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Constitutional Law Final Flashcards

1
Q

Equal Protection is by its very nature ___________.

A

Comparative

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2
Q

What does comparative mean?

A

The world can be divided into at least 2 groups

Question is “Can gov’t treat the two groups differently?”

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3
Q

Two ways the Government can treat two groups differently

A
  1. RIGHTS - Group A gets to exercise a fundamental right and Group B does not.
  2. MEMBERSHIP IN A GROUP - Maybe the 2 groups are divided based upon characteristics of the 2 groups
    • race
    • sex
    • ethnicity
    • national origin
    • alienage
    • etc.
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4
Q

What makes up an Equal Protection claim?

A
  1. Government as the actor.
  2. Took an intentional action
    - inadvertent actions don’t trigger a due process or equal protection claim
  3. Which Constitutional Amendment?
    - Feds - 5th Amendment through due process
    - State - 14th Amendment Section 1
  4. 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.
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5
Q

Two Levels of Review

A
  1. Rational

2. Heightened Scrutiny

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6
Q

Two subsets of heightened scrutiny

A
  1. Intermediate Scrutiny

2. Strict Scrutiny

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7
Q

Intermediate Scrutiny

A

Exceedingly Persuasive Justification:

  1. Important Interest
  2. Substantial Relationship to achievements to that purpose.

**Basically only for gender, illegitimacy, or alienage with respect to compulsory schooling.

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8
Q

Strict Scrutiny

A
  1. Classifications based upon fundamental right, race or ethnicity.
  2. Suspect Class
    - DISCRETE - people are identifiable
    - INSULAR - unable to protect themselves through the political process.

COMPELLING INTEREST and NARROWLY TAILORED

**Cannot be post-hoc

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9
Q

How to make a statutory claims?

A

Show disparate impact

Look at impact vs. intent

As applied not facially challenge.

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10
Q

Equal Protection: Why is the world divided?

A
  1. Identify the government’s interest
  2. If the government is going to divided the world, the government must have a reason.
  3. Look at the face of the statute at issue, as well as it is applied, to help determine why the world has been divided
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11
Q

Fact Pattern Analysis

A
  1. First, identify the division.
    • what are the groups? Describe them (can be 1 person)
  2. 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
  3. 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.
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12
Q

Discrimination

A

Issue: Is that a difference that government is empowered to recognize?

  1. Government Actor
  2. Intentional Act
  3. Feds - 5th , State - 14th

**People are different and government should not be prohibited from recognizing and taking those differences into account.

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13
Q

Two Types of Discrimination

A
  1. On its face

2. As applied

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14
Q

Discrimination “On its face”

A

“We won’t do this based on race, ethnicity, or national origin”

Examples:
1. Preventing a race from being a jury member

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15
Q

Discrimination “As Applied”

A

“We won’t do this because of a certain issue, but as applied may still be discrimination”

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16
Q

Discrimination by Race

A

Strict Scrutiny

All legal restrictions which curtail the civil rights of a single racial group are immediately suspect.

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17
Q

Way to get around compelling interest and narrowly tailored?

A

Prove Invidious Discrimination (Unfairly Discriminating)

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18
Q

Invidious Discrimination

A

Will be completely irrelevant to any legitimate government objective

Immutable

Involuntary

Intentional and Unjustified Discrimination

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19
Q

Way to get around Strict Scrutiny?

A

Pressing public necessity MAY justify the existence of such discrimination.
-time of war

Still needs to be compelling and narrowly tailored.

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20
Q

Discrimination K-12 Education

A

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.

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21
Q

Discrimination by Reverse Discrimination/Affirmative Action

A

Strict Scrutiny

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22
Q

Characteristics that help to determine discrimination and the respective levels or review

A
  1. Involuntary (no choice)
  2. Immutable (cannot be changed)
  3. Potentially Irrelevant (not essential to Government objective - doesn’t further legit shit)
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23
Q

Over/ Under Inclusive in terms of Heightened Scrutiny

A

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.

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24
Q

Discrimination by Gender

A

Intermediate Scrutiny

There are physical difference between men and women.

Its involuntary, may or may not be immutable.

Quasi-Suspect Class

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25
Quasi-Suspect Classes
1. Gender 2. Illegitimacy 3. Alienage with K-12 students
26
Discrimination by Homesexuality
Level of review is not determined. Analysis: 1. What are the groups? 2. How is the group being divided? 3. What level of scrutiny? - Fundamental Right - Suspect Class - Rational Basis (maybe) - political process - Quasi-Suspect Class
27
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.
28
Discrimination by Age
Rational Basis Review Can government require retirement at 60? Yes, motor skills deteriorate. Political process is remedy.
29
Discrimination by Mental Illness
Rational Basis Review Reasons for RBR: 1. Real and identifiable differences drawn on physical or mental distinctions. BIGGEST FACTOR 2. Statutes on record that protects their interests. - no prejudice to group and national or state level. 3. Not politically powerless. 4. Slippery Slope
30
Affirmative Action
Intentionally discriminating on a specific basis with motive that are GOOD and BENIGN.
31
Justification for Affirmative Action
Compensatory/Remedial Measures
32
Affirmative Action: Compensatory/Remedial Measures
Remedy the present effects of past discrimination. 1. Own Past discrimination 2. Substantial Evidence 3. Present effects 4. Cannot be post-hoc
33
Three Approaches for Affirmative Action and Strict Scrutiny
1. Skepticism - Any preference is inherently or immediately suspect. 2. Consistent - Applies to all individuals, the EPC is individual. 3. Congruence - Same standard for both groups for both Fed and State
34
Affirmative Action: Education
Race must be one factor, not sole factor, among many. Diversity is good.
35
Critical Mass
Certain number of a specific individuals.
36
Discrimination by Alienage
Strict Scrutiny Two Exceptions: 1. Political Function Exception 2. Illegal Aliens (not their children) do not get strict scrutiny.
37
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.
38
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.
39
Legitimacy
Intermediate Review Quasi Suspect: They have been treated differently but they were not identifiable. 1. It is involuntary 2. It may and may not be immutable but can have legitimacy. 3. It could be irrelevant
40
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
41
Discrimination of Travel
Strict Scrutiny
42
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.
43
Three Dimensions of Travel
1. Protects Right of citizens of one State to enter and leave another State. 2. Right to be treated as a welcome visitor. - Article IV P&I clause 3. Once you elect to become a bona-fide resident, you have the right to be treated as all other residents of the state.
44
Three Helpful Random Points to Consider in Terms of Travel
1. Nature of the Claim 2. Nature of the restriction 3. Nature of the benefit you want to access to.
45
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)
46
Apportionment
One Person One Vote Divide Districts Fairly EP Clause is the constitution predicate to the One person one vote. ON TEST
47
Consideration of Apportionment from Karchar v. Dagget Case in the instance Mathematical Precision fails
1. Compactness 2. Respect for the lines of political subdivisions 3. Preserving the core of prior districts. 4. 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.
48
Super Majority
In excess of 66% Two Types: 1. Overriding Presidential Veto 2. Amending the Constitution
49
Gerrymandering
1. Racial districting has been recognized by the court. | 2. District lines, mathematical precision is default or Dagget case.
50
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.
51
Enabling Clause
Congress has the power to enforce through appropriate legislation.
52
Three Considerations of FAIRLY ATTRIBUTABLE
1. Source of Authority - mere structure of relationship with government does not create government actor. 2. Nature of Authority - mere funding by government does not create government actor. 3. Nature of Activity - does it have the hallmarks of government activity. **Any state CONTROL
53
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
54
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
55
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.
56
Abrogation
Congress can abrogate the State's immunity if the discrimination gets intermediate or strict scrutiny.
57
Stripping Doctrine
Power to bring COA against state official acting in their official capacity Suing for injunctive relief Able to claim attorney fees
58
Federal Authority under the 13th
Congress can legislate about 1. Slavery 2. Buying/selling property 3. Badges or incidents of slavery. Anyone can make out a claim (private and public)
59
Badges or Incidents of Slavery
1. Disability to make and enforce contracts 2. Disability to sue, be parties and give evidence (as witness against white people) 3. Disability to inherit, purchase, sell, lease, and convey property 4. Compulsory services of slaves for the benefit of master 5. Constraints upon right to travel
60
Federal Authority under the 14th Amendment
Remedial Powers of Appropriate Legislation: Must be Congruent and Proportional Pertains to Heightened Scrutiny only Everyone is protected.
61
Federal Authority under the 15th Amendment
Voting. Race or prior servitude shall not get in the way. Need prior approval
62
Existences and Enforcement Clause
Pre-clearance requirement, to change voting procedures must get pre-approval from Dept. of Justice.
63
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.

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