Con Law II Flashcards
Alienage (Equal Protection)
- strict scrutiny (mostly)
- An alien may be excluded from performing political function that involve exercise of discretion (PO’s & school teachers)
- Fed gov may discriminate b/c control over immigration
Equal Protection Approach
1) Identify class
a) If discriminatory on face, determine level of scrutiny & apply
b) If discriminatory impact, use approach for discrimination as applied
Discrimination as applied - Analysis
1) discriminatory impact?
2) did the state have discriminatory purpose? If yes, burden shifts
• uncon only if evidence of purpose
Rational Basis- Analysis. Constitutional so long as:
1) gov can identify some LEGIT state purpose that can be described as sought by the statute; AND
2) there’s a rational relationship between identified purpose & regulatory means that sets up the classification
Rational Basis w/ Teeth - Analysis
1) identify state interest asserted by gov
2) is classification extremely over/underinclusive given the identified state interest?
3) does it make you question if the State’s interest is what they’re saying it is? Is it an indication that State is just giving rein to irrational prejudices?
Intermediate Scrutiny - when to use
when there’s a suspect class, but existence between class & other groups will sometimes make legislative distinctions appropriate
• gender; children born out of wedlock
Intermediate Scrutiny - Analysis
1) can state identify an important gov objective?
2) Is gov regulation substantially related to achieving the objective?
a) no: appears invidious
b) ask: is it over/under? to what degree could gov achieve its objective w/ equal efficiency using different means?
Intermediate Scrutiny - Gender Discrimination Context
Gender based classifications get intermediate scrutiny (Craig v. Boren - beer) as long as the legislature has intentionally discriminated against one sex in favor or another.
However, If the burden on one sex is unintended, the rational basis test is used. (Feeney - vets)
Ct requires an exceedingly persuasive justification for any gender based classification (VMI)
strict scrutiny used in 2 situations:
1) carefully scrutinize suspect classifications (race, ethnic, & national origin classifications, even if designed to assist a minority.)
2) when a discrimination affects a fundamental liberty interest
To find a suspect class, consider factors such as whether the class:
1) immutable characteristic
2) historically faced discrimination
3) Suffers exclusion from political process
4) continuing problem of irrational societal attitudes based on stereotypes or prejudice; &
5) will often require special legislative measures, making some flexibility/deference in evaluating legislation appropriate
strict scrutiny analysis
1) can state identify a COMPELLING state interest
2) is regulation narrowly tailored to achieve its goal
• most situations where State could’ve accomplished its end w/o est classifications are uncon
• burden on gov
What are some compelling state interests?
1) remedy past gov discrimination
2) remedy effects of locality-specific societal discrimination when gov has been a passive participant
3) diversity in education to avoid racial isolation & improve educational experience
Discrimination as applied - Uncon only if evidence of discriminatory purpose
- doesn’t have to be primary factor, merely motivating
- once π est., state has burden to show measure would’ve been adopted anyway for non-discrim reason
- If state cant show = uncon
Discrimination as applied - Discriminatory purpose may be shown through:
- statistical evidence of discrim impact (if evidence so compelling no other conclusion reasonably possible) - May shift burden to state
- history of govs conduct; or
- legislative history (feeney)
Discrimination as applied - If no discriminatory purpose shown:
Avoids heightened scrutiny – subject only to rational basis
As Applied - Key Case: Washington v. Davis:
D.C. police dept. test disproportionately failed by African Americans. Ct said not enough to have impact; there must also be intent/purpose.
Fundamental Rights: Approach
- Describe the right
- Determine whether right is fundamental/important/liberty interest
- Determine if there has been a substantial infringement of right
- Determine if best attacked using substantive due process, equal protection, or both
Well established Fundamental Rights include:
- marriage
- living together as a family
- to have children
- contraception
- to refuse medical treatment
- travel
- to vote
- access to the courts to protect a fundamental right
important rights include
- abortion
- sodomy
- taking pain med for terminal suffering
Examples of Rights Not Recognized:
- To an education
2. Assisted suicide for terminally ill patient
Step 2: Determine whether the right is fundamental
- fundamental = strict scrutiny
- if SCOTUS case law has recognized the specific, narrowly defined right, use relevant precedent
- If no precedent, different justices will respond to diff arguments
Step 4: determine if fact pattern is best attacked using substantive due process, EP or both
analysis will be similar, but substantive due process is usually the better option when a restriction applies to all individuals equally
EP analysis (fundamental rights context)
- same analysis as before but Q is whether it improperly undercuts the enjoyment of a right for some group (instead of whether class is invidious)
- may consider if state has alt means; but will focus on under/over inclusiveness
Substantive Due Process analysis - on its face
statute lacks plainly legit sweep b/c:
- fundamental right - no compelling state interest and/or measure not necessary to achieve
- important right- upon balancing, state interest insufficient
- liberty- fails rational basis
Substantive Due Process analysis - as applied
1) is the measure necessary given the plaintiff in this case?
2) is the measure a balanced one given the plaintiff in this case?
Under rational basis, a purpose is legitimate if it
advances traditional “police” purposes (protecting safety, health, morals) or anything not prohibited by constitution.
Purpose does not have to be the same one legislature intended.
Substantive Due Process: Conservative, Moderate, Liberal Approach
- conservatives: will describe narrowly
* liberals: will describe broadly
Applying Rational Basis (substantive due process)
- If no fundamental or recognized right exists: argue statute affects liberty of the individual since it restricts their conduct
- State must identify legit state purpose + show relationship between means chosen & purpose
- as long as there’s a cognizable justification, states are free to regulate economic interests
Applying Intermediate/Moderately High (substantive due process)
1) analyze gov interests that justify regulation of right
2) is right unduly burdened given the interests?
• morality is insufficient as interest/cannot be to stigmatize those engaged in activity
Applying Strict Scrutiny (substantive due process)
1) state’s interest must be very compelling/important
2) analyze whether regulation is necessary to achieve state interest; can state achieve goals in other ways?
Abortion: constitutionally protected on what basis?
- Privacy (includes a woman being able to receive/take advantage of med judgment of her physician as well as a respect for personal, intimate choices & right to define one’s own concept of existence)
- enormous burden that carrying a pregnancy to term imposes on a woman
- Making basic life choices without gov intrusion
Abortion: what are the gov’t interests?
- Pregnant woman’s health; maintaining medical standards
- Protecting potential life can be used by gov as a legit interest pre-viability, applying a rational basis test, so long as it does not unduly burden the right to an abortion
Abortion: what is the point of viability?
the point at which the government’s interest in potential life becomes so strong as to trump any individual right except that woman’s right to protect her own life and health (Casey)
Gov may not impose an “fill in this blank” in a woman’s right to an abortion prior to viability
“undue burden”
What is an undue burden?
- woman’s legit fear of physical or psych abuse if required to notify spouse are severe enough = undue burden
- Casey gives only limited guidance as to meaning of “undue burden”; refers to regulations that place a “substantial obstacle in the path of a woman” when summarizing its requirements
Abortion: Some regulations declared constitutional
- required parental consent for minor as long as there’s a judicial bypass
- restrictions on abortion methods so long as equally safe alt methods avail
- informed consent requirements incl 24 hr delay so woman receives info from physician & may consider consequences
- laws banning abortion after viability (but regulations must always provide exception for a woman’s life/health)
- law barring state funded abortions
Abortion: Some regulations declared constitutional
- required parent consent for minor as long as there’s a judicial bypass
- restrictions on abortion methods so long as equally safe alt methods avail
- informed consent requirements incl 24 hr delay so woman receives info from physician & may consider consequences
- laws banning abortion after viability (but regulations must always provide exception for a woman’s life&health)
- law barring state funded abortions
what is a “plainly legitimate sweep”?
there are at least a significant range of situations where the statute would be constitutional, so the court will not strike it down. If so, not on it’s face.
