Finals

Question 1

Marbury v. Madison

Answer 1

Art. III § 2 Cl. 2
Oath Requirement, Art. VI

Facts: Adams tried to give out commissions as fast as he could, but he didn’t get to Marbury before Jefferson became President. Marbury petitioned SCOTUS to compel Jefferson to give him his commission.

Holding: No jurisdiction because the Court does not have jurisdiction over discretionary decisions by the executive.

Rule: The Supreme Court has the ultimate authority to interpret the constitution

Rule: The Court will not exert jurisdiction over discretionary decisions

Question 2

Cooper v. Aaron

Answer 2

Supremacy Clause: Art. VI
SCOTUS judicial interpretation: Art. III

Facts: Arkansas governor stopped the integration of schools after Brown v. Board ordered they be integrated.

Holding: Arkansas officials are bound by federal court orders issued in accordance with SCOTUS’s decision in Brown v. Board.

Rule: The Supremacy Clause of Article VI binds the states to follow SCOTUS’s constitutional interpretation as the Supreme law of the land.

Question 3

Coleman v. Miller

Answer 3

Article III § 2

Facts: Kansas legislature previously rejected the Child Labor Amendment, and when the governor signed off years later on ratifying it, legislators sued claiming that they couldn’t ratify after rejecting it.

Holding: The Court will not hear this question – it’s a political question for Congress

Rule: There is a realm of political questions that’s outside SCOTUS’s judicial power, e.g., who decides if a proposed amendment has “expired” and lost its vitality?

Question 4

Ex parte McCardle

Answer 4

Article III § 2 Cl. 2

Facts: McCardle was arrested for publishing anti-Reconstruction editorials. McCardle sought a writ of habeas corpus on the ground that the Reconstruction Acts under which he was arrested were unconstitutional. The judge sent him back into custody, finding the military’s actions legal under congress’s law. McCardle appealed to the Supreme Court under an 1867 congressional statute that conferred jurisdiction on appeal to the High Court. After hearing arguments in the case, but prior to announcing a decision, Congress withdrew its 1867 act conferring jurisdiction to provide no cause of action.

Holding: The Congressional withdrawal of SCOTUS jurisdiction is constitutional

Rule: Under Article III § 2 Cl. 2, Congress can restrict the Supreme Court’s review of constitutional issues.

Rule: Court will be deferential to Congressional limits on its jurisdiction

Question 5

Lujan v. Defenders of Wildlife

Answer 5

Article III § 2

Facts: Environmentalists were concerned about an amendment that limited the endangered species act to the United States. Plaintiffs were concerned but their connection to international wildlife was tenuous.

Holding: The plaintiffs do not have standing to sue

The test for standing: ICR
1) Plaintiff must have suffered an injury in fact – an invasion of a legally protected interest – which is
o A) Concrete and particularized
o B) Actual or imminent
2) There must be a causal connection between the injury and the defendant’s conduct
3) It must be “likely” as opposed to merely “speculative” that the injury will be “redressed by a favorable decision”

Question 6

McCulloch v. Maryland

Answer 6

Article 1 § 8

Facts: Congress chartered the Second Bank of the United States. Maryland passed a state statute to impose taxes on the bank. Federal cashier of the bank refused to pay the Maryland tax.

Holding: Congress has the power to run a national bank and Maryland does not have the power to tax it. Through the necessary and proper clause, Congress has the power to enact legislation to further its enumerated ends. No state can tax federal activities.

Rule: The Federal government can enact legislation in furtherance of its enumerated ends listed in Article 1 § 8.

Test: Means-end relationship test necessary and proper clause
* 1) Identify the enumerated end under Article 1 § 8
* 2) Explain how the legislation is enacted in furtherance of that power

Question 7

Gibbons v. Ogden

Answer 7

Article 1 §8 Cl. 3 (Commerce)
Facts: Steamboat monopoly case. New York statute gave two people a monopoly over state waters which led to a dispute with another steamboat operator who did business between New York and New Jersey under a federal license.

Rule: Federal regulations of interstate commerce supersede state regulation of interstate commerce

Question 8

Champion v. Ames

Answer 8

Article 1 §8 Cl. 3 (Commerce)

Facts: Congressional act made it illegal to send or conspire to send lottery tickets across state lines

Holding: Constitutional exercise of the commerce power

Rule: Congress’s commerce power includes the power to prohibit the interstate commerce of articles it deems amoral or harmful to the public welfare, even though morality is usually reserved for the state police power

Question 9

Shreveport Rate Cases

Answer 9

Article 1 §8 Cl. 3 (Commerce)

Facts: Texas RR companies operated rail lines between Shreveport Louisiana and different points in Texas. The Texas Railroad Commission mandated that they charge higher rates on freight travelling between LA and TX than on intrastate TX freight travel. The federal Interstate Commerce Commission found that the interstate rates were unreasonable and illegally discriminated against freight traffic. The ICC established maximum rates and ordered the RR to fix their intrastate rate schedules.

Holding: Constitutional exercise of the commerce clause because Texas’s price regulation had a direct effect on Louisiana

Rule: Commerce power gives Congress the ability to regulate intrastate rates having a direct effect on interstate traffic

Question 10

Stafford v. Wallace

Answer 10

Article 1 §8 Cl. 3 (Commerce)

Facts: Congressional statute granted the Secretary of Agriculture to regulate intrastate stockyards of livestock.

Holding: Constitutional under the Commerce Clause. The stockyards were instrumentalities of interstate commerce that facilitated the coming and going of livestock that would be going interstate.

Rule: Under the commerce clause, the Court can regulate intrastate instrumentalities of interstate commerce.

Question 11

McCray v. United States

Answer 11

Article 1 §8 Cl. 1 (Tax)

Facts: Congress passed an act imposing a tax of 10-cents per pound on oleomargarine that was artificially colored yellow. Non-colored margarine was taxed only .25 cents per pound.

Holding: Constitutional exercise of the taxing power.

Rule: The Court is not going to question the purpose or motive behind Congress’s imposition of taxes.

Question 12

Bailey v. Drexel Furniture

Answer 12

Article 1 §8 Cl. 1 (Tax)

Facts: Congress passed a law requiring companies that used child labor to pay a tax of 10% of their annual profits.

Holding: Unconstitutional exercise of the tax power.

Rule: If a conditional tax is so severe that it does not provide the taxpayer a real choice as to whether to pay it or not, it is unconstitutionally coercive.

Rule: Congress may not disguise a penalty as a tax under the taxing power.

Question 13

U.S. v. Butler

Answer 13

Article 1 §8 Cl. 1 (Tax)
Article 1 §8 Cl. 1 (Spending)

Facts: Congress passed an act that implemented a processing tax on agricultural commodities. The income from that tax collected would be redistributed to farmers who promised to reduce their acreage.

Rule: Congress has broad power to tax and spend for the general welfare subject to other constitutional provisions. It is not restricted to taxing and spending only in furtherance of Art. 1 § 8 enumerated powers.

Question 14

Steward Machine Co. v. Davis

Answer 14

Article 1 §8 Cl. 1 (Tax)
Article 1 §8 Cl. 1 (Spending)

Facts: Congress passed the social security act which imposed a tax on employers of eight or more to fund unemployment compensation. If a state established its own approved compensation plan, however, the taxpayer could credit up to 90% of the federal tax paid to the state unemployment fund.

Holding: Constitutional. The tax and spend combination did not coerce the states, and would benefit the general welfare.

Rule: As long as a tax in combination with conditional spending doesn’t reach the point where it leaves no choice but to do something, then it’s constitutional.

Question 15

South Dakota v. Dole

Answer 15

Article 1 §8 Cl. 1 (Spending)

Facts: Congressional statute withheld 5% of highway funds if the state did not increase its drinking age to 21.

Holding: Constitutional exercise of spending power. The spending power exercised here was not unduly coercive.

Spending Test: FUNS
* 1) Furtherance of the general welfare  rational basis test
* 2) Unambiguous
* 3) Related to the federal interest in particular national projects or programs
* 4) Subject to independent constitutional prohibitions

Question 16

Jones & Laughlin Steel

Answer 16

Article 1 §8 Cl. 3 (Commerce)

Facts: Congress passed a statute regulating labor-management disputes through the NLRB

Holding: Constitutional exercise of commerce power.

Rule: Congress can regulate wholly intrastate labor activities that have the potential to cause a substantial effect on interstate commerce.

Question 17

Darby

Answer 17

Article 1 §8 Cl. 3 (Commerce)

Facts: The Fair Labor Standards Act set maximum hours and minimum wage for lumber employees and banned the transport of lumber that violated this provision.

Holding: Constitutional exercise of commerce power.

Rule: Commerce clause extends to intrastate activities that so affect interstate commerce, or the exercise of the power of Congress over it, as to make regulation of them appropriate means to the regulation of interstate commerce.

Darby Bootstrap: when non-economic activity is necessary to support a regulatory scheme, Congress can regulate it.

Question 18

Wickard

Answer 18

Article 1 §8 Cl. 3 (Commerce)

Facts: The Agricultural Adjustment Act of 1938 imposed a maximum quota on the amount of wheat that farmers can produce.

Rule: Congress can regulate intrastate commercial activities that have individual small effects but in aggregate would create a substantial effect on interstate commerce.

Rule: Congress can regulate non-commercial activity whose substitution for a commercial transaction would have a substantial effect on interstate commerce.

Question 19

Lopez

Answer 19

Article 1 §8 Cl. 3 (Commerce)

Facts: Congressional statute prohibited firearms from being brought into a school.

Holding: Unconstitutional exercise of the commerce power. Carrying a gun in school is too attenuated from commerce to constitute having a substantial effect on commerce. The statute didn’t even try to include language that the gun had to have been carried through interstate channels. The claim that people being scared about violence would burden the economy is not a justification for using the commerce clause for such regulation.

Rule: Jurisdictional element. Cannot use commerce clause to justify the regulation of the movement of articles within a state – can’t say that moving an article to a school is the same as interstate commerce.

Question 20

United States v. Morrison

Answer 20

Article 1 §8 Cl. 3 (Commerce)

Facts: Congress enacted the violence against women act which provided a damages remedy for victims of gender-based violence. Congress justified it through the commerce clause, saying that victims are deterred from engaging in employment and transactions interstate.

Holding: Unconstitutional exercise of the commerce clause.

Rule: Congress cannot regulate noneconomic activity based on their aggregate effects on interstate commerce.

Question 21

Gonzales v. Raich

Answer 21

Article 1 §8 Cl. 3 (Commerce)

Facts: California made it legal for people with medical marijuana licenses to grow pot for their own consumption. Congress made it illegal to grow or buy/sell marijuana.

Holding: Congressional regulation of home-grown pot is constitutional under the commerce clause. Aggregating the growth of an article that is sold in interstate commerce is a permissible exercise of the commerce clause. Darby Bootstrap: when non-economic activity (like possession) is necessary to support a regulatory scheme, Congress can regulate it.

Rule: Intrastate production (even if not intended for sale) of something that is regulated in interstate commerce can be aggregated to demonstrate a substantial effect on interstate commerce.

Question 22

Sebelius

Answer 22

Article 1 §8 Cl. 3 (Commerce)
Article 1 §8 Cl. 1 (Tax)
Article 1 §8 Cl. 1 (Spending)

Facts: Obamacare.

Holding: The individual mandate is unconstitutional under the Commerce Clause and Spending Power.

Rule: Forcing someone to engage in commerce is not a regulation of commerce

Rule: Determine spending with regard to the Dole factors and ask if it serves as a “gun to the head” of the states

Rule: Congress cannot force a state to do adopt a new program and hinge funding for an old program on it

Rule: Factors for what looks like a tax v. penalty
* Expected to raise revenue (evidence can be supported by how many people Congress expects to pay the tax)
* Reasonable relationship to the raising of revenue – cigarettes, lotto tickets, you can do something with the dual intent of deterring people from buying something as long as you also expect to make some money.
* Offers a choice: wouldn’t be crippling to pay the tax rather than enter the program
* No negative legal consequences
* Paid to the IRS by one’s normal taxes
* No scienter (mens rea) requirement –> in Bailey the tax was only imposed if companies knowingly employed children

Question 23

What can Congress regulate under the Commerce Clause?

Answer 23

1) Channels of interstate commerce: Can regulate articles that cross state lines like lottery tickets and lumber (Champion, Darby)
2) Instrumentalities of interstate commerce: Can regulate intrastate institutions, persons, and things involved in interstate commerce like stockyards and intrastate railroad rates (Stafford, Shreveport)
3) Intrastate activities that substantially affect interstate commerce.
– Noneconomic activity that has a direct substantial effect on interstate commerce (Jones & Laughlin)
– Economic activity that may not be an exchange at the individual level but through aggregation or substitution has a substantial effect on interstate commerce. This includes producing for non-economic purposes (Wickard, Raich)
4) Darby Bootstrap: If economic activity does not substantially affect interstate commerce in the aggregate, but regulating it is necessary to support a national regulation of interstate commerce Congress can do it through N&P (Darby, Raich)

Question 24

What can’t Congress regulate under the Commerce Clause?

Answer 24

1) Noneconomic activity that is too attenuated from interstate commerce (Lopez, Morrison)
2) Noneconomic activity that in aggregate has a substantial impact on interstate commerce (Morrison)
3) Cannot force someone into commerce – not a regulation(Sebelius)
4) Jurisdictional element: cannot regulate intrastate movement of an article of interstate commerce (Lopez)

Question 25

Missouri v. Holland

Answer 25

Article II § 2 Cl. 2 (Treaty Power)

Facts: US and Great Britain signed a treaty to protect migratory birds. Congress enacted a statute to facilitate enforcement of the treaty. Missouri challenged the treaty.

Holding: Constitutional exercise of the treaty power, does not violate the Tenth Amendment

Rule: The Constitution expressly grants the executive the power to make treaties, and thus states cannot claim that the treaty, or the Congressional statute adopted pursuant to it, violates the Tenth Amendment.

Question 26

Reid v. Covert

Answer 26

Article II § 2 Cl. 2 (Treaty Power)

Facts: Covert, a civilian, murdered her husband, an Air Force Sergeant, while stationed in England. Covert was tried and charged in a Uniform Code of Military Justice court, with no jury, which is inconsistent with the Sixth Amendment’s right to trial by jury for criminal cases. The UCMJ proceedings were set up through legislation enacted pursuant to a treaty between the US and GB that permitted UCMJ courts to exercise exclusive jurisdiction over offenses committed in GB by military members and their dependents. Covert appealed on the basis that she was deprived of her constitutional rights.

Holding: The treaty is unconstitutional because it violates the Due Process Clause

Rule: Treaties and their accompanying legislation must comply with other Constitutional provisions. (e.g., a treaty cannot authorize the deprivation of a civilian’s due process rights).

Question 27

Bond v. United States

Answer 27

Article II § 2 Cl. 2 (Treaty Power)

Facts: Microbiologist was prosecuted under the Chemical Weapons Implementation Act, a statute pursuant to the International Convention on Chemical Weapons treaty, which was designed for wartime, for trying to give her friend a painful rash after she found out she got pregnant by cheating with her husband. The question presented was whether the Implementation Act reaches a local crime that resulted in a minor thumb burn readily treated by rinsing it with water.

Holding: Are you serious?? Get your ass back to state court. Congress doesn’t want to get involved in your drama this was meant for like actual war

Rule: When prosecuting under a treaty statute, look to Congressional intent

Question 28

What are the forms of federal engagement with the states?

Answer 28

1) Congress regulates individual behavior – all individual’s live in a state (e.g., tax, spend, commerce)
2) Congress regulates individual conduct and state conduct – state regulation overlaps with individual regulation (Reno, Garcia: generally applicable laws apply to states as they would to private citizens)
3) Congress regulates the states as states/regulators (NY prohibits compelling states to adopt a program, use Lane test to determine exceptions through 14A5, 15A5)

Question 29

Garcia

Answer 29

Article 1 §8 Cl. 3 (Commerce)
Tenth Amendment

Facts: Congress passed the Fair Labor Standards Act and enforced it against a city’s public transit authority.

Holding: Constitutional.

Rule: The Tenth Amendment does not preclude Congress from regulating states as they would citizens.

Question 30

New York v. United States

Answer 30

Tenth Amendment

Facts: To deal with national problem of states not dealing with their radioactive waste Congress enacted a law 1) providing financial incentives to states receiving out-of-state waste (spending), 2) authorizing states with disposal sites to gradually increase the cost of access to the sites before denying access altogether over time (commerce clause), and 3) a take-title provision that requires states to comply with the federal regulation or accept legal liability for any remaining waste.

Holding: First and second are constitutional under spending and commerce clause, third is unconstitutional violation of the Tenth Amendment.

Rule: If a federal law compels 1) state legislative or 2) regulatory activity, the statute is unconstitutional even if there is a compelling need for the federal action. (Being forced to choose between two regulatory schemes is not a choice).

Question 31

City of Boerne

Answer 31

Tenth Amendment
Fourteenth Amendment § 5

Facts: After SCOTUS ruled significantly lessened constitutional protections for religious freedom, Congress enacted RFRA. RFRA prohibited the government from substantially burdening a person’s exercise of religion unless the government can demonstrate that the burden is 1) in furtherance of a compelling governmental interest and 2) is the least restrictive means of furthering that compelling governmental interest.

Holding: Unconstitutional exercise of Fourteenth Amendment § 5. Most states weren’t doing this and so it isn’t remedial or preventative. Also you’re trying to step on our toes.

Rule: Congress’s enforcement power under Fourteenth Amendment § 5 is limited to legislation that prevents or remedies patterns of violations of rights that have been recognized by the Supreme Court OR would pass the Glucksburg test

Question 32

Printz

Answer 32

Tenth Amendment

Facts: Congress enacted a gun control act that required a state’s chief law enforcement officer to conduct background checks on prospective gun purchasers within a certain timeframe.

Holding: Unconstitutional

Rule: The Tenth Amendment prohibits the “commandeering” of state executive officers

Question 33

Reno v. Condon

Answer 33

Tenth Amendment
Article 1 §8 Cl. 3 (Commerce)

Facts: Driver’s Privacy Protection Act prohibiting state DMVs from sharing personal data from their registry.

Holding: Constitutional exercise of commerce clause authority. People buy and sell this data (interstate commerce) and the statute also applies to private citizens (Garcia).

Question 34

Murphy v. NCAA

Answer 34

Tenth Amendment
Article 1 §8 Cl. 3 (Commerce)

Facts: Congressional statute made it illegal for any state to “sponsor, operate, advertise, promote, license, or authorize by law or compact … a lottery, sweepstakes, or other betting gambling, or wagering scheme” related to competitive sports.

Holding: Unconstitutional, violates “anticommandeering doctrine” of New York and Printz by attempting to regulate the states as regulators

Rule: Cannot regulate the states as regulators

Question 35

Tennessee v. Lane

Answer 35

Eleventh Amendment
Fourteenth Amendment § 5

Facts: Disabled plaintiffs who were restricted from accessing courthouse sued the state of Tennessee in federal court alleging that the state violated Title II of the ADA by denying them access to courthouse. State filed an MTD alleging that the statute violated 11th Amendment sovereign immunity.

Holding: Constitutional abrogation of 11A through 14A5

Lane Test to Determine Abrogation of 10A or 11A:
* For sovereign immunity – first step: did Congress unequivocally abrogate sovereign immunity
* 1) Is Congress acting pursuant to a valid grant of Constitutional authority? (e.g., 14A5, 15A2)
* 2) Did Congress identify the nature of the right being infringed? (City of Boerne: Must be a fundamental right that the Supreme Court has already articulated, cannot go against the nature of the right articulated by SCOTUS)
* 3) Did Congress identify a history and pattern of violations? (City of Boerne and Shelby County: has to be a relatively current problem) – Has to be the STATE’S violation not CITIZEN violation
* 4) Is the remedy congruent and proportional to the violation? (City of Boerne must be remedial or preventative of continued violations)

Question 36

Shelby County v. Holder

Answer 36

Tenth Amendment
Fifteenth Amendment § 2

Facts: Congress reauthorized the Voting Rights Act’s preclearance procedures which required certain states to obtain preclearance from the AG before making any change in their voting procedures.

Holding: Reauthorization is not a constitutional exercise of Congress’s 15A2 powers. Changes over time make Congress’s program no longer rational.

Question 37

What are the forms of preemption?

Answer 37

1) Express Preemption: Text of the statute states that it is preempting state law
2) Field Preemption: Pervasive federal regulation where the federal interest is so dominant that it’s assumed the federal government would be the sole regulator
3) Conflict preemption: Impossible to comply with both the federal and state statute

Question 38

Arizona v. United States

Answer 38

Preemption

Facts: Arizona adopted a statute which 1) Authorizes officers to make a warrantless arrest of a person where there is probable cause to believe that the person committed a public offense that makes the person removable from the United States; 2) Requires that noncitizens carry registration papers showing that they are lawfully in the United States; 3) Makes it a crime for those who are not lawfully present to apply for or be hired for work; 4) Requires officers to check a person’s immigration status if there is reasonable suspicion that the person is in the United States illegally

Holding: All except #4 (because it’s too early to determine how it will function) are preempted by federal immigration regulation

Question 39

What is the Dormant Commerce Clause Test?

Answer 39

1) Is the law facially discriminatory?
* Facially discriminatory with protectionist purposes –> per se invalid
* Facially discriminatory but with benign purpose –> presumed unconstitutional unless state can show that the statute served a legitimate local purpose that could not be served as well by nondiscriminatory means
2) Is the law facially neutral?
* Presumed constitutional unless the burden imposed on interstate commerce is clearly excessive in relation to the local benefits – deferential (Pike) (case by case basis: see truck length cases)

Question 40

National Pork Producers v. Ross

Answer 40

Dormant Commerce Clause

Facts: California law prohibited the sale of pork if the animals were raised in certain inhumane conditions. Trade associations challenged the law, alleging that it placed an undue burden on interstate commerce while mostly affecting non-California farms.

Holding: Constitutional – plurality discussion on incommensurates

Question 41

Reeves v. Stake

Answer 41

Court upheld South Dakota’s policy of selling cement produced by a state-owned cement plant only to South Dakotans, embracing rather than condemning state favoritism

Rule: If a state is acting as a market participant (buyer or seller) then they can give preference to their own people

Question 42

Toomer v. Witsell

Answer 42

Article IV Privileges and Immunities Clause

Facts: Differential licensing fee charged to in- vs. out-of-state shrimp fisherman. But the fee differential was extreme – 10,000% ($25 in-state vs. $2,500 out-of-state)

Holding: Unconstitutional – but this is the outer limits of P&I

Rule: As long as there is a “reasonable relationship” between the danger of noncitizens as a class and the discrimination placed against them, state discrimination against out-of-state citizens is ok (e.g., in-state vs out-of-state tuition)

Question 43

What are the three categories for evaluating whether the President has authority?

Answer 43

1) Maximum authority: When the President acts pursuant to an express or implied authorization of Congress – he has all of his power plus all of the power that Congress delegated to him.
2) Zone of twilight: When the President acts in absence of a grant or denial of authority from Congress – he can work concurrently with Congress but on thin ice
3) Minimum authority: When the President acts in a way incompatible with the express or implied will of Congress – he is working with only the authority he has minus any constitutional powers Congress has because they won’t give it to him

Question 44

INS v. Chadha

Answer 44

Separation of Powers

Facts: Chadha was an east Indian born in Kenya with a British passport. After his visa expired, Chadha was ordered to show cause as to why he should be allowed to remain in the US. INS was set up by congressional statute authorizing the executive to run the proceedings, the statute setting it up gave congress the power to veto decisions by legislative veto (only one body required). The INS judge ruled in favor of Chadha and ordered that his deportation be stayed. The ruling was sent to Congress by the Attorney General. Congress (not Senate), using a legislative veto, vetoed granting his citizenship.

Holding: Unconstitutional violation of the separation of powers

Chadha approach: 1) Start with the identity of the body 2) Work out what the requirements are for that body to function

Rule: Legislative veto is unconstitutional. Congress may legislate only if there is bicameralism and presentment.

Rule: It is a violation of the nondelegation doctrine to delegate certain authority to another branch while retaining a special power to overrule it.

Question 45

Bowsher

Answer 45

Separation of Powers

Facts: Congress adopted an act to deal with the budget that set the maximum allowable deficit for each of the following five years. If spending exceeded the deficit ceiling, the comptroller general (a legislative official) who was the head of the General Accounting Office (a legislative agency) was commanded the President to impose across-the-board spending cuts.

Holding: Unconstitutional delegation of the executive power to the legislature. The general was granted the executive power to execute the law and it was unconstitutional for Congress to enact a statute that gave itself that executive power.

Bowsher approach: Look to the kind of action (here imposing budget cuts), not the body (here Congress) to determine whether the person was acting as an executive officer.

Rule: It is a violation of the nondelegation doctrine for Congress to delegate to itself executive power

Question 46

Seila Law

Answer 46

Article II § 2 Cl. 2

Facts: CFPB was investigating Seila Law Firm and issued a civil investigative demand to Seila. Seila argued that CFPB was unconstitutionally structured.

Holding: CFPB’s leadership by a single Director removable only for-cause violates the separation of powers.

Test for Removal:

• Threshold: If unclear whether they are executive or not ask Chadha/Bowsher, if still unclear then go to the below *

The President can remove at-will executive officers (Myers) EXCEPT if they fall in the below two buckets:
* 1) Multimember panels who are not “purely executive” in their functions (think also about: bipartisanship, appointed to staggered terms) (Humphrey’s)
* 2) ASK: Would not letting the President remove this person at will interfere with his ability to do his job? See: inferior executive officers with limited authority (not a lot of duties and no policy making or administrative authority) (Morrison)

Question 47

What are the tiers of scrutiny?

Answer 47

1) Strict Scrutiny (Race): Are the means narrowly tailored to achieve a compelling governmental interest?
2) Intermediate Scrutiny (Sex): Are the means substantially related to an important governmental interest?
3) Rational Basis Review (Everything else): Are the means rationally related to a legitimate governmental interest?

Question 48

Beazer

Answer 48

Fourteenth Amendment Equal Protection

Facts: NYC’s regulation prevented those in methadone maintenance programs from having a job with the MTA

Holding: Constitutional – definitely over and under inclusive and also kind of a bad policy but we’re not the legislature. Passes under RBR as rationally related to a legitimate purpose of safety and efficiency.

Rule: Under rational basis review, the Court will allow laws that are both significantly underinclusive and overinclusive in deference to the legislature.

Question 49

Cloverleaf Creamery

Answer 49

Fourteenth Amendment Equal Protection

Facts: Minnesota legislature enacted a statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitted sale in other nonreturnable, nonrefillable containers like cardboard cartons. Legislature claimed that the means were in service of an environmental end.

Holding: Constitutional

Rule: As long as it is “debatable” that the means rationally relate to the ends, it passes RBR

Question 50

Zobel v. Williams

Answer 50

Fourteenth Amendment Equal Protection

Facts: Alaska statute distributed dividends that increased with years of residency

Holding: Fails RBR

Rule: Rewarding citizens solely for their length of residency in the state is not a legitimate governmental end

Question 51

REA

Answer 51

Fourteenth Amendment Equal Protection

Facts: NYC statute made it illegal for vehicles to display advertisements for anything other than their own services because advertising other people’s companies was more distracting and would lead to traffic problems

Holding: Passes RBR. Statute is underinclusive, but the legislature can’t think of everything

Rule: Unless there is a reason to think that the hypothetical concern behind a statute is invalid then it will be upheld under RBR

Question 52

Lee Optical

Answer 52

Fourteenth Amendment Equal Protection

Facts: Oklahoma statute made it unlawful for any person not licensed as an optometrist or ophthalmologist in the state to fit lenses or replaces lenses without a prescription by a state-licensed optometrist or ophthalmologist. Oklahoma eyeglass company sued alleging violations of equal protection – looks like regulation to insulate optometrists and ophthalmologists from competition to get them to move to Oklahoma.

Holding: Passes RBR

Rule: The legislature can decide to deal with a state issue in different ways, attacking the issue step by step – as long as there is an issue and the state is addressing it in some way, the Court isn’t going to criticize their policy under rational basis

Question 53

Moreno

Answer 53

Fourteenth Amendment Equal Protection

Facts: Congress amended the Food Stamp Act to exclude any household whose members weren’t all related to each other. Legislative history showed that the amendment was intended to prevent “hippies” from receiving benefits. Congress claimed that it was designed to prevent fraud.

Holding: Fails RBR +, animus is not a legitimate end

Rule: A “bare congressional desire to harm a politically unpopular group” cannot constitute a legitimate governmental interest – animus is not a legitimate end

NOTE: If the Court smells animus under RBR they’ll keep raising the standard of review (+++) until it’s impossible for it to pass

Question 54

Cleburne

Answer 54

Fourteenth Amendment Equal Protection

Facts: City ordinance had required a special permit for the operation of a group home for the mentally disabled (but not hospitals, sororities, or elder homes). City’s reasons were that neighbors opposed it, flood concerns, congestion, and that middle-schoolers across the street would bully the mentally disabled people.

Holding: Fails RBR + “irrational prejudice” made the policy irrational

Rule: If the Court sees an unusual policy they’ll interrogate the justifications for the fit and infer from the bad fit a bad end (compare to Moreno where they knew that the legislation was intended as a bad end)

Question 55

Harlan Dissent in Plessy

Answer 55

• Colorblind constitution: the law is not allowed to take account of race
• Any distinction on the basis of race is a “badge of inferiority”
• Any distinction on the basis of race is going to be an irrational distinction (racism is irrational)

Question 56

Sweatt and McLaurin

Answer 56

Fourteenth Amendment Equal Protection

Sweatt: Student wanted to go to UT Law, was forced to go to all black and pretty crummy new state-run law school – court held that the tangible and intangible factors of UT made it not a real choice

McLaurin: Black student was in school with white students, but was separated from them socially and in corners of the classroom – court held that “Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.”

NOTE: For gender or an unprotected class separation, think about Sweatt and McLaurin – would essentially have to have the programs start at the same time to be equal.

Question 57

Brown

Answer 57

Brown I: Separate is inherently unequal, adopts Harlan’s view on what segregation means – although facially its segregation, substantively, segregation visits a stigma upon a disfavored group.

Brown II: Unitary status – supervise de jure schools until they’re actually integrated
* De jure segregation: Statutory segregation
* De facto segregation: No statutory segregation but just actually segregated

Question 58

Pool Cases

Answer 58

Fourteenth Amendment Equal Protection

Clark: Court held that the city could not segregate public parks, libraries, zoos, golf courses, playgrounds, auditoriums

Palmer: Court upheld the city closing its public pools in response to its decision in Clark.

Rule: EPC does not guarantee public services, just guarantees equal protection of those facilities. States can close schools or pools for everyone if they don’t want to segregate

Question 59

Korematsu

Answer 59

Fourteenth Amendment Equal Protection

Facts: Japanese internment camps

Rule: Apply strict scrutiny to race classifications

Murphy Dissent (IMPORTANT to affirmative action)
* The inference drawn between Japanese Americans and disloyalty is itself a product of racial animus (can’t use racial identity as a proxy)

Question 60

Loving

Answer 60

Fourteenth Amendment Equal Protection

Facts: Statute prohibiting interracial marriage

Rule: The preservation of racial purity is not a legitimate end

Rule: Marriage is a fundamental right

Question 61

Croson

Answer 61

Fourteenth Amendment Equal Protection

Facts: Richmond city affirmative action set aside 30% of construction contracts for minority-owned businesses. No direct evidence showed discrimination against minority owned businesses or their prime contractors.

Holding: Fails SS

Rule: Remedying general past societal discrimination is not a compelling interest – classifications based on race must be “strictly reserved for remedial settings” – has to be past particular race-based discrimination

Question 62

Adarand

Answer 62

Fourteenth Amendment Equal Protection

Facts: Federal government had a practice of giving general contractors on government projects a financial incentive to hire minority businesses as subcontractors.

Holding: Unconstitutional

Rule: 14A and 5A EPC have the same standard – consistency

Question 63

SFFA

Answer 63

Rules for race classifications:

Compelling state interests: (not about the gravity of the interest, but about the validity of using race in furtherance of that interest)
* 1) Remedying specific identified instances of past discrimination that violated the Constitution or a statute (Croson) (drops out if the state has reached unitary status or some equivalent)
* 2) Avoiding imminent and serious risk to human safety in prisons (Johnson v. California)

Race cannot be counted against someone (overrules plus factor – because if it’s a plus for one person it’s a minus for another)

Race classifications cannot invoke stereotypes – there has to be a meaningful connection between the person and the purpose

Race classifications have to have a defined endpoint (remedial: has an endpoint; diversity: no endpoint)

Question 64

PICS

Answer 64

Fourteenth Amendment Equal Protection

Facts: Public school systems in Louisville and Seattle adopted plans that used race as a factor in assigning students to schools to achieve greater racial diversity. Louisville previously had de jure segregation but had recently reached unitary status, Seattle never had de jure segregation.

Holding: Classifications are no longer permissible once a school remedies de jure segregation and achieves unitary status

Kennedy: Racial balancing is a compelling governmental interest. It can be achieved through race conscious means, but they can’t be race classifications. Race classifications can lead to harmful differential treatment.

Question 65

Johnson v. California

Answer 65

Fourteenth Amendment Equal Protection

Facts: Race riots – plaintiff assigned to another member of the same race and sued

Holding: Constitutional

Rule: Avoiding imminent and serious risks to human safety in prison is a compelling governmental interest, race classifications are permissible in pursuing that interest.

Question 66

Washington v. Davis

Answer 66

Fourteenth Amendment Equal Protection

Facts: Black police officers sued in federal court alleging that the police department’s verbal skills test (racially neutral) was racially discriminatory because it was disproportionately failed by black police applicants and thus had a discriminatory effect.

Holding: Constitutional
Rule: Disproportionate impact is not the “sole touchstone” of invidious discrimination, standing alone it does not trigger strict scrutiny

Question 67

Arlington Heights Test

Answer 67

1) Is the provision facially neutral? [If so continue, if not, IM/SS]
2) Does it look like there was a discriminatory intent? (benign or invidious)
* E.g., effect/disproportionate impact of statute; pattern of implementation unexplainable other than on the basis of race; legislative or administrative history revealing political intent; procedural abnormalities (procedural process done differently); substantive abnormalities (factors consistently considered important to decisionmaker don’t bother the decisionmaker now).
3) If racial discrimination is shown to be a factor, the burden shifts to the government to prove that the same decision would have been reached without the discriminatory factor
* If the same decision would have been reached without the discriminatory factor –> RBR
* If the same decision would not have been reached without the discriminatory factor:
o Benign purpose –> SS
o Invidious purpose –> Fails RBR (“bare desire to harm”)

Question 68

Trump v. Hawaii

Answer 68

Fourteenth Amendment Equal Protection

Facts: Muslim ban + 2 countries that aren’t predominantly Muslim

Holding: Constitutional passes RBR

Test: Alternative and VERY deferential test for a race-neutral statute (apply only after AH, note that it’s probably just for national security)
* 1) Is there any legitimate end that is served (looks like Cloverleaf)
* 2) Can we prove that the legitimate end wasn’t served?
Not about PRIMARY purpose, the Court will try to find ANY legitimate purpose even if it looks primarily motivated by racial animus

Question 69

Craig v. Boren

Answer 69

Fourteenth Amendment Equal Protection

Facts: State statute allowed women to by low percentage beer at 18, but men couldn’t buy until 21. State cited traffic safety.

Holding: Unconstitutional under IM. The ends are legitimate (traffic safety), but 1) The means are too attenuated to justify a gender classification: Statistics do not support the conclusion that gender-based discrimination is substantially related to traffic safety 2) The disparity between .18% of females arrested and 2% of males arrested is not great enough to support using gender as a proxy

Rule: Intermediate scrutiny: Classifications based on gender must be substantially related to an important governmental interest

Question 70

VMI

Answer 70

Fourteenth Amendment Equal Protection

Facts: VMI all-male military college to produce “citizen soldiers” using the adversative method. In the middle of litigation over the all-male college, Virginia established an all-female military sister school that didn’t use the adversative method. Alleged that the means of establishing a sister school were substantially related to the important end of preserving diverse educational opportunities and providing unique method of character development and leadership.

Holding: Unconstitutional.
* Ends must be the actual basis for discrimination. They lose because 1) The option of single-sex education does not contribute to diverse educational approaches because VMI was the single school of its kind 2) The unique method of character development and leadership training would not have to be compromised if women attended because at least one woman wanted to go there and you can’t ban women for fear of destroying men.
* Means lose because VA failed to show that its remedial purpose was directly addressed and related to the violation. 1) Women’s school is run totally different from VMI 2) Intangible factors (Sweatt: reputation etc.,)

Rule: Ends under intermediate scrutiny + must be the actual basis for discrimination – Court will look for the bad ends it thinks are actually happening and be really hard on the states

Rule: Under intermediate scrutiny administrative justifications are not important

Rule: Ends cannot be based on a stereotype

Question 71

West Coast Hotel

Answer 71

Substantive Due Process

Facts: State established a minimum wage law for women employees

Holding: Constitutional

Rule: Economic regulation which is reasonable in relation to its subject and is adopted in the interests of the community IS due process – treated with RBR

Rule: Freedom of contract is not a fundamental right

Question 72

Carolene

Answer 72

The Court will defer to the legislature unless it implicates fundamental rights or discriminates against a protected class/insular and discrete minorities

Question 73

Meyer v. Nebraska

Answer 73

Facts: State law prohibited teaching any other language in school other than English. Child of German children was prohibited from learning his parents native language.

Holding: State law is unconstitutional because it doesn’t meet strict scrutiny (would meet rational basis), even though it would meet RBR (worried about learning new languages post-WWII)

Rule: Family autonomy (controlling the upbringing of your children) is a fundamental right

Question 74

Pierce v. Society of Sisters

Answer 74

Facts: State law required children to attend public schools, prohibiting attendance at private schools like Catholic schools

Holding: State law is unconstitutional

Rule: Family autonomy (controlling the upbringing of your children) is a fundamental right

Question 75

Eisenstadt v. Baird

Answer 75

Facts: State statute prohibited distributing contraceptives to unmarried individuals and only allowed physicians to distribute them to married individuals

Holding: Unconstitutional discrimination against unmarried individuals on the basis of the fundamental right to obtain contraceptives

Rule: Fundamental right to control procreation/contraceptives

Question 76

Dobbs

Answer 76

Facts: Mississippi law prohibited abortions past the fifteenth week of pregnancy, which was unconstitutional under Roe and Casey which protected the right until viability (twenty-third or twenty-fourth week)

Holding: Constitutional (overturns Roe)

Rule: No fundamental right to an abortion

Rule: RBR applies to governmental regulations and prohibitions on abortion

Test to determine whether a fundamental right exists (Glucksberg)
o 1) Deeply rooted in history and tradition AND
o 2) Essential to the concept of ordered liberty: To determine ask: could you imagine the United States operating WITHOUT this right?

Question 77

Shapiro

Answer 77

Facts: Law imposed a one-year residency requirement in the state as a prerequisite for eligibility for welfare.

Holding: Unconstitutional, violates the right to interstate travel which is a fundamental right. The means are not narrowly tailored to a compelling govt interest – State claims the durational requirement was for fiscal integrity. SCOTUS says purpose was to discourage migration of indigent persons into the state and the likely impact of the laws would be to prevent such travel

Rule: Distinguishing between people because of their exercise of a fundamental right gets strict scrutiny

Rule: The purpose of deterring people from moving into the state is a prohibited purpose

Rule: There is a fundamental right to interstate travel

Question 78

Dandridge

Answer 78

Facts: State law capped welfare benefits to families regardless of their size. As a result, children in larger families received less benefits per person than those in smaller families.

Holding: The policy is rationally related to a legitimate governmental interest in allocating public benefits.

Rule: Welfare is not a fundamental right – BUT if the state is forcing you to interact with the state, then you get a right to resources (e.g., right to an attorney in a criminal trial)

Question 79

Harper/Gideon/Boddie

Answer 79

Facts: Poll tax for voting, right to counsel in criminal proceedings, waiver of filing fees to get a divorce

Rule: Poverty can be a protected class if it is implicated in the exercise of a fundamental right

Question 80

Rodriguez

Answer 80

Facts: Texas tax system of funding public schools through local property taxes meant that poor areas had to tax at a high rate, but had little to spend on education; wealthier areas could tax at low rates, but had more to spend on education.

Holding: Constitutional under RBR

Rule: Poverty is not a suspect classification

Rule: Education is not a fundamental right

*NOTE: Complete deprivation exception – in cases where the Court has extended rights based on poverty, the person was completely deprived of an important (but not fundamental) right rather than getting a bad version of the right e.g., if the state completely deprived certain groups of students to public education it might be impermissible

Question 81

Plyler

Answer 81

Facts: Texas law provided a free public education to citizens and to children of documented immigrants, but required undocumented immigrants to pay for their public education.

Holding: Unconstitutional

Rule: Education is not a fundamental right, but a complete deprivation of public education may be impermissible

• Plyler agency problem – not general precedent but specific to these facts *

Question 82

Romer v. Evans

Answer 82

Facts: Colorado Amendment repealed all state and local laws that prohibited discrimination against gays, lesbians, and bisexuals.

Holding: Unconstitutional violation of EPC. There is no legitimate governmental purpose for denying gays, lesbians, and bisexuals the same use of the political process as everyone else.

Rule: Animus against gays and lesbians is not a legitimate governmental purpose under rational basis review

Rule: Gays and lesbians are not a protected class.

Question 83

Lawrence v. Texas

Answer 83

Facts: Texas law prohibited same-sex sodomy

Holding: Unconstitutional violation of DPC

Rule: There is a fundamental right to engage in intimate sexual relationships. Prohibiting the intimate conduct necessary to maintain those relationships is violates that right.
o “When sexuality finds overt expression in intimate conduct, the conduct can be but one element in a personal bond that is more enduring.”

Question 84

Obergefell

Answer 84

Facts: State laws prohibited same-sex marriage

Holding: Unconstitutional under DPC and EPC

Rule: The fundamental right to marry extends equally to same-sex couples and heterosexual couples.

Rule: Cannot identify a fundamental right based on the identity of the individuals who exercise it
o For same-sex couples, a tradition of discrimination cannot justify continued exclusion from the right to marry

Question 85

Bruen

Answer 85

Rule: The Constitution presumptively protects 2A conduct. To justify its regulation, the burden is on the government to demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this nation’s historical tradition may a court conclude that the individual’s conduct falls outside the 2A’s unqualified aim.

Test: Is the regulation consistent (analogous) with this nation’s historical tradition of firearm regulation?
* 1) How the regulation limits the right (means?)
* 2) Why the regulation limits the right (ends?)

Question 86

What is the general analysis after identifying a fundamental right?

Answer 86

1) The state has no legitimate governmental interest in limiting the exercise that right

2) Strict scrutiny if the state distinguishes between those who get to exercise it and those who don’t

Question 87

How do you identify a fundamental right?

Answer 87

Glucksburg:
1) Deeply rooted in our nation’s history and tradition
2) Central to our concept of ordered liberty

Kennedy:
Work outward from the relationship to determine whether the right in question is necessary to the exercise of the relationship

Question 88

Skinner

Answer 88

Facts: Law that sterilized three-time “moral turpitude” felons – distinguished some crimes like robbery as moral turpitude whereas other crimes like embezzlement were not

Holding: Unconstitutional because it discriminated among people in their ability to exercise a fundamental liberty and that the ends-means relationship was not narrowly tailored to a compelling governmental interest (why embezzlers not thieves)
o Court found that the right to procreate was a fundamental right and essentially used strict scrutiny under the equal protection clause to analyze the government’s discrimination as to its exercise.

Rule: Procreation and marriage are fundamental right
* Not all rights are created equal, some rights are more important than others
o E.g., pursuing a calling vs the right to procreate