsantve liberty right they are owed

Question 202

what is the state action requirement of the epc?

Answer 202

that the action is attributed to a state actor NOT PRIVATE INDIVIDUALS