CONSTITUTIONAL LAW - MEE NCBE Exam Rules Flashcards

Question

ISSUE: Assuming that the Act is a valid exercise of Congress’s power, may the Act constitutionally be applied to state agencies as employers? Explain.

Answer 1

Congress' power to legislate under the commerce power is broad. Up until about 1986, Congress did not have the ability to regulate state agencies as employees under the commerce clause; HOWEVER, San Antonio v. Garcia, a federal labor law case, changed that. In that case, the Supreme Court held that the commerce power enabled the federal government to apply certain wage and hour regulations on a state. HERE, this is precisely what has happened. If it is a valid exercise of the commerce power, Congress has been held to have the authority, as indicated by the US Supreme Court, to allow its regulations to apply to a state. The regulation applied to the state agency. HOWEVER, in doing so, Congress cannot commandeer a state agency and force it to carry out federal programs. Printz. MOREOVER, Congress cannot force states to enact certain laws. While it can resort to economic coercion by using its taxing and spending power to entice, as Justice Connor said in South Dakota v. Dole, it cannot tell the state what to enact. HERE, the facts do not support that the federal government is forcing the state to enact any laws, just to enact programs within their state agencies. Ultimately, BECAUSE Congress has stepped out of its bounds by commandeering and forcing a state agency to enforce and carry out its law, this will not be constitutionally applied to state agencies.

Answer 2

The 11th Amendment of the US Constitution prohibits a state from being sued in federal court by its citizens, unless it consents. It does not, HOWEVER, bar a suit against the state in state court. In certain circumstances Congress can abrogate a state's 11th Amendment power and allow for suits against it to take place in Federal court. HOWEVER, the instances in which this is allowed, flow from Section 5 of the 14th Amendment. This section was enacted after the Civil War and gives Congress the power, generally when enforcing 14th Amendment rights such as equal protection and due process to abrogate a state's 11 Amendment immunity, commonly called sovereign immunity. HERE, in this situation, the law is being passed by the commerce clause. It is not being used to enforce due process or equal protection acts. Rather, it is being done as a purely economic issue: workplace violence is negatively impacting commerce. The law clearly states that it abrogates the states' rights to be free from suit in federal court by a private citizen without consenting. This violates the 11th Amendment as it abrogates sovereign immunity without the proper method in doing it.

Answer 3

The issue is whether this action is permitted under the 11th amendment. The 11th Amendment prohibits federal law suits against states. It is based in the premise of state sovereign immunity. There are exceptions to the 11th amendment, for example, when a state waives sovereign immunity or 11th amendment protection or when congress, under its 14th Amendment sec 5 power abrogates the state sovereign immunity in a statute. Otherwise, citizens of the state or of other states are not permitted to sue a state directly for damages. HERE, the bank appears to be suing the state directly, along with the superintendent, seeking damages. There is no indication that the statute provides a waiver of the 11th amendment and there is no congressional statute on point, so there is not congressional abrogation. THEREFORE, the suit is not permitted under the 11th amendment and the bank cannot maintain the suit against the state itself in federal court. FURTHERMORE while state officials can be sued in their individual capacities for damages, and in their official capacities for prospective injunctive relief, even if that relief would require some money from the state treasury, they cannot be sued for money damages or retrospective relief. THEREFORE, the bank's action for damages, even as against the superintendent will not be permitted in federal court.

Answer 4

The main issue is whether against a state official in their official capacity seeking injunctive relief can be maintained in federal court given the 11th amendment. As mentioned above, despite the 11th amendment, state officials can be used in their individual capacities for damages, and in their official capacities for prospective injunctive relief, even if that relief would require some money from the state treasury. A suit against a state officer for injunctive relief will be maintained if it is seeking prospective relief and the effect on the state officers is incidental. HERE, the bank's action for injunctive relief can be maintained against the superintendent. The superintendent is sued in her official capacity and the bank is seeking to stop (enjoin) the enforcement of the statute. THEREFORE it can be maintained under an Ex Parte Young theory. Note that the bank clearly has standing SINCE it has already suffered a concrete and particularized injury (loss of $2 million dollars) that is caused by the statute and would be redressed by a favorable finding (that the statute is unconstitutional). It can likely show that it will continue to lose money from lost business as a result of the statute, which would be redressed by an injunction. IN CONCLUSION, this part of the bank's claim can proceed.

Answer 5

The main issue is whether the statute violates the dormant commerce clause. The commerce clause grants to congress the right to regulate interstate commerce. While states have a general police power to regulate in the interest of the health, safety and welfare of their citizens, the negative implication of the commerce clause, often called the dormant commerce clause, limits what they can do when it places a burden on interstate commerce. Generally, if a state law discriminates against out-of-staters, or against interstate commerce, it will be struck down UNLESS the state can show it is necessary to protect a substantial state interests (unrelated to protectionism). It is does not discriminate, it will be struck down if it places an undue burden on interstate commerce-in other words, the burden on interstate commerce will be weighed against the interest of the state. HERE, while there is some protectionism motivating the statute (it was passed as a result of heavy lobbying by State A based manufacturer of biometric identification equipment), it does not appear to discriminate against out of state companies. It applies to both in state and out of state companies and to companies doing business only within the state, and to those doing business across states. THEREFORE, it likely does not discriminate. THEREFORE it will be subject to the balancing test. HERE, the burden on interstate commerce appears to be somewhat substantial. Banks that operate in multiple states including State A, will be forced to choose between updating their systems to have biometric identification, or cease to do that kind of business in the state. That could have a substantial impact on interstate commerce. The fact that the large bank has already made this choice is support of that. On the other hand, the state appears to have a strong interest in protecting its citizens against fraud. Despite the security measures of banks, customers are still being subjected to unauthorized transfers by thieves. To the extent that this is impacting its citizens, State A clearly has a strong interest in protecting them. HOWEVER, it is not clear that this particular biometric approach is an improvement or will work. Experts disagree about whether it is significantly better and the bank clearly thinks it is not. HOWEVER, given that the state has a strong interest, it likely will pass the balancing test and be upheld. There are two exceptions, neither applicable here: the market participant exception and congressional authorization. There is no indication in the facts that either apply HERE. FURTHERMORE, there is no preemption SINCE congress has not regulated in this area. Note that the privileges and immunities clause of Art IV does not apply BECAUSE the bank is not an individual citizen, and BECAUSE the statute, while possibly motivated by protectionism, does not appear to discriminate against out-of-staters.

Answer 6

In order to determine which provisions of the Act unconstitutionally burden or discriminate against interstate commerce, let us look at each provision individually. The FIRST provision requires half of the energy in the state to come from environmentally friendly energy sources. This provision is valid in the sense that the state is not facially discriminating against out of state companies in this provision. SINCE there is no preemption from Congress in this scenario, the state is allowed to require its own utility companies to produce 50% of the electricity sold in the state from environmentally friendly sources. The fact that the state produces wind energy, which is classified as enviro friendly, and not natural gas, which is not enviro friendly, is not dispositive of an intent to discriminate against out of state energy producers. The state is allowed to specifically classify natural gas as not enviro friendly, in the sense that states are allowed to enact more stringent environmental protection regulations than the federal government has instituted, if they see fit. Also, the state is still allowing the utilities to produce electricity from these non-friendly sources, they are just putting a cap on the amount they can produce from these sources, which does not close the marketplace. Also, the state has provided a legitimate interest in discriminating against natural gas plants, in that they have been found to divert scarce water resources, which the state has a strong interest in protecting. The SECOND provision prohibits the Public Service Commission from approving any new coal-burning plants, unless there is a finding that the construction is necessary to meet urgent energy needs of the state. HERE, we see that the statute is being challenged as applied, by a utility in State B, seeking to build a coal-plant in State A to provide for an energy shortage in State B. Again, the general rule is that states may enact more stringent pollution requirements than the federal government, and this potentially falls under that allowance, if the restriction is sought to reduce air emissions from the coal-plants. A court may find, HOWEVER, that this is an invalid restraint on interstate commerce, in that State B has shown an extreme energy shortage. Generally, states may not discriminate against out of state actors, unless the state is acting as a market participant. HERE, the state is not a market participant, and THUS cannot discriminate against the State B plant. Further, states are generally restricted in how they can restrict a neighboring state's important duties, including removing nuclear waste, and providing energy resources. The THIRD provision requires State A to buy, when possible, goods and services only form enviro friendly vendors located within the state. HERE, the state refuses to buy from an out of state vendor who meets the requirements under the provision as enviro friendly. The state is acting as a market participant in this scenario, SINCE they are buying goods and services from vendors, and SINCE there is a "state as a market participant exception" to rules against states discriminating against out of state actors, the state may validly refuse to purchase from this particular vendor, especially SINCE there are several similar vendors within the state meeting the requirements.

Answer 7

The Fourteenth Amendment provides that “NO State shall deny to any person within its jurisdiction the equal protection of the laws.” The U.S. Supreme Court has interpreted this language as applying not only to the states themselves but also to private parties whose actions constitute “state action.” Simply put, in order for there to be a violation of the Fourteenth Amendment, the allegedly unconstitutional action (HERE, denial of admission based upon gender) must be attributable to the state. Actions of private parties are not typically considered state action, but the actions of otherwise “private” parties can constitute state action in certain exceptional cases. For instance, private parties have been held to be state actors where (1) they have performed a traditional public function, (2) there is the enforcement of certain private contracts, (3) there is joint action or “entanglement” between a state and private actor, or (4) there is state encouragement of private discrimination. A State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. Private is a private entity and none of the factors described above contribute to a conclusion that its actions constitute state action. Running a private school or college is not state action. FIRST, Private is not performing a traditional public function. SECOND, there has been NO judicial enforcement of a private contract HERE. THIRD, it is highly unlikely that a court would hold that mere state regulation of the curriculum and state certification of graduates is sufficient to constitute entanglement. Fourth, there is NO evidence that the state has directly encouraged Private to discriminate on the basis of gender.

Answer 8

Laws that classify on the basis of gender are typically assessed under heightened scrutiny. Although some early cases suggested that strict scrutiny was the correct standard, modern cases have settled on intermediate scrutiny. United States v. Virginia, the U.S. Supreme Court held that state laws that make classifications on the basis of gender are unconstitutional UNLESS the state can establish an “exceedingly persuasive justification” for the classification. An “exceedingly persuasive justification” is one that serves “important governmental objectives” and which does not rely upon outdated or overbroad generalizations and stereotypes about differences between men and women. The burden of justification is demanding and rests entirely on the state. The state must at least show that the “challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” These objectives must be real in the sense that they are real state purposes rather than hypothetical justifications for the gender classification. MOREOVER, gender classifications must be “substantially related” to the achievement of such important governmental objectives. “A State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification.” BECAUSE the man has been denied admission to Public solely on the basis of his gender, the action of Public – clearly the action of the state, as Public is the state nursing school – is presumptively unconstitutional. The state interest IN THIS CASE is remedying past discrimination against women – as the letter states, “mindful of the historical discrimination that women have faced in State A, our state has established Public to remedy this discrimination and provide opportunities for women who want to work in the growing field of health care as nurses.” Remedying past discrimination is certainly an important governmental objective; in the contexts of race and gender classifications, the Supreme Court has upheld this governmental objective in the face of heightened scrutiny. HOWEVER, it is unclear whether this quote from Public’s letter sets forth the actual state purpose. Although there has been gender discrimination in the field of health care in State A in the past, there is NO evidence that there has been discrimination against women in the nursing field. Indeed, the evidence that 95 percent of nurses have historically been women suggests that State A is more likely reinforcing outdated stereotypes of women as nurses (rather than, say, doctors) by restricting Public admissions to women. FINALLY, if the goal of the admissions policy is to end discrimination against women in the health care field, it is not clear how the admissions policy advances this objective. In certain cases, a state may treat men and women differently consistent with the equal protection guarantee and provide separate facilities for each gender (FOR EXAMPLE, male and female sports teams, dormitories, and bathroom facilities at state universities). In such cases, MOREOVER, the state must bear the burden of (1) demonstrating the “exceedingly persuasive justification” for the separate treatment, and (2) demonstrating that the separate facilities are substantially equivalent. THUS, FOR EXAMPLE, in United States v. Virginia, the Supreme Court suggested that the Commonwealth of Virginia could offer all-male and all-female public military-style education consistent with the Equal Protection Clause. HOWEVER, BECAUSE the new all-female “Leadership Program” in that case provided facilities and career opportunities inferior to those that the Commonwealth was providing in its established all-male program at the Virginia Military Institute, the Court concluded that the separate program violated the Fourteenth Amendment. IN THIS CASE, BECAUSE the Male Nursing Opportunity Program is markedly inferior to the all-female Public program, it is insufficient to satisfy the Equal Protection Clause. Although graduates of the all-male program are still eligible to become nurses in State A, the two programs are not substantially equivalent. They differ in both overall quality and the employment opportunities they offer to their graduates. The facilities of the Male Nursing Opportunity Program are not as modern as those at Public, the faculty is not as experienced, and graduates of the Male Nursing Opportunity Program do not enjoy the same employment opportunities as graduates of either Public or Private. For these reasons, the Male Nursing Opportunity Program is inferior to the regular all-female Public program, and it CANNOT be offered as a substitute consistent with Equal Protection.

Answer 9

The applicable constitutional provision is the Equal Protection Clause of the Fourteenth Amendment, which states: “Nor shall any State deny to any person within its jurisdiction the equal protection of the laws.” The allegedly unconstitutional discrimination is age-based discrimination BECAUSE employees like the firefighter CANNOT continue as firefighters once they reach 50 years of age. The Supreme Court has developed three levels of scrutiny for equal protection claims: strict, intermediate, and the lowest, “rational basis.” The Court has consistently applied rational basis scrutiny to age-based classifications. FOR EXAMPLE, the Supreme Court has upheld a 50-year-old retirement age for state police and applied rational basis review to such age-based classifications. Under the rational basis test, the issues are whether State A has a “legitimate interest” that is served by the discriminatory classification and whether the means used to achieve this legitimate state interest are “reasonably related” or “rationally related” to that state interest. The Court generally applies this test with substantial deference to legislative judgment. HERE, the firefighter will likely argue that State A is violating his right to the “equal protection of the laws” by depriving him, and other firefighters, of employment solely BECAUSE they have reached the age of 50. More specifically, he will argue that he and the other firefighters 50 and older are being forced to retire without regard to whether they are capable firefighters, an action not taken against those under the age of 50. State A will likely argue that lowering the retirement age for firefighters will improve workforce quality, enhance public safety, and reduce expenses. BECAUSE these are “legitimate” state interests, this argument is likely to succeed. Given the legitimacy of State A’s objectives, the question then becomes whether a mandatory retirement at age 50 is reasonably related to attaining those objectives. Although the firefighter may be a qualified firefighter notwithstanding his age, that is not the relevant question. The question is whether State A has reason to believe that one’s physical fitness and ability to be a firefighter, in general, decline with age. The question specifies that the legislature heard evidence from relevant professionals in support of that position. HENCE, the conclusion that a mandatory retirement age would, in general, improve the fitness of the workforce is reasonable. Under the rational basis test, it is not necessary for the fit between ends and means to be perfect. The fit merely has to be “reasonable” or “rational.” The fact that State A may have also enacted the statute to save money does not alter this analysis. One legitimate purpose to which the lines drawn by the statute are rationally related is sufficient to uphold a statute under the lenient rational basis test. BECAUSE State A has a legitimate governmental purpose for enacting this statute, and BECAUSE lowering the retirement age is rationally related to the achievement of this purpose, a court is likely to conclude that the Act does not violate the Equal Protection Clause of the Fourteenth Amendment.

Answer 10

Congress’s powers are limited to those expressed or implied in the Constitution. To enact a law on a particular topic, Congress must rely on some identified grant of legislative authority in the Constitution. Section Five of the Fourteenth Amendment is one such grant of authority. While a mandatory retirement age for firefighters does not violate the Equal Protection Clause of the Fourteenth Amendment, “legislation which deters or remedies constitutional violations can fall within the sweep of Congress’s enforcement power even if in the process it prohibits conduct which is not itself unconstitutional.” Congress’s power, HOWEVER, is remedial. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. In drawing “the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law,” the Supreme Court stated that the constitutional question is whether there is a “congruence and proportionality between the constitutional injury to be prevented or remedied and the means adopted to that end.” Lacking such a connection, legislation may become substantive in operation and effect. This proportionality requirement allows Congress to outlaw conduct that courts likely would hold unconstitutional under existing judicial precedent. Congress may also outlaw a broader range of conduct to prevent constitutional violations. But Congress CANNOT rely on its Fourteenth Amendment enforcement power to prohibit a kind of behavior that is unlikely to involve a constitutional violation at all. BECAUSE age is not a suspect classification under the Equal Protection Clause, states may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest. The proposed federal statute would prohibit mandatory retirement requirements that courts likely would find constitutional. In 2000, the Supreme Court held that a federal statute generally prohibiting age discrimination by employers (including states) exceeded the power of Congress to legislate pursuant to Section Five of the Fourteenth Amendment. Indeed, Congress’s primary goal HERE would be to outlaw a kind of discrimination that does not violate the Fourteenth Amendment. The Supreme Court clearly held that Congress CANNOT, under its Fourteenth Amendment power, legislate to prohibit constitutional behavior where there is NO constitutional injury to be prevented or remedied. THEREFORE, a court would likely hold that Congress would not have the power under Section Five of the Fourteenth Amendment to enact a statute barring age requirements for firefighters. [NOTE: This question does not raise any questions about sovereign immunity under the Eleventh Amendment inasmuch as Congress can abrogate that immunity when it acts pursuant to Section Five of the Fourteenth Amendment. IN ADDITION, this question does not ask whether Congress could pass such a statute under its Commerce Power. ]

Answer 11

The Equal Protection Clause of the Fourteenth Amendment applies only to government action. To trigger constitutional protections, state action is required. A private entity’s conduct must constitute state action in order for these protections to apply. State action may be considered to exist when private parties carry out traditional governmental functions or if there is significant state involvement in the activities. Here, ________________ To be considered significantly involved, the state must act affirmatively to facilitate, authorize, or encourage the private activity or must have intertwined its actions with those of the private entity to such an extent that the state and the private party mutually benefit from the involvement (e.g., a joint venture). Simply licensing or regulating a private party does not amount to state involvement significant enough to trigger the protections of the Equal Protection Clause of the Fourteenth Amendment.

Answer 12

Public is the state nursing school and its action is therefore state action on its face. Denying the man admission to the State Nursing School based on his gender is presumed to be unconstitutional. Discrimination based on gender is discrimination based on a “quasi-suspect” classification and so is judged under the intermediate scrutiny standard. In applying this test, the burden is on the state to show that its different treatment of the sexes is substantially related to an important government interest and that an “exceedingly persuasive justification” exists for the distinction. The state here will need to show that the exclusion of males from its state nursing school serves an important governmental interest and provide “exceedingly persuasive justification” for excluding male applicants based on their gender. The State would seem to have a difficult time in providing an “exceedingly persuasive justification” for denying the man admission to its nursing school based on his gender. Public’s letter cites the historical discrimination women had faced in the healthcare field in State A, presumably to show that its exclusion of men is substantially related to the important governmental interest of redressing this historical wrong. However, the facts note that historically 95 percent of State A nurses have been female. Therefore, it is unlikely that excluding men would actually redress the general discrimination against women in the healthcare field. State can thus provide no persuasive justification for its exclusionary admissions policy and has violated the man’s rights under the Equal Protection Clause.

Answer 13

Different treatment of the genders by the government (for example separate sports facilities at state universities) does not violate the equal protection guarantee if the state can show that it has an “exceedingly persuasive justification” for the different treatment and that the separate facilities offered are “substantially equivalent.” As discussed above, the state is unable to provide exceedingly persuasive justification for the gender-separate nursing schools. Nor is Public able to show that the education offered by the two facilities is substantially equivalent. The two programs differ in that the Male Nursing Opportunity Program is clearly inferior. Its facilities are not as modern as those at Public, the faculty is not as experienced, and graduates of the Program do not have the same employment opportunities as graduates of either in-state nursing schools. Because Public has not shown substantial equality in the separate educational opportunities, the separate program for males violates the Fourteenth Amendment.