The Supreme Court of the United States has the authority to review laws and legislative acts to determine whether they comply with the United States Constitution. 

The power for the judiciary to declare a law unconstitutional 

Marshall chief justice - established the authority to review congress laws and raised the Sup Ct to a co-equal branch of Gov. 

The Supremacy Clause gives federal courts the power to review state court decisions that interpret federal law or the Constitution

States are not an equal sovereign to the US

DC laws do not trump national law or the constitution, even though DC is separate entity to fed or state government. 

Handgun ban of DC violates second amendment.  

New FDIC law by congress required courts to reinstate cases that were dismissed based on Sup Ct ruling in 1991 that created statute of limitations on Securities law violations.  District courts denied motion saying that FDIC rule requiring reinstatement of cases was unconstitutional.  

District courts were correct, congress cannot order courts to re open closed cases - violates separation of powers.  New FDIC law was unconstitutional because congress tried to overrule a Sup Ct ruling. 

Tax exempt status to discriminatory schools not revoked - do black parents have standing?

Yes standing on injury of discrimination, but not based on injury of not being able to attend deseg school.

However, did not have CAUSATION based on tenuous link re not enforcing IRS rules. Not enough if gov is not acting according to law - must also have cause and harm.  

dissent said that they did have standing based on injury of not being able to attend deseg schools

Can states sue EPA for not enforcing rules re cars cars emitting greenhouse gases?  Do they have standing? 

Injury is losing coastal land from rising seas - court said was imminent enough.  Causation was also found as was redressability, all of which are very debatable

STANDING requires injury (actual or imminent), prox causation, redressability (court can fix)

Case shows that Judges can see both sides of case - and sometimes crazy things come out of the court.  

Standing issue-no actual imminent controversy for getting choke hold again.  

The Court held that in order to establish an actual controversy, Lyons would have to show either 1) that all Los Angeles police officers always choked citizens with whom they had encounters, or 2) that the City ordered or authorized officers to act in such a manner. Lyons was thus limited to suing the police and the city for individual damages.

1) limitations on 3rd party standing - cannot assert someone else's right

2) prohibition based on general grievances like being a tax payer

3) zone of interest requirement - plaintiff must be intended target of the law that is being challenged. 

Drs bring case against the limit on abortions - do they have standing even though the "injured" party is the women?

Yes, because Drs are closely related interest to their patients, they are also injured in less income.  Drs. were an effecting proponent of the right.  Plus the Drs are better able to assert these rights - women don't want this public, etc. 

Similar situation if association can bring claim against its members even though the association is not injured. 

Richardson sued because CIA did not provide details of their expenditures - is this too much of a generalized grievance?

Yes, generalized - no specific injury to Richardson, provisional rule where it affects everyone, no specific claim of not following federal rules. 

If no one specifically is injuried, then the congress and political process can address

1) logical connection to $ spend

2) violates specific principle of constitution establishment clause (different than richardson gen injury)

Taxpayers sued related to fed funds going to religious schools - do taxpayers have standing?

Yes, must meet two requirements - 1) taxpayer must make logical connection to congress spending (not taxing in general or executive dept spending) and 2) violates a specific principle in constitution (establishment clause)

Ct law against birth control, was just a threatened law (no injury) not actually practiced.  Did not rise to the level of standing for sup ct ruling.  

Abbott labs was a little different - new law that would immediately cause high expense was enough standing to be heard by sup court.  (imminent injury)

"hypothetical" threats or seeking advisory opinions (Public workers cannot manage political campaigns)

Laws not enforced (contraceptive case)

New laws not yet enforced or taking effect (although this could go both ways - Sus B Anthony case re false statements in a campaign - ripe because "credible threat of enforcement" - or Abbott where "impact of law would be swift and direct". 

1) wrongs capable of repetition yet evading review (election laws where election is over before Ct can rule, Roe v Wade/pregnancy, but NOT for denial of admission to law school, etc.)

2) Voluntary cessation but where def can return to the offending behavior (Laidlaw and mercury pollution) - if cessation makes it impossible to return then it is moot

3) class action suits where litigation is resolved  for initiator (others represented by class in future will still need relief later) - NEED TO BETTER UNDERSTAND #3

Questions that cannot be answered by Fed/Sup Ct. 

Doctrine is based on separation of powers - either from language specific in constitution or b/c the other branches have superior expertise in the area (foreign policy questions)

When question can be better addressed by another branch executive or legislative branches of government (foreign policy, individual state election process). 

Political question doctrine case, normally would say that this is political non jurisdicatable question.  

Baker was republican, Carr Democrat.  TN law says districts redrawn every 10 years but were never redrawn- equal protection issue (not guarantee clause) because rural votes counted more than urban votes

Was allowed because baker was individual person suing state government, therefore no sep of powers issue.  

Established 6 rules to be non-justiciable political question

Text, tools Toes, III, prev decision

1. text in constitution clearly assigns to another branch
2. Lack of judicially discoverable and manageable standards to resolve (dont have tools to judge)
3. impossibility of deciding issue without making inappropriate initial policy decision
4. lack of respect for other branches of gov to resolve the case (stepping on toes of another branch)
5. an unusual need to adhere to a political decision already made (need finality to not re-try issue)
6. the potential for embarrassment for differing pronouncements of the issue by diff branches of Gov (foreign affairs example)

Gerrymander cases are nonjusticiable political question

PA democrat brings suit against Jubelirer saying PA gen assembly engaged in unconsititiional political gerrymander - reduction of US Reps by 2 due to census in 2000

Was non justicable because of rule 2 - no judicials standards to resolve the issue.

Powell was elected as a US rep for NY; House refused to let him take his seat because he falsified expenses. 

Is this a political, non judiciable question?  No

Constitution says "house may judge the qualifications of its members", nevertheless, Sup ct can rule because Constitution says expel members with 2/3rd vote. 

(kinda goes against constitutional text rule being non judiciable but leaves it to people/voting process)

OK to exclude not expel house members

Carter rescinded treaty agreement with Taiwan because of China pressure.  Treaty acceptance guided by Constitution, can President rescind unilaterally?  Is a this political question (Yes) - it is non justiciable. 

No standards  (tools) to govern this issue, constitution is silent re rescinding treaty (also said to be not ripe b/c no formal re-action done by Congress to challenge rescinding).  

(different than next case Zito vs Clinton foreign relations is not a political question and was addressed by Supct)

Nixon was Federal Judge convicted of Perjury and sentenced to prison.  Refused to resign his position, needed to be impeached by congress, senate created special committee to see facts, then voted on by whole senate.   

 Can Senate make special committee to review impeachment facts-is this a non-justiciable political question? (yes- Cts cannot address due to Con Text rule)

Constitution gives "sole" power to Senate to try impeachments and can do so as it sees fit.  And it would be the judiciary ruling on one of our own - violates separation of powers. 

Fed Congress may act If expressed or implied in constitution - article 1 section 8 

10 amendment says that powers not delegated to US and not prohibited by the states are reserved to the states or the people. 

Normally define congress powers relative to state powers - abortion, slavery, new deal, progressive labor laws, etc. 

MD had a law that taxed the Bank of US $15K annually, US bank did not pay, sued.  Can MD tax a federal bank? - NO

No, because federal laws are supreme to state law. Fed bank serves the entire nation and should not be inhibited by state law.   

Can Fed gov create a federal bank? yes - Congress has expressed power to "tax and spend", but also has implied powers under "necessary and proper" clause.  

Rules that limit the types of cases that Fed and Sup Ct can rule on - conserves resources of court and protects Constitution

1. Prohibition against advisory Opinions
2. Standing
3. Ripeness
4. Mootness
5. Political Question doctrine. 

ROMS-PQ

More principles so that Sup Ct only deals with questions when necessary - explains standing, etc. 

1. Must have actual Adversarial issues
2. Will not anticipate a Question of con law in advance or the necessity to decide on it. 
3. Courts will not form a Broad law
4. Ct will not rule on what state constitutions mean
5. Ct will not rule on a complaint where there is no Injury
6. SAB IQ

Less major issue than in Nixon which was about a treaty with Taiwan - was political non judiciable question.  Sup Ct can rule on congress foreign relation, not exec  

Being able to name Jerusalem as place of birth for US citizens - take a position on Jerusalem as the capital - was a judiciable question that the courts CAN answer. 

This is the type of a foreign policy question that the courts can address - is this statute constitutional?  Yes, ruling only on the fact that congress stepping on exec branch authority.  

Ogden got NY licence to operate steamboats in NY waters; Gibbons got federal license to do the same.  Ogden sued to stop Gibbons' license, stating state powers.  

Gibbons won because Art I of Const says congress has power to regulate interstate commerce, which includes traffic, intercourse, navigation, with the exception of completely internal commerce.  

Federal power supreme over state power

Congress has authority under the necessary and proper clause in the constitution to enact a statute permitting civil (not criminal) confinement of sexually dangerous federal inmates beyond the end of their sentences.    

Dissent said N&P clause gives broad authority, it is only for carrying out an enumerated power - and there is no such power over commitment of sexually dangerous felons. This falls within the states power.  

COngressional power clause - power to tax and spend for general welfare, regulate commerce, coin and regulate money, progress of science and liberal arts (patent and copywright), army, navy, militia, and to create washington DC (10 square miles) AND 

Make all laws that are "necessary and proper" to effectuate the enumerated powers above ONLY

this is where congress comes with all its powers - not just expressed powers (above) but also IMPLIED powers

Cannot directly tax the fed gov  -no bank taxes, no property tax for military bases, 

Unless congress consents

Can tax indirectly - can tax fed employees, can regulate fed employees if they need a license, etc. 

1935 Congress created NLRB to enforce right to unionize. 10 employees from Jones Laugh steel tried to unionize, got fired.  Steel co sanctioned, sued for unconstitutional. 

Yes, congress can regulate labor because labor has such a close and substantial relationship to interstate commerce -even though dealing with manufacturing only (a local/state issue - part of the dissent) because industrial strife between employers and employees can harm interstate commerce

Strikes involve IC, not wages directly

Darby lumber mill allegedly engaged in practices that were below the Fed Labor standards; products banned from entering stream of interstate commerce. 

Congress can create law that regulates manufacturing and distribution of interstate commerce. 

Congress power over interstate commerce is absolute, 10th amendment (powers not given to fed gov are reserved for the states) has no effect on interstate commerce

Depression in 1930s congress new deal program to stabilize wheat prices by limiting production.  Filburn produced more wheat, but only for personal consumption (therefore not interstate commerce). 

Yes, congress can do this because Filburns excess production causes him to buy less; when extrapolated to all farmers, has interstate and economic effect on whole market.  

Congress may enact regulations that prevent racially discriminatory policies in hotel accommodations because of the negative effects of those policies on interstate commerce.

The 14th amendment - no state shall ... its a restraint on government - not on businesses like hotels.  Therefore 14th amendment did not apply to this case.  (13th amendment is the only one that regulates private rather than state government (no one to own slaves).  

Katzenberg v Morgan and Morgan

How equal protection act judged to be right to use

Fed Voting Rights Act said that anyone with sixth grade education but did not speak english could vote.  NY state had law requiring ability to read and write english to vote.

Congress may pass legislation to enforce the Equal Protection Clause of the Fourteenth Amendment even when the legislation conflicts with state law.

14th amendment broad power to enforce equal protection when, 1) enforcing Equal protection act, 2) plainly applied to that end, and 3) consistent with constitution

Expressed specifically in constitution - post office, coin money, etc. 

Implied powers in "necessary and proper" and "interstate commerce" clause.  If they can regulate value of money, then they by implication can make a bank, create crimes associated with bank, etc. 

Has and can be abused - partial birth abortions done under "interstate commerce" clause.  

The Court found that rules based on the subjective determination of "integral" or "traditional" governmental functions provided little or no guidance in determining the boundaries of federal and state power. The Court argued that the structure of the federal system itself, rather than any "discrete limitations" on federal authority, protected state sovereignty.

Congress has the constitutional authority to regulate the wages and hours of state employees under the Commerce Clause.

Violence Against Women Act - Federal civil remedy even if no criminal charges filed.  Girl at VT claimed rape by Morrison, US brought civil charges under VAWA, morrison said unconstitutional exercise of commerce clause.  

Cts refer back to Lopez-only 3 categories of IC: 1) channels of IC, 2) instruments/persons in IC, and 3) aggregate economic activities of IC.  Gender based violence (and gun carrying) is not economic activity.

Also not 14th amend b/c it restricts Gov Action, not private actions.  

Federal drug abuse and prevention act, california compassionate use act for marijuana. Raich used and grew his own marijuana for legitimate need.  Feds confiscated, Raich sued saying inappropriate for commerce clause. 

Yes, congress can regulate this even for personal use just like Wickard - in aggregate, can effect IC.  

Scalia also said not only commerce clause, but also necessary and proper clause is also FAR REACHING

Federal low level radioactive waste law - compelled states to accept other states radioactive waste (in special circumstances).  NY Sued, saying unconstitutional under 10th amendment.  

Cts ruled that Fed cannot compel/commandeer state legislative process.  Only two ways that fed can do this, 1) as part of fed spending power and attach condition on fed funds to states, and 2) commerce clause.  

COngress can limit people, not states

Brady gun control act - national background program but interim requirement for states to conduct background checks.  Prinz was a Chief Enforcement Officer for this in AZ - sued to say state req. was compelling state action. 

Cts ruled that congress cannot compel states to administer fed programs.  Executive branch is law enforcement branch, and The Chief Officers enforcing this were state employees, which are not accountable to exec branch.  

Dissents said supremacy clause of Constitution allows fed to compel state action.  

Federal religious freedom act -Flores wanted to expand his church, city denied permit because church was located in historic district-Flores sued under RFRA.  

RFRA stuck down, Fed cannot limit states power to free exercise of religion-was overbroad- see Katzenberg vs Morgan Morgan - 

Also RFRA is a law respecting the establishment of religion which is prohibited by constitution.  

1) Initial era - intercourse of buy and selling

2) 1890-1937 - Lochner era - anti regulation, laissez faire - narrow commerce meaning commerce does not involve production (before commerce) - cannot regulate unions, hours, pay, etc.  Direct affect of commerce - violated 10th amendment (any powers not reserved to fed is for state power) - political process not justice should govern law.  

3) 1937 - 1990 - anything goes under commerce clause

4) 1990 present - more balanced approach - aggregation effect must be related to economic activity in nature

First fed law struck down by Sup Ct in many years.

CIA - Regulating handguns around schools does not affect 1) "channels of commerce" or 2) "instrumentality" of commerce (persons or things or facilitation of commerce) or 3) "intrastate actions in aggregate" affecting interstate commerce - was not economic activity

AND lacked jurisdictional nexus (any handgun obtained in the process of interstate commerce that is possessed in a school zone...)

If commerce clause is not violated, fed laws may still violate another constitutional right (like cant regulate papers sold interstate that is negative of congress).

10th Amendment says powers not enumerated in const are reserved for state law.  Rule is anti-commandeering principle - can regulate people directly but cannot compel/force states to implement fed law/regulate people directly (Prinz case, NY v US)

Can compel states in matters not associated with people (cannot sell DMV data). 

Not commandeering - not like Prinz and NY cases - telling state how to regulate citizens directly - this is compelling states to act regarding their state databases (saying that states cannot sell DMV driver data) - not for the states to regulate people directly.  

 Congress may regulate states’ activities, using its Commerce Clause powers, provided that the regulation does not require the state to enact any laws or regulations and does not require state officials to assist in the enforcement of federal statutes regulating private individuals.

pg 238 - need to get this case - Congress set limits on amount of crops to grow, had added taxes if you did more.  

Can use taxes to encourage behavior - but cannot use their power in a way that is not consistent with constitution.  

1)must be under necessary and proper clause

2) Must Make it clear that that the conditions that if they take money they must adhere to requirements (raise drinking age to 21 to get money for roads)

3) Must be related to a federal interest for particular national projects or programs (safe interstate travel)

financial inducement cannot be so coercive that it does commandeer violation of the 10th amendment

Fitzpatrick sued under civil rights act for sex discrimination against Conn state employee retirement policies.  District ct only gave injunctive relief, thinking that Fed Civil rights law cannot compel state gov for fines.

 Sup Ct ruled that Fitzpatrick CAN get monetary damages against state of CT for violations under fed civ right act - does not violate state sovereignty BC in 14th amendment, section 5 allows fed congress to enforce appropriate legislation/abrogate state sovereignty (overrides 11th amendment)

Also commerce clause would allow for $ damages.  

Fed law requiring states to negotiate in good faith with tribe over gambling.  FL did not negotiate at all.  Tribe brought suit under 14th ame sec 5 discrimination against creed/color, etc.  

Sup Ct ruled that the sec 5 of 14th amed is only applicable under commerce clause or a specific intent to abrogate states rights under Sec 5 of 14th - this situation does not apply here as it is not significant interstate commerce and 14th amend did not extend to gambling rights (civil rights only)

ADEA fed law said no discrimination based on age for employment.  Kimel and 2 others sued as florida state employees under this law. 

Sup Ct ruled that the ADEA specifically intended to abrogate the states' immunity, but that the abrogation exceeds Congress' authority under the Fourteenth Amendment because state employee age discrimination rationally relates back to a legitimate state interest

Even when congress expressly abrogates, state can win with a legit state purpose.  

Hibbs worked for state of AZ, demanded that they extend his 12 week leave of absence for his wife's medical needs. He filed charges under federal FMLA of 93 

FMLA purposely provided a course of action, 14th amend is called in for gender based issues of med leave. Gender based issues have higher scrutiny of review (must have important gov objective and means must be substantially related to that objective)

dissent said rule may be OK but not enough evidence shown

Steelworkers could not agree to union terms, striked.  President did exec order to take control of the steel plant and continue production for national security

Sup Ct ruled that the exec order was unconstitutional - pres only has powers as stated in constitution or in fed laws authorized by congress.  THis was neither - and the national security was not a imminent threat to national security (which may have been OK for pres to do then)

 Congress could authorize prez to do this, but they didn't choose to authorize pres to exec order steel mills here

there is a presumptive presidential privilege for his confidential communications

privilege should be related to military, diplomatic, foreign affairs,  or sensitive national security secrets, that presumption may be rebutted due to the constitutional need to produce all relevant evidence in a criminal case.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

In general federal courts can’t hear cases against states, but Congress can take away a state’s sovereign immunity. If Congress does so, that state is no longer protected against suits in federal court..

Partial immunity from federal suit

Congress passed ethics in gov act of 1978 allows for an independent counsel (IC) for high ranking gov positions at the request of the Atty General, who can also fire. 

Morrison was IC; Olson was being investigated for obstructing congress.  Olson said IC was unconstitutional bc was principal officer needed to be appointed by pres and approved by congress and was not.  

Sup Ct said IC is inferior officer (can be done by any branch), and congress can authorize interbranch ICs as permitted by Exception clause.Scalia appropriately disses

Congress passed resolution authorizing prez to stop the sale of arms to countries involved with Chaco border dispute; the same day Pres Roosevelt issued exec order prohibiting sales to warring countries Chaco dispute.  

Curtiss Wright indicted for selling arms to Bolivia, the district court said not enough evidence against Curtiss.  Was heard by Sup Ct. 

Sup Ct said it was OK - pres is the sole organ of fed gov for foreign affairs and his powers are broad.  

The President can settle the claims of United States citizens against a foreign government through executive order if required for resolution of major policy dispute.  

Iranian hostage crisis, americans released after agreement to settle all claims 0 done by exec order.  Dames part of Atomic Energy COmmission and his judgements were included in the settlements, he disagreed and sues.  

Don't need treaties as much, can do by exec action.  

pg 325 text  

1. When president acts under expressed or implied authorization of congress - most powerful, widest latitude, heavy burden of persuasion to challenge. 
2. In absence of congress law, he can only rely on his own independent powers.  Its may be a gray zone - but congress cannot limit
3. When president takes actions incompatible with congress' will (either expressed or implied), prez power is lowest.  

Well established that international exec agreement are consitutional, zero exec agreements are rejected by Sup Ct - any purpose\

This is despite treaties clause of the Const says prez negotiates treaties, and congress ratifies with 2/3 majority. 

Hamdi was found in afghanistan, was US citizen; Gov said he was enemy combatant;could be held indefinitely. 

Due process guarantees that US citizens held in the US as enemy combatants must be given a meaningful opportunity to contest the facts before a Court. 

Balance between Hamdi freedom vs possibility he will fight with enemy.  Gov can tailor the proceedings during military conflict, but Hamdi is granted due process because he is a citizen. 

Only congress can suspend HCorpus for citizens after request from exec branch.   

Gitmo detainees challenge status of unlawful enemy combatants & not allowed writ of Habeas Corpus. Sued

Non citizens captured abroad can challenge detention via writ of h corpus.  USCon says writ can only be suspended in cases of rebellion or invasion when safety requires

3 factors - 1) if US citizen (no), 2) where captured (abroad) and held (Gitmo, US essentially), 3) practical obstacles in resolving entitlement to writ (Boumediene did not have proper procedures in combat tribunal. 

Detainees may use habeas corpus, but pres can also still detain for reasonable period of time.  

Fitzgerald fired from Air Force after reporting to congress inflated costs and other difficulties of new aircraft  Said was fired due to retaliation, Nixon said he authorized it and is absolutely immune. 

Sup Ct said prez in absolutely immune from suits of damages when acting in official capacity.  

Participating in lawsuits would detract from presidential duties.  Prez is still not "above the law" because he is still  scrutinized by press, and subject to impeachment and political process. 

prez not immune from civil litigation involving actions committed before entering office. 

Immunity has never been extended for actions outside of the official role of prez, would not take too much time away from duties, lower courts would weed out frivolous suits against pres, and congress can pass laws providing additional immunity if desired.  

Says IF prex commits troops must communicate within 48 hours.  And periodically report progress to congress for continued authorization, if not given, must withdrawal troops within 30 days. 

Congress puts leash on prez war powers.  

In every possible situation, try to include congress in the deployment of troops.  Unlikely to be heard by Sup Ct as it is an non judicial issue

1. Writ of HC to challenge detention
2. 5&6th amendment trial rights - evidence, witnesses, public trial, etc.
3. protection against torture
4. Depends on:
   1. US citizen or not
   2. Where held - US or not
   3. Balancing test of prisoner rights vs threat (hard to prove)

HC, trial, tort, 3 factors

Federal law preempts state laws only when compliance with both is impossible.

CA made law re avocados must have more than 8% oil content, FL operated under fed law allowed less than 8%. FL wanted to sell their avocados in CA 

Sup Ct said CA can exclude FL avocados even though they meet Fed standards.  Not impossible for FL to keep avocados on trees longer to ripen more oil.  No need to preempt CA law for a Fed law b/c they are not mutually exclusive laws.  

A state law that addresses immigration and alien registration is preempted where Congress has completely occupied the entire field.

AZ passed law to deter illegal aliens, US fed sued.  

State immigration law can affect trade, tourism, diplomatic interests.  AZ state law was in conflict with US immigration law such as deportation, alien registration documentation, illegal alien employment, and AZs own ICE process to determine if alien (Immigration and Customs Enforce)

Dormant Commerce Clause powers, the judiciary, in the absence of congress action, may invalidate state laws that place an undue burden on interstate commerce.

Hood wanted to build plant in NY to sell milk produced in MA, NY denied under NY law to promote NY milk.  

Sup Ct said NY cannot do under dormant commerce rule- impedes interstate commerce - promote free markets.

Dissent said should be balance test for the state vs fed interests

NJ Passed law prohibiting other states depositing trash in NJ landfills.  Philly sued on basis of restriction of IntComm.

 Sup Ct said NJ law violated IC, congress could enact such laws but have not - even though law was for valid reason of environmental protection - but was not based on dangerousness of the imported waste but more based on reserving the landfills for NJ - improper limit of markets/flow of commerce - facially discriminatory. 

A facially neutral statute still violates the Commerce Clause if it discriminates against interstate commerce in practice.

NC (Hunt) new law requiring apples in closed containers to say "USDA grade" or nothing.  Wash state had higher standards than USDA, said that the USDA grade label did not allow to show higher standard that WA had.  

Sup ct said NC cannot do this - dormant IC clause - fails under PIKE analysis - requires out of state growers to spend $ and comply with state requirements.  

A state statute discriminating against interstate commerce is invalid if there are other less-discriminatory means by which the state can accomplish its objective.

Madison law said pasteurized milk must be done within 5 miles of MSN.  Dean produced milk 70 miles away.  Sues.

Sup Ct rejected MSN law - violation of dormant IC clause.  discriminatory against milk produced in other states - and MSN can employ other means to ensure high quality milk like inspections, which are less discriminatory.    

States may prohibit the import of goods if, 1) serves a legitimate purpose, and 2) there are no available less discriminatory means.

Maine law said no import of bait fish, Taylor wanted to sell out of state bait fish and sued under Dor IC Clause. 

Sup Ct. said law was OK because it served legitimate local purpose of avoiding out of state parasites. 

Affirmative discrimination laws against IC must be strictly scrutinized, scientific testimony indicates significant purpose that cannot be achieved otherwise.  

A state law is OK if it passes balancing test of 1) facially unbiased, 2) furthers a legitimate local interest AND 3) only incidentally affects interstate commerce AND 4)  does not impose excessive burden in relation to the putative local benefits.

AZ law re fruit/veggie standards required cantaloupes to be packed specifically, Church grew cantaloupes and shipped in containers to CA, sued under dorm IC clause.  

  Sup Ct rejected AZ law-incidental interest served to standardize cantaloupe shipping, extreme burden to dean who would lose $700K in crops not able to be shipped

Congress may authorize state laws that would otherwise violate the dormant Commerce Clause.

CA Law penalized out of state Ins Co. who pay lower taxes in their home state.  W&S sued based on unconstitutional IC burden.  Sup Ct ruled that CA was not acting in conflict with dormant commerce clause - congress is acting based on its constitutional commerce clause powers in NOT rejecting a state law.  

Dissent said law tax discrimination laws violate 14th because they penalize non californians

 Under the market participant exception to the Commerce Clause, a state government as a participant may favor its own citizens in commercial dealings.

SD cement plant under state control provided cement to in & out of state customers; hit capacity issues and state said in state buyers are prioritized.  Reeves (out of state) was financially harmed; sued on basis of IC violation. 

Sup Ct said SD prioritization is OK- state was not using regulation to affect IC commerce but was only a participant in IC.  In state favor is OK only when funded with state money, not federal money.  

A state may impose burdens on sales within the market in which it is a participant, but may not impose reg laws affecting markets out of their state.

Commis said all timber sold in AK must be processed in AK; South Central was in AK but sold non processed lumber out of state.  Sued based on violation of dormant IC clause. 

Sup Ct ruled against AK - AK here is acting as a regulator and participant, but this regulation re processing in state is not proper, even though they are also a market participant.

The Priv. and Immunities Clause prevents states from discriminating against citizens of other states unless valid reasons exist and the degree of discrimination bears a close relationship to those reasons.

SC law said $25 for commercial fishing licence in state, $2500 out of state. Toomer sued based on Priv and Immunities clause and equal protection of 14th amend.  

Sup Ct ruled against SC; citizen from state A get same benefits as citizens from state B unless there is a valid reason.  

Camden City law said workers for city projects must be 40% camden residents;got sued under Priv and Immunities, Def said they were acting as market participants.  

Sup Ct ruled against the 40% law - Priv and Immunities clause applies even to local govs.  Stated purpose of decreasing camden unemployment is good reason, but was not sure if still constitutional.  

MT hunting licence cheap for in state, expensive for out of state.  Balwin was hunting guide for out of state hunters, sued based on priv and immunities. 

  Sup ct ruled FOR MT - different than SC case because SC was commercial licence, this was personal hunting license-did not impact livelihood, hunting in state is not a basic right of non residents.   

The Bill of Rights, specifically the Fifth Amendment’s guarantee that government takings for public use require just compensation, are only restrictions on the federal government and do not apply to state or local governments.

Barron owned a wharf ruined by city street construction; sued under takings clause of Con.  

Sup Ruled against Barron, saying 5th amendment is applied to fed gov, state gov is sovereign; bill of rights does not apply to state and local governments. 

The 13th amend solely prohibits slavery as experienced by Africans; 14th is for slaves and only protects rights guaranteed by the United States and not individual states.

LA law saying all butchering needs to be in specific facility monopoly owned. sued under servitude prohibition of 13th amendment and equal protect 14th; 

Sup Ct ruled for the LA monopoly; 13th amend only for true slavery, Priv and Immunities not violated, Equal protection primarily for slaves as well.  

Commerce clause is when Fed law is at bar and acts directly against states desires - states sue Fed gov. 

Dormant commerce clause is when state law is primary issue at bar - such as protectionist laws of the states - and the Sup Ct rejects based on dormant commerce clause

If congress approves, they can override the Sup Ct and enact laws that otherwise interfere with dor commerce clause (because Const. says Congress controls interstate commerce). 

Note that there are two separate ones: 

1) Original Constitution, Art II - "citizens of each state shall be entitled to all of the privileges and immunities of citizens in the several states." - applies generally so that states cannot discriminate against out of state citizens re making a living - need to be US citizen.  

2) 14th Amendment - "Not state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the US." - Applies to rights that you get as a citizen of the US - applies primarily to slavery as part of 13th and 14th amend -don't need to be US citizen.  

CA says new CA residents only get welfare benes at previous state rates for 1st 12 months living in CA.  

Struck down-Strict scrutiny for discrimination of other state citizens - P&I extends to new residents in the state as well for welfare benefits.  THIS IS THE ONLY APPLICATION OF THE 14TH AMEND P&I CLAUSE. 

Black man sentenced without jury trial.  Appealed saying that 14th P&I amend applies and he should get Jury trial.

RIght to a jury trial for CRIMINAL CASE (not ruled on civil cases) applies to all states based on 14th amendment P&I immunities for fundamental rights and freedoms Six or 12 person jury is fine.  

In fact, freedom of speech 1st amend, 4th (search and seizure), 5th (compensation for takings), 6th right to counsel, right to address witnesses,

Chicago strict gun laws; 

Sup Ct ruled that 2nd amendment also applies to states under the 14th amendment. 

Conservatives will say that these are part of the deeply rooted in history of tradition

Libs will say that it is unclear what the original framers meant, and that things have changed so much over 250 years that they could not have contemplated.  

Only protects against fed, state or local gov actions - Wal mart could still fire you if you say something bad about Sam Walton. 

Only 13th amendment specific to specific citizens no one in the jurisdiction can own slaves...

Some private conduct has to comply with Constitution such as public function (private actor acting like state actor) and entanglement (if gov encourages private actions against constitution, must stop, ) exceptions

 The First and Fourteenth Amendment protections of speech and religion still apply to individuals when operating in a privately-owned town if the town is open to the public and used for public purposes.

Even when a town is a company owned town - Jehovahs witnesses still able to speak out at the city square just as if it were a normally local gov owned "public forum"  - the city square is still functioning just like a city government. 

For purposes of the Fourteenth Amendment, an action of a private entity will only be treated as state action if there is a sufficiently close nexus between the state and the challenged action of the private entity so that the action of the latter may be fairly treated as that of the state itself.

Met Ed public electric facility shut off electric, she sued saying it was like gov depriving life liberty without.  

Public utilities are not the same as gov actor - not subject to 14th amendment.  

Property/neighborhood covenants restricting blacks violate equal protection clause of 14th; states cannot enforce covenants. 

Private individuals can make discriminative covenant, but state and local governments cannot enforce.  

Court action is the same as state action

Peremptory challenges when a juror is excused without showing cause. 

Even in private, civil action cannot use peremptory challenges to exclude jurors on account of race because this is also a state action violating 14th amendment equal protection.  Judge acts as state and cannot enforce discriminatory peremptory challenges. 

Edmondson construction worker injured working at Leesville. 

Equal Protection Clause does not require a state to provide the same financial assistance to private schools as it would to public schools without regard to whether the private schools engaged in discriminatory practices.

Norwoods sued against textbook lending program to both public and private schools, even if private schools were racially discriminatory.  

Cannot give grants to students attending racially discriminatory schools; cannot lend books to racially discriminatory schools.  

A private school receiving public money and performing a public service, does not constitute a “state actor” for purposes of the Fourteenth Amendment.

Kohn was director of private school with public funding; Rendell Baker fired from school; teachers objected, also got fired. Sued under 1st amend right to speech.  

Public school can fire based on speech and not violate 1st amendment - like other private businesses who get funds, school is not a state actor just because it gets funds (even substantial or 100% of fed funds).  

TN Athletic association was private group regulating school sports for private and public schools.  Brentwood fined for improper recruitment of students, got large fine.  Sued under 1st and 14th amendment saying Athletic association was state actor.  

Athletic association was ruled to be state actor,essentially comprised of all public school people and acted as a state actor enforcing regulations.  

A state may not regulate the working hours mutually agreed upon by employers and employees as this violates their Fourteenth Amendment right to contract freely under the Due Process Clause.

Ny Law limited bakers to 10 hours per day, Lochner violated, fined, sued NY.  Sup Ct ruled for lochner - cannot limit hours - right to purchase or sell labor is a right of the 14th amendment.  

State can regulate for health or safety reasons (CDL drivers) or immoral/prostitution, but bakers are neither.  

WA law for min wage of female and minors.  Parrish was underpaid maid at hotel, sued.  

Designed to promote health and safety of female workers - if not, it denies due process.  Plus underpaid women rely more upon public assistance, min wage may raise them above poverty and assistance levels.  

OK law saying eyeglass fitting only by optom, opthamologist.  Lee Optical sued OK (Williamson) on grounds that this violated due process and Eq Pro of 14th.  

Cts ruled that fitting of eyewear does not require optom/optham, but fitting old lenses into new frames still needs specialist.  Even though law is arbitrary and wasteful, its a decision of state legislature.  Opthamologists are not a suspect class and do not get EqPro from 14th. 

LARGE Awards of punitive damages by state courts that exceed a single-digit ratio between punitive and compensatory damages are usually “grossly excessive” and violate the Due Process Clause of the Fourteenth Amendment.

3 factors, 1) degree of reprehensibility, 2) ratio of compensatory to punitive awards, 3) comparable cases

Car accident, one killed, one permanently injured.  Punitive damages of 145 million reduced to $25 million because 145 was grossly excessive and in violation of due process clause of 14th amend.  

A private shopping mall may constitutionally exclude picketing on its premises even if that picketing relates to the actual activities of its tenant stores.

Private actor not subject to 1st amendment

 1996 CO law prohibited gov intervention to protect people based on sexual orientation, Romer sued Gov CO Evans under EqPro Act of 14th, subject to strict scrutiny.

State cannot enact law that prohibits anti discriminatory laws; cannot burden fundamental right or target suspect class, must bear rational relation to legitimate state purp. 

5th amendment due process only for Fed Gov, State and local gov due process falls under 14 amendment - fed state and local gov have same restrictions. 

1946 NY Law prohibited vehicles advertising for other businesses (but can advertise their own business). Railway was trucking company advertising other businesses, sued under equal protection. 

Ct found legitimate purpose in law to reduce traffic congestion - rational basis met, even if under inclusive (they do not regulate businesses advertising own business on vehicles).  Under inclusive is OK because state may address legit purposes in phases.  NOT SUSPECT CLASS, RATIONAL BASIS

1964 Food stamp act says no stamps if household has someone unrelated to a member of household.  Moreno with sanchez and 3 kids. Both qualified for stamps but denied b/c unrelated, sued under EP & due process 5th.  

Law was illegal - two classes of people (related and unrelated) has no legit state purpose -was trying to target hippie communes.  Legit purpose was to feed people and encourage to buy farming surpluses.  

Cannot directly or indirectly target a particular group-RATIONALLY RELATED TO legit purpose; rational basis.   

Living facility sought permit for housing mentally disabled; city denied.

Sup ct ruled that mentally disabled are not a quasi suspect class, rational basis of review is correct.  Disabled require more care, laws can be therefore rational review is OK and do not need legit gov purpose.  However City of Cleburn did not have rational reason for discriminating mentally disabled

Need summary focused on takings rules

Economic development can be reason for takings - broad application of public use. 

If they do take property they must provide just compensation based on loss to the owner, not what the value of the property is to the taker.

Regulatory taking is when there is no physical taking but some other legislation that reduces value of land, there is no "taking" (need to verify that I heard this right)

Framework of Equal Protection Analysis

MUST MAKE SURE THESE ARE COVERED IN OTHER CARDS

Three questions: 1) Is discriminatory on face or not - or discriminatory impact & purpose, then, 2) what is appropriate level of scrutiny (racial, national origin, aliens = strict; gender, nonmarital children =  intermediate if substantially related to legit gov purpose, or rational basis which is lowest level) and 3) does the gov action meet the level of scrutiny (over or under exclusive?)

need both discriminatory purpose (designed to be discriminatory) AND discriminatory impact for law that appear to be facially neutral

Strict scrutiny requires gov purpose must be compelling and narrowly tailored to meet those purposes

Intermediate scrutiny requires gov interest substantially related to important gov purpose

Any NON Suspect class will get Rational basis requires rational relation to a legit gov purpose - rational way to meet that purpose - ANY purpose - no teeth - almost always upheld w/burden on challenger

State laws restricting the rights of persons based on race are subject to strict scrutiny and will only be upheld if they further a “pressing public necessity.

Wartime internment of Japanese ruling. 

If there is a race issue (either on its face or discriminatory purpose AND impact (both required) and something else extraordinary - race alone is no basis - no other way to reach a legit gov purpose like war or terrorism. 

Interracial marriage -  law states that whites not allowed to marry non whites. 

A state may not restrict marriages between persons solely on the basis of race under the Equal Protection and Due Process Clauses of the Fourteenth Amendment - even when it is equally discriminatory against whites and blacks

also used for gays to marry - and essentially establish right to marry

The deprivation of custody of an infant child from her mother solely because of the risk of racial biases violates the Equal Protection Clause of the 14th Amendment.

Custody case, wife gets custody, husband challenges because wife is dating black man and child would supposedly suffer racial discrimination and social stigma harm.     

Court denied father custody even though there is reason to believe that child may suffer bias, but courts cannot avoid bias, courts must enforce equal protection.  

Public accommodations that are segregated according to racial classifications do not violate the Equal Protection Clause of the Fourteenth Amendment as long as such accommodations are “separate but equal.

Jim Crow law to separate blacks from whites on trains.

Logic was that blacks and whites wanted to be separate and was supported by precident and does not imply that one race is inferior.  

Separate educational facilities based on race are inherently unequal and violate the Equal Protection Clause of the Fourteenth Amendment - Unianimous vote

not based on the fact that the schools are not equal - Inferiority complex still is a lasting effect to the kids. Even if the scocial science indicates otherwise, still nevertheless wrong

Effectively ended jim crowe laws - remedy remanded to lower courts to effect solutions that Re necessary and proper with all deliberate speed - bussing solutions

Racial classification laws violates the equal protection provisions in the Fifth Amendment’s Due Process Clause only if it is shown to have both an impact on a particular race and is motivated by racial discrimination purpose

Civil service exam appeared to discriminate based on race in Wash DC. The exam was upheld because there was not a discriminatory PURPOSE even though there was discriminatory IMPACT

Civil rights laws under title 7 only require discriminatory impact

A criminal defendant alleging an equal protection violation must prove the existence of a discriminatory purpose and a racially disproportionate and discriminatory effect

Guy in GA sentanced to death - challeges - shows impact but was not able to show purpose despite showing facts blacks get death more often when killing whites but not when killing other blacks, etc - had to show that the purpose of the law was discriminatory against blacks

To prove that a state actor violates the Equal Protection Clause by enacting legislation with a discriminatory purpose, a plaintiff must show that the decisionmaker selected or reaffirmed a particular course of action at least in part BECAUSE of, not merely in spite of, its adverse effects upon an identifiable group.

Law to fill jobs in MA gave preferential treatment - impacts on men vs women - lawmakers knew that it would be preferential to men but courts need specific purpose to favor men. 

A state-sponsored racial classification will not be held to violate the EP Clause of the 14th Amendment unless a plaintiff shows that the law is motivated by a discriminatory purpose and has a discriminatory impact. 

Low income tenant development was not given permit, permit seekers sued under equal protection. 

Purpose shown by three fact patterns/factors: 1) historic pattern of discrimination, 2) specific sequence of events leading up to the challenge, 3) substantial departures by the state actors from normal procedures   

Consideration of race as a factor in admissions by a state law school does not violate the Fourteenth Amendment because supporting student body diversity is a compelling state interest; however, the school must demonstrate it previously made a serious, good faith consideration of workable, race-neutral alternatives to achieve the sought-after racial diversity.Strict scrutiny

U Mich Law school substantial weight in admissions based on race; Grutter while female not admitted with 3.8 GPA and 161 LSAT; still reviewed applications individually and race was a factor among others.   

Dissent said did not apply strict scrutiny, did not show why diversity is legit state interest, ginsberg concurred but said should also be sunsetted. 

A university’s admissions policy that automatically gives preference to minority students on the basis of race, without additional individualized consideration, violates the Equal Protection Clause of the 14 Amendment

U Mich Undergrads whites sued; 150 point scale system where 20 points added for minority or underprivileged. 

Was not narrowly tailored to promote student body diversity; 20 point system essentially made race a deciding factor for any minimally qualified applicant.   

A public college may consider race as a factor in admissions only if the admissions program is narrowly tailored to further a compelling governmental interest.

Race was one component of of application index and other indexes were used (grades, etc).  THis was narrowly tailored enough to be valid.

Applications must still be individually reviewed, race cannot be defining feature of the application

Courts allowed the suit to proceed and summary judgement was overruled

A plaintiff seeking to challenge a state legislature’s drawing of a political district on the grounds that it violates the race-neutral protections of the EP Clause must show that race was the predominant factor motivating the legislature’s redistricting decision.

1997 NC accused of racial gerrymandering

Must show that race was not just a factor in redistricting but the predominant factor for redistricting. The NC gerrymadering was not shown to be predom based on race.  

Under the Due Process Clause, governmental classifications based on sex are inherently suspect and must be subjected to close judicial scrutiny.

Congress law saying that servicemen can classify wife as dependent even if she is not actually dependent, servicewomen cannot do this for husband.

Gov classifications and laws based on sex get strict to intermediate scrutiny -sex is immutable characteristic.

Congressional law struck down.

OK law allowed 3.2 alcohol content beer to under 21 women but not males.  Argued that male drunk driving much more problematic than women drunk driving.  

Law struck down - needs intermediate scruitny and must be SUBSTANTIALLY RELATED TO AN IMPORTANT GOV PURPOSE.  Statistical differece between .2 and 2% arrests between male and female not substantially related.  

Rational Basis - Reasonable relationship to legit state interest (RRLI)

Intermediate Scrutiny - substantially related to an important gov interest (SRIGI) - Sex, age, others that don't fall under strict - quasi suspect class

Strict Scrutiny - Narrowly tailored OR necessary to accomplish a compelling Gov interest (NTCI) - Suspect class such as immutable characteristics, history of discrimination, not related to ability to perform. Religion, Race, or National Origin, citizenship vs alien

All governmental gender classifications must be substantially related to an important government purpose if there is an exceedingly persuasive justification for the classification.

VMi was the only single sex public higher ed institute - used "adversarial" method.  Then offered a VWIL for women but was not equal.  Gender is quasi suspect class

Separate policy for women did not meet intermediate scrutiny and other school not equal.  did not meet exceedingly persuasive justification.  

Discrimination based on pregnancy in a state disability insurance program is subject to rational basis review

CA disability insurance did not cover certain disabilities associated with pregnancy.  

Pregnancy status was not  a gender classification (both med and women can be "not pregnant" - rule based on if it lumps nearly all of genders into two classes) and therefore subject to rational relation and law is acceptable.  

A state statutory rape law that discriminates against males does not violate the Equal Protection Clause because it deters males from engaging in sexual behavior that might lead to illegitimate pregnancies.

Gender quasi suspect class

CA statutory rape laws only apply to any male who has sex with minor female - even if male is also minor.  Law was upheld to promote the significant interest of preventing illegitimate pregnancies that burden females - and natural deterrent for women who can become pregnant.  

A congressional act that requires men and not women to register for a military draft does not violate the 5th Amendment because women cannot statutorily be in combat and thus are not similarly situated as men. Gender quasi suspect. 

Draft registration process re enacted due to Russia invading afghanistan.  Carter attempted to make registration for male and female but congress enacted a law prohibiting the requirement for females to register.  

Ct upheld, saying deference to congress in military issues and registration for emergency recruitment for battle and women cannot be in battle.  

Governmental gender classifications that require more stringent proof of citizen parents’ paternity than maternity are constitutional based on the inherent biological differences between men and women.

Nguyen boy born to US dad and vietnamese woman.  Moved to US at 6 and became perm resident

Immigration law was based on sex of parent who was US citizen, Intermediate scrutiny met because hard to determine father relationship but easier for maternal relationship.  Meets standard.  

Under the Equal Protection Clause, states may not condition receipt of welfare benefits on the beneficiary having United States citizenship or residing in the United States for a specified number of years

AZ law provided welfare only for US citizens for 10 years.  States cannot discriminate based on citizenship for benefits

discrete and insular minority laws subject to close judicial (strict) scrutiny - 

A state may confine employment in its police department to United States citizens because police officers perform basic governmental functions that may be constitutionally reserved for citizens.  

NY law must be citizen to be police officer;Foley was perm resident seeking citizenship; denied police officer. 

Police officer is a state policies and enormous responsibilities and may impact the people they are to protect; Rational review for gov position and related to democratic process.

A state may refuse to employ as elementary and secondary school teachers aliens who refuse to seek naturalization.

NY law says teacher must be US citizen or demonstrating intention to apply for citizenship.  

Alien employees in gov functions not subject to strict scrutiny - rational review OK.  Teachers are fundamental role in society, teach gov, etc.  helping kids become responsible citizens is legit state interests.  

States may not deny public education to children not legally in the US; TX law withholds funds for illegal immigrants and authorized schools to refuse enrollment. 

Heightened level of judicial scrutiny for illegal aliens - NOT a true suspect class - discrimination based on alien status only OK if furthers substantial goal of the states.  Many illegal alien kids will become citizens and good to have them educated about our government.    

Illegal aliens under rational or intermediate basis - not eligible for benes, but kids may be because they did not make the decision to come here illegally

A state statute instituting mandatory retirement for police officers at age fifty is subject to rational basis review and does not violate the Equal Protection Clause of the Fourteenth Amendment.

Age is not suspect class.  Rational Review

Strict scrutiny only needed for fundamental rights or disadvantages a peculiar suspect class or a discrete and insular minority.  Rational review is default for most cases, age discrimination is for rational review. 

COngress can abrogate state immunity and sovereign only via 14th amendment equal protection clause only for special populations - not for age discrimination. 

 Remember 5th amend due process is the equali protect for fed gov, all other equal prot clause from 14th. 

Obergefell marries Arthur in MD, Arthur dies in OH, OH refuses to recognize Obergefell as surviving spouse. 

Marriage is a fundamental right protected by the due process clause AND equal protection; 1) inherent to autonomy, 2) protects children and spouses, 4) marriage is keystone of social order -

 Dissent said 1) should be a politicals state process, and 2) those who ratified 14th amendment never intended to eliminate traditional view of marriage.  Cannot have law re unpaid child support preventing marriage - wealth discrimination. Clintons DOMA defines marriage as man woman - struck down.  

All parents are entitled to a hearing to determine their fitness before the state deprives them of custody of their children. Substantive fundamental right

Stanley's never married, 3 Kids over 18 years, lived together on an off, mother dies, unmarried father presumed to be unfit parent and must prove he is fit - if married, state needs to show he is unfit. 

Pre-determination of unwed fathers to be unfit violates due process and equal protection unless no father participation

Gerald and Carol married in las vegas in 1976; carol became pregnant by an affair with neighbor Michael.  Paternity test shows daughter victoria to be from Michael.  Victoria and michael moved to establish paternity rights but husband who is cohabitating with wife and not sterile is presumed to be parent. 

Statue saying cohabitating husband is presumed father does not violate due process clause.  Strong presumption in traditional family unit for husband to be father.  No historical precedent for power of natural father to assert parental rights. Use most specific example (married couples are parental rights) in history for conservative, broader (biological parents right) for liberal approach

The right of related family members to live together is fundamental and protected by the Due Process Clause, 

Cleveland ordinance limits occupancy of a dwelling unit to members of a single family - narrowly defined as nuclear family only.  Moore lived with sons and grandsons and did not comply with family definition.  Moore charged with criminal penalties. 

Ct rules narrow definition of family violation of due process clause-diff from Belle Terre where only unrelated individual cannot live together.  

1923; A state may not prohibit the teaching of foreign languages to a young child in school when such teaching has been requested by the child’s parent because this interferes with the fundamental liberty interest of a parent to control his or her child’s education.

NE law said teacher cannot teach foreign language unless after 8th grade.  Meyer (teacher) taught german to a 10 year old child at the request of parents.  

Law was arbitrary with no legit state purpose, parents have fundamental right to educate kids as they wish.  

Requiring children to be educated only by public instruction violates the liberty implied in Fourteenth Amendment of the United States Constitution

OR had law saying all kids must go to public school; sisters had private schools.  

State can require school and regulate schools, but cannot say that cannot attend public school unless there is legit state objective which is not shown here.  

Under the Due Process Clause, cannot interfere with the parent’s fundamental liberty in raising their child

WA state law allowed anyone to petition for visitation rights for a kid when it serves the best interest for the kid despite parental wishes.  Troxel wanted to visit parental grandchildren, mother opposed. 

WA law violated due process of parents rights to raise kids as they see fit. statue was overbroad - need to show parent was unfit or mother wants to cut off all visitation

1) Is there a fundamental right?  Does it affect an discrete and insular minority or infringement of fundamental right. Right to death is not fundamental. 

2) Is the constitutional right infringed?  See if there is directness and substantiality of the interference.  Think of contraceptive ban that was not enforced or tax on contraception is OK.  

3) Is there a sufficient justification for gov infringement on the right?  Strict basis

4) Is the means sufficiently related to the purpose?  If strict, must show that the law is necessary to achieve that objective - well tailored pants. 

Right to reproduce is not a fundamental liberty

1927 - VA law said those with metal illness could be sterilized

Law was upheld, state can sterilize the mentally ill - does not violate equal protection or due process - rational basis review, sufficiently tailored to meet legit gov interest

1942 - Forced sterilization of habitual criminals is not lawful - infringes on the fundamental right to marriage and procreation - violates equal protection 14th amendment

Law for sterilization if 3 or more felony convictions was unlawful as discriminating against suspect class with no legit state purpose.  Overturns Buck v Bell. 

Concurrence said should have been due process not equal protection which is correct - mostly due process for fund rights. 

1965 An implied “right of privacy” exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception.

CT law prohibited use of contraceptives.  

.

1972 - Under the Equal Protection Clause of the Fourteenth Amendment, a state may not outlaw distribution of contraception to unmarried persons.

Law made contraception illegal only for non married people

Denial of contraceptives to unmarried but not to married couples creates a suspect class that violates equal protection- 

The constitutional right of privacy encompasses a woman’s right to an abortion; abortions may be regulated by a state after the 1st trimester and may be completely prohibited after the point of “viability” of a fetus unless necessary for the health of the mother.

Two interests of gov -1) health of person and 2) protection of human life - 1st trimester health of mother greater than protection of human life, 3rd trimester shift

Dissent said overrides political process and creates new "right" to abortion and abortion right and right to privacy

A state abortion regulation places an undue burden on a woman’s right to an abortion and is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability

PA law required 24 hours wiating period and informed consent (parent or husband) for all women undergoing procedure.  

Spousal notification undue burden, parental notification and 24 hour waiting period were not undue burden. 

Questions to ask with new congress law

Also, nutshell of fundamental rights

COngress passes law, first question is under what power - commerce, Equ Pro, Due process, expressed powers?  2nd question, does it violate another amendment or part of constitution (1st amend for example).  Next question is discriminatory on its face or in practice? 

Nutshell of fundamental rights - liberty to do whatever - mow lawns, take illegal drugs, on rational review except for fundamental rights with strict scrutiny under substance due process rights (if gov prevents some right across the board- abortion, marriage,contraception, decline medical care, consentual sex),  - also some fund rights under equal protection where some people dont get rights (right to vote, marriage, parental rights)

TX law says abortion Dr. must have hospital rights within 30 miles and abortion facility must meet min standards for ambulatory surgical centers.  law would reduce number of centers from 40 to 7 or 8.

TX law was declared to have purpose to make substantial obstacle to women right to  abortion - can have limited restrictions for safety, but cannot unduly burden right of abortion - abortion already safe procedure.  

Congress may ban a specific type of partial-birth abortion provided its restrictions on the practice are narrow and clear and the ban does not constitute an undue burden on a woman’s right to an abortion.

partial birth abortion ban was upheld, but cannot limit "before viability" even without an exception for health of the mother.   Was not undue burden and did not limit womens right to choose

A state may deny funding for non-therapeutic abortions for poor women even if it funds child birth

CT welfare department passed refulation limiting medicaid benefits for first trimester abortion to only those for "medical necessary".  

Indigent women seeking abortion is not a suspect class; Roe v Wade does not create an unqualified right to abortion - just protects from undue burden of getting abortion.  State may make value judgement favoring childbirth over abortion and to allocate scarce resources 

The Hyde Amendment’s prohibitions against the use of federal Medicaid distributions to fund most abortion procedures do not violate the Constitution.

Hyde Amendment restricted medicare abortions unless medically necessary for mother life or rape/incest.   

Hyde amendment was more restrictive (only life of mother) than Maher law (which allows abortion when psychiatric medically necessary situations)

Child must get judicial bypass if abortion without consent (if the abortion is in the minor’s best interest or the minor is mature enough to decide for herself).

Cannot require spousal notification OR consent for abortn

Diff constitutional rights for minors regarding right to abortion b/c, 1) children are vulnerable, 2) inability to make critical decisions in informed mature manner, 3) importance of parental role in child rearing.  

Similar to law limiting marriage for minors

A state may require that a guardian prove by clear and convincing evidence that the person would have wanted the treatment withdrawn under such circumstances.

Cruzan in auto accident, in coma then vegetative state with no cog function or motor reflexes; hospital put feeding tube in, would not remove without court orders.  

COmpetent person can refuse medical treatment (would otherwise be a battery as unwanted touching and history of inform consent - otherwise need compelling gov int. to provide treatment such as required vaccination)

The right to physician-assisted suicide is not a fund right under Due Process Clause of the 14th Amend

State has commitment to protect all human life, especially for elderly sick and vulnerable; living wills and wishes to take away life sustaining treatment OK.  Right to refuse tx deeply rooted in history, right to suicide not. - but can be allowed state by state via political process. 

Fund Right in due process based on 1) objectively and deeply rooted in US history/tradition, 2) if there is a careful description of the fundamental liberty.  

New York’s ban on physician assisted suicide is constitutional and rationally related to a legitimate state interest that is prohibitive to all persons similarly situated (no one can assist in suicide) - does not violate equal protection clause of 14th (Glucksberg was under due process)

Suit said it was unfair that competent person can refuse life-sustaining treatmnet, but competent person cannot take drugs to end life.  When Tx stops, the disease then kills the person, when drugs administered, it is the drugs that kill him.  

TX law against sodomy between men (not heterosex), police called to house after gun firing, find anal sex.  

TX law struck down - due process clause protects private sexual conduct among consenting adults - discriminates without cause homo vs hetero anal sex.  no long standing tradition of prohibiting homo relation - could also be under equal protection act.  

Dissent said for states to decide, 

Education is not recognized as a fundamental right under the 14th Amendment and thus a state regulation is analyzed under rational basis review for legit state purpose

Hispanic families in poorer school districts get less funding based on property tax value.  Parents argued that violated equal protection 14th amendment.  Tx law and funding process is acceptable

A poll tax of $1.50 for every person over 21.  Right to vote is not explicit, but can be implied in constitution.  Poll tax discriminates the ability to vote against less affluent and violates equal protection of 14th amendment.  

Right to vot is fundamental; Voting laws are held to strictest scrutiny

Literacy tests are OK per SupCt, but denied by fed law

A state statute that denies the right to vote in school district elections to residents who do not own real property within the school district violates the Equal Protection Clause of the Fourteenth Amendment unless the exclusion of these residents is necessary to further compelling state interests (strict scrutiny). 

Law disenfranchised Sr Citizens and others living on tax exempt property and those without kids.  Right to vote is fundamental and subject to strict scrutiny.   

A state statute requiring photo identification as a prerequisite for voting is Constitutional.

IN law required photo ID issued by government to vote.  

Right to vote is fundamental, but photo ID requirement is not undue burden, does not target a vulnerable/suspect class, and necessary to combat legit state interest in preventing voter fraud

The Equal Protection Clause requires both house and senate state legislature to be apportioned on a population basis that equally weights one vote for every one person residing in a state legislative district

Gerrymandering based on pop density OK, not based on race or other likely voting groups

Was deemed to violate equal protection of 14th amendment.  Voting is fundamental right, restrictions to that right subject to strict scrutiny.  

Dissent said state choose their own democratic method

Class 26 Nov Notes

Fundamental rights-was studing equal protection, gov treats people differently all the time - vast number of times rational basis scrutiny will be used - only some kinds of unqueal treatment is suspect and hieghtens scrutiy is used-race, gender, national origin, for most inquealities - fundamental rights are less grounded in constitution when compared to equal protection of 14th amendment -

Post viability gov can prohibit abortion - blaancing law between health of mother and protection of human life.  Regul;atioopms cannpot place undue burden on abortion (look for if purpose or effect is to place a substaintal obstacle to a woomen seeking abortion).   

Rights associated with the most intimate and personal choices, those central to the dignity and autonomy, are rights protected by 14th amendment.  

DISTILL HIGHLIGHTED TEXT ON 1088

Dec 3 Class Notes

Equal protection applies most to voting and travel rights - due process applies mostly to suspect class being treated differently

Professor loves rules-be sure to put these in essays-know exceptions to the rules- 

3 constitutional powers - exec, judiciary and legislature - always know how the power is derived - mostly for congress as exec and judiciary is from const.  

limits on legislative power(heller) & judiciary limits (mootness, controversies, standing, REAL disputes) - 

Legislative branch-limited enumerated powers, get powers from expressed or implied powers - mcullogh vs maryland - necessary and proper clause like ability to make post offices - commerce power - know currebt rules from lopez, raich, sebelius; 10th amendment current rule is anticommandeering-antidiscrimination laws, 13 14 15th says congress has power to enforce these laws-soverigh 11th amend immunity (KNOW BETTER) cannot sue states for damages, but can sue officials - cannot 

Exec power - does pres have ability to act - 3 standards when congress approves, congress silent, congress says no - 

civil rights and liberties - who are restrianed by these rights (fed vs states 14th amendment due process incorprates the bill of rights to state and local gov) - private companies are not restrained by cons law violation and not a sup ct issue - entanglement exception and if they are a "state actor" - 

economic liberties - sub due process - contracts rational basis - big exceptio is if gov is in the contract.  Takings clause 5th amendment - is it a taking?  also public purpose rules where pfizer takes kelo property - dormant commerce clause and exceptions of mud flaps for trucks

equal protection - when can gov treat people unequally - 5th amend due process vs EP 14th - rational basis with bite would be related to suspect classifications and if they are supressed peoples - know 3 levels of scutiny and the standards and who the apply to - fundamental rights - privacy autonomy rights - rational vs strict basis.  

The Privileges and Immunities Clause (Article 4 version - not 14th amendment version) protects the right to travel allowing citizens to move freely between states, securing the right to equal treatment in all states when visiting, and securing the rights of new citizens to be treated the same as long-term citizens living within the state.

Temporary travelling thru states get same priv based on 14 amendment priv&Immun; new perm residents get same rights based on Article 4 Priv&Imm

CA new law where new residents do not get full benefits of state welfare, unless there for 12 months

A state drawing its legislative districts based on total population does not violate the Equal Protection Clause.

TX was re-apportioning districts according to total population rather than actual voting population - this is OK.  

Vote

Travel

Privacy

1amend rights

Family

Private and intimate

Abortion 

Race

Alienage

Nat Origin

1a speech

4a search and seize

5a DJ, takings, incrimination

6a right to speedy trial

8a excessive bail

2a bear arms

Due process

Equal protection

Privacy

Freely contract

Priv and Immunities

PA POW S

PA - principles of avoidance

POW - where do powers come from

S State or private actor

Principles of Avoidance

Principles of Avoidance - SAB-IQ

State Constitution

Adversarial issues (RSM)

Broad Law

Injury

anticipate Question

ROMS-PQ

Ripe

Opinion

Mootness

Standing

Political question

(text tools, toes, III, prev dec)

EPIC PINE

EPC/DPC

IC

P&I

Necessary and Proper

Exec

RRHGI

Rationally Related to Hypothetical Gov Interest

RRLGI

Rationally Related to Legit Gov In

Wil be looking for targeted class with animus

Sex, age, quasi subject

SRIGI

Substantially Related to Important GI

Race, Relig, Nat Origin, alienage and discreet and insular minority

OR Fund Right

NTCGI

Narrowly Tailored to Compelling Gov Int