Constitutional Law Final Flashcards
Equal Protection is by its very nature ___________.
Comparative
What does comparative mean?
The world can be divided into at least 2 groups
Question is “Can gov’t treat the two groups differently?”
Two ways the Government can treat two groups differently
- RIGHTS - Group A gets to exercise a fundamental right and Group B does not.
- MEMBERSHIP IN A GROUP - Maybe the 2 groups are divided based upon characteristics of the 2 groups
- race
- sex
- ethnicity
- national origin
- alienage
- etc.
What makes up an Equal Protection claim?
- Government as the actor.
- Took an intentional action
- inadvertent actions don’t trigger a due process or equal protection claim - Which Constitutional Amendment?
- Feds - 5th Amendment through due process
- State - 14th Amendment Section 1 - How is the world divided?
- government has intentionally made a decision to treat 2 groups differently
- Goal is X, Group doesn’t get X, Government shouldn’t be allowed.
Two Levels of Review
- Rational
2. Heightened Scrutiny
Two subsets of heightened scrutiny
- Intermediate Scrutiny
2. Strict Scrutiny
Intermediate Scrutiny
Exceedingly Persuasive Justification:
- Important Interest
- Substantial Relationship to achievements to that purpose.
**Basically only for gender, illegitimacy, or alienage with respect to compulsory schooling.
Strict Scrutiny
- Classifications based upon fundamental right, race or ethnicity.
- Suspect Class
- DISCRETE - people are identifiable
- INSULAR - unable to protect themselves through the political process.
COMPELLING INTEREST and NARROWLY TAILORED
**Cannot be post-hoc
How to make a statutory claims?
Show disparate impact
Look at impact vs. intent
As applied not facially challenge.
Equal Protection: Why is the world divided?
- Identify the government’s interest
- If the government is going to divided the world, the government must have a reason.
- Look at the face of the statute at issue, as well as it is applied, to help determine why the world has been divided
Fact Pattern Analysis
- First, identify the division.
- what are the groups? Describe them (can be 1 person)
- Second, argue that the two groups should not be treated differently.
- no Constitutionally appropriate reason to differentiate
- Show that the two groups are similarly situated
- Is there a way to increase the level of scrutiny?
- Triggers to for higher scrutiny
- Fundamental Right
- Suspect Class
- Quasi-suspect class
- If no trigger, the measure is reviewed under rational basis
- This is a very low standard, so the government will usually win.
- Triggers to for higher scrutiny
Discrimination
Issue: Is that a difference that government is empowered to recognize?
- Government Actor
- Intentional Act
- Feds - 5th , State - 14th
**People are different and government should not be prohibited from recognizing and taking those differences into account.
Two Types of Discrimination
- On its face
2. As applied
Discrimination “On its face”
“We won’t do this based on race, ethnicity, or national origin”
Examples:
1. Preventing a race from being a jury member
Discrimination “As Applied”
“We won’t do this because of a certain issue, but as applied may still be discrimination”
Discrimination by Race
Strict Scrutiny
All legal restrictions which curtail the civil rights of a single racial group are immediately suspect.
Way to get around compelling interest and narrowly tailored?
Prove Invidious Discrimination (Unfairly Discriminating)
Invidious Discrimination
Will be completely irrelevant to any legitimate government objective
Immutable
Involuntary
Intentional and Unjustified Discrimination
Way to get around Strict Scrutiny?
Pressing public necessity MAY justify the existence of such discrimination.
-time of war
Still needs to be compelling and narrowly tailored.
Discrimination K-12 Education
Strict Scrutiny
No separate but equal
Charges the States with “all deliberate speed” to adjust
Only State Action because you don’t have a fundamental right to education.
Discrimination by Reverse Discrimination/Affirmative Action
Strict Scrutiny
Characteristics that help to determine discrimination and the respective levels or review
- Involuntary (no choice)
- Immutable (cannot be changed)
- Potentially Irrelevant (not essential to Government objective - doesn’t further legit shit)
Over/ Under Inclusive in terms of Heightened Scrutiny
Degree of precision effects level of scrutiny;
Over: too many individuals that are not similarly situation. (higher scrutiny)
Under: too few individuals that are similarly situated.
Discrimination by Gender
Intermediate Scrutiny
There are physical difference between men and women.
Its involuntary, may or may not be immutable.
Quasi-Suspect Class
Quasi-Suspect Classes
- Gender
- Illegitimacy
- Alienage with K-12 students
Discrimination by Homesexuality
Level of review is not determined.
Analysis:
- What are the groups?
- How is the group being divided?
- What level of scrutiny?
- Fundamental Right
- Suspect Class
- Rational Basis (maybe)
- political process
- Quasi-Suspect Class
Discrimination by Poverty/Wealth & Public Policy
Rational Basis Review
Characteristic is not immutable
- you can change it
Voluntary adopted social welfare programs that the government is under no obligation to provide.
* *Public Policy- heighten scrutiny on social programs cripples the effect of the government by creating distinctions. * *Government has an interest in promoting gainful employment. * *Property taxes go towards the area you live in.
Discrimination by Age
Rational Basis Review
Can government require retirement at 60? Yes, motor skills deteriorate. Political process is remedy.
Discrimination by Mental Illness
Rational Basis Review
Reasons for RBR:
- Real and identifiable differences drawn on physical or mental distinctions. BIGGEST FACTOR
- Statutes on record that protects their interests.
- no prejudice to group and national or state level. - Not politically powerless.
- Slippery Slope
Affirmative Action
Intentionally discriminating on a specific basis with motive that are GOOD and BENIGN.
Justification for Affirmative Action
Compensatory/Remedial Measures
Affirmative Action: Compensatory/Remedial Measures
Remedy the present effects of past discrimination.
- Own Past discrimination
- Substantial Evidence
- Present effects
- Cannot be post-hoc
Three Approaches for Affirmative Action and Strict Scrutiny
- Skepticism - Any preference is inherently or immediately suspect.
- Consistent - Applies to all individuals, the EPC is individual.
- Congruence - Same standard for both groups for both Fed and State
Affirmative Action: Education
Race must be one factor, not sole factor, among many.
Diversity is good.
Critical Mass
Certain number of a specific individuals.
Discrimination by Alienage
Strict Scrutiny
Two Exceptions:
- Political Function Exception
- Illegal Aliens (not their children) do not get strict scrutiny.
Political Function Exception
Can require that citizenship be part of the job qualification;
Participate directly in the formulation, execution, or review or broad public policy that perform functions that go to the heart of representative government.
Drawing a distinction between Illegal Aliens and Aliens who have been lawfully admitted for permanent residence
We can do that based on how long they have been here because the feds are doing the classifying and have broad discretion and broad authority for immigration and they have made this distinction.
Legitimacy
Intermediate Review
Quasi Suspect: They have been treated differently but they were not identifiable.
- It is involuntary
- It may and may not be immutable but can have legitimacy.
- It could be irrelevant
The Right to Travel
Fundamental Right
Implicit in Article IV
Implicit in the concept liberty, we can’t imagine a US without this.
Right to peacefully assemble and petition, will have to travel to do so
Discrimination of Travel
Strict Scrutiny
Difference between Durational Residency Requirement and Bonafide Residency Requirement
Durational requires that you live in a certain jurisdiction for a period of time before getting to exercise a beneift
Bonafide requires someone to be in fact a resident of the jurisdiction.
*Exception: Basic necessities of life is an impermissible penalty on the right to travel.
Three Dimensions of Travel
- Protects Right of citizens of one State to enter and leave another State.
- Right to be treated as a welcome visitor.
- Article IV P&I clause
- Once you elect to become a bona-fide resident, you have the right to be treated as all other residents of the state.
Three Helpful Random Points to Consider in Terms of Travel
- Nature of the Claim
- Nature of the restriction
- Nature of the benefit you want to access to.
Discrimination on Voting
Strict Scrutiny
Treated as fundamental because it is dispositive of all other remedies.
- *Can create IDs
- *Can implement literacy tests
- *Can disinfranchise felons
- *Can apportion (see later)
Apportionment
One Person One Vote
Divide Districts Fairly
EP Clause is the constitution predicate to the One person one vote. ON TEST
Consideration of Apportionment from Karchar v. Dagget Case in the instance Mathematical Precision fails
- Compactness
- Respect for the lines of political subdivisions
- Preserving the core of prior districts.
- Avoid contests between incumbents.
**Look for a COMMUNITY OF INTEREST, someone who lives in the Hudson has different interest than someone who lives on the farm.
Super Majority
In excess of 66%
Two Types:
- Overriding Presidential Veto
- Amending the Constitution
Gerrymandering
- Racial districting has been recognized by the court.
2. District lines, mathematical precision is default or Dagget case.
State Action
The question to ask is if it is FAIRLY ATTRIBUTABLE to the Government.
- *Funding is not enough.
- *Fire Dept. and Police is always provided.
Enabling Clause
Congress has the power to enforce through appropriate legislation.
Three Considerations of FAIRLY ATTRIBUTABLE
- Source of Authority - mere structure of relationship with government does not create government actor.
- Nature of Authority - mere funding by government does not create government actor.
- Nature of Activity - does it have the hallmarks of government activity.
**Any state CONTROL
Congressional Authority
Congress has the power to enforce the Constitution.
Congress is not going to change that doctrine.
Congress does NOT overturn SCOTUS.
Congress CAN change positive law that the court held constitutional by APPROPRIATE LEGISLATION
Congruent and Proportional Test
There must be a history of a violation before Congress can enact a law to enforce it.
There ought to be a problem that Congress needs to cure.
Must be legislating to remedy a constitutional violation.
**Apply Heightened Scrutiny here
Right of Excessive Expression
There is a distinction between belief and conduct, assuming the law is neutral then your belief is protected, your conduct is not.
**Free exercise is a fundamental right, if it’s fundamental then it gets strict scrutiny.
Abrogation
Congress can abrogate the State’s immunity if the discrimination gets intermediate or strict scrutiny.
Stripping Doctrine
Power to bring COA against state official acting in their official capacity
Suing for injunctive relief
Able to claim attorney fees
Federal Authority under the 13th
Congress can legislate about
- Slavery
- Buying/selling property
- Badges or incidents of slavery.
Anyone can make out a claim (private and public)
Badges or Incidents of Slavery
- Disability to make and enforce contracts
- Disability to sue, be parties and give evidence (as witness against white people)
- Disability to inherit, purchase, sell, lease, and convey property
- Compulsory services of slaves for the benefit of master
- Constraints upon right to travel
Federal Authority under the 14th Amendment
Remedial Powers of Appropriate Legislation: Must be Congruent and Proportional
Pertains to Heightened Scrutiny only
Everyone is protected.
Federal Authority under the 15th Amendment
Voting.
Race or prior servitude shall not get in the way.
Need prior approval
Existences and Enforcement Clause
Pre-clearance requirement, to change voting procedures must get pre-approval from Dept. of Justice.
When do you get Attorney’s Fees?
If you sue pursuant to 42 USC 1981-83, and you are the prevailing party on at least one issue, the government that you sue has to pay your fees.
