Constitutional Law Flashcards
Which Article of the Constitution governs judicial power.
Article III
What is the limit of judicial power?
Actual cases and controversies.
What does it mean for a case to be justiciable?
No advisory opinions
Ripe and not moot
Plaintiff has standing
What is an advisory opinion?
An opinion that lacks an actual dispute or would not have a legally binding effect on the parties.
Which of the following is not an advisory opinion?
- Jefferson asking the Supreme Court for advice on the meaning of federal treaties.
- Plaintiff suing at defendant’s request, and defendant finances and directs the suit.
- Federal law allows veterans to file pension claims in federal court, but gives the Secretary of Defense the power to ignore court decision.
- Firm subject to tax seeks declaratory judgment on its constitutionality.
- Firm subject to tax seeks declaratory judgment on its constitutionality.
A declaratory judgement is not necessarily an advisory opinion.
How would you analyze a ripeness question?
1) Look for a pre-enforcement request
2) Apply the test: Pre-enforcement requests are not ripe unless:
a) there is substantial hardship in absence of review (the more the better); and
b) the issues and record are fit for review (the more legal than factual, the better.)
P seeks a declaratory judgment on the constitutionality of anti-contraception laws not enforced in 80 years. Ripe?
No. No enforcement likely.
Drug firm seeks declaration that FDA lacked authority to require generic names on all drug labels and ads. Compliance would cost $$$; non-compliance would result in serious and civil penalties. Ripe?
Yes. Threat of enforcement (hardship) is real. Plaintiff is simply challenging the fact that the FDA lacks legal authority. There are no facts at issue.
How would you analyze a mootness question?
1) Is the controversy live?
a) P continues to be injured.
b) P has not been made whole.
2) Is there an exception?
a) Capable of repetition, yet evading review. (pregnancy/abortion - and other events of a limited duration.)
b) D’s voluntary cessation
c) Class action, and one P has an ongoing injury.
Inmate suing to change prison conditions, but completes his sentence. Moot?
Yes. No more injury.
Pregnant woman challenges an abortion law, but delivers her baby before the case is heard. Moot?
No. Capable of repetition, yet evading review.
City seeks to close a strip club, but owner retires and closes the doors. Moot?
No. D voluntarily ceased.
What are the elements of standing?
1) Injury in fact
2) Causation
3) Redressability
For standing purposes, what constitutes an injury?
Almost any harm counts, whether it is physical, economic, environmental, loss of constitutional or statutory rights, etc.
Future injuries can be enough, but they have to be imminent or be sufficient likelihood that they will occur again.
Not: ideological objections (i.e. political complaints), or generalized grievances that you share with the rest of society.
Citizen wants to sue the government to obey the law. Does Citizen have standing?
No
Taxpayer wants to sue the government for how it spends tax revenues. Does Taxpayer have standing?
No
Name two exceptions to the general rule that plaintiffs who challenge taxes or spending do not have standing.
- Taxpayers may challenge their own tax liability.
- Plaintiff can challenge congressional spending in violation of the establishment clause (e.g. Congress allocates $ to build a church.) Plaintiff is still prohibited from challenging executive spending, however.
When might a third party have standing?
- Close relationship (e.g. parent/child or Dr./Patient)
a) P must have an injury, and he could bring suit.
b) 3P unable or unlikely to sue (maybe for privacy reasons)
c) P can adequately rep the 3P. - Organizations on behalf of their members
a) Members have standing individually.
b) Members’ injury is related to purpose of the org.
c) Members’ participation is not required (i.e. not seeking individualized damages). - Free Speech Overbreadth
a) Substantial overbreadth in terms of the law’s legitimate to illegitimate sweep.
b) Not commercial speech.
Dr. challenged an abortion law, raising the claim of his patient. Third party standing proper?
Yes. Close relationship.
Non-custodial parent w/o decision making authority wants to challenge a statute on behalf of his child. Third party standing?
No. No close relationship.
NAACP wants to challenge a law compelling disclosure of group membership raising the association rights of its members. Third party standing?
Yes. It is a group asserting the rights of its members and it is only seeking declaratory relief, not individual damages.
Publisher of an obscene website wants to challenge an internet indecency ban on behalf of those with non-obscene websites. Third party standing?
Yes because the law is substantially overbroad.
Publisher of obscene website wants to challenge a ban on indecent commercial websites on behalf of those with non-obscene websites. Third party standing?
No because he is attacking a commercial regulation.
What is legislative standing?
Legislators may challenge acts that injure themselves personally, rather than the legislature generally or institutionally.
e.g.
Legislator challenging a tie-breaking vote of Lt. Gov. that nullified contrary votes = legislative standing.
Legislator challenging a line item veto that gave the President the power to alter legislation by Congress = no standing.
How does one prove causation for standing purposes?
P must show that his injury is fairly traceable to defendant. The more attenuated, the more there is likely a break in the chain.
E.g. No causation where parents of black public school children challenged IRS failure to deny tax breaks to discriminatory private schools, claiming that the breaks caused public schools to be less integrated. Denying tax breaks did not cause white flight.
How does one prove redressability for standing purposes?
P must show that a favorable court can remedy the harm (e.g. through $ damages or an injunction.)
e.g. No redressability when mother challenged the state’s failure to prosecute for non-payment of child support, claiming loss of child support from lack of prosecution. Even resolving this case would not result in mother receiving child support. It would simply put father in jail.
What is the political question doctrine?
Federal courts will not decide political questions, that is, questions:
1) Committed by the Constitution to the political branches of government; or
2) Incapable of, or inappropriate for, judicial resolution.
Give some examples of political questions, which the federal courts will not hear.
Challenges based on:
1) The Guaranty Clause - guaranteeing a republican form of gov’t.
2) The President’s foreign affairs and foreign policy decisions.
3) Impeachment process. Challenges to the procedures used in an impeachment process.
4) Partisan gerrymandering.
5) Qualifications of members of congress are reserved to that chamber to decide.
6) Seating of delegates at political conventions.
What is sovereign immunity? What are some exceptions, and when is it not barred?
Sovereign immunity protects the states from being sued unless they consent.
Exceptions:
- Waiver. They have all consented to be sued for negligence.
- The plaintiff is another state or federal gov’t.
- Bankruptcy proceedings and state is creditor.
- Clear abrogation by Congress under 14th Am powers to prevent discrimination.
Not Barred:
- Can sue state officials even if you cannot sue the state itself. (entitled to injunctive relief or $ damages from their own pocket.)
- Local governments (municipal and county) can be sued because they do not enjoy sovereign immunity.
I want to sue my state to prevent my home from being bulldozed. Barred?
Yes.
I want to sue the state director of transportation to prevent my home from being bulldozed for a highway. Barred?
No.
Rodney King sues LAPD for beating him up. Barred?
No.
I want to sue my state under federal anti-discrimination laws for firing me on racial grounds. Barred?
No.
When will federal courts decline to (abstain from) decide a federal constitutional claim?
- If there is an unsettled Q of state law (e.g. law is ambiguous and federal courts need to know how it is interpreted at the state level before federal courts take it up.)
- Fed Courts generally may not enjoin pending state judicial or administrative proceedings.
When will the U.S. Supreme Court review a case?
After there has been a final judgment by the highest state court capable or rendering a decision, a federal court of appeals, or (in special cases) a three judge district court.
A state Supreme Court found that a search violates both the 4th Am. to the U.S. Const., and, it also violated an independently interpreted provision of the state const. May the Supreme Court review?
No. The case was decided on independent and adequate state law grounds. Even if the Supreme Court ruled on the 4th Am. issue, the search still violated the state constitution, so the outcome would not change.
A state Supreme Court found that a search violates both the 4th Am. to the U.S. Const., and, it also violated an parallel provision of the state const.that incorporates federal law. May the Supreme Court review?
Yes because the state constitution paralleled and incorporated state law.
What does it mean if the Supreme Court refuses to review something because of independent and adequate state grounds?
The US Supreme Court will not review a federal question if the state court decision rests on an independent (separate) and adequate (sufficient) state law ground.
State supreme court denies review of appeal under procedural rule only applied against black people. Ind. and Adeq. state law grounds?
No. Independent and adequate state law grounds do not apply if the state law grounds apply a rule that is irregularly applied or discriminatorily applied.
What Article of the Constitution outlines Congress’ enumerated powers?
Article I, Section 8
Under what circumstances does Congress have a general police power?
Federal land, Indian reservations, DC.
When is the necessary and proper clause invoked as a basis for legislative power?
When it is connected to another enumerated power. Congress may choose any rational means to carry out an enumerated power, as long as, the means are not prohibited by the Constitution. Need not be the best means.
E.g. Congressional bake sale to raise money for the Army is ok.
Give examples of Congress’ enumerated powers.
Citizenship Bankruptcy Federal Property Patents and Copyright Post Offices Coining Money Territories and DC Declaring War Raising and Supporting Armies Providing and Maintaining Navy
Define Congress’ taxing and spending power.
Congress may tax and spend to provide for the general welfare. This includes an public purpose not prohibited by the Constitution, even if not within an enumerated power.
Which of the following are permissible under the taxing and spending power?
1) A tax on factory carbon emissions.
2) Spending on schools for states following federal education standards.
3) Tax on failure to purchase health insurance.
All are permissible.
If Congress wants to attach conditions on its spending, may they do so?
Yes, if
1) the “strings” relate to the purpose of the spending and do not violate the Constitution.
2) the “strings” are not unduly coercive (cannot act as a “gun to the head”).
e. g. Congress cannot condition school money on highway speed limits. Not related.
e. g. Cannot withhold Medicaid funding (over 10% of state budgets) if states refuse to participate in Obamacare. Withholding 10% of a states’ budget amounts to a gun to the head.
With whom may Congress regulate commerce?
1) Foreign nations
2) Indian tribes
3) Among the states.
Explain the Commerce Clause.
Congress may regulate the channels, instrumentlities, and activities that have a substantial effect on of interstate commerce.
Congress may also regulate solely intrastate activity if:
1) It is economic and, in the aggregate, the activity substantially effects interstate commerce.
2) It is non-economic and the state can show the activity substantial economic impact. (They usually cannot.)
Other limits:
1) No power to regulate non-economic activity in an area traditionally regulated by states.
2) Congress cannot compel participation in commerce (even if lack of participation substantially affects interstate commerce. e.g. buy health insurance).
Is a ban on discrimination at hotels and restaurants within Congress’ power under the Commerce Clause?
Yes. It is an activity that substantially effects interstate commerce.
Is a ban on local cultivation and use of marijuana within Congress’ power under the Commerce Clause?
Yes. See Wicker. It is intrastate economic activity that, in the aggregate, substantially affects interstate commerce. That is, if everyone did it, it would have an effect.
Is a criminal ban on domestic violence against women within Congress’ power under the Commerce Clause?
No. It is intrastate and non-economic activity; therefore, there must be substantial economic impact.
Is a criminal ban on possessing a gun within 1000 ft of a school within Congress’ power under the Commerce Clause?
No. It is intrastate and non-economic activity; therefore, there must be substantial economic impact.
Is a mandate to purchase individual health insurance within Congress’ power under the Commerce Clause?
No. Congress cannot require you to participate, but they can tax you for failing to participate.
True or False:
In addition to banning private discrimination under its commerce power, Congress may also ban state discrimination under its 14 Am. power to enforce the guarantee of equal protection.
True.
e.g. Congress may authorize private suits against state governments for employment discrimination on basis of race, gender, and religion.
What is the standard for Congress to delegate power to agencies?
Congress may broadly delegate legislative power so long as they provide some intelligible principle to guide the exercise of power.
e.g. Delegation of authority to EPA to regulate air pollutants that “endanger public health or welfare.”
Does the President have the power to line item veto? Can he get it from Congress?
No. It violates bicameralism, which is the principle that a law must pass both houses and be presented to the President for his wholesale approval or rejection.
Can Congress grant itself a line item veto power?
No. It violates bicameralism and presentment. That is, Congress cannot pass a law granting one house or a committee with the power to reform it later.
If I want to sue Ted Cruz for acting like an assbag in a speech on the floor of the Senate, may I do so? Why/Why not?
No. Members of Congress enjoy immunity from civil and criminal liability for legislative acts, which include, speeches on the floor, voting, and committee reports.
It does not include: bribes, tweets, town halls, speeches and publications outside of Congress.
What Article of the Constitution governs Executive power?
Article II
What is the job description of the President in one sentence?
President has the power and duty to faithfully execute laws.
Whom may the President appoint and remove?
The President has the power to appoint:
1) Ambassadors
2) Federal Judges
3) Officers of the US (e.g. cabinet secretaries)
w/ majority approval by the Senate.
Recess appointments are permissible if the Senate is in recess for at least 10 days, and those last until the end of the next Senate session.
Congress may vest appointment power in the President, department heads, or judiciary, but not in themselves for the appointment of inferior officers (e.g. the undersecretaries or independent counsel).
The President may remove high-level executive officers at will (e.g. cabinet secretaries), but Congress may limit his removal of other executive officials to good cause.
Note***Congress may only remove official through the impeachment process.
When may the President pardon someone?
The President may pardon someone convicted or accused of a federal crime unless and until that person has been impeached by Congress.
Note***This does not cover civil liability for that crime.
Who may declare war? Who may deploy troops?
Only Congress may declare war, but the President, as Commander-in-Chief, has broad discretion to deploy troops internationally in order to protect American lives and property.
Note
- Challenges may be non-justiciable as a political question.
- *Congress can check the President’s power through the power of the purse.
What are the similarities and differences between a treaty and an Executive Agreement?
1) The President negotiates them both.
2) Treaties must be ratified by the Senate by 2/3 approval; Executive Agreements have no ratification requirement.
3) Both trump existing and future state law.
4) Treaties trump existing (not future) federal law; Executive Agreements do not ever trump federal law.
Explain Congress’ impeachment power.
Congress may impeach the President, VP, federal judges, and all officer of the US for treason, bribery, or other high crimes and misdemeanors.
First the house must vote to impeach (majority), then the Senate must convict by 2/3 vote in order to remove.
What is the difference between Presidential Immunity and Executive Privilege?
Presidential Immunity refers to the President’s absolute immunity from civil damages for any actions arguably within official responsibilities. However, he does not have immunity from private suits for conduct prior to taking office.
Executive Privilege protects confidentiality of presidential communications unless the privilege is outweighed by other important interests (e.g. US v. Nixon).
Explain the levels of inherent/implied presidential power.
1) Congress has authorized the President to act. (Best for President)
2) Congress is silent on the President’s authority to act. (Mediocre for President)
3) Congress has prohibited the President to act. (Worst for President).
What is the 10th Amendment and how does it protect the state from the federal government?
The 10th Am. is the states’ police power and it reserves to the states and the people, all the powers not granted to the US or prohibited.
It protects the states because Congress cannot compel states to enact or administer federal programs.
e.g. Requiring states to enact environmental regulations or
Requiring local law enforcement to conduct background checks for federal handgun laws.
What is the Supremacy Clause?
The Supremacy Clause of Article VI makes federal law preempt inconsistent state and local laws.
What types of code and documents make up federal law?
The Constitution, statutes, regulations, treaties, and executive agreements.
What is preemption?
The concept of preemption is similar to the Supremacy Clause, but it is more specific.
There are two types:
1) Express Preemption - Congress says that Federal Law governs x, y, or z. In which case, federal law preempts state law.
2) Implied Preemption -
a) Conflict
(i) it is impossible to follow both federal and state law so federal law governs.
(ii) state law impedes federal law/
b) Field - Extensive regulation indicates Congressional intent to occupy the field because there is no room left for the state to regulate.
Which of the following are examples of preemption
A - Fed law sets max auto emissions at 50 ppb. State law sets max at 40ppb.
B - Fed law sets max auto emissions at 50 ppb. State law sets max at 60 ppb.
C - Fed law delegates to EPA the exclusive authority to set max auto emissions. EPA sets max at 50 ppb. State sets max at 40 ppb.
D - Fed law encourages reporting employment discrimination to federal agency. State law denies unemployment benefits to its citizens who do.
E - Congress extensively regulates immigration. Border state imposes additional requirements for entry.
B, C, D, and E are all examples of preemption.
What is the dormant commerce clause?
It prohibits state laws that discriminate against or unduly burden interstate commerce.
An state’s law violates the DCC if:
1) It is discriminatory, unless:
The law is necessary to achieve an important government purpose other than protectionism, and there are no less discriminatory alternatives.
OR
2) Even though it is non-discriminatory, it unduly burdens interstate commerce.
Exceptions:
1) Congress approves of the statute
2) The State acts as a market participant
3) The law is favoring gov’t action that involves the performance of a traditional gov’t function (e.g. waste disposal).
What is the Privileges & Immunities clause of Article IV?
The P&I Clause prohibits state laws that discriminate against out-of-state US citizens with regards to
1) Important Commercial Activities (i.e. earning livelihood)
2) Fundamental Rights
In order to successfully sue a plaintiff must:
1) Be an out of state US citizen (person, not corp/entity)
2) Show that the law discriminates on that out of state citizens ability to earn a livelihood or fundamental rights.
Exception:
Laws may discriminate on out of state citizens if the law is necessary to achieve an important gov’t interest and there are no less restrictive alternatives.
True or False:
DCC and P&I Art. IV are mutually reinforcing rather than mutually exclusive.
True. They often overlap and a law could violate either, neither, or both.
City requires its contractors to employ 50% residents. Out of state citizen sues? Does this violate DCC and/or P&I Art. IV?
DCC = Valid because city is a market participant. P&I = Invalid; right to earn a living burdened.
State law prohibits sale of out of state milk at price lower than in state milk. Out of state dairy farm sues. Does this violate DCC and/or P&I Art. IV?
DCC = Invalid; straight protectionism. P&I = N/A; not a US Citizen suing.
State charges out of staters more than in staters for college. Out of state citizen sues. Does this violate DCC and/or P&I Art. IV?
DCC = Valid; State is market participant. P&I = Valid; Not being denied right to earn living or fundamental right (no fundamental right to higher ed.)
OK bans transport and sale of in-state minnows out of state. Texas bait company sues. Does this violate DCC and/or P&I Art. IV?
DCC = Invalid; there's a less discriminatory alternative. P&I = N/A; US Citizen not the one suing.
ME bans importation of live bait fish, which might introduce new parasites into the state. NH bait company sues. Does this violate DCC and/or P&I Art. IV?
DCC = Valid; discriminatory but important gov't interest, and no less compelling alt. P&I = N/A; P not a US citizen.
CA bans gas guzzling SUVs. MI manufacturer sues. Does this violate DCC and/or P&I Art. IV?
DCC = Valid; not discriminatory and burdens on IC do not clearly outweigh benefits. P&I = N/A; P not a US citizen
IL, alone, requires trucks to use curved mud flaps, which confer no clear safety benefits. Out of state trucking company sues. Does this violate DCC and/or P&I Art. IV?
DCC = Invalid; nondiscriminatory but burdens on IC clearly outweigh benefits. P&I = N/A; P not a US citizen.
TX charges out of staters substantially more than in-staters for commercial fishing licenses. LA citizen sues. Does this violate DCC and/or P&I Art. IV?
DCC = Invalid; discriminatory and no important purpose. P&I = Invalid; out of state citizen and TX is burdening the LA citizen's right to earn a living.
City requires law firms to hire 50% residents. Out of state citizen sues. Does this violate DCC and/or P&I Art. IV?
DCC = Invalid; discriminatory purpose and no important interest. P&I = Invalid; right P and burdens right to earn a living.
State restricts contraceptives sales to residents. Out of state citizen sues. Does this violate DCC and/or P&I Art. IV?
DCC = Invalid; disc. purpose and no imp. gov't int. P&I = Invalid; Right P and fundamental right burdened.
Can a state impose taxes that discriminate based on state citizenship?
Like state regulation of IC, state taxation of IC is subject to Commerce Clause challenge.
i.e. Discriminatory taxes = generally invalid
Non-discriminatory taxes generally valid if
1) There is a substantial nexus between taxpayer and the state; and
2) Fair apportionment to business done or benefits received in state.
e. g. Tax credits for gas sellers of in-state ethanol = invalid.
e. g. Sales tax on items sold or shipped from out of state seller = invalid.
e. g. Gross receipts tax applied to 25% of gross receipts of multistate business with 25% in-state sales.
May the states tax the federal gov’t?
No, states may not tax or regulate the federal government including its agents and activities without its consent.
e.g. State cannot require contractor to obtain a state license to build on a federal air force base.
What is the Privileges or Immunities Clause of the 14th Am?
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Prohibits state laws that interfere with:
1) Interstate travel
a) Right to enter or leave state
b) Equal treatment once a perm. res. of a state.
c) No fundamental right to international travel.
2) Ability to Petition Federal Gov’t
3) Not provide you with protections of the Bill of Rights
True or False: The Constitution applies to public and private conduct.
Mostly false. In general, the Constitution applies to public, not private conduct.
Exceptions and Further explanations
1) The 13 Am. ban on slavery applies to the public and private action.
2) Private party is performing function traditionally and exclusively done by government is considered state action.
3) Significant state involvement in private conduct is considered state action.
What rights have not been incorporated to the states from the Bill of Rights?
Quartering of soldiers
Right to grand jury indictment
Right to Jury in a civil case
Right against excessive fines.
If a police officer or a teacher acts unlawfully, but in her official capacity, does this count as state action?
Yes
Which of the following constitutes state action?
(A) Company runs a company town
(B) Company runs a shopping mall
(C) State privatizes prisons
(A) Company runs a company town
(C) State privatizes prisons
Which of the following constitutes state action?
(A) State grants liquor license to private club that racially discriminates.
(B) State fails to protect person not in state custody from private harm.
(C) Voluntary association of mostly public and some private high schools, run mainly by public school officials during school hours, regulates sports within the state.
(D) NCAA voluntary association of public and private universities that regulates sports, ordered firing of state college coach.
(E) State leases premises to restaurant that racially discriminates.
(F) Officer targets minorities contrary to policy.
(G) State court enforcement of racially restrictive covenant.
(C) Voluntary association of mostly public and some private high schools, run mainly by public school officials during school hours, regulates sports within the state.
(E) State leases premises to restaurant that racially discriminates.
(F) Officer targets minorities contrary to policy.
(G) State court enforcement of racially restrictive covenant.
What amendments tells us that due process applies to the states? What amendment tells us that it applies to the federal gov’t?
States = 14th Am. Fed = 5th Am.
What is procedural due process?
An individual has the right to a fair process when the government acts to deprive a person of life, liberty, or property.
Such a deprivation occurs when there is an intentional or reckless disregard, not a negligent one.
Liberty refers to physical freedom and Constitutional rights, not harm to reputation.
Property refers to real, tangible, and intangible. Also refers to gov’t entitlements to which an individual has a reasonable expectation of continued receipt. (Welfare, public education, gov’t licenses, tenured employment, employment for a term, but not at will employment.)
If the gov’t intends to deprive you of life, liberty, or property, what must they do to comply with procedural due process?
1) Notice (reaosnably calculated to inform);
2) Give opportunity to be heard (pre-deprivation except in cases of emergency like taking someone’s license when he refuses a breathalyzer); and
3) Neutral decision maker (no actual or serious risk of bias.)
What is the balancing test for whether someone has been giving proper opportunity to be heard?
It determines if the hearing was good enough to comply with due process considering the nature and extent of the proceedings and these factors:
1) The importance of the interest to the individual;
2) The risk of error through procedures used;
3) Accuracy gain from additional proceedings;
4) Burden on gov’t (e.g. inefficiency and costs.)
Compare the procedure for terminating parental rights with the detention of a citizen as enemy combatant. Lecture notes page 26-27.
What is rational basis review? When does it apply?
Rational basis review places the burden on the challenger of the law to prove that the gov’t act or classification is not rationally related to any legitimate gov’t interest.
It applies in all the situations that S.S. and I.S. do not such as age, disability, wealth, alienage classifications by Congress, and alienage classifications related to democratic governance.
What is intermediate scrutiny? When does it apply?
I.S. review places the burden on the gov’t to prove that their classification was substantially related to an important government interest.
Or, and important interest that requires an exceedingly persuasive justification, not a role stereotype.
It applies when the gov’t discriminates based on gender or legitimacy.
What is strict scrutiny? When does it apply?
S.S. review places the burden on the gov’t to prove that the burden they placed on a fundamental right or the suspect classification is narrowly tailored to a compelling gov’t interest, and there are no less compelling means for achieving that interest.
It applies when the gov’t burdens a fundamental right or treats members of a suspect class differently.
Suspect classifications are ones based on race, national origin, and alienage classifications by state gov’t.
Fundamental rights include marriage, procreation, contraception, custody, care and upbringing of a child, living with extended family, interstate travel, and the right to vote.
What provisions of the Constitution provide for equal protection?
As to the states = 14th Am.
As to the Fed Gov’t = 5th Am. (it’s implied in the due process clause of the 5th Am.)
What are the steps to follow in an Equal Protection question?
1) Identify the class
2) Identify the test (level of review)
3) Apply the test.
How does one determine which test to use?
1) Is it facially discriminatory?
2) Is it facially neutral but has both discriminatory impact and intent?
e. g. Male only hiring policy for firefighters = facial; I.S. apples.
e. g. Written test for hiring shows lower scores for black people, but was not designed as a discrimination tool. = neutral and no intent; R.B. applies.
e. g.State grants hiring preferences for veterans who are disproportionately male. = neutral, no intent; R.B. applies.
How does strict scrutiny change with school integration?
States may impose classifications that would otherwise violate S.S. if there is history of discrimination to be remedied.
e.g. Busing pupils on racial basis to remedy effects of past legal segregation in district is a compelling interest, and narrowly tailored.
versus
Busing pupils to integrate or diversify schools beyond remedying effects of past legalized segregation in district violates E.P. because while diversity is a compelling interest, busing is not narrowly tailored to achieve that interest.
Race must not be a blunt instrument in the efforts to achieve diversity.
When is Affirmative Action acceptable? How should it be implemented?
A.A. can acceptable in higher ed and in gov’t hiring and contracting.
e. g. School uses a holistic approach in which race is one of many non-determinative factors in admissions. This is narrowly tailored to achieving a compelling gov’t interest (diversity in law school is a compelling gov’t interest.)
e. g. can’t give points for race because it is using race as a blunt instrument.
e. g. An agency can employ AA to remedy its own past discrimination.
e. g. Cannot set aside 30% of gov’t contracting work for minority contractors when there is no history of discrimination.
When is a classification based on alienage not subject to S.S.?
1) When Congress is making the classification.
e. g. Congress may choose not to extend health care coverage to non-citizens for fiscal reasons.
2) State classification based on democratic self-governance.
e.g.
States may NOT require US citizenship for employment (generally), gov’t benefits, property ownership, being a notary public, or admission to the bar.
They may if it involves democratic self governance such as, voting, holding elective office, being a police officer or public school teacher, or jury service.
State law only entitles women to alimony upon divorce. What test, what result?
I.S.; invalid.
VMI excludes women because they would not be able to satisfy the physical requirements or succeed under the adversative method. What test, what result?
I.S.; invalid
Selective Service Act only requires males to register. What test, what result?
Court upheld it but kind of dodged it at the same time saying that it was up to Congress, and they won’t interfere..
Social Security formula entitles women to greater benefits to remedy long history of pay discrimination. What test, what result?
I.S.; valid to remedy long history of pay discrimination.
Statutory rape law only makes men liable. What test, what result?
I.S.; valid since women have a natural deterrent to having sex as a minor, that is, pregnancy.
Law permitting parents to sue for wrongful death for marital but non-non-marital children. What test, what result?
I.S.; invalid.
Law allowing non-marital children to inherit from father only if paternity was established during father’s lifetime. What test, what result?
I.S.; valid.
Law denying children of undocumented aliens free public education. What test; what result?
Unclear; invalidated under what appeared to be I.S.
State law denying discrimination protection to gays and lesbians. What test; what result?
R.B. but animus is never rational so the law was invalidated.
What Amendments guarantee substantive due process?
As to the the states = 14th Am.
As to the federal gov’t = 5th Am.
How does one determine if something is a fundamental right?
1) It is deeply rooted in this nation’s history and tradition.
2) It is implicit in the concept of ordered liberty.
OR
3) It is identified as a fundamental right based upon reasoned judgement and new insight.
Law denying the right to marry. Is that a substantive due process or equal protection problem?
Substantive Due Process. It denies everyone a fundamental right.
Law denying gays and lesbians the right to get married. Is that a due process or equal protection problem?
Both. It denies some people a fundamental right.
