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Payne Con Law Outline

FEDERAL POWER GENERALLY: In our federalist system, national and state gov’ts co-exist.  The three branches can only assert powers specifically granted by the C.  You must watch whether some power asserted by the fed’l gov’t is in fact allowed under the C, and watch whether some power asserted by the states is limited in favor of fed’l power.  Ask: “what is the enumerated power in the C that gives the fed’l branch the right to do what it has done?”

I. JUDICIAL REVIEW: Definition: Doctrine that provide state and federal courts the power to invalidate Congress’s or Executive’s action that is contrary to the Constitution. A) Article III, Sec. 2 Grants judicial power to the Supreme Court and inferior federal courts to say what the law is. However, “jurisdiction is made subject to exceptions and regulations as Congress from time to time shall make. “ a) Types of cases that can go directly to the Supreme Ct under Art. III, Sec 2: 1. Federal question – C, treaties, law of US. (not until 1871). 2. Diversity jurisdiction - dispute b/w citizens of diff’t states. 3. Admiralty cases 4. Cases b/w state/ citizens and foreign country/ citizen. It’s the case, not the controversy that determines SC’s jurisdiction.

b) Review of Federal Action: Marbury v. Madison (1803) - Marshall i. Facts: 1. Marbury was appointed and confirmed as a judge the day before the Adams administration came to a close 2. The new administration refused to deliver the commission 3. Marbury sued Secretary of State Madison directly in the Supreme Court for a writ of mandamus. ii. Theoretical underpinnings of the decision: 1. Words in the Constitution must have an affirmative meaning 2. The Constitution is the supreme law of the land 3. Any act of Congress which conflicts with the Constitution is not a valid law: a. §13 of Judiciary Act of 1789 – “Sup. Ct. shall have exclusive jurisdiction of all controversies of a civil nature…also have appellate jurisdiction from circuit courts…power to issue writs of mandamus” – is contrary to the Constitution. 4. It is the job of the Supreme Court to state what the law is 5. Based on the above presumptions, the Supreme Court may declare a law unconstitutional iii. Holdings: § 13 of Judiciary Act of 1789 unconstitutional. 1. Marbury had a vested right in the commission 2. Writ of Mandamus was a proper remedy for Marbury 3. Because the act establishing the Supreme Court’s original jurisdiction for this trial was unconstitutional, the above two points were moot as the Court could not decide the case

1 I: Does the Supreme Court have original jurisdiction to hear this case? NO. H: Marshall declines to enforce it, and therefore Marbury doesn’t fall w/in jurisdiction of the Supreme Court and he loses. Decision based on: (i) Written Constitution - can’t allow legislature to write laws that contradict the Constitutionn; (ii) Law w/ limits (checks/ balances, etc.); (iii) Principal supremacy of C over statutory law. C trumps statute!!!

Note: Doctrine of Judicial Review applies to executive action except when Executive has legal or constitutional discretion.

c) Review of State Action: Martin v. Hunter’s Lessee (1816) – Justice Story iv. Facts: Treaties of 1783 & 1794 prohibited Virginia from seizing land owned by Great Britain. VA Court of Appeals held contrary to treaties. Supreme Court reversed. VA Court of Appeals refused to obey Supreme Ct – it claimed that Section 25 of Judiciary Act was unconstitutional. 1. Section 25 of the Judicial Act of 1789 gave the Supreme Court the power to review the decisions by State Supreme Court when the decision: a. Invalidates a treaty or statute thereof of the United States b. Involves favoring of state law that was repugnant to the Constitution or federal law. c. Involves any clause in the Constitution, federal law, or national treaty and the decision violates that provision – applies to this case. v. Theoretical underpinnings of the decision: 1. The Constitution creates a Supreme Court and gives Congress the discretion to create lower courts. 2. Article III § 2 Clause 2: granted Supreme Ct original jurisdiction over cases involving ambassadors and diversity of citizenships. It also granted appellate jurisdiction over all other cases in Constitution. 3. Supremacy Clause of Article VI establishes that US Constitution “shall be the supreme law of the land…shall bound anything in constitution or laws of any state to the contrary notwithstanding.” vi. Holding: Virginia could not ignore the Supreme Court’s decision. 1. Appellate power of SC extends to cases pending in state court. Sec. 25 of FJA (1789) 2. Rule: When the state courts decide federal c’l questions, the SC has appellate jurisdiction under Art. III, §2 over such decisions. It’s the final word!!!

Note: This case extended Supreme Court jurisdiction over the states and gave uniformity in the federal constitution interpretation. One law of the land. Otherwise, too many interpretation of the law will erode federal power and create problems.

Cohens v. Virginia: (1821) p. 29 VA Lottery ticket law conflicts with fed law. Marshall held that state criminal cases like state civil cases came w/in appellate jurisdiction of Supreme court. d) Mechanisms to balance power of judicial review: (1) Political question doctrine (Baker v. Carr) – based on three criteria. (2) Exceptions and Regulations clause (Art. III, § 2) w/c gives Congress the power to take away jurisdiction that it thinks the court will exercise unwisely. (Ex parte McCardle).

2 (3) Standing – (Art. III) (Baker) power of fed’l courts extends to “cases and controversies.” This has also been read to mean that party presenting the case must have a legitimate stake in that issue. (4) 11 th Amendment – suits b/w individuals and states. Cong adopts language that has been interpreted as a sovereign immunity doctrine (state’s autonomy). a) Prohibits fed courts from hearing private party’s or foreign gov’s claim against a state government. Exceptions: i. Action against state officers; Actions that enjoin officer from future conduct; Action that violates Constitution or fed law ii. State consents iii. Congress removes the Immunity iv. §5 of 14th allow congress to provide relief to violation of 14th. (5) Mootness – doctrine originally used to decide a case has now become moot. (6) Discretion (at appellate level) – SC doesn’t have to hear most cases (only those it chooses). (7) Ripeness – is the country ready to deal w/ this issue?

B) LIMITATION ON JUDICIAL REVIEW:

The “Exceptions Clause” (Art. III §2) – SC has appellate jurisdictions “under such regulations as Congress shall make.” a) Ex Parte McCardle (1869) C. J. Chase: o Facts: McCardle (editor) was arrested for criticizing the military and appealed under Habeas Corpus Act of 1867. o Holding: Cong passes a statute repealing habeas corpus (SC can no longer hear writs of habeus corpus). Appeal denied. . Article III provided that “Supreme Court shall have appellate jurisdiction…with such exceptions, and under such regulations as Congress shall make.” o RULE: Congress has the right to w/draw jurisdiction of SC in a case pending b/f it. b) Ex parte Yerger: (1869) – case suggested limits on McCardle. o Facts: Yerger was being held for trial by military court and petitioned for writ of habeas corpus. Lower courts denied. o Holding: Supreme Court possess other means to free prisoner from unlawful confinement. . Argued that Congress had granted habeas corpus jurisdiction in several statutory provisions: acts of 1789, 1833, 1842 and 1867. c) US v. Klein (1872) – (Overrules McCardle): o Facts: Cong adopts statute providing that rebels forfeit their property and Court of Claims adjudicate title to property confiscated. President Johnson pardoned rebels and promised to have their property back. Supreme Court required Court of Claims enforce the President’s promise. Congress passed another legislation directing court of Claims to deny pardoned rebel’s claims and withdrawing appellate jurisdiction by Supreme Court. o Holding. A statute that changes jurisdiction is unconstitutional. o Rule: Cong can’t adjust jurisdiction based on a preference for one side of case rather than the other side. This violates Article III. It must w/draw jurisdiction from a class of cases, not pick and choose case it wants to w/draw. c) Felker v. Turpin (1996) – o Facts: Cong concerned it takes too long to execute prisoners, passes statute preventing multiple habeas corpus petitions (limiting to 1 petition). Congress affectively restricting Supreme Court’s jurisdiction. SC granted expedited review of claim by petitioner who was on death row and was previously denied habeas relieve by fed courts.

3 o Holding: Statute did not preclude original jurisdiction in Supreme Court of extraordinary habeas petitions. . Statute unconstitutionally stripped fed courts of judicial review authority and interfered w/ prohibition on suspension of writ of habeas corpus (Art I § 9). d) Exceptions Clause (Article III § 2 Clause 2) – examples of Congress trying to use exceptions Clause to limit jurisdiction: o School prayer – “SC shall not have jurisdiction to review…any case arising out of voluntary prayer, bible reading, religious meetings in public schools” – failed. o Abortion: limits fed court’s jurisdiction case arising from any state law regarding protection of rights of person b/w conception and birth; performance of abortions; or other assistance for performance of abortions.

II. JUSTICIABILITY:

(1) POLITICAL QUESTION: Non-justiciable. Under this doctrine, the court will decline to hear a case on PQ grounds only if it would violate the doctrine of separation of powers, or if it would be an unwise policy decision.

a) Apportionment: Cases.  Colegrove v. Green (1946) – Frankfurter (plurality 3-1-3 opinion) i. About re-apportionment claim. Guarantee Clause was used. Supreme Court held non- justiciable.  Baker v. Carr (1962) (good law today) – Brennan. Established “one person, one vote” principal. Important case b/c it defines what a political question involves. i. Facts: 1. Population in cities of Tenn was higher and more concentrated compared to thinner population in farmland. One urban vote didn’t count as much as rural vote. ¶ sued under Equal Protection Clause b/c votes are not counting less. 2. District Court, following Frankfurter’s opinion in Colegrove, denied relief on grounds of political question. ii. Issue: Can federal court hear this case? YES. Apportionment is not a political question. 3. Theoretical underpinnings of the decision a. Certain questions are beyond the scope of the court (Foreign relations; Dates of durations of hostilities; Validity of enactments) – political question. b. Supreme Court did not follow Colegrove (since is a plurality opinion – avoided overruling it) b/c no Guarantee Clause was used here and Equal Protection is available in this case. c. This case does not involve any branches of government coequal with the Court. iii. Holding: This is an Equal Protection case. Reapportionment is not a PQ and therefore is justiciable. iv. Dissent (Frankfurter): argued that this is Guaranty Clause case – guaranteed republican form of government (representative democracy) – Article IV § 4.

b) Six Elements of a PQ from Baker v. Carr: Separation of Power: (1) Textually demonstrable constitutional commitment of the issue to a coordinate political dep’t.

4 Nixon v. US: - (1993)  Facts: Judge Walter Nixon claims his impeachment was wrong b/c it was heard b/f Senate committee rather than full Senate.  The House of Representatives impeached Walter Nixon, a federal court judge, following his conviction and imprisonment for making false statements to a grand jury.  Part of the Senate delegated most of its duties to a committee which reported to the rest of the Senate.  Nixon brought suit on the grounds that the entire Senate should have taken part in his evidentiary hearing  The district court dismissed the case, ruling it a non-justiciable political question  Issue: Is the claim that Rule 11 violates the Impeachment Trial Clause “justiciable?” NO.  Holding: This is non-justiciable PQ b/c the Constitution has given Senate, not the courts, the sole power to try impeachment. (Art. I § 3 Clause 6- textual commitment strand of Baker v. Carr). Commitment to another branch = non-justiciable PQ. (2) Lack of judicially discoverable and manageable standards for resolving it. (Choosing method of drawing voting per district non-judicial function) Powell v. McCormack – (1969)  Facts: House refuses to seat Clayton Powell for alleged “improprieties.” Powell claims this is unconstitutional.  Issue: Can the SC hear this case? YES.  Holding: this is not a PQ! Manageable judicial standards are present in this case as indicated by Constitution language itself. o Article I § 5 – “each house shall be the Judge of the qualifications of its own members” o Court found that Powell met all these qualifications (expressed in Article I § 2 – age, citizenship and residence).  Justice White (concurrence): Found different intentions of founders but same merits of the case.  Justice Souter (Concurrence): Court should give deference to other branches in matter such as this. Prudential Standards: (3) Impossibility of deciding w/out an initial policy determination of a kind clearly for non-judicial discretion. Court would need some direction from legislature about how to decide it. (4) Impossibility of a court’s undertaking independent resolution w/out expressing lack of the respect due coordinate branches of gov’t.. (5) An unusual need for unquestioning adherence to a political decision already made. (don’t want to use case that decided on political question for precedent). (6) Potentiality of embarrassment by various dept’s on one question.

(2) RIPENESS: A case isn’t ripe if it has not yet become sufficiently concrete to be easily adjudicated. a) Specific Threatened Harm – litigant must not have already suffered a harm; it’s enough that the litigant has reasonable probability of harm. b) Goldwater v. Carter (1979): Justice Powell o Issue: Is a President’s unilateral termination of a treaty a PQ? YES. o Holding: Case dismissed b/c PQ issue.

5 o Rule: A President’s power to unilaterally terminate a treaty is a PQ since: (1) No Common law provision directly controls the issue (silence) (2) Political branches have adequate resources to decide the issue, and (3) Issue involves foreign affairs. o J. Powell –-> case isn’t ripe for decision-making b/c Senate had not yet formally challenged the President’s authority by getting enough votes in Senate to disagree w/ the President. o J. Rehnquist (concur): No textually commitment to this issue. Constitution doesn’t address if Senate has power/right to be involved in rescission of treaty. Court should stay out and let Senate & president fight it out. o J. Brennan (dissent): Case should be justiciable. Absence of textual commitment doesn’t bar decision to be rendered elsewhere.

(3) CASE OR CONTROVERSY: Article III, Sec. 2 – prohibits fed courts from giving advisory opinions in common law matters. Court can’t resolve an issue until it comes to the court bearing the hallmarks of actual controversy b/w two litigants. It’s not unusual for state courts to give advisory opinions to their legislatures. Muskrat v. US (1911) – J. Day – Foundation for “standing” law. o Facts: Congress in 1902 set aside land for Cherokee Indians. Later in 1904-06, fed laws tried to enlarge # of Indians who could share property. Muskrat, whose claim derived from 1902 Act, brought suit b/c his property right was adversely affected. o Holding: Court says this is a case b/w one group of people and US policy. Too abstract. US itself has no actual interest in outcome. Requirement of actual controversy. This is a case-or- controversy only if it is b/w Muskrat and someone who has a claim of property. o Note: Court could have heard this case. There were advisory committees among the original 13 states. Decision involves a lot of discretion. This is a political question case.

(4) STANDING: P must have a significant stake in the controversy. i) Test for Article III Standing: (1) Actual or threaten injury – P must show he has been injured himself. (2) Causation - Injury must be fairly traceable to acts of D. (3) Redressability – Injury can be redressed by some judicial action. iii) No third party standing allowed. ii) Taxpayer Suits: Double Nexis Test: 1) Does it have something to do w/ taxing/ spending? 2) Is there a connection b/w Act and taxing/ spending? (a) Frothingham v. Mellon (1923): J. Sutherland o Facts: Lady complains that fed grant program (Maternity Act) is unconstitutional. She objects as tax-payer, and claims standing to prevent wasting of her tax $. o Issue: Does P have standing? NO. o Holding: No individual concern, but a public one. Frothingham’s tax contribution to wealth of US is infinitesimal and she has no real injury. Therefore, no standing. o Notes: Rich person or organization that pays a lot of taxes. Allowing standing can bring floodgate of suits regarding taxes. No real injury b/c injury to their ideology, not really their property. (b) Flask v. Cohen (1968): C. J. Warren – case only about standing, not merit of case. o Facts: Textbooks subsidized by fed’l gov’t to religious schools. ¶ challenged the taxing and spending law (Art. I § 8) as violation of Establishment Clause of 1st Amendment (principle of separation of church and state as a taxpayer). o Holding: ¶ has standing (a definable stake in the outcome) b/c: Double Nexis Test is satisfied: (1) He asserted his relationship as taxpayer to the act and that it’s something a taxpayer would be correctly concerned with, AND

6 (2) There was a specific common law limitation on Congress’s power to use taxation and spending (Article I). o Note: This is distinguishable from Frothingham b/c ¶ showed that there is a limit to Congress’s taxing and spending power rather than just challenging the law. (c) Valley Forge Christian v. Am. for Separation of Church&State: - 1982 – J. Rehnquist o Facts: ¶ claims that surplus land distributed by gov and given to religious college 100% subsidized violates 1st Amendment. o Holding: no standing. Fails the double nexis test: (1) No personal injury to the organization. (2) Under Flask, taxpayer can only assert rights against Cong’l acts, and this was done by an agency of gov’t. Gov grant was based on property power (Art. IV, § 3, clause 2) not taxing and spending clause. (3) No remedy here against agency. (d) Allen v. Wright (1984) – O’Conner o Facts: Nation-wide class action claim on behalf of black school children that the IRS is NOT enforcing fed law and regulations by allowing tax exempt status to private schools that discriminate based on race. o Holding: No standing. o Reasoning: Although class has a legitimate concern. (1) Harm - stigma isn’t enough to fulfill harm requested; (2) Causation – unsure how many disciplinary schools actually benefit from IRS exemption; only traceable to IRS; injury caused by privately motivated families engaging in “white flight” (3) Injunctive relief, w/c is too broad. Even if remove tax exemption, private families would still engage in “white flight”

(5) PRUDENTIAL STANDING: court has discretion not to hear a case. (a) General grievances - Frothingham (tax money too minute in the grand scheme of tax that her injury is only a general grievance of the rest of the taxpayers.) (b) Third party standing – raising rights of others. Allen v. Wright – black parents raised claims of all pack children. (c) Associational standing – association asserts claims of its members. Requirement: members would otherwise have standing to sue; (2) interest of associate seeks to protect is germane to its purpose; (3) neither claim nor requested remedy require participation by individual members.

III. NATIONAL POWERS & FEDERALISM:

A) DOCTRINE OF IMPLIED POWERS (Art. I, Sec. 8): i) Pretext Exception – if Cong oversteps its boundaries under the pretext that it’s executing its powers, court is ready to put it in check. ii) Two Foundations of Regulatory Power: (1) Art. I, Sec.8 (1) – Tax and Spend Clause (2) Art. I , Sec. 8 (3) – Foreign Commerce Clause, Interstate Commerce Clause, and Indian Commerce Clauses iii) Overlap/ Impermeable Theory - Powers of federal and state gov’t aren’t mutually exclusive. Powers of state gov reach deeply into matters that are also of concern to fed’l gov’t. NO conflict as long as what state gov and fed gov attempt to regulate aren’t inconsistent. iv) McCulloch v. Maryland (1819): C. J. Marshall. “The power to tax is the power to destroy.” o Facts: In 1816 a Bank of US was created. Maryland enacted a law which stated that any bank which was not chartered in the state must pay an annual tax of $15,000 or 2% on all of its notes.

7 Bank refused to pay the tax and. MD sued and won. McCulloch, the cashier of the Bank, appealed to the Supreme Court. o Isue: does Cong have power to charter a nat’l bank? YES. Although this power isn’t explicit, Art. I, §8 enumerates what gov can do. Of all those things, a bank would be an obvious convenience. o Issue #2: Once the Court concludes the bank is constitutional, is it permissible for Maryland to lay a tax on that bank? NO. “This is a tax on the operations of the bank, and is a tax on the operation of an instrument employed by the gov’t of the Union to carry it’s execution. H: Maryland can’t levy a tax on the bank. o Rule: States may not act directly on a fed instrumentality; they may act indirectly so long as it is in a non-discriminatory manner. Marshall interprets Constitution by construction – If the bank can be seen as a useful mechanism to carry into effect those enumerated powers, then failure to enumerate the bank is simply en editing decision not to contain that detail. o Note: Congress has implied power (in “text and spirit” of the constitution) if it is appropriate to the beneficial exercise of an enumerated power (e.g. incorp of national bank is useful instrument of fiscal powers of congress.). But the national bank is a private bank here rather than a fed entity.

B) OLD COMMERCE POWER: pre-new deal ( before 1932-1937) (i) Foundation Case: Gibbons v. Ogden (1824): C. J. Marshall. Art. I, §8(3) o Facts: ¶ had exclusive right by NY to ferry b/w NY and NJ.  was licensed by fed gov. ¶ sought injunction. o Issue: Is state regulation that excludes navigation by fed licensees constitutional? NO. (ii) Overlap/ Impermeable Theory - Powers of federal and state gov are not mutually exclusive. Powers of state gov reach deeply into matters that are also of concern to fed gov. NO conflict as long as what state gov and fed gov attempt to regulate are NOT inconsistent.

(iii) Three Threads to Affectuate ICC: “What Can Congress Regulate?”: abstract distinctions and federalism.

(1) Affectation Doctrine o Cong may reach anything that affects IC. Where the local activity affects IC, then Cong can regulate it b/c of its affect on outward activity. . See below Wickard v. Filburn (Wheat marketing quota provisions of Agricultural Act did not violate 5th amendment b/c it substantially affects interstate commerce). o Direct and Indirect effects: o Shreveport Rate case: (1914) – W/in its state police power, TX charged lower rate to intrastate railroad than interstate railroad. Court said Congress has power to regulate “all matters having such a close and substantial relation to interstate traffic that control is essential…to security of traffic, to efficiency of interstate service.” Direct effects of interstate commerce. o US v. EC Knight (1895) – sugar manufacturing/monopoly in shipping. Holding: Cong can’t regulate this monopoly under its commerce power, even though economic impact is obvious b/c manufacturing only indirectly affect interstate commerce. Stream of commerce theory still used and other ways to get around this case are used.

(2) Commerce–Prohibiting Technique/ Gatekeeping

8 o Relies on attaching Cong’s power to some movement across state lines. One unambiguous power. In many of these cases, the court constructs an abstract idea of harm. o Champion v. Ames (1903) (Lottery case) – J. Harlan – Fed statute prohibits shipment of lottery tickets across state lines. Holding: statute is constitutional. The lottery ticket is inherently evil. It was infecting IC. o Hammer v. Daggonheart (1918) – J. Day - Congress prohibits shipment of goods manufactured by child labor. Holding: Statute is unconstitutional. (beyond Cong’s control) The evil is not in the product, but in the means of production. The evil comes to an end once goods are manufactured. o Dissent (Holmes, McKenna, Brandeis, and Clark): it is for Congress to decide whether particular mean is appropriate to the end.

(3) Stream of Commerce (strain of gate-keeping) – o If your product winds up in the stream of IC, Cong has the right to regulate it. o Stanfford v. Wallace: (1922) – upheld constitutionality of Packers and Stockyards Act of 1921, which held that livestock cannot be held at stockyards as a place of rest or final destination. Rational: “stockyards are but a throat through which current of commerce flows from West to East.

C) MODERN COMMERCE LAW: Post new deal (1937-1976) o New Deal – program designed to ameliorate impact of depression by regulating prices of goods, wages, and hours of workers, strengthening fed controls on financial markets. Great expansion of commerce power o Dual Federalism: “two mutually exclusive, reciprocally limiting fields of power – national gov and states.” o Truism:

Three ways Cong can regulate under commerce power (US v. Lopez): (1) Cong may regulate the use of channels of IC (Heart of Atlanta, Darby). (2) Cong is empowered to regulate and protect instrumentalities of IC, or persons or things in IC, even though threat may come only from intrastate activities. (Perez) (3) Congress’ commerce authority includes the power to regulate those activities have a substantial relation to IC. (NLRB v. Jones & Laughlin Steel Corp . – 1937 – serious effect from work stoppage in steel industry in national economy warrant regulation).

(1) Foundation Case: a. US v. Darby (1947) – J. Stone – (Overrules Hammer and EC Knight) o Facts: Wages and hours law. ¶ manufactures lumber shipped to other states. Fed statute regulates working conditions in plants. o Holding: Statute is constitutional. Workplace conditions do affect IC. o Note: court gave complete deference to congress! b. Wickard v. Filburn (1942) – Justice Jackson: o Facts: Family farm consumption of wheat, never put into stream of commerce. Product of wheat had to comply w/ national farm marking price regulation. ¶ argues that the wheat he consumes doesn’t substantially “affect” the market/ commerce. o Holding: Agricultural Act is constitutional b/c it has substantial affect on commerce. (Court went to the extreme here.). By not participating in the market, he’s reducing demand for wheat.

9 (2) Protecting Civil Rights under Modern Affectation Doctrine: (i) Art. I, Sec.8 – gives Cong power to create Civil Rights Act. (ii) Civil Rights Act of 1964: Employed 14th amendment & commerce clause. 1. Title 7 – Protection against employment discrimination 2. Title 6 – affirmative action program 3. Title 2 – public accommodation (iii) Substantial Economic Effect - When supported by the commerce clause, the argument against discrimination is basically that it’s “bad for business.” When state action is involved, then invokes 14th amendment, which forbids states to discriminate. (iv) Heart of Atlanta Motels v. US (1964) – J. Clark: o Facts: Motel located near major highways refused to serve African-Americans. o Holding: Cong has power to adopt the Civil Rights Act and prohibit racial discrimination in places of public accommodation serving interstate travelers. o Rationale: discrimination in service impedes interstate travel by African-Americans. (v) Katzenbach v. McClung (1964) – J. Clark - Ollie’s BBQ – o Facts: Small, segregated restaurant in Birmingham; most customers were local. o Holding: Cong may prohibit segregation in restaurants where food has traveled in IC. o Rationale: food Ollie’s receives crosses IC, and if enough local restaurants discriminate, then can’t root out discrimination. Blacks can’t participate in interstate market. This is the Wickard of civil rights cases.

(3) Limiting Congressional Reach: State v. Fed’l Spheres: In cases below, unless congress can show that states contribute to this problem (by looking the other way, etc.), there’s no basis for finding a need for a federal remedy. (i) US v. Lopez – (1995) – C.J. Rehnquist – 1st case since 1936 reversing expansion of commerce power. o Facts: challenging Gun-Free School Zone Act of 1990, which made it a crime for anyone who knowingly possess firearm around school zone. o Holding: Act is unconstitutional!! Court focuses on affect on commerce rationale. Court isn’t persuaded there’s a degree of substantiality necessary for a commerce rationale. Only way to find an effect on IC in this case is to stack inference upon inference and result would be to uphold general police power for Congress. o Concur (Thomas): Wants to restrict commerce to selling, buying and bartering and transporting for these purposes. Four Lopez factors: 1) Jurisdiction– States typically have had jurisdiction over criminalization of conduct. 2) Legislative Findings - subject to review by the Court. 3) Directness/ Non-attenuation- link b/w commerce and activity that it is regulating. To the extent that link is found to be connected only through a sequence of steps, it is likely to fail. 4) Substantial Affects Test – Cong must show that the problem substantially affects IC (therefore a need for the statute). (ii) US v. Morrison (2000): J. C. Rehnquist – o Facts: Sexual assault case.  challenges Violence Against Women’s Act. o Holding: statute is categorically unconstitutional. o Rule: Cong doesn’t have the power to legislate in this field. o Rationale: principal of federalism. Lopez factors apply, and the Act fails the test for same reasons. a. Commercial/economic activity: Here, gender motivated violence are non-economic. b. Express jurisdictional element – Violence Against Women Act is too board. It has to be limited to interstate commerce. c. Congressional finding – Congress has to establish fact finding in order to evaluate legislative judgment. In this case, although there are numerous findings regarding serious impact of gender-motivated violence, findings are based on improper method of reasoning

10 (that crimes deter potential victims from traveling) – this would allow congress to regulate ANYTHING that has to do with crime on large scale. d. Link of activity to interstate commerce – there’s no real link b/w violence and interstate commerce. Court is concern about 10th amendment rights reserved to states. (iii) Jones v. US (2000) – J. Ginsburg - refused to extend commerce power. o Facts: Jones burned down cousin’s house and was convicted under fed arson statute, which makes it a fed crime to “maliciously damage…any building…used in interstate or foreign commerce…” Gov argued that house was involved in interstate commerce b/c it was financed & insured by national companies and supplied w/ utilities operated in interstate commerce. o Holding: Private residence could not be construed to be involved in interstate commerce otherwise, every building in the country would be susceptible to coverage by statute.

(4) Congressional Reach under Darby: (i) US v. Perez (1971) – Perez violated Consumer Credit Protection Act (loan shark use force to collect debt) where  may have never even been out of state, clientele is local. a. Holding: Class of activities is w/in Congress control, regardless of whether the individual can demonstrate there’s no interstate connection. Local activities fuels criminal act throughout country and affect commerce. (ii) US v. Sullivan (1948) – J. Black: overrules Schechter (chix case): Properly labeled drugs moved through commerce and was improperly re-labeled in the process. a. Holding: Court upheld power of Congress under CC to regulate branding of articles that have completed an interstate shipment and are being held for future sales in purely local or intrastate commerce. b. Rule: once in IC, always in IC.

IV. STATE SOVEREIGNTY – 10 th Amendment 10th Amendment trumps Art. I, §8 – “powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

 Is the fed gov asserting some action over a state?  Is the fed gov in some way dictating how states should regulate?

No stable rule emerges from cases below: (i) Nat’l League of Cities v. Usery (1976) – J. Rehnquist:  Facts: Extension of Labor Standards Act to cover policemen and firefighters (States public employees) violates state sovereignty.  Holding: Act is unconstitutional. Court was careful not to interfere with gov agencies.  Rule: Cong doesn’t have power to tell states how to run their gov’t. Overruled by Garcia!  Note: 5-4 decision. J. Blackmun broke the tie – concurring in part dissent in part. He thinks court can reach state on occasions. (ii) Garcia v. San Antonio MTA (1985) – J. Blackmun (5-4 decision): cong extended minimum wage & overtime hrs to SAMTA (mass transit authority). Garcia sued – MTA doesn’t need to comply b/c of Nat’l League decision.  Holding: Statute regulating minimum wage & overtime hrs doesn’t violate state sovereignty or violate any constitutional provision. Overruling Nat’l League.  Rationale: It is not up to judiciary to decide what the limitations of the federal structure are on commerce power. State interest is properly protected by procedural safeguards. . A decision on which state agencies are immune from certain government regulations cannot turn on a historical analysis

11 . Confining immune government functions to “unique” or “necessary” functions proves “unsound in principle and unworkable in practice” . States retain power only to the extent that the Constitution has not given them to the national government; in most cases, the Constitution does not reserve “express elements of state sovereignty that Congress may not employ its delegated powers to displace…” . Nothing in the FLSA requirements is destructive to state sovereignty as applied to SAMTA  Powell , C.J., Rehnquist, and O’Connor (Dissent): o Political process (providing funds for certain projects and exemptions from obligations of some fed statute) are NOT effective in preserving state interests and safeguard against federalism. o This court ignored the teaching of Marbury, which said that it is the fed judiciary’s role “to say what the law is” (judicial review) and failed to protect States from federal overreaching under the 10th amendment. (iii) NY v. US (1992) – J. O’Connor: Revived 10th amendment.  Facts: Congress passed statute imposing upon states obligation to provide place for disposal of low-level radioactive waste and provide monetary incentives for development of sites.  Holding: Statute is an UNCONSTITUTIONAL intrusion of state sovereignty. o Fed gov doesn’t have authority to require states to do its dirty work. Defended on two grounds: (1) 10th Amendment; OR (2) Federalism idea (don’t tell states what to do). (iv) Printz v. US (1997): Brady Act requires local officials to do background checks on gun purchasers before administering fed gun registration.  Holding: co-opting mechanisms of state is equally prohibitive. Cong can do this itself, but can’t force states to do it. o Requires state officials to enforce the Act. o Violates principle of accountability b/c fed gov takes credit for any success and states have to shoulder the enforcement problem.  J. Thomas (concur): Brady Act deals w/ right to bear arm, which is against the 2nd amendment and may be unconstitutional.  Stevens (Dissent): took issue with Scalia’s historical interpretation of the relationship between the states and the federal government  Souter (Dissent): also took issue with the interpretation of the Federalist papers made by Scalia  Breyer (Dissent): disagrees with Scalia by looking at federalist systems in other countries which allow the national government to interfere with local ones  Difference b/w Printz & NY: Sheriff in Printz has limited discretion in their function compare to NY. State officials in Printz also are under oath to support the Constitution. Counter is that integrity of state is of concern.  Difference b/w Garcia & Printz & NY: Garcia is an exception, where Congress can require states to CONFORM to fed law. Congress cannot require states to carry out federal policy. V. TAXING & SPENDING:  Madison’s cautious and conservative view: Constitution gives Congress power to tax, pay debts & provide for the common defense and general welfare of the US(Art I, Sec 8). Tax & spending could only occur w/in enumerated power in Constitution.  Hamilton’s expansive view: Powers to tax and to spend for the general welfare are independent powers (power to tax & spend in manner not specified under any of Congress’ enumerated regulatory powers). I) Taxing – w/ purpose or effect of regulation: (i) Where Congress has power to regulate, tax is valid as necessary and proper exercise of its regulatory power. (ii) Where there is NO regulatory power, tax WILL BE UPHELD if its dominant intent is to raise revenue (i.e., fiscal rather than penal).

12  Objective approach will uphold a tax w/ an apparent regulatory purpose if it does in fact raise revenue.  Subjective standard, Ct looks to statute’s language and operative effect to determine its dominant intent.  Both approaches used to review tax statutes. II) Spending – w/ purpose or effect of regulation: (i) Many fed spending programs expressly conditioned on regulating recipients’ activities. If Congress may directly regulate the target activity, then spending program is valid as necessary & proper exercise of regulatory powers. (ii) If NO power to regulate (though rare), Congress’ power to spend must be exercised for the general welfare and it may not violate an independent constitutional right.  Fed funds may be used to “entice” states to conform to fed standards under theory that Congress acting for general welfare.

III) Four Conditions of Congress’s ability to attach Conditions (from South Dakota v. Dole): 1) Spending and taxing must be in pursuit of general welfare. 2) If there’s a condition imposed on receipt of federal $, that condition must be unambiguously stated by Congress. Court can’t be asked to infer. If Congress will intrude in state power, it must do so consciously and clearly! 3) Conditions must be related to the federal interest in particular national projects/ programs (ex. Steward Machine Co. v. Davis). 4) Must not violate the 1st & 14th Amendments. IV) Cases: (i) Veazie Bank v. Fenno: (1869) – Court upheld fed tax on banknotes issued by state-chartered bank. It was a necessary and proper means of exercising a delegated power even if it were viewed as penalty for regulatory purposes rather than revenue-raising measure. (ii) US v. Doremus: (1919) - $1 licensing tax on sellers of narcotic drugs were upheld even though revenue objectives of legislation were minimal compared to its regulatory aspects.  Regulation was perceived as method of assuring collection of tax.  Case implies that if Congress had regulatory purpose rather than revenue purpose, tax would be upheld ONLY IF regulatory purpose were w/in its enumerated powers. (iii) Steward Machine v. Davis (1937): Cardozo   Facts: Social Security Act of 1935 imposed tax on employees, but if they make contributions into state unemployment fund, they can receive credit up to 90%. Petitioner contended that the purpose of the tax was not revenue, but an unlawful invasion of reserved powers of states, and that states had yielded to coercion.  Holding: Tax statute is constitutional. Congress may induce cooperation of states by conditions, using spending power as base. Congress may spend money to avoid severe NATIONAL consequences of unemployment. (iv) Oklahoma v. US Civil Serv. Comm., (1947) –  Facts: State employees have to comply w/ Hatch Act regarding partisan political activities as a condition for receiving fed highway funds.  Holding: Court upheld requirement for tax.  Rationale: Gov has power to fix terms upon which its money allotments to states are disbursed. (v) South Dakota v. Dole (1987): C. J. Rehnquist

13  Facts: Elizabeth Dole, Secretary of Transportation, wanted to w/hold % highway funds to states that allow people under 21 to drink. SD contends that 21st amendment, which granted states control over importation & sale of liquor, is an independent constitutional bar to conditional grant of federal funds.  Holding: Cong can attach grant of $ to SD a condition that drinking age be increased to 21 yrs.  Rationale: The condition is an inducement and not coercive b/c it’s only holding 5% of the fund, leaving states options to comply or not. In exercising spending power, Congress established 4 part test: 1. Congress must be in pursuit of “general welfare” - safety 2. Unambiguously state conditions of grant for states – increase drinking age to 21. 3. Condition cannot be unrelated to fed interest in particular national projects programs. . Court said Congress is properly concern w/ safety as a connection b/w highway condition and objective of highway safety. 4. May provide independent bar to condition grant of fed funds  Rule: Congress may NOT coerce states to do an act, but may INDUCE them so long as the condition is germane (relevant).  J. Brennan (Dissent): Regulation of min age for purchase of alcohol is a power reserved for the States by the 21st amendment. Congress cannot condition a grant in a manner that abridges this right.  J. O’Connor (dissent): Congress can require safety compliance by states, but cannot impose a condition that insists to change regulations in other areas of the State’s social and economic life. Congress has no power under the Spending Clause to impose requirements on grant that go beyond specifying how money should be spent. A requirement that is not such a specification is not a condition but a regulation, which is valid only if it falls w/in Congress’s delegated regulatory power. VI. 14 Amendment, §5  gives Cong power to enforce the 14 th Amendment R: 14th trumps 10th - states have no sovereignty defense against 14th amendment issues! 1. City of Boerne v. Flores (1997): J. Kennedy – City passed ordinance about preservation of historic district, and thus turned down church’s request to enlarge sanctuary size. Church uses Religious Freedom Restoration Act (RFRA) as its defense, saying city is violating practice of religion. i. RFRA prohibits gov from “substantially burdening” a person’s exercise of religion even if burden results from a rule of general applicability UNLESS gov can demonstrate that the burden is in furtherance of a compelling governmental interest and (2) is least restrictive means of furthering that interest. . Holding: RFRA is unconstitutional i. 14th Amendment § 5 only give government power to enforce constitutional right to free exercise of religion, but does not extend to changing or defining what the right of free exercise is. Distinction b/w enforcement & changing gov law. ii. By defining what test the court need to use to decide if gov is burdening religious freedom, RFRA is defining substantive rights of 14th amendment § 1. Under Marbury, it is the court’s role to say what the law is. . Rule: 14th, §5 gives Cong power to decide constitutional remedies only; Ct determines which issues need remedy. Congress cannot substantively define 14th amendment § 1. It is the court’s role.

14 . J. Stevens (Concur): RFRA violates 1st amendment. Granting the permit to enlarge the structure would be a governmental preference for religion is forbidden. . J. O’Connor, J. Breyer (Dissent): Disagree with holding in Smith. It should not be used as a standard in deciding this case. 2. Snith v. Dept. of Employment: (1990) – J. Scalia – Native American fired from job as drug offender. Drug use was for religious purposes. Smith argued that State has no compelling need to enforce law. . Holding (5-4): No need to accommodate so long as law is law of general application applied to whole population, not target religion specifically. . Note: RFRA essentially overrules Smith law. 3. Lassiter v. Northampton Election Bd.: (1954) NC English literacy requirement was held constitutional. Voting Rights Act 1965 overruled Lassiter. 4. South Carolina v. Katzenbach: (1966) – Federal Voting Rights Act 1965 prohibits voter registration requirements that deny right to vote on basis of race by using literacy test. . Holding: Voting Rights Act was upheld. . 15th Amendment § 2 (Congress shall have power to enforce this article by appropriate legistlation) provides that Congress may use any rational means to effectuate constitutional prohibition of discrimination in voting. . Act was perceived as discretionary right of Congress. 5. Katzenbach v. Morgan (1966): J. Brennan – Congressional provision in VRA stated that can’t use literacy requirement w/ citizens who otherwise are eligible to vote. . Holding: VRA was upheld (constitutional). Court considered this as a remedial measure by Cong. (1) Statute may be viewed as measure to secure Puerto Rican community in NY nondiscriminatory treatment and (2) elimination of invidious discrimination in establishing voter qualifications. This is allowed under 14th amendment § 5.

VII. SEPARATION OF POWERS - EXECUTIVE Art. I, §1 confers power on President as executive.

I) Executive Lawmaking – Pres has limited power to legislate. (a) VETO Power (b) MILITARY power- no power to declare war but can deploy troops w/out congressional action. Presidential dominance in war powers. (c) *INHERENT “EMERGENCY” POWER- some inherent power to act in cases of nat’l emergency. But does not extend to the power to do a specific act already prohibited by Congress.

Youngstown v. Sawyer (1952): J. Black – Steel industry union labor wanted wage increase and started strike. Eve of strike, President Truman ordered Secretary of Commerce to order seize of steel mills and order them to continue operation.  Holding: Truman’s seizure of steel industry during strike was unconstitutional. 1. Presidential act must stem either from Constitution or from Cong. 2. Although president has power to take immediate response in times of crisis, the country wasn’t close enough to war to warrant this response. Power to execute is unwarranted in this situation b/c no relevant law to execute. 3. Cong wasn’t completely silent on the issue – they had already passed the Taft-Hartley Act, which rejected an amendment that allows governmental seizures in cases of emergency.  J. Frankfurter (Concurring): Congress was very familiar w/ governmental seizure as a protective measure but chose not to lodge this power in the president.  J. Jackson (concurring): Inherent power has no source. This case is similar to situation # 3 (below).

15 1. When president acts pursuant to express or implied authorization of congress  then his authority is at its max. 2. When Congress is indifferent or acquiescent, it may enable if not invite measures on independent presidential responsibility. 3. When president’s act is incompatible w/ expressed or implied congressional intent, then his power is at its lowest. President claim of power must be scrutinized w/ caution.

Clinton v .City of NY (1998): 6 members of Congress challenged Line Item Veto Act;  Line Item Veto Act: the President was authorized to veto selected portions of spending and tax laws. He could cancel $ amounts when cancellation would reduce federal budget deficit and not impair essential governmental function AND not harm national interest. 1. President MUST notify Congress of such cancellation w/in 5 days 2. If Congress disagrees, majority of house could pass a “disapproval bill”, which needs President signature 3. If president vetoes disapproval bill, Congress could override the veto by 2/3 majority.  Holding: Act is unconstitutional.  Gives President too much power over Congress.  For Pres to undo something ALREADY approved by Cong by vetoing line by line is to legislate, which is outside his scope of power.  Constitution is silent regarding unilateral presidential action that either repeals or amend parts of an enacted statute must be construed as an express prohibition.  J. Scalia, O’Connor, Breyer (Concurring in part, dissenting in part): Historically, the president had always had the power to decline to spend money apportioned by Congress. There’s no difference b/w this & line veto item. This is not a violation of Art I § 8 Clause 2 (how bills passed)  J. Breyer, O’Connor, Scalia (dissent):  The line-item veto does not violate the principle of separation of powers  Cancellation doesn’t amend the law; it still leaves statute in tact.  Congress retains power to disapprove the president’s veto.

II) Foreign Affairs Power: Art. II, § 2 & 3  Give Pres powers to command army, treaty-making powers, can receive foreign ambassadors due to need for decisive action and uniform policy.  Distinguish: Art I, sec 8 Clause 3 gives Congress power to do commerce w/ foreign countries, declare war & raise army. (i) Legislation permitted w/ external affairs  US v. Curtiss-Wright (1936): J. Sutherland  Facts: Embargo on sales of arms to countries engaged in armed conflict in S. America.  indicted for conspiracy to sell arms in violation of embargo.  Issue: May Congress delegate power to president to impose arms embargo? Yes.  Holding: Congress has broad discretion to vest in President the power to legislate foreign affairs. Also, federal power here is exclusive; states have no concurrent power. National government has inherent foreign affairs powers. (iii) President can make Treaties: w/ foreign nations w/ advice & consent of 2/3 of Senate. Pres may also enter into executive agreements w/ other countries and independent of treaty power so no consent from Senate. Treaties trump statutes. (iv) Executive Order – Dames & Moore v. Reagan (1981): J. Rehnquist a. Facts: Hostage crisis in Iran President Carter issued executive order to nullify attachments on Iranian assets and transferring them to Fed Reserve Bank in NY. Prior to this, past legislation showed congressional purpose to allow president control over foreign assets to help negotiate resolution of a declared national emergency (Hostage Act). b. Holding: President may, in time of nat’l emergency, suspend outstanding claim in US. Here, there was Cong’l acquiescence, plus Act that permitted freezing of assets. (v) Wartime powers

16 a. The War Powers Act  After Vietnam, Congress passed the War Powers Act over Nixon’s veto 1. In the absence of a declaration of war, a president must notify Congress within 48 hours of the reasons for the use of armed forces 2. Within 60 days the president must end the use of the military unless Congress has allowed a longer time or the nation is under attack 3. The president may have an additional thirty days to withdraw troops if such time is necessary for the safety of military personnel b. Scholars are divided on whether the War Powers Act is constitutional 1. Some scholars hold that the Founders intended no break with pre-1787 practice in Britain and the colonies that a president could use the forces as long as the legislature would write the checks 2. Other scholars, invoking the Black and Jackson opinions in The Steel Seizure Case, argue that the act, while inefficacious, is constitutional 3. In all honesty, the documentary evidence from the founders is ambiguous

III) Privileges and Immunities in Separation of Powers: Art. IV – Interstate P & I Clause  Protection against disclosure of presidential communications made in exercise of executive power.  Derives from separation of powers doctrine and need for confidentiality.  Privilege for military, diplomatic or national security secrets given great deference.  BUT, other presidential communications only presumptively privileged.

(i) US v. Nixon (1974): C. J. Burger - President Nixon was asked to furnish evidence during Watergate dispute for criminal prosecution of co-conspirators. Nixon refused and claimed absolute immunity, arguing that efficient and effective administration can be achieved only if confidential. Advisors would be unwilling to advise otherwise.  Holding: Court rejects his argument of absolute privilege, and that it’s a non-justiciable issue b/c intra-branch dispute  Rule: Separation of powers does not bar judicial review of a Pres’ claim of privilege, b/c it is the court’s duty to say what law is w/ respect to that claim of privilege, even if court’s interpretation differs from President. General assertion of privilege must yield to specific need for evidence in criminal trial.  Balance b/w President’s confidentiality and criminal case against 7 public officials. Important factor in criminal procedure that exceeds president’s interest. (ii) Clinton v. Jones (1997): J. Stevens – Private action for civil damages against President Clinton. Clinton argued that he occupies unique office w/ powers and responsibilities so vast & important that public interest demand undivided time and attention to his public duties.  Holding: President Clinton has absolute immunity in order to enable him to perform his designated functions w/out fear of personal liability. Immunity extends to private as opposed to public official’s acts. However, court allowed court to perform discovery, which was also time consuming and hassle to president.  Notes: Difference b/w this case and Nixon’s case is that this is a civil litigation. It is not sufficient to override the president’s confidential interest. Otherwise, it affects the confidence & integrity of the president.  Paynism: Court is wrong in Clinton. Allowing litigation would weaken president’s position and his office. A lot of people would want to sue him. Harmful to the office.

17 VII. DORMANT COMMERCE CLAUSE (State Regulation of IC) Where Congress’s power lies dormant – where it hasn’t chosen to regulate one way or another- there’s no implicit requirement in Constitution that its silence be regarded as any barrier to state regulation in that area. (Wilson v. Black Bird Creek,1829)

 Did the state regulate in an area Congress had NOT regulate?  These fact patterns deal w/ state regulation.  Does the state’s regulation intrude on Constitution (under the Supremacy Clause)?  Differentiating : CC v. Dormant CC a) Commerce Clause - In earlier cases, question was whether or not Congress’s power was Constitutional. It always dealt with a statute. If not, then Art. I, Sec. 8 Clause 3 didn’t allow it. b) DCC - A DCC problem will always involve a state regulation. The issue is whether a state regulation violates federal Constitution under Supremacy Clause, b/c state regulation impermissibly intrudes into sector allocated to federal government. Here, Congress has power to regulate it but had not regulated it.

Two Limits on State Power: I) Congressional Preemption and consent –  When Cong has legislated in the field, it has preempted state’s ability to regulate.  Rules governing preemption derive from the Supremacy Clause (Art. VI, Clause 2), w/c states that Constitution and its laws are supreme law of the U.S. Thus, states must give way to federal government once Congress has legislated in a particular area; state laws CANNOT be inconsistent w/ federal laws.  Podilla v. Rumsfield: (2003) –  Gibbons v. Ogden: (1824) – C. J. Marshall (proponent of national power) o Facts: NY granted coasting license for trade to Ogden. He sued Gibbons b/c Gibbons operated steamboat service under fed license. Gibbons lost and then appealed. o Holding: Act of NY must yield to law of Congress. Supremacy Clause. o Congress’s intent NOT to regulate a certain area is an indication that it does NOT want anyone to regulate it at all; not states; not federal government.  Wilson v. Black Bird Creek Marsh Co.: (1829) – J. Marshall o  (Blackbird Creek Mash Co.) built a damn at a stream. Navigable ships not could have access to stream. Congress had not regulated it. o Holding: Where federal government is silent, state can regulate. o Distinguishable from Gibbons v. Ogden b/c it is more important for DE to have control over its own water than to have Congress control over it so long as no collision w/ powers of general gov.  Cooley v. Board of Wardens: (1851) – o Facts: Penn required vessels entering port of Philly to have licensed pilot. PA then issued licenses to its pilots. Issue is whether this license is valid in absence of fed statute. o Holding: Local regulation is valid b/c pilotage by its nature is local. State can regulate until Congress steps in. II) Dormant Commerce Clause – Three-Part Test: A state regulation which affects IC must satisfy each of the following three requirements to avoid violating the DCC. (1) The regulation must pursue a legitimate state end. (2) The regulation must be rationally related to that legitimate state end; and (3) The regulatory burden imposed by the state on IC must be outweighed by the state’s interest in enforcing its regulation. III) Purposes of Dormant Commerce Clause: 1. To preserve congressional authority over interstate commerce 2. To preserve principle of free trade w/o governmental regulation or interference

18 3. To preserve the Union by preventing development of interstate friction 4. To preserve democratic process by preventing legislature of one state from imposing special burdens on citizens of other states.

IV. Classes of Cases:

1. Per Se Discriminatory:  Statute will be struck down if it is protectionist (in favor of one state) or discriminatory (as against another state) as disadvantaging IC.  City of Phil v. NJ (1978): J. Stewart – NJ prohibits importation of garbage from other states. o Holding: Garbage is commerce, and legislation is virtually per se discriminatory b/c it favors NJ. . Can’t discriminate unless there is a reason. Legit goal achieved by illegitimate means by isolating state from national economy. . Each state could exclude out-of-state from activity provided that the regulating state also is precluded. If NJ wants to exclude Philly, it has be excluded in its own state as well. o Note: Court said quarantine laws are not considered forbidden protectionist measure even though it is discriminatory against out of state commerce b/c the source is different. Domestic source is clean and free of disease while out-of-state sources are not. Garbage are the same whether it is in-state or out-of-state. o Dissent (J. Rehnquist, Burger): NJ is forced to take waste from all over the country, thereby increasing risk of health and safety problems. There is no difference b/w garbage and diseased meat and other noxious items.

2. Balancing/ Facially Neutral:  Rule: If regulation unreasonably burdens IC, then it violates the DCC.  Balancing test: State regulation is VALID IF factors such as nature of regulation, its function, character of business and actual effect on flow of commerce DO NOT INFRINGE NATIONAL INTEREST. If burden on IC is disproportionate to local benefits, then it flunks a balancing test (in- state burden/ benefit versus out-of-state burden/ benefit).  South Carolina State Hwy. Dep’t v. Barnwell Bros: (1938) – J. Stone – Upheld state statute prohibiting on state highways use of trucks that exceed certain dimensions even though neighboring states are not as stringent in their regulations. a. Rationale: On its face, regulation is not discriminatory. Court adopted the rational basis rule – so long as there is a rational basis, court will defer to state to regulate. If regulation is based on safety, state may do so even though there are consequences.  Southern Pac. Co. v. Arizona ex rel. Sullivan: (1945) – C. J. Stone – Court invalidated the Az Train Limit Law under the dormant Commerce Clause. a. Rationale: Court said increase danger by longer trains is offset by increase # of accidents from larger # of trains w/ shorter length (less freight cars). b. Dissent (J. Black): Balancing of probabilities of accidents is not the job of the judicial branch. It is a legislative consideration. Representatives are best to determine policies.  Difference b/w South Carolina and Southern Pac. Co: Use of state highway is a peculiar local concern. Unlike railroads, local highways are built, owned and maintained by state or municipal subdivisions.

19  Bibb v. Navajo Freight Lines: (1959) – J. Douglas – Court invalidated an IL statue requiring use of contour rear fender mudguard on trucks and trailers. a. Rationale: Indiscriminatory regulation may still place too much burden on out-of- staters. It is too inconclusive whether mudguard is effective or not when burden is great on out-of-staters. b. Note: Although invalidating the state statute, court acknowledged that safety measures carry a strong presumption of validity. If there are alternatives, court would not have to determine what is best to achieve state objective. Absent fed entry into field, policy decisions are for the state legislature.  Pike v. Bruce Church (1970): AZ law requires fruits to be packed & labeled in AZ before shipping out of state. This benefits AZ packaging companies. Per se discriminatory. a. Holding: AZ Act is discriminatory and therefore unconstitutional b/c the state’s interest is minimal. It has more interest in securing employment for its people. b. Rule: Where statutes regulate evenhandedly to effectuate legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless burden imposed on such commerce is clearly excessive in relation to local benefits.  Raymond Motor v. Rice (1980): J. Powell – WI said longer trucks are less safe than shorter trucks. State said court should use “’rational relation” test rather than the “balancing” test b/c dealing w/ safety here. I: Is Wisconsin’s interest in highway safety sufficient to force federal to yield? NO. o Rationale: State can’t just use safety as a reason for regulation and not provide proof. Appellants have rebutted State’s safety concern by showing that states have issued exemptions from truck length limits.  Kassel v. Consolidated Feightways Corp.: (1981) – J. Powell; plurality opinion – Iowa statute restricted length of vehicles that use its highway. Case is exactly the same as Raymond. o Expert was presented to prove that length of trucks don’t really jeopardize safety. o Concur (J. Brennan, J. Marshall): Concurs in judgment but rejects court’s ad hoc balancing test. Said that so long as purpose of regulation is not illusory, balancing test should not apply. o Dissent (J. Rehnquist): If highway regulation is related to safety, balancing test should be done to weigh burden on interstate commerce against safety.

3. Exception  Market Participation –  Rule: DCC doesn’t apply when state is participating in market, rather than regulating it.  Reeves v. Stake (1980): J. Blackmun – SC cement plant couldn’t manufacture enough to meet demands of its suppliers. It restricts sale of cement to SD residents. ¶ was purchaser not located in SD. (this is clearly per se discriminatory). o Holding: SD’s isn’t burdening the market; it’s simply chosen not to participate in it. o Rationale: SD built a cement manufacturer and participated in the market. There’s no reason to hold state to higher standard than private entities. o Dissent (J. Powell, J. Brennan, J. White, J. Stevens): This policy is clearly protectionism. o Note: City of Phil. v. NJ is different b/c NJ was acting as a public entity.  White v. Mass Council of Constr. Employers: (1983) – o Facts: Mayor of Boston requires all construction project funded by city be performed by at least ½ Boston residents.

20 o Holding: State or local gov enters market as participant is not subject to restrains of Commerce Clause. o Dissent (Blackmun, White): Market participant exception was inapplicable b/c it imposed condition of hiring 50% Boston residents in order to get public construction K. This restricts PRIVATE EMPLOYERS to hire non-residents.

VIII. PRIVILEGES AND IMMUNITIES P&I of national citizenship – Federal: Art. IV, Sec. 2: Federalism provision that ensures citizens of other states are protected in regards to fundamental national interests; that each state provide P&I enjoyed by its citizens, to all citizens of other states. Fundamental values include employment or anything dealing with earning a living  To violate Art. IV, Sec 2 P&I clause, statute MUST “bear on vitality of nation as single entity.”  Need to overcome presumption that it is necessary; need to show that other states are source of problem and justifies discrimination  Baldwin v. Fish & Game (1978): non-resident fee for elk-hunting. H: doesn’t violate P&I clause b/c fishing isn’t important to vitality of nation.  Hicklin v. Orbeck (1978): J. Brennan – Alaska Act conditioning that oil and gas leases, easements or right-of- way, must employ qualified Alaska residents. In preference to non-residents. Employment of Alaska residents is an effort to solve unemployment problem. o Holding: Act is unconstitutional; violation of dormant commerce clause. o Rationale: Alaska’s source of unemployment problem is not out-of-state residents, but rather the lack of skills & education in Alaska residents. Court said Alaska has no interest in activity of Alaska hire. Connection b/w gas & Alaska hire is illusory. o Two Questions to Ask: (1) Are non-residents source of problem Alaska seeks to remedy? (2) Does this restriction bear on solution to problem that non-residents create?  United Building & Construction Trades Counvil v. City of Camden: (1984) – J. Rehnquist o Facts: Municipal ordinance required city construction projects to hire min 40% Camden residents. o Holding: Court held unconstitutional under the P&I Clause. Even though NJ argued that other NJ residents are also being discriminated, court said that other NJ residents have access to political system and can influence regulation while out-of-state residents cannot. P&I of States citizenship: 14th Amendment, Sec. 1  Individual rights  ¶s are attacking the actual fairness, not the procedure.  Protecting individual rights from state abridgement is a dead letter under Slaughterhouse, but revived under Saenz v. Roe.  Can apply to aliens and corporations.  Non-residency isn’t a suspect classification under EP and therefore, discrimination must meet standard of mere rational basis. Under P&I Clause, state must survive strict scrutiny.

A) First Case to Challenge P&I of 14th: Slaughterhouse Cases (1873): J. Miller – Butchers argue LA statute creates monopoly by particular corporation to control slaughtering of calves w/in New Orleans and surrounding territory. This put them in disadvantage and deprived them of livelihood (“creates involuntary servitude”). They have to be employed by corporations instead of having own business. ¶s (all white) invoked P&I Clause. They couldn’t use Art IV § 2 b/c that only deals w/ in-state and out-of-state residents.  Issue: Do Civil War Amendments grant US citizens broad protection against action by states? NO  Holding: P&I is a dead letter in protecting indiv’l rights from state abridgement.

21  Function of P&I of 14th amendment was to protect individual rights to fed gov. The limited list of rights include petition Congress, peaceably assemble, writ of habeas corpus, navigable waters of US, interstate travel, rights in 13th & 14th amendment and right to vote. B) P&I Reconsidered: Saenz v. Roe (1999): CA enacts statute limiting welfare benefits availability to newly arrived residents. H: States may not dispense w/ guarantee that’s Const’y rooted  right to travel.

IX. INCORPORATION  Incorporation of BoR into 14th Amendment.  BoR applies ONLY to FEDERAL GOVERNMENT.  Purpose  to bring rights of individuals w/ in purview of states.  Case law supports conclusion that 1st Amendment concept is also embodied in DPC of 14th.

I. Natural Law –possibility that framers intended to embody phrase “life, liberty, property, w/out due process” from intellectual tradition of Anglo-American/ CL rights. Derives from idea that history/ evolution through time provides widely accepted rules.

II. Total Incorporation – J. Black argues we should interpret the 14th amendment as incorporating of the BoR. Court, however, rejected this view that 14th Amendment DP clause incorporates all of BOR. a. Adamson v. California: (1947) – J. Reed – Adamson was convicted of 1st degree murder and did not want to testify since prosecutor would use it against him if he did. CA allows prosecutor and/or judge to draw jury’s attention to ’s choice not to testify and infer damning testimony. i. Holding: DP of 14th amendment did not draw all rights of federal BoR under its protection. ii. Concur (J. Frankfurter): DP Clause should not be defined by mechanical reference to BoR. DP of 14th amendment has independent potency and meaning apart from BoR. DP should be derived from natural law. iii. Dissent (J. Black): Natural law won’t work b/c it is based on traditional beliefs of judges. It should be derived from BoR. DP is buried in first 8 amendments. If DP wanted to give specific content to DP, they would have said so, but they didn’t. Argues for Total incorporation approach.

III. Selective Incorporation – Court has found this to be the de facto solution to incorporation debate. Each provision of BoR must be consulted when interpreting DPC of 14th. This is done selectively and not in its totality. Some provisions of BoR may not apply. DPC includes only fundamental principles of liberty. Most provisions of BOR included: 1. 1st Amend protection of speech, religion, etc. 2. 4th – arrest, search & seizure 3. 5th double jeopardy, self-incrimination, taking of property w/out just compensation. 4. 6th- right to counsel, trial, jury tiral. 5. 8th- cruel & unusual punishment.

Note: Today, virtually all of BoR became part of the 14th amendment.

X. SUBSTANTIVE DUE PROCESS (SDP)  DPC limits the substantive power of the states to regulate certain areas of human life.  SDP derives from term “liberty” in the Const’n.  SOR  strict scrutiny (SS)

22 I. Old View – Economic Due Process:  1st third of 20th Century, Ct reviewed substance of legislation and used DPC to invalidate economic and social regulations b/c legislation unreasonably interfered w/ “liberty” (right to K) and “property” interests protected by DPC.  SOR  MERE RATIONALITY  Cases: (i) Munn v. Illinois: (1877) – Court upheld a state statute limiting rates charged by grain warehouses b/c elevating grain prices affect public interest. Court refused to look into reasonableness of price b/c setting of rates was a legislative prerogative. (ii) Alleyer v. Louisiana – (1897) Court invalidated state statute making it illegal to contract w/ insurance co not licensed to do business in Louisiana. a. Prohibiting a person from making K w/ out-of-state co was a violation of individual’s right to K protected by 14th Amendment DPC. (iii) Lochner v. NY (1905): J. Peckham –  convicted for violating NY statute, which prohibits employers from allowing employees to work more than 60 hrs/wk. NY tries to defend on grounds of health and public safety. a. Holding: Statute Unconst’l impeding on liberty to K, thereby violating DPC of 14th. b. Rule: Freedom of K in relation to employment cannot be prohibited or interfered w/, w/o violting fed constitution. c. J. Harlan, J. White and J. Day (Dissent): If health reason exists, it is enough to regulate. State is not amenable to judiciary unless enactments of law are plainly beyond question inconsistent w/ the Constitution of the US. d. J. Holmes (dissent): This case is decided upon economic theory. Court should NOT 2nd guess legislature at all. It is duty of court to enforce positively the law that has been declared by legislature. Totalitarian view.  Note: To “Lochnerize” analysis of a case is to commit flaws in reasoning that most commentators feel majority in this case committed. Lochner has never been overruled, but public has no interest at all in labor aspect of employment relationship. Lochner was used to hold back employees from creating union and retard employment movement.  In early 20th century, unionization sought to provide greater equality of bargaining power b/w employees & employers. Lochner characterized judicial response. (iv) Adair v. US: (1908) – J. Harlan - Struck down fed law which made it criminal offense for interstate carrier to discharge employee just b/c of his membership in labor union. a. Rationale: Liberty of K is the guarantee of 5th amendment b. J. Holmes (Dissent): Law only prohibits more powerful party to unjustly discriminate on certain grounds against already employed. (v) Coppage v. Kansas: Ct invalidated similar state law as in Adair b/c of inequality in bargaining position. a. J. Holmes (Dissent): Wants court to overrule Adair and Lochner. (vi) Adkins v. Children’s Hospital: (1923) – J. Sutherland – Applied Lochner to invalidate DC’s minimum wage law for women  freedom of K is the general rule & restraint is exception. a. J. Holmes (dissent) – challenge expansion of innocuous concept of liberty into “liberty of K” b. Case overruled by West Coast Hotel (vii) Muller v. Oregon (1908): court upholds Oregon law that sets max work hours for women. Woman’s physical structure & performance of maternal functions place her at disadvantage.

23  EXAM TIP: DON’T FOCUS ON LOCHNER, IT’S BEEN OVERRULED.

II. Modern SDP - RATIONAL BASIS TEST – Deference to legislative judgments in re: economic/ social reg’s unless they are demonstrably arbitrary or irrational.  LAWS PRESUMED VALID and will be upheld UNLESS no reasonable state of facts can be conceived to support them or unless they bear no rational relationship to the end sought. (public health & safety measures and some business regs such as price control immune from DP attack).  The BURDEN on the challenging party to establish that the law has no rational relation to a permissible governmental purpose. (Carolene Products – J. Stone)  Cases: (i) Nebbia v. NY (1934): J. Roberts (5-4 decision) – Marker case for change in direction substantive DP a. Facts: ¶ convicted of selling milk below minimum price set by milk control board under 1933 law. b. Holding: State may strictly control retail prices, even where control inhibits use of private property and making of K. Requirement of DP is satisfied if legislature doesn’t act arbitrarily. (ii) West Coast Hotel Co. v. Parrish: (1937) – C. J. Hughes - court sustained state law for min wage for women. Overruled Adkins. Accepted J. Holmes’s view: Constitution does NOT speak of freedom to K, but liberty. Limitation of liberty governs freedom of K. (iii) Ferguson v. Skrupa (1963): J. Black - Court upheld law making debt adjustment unlawful b/c it is not court’s role to decide on whether statute is wise or not but the role of the legislature. Marks return to sep’n of powers that cts shouldn’t legislate where Cong has already done so. (iv) US v. Carolene Products Co.: (1938) – J. Stone – Court said this is ordinary economic legislation and court won’t question it. a. Footnote 4 – deference to legislature but there are limits to judicial deference (i.e. speech, religion, racial minorities, 1st amendment rights)

III. Modern SDP under Contract Impairment Clause (Art. I, §10): “No state shall pass a law impairing obligation of K.”  Applies only to STATES.  This clause says nothing about future Ks, but deals w/ Ks already entered into.  Modern Trend - If state substantially impairs a contractual relationship, it MUST have significant and legit public purpose for doing so. If so and adjustment is reasonable and appropriate, deference. (prohibits limits on obligations of K).  SOR  HEIGHTENED SCRUTINY used (even higher when state a party) & state must proffer good reason for impairing K.  Purpose of K impairment Clause – protect institution of private property or capitals. Has similar effect as Lochner doctrine – to protect private interest.  Cases: These cases are significant b/c of ct’s willingness to set aside rule of deference to state’s and intervene in K. (i) State Obligations  US Trust v. NJ (1977): J. Blackmun – State statute that repeals the statutory covenant made by two states limiting ability of Port Authority of NY and NJ to subsidize rail passenger transportation from revenues and reserves VIOLATES K Clause.  Rationale: Repealing limitation eliminated an important security provision of bond holders. Impaired obligation of state’s K.

24  Rule: A state may not impair its own obligations under a K based on its own determination of reasonableness. It must show that impairment was both reasonable & necessary to serve important purpose claimed by state. (ii) Private K  Allied Structural Steel Co. v. Spannaus (1978): Steel Co. adopted pension plan that retained unrestricted right to terminate the plan. MN enacted Private Pension Act, where companies were subject to pension fund charge if they terminated the plan. When Allied Steel closed its offices, it owed $185K. Allied sued on grounds that Act impaired its contractual obligations to its employees under its pension agreement.  Issue: Does the K Clause bar state legislation from significantly expanding duties created by pvt K? YES.  Rule: K Clause limits state’s ability to abridge existing contractual relationship.  IN RECENT YEARS, CONTRACT IMPAIRMENT CLAUSE HAS RECEDED INTO BACKGROUND AND RARELY COMES BEFORE THE COURT.

IV. Regulatory Takings Clause: 5 th Amendment Private property can be taken for public use, but owner must be justly compensated.  Eminent Domain – power of gov’t to seize property.  Zoning regulations that merely limit use of property not considered a “taking.”  Turns on facts of the case.  This is a limitation on state regulatory power.  Case:  Penn Coal Co. v. Mahon: 1922 – Statute prevented coal co from mining coal that causes homes to be subsided. State essentially is depriving owner of coalmines from mining its coal. . Holding: Land-use regulations w/ direct impact on activities were upheld. Court concluded that property could be used taken by regulating of property.  Doland v. City of Tigard (1994): City of Tigard requires property owners in zoned Central Business District to dedicate portion of her land for improvement of storm drainage system and a narrow stripe for bikeway as a condition for approving her redevelopment license of the site. . Holding: Statute cannot apply to ¶ b/c it constitutes as a taking of property.  City didn’t justify why pedestrians can trample along ¶’s easement. Not safe to build at flood area anyway.  City didn’t show reasonable relation b/w easement & new building  City also failed to show increase traffic is related to requirement of easement. They failed to show how traffic is offset by easement. . Rule: There must be a nexus b/w state interest and the need for permit. If means chosen isn’t roughly proportionate (tightly tied) to achieving the goal, then it’s unconstitutional. . Dissent (J. Stevens, J. Balckmun, J. Ginsburg): We should defer to the judgment of the city and court should not trouble with deciding the nexus. Test should be: 1. Whether required relationship is present? 2.  Phillips v. Washington Legal Foundation: (1998) 5-4 Decision – TX issued order that requires attorney who receives certain client funds to place them in separate interest bearing NOW account (IOLTA account). Interest from such accounts paid to TX Equal Access Justice Foundation. . Holding: TX requirement is unconstitutional. Interest generated by escrow funds is private property of owner of the principal.  Eastern Enterprises v. Apfel: (1998) – Court invalidated a federal multi-employer retirement plan that required co. that ceased to engage in coal mine to pay couple million dollars into pension fund.

25 . Holding: ¶ can invoke takings doctrine.  FOCUSE ON DOLAN V. CITY OF TIGARD AND NOT CASES BEFORE OR AFTER IT.

V. New, Non-Economic SDP: Focuses on personal, non-economic rights/ liberties  SOR  STRICT SCRUTINY; if a gov’t regulation impinging on fundamental rights is not found to be compelling, then it violates SDP.  Stems from footnote #4 in Carolene Prod’s.

(1) Right to Privacy: Not in Constitution, but Ct recognizes some zones of privacy protected. Found in 9th Amendment or w/in “penumbras” or “emanations” of various provisions of BOR. (Griswold). Recently, right of personal privacy is implicit in concept of “liberty” w/in protection of DDPC. a. Marriage/ Family- right to marry is basic civil right (Loving v. Virginia; Moore v. East Cleveland) Privacy of family life is fundamental right. Court has no power to interfere w/ child rearing. b. Procreation- one of basic civil rights of man. (Skinner v. Oklahoma) c. Contraception- Decision to use contraceptives was one of individual privacy, and right belonged to single people as well as married, who are 2 individuals. (Eisenstadt v. Baird). Also, state can’t bar dist’n of rubbers to adults except thru licensed pharmacists, nor bar sales to those under 16. (Carey, Brennan). d. Abortion- 2 competing interests: Not prohibited. Woman’s decision whether to terminate pregnancy is encompassed in right to privacy. Prior to viability (when there is no realistic possibility of maintaining the fetus’s life outside the womb) the state’s interests in protecting the mother’s health and the life of the fetus that may become a child are outweighed by woman’s right to have abortion w/out imposition of “undue burdens” (or “substantial obstacles”) by the state. But after viability, state interest becomes “compelling” in re: mother’s health & unborn fetus, but still can’t bar abortion. (Roe v. Wade)  Undue Burden Standard - A law that seeks a valid purpose (i.e., not a law designed to strike at the right itself) does not impose an undue burden simply b/c it has incidental effect of making it more difficult or expensive to procure an abortion. Must have effect of placing substantial obstacle in her path. Examples of undue burden: requiring woman to notify spouse about abortion  Undue Burden Test – “where regulation has the effect or purpose of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”  NO Undue Burden- Requiring doc to give woman relevant info to make informed consent; Requiring 24 hr waiting period; Requiring parental consent w/ a judicial bypass option. (Casey) e. Cases:  Moore v. East Cleveland – (1977) – J Powell - DP and EP case: Woman lived w/ 2 grandsons. City housing ordinance didn’t allow that b/c definition of family was very narrow. o Holding: Housing ordinance violates substantive DP Clause. Held- No (Powell writes the principal opinion, but it is not the opinion of the court). 1) When government intrudes on choices of family living arrangements, legitimacy of government interests and effectiveness of regulations must be carefully examined. This statute cannot withstand such scrutiny since it only marginally works to reduce overcrowding and traffic problems. Fundamental interest of privacy, family autonomy, etc., therefore, HIGHER STANDARD OF REIEW that is more skeptical and less deferential ((HS differentiates this case from Lochner) 2) Distinguishable from Belle Terre because there is a stronger liberty interest in having one’s blood related family, even if not nuclear, to form together. 3) Involves a liberty interest of a sufficiently high order (only then is judiciary justified in not adhering to deferential review), therefore with constitutional support.

26 4) Cleveland contends that a constitutional right to live together extends only to nuclear family. Such legislative classifications are appropriate limits on substantive DP only if they reflect respect for and recognition of basic values that underlie our society. Extended family has a strong tradition in our history, and US Constitution bars EC from forcing all its people to live in a certain narrowly defined family patterns. STEVENS CONCURS and joins in the Judgment (the 5th necessary vote). City failed totally to explain need for rule. No substantial relation to public health, safety, morals, or general welfare. This constitutes as a taking of property w/o DP & w/o just compensation. Stevens opinion is over-powerful, terrified of the Lochner problem. DISSENT (Stewart, Rehnquist) – Constitutionally protected freedom of association relates to promotion of speech assembly, press or religion, not to an interest in gratification, convenience and economy of sharing same residence. ’s interest in sharing dwelling cannot be equated w/ fundamental decisions to marry or bear and raise kids. EC’s line drawing is no more onerous than other lines that have been upheld in other cases. DISSENT- (White) – Court ought not expand substantive content of DP in order to strike down what it considers unfavorable legislation. Issue is whether there is actual deprivation of life, liberty or property. DP should not be used to protect any right or privilege that the court deems deeply rooted in country’s tradition from all but the most important state regulatory interests.

 Loving v. Virginia – Suspect classification o Court held not violation of  Griswold v. CT: (1965) – J Douglas – Appellants (doctors) who run Planned Parenthood League was convicted as accessories to proscribing use of contraceptives to married persons. o Holding: State statue barring use of condoms is unconstitutional b/c it impinged on protected zone of marital privacy. . Court rejected rational basis standard and used strict scrutiny or “particular careful scrutiny” b/c fundamental right at stake. . J. Douglas relied on the penumbra of 1st, 3rd (right against quartering troops), 4th (right against searches and seizures) and 5th (right to not testify against oneself) amendment to infer principles of domestic privacies. . Concurrence, Goldberg: Ninth Amendment created rights not explicitly found in the first eight amendments . Concurrence, Harlan: statute violated the Due Process Clause . Concurrence, White: statute deprived individuals of liberty without “due process of law” . Dissent, Black: right to privacy is not inherently protected by the Constitution . Dissent, Stewart: while he found the statute silly, nothing in the Constitution forbade it o Note: Could be a revival of Lochner but since good right to have, holding accepted.  Eisenstadt v. Baird: (1972) Mass statute prohibited distribution of condoms to unmarried persons. o Holding: Unconstitutional. Right of privacy recognized in Griswold could not be limited only to married couple. o Right re-focused as one of AUTONOMY (not peeking into marital bedroom) o This case changed context of Griswold. Overlap of EP and DP.

. Roe v. Wade (1973) – J. Blackmun o Facts: A Texas statute disallowed all abortions except for those necessary to save the mother’s life

27 o Holding: Abortion should be legal, but as the time of pregnancy lengthens, the state has an increasing right to regulate it. o Rationale: Although not explicitly mentioned in the Constitution, the Court has recognized that there is a right to privacy or at least zones of privacy. A state does have an interest in protecting potential life o Rule: When fundamental right is burdened, law must be necessary to a compelling state interest. Trimester test: 1. After end of 1st trimester – state’s interest is compelling  state may regulate 2. Before end of 1st trimester – woman is free to abort w/o state regulate. 3. After viability – state has compelling interest in potentiality of human life  state may regulate (exceptions exist when woman’s life is endangered). o Dissent, Rehnquist: case did not really involve the right to privacy, and that the statute did have a “rational relation to a valid state objective” . Planned Parenthood of Southeastern Pennsylvania v. Casey - (1992) – J. O’Connor, J. Kennedy, J. Souter deliver parts I, II, III, V-A, V-C & VI. J. Stevens joins part V-E but wrote separately in IV, V-B and V-D. o Facts: A Pennsylvania law required that a woman wait 24 before having an abortion and be informed by a physician about the nature and risks of the procedure. Law also required one parent notification or judicial bypass (go to court to say why no parent notification). The law also required spousal notification. o Holding: No strict scrutiny but used the “undue burdens” test. . The Court upheld the 24 hour waiting period and one-parent consent with judicial bypass was CONSTITUTIONAL. No burden b/c it allows women to reflect and have informed consent. . Spousal notification requirement was burdensome and UNCONSTITUTIONAL. May deter significant # women from abortion b/c of potential spousal abuse. . Reporting requirements of name of physician, facility, prior abortions, gestational age, etc. are CONSTITUTION. o Rule: Law is invalid if the purpose or effect is to place substantial obstacle in path of woman seeking abortion before viability. o Rationale: Roe was still valid law. . A woman has the right to choose an abortion before viability without undue interference from the state . The state may regulate abortion after viability, provided it allows abortion in cases which endanger the woman’s health . The state has a legitimate interest from the beginning of pregnancy to protect potential life . The right to abortion derives from substantive due process in the Due Process Clause of the Fourteenth Amendment . The trimester standard was not good law (cf. Webster) o Dissent, Rehnquist: Roe should not be upheld for the reason that it failed the “implicit in the concept of ordered liberty” test of Palko o Dissent, Scalia: abortion is not a protected liberty and is not for the Court to protect

(2) Right to Reject Medical Treatment:  DP guarantees a competent person right to refuse unwanted med treatment - at least w/ respect to terminally ill person directing withdrawal of life sustaining treatment. State may apply a clear

28 and convincing evidence standard to determine an individual’s actual wishes in the matter and need not accept “substituted judgment” of others (including close family). (Cruzan)  Right to Assisted Suicide - DP clause not include general right to commit suicide or to assistance in doing so. Washington v. Glucksberg. But ct left open situation of a competent person facing imminent death who voluntarily seeks to hasten it bc of great pain that cant be relieved.

(3) Homosexuality and Liberty:  There’s no Const’n interest in protecting sex’l orientation (Bowers, infra.)

Bowers v. Hardwick (1986): D challenges sodomy law after having homosexual activity in his home. State’s defense is protection of morality. H: Sodomy statutes are Const’l. This decision is a doctrinal mess!! Justices just wanted to find homosexuality wrong!

XI. EQUAL PROTECTION  14th Amend says “No state shall deny any person w/in its jurisdiction equal protection of the laws (applies to noncitizens also). Also, Stone in Carolene Prods said in footnote#4 - statutes directed at racial minorities might be subject to more exacting judicial scrutiny under the 14th amendment.  Diff b/w EP & DP - When state violates DP, state violates Constitution; EP, less absolute in outcome and more amenable to change. Violation of EP not breaking con’l law, just failure of state to apply their actions to all persons.

I. Test for Analyzing Equal Protection Cases: (1) Identify the classification. There must always be class A and class B. You must describe how this group is treated differently from that group, or you don’t have an ep case; you may have a DP case. more than one classifier can be triggered by a single statute. (2) What is the justification that the state gives for choosing the classification? Evaluate the class’n in light of explanation the state gives in classifying as it does, and look at ends/ menas. Ends is justification, means is the justification. (3) Identify the SOR that court will apply. How closely will the Court scrutinize the justification the state gives? How differential will it be to state’s justification? . If it is something important, or fundamental, if classifier touches something sensitive that Constitution is concerned about, then Court should be less differential. If statute doesn’t touch on something fundamental (Bowers), then Court may be satisfied by a fairly weak justification by state. (4) Is there a …… relationship b/w means used and ends achieved to w/stand const’l muster under the SOR? (Washington v. Davis) - (mens rea element of EP) did the state intend to create the classification, or is it some accidental consequence of neutral state activity that doesn’t rise to the level of discrimination? (5) Is there state action? – is the discm’n complained of an action of the state?

 STRUCTURE TO EP ANALYSIS: 1) What is the classification? 2) What is the Justification/State Objective the state provides for the classification? 3) What is the Standard of Review that the Court apply to the justification that makes it constitutionally valid or invalid? 4) Is there discriminatory purpose? Did the state intend to create the classification that it did or was it a consequence of a neutral state of mind?

29 5) Is there STATE ACTION? (Assuming the other 4 proven in P’s favor, Is the discrimination complained of carried out by the state?) (If carried out by private individuals, then no 14th amendment violation because “no state shall” language)

[Private individuals treated like state actors when so closely connected: Ps argued that because moose lodge held a liquor license form PA and because the license was so essential to its being, the state was actively cooperating…]

3 Standards of Review : 1. Rational Basis- Classification/discrimination valid if it is rationally related to a proper state interest. . Classification must be reasonable, not arbitrary, and . Must rest upon some ground of difference having a rational relation to object. . Extreme deference to legislation. . Applies to economic and social regulations. 2. Strict Scrutiny- Suspect Classifications & Fundamental Rights.  A regulation that discriminates against a suspect class violates EP, unless found to be necessary to promote a compelling state interest.  Suspect class- Classifications based on race, ethnicity, or national origin.  “Necessary to promote compelling state interest”- classification is necessary when it is narrowly drawn so that no alternative, less burdensome means is available to accomplish state interest. (ie affirm. action)  SS test requires DISCRIMINATORY PURPOSE- strict scrutiny test requires government action have discriminatory purpose- either DIRECT discrimination (on face of statute) or INDIRECT- Prima facie case of discrimination (facts that reveal a “disparate impact” along racial lines. . Burden shifts to D to show a sufficiently persuasive reason for classification. [Greater burden of proof for D in statutory discrimination litigation- ie Title VII.] Usually RATIONAL BASIS. . Burden on P to show decision-maker made law “because of”, not just “in spite of” its adverse effects on class. DISCRIMINATORY PURPOSE. 3. Intermediate Scrutiny- . Quasi-suspect classifications – based on gender or legitimacy are quasi-suspect and violate EP unless they are substantially related to the achievement of important government objectives. Important government objective must be genuine, not hypothesized for litigation, and government may not rely on overbroad generalizations about males & females. . Sex classifications impermissible per se EXCEPT personal privacy & physical characteristics unique to one sex. O’Connor moves towards “exceedingly persuasive” justification in re: women!!! 4. Heightened Scrutiny (“Rational Basis w/ Teeth” – gays, mentally retarded (Cleburne). Slippery-slope in expanding intermediate scrutiny to other groups of people! 5. Not Suspect or Quasi-suspect if poor, elderly, nonresidents, mentally retarded.

Highly Deferential - Rational Basis Test- Economic/ Safety Regulation – State almost always wins Railway Express v. NY – (1949) J. Douglas - NYC passed law barring advertising on vehicles except for advertisement on owners’ trucks. Railway who advertised, sued. Held - CONSTITUTIONAL even though the city’s rationale is hard to seriously accept 1) D’s EP argument: irrational distinction between allowing owner-advertising but banning advertising-for-hire. 2) ¶’s rationale - former type of advertising is less distracting and possibly necessary for business. Safety regulation. 3) EP questions answered by such practical considerations based on experience rather than by purely theoretical inconsistencies. Rational basis used and defer to legislature.

30 JACKSON’S CONCURRENCE –it is better to use EP than DP because EP is less intrusive of the political process than DP; EP is less stringent b/c it says nothing about underlying substantive rights. No protected liberty interest. Just relative right. DP is a necessity. Lochner is bad history; and we should be careful about using DP analysis.

Often, true that a case can go either way, DP or EP. - 14th amend, sec 1 applicable to state government. - No EP clause applicable to the federal government. (except section 5 of 14th, nothing applicable to fed) - Court solved that problem by relying on DP clause of 5th which is binding only on the federal government, concluding that DP of law incorporates within it the principle of EP. That a statute that doesn’t treat similarly situated people similarly with no rational basis, is ARBITRARY in DP terms. - Any EP case can be stated in DP language, and probably reach the same result. - Today, the concept of EP is applied evenly across federal and state activities.

Why would one choose DP or EP or vice versa? - Consequences of holding a statute unconstitutional on basis of EP is different from holding a statute unconstitutional on basis of DP - Where EP is violated, there is no significant rational basis for the classifications that A and B are put. In turn, the state can respond to the court’s holding and cure the constitutional defect by modifying the law.

Morey v. Doud (1957) – Illinois currency exchange Act regulates money orders but exempted American Express company – Holding: Act violates even minimum scrutiny analysis. UNCONSTITUTIONAL – By creating a closed class, no other business identically situated could ever have benefit of AmEx.

New Orleans v. Dukes – 1976 - overrules Morey v. Doud - Prohibited pushcart vendor except for those who have been there for more than 8 yrs by the “grandfather provision” - SC upheld statute and overruled Morey. Said there could be some justification.

Brennan embarked on an extended, ultimately futile, campaign to try to bring substance to rational basis EP analysis without taking court back in to Lochner type era.  United Sates RR Retirement Bd. V. Fritz 1980 – J. Rehnquist - Effort by congress to sort out a looming insolvency in a retirement program; net affect was to treat different class of retirees differently depending on numerous factors. - de facto categories  possible to challenge the retirement reform statute as EP violation - Why deferential treatment? Congress has done their job; constitutionally sufficient if there are plausible reasons. If it were the reasons that congress used, it would meet the minimum scrutiny test. - Brennan (Dissent): Examine legislative intent; asks for the ACTUAL PURPOSE OF THE STATUTE, not a post hoc justification. What did congress actually have in mind? - Accepting the post-Lochner wisdom by saying with a straight face that he wants to know what the legislative intent is – setting stage for more rigorous review. (Lochnerize – Court is meddling/legislating)

Suspect Classification- Race Loving v. Virginia- Loving, white man, married black woman in violation of anti-miscegenation statute. Issue- May a state prevent marriages between persons solely because they are of different races? Held- Statute is UNCONSTITUTIONAL. (Warren)

31 1) State claims that EP violation avoided when law applied equally to members of both races. However, EP means more than mere “equal application”. Using race alone to determine is enough. 2) Courts must consider whether statutory classifications constitute arbitrary and invidious discrimination. (1) Race classifications MUST subject to most rigid scrutiny and (2) must be essential to the accomplishment of some permissible state objective to be permitted. 3) State has failed to show any legitimate overriding purpose for distinction between one race and interracial marriages other than invidious racial discrimination. 4) CONCURRENCE- (Stewart) - State law that makes the criminality of an act depend on the race of the actor cannot be constitutional. Rule: Where classification exists and it uses RACE as the classifier, justification the state offers will NOT be examined by the permissive/deferential view of Railway Express, rather, the state bears a very heavy burden and the rationale will be subjected to the “MOST RIGID SCRUTINY” (language comes form Korematsu)

National origin ethnicity – 1 st case in which court clearly articulated the SS in Racial Classification Cases. Korematsu v. US – (1944) J. Black – Court upheld wartime conviction of a military order excluding Japanese- Americans from military areas on west coast. All legal restrictions with respect to race are immediately suspect, but not necessarily unconstitutional. Courts must subject such classifications to strict scrutiny. - Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. - Wartime necessity & inability to separate loyal from disloyal justified exclusion of whole group.

Palmore v. Sidoti 1984 – C. J. Burger FL – custodial parent/mother entered into interracial marriage. - Father objects and persuades FL court to order transfer of custody based on the best interest of child. - Father carefully argues/shifts the blame of racism, that he himself was not exerting any racial bias, but society will scorn this relationship and my child will be subject to various kind of disapproval, therefore best interest of child require moving child out of mother’s home. - Holding: Court’s consideration of private racial biases & potential injury to child as basis for removing custody is a violation of EP. - Taking private prejudice like this to force mother to give up custody would convert the private action to a government action (court = government). This is beyond the scope of the constitution unless enforcement by court (identified as state action).

Yick Wo v. Hopkins: (1886) Chinese laundry business owners were denied permit b/c of safety concern when they carried out business in wooden building, but does not deny other laundry business owners who did the same. - Classification that is not justified.

Nguyen v. INS: (2001) – J. Kennedy - Facts: If father is US citizen and mother is not  statute requires that father takes some step to establish that child is his before child turns 21. If mother citizen child is automatically citizen of US w/o further steps. Rule classified his entitlement in citizenship based on gender of parent who is a citizen. - Holding: Gov has satisfied exceedingly persuasive test. -

Loving and Palmore are usually paired as examples of SS.

32 Strong proposition that race cannot be a consideration. Prof. Gunther’s point, “strict in theory, fatal in fact” (important theory)

Carolene Products Co. 1938 (Note 8) Utterly unimportant case about US regulation of milk products. Court’s concluded that it would try not to second guess whether treatment of one milk product, whether sufficient categorization, was warranted - Justices concerned about what they are giving up by abandoning Lochner, giving up any potential to step in on any case where there is a significant problem (giving up stepping in cases like Loving, etc.) - Justice Stone - Footnote 4 is very important: - Not committing self to apply deferential review in all cases. - Rational Basis: legislation presumed to be constitutional unless can show – 1. When legislation appears on its face, that explicitly controls speech or religion. IT IS IMPORTANT TO APPLY STRICT SCRUTINY when there is a textual mandate in the constitution. 2. SS of legislation that restricts the Political Process (See Nixon below for discussion). Political process is suspect once certain individuals are denied right to vote because then cannot have confidence in this system. 3. Anything prejudiced against insular and discrete minorities (religion…), suggesting that the court will create as a conclusive finding of its own that where minorities are involved, there is sufficient skewing of process. 2nd category – restriction on voting rights, etc. – no one would argue that SS justified - Court has now unclogged the political process (people of color are eligible to vote, and minority interests are represented, etc), yet legislation nonetheless conducts system of segregated education - 3rd factor is that even in a fairly composed legislature, there may be drags on that that come from societal norms (tendency to stereotype on basis of race, ethnicity, religion, etc) – therefore, MUST SS even in a fairly composed legislature. FUNDAMENTAL INTERESTS – Marriage and Voting Nixon v. Herndon - Fundamental Interests subject to strict scrutiny - Voting TX White Primary Cases – States could blatantly exclude blacks from voting. Former political system purged explicit racism. Political parties formed private associations (protected by the 1st amendment) and built racism into the by-laws of these political parties (like the Democratic party) - (State action cases)– SC says that while Democratic party is private, it is so interwoven with state machinery for the election process, that while nominally private, it would be denying reality to deny that participation if such a party is not participating in the public process of elections. - TX said it would be okay if conducted a pre-primary (become sufficiently private, make selective without using the primary voting system so that it would be seen as purely private ) the part was called Jay-birds. - Court said that if goal is to put a candidate on a ballot, must initiate process in non-discriminatory way. - Court started arduous task of routing out racism in voting. Justice Stone is talking about this here.

Salyer Land Co. v. Tulare Lake Basin 1973 – SC upholds voting scheme Water important in the west – important political entities that control the collection and distribution and mechanics of paying for all this. - The District in question is governed by a board of some sort that is elected rather than appointed. - Participation of election of water board was limited to land owners in the district, moreover, landowners who were permitted to vote are apportioned votes on basis of value of land holding in district - Holding: SC upholds that scheme – it is where sharply different results in seemingly similar situations that can best see what the rule really is. How does court distinguish water board from school board election? - Court sees water district as serving a single (narrow) purpose; the distinction is that a school board election, even though single purpose election is an election for a decision making body of broader scope than water

33 board. Much more narrower in scope, so court seizes opportunity to draw the line (compared to school board)

Harper – Fundamental Interests (+ wealth) subject to SS - Voting Poll tax case; VA require paying voting tax – argument is that the poll tax is discriminatory (in fact, racially discriminatory; common across country) - Indirect but effective means of discriminating people from voting. - Decided on basis of SS – what justifies making it a strict scrutiny case? - discriminating on basis of economic status/wealth - Putting aside voting as fundamental interest – this case can be analyzed on basis of WEALTH as a suspect classification. - You can argue that in a middle class society, people who are very poor, suffer the same stigma that people of color do, therefore, can treat poverty as the same kind of identifiable and insular minority as one based on race or religion – logically, could work… - Problem - property-based-capitalist-based structure of social order, to draw distinctions on basis of wealth is virtually a foregone conclusion. - doctrine may get out of control if rely on wealth as a suspect justification - Attractive feature in Harper is that wealth aspect is joined to the fundamental interest – so the court can achieve something beneficial for poor people without going there.

VOTING CASES (particularly Harper) can be interpreted for standing for the proposition that can accumulate to point where SS is appropriate, while wealth itself is not an actionable EP case. When wealth cumulates with some other fundamental interest of concern, the combination of factors may push us towards SS.

Fundamental Interests subject to SS - Marriage Zablocki v. Redhail- Redhail (P) denied a marriage license for failure to comply w/ Wisconsin statute requiring that an applicant who has child not in his custody comply w/ support obligations or else prohibited from getting married. Statue creates a perverse result by preventing a family unit for the child on the way. Held- Statue violates EP (Marshall – very careful to leave open the legitimacy of reasonable state legislation.) 1) Marriage is a fundamental right,and significant interference w/ its exercise cannot be upheld unless closely tailored to effectuate sufficiently important state interests. Assuming state’s interests of protecting out-of- custody kids and motivating applicants to fulfill prior support obligations are valid, the means used by state unnecessarily impinge on right to marry. 2) State’s procedure relies on collection device rationale that is inappropriate. State has numerous other effective means for exacting compliance w/ support obligations that do not restrict right to marry. Also, statute tends to impair applicant’s ability to improve his financial situation and thus improve his ability to meet prior support payments (ie marry rich). STEVENS – Statute works as an absolute ban on marriage for Redhail (wealth discrimination) CONCURRENCE (Stewart) Problem is not discriminatory classifications but unwanted encroachment on liberty protected by DP Clause. EP doctrine as applied here is no more than substantive DP by another name. Not an EP case. Emphasizes that the statue actually is wealth discrimination – however, court had abandoned interest in evolving wealth into a suspect classification by this time. CONCURRENCE (Powell) – Courts rationale intrudes too broadly into state’s traditional power to regulate marriage relation. This statute is improper only because it fails to provide for those w/out means to comply w/ child support payments.

- Justices agree with outcome, but disagree about how to approach the case (DP or EP?)

34 - Marriage is very sensitive issue; matter of considerable concern to federal law but typically the subject of state regulation. 10th amendment lurking. >>>>>SS Suspect (Loving) RB (RR Express) >>>>>>>>>>>>>>>>>>>>>>>>>>>>>> (continuum divides) >>>>>SS Fundamental (Voting)

INTERMEDIATE SCRUTINY – Gender Discrimination 1st significant IS case Reed v. Reed- 1971 (Burger) Court struck down law as unconstitutional giving males a preference over females as administrators of estates. Court used traditional analysis but found state interest in reducing workload of probate courts was slightly legit, but the state’s manner of advancing that interest did not satisfy EP standards. Used traditional RB, but leaning towards IS.

Military Benefits- SS or IS  SS Frontiero v. Richardson- 1973 - Woman officer in Air Force claimed husband as dependent to receive additional benefits. Male members can claim wives as dependents w/out any proof required, but women had to show their spouses actually depended on them for ½ support. ¶ claimed violated DP Clause. - Court having hard time deciding whether it is a Loving SS (gender triggers the problem) or whether her identity as a woman triggers heightened review. Held- (Brennan – plurality opinion). Statute is arbitrary & denies DP. WANTS SS BECAUSSE GENDER IMMUNTABLE!!! 1) Classifications based on sex are included among those that are inherently suspect and therefore subject to close judicial scrutiny. 2) Since sex, like race, is an immutable characteristic determined solely by accident of birth, imposition of special disabilities on them as a group violates the basic concept of our system that legal burdens should bear some relationship to individual responsibility. 3) Statute cannot withstand scrutiny. Its sole justification lies in administrative convenience (easier to assume wives dependent on hubby), which though imt in some situations, is hardly a significant governmental interest closely and reasonably related to the classification. CONCURRENCE (Powell, Burger, Blackmun) – Statutes are unconstitutional under Reed. There is no need to go further and characterize sex as a suspect class. To do so unnecessarily preempts prescribed constitutional processes of amending the Constitution, which at this time are being utilized on this very issue in the guise of Equal Rights Amendment. - 4 agree that the dependency statute is unconstitutional. Brennan says adopt SS (thought only of 2 tiered, RB or SS). - Brennan says really not a RB case that the court is looking at gender classifications more skeptically and the court should. Brennan cannot get a majority here (with SS) because ERA being decided upon. Concurring justices want to wait and see.

Court concerned here that SS is a muscle bound test – SO STRONG (strict in theory, fatal in fact) – that if commit to using SS, then court giving up flexibility to preserve legitimate gender-based differentiation, so reluctant to get into that box – need maneuvering room. - Reed was fiction in applying RB as well. - So after Brennan makes run on SS, gets 4 votes. - In later case, Brennan falls back to INTERMEDIATE SCRUTINY

35 Sex classifications favoring women - IS Craig v. Boren- 1976 - Craig, male, challenged law that denied beer sales to males under 21 and females under 18. Does not argue age classification because it is not an immutable characteristic. (Standing problem – young men under age 21 are concerned, will grow out of standing > prudential 3rd person standing like Griswold of bartenders…) Held- State may not properly impose gender-based differentials in regulating sales of alcohol. (Brennan – despite arguing for SS 3 years ago, he says it has always been IS – cheats and cites Reed for this). 1) To withstand constitutional challenge, classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives. - State objective here is enhancement of traffic safety, which is clearly important. - However, the relation between this objective and the statute is based on statistical evidence fraught w/ shortcomings and inadequate to show that sex represents a legitimate, accurate proxy for regulation of drinking and driving. 2) Rule: Failure to show a substantial relation between gender-based class and achievement of state’s objectives requires statute to be invalidated as unconstitutional. 3) Operation of the 21st Amendment, limited as it is when applied outside of Commerce Clause, does not alter the EP standards that govern here. CONCURRENCE (Powell) – Court has added confusion to appropriate standard for EP analysis. Statistics do tend to support state’s view but are inadequate to support classification. CONCURRENCE- (Stevens) - Classification here is not totally irrational, but it is unacceptable because it has little relation to traffic safety. It bars only sales of beer, not consumption, which is the real threat to traffic. Law punishes all males for the abuses done by only 2% of their class. DISSENT (Rehnquist) 1) Men challenging a gender-based law unfavorable to them should NOT be allowed to invoke a more stringent standard of review b/c men, as a group, have not suffered the type of prior discrimination that has always supported a standard of special scrutiny. 2) Nor is the interest involved here- beer purchasing- “fundamental” in the constitutional sense of invoking strict scrutiny. 3) Court has added a new standard to the norm of “rational basis” and “compelling state interest” required where a “suspect classification” is involved- that of the “important governmental interests” and “substantial relation to achievement of those objectives.” This new standard is unnecessary and invites judicial confusion and interference into the proper roles of the legislature. 4) Correct standard here is the RB test, under which a classification is invalid only if it rests on grounds wholly irrelevant to the achievement of the state’s objective. State has provided sufficient evidence to show a rational basis and the statute should be upheld. Court ends up with IS. Now a 3 tiered system of scrutiny. This completes a rapid transformation of law within 5 years in which court moves from ostensible RB test, pushes to outskirts of SS and then falls back into a newly implemented test of IS. Craig establishes as the test for I 1. must serve important governmental objectives, and 2. must be substantially related to achievement of those objectives

RB – any objective IS - important objective, end must be important AND the means chosen must substantially achieve that end. SS – compelling objective; end must be crucial AND the means must be tightly linked to that end or there must be no other way of achieving it.

36 IS becomes a big box – much less precise than RB or SS strictly construed. With RB and SS know the answer – government either always wins or loses. But with IS, more of a BALANCING TEST – because of this, basically break down tier to tier to tier hopping analysis and makes it more of a SLIDING SCALE analysis. (fuzzy edges – less certainty about where outcome will be positioned along the continuum)

O’Connor’s “exceedingly persuasive justification” moves intermediate scrutiny close to strict! Mississippi U. for Women v. Hogan- 1982 - Nursing school only for chicks, not men. State claims trying to keep a safe haven for women. Holding: O’Connor – Violation of DP. Women have not been discriminated in field of nursing, and male attendance would help breakdown stereotypes. - IS standard of review established in Craig v. Boren required the state to show an “exceedingly persuasive justification” for sex-based classifications. - School’s justification for maintaining single-sex admissions - redresses for discrimination against women (Aff Action). Heightened Scrutiny – used to be a synonym for SS, but as framework evolved, more common to think of HS as involving anything that is more intrusive than deferential RB.

Exceedingly persuasive test and remedial measures for gender! US v. Virginia- chick wanted to go to VMI, but women excluded because of adversative method of training. Set up sister school for women but resources inadequate. Issue- Whether VA state institution can justify limiting military education to men only, (1) Does VA’s exclusion of women from educational opportunities provided by VMI (opportunity for leadership and military training) deny to women capable of doing individual activities required of VMI cadets, the EP of laws? (2) If VMI’S single-sex public institution offends Constitution’s EP principle, what is remedial requirement? Held- Yes violative of EP. (Ginsburg) 1) Court must decide whether VA’s proffered justification is “exceedingly persuasive”. 2) Burden on State to show classification serves important government objectives and that discriminatory means employed are substantially related to achievement of those objectives. 3) Justification must be genuine, not hypothesized or invented for litigation. Must not rely on overbroad generalizations about the diff talents, capacities or preferences of males & females. 4) VA showed no exceedingly persuasive justification for excluding all women. VA’s justification is that - it provides educational benefits and single-sex education contributes to diversity in educational approaches. - VA did not show VMI was established or maintained w/ a purpose of diversifying education by excluding women. - Benign justifications proffered in defense of categorical exclusions will not be accepted; - a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded. Also, some women can hack it at VMI w/ reasonable accommodations for privacy. 5) A remedial decree must closely fit constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity in the position they would have occupied in the absence of discrimination. Milliken v. Bradley. 6) Sister school is inadequate in terms of resources, reputation, and type of educational experience. 7) Also, generalizations women can’t do. It is untenable as some women can meet standards at VMI. DISSENT (Scalia)- exceedingly persuasive test is wrong because it strays from the established tests.

37 End rather than the means is the focus here. Focus on the justification itself (importance of having same sex education and testing the justification by placing the burden on the state to provide exceedingly…) Exceedingly Persuasive Justification as the Standard of Review seems to point at SS (further than IS, problem of indeterminacy of IS) Without saying so, Court has tightened the screws. Higher order of skepticism than the blander terms of Craig

RB – Ecomonic IS - Gender SS - Race

“Rational Basis w/ Teeth”- mentally retarded Most dramatic example of HS RB! City of Cleburne v. Cleburne Living Ctr- under zoning ordinance, group homes for mentally retarded may operate only w/ special permit requiring signatures of property owners w/in 200 ft. Argue that mentally ill should be recognized as suspect clas or quasi-suspect class. Argue that since likely to be ignored and disadvantaged by society, HS necessary. Issue- Is mental retardation a suspect class for EP analysis? No. Held- J. White - Mentally retardation is not a suspect class for EP– traditional EP model opinion: starts with quasi-suspect consideration; analyzes and knocks all down; afraid of slippery slope if recognize this class; concludes IS/HS not appropriate, and falls back on RB). Court is UNANIMOUS, just different roadmaps. 1) Mental retardation is NOT a quasi-suspect class b/c legislature has legitimate state interest in providing for various problems of mentally retarded. Courts are ill-equipped to make substantive judgment about legislative decisions in this area. 2) As class, they are NOT OVERLOOKED because system looks out for them. Legislatures have addressed problems of mentally retarded and need the flexibility of the rational basis test to be effective. 3) IS does not apply, however, under RB test, ordinance is defective. It does not apply to nursing homes for the aged or convalescents, apartment houses, sanitariums or boarding houses. Nothing in record explains how permit requirement for only facilities for the mentally retarded is rationally related to any governmental purpose. CONCURRENCE (Stevens, Burger) Mentally retarded have historically been subject to unfair mistreatment. This ordinance reflects the irrational fears of neighboring property owners, not a concern for the welfare of the mentally retarded. CONCURRENCE & DISSENT (Marshall, Brennan, Blackmun) – Court has created a “2nd order “RB review. Normally under the RB test, the legislature does not have to address all ills at once. Thus, zoning plans based on fears of proximity to a high school, location in a flood plain, and crowding living conditions or increased congestion are perfectly valid, even if applied one step at a time. However, class of mentally retarded persons deserve heightened scrutiny and court reaches correct result. STEVENS and MARSHALL both question whether the structure of analysis is the appropriate/workable one. Both say that you must look at what the classification is, look at the traditional position of that class, look at the public purpose/justification; and then ask whether there is a characteristic of the class that justifies the treatment (fancy way to say ends-means) - Marshall fond of saying that EP should be analyzed by a sliding scale (balancing test); there should be categories for scrutiny, but analysis should slide up and down on the basis of importance of concern and degree of invidiousness. Model for Romer v. Evans, (ticked through all of the possibilities state provides and having eliminated all of them, says it is a naked animus to treat the class differently). Methodology does not follow the purely deferential RB analysis. Not traditional RB. Court does not want to commit itself to IS, but it is in fact applying a form of IS review.

38 “Rational basis w/ teeth”- homosexuals! (decided after Bowers) Romer v Evans- Several municipalities in CO passed ordinances banning discrimination in housing & employment on gays. CO amendment removes any possibility of there being any kind of protective legislation either at the state or local level in which discrimination based on sexual orientation is prohibited. Electorate thru initiative amended constitution barring “special protection” for status of homosexuals. Existing laws are inoperative and impossible for state legislature or local governments to adopt new sweeping provision. - Litigants adopt model of voting rights cases – lawyers positioned case as FUNDAMENTAL INTEREST case rather than suspect class case (since court hostile to idea of gender identification as basis for HS) – downplay the real policy issue of sexual orientation and used an alternate route. - Court brushed aside other, an instead tackled problem on sexual orientation, while side-stepping Bowers. - Court says nothing about HS at all; as in Cleburne, amendment is very narrowly focused on a specific class of interests, but the prohibition is so broad on that class of interests  court can see no RB for that restriction order other than animus on basis of sexual orientation. Held- (Kennedy)- state constitutional provision that identifies persons by a single trait and then denies them right to seek any specific protections form law is unprecedented as to imply animosity toward such persons and thus are NOT RELATED TO ANY LEGITIMATE STATE INTEREST. Over-broad. Impedes access to homos based on class.

Decided under RB but more towards HS. (contrast to RR Express where both trait and burden was narrow)

DISSENT- (Scalia)- Justification of people of Colorado is uphold morals. This is a recognized state interest and under rational basis, should be upheld. Court here engages into culture war instead of applying laws of constitution. Majority used almost no law in opinion. - This is enormous embarrassment for the court with respect to the outcome of the case. Scalia is outraged because the court is cheating by not mentioning Bowers – reconcile the two outcomes? - One way to reconcile is on the point that analyze as EP case rather than DP case and look at the class, not in terms of triggering either suspectness of fundamentally – even though a good case could be made discussing Cleburne - difficult to treat as SS case, or even an IS case, given Bowers, and so the court ends up doing the same thing it did in Cleburne (they did it much more cleanly there – answered specifically that HS should not be applied) but falls back on heightened RB. - BUT, here, before court even asks whether to apply HS (first question), we already know the answer (we think) because of Bowers – as a matter of applying precedent – answer must be NO.

Lawrence v. TX: 2003 – J. Kennedy (5-3 split decision; 6-2 if include O’Connor) o Facts: Texas statute provides “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” Police officer went to Lawrence’s home for a reported weapons disturbance. Roommate allowed police officer to enter into Lawrence’s bedroom and found him engaging in sexual conduct with another man. Lawrence and his partner were arrested. o Court overruled Bower v. Hardwick. Most substantial criticism for Bower is that court started at wrong point. . Constitution doesn’t protect homosexual sodomy. . Right asserted is the right recognized in and derived from the penumbra of bill of rights. o Justice Kennedy thinks that Court is wrong in focusing on homosexual sodomy as the fundamental right. Right that is claimed here is not the narrow right to engage in homosexual practice, but the basic right to privacy that is of concern here. o EP & DP – right to be left alone. o TX has no legitimate interest.

39  Justice O’Connor – separate concurring opinion used Equal Protection but still consistent w/ Justice Kennedy’s opinion. o Decision is narrower than Kennedy’s opinion, but her concurring opinion is not precedent. o Opts for EP.  Justice Scalia – dissent o Court is untrue to its own principle. o Romer should have been held otherwise.

Cleburne and Romer represent evolving basis for this HEIGHTENED RB analysis – moves off the path of completely passive deference, or “arbitrary prejudice” where finding of prejudice does not need to be found in a traditional way like Carolene Products, rather, that court prepared to look into possibility that justifications can be thought to be so thin, and to look closely enough to see if there is a justification to rebut the finding or arbitrariness. - Precedent needs to be clarified in order for there to be a clear RB category.

DISCRIMINATORY PURPOSE and IMPACT (Still under SS) Rule- laws that are racially neutral on their face and that rationally serve a permissible government end do not violate EP simply because they have a racially discriminatory impact (i.e. affect minorities more adversely than white). A violation requires that the government action have a discriminatory purpose (intentional or deliberate). In school desegregation cases, termed de facto & de jure.  If BLATANT (on its face) INVALID!  If NEUTRAL- Laws that may or may not appear neutral on their face violate EP if challenger proves legislative motive was to discriminate against racial or ethnic minorities. Prove prima facie case of discrimination and burden shifts to opposing party to show constitutionally permissible.  Judged by RB and upheld if rationally related to constitutionally permissible state interest. Sufficient to show discrimination was “motivating factor”; Don’t need a “smoking gun”, just a pattern of discrimination. (Washington v. Davis; Arlington Heights).

Griggs v. Duke Power - DISPARATE IMPACT TEST established - EFFECT of test was discriminatory! - Duke Powers claimed the test was neutral on its face. Held- It was sufficient for P to show the disparate impact of the device being complained about to make a prima facie case - Court declared that Duke Powers had to change the test – screening mechanisms must be more tightly aligned - Permissive approach in interpreting the statutory language - TITLE VII meant to route out direct and INDIRECT discrimination - DISPARATE IMPACT TEST established - Foundation stone of modern Civil Rights law – it is a statutory case – this was made possible by Hearts of Atlanta.

Discriminatory Impact from Qualifications Test Washington v. Davis (1976) - Black applicants for positions on Police Force challenged recruiting practices of police dept. Challenged qualification test that allegedly discriminated against blacks in violation of 5th Amendment DP. Issue- Does a qualification test that has not been established as a reliable measure of job performance and that fails a higher percentage of blacks than whites violate the 5th Amendment DP clause? Held- No (White).

40 1) A disproportionate impact on different races resulting from a general qualification test does not, by itself and independent of any discriminatory purpose, establish a constitutional violation. Government action is not unconstitutional solely because it has a racially disproportionate impact; there must be a racially discriminatory purpose to justify invalidation. The purpose need not be express but it must exist whether on the face of the statute or in its application. 2) When a disproportionate racial impact is proven, the government must show that the law is neutral on its face and serves proper government ends, the burden is not high. Test here has a reasonable relation to the need for competent police officers. 3) Additionally, D has made affirmative efforts to recruit black officers, indicating a lack of intent to discriminate. Look to totality of relevant facts. 4) Even though test not shown to relate directly to eventual job performance, it is closely related to requirements of training program for new recruits. CONCURRENCE (Stevens)- Line between discriminatory purpose and impact is not bright and not determinative, since dramatic discriminatory impact is unacceptable. - Case was brought under the Constitution, not a statutory case. Title VII not relied on, unlike Griggs. - Not a 14th amendment case because talking about DC (EP clause does not run to DC since it is not a state). IMPORTANT CASE because it brought a halt to the constitutionality of discrimination. Surprise that it came out differently from Griggs, and established that an actual intent to discriminate (rather than just a discriminatory consequence) must be shown whenever a constitutional violation is claimed, as opposed to a statutory violation - societal discrimination lurks behind this case. The reason for the tests had disparate impact was because of pre-existing societal discrimination. - For the court to embed a rule of Disparate Impact is to giver EP and DP clauses a really wide reach.

By 1976, facial discrimination has begun to disappear and gone underground into covert-race-based thinking. Consequence of Washington becomes more intense.

Disparate Impact is not enough without proof of improper intent for a constitutional question! Village of Arlington Heights v. Metropolitan Housing Development (1977)- Housing development applied to Village for re-zoning in order to build units for low-income tenants, many of whom would be racial minorities. Village denied application and MHD sued for racial discrimination. Easy to show discriminatory effect even though citizens’ protest is based on land use considerations because dealing with poor people who are disproportionably minority. Brought to court as a constitutional (14th) and statutory (housing) case. Brought to court before the Washington decision. Issue- Whether MA, in granting preference to vets, has discriminated against women in violation of EP? Issue- Does the Constitution bar a denial of zoning change request when the denial impacts disproportionately on certain racial groups but was made pursuant to standard procedures? Held- No (Powell – intends to show that the court is not rigid here; that it is possible to bring a constitutional case, but, in truth, it has not worked out that way. ). 1) Washington v. Davis reaffirmed requirement that government action having a racially disproportionate impact also have a discriminatory purpose in order to justify judicial invalidation. 2) The challenged action need not rest solely on such a racially discriminatory purpose. It is enough to show that such a purpose was a motivating factor in the decision. Don’t need a smoking gun, but can look for a pattern of discriminatory acts and sequence of decision-making. 3) Sensitive inquiry into relevant evidence concerning intent is necessary. Court ticks off the things that might be indicia of discriminatory offense. Such inquiry here fails to reveal any such intent on D’s part. D’s zoning plan & policies existed long before P’s application and other proposals, not involving racial minorities, have

41 been rejected in the same manner as P’s. W/out proof of improper intent, mere showing of disproportionate impact on a racial minority is inadequate to constitutional question.

Veterans Preference Personnel Administrator v. Feeney- MA as part of civil service laws, gives an absolute preference to veterans for civil service jobs, as opposed to non-veterans. Feeney challenges the statutory preference for veterans on the grounds that as a woman, her opportunity to become a veteran was so diminished that the statute gives an unfair advantage (discriminatory effect). Must also show purposeful discrimination. Veteran’s preference law upheld even though it severely restricted public employment positions for women. Issue- Whether MA, in granting preference to veterans, has discriminated against women in violation of EP? Held- No. (Stewart). 1) When a statute is gender-neutral on its face and is challenged on ground that its effects on women are disproportionately adverse, 2 fold inquiry: (1) whether statutory classification is indeed neutral in the sense that it is not gender-based; (2) if the classification itself, covert or overt, is not based on gender, then whether the adverse effect reflects invidious gender based discrimination. 2) Veteran status not uniquely male. Non-veteran class is not uniquely female and significant number of men who are non-vets placed in same disadvantage as women. 3) Dispositive question is then whether there is a showing that a gender-based discriminatory purpose has shaped veterans preference. But intent here nothing more than to give veterans preference. Discriminatory purpose implies the decision-maker selected or reaffirmed a particular course of action at least in part “because of”, not merely in “spite of”, its adverse effects upon an unidentifiable group. WHITE and STEVENS CONCURRENCE – not so sure that the 2-part analysis is right – concentrate on “because of” not “in spite of” MARSHALL’S DISSENT – the job classifications calling for women were menial.

Court will pretty much accept without much analysis that justified in rewarding military service. Court’s lack of aggressive inquiry reflects difference between IS gender and SS race based discrimination. These cases have stifled the pursuit of EP claims where the legislature has not made a conscious choice to discriminate between classes.

DE FACTO- DE JURE DISCRIMINATION - SCHOOL DESEGREGATION Even after 13th & 14th amendments ratified, the South adopted Black Codes to keep blacks in inferior position. Civil Rights Act & 14th Amend intended to counter this. 100 years of separate but equal doctrine whereby state facilities could be racially segregated as long as they provided equal services. Separate but equal successfully challenged in re: education. After Brown, school districts in violation have to desegregate first. Rest of districts had to be sued before courts can act because of “case or controversy” requirement”- “All deliberate speed” was quite slow!

Plessy v. Ferguson- 1896 - “separate but equal” meets the EP clause! Low point in American Con Law History So long as separate facilities are provided equally, there is no violation of the EP clause. Eloquent Dissent of Harlan: Perceived need by the state to draw line of separation of necessity implies lesser status to those being excluded and separated out. Seals the deal on Jim Crowe South, continues until 60’s

Missouri ex rel Gaines v. Canada 1938

42 Facts: Missouri doesn’t want to admit blacks to law school and does not want to build new school for blacks; so willing to pay the guy’s tuition to go anywhere else. Holding: SC rules that it is the state itself that must provide the equivalent education. Of course, law school is a good way to challenge (geography matters) – now awkward choice of Missouri: concede the issue or build a new school for blacks?

McLaurin v. OK Regents 1950 Adopts integration but assigns seats all over the school. Holding: SC says can’t do that because education is interactive and must be able to engage fluidly with peers. Court is laying down the foundation of the idea that the very crude treatment of colored people sends the message of stigmatization

Sweatt v. Painter 1950 TX is bigger and richer state has plenty of money to create a separate school for blacks. Holding: SC says NO, not enough to have a separate institution because everyone knows that UT Austin is one of the great law schools, etc. In addition, the people that go there are the next generation of movers and shakers; to deny people of color to form those relationships in the quality institution is to deny them EP.

These cases didn’t attract the same kind of attraction as elementary school students. They wanted to start with the easier cases and lay down some doctrinal foundation for the bigger battle and to educate the justices themselves before the more difficult issues are presented.

Brown v. Board of Ed (Brown I) 1954 - Children may not be segregated in essentially “equal” public schools solely on the basis of race. Granted that black & white schools are substantially equal in tangible factors, yet there exists an invidious effect when black and white kids are segregated. Namely, segregation creates a feeling of inferiority which may significantly affect a child’s motivation to learn. Separate educational facilities are therefore inherently unequal and their maintenance by government authority denies EP of the law. - Warren is a master politician, assesses and knows that court cannot be so divided; so the court is put over for re- argument, trying to get an opinion that all justices agree to so that there can be a unanimous decision. Simplicity of opinion was touchstone to getting unanimous decision (more common law than technical and legal). Court does not address question of remedy; does not give meaningful relief to anyone yet.

IMPLEMENTATION OF DESEGRATION Brown v. Board of Ed (Brown II) 1955 - Court initially permitted gradual integration of public schools realizing difficulties in desegregation. Opinion addressed solely the manner in which relief granted in Brown I was to be accorded. 1) Full implementation of constitutional principles required solution of various local school problems, to be solved by school authorities and reviewed by courts to assure good faith compliance. 2) Justices understood how deeply entrenched de jure segregation was and that as a practical matter, it would be more difficult and take longer to fix. Keenly aware of the Marbury problem – limited scope of authority to enforce instant desegregation. Introducing the country to the idea of desegregated schools instead of forcing it on the country over night. 3) The cases were remanded to lower courts, who were to be guided by equitable principles in fashioning decrees. The competing interests involved P’s right to admission at earliest date and the need for systematic, effective and orderly removal of obstacles to full integration. (“All deliberate speed”) 4) Court emphasized its determination that all public schools be integrated by holding that threats of violence resulting from state actions against desegregation would not justify failure to integrate.

43 5) All 9 justices delivered the opinion to show unity.

15 years later, virtually no publicly integrated education in the south – minimal desegregation… Bolling v. Sharpe: Education segregation laws violate the DP clause of 5th amendment (DC).

The change begins in 1968 with Green v. County School Board - Freedom of choice plan – unitary school system, but gave choice to parents where children would go. Predictable that social pressure led to same visibly segregated system of schools. Most white parents did not send their children to the terrible under-funded black schools. The social pressure on black parents considering the threat and fear of retaliation. - Carefully evolved southern strategy to comply nominally, but as minimally as possible with Brown. Holding: Court held that a previously segregated school system (de jure) had an affirmative duty to eliminate the vestiges of that formally unconstitutional system – to achieve observable integration.

REMEDYING SEGREGATION Significance of disproportionate impact has been articulated most in school desegregation. Court has adopted bifurcated approach to desegregation problems. “De Facto”- non deliberate segregation; if an official segregation policy existed before 1954, no de facto segregation in school system. Thus in South, most schools were “De Jure”- deliberate, legislative segregation > usually widespread integrate as opposed to small pockets and Milliken not apply!!!.

Court had 3 alternatives in fashioning guidelines for remedying segregation: 1) Bar only activity that results in segregation (i.e. require desegregation only) - emphasis on the PROCESS. 2) Hold that any racially imbalanced school system is by itself a violation, (require integration) - emphasis on RESULTS. (Green- no “freedom of choice” because goal is integration, not desegregation!!) 3) Hold that once de jure segregation is shown (process), integration is required (results). This is current approach applied by courts. (Swann). 4) BUT, new view (more applicable in NORTH) is “remedy follows intent.” Race-based remedies appropriate where the particular school district was found to be in violation of desegregation orders. Don’t need widespread integration where only one school de jure segregated. (Milliken). (Can make argument that state is ultimately responsible for school system, so remedy is applicable to whole district!!!) Authority of district courts to order desegregation in southern metropolitan areas Swann v. Charlotte Board of Ed – 1971 - Board of Ed had history of de jure segregation. District court ordered establishment, which it did but court rejected it and had court-master create plan. (Court was becoming more conservative; forced bussing was the litmus test issue). Only possible through race-conscious busing, assignments, hiring, etc. Issue- Are district courts justified in ordering compliance w/ their own desegregation plans when the local school authorities fail to desegregate voluntarily? Held- Yes. (Burger). Remarkable that a new C.J. held together the unanimity with very aggressive requirement that a large urban school district, which had previously been segregated, achieved desegregation by having unanimity 1) Objective of fed courts from Brown to present has been to eliminate all vestiges of state-imposed segregation in the public schools. Judicial authority to remedy violations expands when local authority defaults. 2) Central problems here involve student assignment and these are separated into 4 categories. First is the extent to which racial quotas may be used to correct a segregation system. A remedial plan is judged by its

44 effectiveness. Awareness of the racial composition of a school system is a useful starting point in shaping an effective remedy and limited use of math ratios is permissible. The guiding principle is that no pupil should be excluded from any school on account of race, but every school need not always reflect the racial composition of the school system as a whole. 3) Remaining categories are elimination of one-race schools, remedial altering of attendance zones, and transportation of students in order to dismantle dual school system. Demographic factors may result in virtually or completely one-race schools; these are not certain indications of imposed segregation. However, gerrymandering of school districts and attendance zones and provision for optional transfer of students to other schools is useful, and, to be effective, must grant free transportation and assurance of a place in the desired school. * Puts stamp of approval on Green - after these 2 cases, the remedial obligation is an affirmative obligation to integrate. REMEDY is the issue. *NOTE- Shift from small schools to big school districts (many school, many kids, significant housing segregation and in schools still!! Burger said busing allowed to achieve integration! Once a school district has been found in violation of 14th by participating in de jure, needs to be affirmative solution and race-based remedies ok, but limited after Milliken (but more applicable in NORTH than SOUTH)!!

Swann’s critical point opens up the pathway to the Bakke topic because Swann court, frustrated with close to 20 years of slow or non-existent compliance with Brown, bites the bullet and orders a comprehensive set of race- conscious remedies. - In Swann, the court says that the consideration of race is permissible in order to eradicate the prior system; the obligation is to route out the prior system of constitutionality and bring the school system back to some theoretical point. - Race is used as a remedy - After 1971, despite the gathering of political forces to the contrary and despite the president’s southern strategy in 1968 that was premised on the opposite of the holding in Swann, the court takes a race-conscious stand. - After Swann, compliance with Brown came quickly in the south because all of those jurisdictions practiced de jure discrimination and were subject to aggressive remedial orders. - The action shifted NORTH. - The divide between de jure/legal discrimination in the south and the de facto/societal discrimination in the north was a problem – after Swann, there was no legally doctrinal remedy for the north - A kind of fictionalization of the de jure satisfaction (not outrageous) – one finds the court reaching a bit to find out of the facts of segregation, support for that de facto segregation in legal rules in the north sufficient to tack the northern schools with de jure segregation (looked to segregation actions and efforts and found significant discriminatory effects. Basis of that IMPUTED finding of de jure, triggered the Swann remedies.

JUDICIAL REMEDIES FOR NORTHERN SCHOOLS 1) All minorities- In determining whether a school is “segregated” courts must consider number of all minority groups (not just blacks) who have suffered unequal treatment in education. 2) Presumption- A finding that school authorities intentionally segregated or delayed segregating a significant portion of school district creates a presumption that the entire school district is being operated on a segregated basis. This is because of “substantial reciprocal effect” that segregation of some schools may have on others. But “remedy follows intent” after Milliken!  This presumption not rebutted or satisfactorily explained merely by showing that the board had adopted a “neighborhood school policy” (assigning student to the schools closest to their homes) even though such policy on its face appears to be racially neutral.

45  But presumption may be rebutted by a showing that because of natural geographic boundaries, school district is in fact divided into clearly unrelated areas, which require separate treatment. But burden of proving this is on school board.

Prima Facie case Keyes v. School Dist #1- 1973 - Keyes challenged actions taken by district that were allegedly intended to create or maintain segregated schools. No law supported such segregation; CO Constitution barred it. District court found race-consciousness in some decisions that school authorities made with respect to some districts, and held that blacks & Hispanics must be counted separately for purposes of defining a “segregated” school. Issue- Must courts consider number of all minority groups (not just blacks) who have suffered unequal treatment in education when determining whether a school is segregated? Held- Yes. (Brennan) Once any part of the overall city-wide school system is found to have been segregated by de jure segregation, sufficient to tag the entire district with the label de jure segregation, authorizing the court to force de jure remedies because subject to a bussing order to try to ensure as much as possible that all school children were guaranteed integrated setting. (Artificial manipulation to get to the remedy). 1) When a school district does not have a history of legally imposed segregation, P must show intentional acts by school authorities intended to segregate schools and actual existence of currently segregated schools. If P shows that such acts were taken in one portion of a school system, he has made a prima facie case of unlawful segregation intent for all segregated schooling w/in the system. 2) For purposes of determining whether a school is segregated, it is improper to separate minorities who are subject to similar disadvantages. Lower court erred in not combining proportions of balcks and Hispanic students for this purpose. 3) When P has made a prima facie case, D must rebut by showing that no segregative intent even partially motivated D’s action. Alternatively, D could show that a lesser degree of segregation would not have resulted even if D had not acted as it did (ie D may rebut P’s claim by showing that its past segregative acts neither created nor contributed to the current segregated condition of the core city schools. POWELL’S CONCURRENCE IN PART, DISSENT IN PART- Ultimate goal is the best possible educational opportunity for all kids. Busing programs must not so interfere w/ local sentiment as to negate achievement of this goal. Brown established a constitutional right to attend an integrated school. However, it is unprincipled that one little pocket of de jure segregation justifies widespread orders for integration; we should provide remedies regardless of de jure or de facto distinctions. Irritation of hypocrisy of northerners for beating on the south about de jure segregation while they committed de facto. Advocates dropping the de jure/de facto system by arguing that if there is proof in fact about racial segregation, that constitutes a prima facie case of de jure segregation. Argues that Brown and Swann essentially evolved to a constitutional mechanism to desegregate, and that should be nationally applicable. Than integration rather than desegregation should be the goal Keyes idea pursued through a number of other litigated cases in the north.

Permissible Judicial remedies- designating location of new schools and abandoning old schools so as not to perpetuate segregation; gerrymandering school districts and attendance zones, even if the result is that the new districts and zones are neither compact nor contiguous; and assigning students, faculty and staff to schools in ratios substantially the same as in the community.

INTERDISTRICT DESEGREGATION (Controlling law & narrowed Keyes) Milliken v. Bradley- 1974 – (limits of Brown were clear in the north)

46 “White Flight” from Detroit city to suburbs is critical problem for desegregation proponents. In Detroit, by the time court gets to ordering desegregation, the school population has become disproportionately not white. Solution – expand remedies and join in the Detroit litigation, all of the suburban school districts that had taken all the whites. Trying to regionalize public education in Detroit for meaningful integration. SC said no need to. Court said that unless it shows that the suburban districts had conspired with the segregating authorities of Detroit of if Detroit had somehow manipulated the placement of children in suburban schools, the suburban schools could not be tagged as de jure and could not be brought into the desegregation remedies. Remedy in any given case must be determined by nature and scope of constitutional violation. It may not extend beyond conditions produced by that violation. Thus the remedy may not extend beyond the boundaries of the school district that has engaged in de jure segregation, unless it is shown that the district lines were discriminatorily drawn, or that discrimination has produced a significant segregative effect in the other districts included in the desegregation plan. Limited remedies to INTRA school district remedies, trying to desegregate in a district in which demographically impossible. (could have been decided differently). Court finds the limit to its perceived ability in this case. There is no area that is more intimately related to state responsibility than education. Constitution says that state shall provide thorough education…

BENIGN PURPOSE-AFFIRMATIVE ACTION  Gov action that favors minorities subject to SS as well because of race classification. Gov has “compelling” interest in remedying past discrimination against racial or ethnic minorities and may even give preference to members of such groups (even if persons benefited are not actual victims of discrimination). However, past discrimination must be identified by a properly authorized gov body as a constitutional or statutory violation. A race-based plan cannot be used to remedy general past societal discrimination. (Croson)  “Marbury Safety Factor”- relying on independent, external factor & use of race is necessary.

Regents of the University of CA v. Bakke – 1978 - Bakke was denied into med school. UCal had 2 track admissions (regular & special for disadvantaged minorities). P claims because he is white, denied consideration for spots reserved for minorities in special program, denying him EP & in violation of Civil Rights Act of 1964. Issue- May a state school use race as a factor in its admissions process? Held- Yes. (Powell – ALONE, but determines the judgment). 1) Powell agrees with Brennan on the issue: that race can be considered – that it is not constitutionally impressible to take race into consideration. Believes that Davis was within its constitutional bounds. 2) Powell says SS; Brennan IS; Stevens does not consider constitution. 3) Powell agrees with Stevens on the issue: they agree on outcome – that Bakke has been done wrong by the med school and the med school should be required to admit him. It was unconstitutional to deny Bakke. 4) Basis for Stevens’s point of view – Title VI of the CRA of 1964, section 601; he is making a statutory judgment rather than constitutional judgment. Saying that Congress has forbidden Davis from doing this. (commerce power that allows congress to legislate in this area). - Title VI is an important point here and continues to be - Title VI does not have to worry about state action, it applies to private action; makes the distinction between private and public irrelevant, unless section 5 of the 14th prevents congress form legislating in this area. 4) Stevens point is that they concluded on the basis of Title VI and the legislative history that supports the adoption of Title VI for it to be taken literally and that race cannot be considered. So even if constitutional were to permit a more nuanced conception of race, and it was ok as a factor, that constitutional minimum is exceeded by Congress through Title VI – mandates a color blind admission process - Powell rejects that view and the substance of the analysis. Joins with Stevens on remedy alone.

47 5) Powell concludes that Congress in adopting Title VI, meant to make the language co-terminus with the constitution. That it is simply an implementing rule for the 14th amendment. - Powell agrees that race may be considered, but actually articulates an analysis of the race issue is his alone. “in order to justify use of suspect classification, a state must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of classification is ‘necessary to the accomplishment’ of its purpose or the safeguarding of its interest.” CONCURRENCE of 4 (Brennan, White, Marshall, Blackmun) - wants IS/ balancing test v. unflexible SS! 1) Central meaning of the decision is that the government may take race into account when it acts not to demean or insult any racial group but to remedy disadvantages caused by past discrimination, when supported by appropriate findings. 2) D’s aff action program unconstitutional. Congress has enacted legislation under Title VI incorporating racial quotas. Prior decisions suggest remedial use of race is permissible. D’s goal of admitting minority students disadvantaged by effects of past discrimination is sufficiently important to justify use of race- conscious admissions criteria. D’s ought not to be forced to abandon their reasonable and effective procedure. Want intermediate review. CONCURRENCE & DISSENT (Blackmun)- D’s program is not so different from Harvard’s and is constitutional. CONCURRENCE & DISSENT of 4 (Stevens, Stewart, Rehnquist, Burger)- CA court judgment should be affirmed completely because Title VI of CRA says no person because of race be excluded from participation in any program receiving fed assistance. No need to reach constitutional issues. Does not tell us anything about the constitution. They say that congress mandated color-blindness, and that is sufficient to determine the case; no need to go further. Stevens doesn’t address the constitutional issue because there probably was not agreement within the group on how to do that. *NOTE- UCDavis not competent to determine discrimination. Only courts or Congress. “Diversity” argument that a diverse student body improves educational environment, UCDavis competent to make & defers to this reasoning as permissive & benign.

Gratz v. Bollinger: (2003) – C. J. Rehnquist - UMich undergraduate admissions guidelines used point system. Grant minorities 20 points. - Holding: Unconstitutional

Grutter v. Bollinger: (2003) – J. O’Connor - Facts: Michigan Law School used race as a factor in admission to enroll a critical mass (not a specified %). - Issue: Whether diversity is a compelling interest that can justify narrowly tailored use of race in selecting applicants for admission to public universities. - Holding: EP does not prohibit Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining educational benefits of diversity. - School argued compelling interest in policy to promote cross-racial understanding; help break stereotypes; understand persons of different races. - Court said Law School engages in holistic review of each applicant’s file. No automatic acceptance. - Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. It does require serious, good-faith consideration of workable race-neutral laternatives that will achieve diversity. - O’Connor foresaw that in 25yrs, use of racial preferences will no longer be necessary to further interest approved today.

48 - J Ginsburg, Breyer (concur): Reality is that minority students encounter markedly inadequate and unequal educational opportunities. One can hope but not firmly forecast that 25 yrs will be sufficient for “safe to sunset affirmative action” - J. Scalia, Thomas (concur in part, dissent in part): Question whether university has gone beyond bounds of good faith effort and that critical mass is now an unconstitutional de facto quota system. - J. Thomas, Scalia joins concur in part dissent in part: School could NOT set up a high general admission standard and allow exemptions to minorities. Race in admission remains unlawful and will be illegal in 25 years. - C. J. Rehnquist, J. Scalia, Kennedy, Thomas (dissent): Law school’s critical mass was pretextual. It’s purpose was to extend offers admission to minorities in proportion to their statistical representation in the pool. - J. Kennedy: % minorities did not fall below 12% at any point. Critical mass has real potential to compromise individual review.

DeFumis v. Odegard Dismissed as MOOT because person had already graduated by the time the case got to the SC. (Pre-Bakke)

Increasing support of Stevens Title VI view that race cannot be considered.

Hopgood v. TX - Held the TX affirmative action program unconstitutional. Powell’s opinion as no longer having any precedential force.

Bakke Difference between statutory and constitutional thinking of Stevens and Brennan Stevens and his group of 4 don’t help at all – give their views on race in context of statutory TITLE VI analysis.

Debate between Powell and Brennan and Marshall springs from Washington v. Davis and Loving v. VA - (rejects idea that equal discrimination of races does not remove sting of discrimination; use of race as a classifier is what generates the problem and requires SS). The Loving principle transferred to the Affirm Action cases. - One can say Cal intends to discriminate on basis of race, but what Cal wants is benign use of race. - Brennan/Marshall willing to conclude that use of race to ameliorate prior conditions. - Without that intent to discriminate (intent to harm), there can be no violation of the 14th.

Powell - Any use of race triggers SS. When use race consciously, may be possible to state a benign purpose, but… - Also, when race is used, it inevitably drives stereotypes and there is a risk of harming by prodding the stereotype the very people that one intends to help - Where racial preferences are used today to redress prior racial discrimination, particularly, societal discrimination rather than de jure, some consequence of current decision-making necessarily burdens individuals (Bakke). - If one is excluded from a benefit on basis of race to help someone else, the burdened individual can say “it wasn’t my fault”

Brennan does not really disagree. Brennan and Marshall say that race is a tricky thing. One must be careful about using race. Bad things can happen when race is used to crudely or carelessly.

The real difference between the 2 is LEVEL OF SCRUTINY.

49 - Brennan sees the broader social goal of redressing societal indiscretion – his solution is a technical legal one – apply IS and require that the gov have an important objective and that it be allowed to narrowly achieve. - Easy for Brennan because IS means that one can back away from the all or nothing SS analysis. - Powell feels IS too week. More draconian view that race is such an explosive territory that IS will not suffice. - Trickier for Powell because he is uncomfortable with turning a blind eye to racial consequences of our country. Understands why Davis wants to do something.

Powell states the SS test in a way that many have subsequently commented is watered down SS; states a version that is less strict than what the court articulated in prior cases: must show purpose is constitutional and substantial and the use of race is necessary to purpose (softer than compelling purpose and absolute essential to achieving purpose) - risk here is that if Powell’s idea of SS takes root, then when we come to subsequent race cases, the court may feel bound by precedent to apply the watered down SS, making it easier for the traditional discriminator. - Also, traces of Brown v. Board – rejects the idea that societal discrimination is sufficient in itself to disregard the racial classifications. Must confront cases like Swann. These are different because in all of these cases, there was an adjudication by a competent body that the parties were guilty of de jure discrimination – then the equities change despite the factors discussed. - There is such a high order of public interest in overcoming blatant discrimination that the more explicit use of race is justified. - That lead many insinuations/education, etc. to say fine, we are public bodies and we will simply declare ourselves as having been discriminatory.

SS looking grim and rigid (government likely to lose), BUT THEN POWELL ARTICULATES his version of SS and identifies 4 possible justifications that can be fit in the SS analysis: (analyzing like RR Expressway) (1) school has interest in achieving racial balance (circular, doesn’t work); (2) rejects societal discrimination (Davis made argument that setting aside seats for minorities, it would be returning doctors to their communities – legitimate goal, but very little fit between admissions and output into minority communities) (3) Davis said that diversity in education is a value of itself; facilitates the education process and this is a judgment for educators to make so as to facilitate the best learning environment for everyone; and in that context, race can be relevant. If this is SS, traditionally we would understand it to be saying that diversity is a COMPELLING goal of the education process. Fudges this, because race is so disfavored as a classifier that the classifier would probably fail. Some indication that he does not mean “exacting scrutiny” as we have seen in prior cases. - at this point, Powell’s opinion looks promising for AA proponents, BUT then he says the Davis program is unconstitutional because by reserving seats for minority applications only, Davis has given race MORE INFLUENCE than is constitutionally appropriate. If diversity is a goal, it can be a plus, a factor, but it cannot be the sole factor with respect to admissions decisions. WORKING RULE: There must be a UNITARY SYSTEM in which all applicants are competing for all seats. Race may be a factor of one of a variety of diversity factors that school considers, but there may not be seats set aside solely on this basis, because that would imply that race gets more weight than other factors.

Powell concludes that the Davis program itself is unconstitutional, but in what is largely dictum, he maps out what a school can do to achieve racial diversity. Powell agrees with Brennan and Marshall and may actually be applying a version of IS without knowing it. But agrees with Stevens that Cal Davis violates the law; undue emphasis on race because of dual tract system. But Powell’s opinion is not in line with the Title VI approach because Powell considering race.

50 Brennan seizes on this and says it is gratifying that the majority concedes that race can be considered – he is laying down the claim that Powell + Brennan 4 say that consideration of race is permissible. Unsettled analysis because difference in views (not SS, not IS, etc)

Marshall’s separate opinion (not disagree with Brennan) (first of color in SC and leading lawyer of Brown v. Board) – gently lectures on irony of constitutional interpretation that requires disregards of race and color blindness after 300 years in which race was all that mattered.

From Bakke until today, there has never been an AA education case to reach the SC. Conspiracy of silence to leave the issue as Bakke left it.

AA controversy went out into non-education forums, most important of which is the series of MBE cases

MINORITY BUSINESS ENTERPRISES (MBE) AA program in public contracting. Governments concerned that the lion share of contracting business going to white-owned business and therefore difficult for minority business to break into business. Without public contracts, difficult for minorities to get in. Strict Scrutiny applied for all race based classifications either drawn by fed or state. Violate EP unless narrowly tailored to further compelling gov interests. Compelling gov interest are remedying prior discrimination but needs to be direct evidence or won't be upheld. Need SPECIFIC SHOWING by COMPETENT BODY & needs to be NARROWLY TAILORED!! 1st case to apply Bakke Fullilove v. Klutznik- upheld MBE “set aside” program. Program involving race criteria requires close scrutiny, but Congress deserves appropriate deference even where legislation implicates fundamental rights because of their special power under sec 5 of 14th to enforce EP. Objective to end prejudicial practices is w/in congressional power because they regulate state action in use of federal funds. Means must be narrowly tailored. (Powell) Also, Congress is a competent entity to determine sufficient findings of past discrimination. (fragmented opinion)

Rejection of state & local set aside programs absent evidence of direct discrimination! City of Richmod v. Croson- In Fullove, court upheld race-conscious program, so Richmond lawyer Xeroxed the federal MBE regulations and cut and pasted, thinking that if the court upheld it once, it would again. Richmond required prime contractors to set aside at least 30% of subcontracts to MBE’s. Adopted on evidence that MBE received much lower business. But no evidence of racial discrimination on P’s part or of any of P’s prime contractors. SC unwilling to accept the seriousness of purpose – the over-inclusiveness of the regulation took away from the serious purpose of including minorities. Court rejects the city’s effort to piggy back on the federal program that had been found constitutional, and on that basis, the ordinance is wrong and unconstitutional. Issue- Do city governments have the same protections as Congress such that they can simply enact a program that is aimed at remedial action for past discrimination? May a city adopt a set-aside program for MBE’s on city projects when absent evidence of direct discrimination on part of city or contracting industry? Held- No. (O’Connor). Powell’s view of standard of review is prevailing (only 4 votes for O’Connor adopting SS). O’Connor says SS required, however, she hedges in various ways. O’Connor suggest trying a race neutral way first; after applying that neutral screen, more likely to get minority participation. But, if that does not work and can show how it does not work, then may use race cautiously.

51 1) P notes, Congress not required to make specific findings of discrimination to engage in race-based relief so why can’t city. But, unlike states, Congress has a specific constitutional mandate to enforce the 14th amendment. 2) To enable states to use race classifications merely by reciting a benign or compensatory purpose would be to give them the full power of Congress under sec 5 of 14th amend, and to insulate their actions from judicial scrutiny under sec 1. However, the goal of 14th was to limit the states’ use of race as a criterion for legislative action and to empower the fed courts to enforce those limitations. 3) Under EP, a state may eradicate effects of private discrimination w/in its own legislative jurisdiction, but this requires that the discrimination be identified w/ particularity. P has to show it was “passive participant” in a system of racial exclusion practiced by elements of local construction industry, but it failed to do so. 4) EP protects individuals; P’s plan denied certain citizens opportunity to compete for fixed percentage of public K’s based solely on their race. Race based regulations subject to SS, regardless of the race of those burdened or benefited. 5) P’s factual predicate for its plan consists of generalized assertions that there has been past discrimination in construction industry. P’s only speculate how many more MBE’s would exist if not for discrimination. Not show how many minorities are qualified as contractors, or how many minority members are eligible for membership in contractors’ association. All P shows is MBE’s receive less than 1% business. But statistical generalizations cannot substitute for hard evidence. Permitting racial classifications on such generalizations would allow local governments to create a patchwork of racial preferences w/out ascertainable limit or duration. 6) P’s plan covers hispanics, asian, indian against whom there is no evidence of discrimination in P’s construction industry. This suggests P’s purpose not to remedy past discrimination. 7) Court cannot assess whether P’s plan is narrowly tailored to remedy past discrimination because no evidence of it. No indication P considered race-neutral means to increase minority participation. Quota’s only goal is race-balancing. 8) NARROW RESTRICTIVE RULE – Court requiring the that the city tightly justify the need for some remedial program on the basis of a study that is specific to the community in question. CONCURRENCE (Stevens)- Unlike plan in Wygart that was meant to improve education by assuring an integrated faculty, P’s plan has no goal to increase efficient performance of its K’s. P’s plan was formulated by legislative body instead of court which is better equipped to ID past wrongdoers and fashion remedies. P’s plan does not address specific characteristics of racial groups involved; it relies merely on a stereotypical analysis. SCALIA’S CONCURRENCE- Agree with SS!!! No justification for the use of race. No situations where state & local governments may discriminate on basis of race because a solution to past discrimination by aggravating present discrimination does not help. Fed government is uniquely capable of dealing w/ past discrimination because past discrimination finds more ready expression at state and local level than it does at fed level. P’s plan is example of local racial class; it directly benefits dominant political group which is also dominant racial group. P is free to give K-ing preference to ID-ed groups of discrimination, but this could apply to whites and blacks- it would be race-neutral. Remedies must address discrimination against individuals; a past injustice to a black man cannot be compensated for by discrimination against a white man.

DISSENT (Marshall, Brennan, Blackmun) - P’s plan was patterned after, and is indistinguishable from Fullilove. Majority is unpersuaded by P’s factual findings but it should not second-guess former capitol of Confederacy w/c found that its local construction industry did not deviate from the national pattern Congress found as set forth in Fullilove. P has a compelling interest other than remedying past discrim; it has interest in preventing its own spending decision from furthering race discrim. P’s plan is substantiallyrelated to these interests. Majority also introduces strict scrutiny of race conscious remedial measures as if race

52 discrim and its vestiges have been eradicated. It also imposes a diff standard of proof of a prima facie case before states can act to remedy race discrim. Decision marks full scale retreat to longstanding solicitude to race-based remedial efforts. - In the vaguest part of the opinion (like Powell’s in Bakke, clearly the intellectual leader even though it doesn’t command the majority) she throws out the tantalizing prospect that Richmond can in effect address societal discrimination through these programs. If Richmond concludes that its community would be better served by diversity of contracts, it can choose to spend its money under the police power in a way that it thinks achieves a social goal. - Typical O’Connor double-speak, real politic…she tends to vote for a result that is harsh, but then dresses it up with language that invites a different outcome later on (like Marshall who threw out Marbury’s commission, but) – she is sending us a message that we need not give up on race-conscious remedies, approaches of dealing with problems such as this. - Nonetheless, this is SET BACK for proponents of AA programs.

IN NJ, after this opinion, the state had to look at whether its minority enterprises were constitutional or not. Governor concluded that they were not > temporarily suspended > state put together a study commission to document the scope of the problem at the state level and trace the causes of under-representation of state pool – engaged consultants to do historical and economical studies. Commission put together a dramatic profile of what the problem was and why program justified > re-instituted the regulations. - NJ showed that could comply with stringent outline of Croson without giving up the program altogether. But Croson was on the face, a set-back and initiated a sequence in which court more closely looked at the problem than before. - clearly court had not yet settled on a rule, by the looks of the opinion. - Brennan still with us at that point, and the next case that comes forward, a federal AA regulation case

Metro Broadcasting v FCC (p. 674) - “benign” racial classifications required only IS! - Brennan up to his usual strategic maneuvering (gender cases, Bakke) – has not given up on his idea of IS, continues to believe that race-conscious programs are constitutionally permissible so long as satisfy rigorous scrutiny. After Croson, cannot argue that for state programs because of combination of O’Connor and Scalia opinions. But he still has the federal government (FCC) - In one of his last opinions, he persuades a group of court not to follow Croson with respect to standard of review; that IS is appropriate standard for federal cases, while SS required in state cases. The answer to that question based on functional/constitutional distinction. SECTION 5 of 14th clearly special role for Congress to root out the consequences of Congress – constitution calls for Congress to be more race- , a power that is not permitted to the states and individual municipalities. Section 5 demonstrates a unique role for Congress. Awkward, because section 5 says nothing about federal programs…..must come through the commerce power or spending power. Congress’s power to regulate airways cannot come from DP clause of 5th amendment which is in fact a restriction of Congressional power. - After Metro Broadcasting, have BIFURCATED constitutional role that court avoided in Brown.

JUDGE MADE common law rules, and the court need not find bound to a prior decision until settled into a rule. So issue comes before court again in 1995 (Brennan no longer around – did that affect the decision to grant cert?)

Strict Scrutiny of Affirmative Action Adarand Constructors v. Pena- Adarand submitted low bid for fed project. Prime K’s terms gave additional compensation if hire small business controlled by “socially & economically disadvantaged” individuals

53 (minorities). Gonzalez Co got job instead though they put in higher bid. Adarand sued claiming deprived of property w/out DP of law under 5th. Issue- Is fed government’s use of race-based classifications subject to SS even for affirmative action? Held- Yes (O’Connor). Court takes this on with intent to overrule Metro Broadcasting, so not insignificant that O’Connor wrote opinion of the court. Not surprising that she finds MB decision out of step with an otherwise consistent line of cases. 1) 5th Amend protects against arbitrary treatment by fed government, but it does not guarantee equal treatment. 2) In Croson, court held 14th Amendment requires SS of all race-based action by state and local governments. Thus any person of whatever race has the right to demand that the government justify any racial classification subjecting that person to unequal treatment under the strictest standard. 3) In Metro Broadcasting, court held that “benign” racial classifications required only intermediate scrutiny. This holding undermined the basic principle that the 5th and 14th Amends protect persons, not groups. Group classifications must be subject to detailed inquiry to assure that the personal right to EP has not been infringed. Therefore, it is inconsistent to treat “benign” racial classifications differently from other types of race classifications and all racial classifications shall now be subject to SS. 4) This holding does not bar the government from acting in response to lingering effects of race discrimination. When race-based action is necessary to further a compelling interest, it is permitted as long as it satisfies the narrow tailoring test of SS. CONCURRENCE- (Scalia)- There can never be a compelling interest in discriminating on the basis of race to

compensate for past racial discrimination in the opposite direction. Under the Constitution, there can be neither

a creditor nor a debtor race.

CONCURRENCE (Thomas)- Government may not make distinctions on the basis of race, whether the objectives are to oppress a race or to help a race. Affirmative action programs undermine the moral basis of EP and arouse resentment by those not benefited. Targeted minorities are stamped w/ badge of inferiority and are prompted to develop dependencies or an attitude that they are “entitled” to preferences. DISSENT (Stevens, Ginsburg)- There is a clear distinction between policies designed to oppress minorities and policies designed to eradicate racism. DISSENT (Ginsburg, Breyer)- Judiciary should defer to Congress, as the political branches are better suited to respond to changing conditions. Metro Broadcasting bites the dust after 5 years. No longer any doubt that SS is the test to be applied in these cases. *NOTE- INTERMEDIATE SCRUTINY - Not a fundamental interest, but IMPORTANT interest - so use intermediate scrutiny. Total deprivation & stigma on kids!!

THE CIVIL RIGHTS CASES & ORIGINS OF STATE ACTION 14th & 5th Amendment bar certain “state action” as opposed to private, non-governmental action. Determinative question is what constitutes state action. State action changed over years. Early cases held not apply to private action. Private and public sector became blurred as government went into private sector itself. State Action rules are messy & make no sense.

Civil Rights Cases – Group of cases brought together that constituted court’s promise of dismantling the 14th amendment.

54 Issue- May Congress bar private discriminatory acts by facilities generally open to public? Held- No. Civil Rights Act is unconstitutional. 1) 14th Amend permits Congress to take corrective action only against state laws or acts done under state authority. 2) 13th Amendment permits direct, as opposed to merely corrective, legislation but it only covers slavery or involuntary servitude or the lingering badges of such. Refusing accommodation to black dude does not impose this badge. 3) 13th Amendment good to use because can limit private enterprises because no state action requirement, but only applies to slavery or involuntary solitude. But has continuing legal usefulness because implicit to eliminate remains & effects of slavery. 14th amendment topic – nor shall any state deny to any citizens he EP of laws. - Any DP or EP case brought under 14th must be premised on state action. - “NO STATE SHALL” language has constitutional significance. - If bringing federal action under 5th – cases invariably involve states.

As with Slaughterhouse and Plessy, court took the potentially broad implications of the 14th, and for 75 years, neutered the language, by restrictive interpretation (P&I goes, Separate but equal).

Court concludes that under section 5 power, Congress cannot act on individuals who act on race because they are not the state. Section 5 only permits congress to enact laws that prohibit the states from discriminating. This is pivotal because this is exactly where societal discrimination takes place. The ugly racists are beyond the reach of federal law, so whole culture of this grows up – encouraged by a court willing to look the other way. - the action that congress was regulating was truly private conduct, and the language of the constitution must be given some meaning – so it is an unsympathetic decision. - The perspective that the court has on the problem is on p. 1370 (first full paragraph) - Justice Bradley made his point emphatically in the language – “taking slavery and running it into the ground.” – playing slavery card is illegitimate! (second paragraph) – “special favorite of the laws” - Whether the problem has been solved or solved enough (disagreement in court)! Remember, Cleburne and retarded people. Dangerous rhetorical attitude of Bradley.

Holding of Civil Rights Cases is good law today - There must be a demonstration of state action - Action of individual do not trigger a constitutional violation - One must complain of something approved of by a public body in some way (state action, law, regulation, ordinance, etc)

1369 second paragraph –……such as the regulation of commerce (commerce power is extraordinarily broad grant of power to US) – reached not under section 5, but under Art I sec 8 clause 3. In 1883, it never occurred to anyone that congress’s power to regulate IC could reach so deeply into internal affairs. The idea is now very developed. But court may be moving more backwards again.

Sued under federal Civil Rights Law (earlier version of 1983 violation) – clearly had a right under federal issue, but question was whether congress could have adopted the statue Held that the statute could not reach, the state action requirement is an essential element and has not been satisfied. Hence, the 14th amendment attempt to justify Congress’s action fails.

55 The 13th amendment abolishes slavery (very few amendments speak so directly, usually just provide a roadmap). The 13th amendment does not have a state action requirement. Because directly abolish slavery, rather than mandating states to do it, there is no intermediating state action requirement. 13th actions can be brought against individuals. 13th would support the actions in these cases without the necessity of showing of state action, but it does not work here because the court has set its mind against the necessity of this legislation - bottom 1369 – top 1370: “badges of incidence of slavery” – essentially, equates with racial discrimination. - Note, because 13th is premised on abolition of institution of slavery, it always been thought that the reach was narrower than the 14th in this sense. Since 13th is drawn out of race based thinking, it has always been the holding of the court that the type of action prohibited by 13th is discrimination that is either race-based, or type of discrimination that is ANALOGOUS to race-based (ethnic status, but not gender based case) - Court is being permissive in its language here – willing to include rooting out of the consequences of the institution as well. After abolition of institution, one must deal with the consequences of the institution. Badges and incidence. Then court moves on to the private individual language.

1960’s string of decisions by SC reviving the badges and incidence, rejecting the narrow minded view of Bradley and co. about what were badges and incidence, and essentially opening it up to a general proposition of prohibition of discrimination.

13th : state action, no; race only, yes – if make choice to fit a case under 13th, then must fit it under badge and incidence of slavery; most EP cases will not succeed there. Then must fall back on 14th, and try to satisfy the state action requirement. 14th: state action, yes; race only, no

HARLAN DISSENTS in the Civil Rights Cases (also dissented in Plessy) 2 interesting ideas that don’t prevail but worth appreciating as models of legal analysis – how do you make the case as effectively as you can? 1) true that P&I clause of 14th has been severely restricted by the courts decision in Slaughterhouse cases, but it isn’t totally dead. The 14th creates this idea of national citizenship and does say that there are specific incidences of national citizenship. He is saying that by using P&I clause rather than DP or EP clauses, by defining citizenship within P&I, one can run around state action and give congress ability to define citizenship. Colleagues not persuaded. 2) (P. 1372) Wants to take the court back to old English common law – these laws are laws of public accommodations – institutions were required to accept every patron that could pay fee, clean and orderly because in 16th c. England, needed to be able to stay at the inn at the end of the day. Although these were private businesses, they were imbued with a public concern. Could legitimately enforce regulation on businesses in the public service, and therefore, since congress regulating the same kind of public services, nonetheless, still invested with public interest AND therefore can be regarded as STATE ACTORS for purpose of 14th because the NO state language is broad enough to encompass those private activities that are within the state’s concern. (liberal construction of text)

Know the CR cases and be able to say it would have to be decided whether there is state action here.

All comes back to Marbury!!! Courts play “gate-keeping” role- when should courts interfere and when to let legislature handle it!

56 IMPORTANT FOR EXAM NOT EVERY CASE PRESENTS THESE FIVE PARTS IN DEEP ANALYSIS, ESP’Y IF FACT PATTERN SAYS “PA REQUIRES,” THEN YOU ONLY NEED A SENTENCE ON STATE ACTION (#5).

II. Standard of Review: There are Three: (1) Rational Basis - Heightened Scrutiny - (2) Intermediate Scrutiny - Exceedingly Persuasive (3) Strict Scrutiny

(1) Rational Basis – Easiest for the state gov’t to satisfy. a) Gov’t must satisfy two (lenient) reqt’s: (i) Legitimate state objective – gov’t must be in pursuance of legitimate gov’tal objective. (ii) Rational relation – there must be a “minimally rationally relation” b/w the means chosen by the gov’t and state objective. Very easy to satisfy. Only if gov’t acted “arbitrarily and irrational” will rational link not be found. b) Burden of Persuasion – individual attacking gov’t action bears the burden of persuading court the action is uncosnt’l. c) Outcome – gov’t standard will almost always be upheld. d) When Used – Economic/ Social regulation (DCC, SDP, EP, K clause). e) Cases - (i) Safety Reg’n: Railway Exp v. NY (1949): H: state reg’n prohibits ads on sides of trucks, but exception for those who adv on their own trucks. H: Const’l. (ii)

(2) Strict Scrutiny – toughest for gov’t to satisfy; suspect class’n and fundmental rights. A regulation discriminating against a suspect class violates EP, unless found to be necessary to promote a compelling state interest. a) Test: “Necessary to promote compelling state interest”- classification is necessary when it is narrowly drawn so that no alternative, less burdensome, means is available to accomplish state interest. b) Burden of Persuasion –shifts to state to must prove its act is Const’l. c) Outcome - Gov’t action will most likely be struck down. d) When Used – SDP, EP. e) “Suspect Classification” – racial/ ethnic background. f) “Discriminatory Purpose” Req’t: SS test requires gov action have discr’y purpose- either DIRECT discrimination (on face of statute) or INDIRECT- Prima facie case of discrimination (facts that reveal a “disparate impact” along racial lines. Burden shifts to D to show a sufficiently persuasive reason for classification. h) Cases:  Right to Marry: Loving v. VA (1967): white man and black woman marry, violating anti- miscegenation statute. H: Unconst’l, right to marry. EP arg’t not problem here b/c ct rejects any classif’n based on race, although equally burdensome.  Ethnicity: Koramatsu: H: upholds wartime conviction of military order excluding Jap-Americans from military areas on west coast. (See Marcus’s outline for more)  Fund’l Rights: Zablocki v. Redhail (1978): Wisconsin statute req’g ct approval b/f a marriage of any parent under an oblig’n to support a minor child not in that parent’s custody. H: Unconst’l.

57 (3) Intermediate Scrutiny – “middle” level. a) Quasi- Suspect Classf’n – gender, legitimacy (not age). b) Test: 1) Gov’t Objective – must be genuine, not hypothesiezed for litigation, and gov’t may not rely on overbroad generalizations about males & females. 2) Substantially related – violate EP unless they are substantially related to the achievement of important gov objectives. a) Outcome – 50/50 chance it’ll be struck down. b) When Used – Quasi-suspect classifications. c) Cases:  Gender: Reed v. Reed (1971): Idaho law giving males preference over females as state admin’s. H: Unconst’l.  Favoring Women: Craig v. Boren (1976): H: Idaho statute that prohibits sale of beer to men under 21 and women under 18 is unconst’l. Court has been unwilling to find age as suspect class. Failure to show rel’p b/w age/gender distinction and state objective.

(4) Exceedingly Persuasive: This SOR is somewhere b/w IS and SS.  Miss. U v. Hogan: Nursing school for women only. H: Rejected. O’Connor says Craig v. Boren mandates “exceedingly persuasive justification” SOR. State’s justif’n of redress for women is rejected; ct says it actually perpetuates a stereotype.  US v. VA (1996): VMI case where sister school est’d violated EP.

(5) Heightened Scrutiny (Rational Basis “w/ Teeth”) – gay/ mentally retarded  City of Cleburne v. Living Center: R: Heightened form of RB appropriate for mentally retarded (not IS or SS). H: under RB test, ordinance fails b/c state can’t defend why ordinance applies only to this group, and not aged, convalescent, etc.  Bowers v. Hardwick (1986): P charged w/ sodomy in his own bedroom, violating state law that prohibits sodomy. H: No fundamental right to engage in homo’l sodomy. This has never been overruled!!  Romer v. Evans (1996): Colorado’s amendment removes possibility of any anti-discrimination based on sexual orientation at state or fed’l level. I: Should HS be applied to Amendment 2? NO. H: amendment 2 of Colorado’s state constitution violates the EP clause of the federal Constitution. Decided under HS, but more towards RB. It flunks RB b/c it reflects irrational prejudice.

III. Discriminatory Purpose (Still Under SS): Rule  laws that are racially neutral on their face and that rationally serve a permissible government end do not violate EP simply b/c they have a racially discriminatory impact (i.e., affect minorities more adversely than white). A violation requires that the gov action have a discriminatory purpose (intentional or deliberate). In school desegregation cases, termed de facto & de jure.  If BLATANT (on its face) = INVALID!  If NEUTRAL = Laws that may or may not appear neutral on their face violate EP if challenger proves legislative motive was to discriminate against racial or ethnic minorities.  Prove prima facie case of discrim’n and burden shifts to opposing party to show constitutionally permissible. (Gomillion v Lightfoot- redistricting looked like 28 sided-figure and evidence of discrim).  Judged by RATIONAL BASIS and upheld if rationally related to constitutionally permissible state interest.  Sufficient to show discrim was “motivating factor”; Don’t need a “smoking gun”, just a pattern of discrim. (Washington v. Davis; Arlington Heights).

58 A) Disc’m in Employmen/ Testing: (i) Briggs v. Duke Power: Neutral test, where effect weeded out based on race. H: Unconst’l, and showing disparate impact was enough where court concluded the exam itself was overly inclusive, testing for high verbal skills where job in question didn’t call for that skill. (ii) Washington v. Davis (1976): police dept’ verbal test routinely weeds out black applicants. Does a qualification test that has not been established as a reliable measure of job performance and that fails a higher percentage of blacks than whites violate the 5th Amendment DP clause? NO. R: a discriminatory purpose must be shown whenever a C’l violation is claimed. (iii) Personnel v. Feeney (1979): MA law gives vets lifetime preference for state civil service jobs, excluding women. H: No disc’y purpose shown here. R: Vet status not uniquely male. Fails two- fold inquiry: (1) Is classif’n gender neutral on its face? (2) If clasif’n isn’t based on gender, does it result in invidious discrim’n? NO.

B) Zoning Discrimination: (i) Gomillion v. Lightfoot: Tuskegee uses state law to redraw boundary lines to exclude all but three black voters. H: struck down; this is an example of manipulating a neutral law to achieve disc’y end. (ii) Arlington Heights (1977): disparate impact case; MHDC denied zoning permit to create projects; community protests b/c they don’t want it in their town. H: court doesn’t req proof of disc’y purpose be explicit; it can infer the purpose from a context of events that can invite an inference of purpose. It’s enough to show disc’n was a motivating factor.

IV. School Desegregation Cases:  Plessy v. Ferguson (1896): Separate but equal.  Brown I (1954): H: Overturns Plessy.  Brown II (1955): no entitlement to immediate remedial order. The court backs off from an instant remedy b/c justices understood how deeply entrenched de jure segregation was, and that you couldn’t dismantle the system that quickly. It lets district courts deal w/ it on a case by case basis to introduce the country to idea of segregation rather than force it. It didn’t really happen this way, though.  “De Facto”- non-deliberate segregation; if an official segregation policy existed before 1954, no de facto segregation in school system. Typically practiced in the northeast.  Thus in South, most schools were “de jure”- deliberate, legislative segregation, so usually all had to widespread integrate as opposed to small pockets

A) Structural Reform Litig’n: emphasis of litigation isn’t so much on rights of indiv’l, but focuses on structure w/in w/c the individual functions.  The rights of the individual drives reform of structural system.  In all these cases, judges become involved in management of administrative structures, as in Brown II.  Example: it was rights of child in Brown to meaningful ed’n that gave rise to school change, thus reforming the institution itself, yielding to vindication of indiv’l rights.

B) Remediation: Obligation to Integrate: (i) Green v. County School Board (1968): Segregation resulting from school choice plan where parents could choose where to send their kids. H: a previously de jure segregated system had an affirmative duty to eliminate the vestiges of that system. (ii) Swann (1971): H: the large urban school district of Charlotte, NC must achieve integration by creating a unitary school system. This could only be done by race-conscious educ’l policies, busing of students, race-

59 conscious hiring, and assignment of teachers to the schools. R: consideration of race is permissible to eradicate consequences of unconst’l system. Busing ordered.

C) De Facto Segregation in the North: New view of remediation in North is “remedy follows intent.”  Raced-based remedies appropriate where the particular school disctrict was found to be in violation of desegregation orders.  Don’t need widespread integration where only one school is de jure segregated. (Milliken).  BUT, you can make the argum’t that state is ultimately responsible for school system, so remedy is applicable to whole district!!! (i) Keyes (1973): H: once any part of the overall, city-wide school system is tainted by de jure segregation, it’s enough to tag entire district w/ that label, thus imposing Swann’s de jure remedies. (ii) Milliken (1974): Controlling law and narrowed Keyes!!! Clarifies limits of Brown as applied to north. White flight from Detroit cities to suburbs. P wanted to desegregate but SCT said not need to. R: Remedy in any given case must be determined by nature and scope of constitutional violation. It may not extend beyond conditions produced by that violation. Thus the remedy may not extend beyond the boundaries of the school district that has engaged in de jure segregation, unless it is shown that the district lines were discriminatorily drawn, or that discrimination has produced a significant segregative effect in the other districts included in the desegregation plan. Thus, unless it could be shown that suburban district have conspired to segregate, then those dist’s can’t be tagged as de jure segregated and can’t be brought into the court order.

V. Affirmative Action:  Gov action that favors minorities subject to SS as well b/c of race classif’n.  Gov has “compelling” interest in remedying past discrimination against racial or ethnic minorities and may even give preference to members of such groups (even if persons benefited are not actual vics of discrim’n).  However, past discrim must be identified by a properly authorized gov body as a const’l or statutory violation.  A race-based plan cannot be used to remedy general past societal discrim. (Croson)

A) Education: Bakke (1978): white applicant denied admission into state’s med school, pointing to school’s affirmative action program as cause. H: A state school may use race as a factor in admission, but not as the only factor. Cal’s 2-track system held unconst’l. R: there must be a unitary system in w/c all applicants are competing for all seats; race may be a factor as one of many diversity factors in admissions process, but there may not be a quota (seats set aside). (but there’s no clearly applicable SOR from this case). B) Minority Business Enterprise (MBE)  SS applied for all race based classifications either drawn by fed or states.  Violate EP unless narrowly tailored to further compelling gov interests.  Compelling gov interest are remedying prior discrim but needs to be direct evidence or won't be upheld.  Need SPECIFIC SHOWING by COMPETENT BODY & needs to be NARROWLY TAILORED!! (i) Klutznick: upheld MBE “set aside” program. Program invloving race criteria requires close scrutiny, but Congress deserves appropriate deference even where legislation implicates fundamental rights bc of their special power under sec 5 of 14th to enforce EP. Objective to end prejudical practices is w/in congressional power bc they regulate state action in use of fed funds. Means must be narrowly tailored. (ii) Croson: Based on Klutznick decision, city applies MBE program. R: city may not adopt set-aside MBE program absent a showing of discr’m by city/ contracting industry.

VI. State Action Any DP or EP case under the 14th, must be premised on state action! Similarly, 5th applies to fed’l action.

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