DISTRIBUTION OF NATIONAL POWERS Executive Authority

STEP 1: WRITE THIS: Art 2- Executive power shall be vested in a Prez that he shall take Care that the Laws be faithfully executed and that he shall be Commander in Chief of the Army and Navy of the US (but Congress has a role in regulating armed forces). Purpose of Separation of Powers: promotion of efficiency and accountability (through a strong executive), prevention of tyranny by separating the creation of law from the enforcement of law and by making sure one branch doesnt get too strong and have too much power.. The President has no right to make laws, he may only carry them out. Prezs power to issue an order must stem either from an act of Congress or from the Const itself (Youngstown). Jacksons zones of presidential authority- Presidential powers fluctuate in 3 categories, although this is not spelled out in Constitution. (Youngstown concurrence) STEP 2: Does the Constitution or Congress expressly grant the executive branch the power? IF YES President can act b/c his power is at a maximum. IF NO Justice Blacks formalist approach would say that the Prezs action is unconstitutional if not expressly enumerated in Constitution or contained in Congressional legislation. STEP 3: Apply categories from Jacksons concurrence (1) Has Congress spoken on the issue at all? Categories from Youngstown lis concurrence which Ct adopts in Dames & Moore: 1. Maximum Power: when President acts pursuant to express or implied congressional authorization. 2. Moderate Power: when Prez acts in the absence of either a congressional grant or denial of authority, he is said to be in the Zone of Twilight where he and Congress may have concurrent authority or in which its distribution is uncertain. Where Congress remains silent look to (a) statutory language in related legislation (broad or narrow in scope)(b) subsequent congressional acquiescence; (c) look at history, is this an area where the President has traditionally had broad power? Silence could mean implicit approval if in furtherance of Congressional silence, (Dames and Moore) or expresius uniusif they specified other stuff and didnt include this, it could mean implicit disapproval, Look at circumstances to see if it is ok 3. Lowest Power: Where President acts in direct contradiction to the express or implied will of Congress, Presidential power is at its lowest and the court should strictly scrutinize Presidential action. (ex. Steel Seizure) President is disobeying a federal law and such action are only permissible if the law enacted by Congress is unconstitutional. Look at the history here. If in this category, act needs to withstand heavy scrutiny or else is will be held unconst. STEP 4: Is it a matter of foreign affairs? In a matter of foreign affairs, Prez enjoys a large amount of discretion- Curtis Wright. As opposed to domestic affairs, foreign affairs concerns are more sympathetic and deferential to President since the Prez needs to speak with a unified voice to avoid embarrassment and President is more knowledgeable in this 1

area. Dames & Moore said, in a matter of foreign affairs, Prez can take actions not authorized by Congress or enforce laws Congress has not passed Dames & Moore-Carter froze assets and blocked removal or transfer of all property in the gov of Iran. Ct applies Youngstown categories and says Congress has implicitly sanctioned the Prez to do this (was silent on the issue and it means there was implicit approval and this is a case of foreign affairs).

Executive Privilege STEP 1: WRITE THISThe so-called executive privilege is a Presidents qualified right to w/hold confidential 411 from the other branches of government relating to the performance of her duties. It is qualified, b/c it is justiciable (subject to judicial review). It is the province of the Court, not of the President, to decide the scope of the privilege, Marbury. Examples: 1. US v. Nixon the need for 411 in a criminal prosecution outweigh Presidential desire to keep that 411 private by invoking executive privilege. 2. Cheney the need for 411 in a civil prosecution does not carry the same urgency, and doesnt trump the privilege of the executive to w/hold 411. Especially where the nature of the suit, itself is a fishing expedition for possible violations of law (as opposed to requests to substantiate actual claims of violation) Note: Presidents try to invoke the privilege as minimally as possible, and the Courts uphold invocation minimally.

Legislative Authority
STEP 1: WRITE THIS: Separations of powers not expressed in the constitution but there is a notion of strong, independent branches of government, but also a notion that they should not be too independent b/c the branches should exercise checks and balances on each other. The president executes the law, congress makes the laws, and the judiciary interprets the law. The purpose of separation of powers is to promote efficiency and accountability and prevent tyranny from other branches getting too strong and having too much power. STEP 2: Was Congresss action legislative or executive? (argue both!) 1) Look at whether: The act seems legislative given the presumption of legislation when Congress is acting. The exercise of authority will affect the legal rights of individuals? (e.g. deporting Chadha = leg) An alternative means for achieving the result exists (e.g. a private bill) The act has overruled the decision of a member of the Executive (e.g. Attorney General in Chada) Congress is acting through an agent. If Legislative Step 3 STEP 3: When Congress acted, was there bicameralism and presentment? When Congress acts, must meet 2 requirements to avoid (1) violating SOP, & (2) tyranny, Chadha. 1. bicameralism: passage of bill by both houses 2. presentment: bill must be presented to Pres for it to be signed or vetoed 2

If no B&P, Congress is violating SOP and infringing on Executive power Exception where the Constitution expressly provides that B&P is unnecessary: Impeachment Executive Appointments Treaties INS v. Chadha stands for the proposition that a Congressional reservation of a one-house veto is unconstitutional b/c Congressional action requires bicameralism & presentment. Functionalism argument: the one-house veto had the same effect as the old systemone house voting no (vetoing) is the same as both houses voting no, or one voting no and the other yes. Ask : Is this promoting accountability? STEP 4: Is it a legislative function being delegated by Congress? 1) Congress can delegate power as long as it is not delegating it to itself (Bowsher). No congressional self-aggrandizement allowed-Congress cannot try to take away executive authority to make itself stronegr. Argue both formalist approach and functionalist approach. a. Formalism (Burger) Branches must strictly adhere to the powers granted so if its a legislative function being delegated by Congress which will not be subject to bicameralism and presentment, the delegation is unconstitutional according to the Art 1, Sec 7. (Chadha: legislative veto is unconstitutional because it violates the 2 requirements for legislation. A report and wait provisions would be ok though. Ex. Bowsher- executive authority b. Functionalism (White) This approach gives fidelity to the purposes of the separation of powers and it only find a violation if one branch aggrandizes its power at the expense of another or if there is a radical redistribution of power. If not, than delegation is OK. Ex: Morrison.: No aggrandizement b/c the original legislation delegating the power was approved through bicameralism and presentment, and Congress retained a check on the legislation through a one-house veto). STEP 5: Is Congress appointing or removing an officer? A. Appointing- Appointment Clause (Art 3, Sec 2) gives the Pres, not Congress, the power to appoint principal federal officers. 1)Principal officers- must be appointed by Pres with the advice and consent of Senate. Ex. of principal officers. members of Cabinet, ambassadors, federal judges 2) Inferior officer-Congress can appoint them. Ex. of inferior officer- special prosecutor (may be removed only for cause). Too see if it is an inferior officer, see if its duties are limited in purpose and time- must be for it to be an inferior officer. Exec branch will be denied power to appoint and remove inferior officer even when the appointment is related to purely executive power- this is bc AG has the power to remove, not the Prez. (Morrison) 3

Note: Morrison accepted some inter-branch appointments, but not appointments by Congress.

B. Removing-Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws, except by impeachment. The exec branch may be deprived of the power to remove an inferior office if the appointment was related to purely executive power. Ask if Congress retain the right to remove an executive officer? If yes, this converts that officer into an agent of Congress, and legislative officers cannot perform executive functions. Bowsher-Comptroller general was part of the legislature since he can be removed by Congress (since Congress does not have the power to remove an executive officer) and was doing executive powers so it violated separation of powers.

STEP 6: Did this have to do with war? Art 1, Sec 8: Congress shall have the power to declare war, to make rules concerning captures on land and water, to raise and support armies, to provide and maintain a navy etc. Unconst if Prez is declaring war. Art 2, Sec 2: Prez shall be the commander in chief of the army and navy of the U.S.

SoP & Terrorism

Hamdi v. Rumsfeld Facts: Hamdi, US-born, was captured by Northern Alliance and suspected of fighting w/ the Taliban. Issue: What is the power of the executive to retain a citizen as an enemy combatant? Arguments: Government: Holding citizens as enemy combatants falls w/in the powers delegated to the President to prosecute wars. Furthermore, President is acting at the height of his power as Congress has authorized the detention. Under these circumstances, the judiciary should restrain itself from intervention in individual determinations. Hamdi: Presidential actions are generally subject to judicial review, Marbury, Youngstown. Writ of habeas corpus renders all detentions subject to judicial review.Detention based on classification as an enemy combatant. Thus, he has the right to appeal that determination to the open courts. Opinions; Plurality (OConnor, Rehnquist, Kennedy, Breyer): Detention is authorized. Problems with the executives position: (1) U.S. citizen can be an enemy combatant, but he has the right to the writ of habeas corpus. Entitled to the opportunity to present evidence to say that he is not the enemy combatant. Even if the government has the authority to hold enemy combatants, that is not him Justice OConnors scheme: (1) Procedure: Rebuttable presumption is okay. Hearsay evidence is okay. (2) Evidence: Mobbs report (Hamdis details of where he was captured) not enough to show that he is an enemy combatant Hamdi must be allowed to rebut the Mobbs report Hamdi has the burden to prove he is NOT an enemy combatant. (3) Tribunal has to be a neutral tribunal, but could be a military tribunal. Souter, Ginsburg: AUMF doesnt empower exec. w/ detention authority here Scalia, Stevens: Make a distinction b/w aliens and citizens vis--vis enemy combatant. B/c he is a citizen, the government must either (1) put him in the CJS, or (2) suspend the writ of habeas corpus. Congress has not suspended the writ AUMF not explicit enough to serve this purpose. The plurality is on shaky ground in w/ its fix-it mentality, trying to make everything fit. 4

 Thomas: This is an executive decision, most important role he has is defending the country

10th AMENDMENT LIMITS ON NATIONAL GOVERNMENT

STEP 1: WRITE THISThe 10th amendment provides that "the powers not delegated to the United States by the Constitution, nor prohibited by it, are reserved to the States respectively, or to the People." This Amendment today seems to limit Congress ability to regulate the states. STEP 2: Is Congress passing a generally applicable law? IF YESnot infringing on 10th amendment. Cite Garcia which involved generally-applicable law under ISC theories that applied to all parties where the states were treated the same as private parties. IF NO Cite Garcia-Protection of states comes from Congress and not from the Courts. Congress can regulate state and federal gov. It is not the role of the cts to interpret the Const. very deferential to Congress. Cite NY v. US, when Congressional action applies to the States as States (not generally applicable Note: The fact that the regulation affects the states has virtually no practical significance, and the 10th amendment never comes into play. If the regulation would be valid if applied to a private party, it is also valid as to the state. 1) See if Congress is commandeering the states- The 10th amendment prevents Congress from interfering in certain ways with a states law-making process. Congress can regulate but may not "commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program but can encourage them by giving them incentives. N.Y. v. U.S., ex. conditional spending might be a way to commandeer 2) See if there is an accountability problem: When the federal government compels states to regulate, the accountability of both states and federal officials is diminished. Congress cannot escape political heat for unpopular decisions by forcing state officials to make those decisions. 3) See if Congress is compelling an executive branch to perform functions- Congress may not compel a state or local governments executive branch to perform functions, even ones that are ministerial (easy tasks, no discretion). Printz v. US

COMMERCE CLAUSE
STEP 1: WRITE THIS: Art 1, Sec 8: Congress shall have the power to regulate commerce w/ foreign nations, tribes, and among the several states. It also has the power to pass legislation that is necessary and proper (useful not absolutely essential, McCulloch) Gibbons v. Ogden: The Federal commerce power reaches only interstate commerce, not activities wholly w/in a given State. Regulation of wholly intrastate commerce is reserved to the several States by the 10th Amendment. Congress cannot legislate if actions: (1) are completely internal to the state, (2) do not affect other states, and (3) do not require Congressional regulation STEP 2: Does commerce power reach this activity? See if it is intrastate or interstate activity: The Commerce power reaches three different types of activities: a. Channels of ISC (Darby, Gibbons) - highways, waterways, air traffic, hotels - Congress can regulate this even if the activity seems quite intrastate b. Instrumentalities of ISC (Heart of Atlanta- regulation of people, Darby-minimum wage) - Things used in carrying out commerce: ex. railroads, ferries, machines, people (hours and wages). - Congress can regulate this even though the threat may come only from intrastate activities c. Activities that have a substantial effect ISC (Wickard) Case comparisons: If it is the beginning of a stream of commerce cite NLRB v. Jones- Manufacturing is just the beginning of a stream of commerce. The activity that Congress wants to regulate may occur substantially before the interstate movement or long after the interstate commerce. Congress can regulate anything as a means to end of regulating interstate shipment of goods. If motive and purpose are being considered cite US v. Darby- Says motive and purpose are no longer considered. Expanded ISC to touch intrastate activity that substantially effects ISC, as long as it does not violate the Const. If Congress doesnt regulate it, there might be a coordination problem cite US v. Darby, ex. hard to make a minimum wage in one state if other states dont have one, would lead to a race to the bottom and unfair regulation. If Congress is posing conditions on an activity that substantially affects ISC US v. DarbyCongress can impose whatever conditions it wishes upon the privilege of engaging in an activity that substantially affects ISC, so long as the condition does not violate the Const. Congress can regulate anything as a means to end of regulation of ISC. STEP 3: Is the activity commercial? IF YES If the activity is a commercial/economic transaction, then it doesnt matter whether the particular instance of the activity directly affects ISC as long as the instance is part of a general class of activities that collectively have a substantial effect on ISC. Wickard says that even if activities are local and not regarded as commerce, government can still regulate them if they have a substantial effect on ISC. The cumulative effect theory says that Congress can regulate not only acts taken alone which would have a substantial economic effect on ISC, but also an entire class of acts that would have a substantial effect on ISC so you can aggregate the effects. Broad interpretation of ISC. 6

Wickard v. Filburn- Government set quota for wheat, and said that even though this seems like intra state activity, there is a cumulative effect if people dont followwheat prices will increase and affect commerce. Because Congress can regulate an entire class of acts and can aggregate the effects of local activities, it has broad authority under the Commerce Clause concerning commercial activity.

IF NO No aggregation Lopez- Congress overreaches it Commerce Clause authority when it seeks to aggregate the effects of non-commercial activities to justify it actions, Lopez. Lopez which sought to control guns in schools, is distinguishable from Wickard in that the purpose of the Lopez regulationcontrolling guns in schools was a non-commercial activity. Also, crime is traditionally left to the States Morrison- Cant aggregate non-commercial activity, Congress cannot broadly regulate violence against women. Usually a state area or regulation. Raich must involve economic activity somehow, but there are many ways to classify economic activities (i.e. broaden leg. scheme). (Congress had rational basis to find production of weed meant for home consumption could have a subst. effect on Supply and Demand in national market for weed) IF NO Look at these to see if there is a substantial effect on ISC even when its not economic . 1) Need a Jurisdictional element-an obvious connection b/w the activity and ISC for Congress to be able to regulate it. Have to prove that the affected item of commerce has passed through ISC. If no jurisdictional element, this is not fatal to the act but it is harmful. Ex: Lopez- needed to show that an element of the crime of having the gun at school is that the gun had passed through ISC, could not do it b/c it is tough to prove something substantially effects ISC if it is not commercial). 2) Legislative Findings: Just the existence of findings or history of substantial affect on ISC is not sufficient to prove its const, but it is helpful. Ex. Morrison, Lopez. 3) Rationality Test: from Heart of Atlanta. Congress must have a rational basis for finding that this activity substantially relates to ISC & the means selected to achieve the end must be reasonable. Heart of Atlanta- expansive view of CC, hotel discriminating against people impedes interstate travel instrumentalities of commerce so Congress can prevent hotel from discriminating since commerce is adversely effected when people have no place to stay. Motive doesnt matter as long as is it substantially related to Commerce Other considerations: 1) Is this regulation an area of traditional state concern? This is important because we do not want to blur lines of political accountability. Crime, family law, and education are traditional state or local concerns- Lopez. However, these can be outweighed by showing that a national solution is needed and that one states choice heavily affects other choices. 2) Should we give deference to Congress- motive is irrelevant. Even though a motive may seem suspect, Ct will not interfere as long as the CC is applicable 3) Is this a national necessity? CITE NECESSARY AND PROPER CLAUSE (Ex. States not doing a good job in regulating violence against women so there was a need for the national government to step in 7

but didnt become important in analysis of constitutionality of Act and effect in ISC in Morrison and it was still held unconst) 4) Is there a coordination problem? There is a legitimate coordination problem if this might frustrate the purpose of other states. In Darby, the Ct argued that without coordination, businesses would relocate to states without minimum wage/hour laws to give themselves an unfair advantage. Travel usually presents coordination problems, such as could go to neighboring state. If it would be difficult to regulate on state by state basiscoordination problem. 5) Is the act commandeering a State function? (NY v. US): Congress cannot commandeer the state legislative process to adopt a federal regulatory program via the CC. This violates the 10th amendment. This set limits on regulating states activities. See if the act is compelling or prohibiting state/local conduct. A) Exception: Generally applicable law that applies to states as well as individuals is ok and does not violate the 10th amendment. (Garcia). Cannot target only state/local action. B) Not commandeering if just applying federal law 6) Would it threaten Federalism and political accountability? If legislation blurs the line of political responsibility, then it may result in confusion as to whether to lay blame on the state or the federal govt. 7) Stare Decisis: judge could make argument that Lopez cannot be overruled.

SPENDING/TAXING POWER
STEP 1: WRITE THIS: Art 1, Sec 8 gives Congress the power to tax & spend. Its a fairly broad power that gives Congress the ability to condition the receipt of federal money by the States on their promise to spend it a certain way. IF GOV IS TAXING 16th amendment: Power of federal government to tax w/o limitation, gives tremendous authority to the national gov. Note: Congress can tax but cannot regulate. State cant tax the fed gov (McCullouch v. Maryland) IF SPENDING Independent power to spend- Congress has the power to spend for the general welfare or to further one of Congresss other enumerate powers Conditional Spending: Congress can give federal funds to the states with strings attached but there must be a close connection b/w the spending and the regulation. Congress can specify a condition but not a regulation. A regulation is valid only if its falls under delegated powers. STEP 2: If conditional spending, does spending meet these requirements? (from SD v. Dole) 1) Condition must protect the general welfare (Court is deferential to Congressional judgment w/ regard to what is necessary for the general welfare) 2) Condition must be unambiguous (Clear such that the States can make informed choices). 3) Condition must be related to the spending- spending must be related to a federal interest or national project or program and cannot be too broad (e.g. SD v. Dole- drinking age is related to highway safety, 4) No independent constitutional bar: Cannot coerce into unconst. conduct. Congress cannot use the money to circumvent the Const. States must have a choice. (you cant induce a state to do something that would be unconst). Other: 1) Doesnt matter if the regulatory impact of the spending/tax could be achieved directly by the use of another enumerated power. 2) Congress can condition funding on a states waiver of Sovereign Immunity STEP 3: Is Congress overstepping its bounds? 1) If there is coercive pressure compulsion. States must have a choice. Distinguish b/w encouragement and compulsion. 2) If lines of accountability are being blurred cant do it.

TREATY POWER
STEP 1: WRITE THIS: Art 2, Sec 2: The President has the power, by and with the advice and consent of the Senate, to make treaties provided 2/3 of the Senators present concur. Art 6: Treaties, current & future, under the Authority of the US, shall be the supreme law of the land. Missouri v. Holland (1920)- tells us that Treaty Powers are not limited by the 10th amendment and Congress can use the treaty power to regulate things which it could not by regular legislation STEP 2: Can Congress regulate through a treaty? Congress can regulate through a treaty as long as: 1) A state law that conflicts with a treaty is invalid. 2) Treaty cannot violate Const. 3) Treaty cannot trump individual rights (Reid v. Covert) 9

DORMANT COMMERCE CLAUSE (DCC)

STEP 1: WRITE THIS: Art 1, Sec 8- assigns the CC power to Congress The DCC applies when Congress has neither supported nor prohibited actions by the several States; thus, there is Congressional silence. The primary concern is how the judiciary ought to interpret this silence. The inquiry: WWCD? What would Congress do (have done) in this situation? The purpose: To prevent State infringement on ISC. STEP 2: Does the act regulate commerce? Heart of Atlanta- movement of ppl across state lines for economic purposes is commerce (but it regulated commercial activity). STEP 3: Is the law facially discriminatory against ISC? 1) Are there geographic requirements? If the law is geographically discriminatory, then there is a presumption of invalidity, City of Phil v. NJ (e.g.. restricted to Ga only, or 75% restricted to Ga.) Carbone stands for the proposition that geographical discrimination is essentially discriminating about state lines. 2) Are there in-state costs/benefits v. out-of-state cost/benefits? (ex. hoarding a local resource). If so, that is discriminatory. 3) Are out of state residents facially discriminated/subject to different treatment? If so, this would be interstate discrimination even if discriminating against all out of state parties or even if in state parties affected also, Carbone 4) Discuss Underlying Theories and see if they apply: Political: when a state impedes ISC, it is dividing our unity and creating political divisions. See if this could lead to balkanization bc you dont want to separate the state from the rest of the union. Economic: Court needs to step in and police the political process to keep states from imposing costs on other states. See if this could lead to costs on out of staters. Free trade- when states regulate, they interfere with the free market and everyone loses. See if this would interfere with regulation of free trade. IF YES per se unconstitutional 1) Requires the State to make a rigorous showing of no alternative to achieve this compelling/legitimate state interest, City of Philadelphia (It was based on need, not geography) Legitimate state interests: Facially discriminatory State actions are Constitutional ONLY IF they affect the health, safety, or general welfare (e.g. quarantine laws). If the State action affects ISC, but does not protect health/welfare, then this action does not fit w/in the quarantine exception, Maine v. Taylor. 2) Protectionists measures of states economic interests are unconstitutional b/c unduly burden ISC. Discrimination must be based on goods and not geographic origin. State cannot cost-export. 10

IF NO FACIALLY NEUTRAL If there is a legitimate state interest and its effects on ISC are incidental (a mere burden), then the law will be upheld unless the burden on ISC is clearly excessive in relation to the local benefits Balance the Local Benefits v. Burdens on ISC, City of Phil 1) Less deference will be given to the state legislature where the local regulation has a disproportionate effect on out of state residents and businesses or when there is a discriminatory intent/effect. 2) Protectionist legislation is unconstitutional under the DCC, even if its purpose is to promote safety rather than economic purposes. e.g. Kessel v. Consolidated Freightways (the Iowa truck case). States purpose for regulating is to protect the safety of its citizens (facially neutral). Thus, applied balancing test. This is a burden on ISC bc these trucks would have to go on backroads and would cost companies a lot of money to get new trucks and no real safety benefits so benefit does not outweigh the burden. STEP 4: Does market participant exception apply? 1) If the State is a market participant, then it appliesaction is not presumptively invalid. As a market participant, the State, like any private industry, is permitted to show favoritism to in-state citizens. State University common example of State as market participant State can choose to whom they want to sell a product they manufacture o e.g. Reeves upheld law that prohibited the sell of governmentally produced cement outside the State. Distinguished from the trees in South Central Timber in that cement, unlike trees, is not a natural resource and required the expenditure of capital and labor to produce. State can choose who works on its product. o e.g. White upheld law that mandated 50% of employees working on a city construction projects had to be local residents. 2) Exceptions to Market Participant Exception (When State is acting as market regulator) Regulation cannot be too downstream if it is, then it is unconstitutional. Ex. South Central Timber. Downstream regulation occurred when the state tried to control what happens to timber (processing) after it was sold. Look for the state doing something else after the fact. (ex. regulating subcontractors instead of employees is downstream). Restrictions on foreign commerce-state restrictions on foreign trade are subject to stricter scrutiny. Federal govt must regulate commerce with foreign nations. MPE does not apply to natural resourcesunconst (South Central Timber- natural resource.) Can only hoard if state is investing capital and labor in manufacturing a produce. Cant affect related markets- state can affect the market it participates in only. Ex. South Central Timber: state is a market participant in the sale of timber but not the processing of it and all export of timber was banned. Definition of market needs to be narrowly defined as only encompassing initial act of selling not all steps to follow.

11

DPCFA
14th Amendment: No state shall deprive any person of life, liberty, or property w/o DP of law. The Bills of Rights (fundamental rights) places limitations on the power of the Feds. DPCFA incorporates limitations to the several States. STEP 1: Is there a fundamental right implicated in the act? Fundamental rights are those that are deeply rooted in this Nations history and tradition. 1) Textual argument Even though there is no explicit grant of a privacy right in the Constitution, Griswold holds that privacy rights are embodied in the penumbra of the 1st, 3rd, 5th, and 9th amendments. 2) Precedent based argument? I.e. cases involving privacy or autonomy. Especially relevant in cases involving: marriage, bearing children, raising children, declining med treatment Griswold, Eisenstadt, Roe, and Casey: right to sexual autonomy as a means of self-definition. Griswold: Unconstitutional to prohibit use of contraceptives b/c of fundamental right to privacy. This is about the sacred precincts of marriage Eisenstadt: Unconstitutional to prohibit sale of contraceptives to unmarried persons. Right to reproductive autonomy now exists even in non-private situations (outside of the bedroom) Roe: Fundamental rightt to privacy includes right to choose. Right is qualified by a State legislation that is narrowly tailored to serve a compelling State interestthe bar or restriction is so narrowly drawn that it fulfills only the State interest and does not reach more. Casey: Abortion is no longer a fundamental right and restrictions on it are no longer to be strictly scrutinizedmust analyze under the Undue Burden Test o if it is not related to a substantial state interest or if it is too limiting on the womans right, even if there is an interest, it will be an undue burden. Can require informed consent, info by dr. and 24 hour waiting period, but cannot require husband notification. o State can regulate ban abortions post age of viability if it includes an exception for the health of the mother. West Coast Hotel- overruled Lochner. No fundamental right to contract. State can protect freedom of oppression as wells as health, safety and morals. o Law imposing minimum wage for is valid b/c it protects their freedom from oppression. Sternberg: partial-birth abortion (post-viability) bans must include an exception for the health of the mother lest it serves as an undue burden. Lawrence: overruled Bowers. Right to autonomy & privacy are fundamental. Bowers asked too narrow a question- if there was a right to homosexual sodomy. o TX statute criminalizing only homosexual sodomy unconstitutional b/c it furthers no legitimate governmental interest.. Zablocki: fundamental right to get married, such that a law prohibiting marriage by persons who owe back child support is unconstitutional. (This case combined w/ a few others makes the prohibition against homosexual marriage hard to uphold). Washington v. Glucksberg: decisions related to autonomy do not necessarily implicate fundamental rights. No fundamental right to assisted-suicide or to commit suicide. Cruzan: Fundamental right to refuse unwanted medical treatment. If the right to bodily integrity means anything its the right to choose whether to undergo a given medical procedure. Does extend to situations where death will occur in the absence of the treatment o Where person is in a PVS, the family can decide to refuse medical treatment on her behalf if they can show by clear and convincing evidence that the decision is in accord w/ her desires. 12

3) Tradition- Is right deeply rooted in the nations history & tradition? Was it around in the countrys laws or customs when the 14th Amendment was adopted? If no specific tradition, try the general tradition of privacy and bodily integrity. o E.g. Abortion, suicide, & sodomy were illegal historically in the U.S. Thus, they lack a favorable tradition and were not expressly contemplated as being protected by the 14th Amend. But the penumbras inclusion of a right to privacy does enjoy such protection; those activities fall w/in privacy. Argue whether activity involving privacy. 4) Factors the Court usually considers when invoking the 14th Amendment: (1) marital relationship, (2)intimacy, (3) criminalization, and (4) unusual law STEP 2- Apply Strict Scrutiny for fundamental rights, and rational basis for mere liberty interests STRICT SCRUTINY: For governmental action to be constitutional w/ regard to limiting a fundamental right, the action must be narrowly tailored to promote a compelling State interest. Interests related to the police power are compelling State interests, Lawrence o Morality is could be a compelling State interest, IF it doesnt intrude too deeply into the private lives of individuals, Lawrence Narrowly Tailored o Over-inclusiveness: burdens a group w/o advancing State interest (i.e. more than necessary). o Under-inclusiveness: fails to burden a group that would advance State interest o Alternatives (i.e. least restrictive means) of finer calibration are indications that Act is NOT narrowly tailored. RATIONAL BASIS: For governmental action to be constitutional w/ regard to limiting a fundamental right, the action must rationally related to a legitimate State interest. Difficult to strike down a law as unconstitutional under this test. Morality is always a legitimate State interest. UNDUE BURDEN (abortion): For statute to limit right to abortion, it must not impose an undue burden on the womens access to the procedure Casey, abortion is not a fundamental; thus, all abortions, pre- and post- viability, are subject to the test Statutes restricting abortions pre-viability are more suspect as constitutional violations than post Examples of constitutional restrictions: (1) informed consent requirements, (2) mandatory 411 about alternatives, 24-hour waiting period Unconstitutional restrictions: (1) total bans pre-viability, (2) total ban post- w/o exception for mothers health, (3) consent of/notification to husband STEP 3: Does the statute commandeer the regulatory apparatuses of the several States? Congress cant commandeer States regulatory functions; act must pass constitutional scrutiny, NY v. US. STEP 4: Congruence and proportionality 14th Amend, so apply Boerne (p.15-6)

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EPCFA
nor shall any State make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the law. Reverse incorporation: EPCFA applies to the Federal Government by way of the Due Process clause of the Fifth Amendment. Congress lacks authority to outlaw private discrimination; EPCFA applies only to State actions. STEP 1: Is the State classification involve a suspect class? Suspect Classes: race, ethnicity, national origin, color creed Quasi-Suspect: gender (p. Special (not sure what to call it): sexual orientation (p. 2 1) Whether the class is suspect depends on: Text o Never b/c it doesnt mention race or gender History of 14th Amendment o Framers had race in mind, as its purpose was to protect African-Americans (race) by striking down explicit racial discrimination. o Nations history plagued w/ invidious race discrimination Problem of stigmatizing or creating a caste system b/c the characteristic about which the classification is made is (1) immutable and readily identifiable o Immutable traits (unchangeable) require protection b/c those w/ the characteristic can do nothing to change it. o Identifiable minority the characteristic creates a class b/c it is so readily identifiable Concerns about the political process o Prejudice undermines the political process and makes democracy fail. o Where other groups have historically refused to form coalitions w/ a given group b/c of their common characteristic, that group needs protection in the political process, lest their minority voices fall silent. Race is a discrete and insular minority STEP 2: Apply appropriate Standard of Review (apply both if unsure) IF NOT RATIONAL BASIS (applies to wealth, age, disability, mental retardation-Cleburne) Rational Basis Typical legitimate governmental interest is an exercise of the police power Often a means-end analysis. State usually wins b/c of judicial deference. o Law that discriminate against an identified class need only be rationally related to a legitimate State interest if that class is not suspect Considerations: 1) What prompted passage in the first instance (i.e. what is the real purpose)? 2) Harp on the deference afforded legislative action under rational basis scrutiny a. When Congress identifies a problem, it is up to that body to determine the contours of the problem and the appropriate remedy, Williams v. Lee Optical 14

b. One step at a time. Congress need not address an entire problem at once. It can ban activities piecemeal. Counter argument to you dont allow X, but you do allow Y c. Special interest legislation is irrelevant. It is not the province of the court to support a class who has lost a legitimate legislative battle (e.g. tobacco lobbies). 3) It is the Legislative Branch, not the Judiciary that is accountable to the people. a. If Congress makes the wrong decision, the political process will sort it out. b. Problematic argument when Congress discriminates against a class w/o political power. Certain groups cannot find protection in the legislative process (discrete &insular minority) 4) Must have a rational basis. a. Cleburne: Statute required group home for the mentally retarded to get a special permit. FAILED rational basis review b/c it was under-inclusive and lacked any relation to a legitimate governmental interest. b. Protection from mere prejudice is not a legitimate interest (reasons why ordinance is invoked is so absurd that they are obviously prejudicial) 5) Is the rule over-inclusive? Discuss less restrictive means 6) Is the rule under-inclusive? May be irrational if a more finely calibrated rule exists, BUT this is particularly susceptible to the one step at a time argument. a. Beazer exemplifies constitutional State action notwithstanding both over- and underinclusiveness: NYCTA prohibited employment of persons using narcotics, including methadone (drug for recovering heroine addicts); methadone users are not a suspect class. Its important to decision that administrative costs to make a tighter-fit classification would be very high. Strict Scrutiny Analyze the actual purpose. Government bears the burden of showing that a compelling interest cannot be established though less restrictive means. For action to be repugnant to constitutional based on strict scrutiny review, the classification must have disproportionate effects b/c of the classification, not in spite of it. That is to say, unintended and incidental effects on suspects classification w/ survive strict scrutiny, Washington v. Davis. 1) Is it race specific and facially discriminatory against insular minorities? When there is facial discrimination or race specific legislation then there is a presumption of discriminatory purpose. You dont have to show an actual discriminatory impact, the risk of discriminatory impact from a facially discriminatory law is enough, Strauder Korematsu: Court applies strict scrutiny and upholds law placing Japanese-Americans in camps b/c the law was narrowly tailored (too difficult to separate the loyal from the disloyal, so put them all in camps) to promote a compelling State interest (national security). o The last case in which a racial or ethnic classification survived strict scrutiny. 2) Is it race specific but facially neutral? No specific proof of discrimination needed If yes, go to Step 3, Narrowly Tailored Analysis Rationale for applying strict scrutiny to facially neutral law o Bade of inferiority if race-specific o Creates potential for creating a caste system once we classify by race and separate o Separate is inherently unequal o Lesser standard is too easy to pass given the high cost of a racially stratified society Cases 15

o Brown: Segregation in schools unconstitutional. Separate schools are unequal b/c the purpose of segregation is to subordinate African-Americans to Caucasian-Americans; violates EPCFA. o Loving v. Virginia: law criminalizes marriage b/w white person and non-white person is unconstitutional. Despite equal application to all races, the purpose to protect the alleged superiority of the white race (emphasis mine). 3) Is it facially neutral and not race specific? Must prove a discriminatory purpose/intent to pass strict scrutiny where racial classification is absent; exception for voting restrictions) While mere disparate impact passes strict scrutiny, facial neutrality is not a shield, Yick Wo o Yick Wo: facially neutral statute pertaining to permits to operate cleaners had an overwhelming negative impact on Chinese-Americans on the left coast o Washington v. Davis: DCs requirement that applicants to the police pass a literacy test passes strict scrutiny despite the disparate numbers in passage rates b/w Caucasian-Americans and African-Americans, especially where police force had policies in place to attract minority applicants. (disparate racial impact is important but never solely sufficient to prove discriminatory intent) Discriminatory effects are insufficient b/c of slippery slope. Many State actions have a disparate impact. EPCFA provides for equal opportunity, not equal results. Proving purpose: o Effects on suspect classes (relevant but not dispositive) o Statistics E.g. McKleskey: Victims race impacted imposition of the death penalty. Although death penalty law is facially neutral, its application has a racially disparate impact. Nonetheless, its constitutional b/c it was applied in spite of race, not b/c of it. Thus, no established purpose apply rational basis review. o Classification adopted because of its effects on a suspect class (purposeful discrimination= heightened scrutiny), not in spite of effects on suspect class STEP 3: Is it narrowly tailored? Cannot be over- or under-inclusive o Over- discuss less restrictive alternatives o Under- discuss unburdened group whose inclusion would further the compelling interest STEP 4: Is act congruent and proportional? 14th Amend, so apply Boerne (p.15-6)

Affirmative Action & EPCFA

STEP 1: APPLY STRICT SCRUTINY Purpose of 14th amendment is to remove the huge blemish on the face of this great nationracial discrimination. Croson stands for the proposition that all affirmative action programs that classify on the basis of race are subject to strict scrutiny, even if they are designed to remedy this nations discrimination against minorities, namely African-Americans. Adarand stands for the proposition that strict scrutiny to Federal & State governments. STEP 2: 16

A race-conscious affirmative action plan must be adopted for the purpose of furthering a compelling governmental interest, and the racial classification must be necessary (no racially neutral alternative) to achieve that interest.

STEP 3: What constitutes a compelling governmental interest? 1) Remedying past general societal discrimination is not a compelling governmental interest, Croson. 2) Remedying past specific discrimination by State actor is a compelling governmental interest, Croson Must show specific, identifiable & current discrimination Can use stats, but have to use the right ones (comparisons b/w whole & local pops insufficient) o Must be clear and convincing Objective must have a close nexus w/ undoing past discrimination trying to balance the work force (render minorities more economically successful) is not a tight enough fit. 3) Diversity in higher education is a compelling State interest, Bakke Quotas are NOT ok, but giving bonus points to minority applicants is fine, as long as the bonus is too large. Redressing clear past discrimination and the pursuit of diversity in the student body are the only things that pass strict scrutiny, Grutter Make the argument that the classes percentages tend to be the same annually (e.g. Latinos comprise 13% of every class) and thus, the school effectively operates w/ a quota STEP 4: Is the remedy narrowly tailored to achieve this interest? 1) Are viable (versus arbitrary) race neutral alternatives available? 2) Have they been considered? 14th Amend, so apply Boerne (p.15-6)

Gender & EPCFA

STEP 1: Sex-based classifications receive intermediate scrutiny, Craig v. Boren. Intermediate scrutiny requires that the intentional classification is substantially related to an important governmental interest. 1) History: 14th Amendment-there is nothing in the text or context. Purpose was to address race. But past discrimination of women does exist. 2) Stigma: there are both immutable and identifiable characteristics. Lesser treatment was based on physical differences and perceived physical inadequacies, which led to a caste system. Well, gender might not be so immutable these days, but it is outside the States authority to demand one change her gender. 3) Political Process: technically women are not a minority in the electorate and women are not a minority and they are not discrete and insular. 4) Benign as well as invidious: The same standard of review is used whether the sex-based classification is "invidious" (intended to harm women) or "benign" (intended to help women, or even intended to redress past discrimination against them), Michael M 17

5) Stereotypes: Legislatures are permitted to pass laws if real differences b/w genders are involved, but not based on stereotypes alone, Craig v. Boren (either gender can attack classification) STEP 2: Apply Intermediate Scrutiny US v. VA VMI cant exclude women on the theory of building a citizen soldier when (1) genderneutral alternatives exist to achieve the same goal, (2) the State doesnt provide an equal alternative for women. The governmental interest is building a citizen-soldier, not using the tactic that was effective in a male-only environment. Craig v. Boren Statute prohibiting men under the age of 21 from purchasing 3.2% beer, but not women in the same age bracket was passed to ensure traffic safety b/c 10x more men than women in that age bracket were involved in traffic accidents. Court said that the statute was not substantially related b/c (1) it was over-inclusive, (2) the amount of accidents of that age group compared to all accidents was de minimis, (3) the DUI stats may have been unreliable due to evidence suggesting women were convicted less just for being women. Michael M. Statutory rape law applied only to men who had sex w/ women under the age of 18. Court upheld the statute b/c true differences existed b/w the genders: (1) women, not men are the ones who get pregnant, (2) women have a natural disincentive, State can create an artificial one for men, (3) wanted to fix teenage pregnancy and the subsequent taxation on the State welfare system. Note: Non-marital children get intermediate scrutiny also (children whose parents are not married to eachother) 14th Amend, so apply Boerne (p.15-6)

Sexual Orientation & EPCFA

STEP 1: Should homosexuality be a suspect classification? 1)Text nothing in text of 14th amendment that says no discrimination based on sexual orientation 2) History it was not a special concern of the 14th amendment like race, there is a history of discrimination against homosexuals though it makes it more likely to get heightened scrutiny. 3)Immutable immutable b/c one cant change ones sexual orientation. Even if one could change, the government wholly lacks the authority to impose such a onerous burden on a citizen. 4) Identifiable Notwithstanding the sixth sense that many homosexuals and allies coin gaydar (the intuition to know when another is gay or lesbian), sexual orientation is not per se identifiable. Indeed, many homosexuals are in the closet and share their sexual orientation w/ no one. Nonetheless, a groups lack of ready identifiableness should not exempt it from governmental protection, especially when the government acknowledges that such a group does in fact exist. 4)Stigma/Caste While the ability to hide ones sexual orientation may reduce the likelihood of stigmatization, the discovery of the same could reject one to second class citizenship (e.g. known homosexuals are barred from adopting children and FL, and homosexuals generally are barred from marrying in all States save Massachusetts). 5) Political Process Issues Although they arent a discrete and insular minority, homosexuals are susceptible to alienation in the political process due to refusal of others (read narrow-minded heterosexuals) to coalition build. On the other hand, this might be fallacious argument considering (1) 18

best estimates place the homosexual population at 10% of the total, and (2) despite this significant minority, many State governments afford homosexuals some rights and protections. Say that arguably, discrimination against gays and lesbians should receive strict scrutiny b/c of discrimination, representative-reinforcement argument (they might be a discrete and insular minority). Nonetheless, the supreme court has not extended the suspect categorization to homosexuals. STEP 2: Rational Basis Review Although Bowers ruled out suspect classification when it upheld a GA law that outlawed homosexual sodomy, Lawrence overruled that decision stating that the privacy right includes the ability to engage in intimate consensual acts, even homosexual ones, w/o the stigma of State condemnation. Romer v. Evans stands for the proposition that classifications concerning homosexuals are subject to rational basis review. But the standard appears to be stricter in applicationrational basis w/ bite, if you will (Scalia, J. dissenting) It affords homosexuals a good deal of protection purpose cannot be arbitrary, unreasonable or pretextual A bare animus to harm a politically unpopular group is not a legitimate State interest. Mere moral antipathy to a particular conduct is not a legitimate State interest b/c morality, alone, is not a legitimate State interest. The people cannot subject the rights of a politically unpopular group to a vote Maybe if the CO referendum were a result of a Kulturkampf and not, in fact a fit of spite, then the Goodrigde: Massachusetts decision that stands for the proposition that a ban on same-sex marriage does not further a legitimate governmental interest. STEP 3: Would it pass strict scrutiny if it were applied? 14th Amend, so apply Boerne (p.15-6)

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