I.

Judicial Powers a. Invalidation of Federal and State Law i. Federal Law 1. Marbury a. Review of Congressional laws i. Invalidated Judiciary Act of 1789 for unconstitutionally conferring jurisdiction 1. Impermissibly gave original jurisdiction, Congress could not enlarge Constitutionally defined original jurisdiction 2. emphatically the province and duty of the judicial department to say what the law is. b. Review of Executive Branch Actions: Political Question i. Acts of discretion by executive branch only politically examinable, no review, BUT ii. Ministerial acts: where executive has legal duty to act/refrain from acting: power of review exists. ii. State Law 1. Martin v. Hunters Lessee a. Review of State court actions: uniformity, administration of justice, SC would have nothing to do without lower courts b. Sources and Methods of Judicial DecisionUnderstanding SC Docket i. Methods of Interpreting 1. Originalism a. Original intent/understanding of ratifiers: Federal papers often cited 2. Textualism a. original meaning of constitutional text based on ordinary usage and meaning at the time. Dictionaries, grammar key 3. Purposivism a. Original purpose/values. living constitution? ii. Precedent 1. Casey (Value of Precedent) a. OConnor, Kennedy, Souter i. When court rarely interprets Constitution to end national division through common mandate, requires equally rare precedential force to counter inevitable efforts to overturn it b. Rehnquist, Justice White, Scalia, Thomas (Dissent) i. Either is constitutional or not, leave stare decisis out of it c. Scalia, Rehnquist, White, Thomas (Dissent) iii. International Law 1. Roper (International) a. Kennedy-Majority 1

i. Foreign law can underscore centrality of rights in our own heritage of freedom b. OConnor-Dissent i. IL can confirm, but requires genuine national consensus lacking in this case c. Scalia, Rehnquist, Thomas i. IL not appropriate in any way in analyzing fundamental rights/Constitution iv. Heller 1. Emphasis on constitutional text and structure (textualism) 2. And also original intent v. Dole c. Limits on Judicial Power i. Congressional Limits 1. Exceptions to and Suspension of Habeas Corpus a. Ex Parte McCardle (arrest post civil war, habeas sought, Congress stripped court of Jurisdiction) i. Can make exceptions, strip of jurisdiction allowed ii. BUT: some limits, did not strip earlier jurisdiction (different path for McCardle to get to SC) 2. Reversals of Judicial Decisions a. Miller i. Congress passes act that eliminates earlier judicial injunctive relief for prison inmates because it does not meet that acts standards ii. Congress CAN require the suspension of prospective, ongoing court-ordered relief iii. Congress can amend law, and courts must then apply it (McCardle and Miller) iv. Other Cases 1. Hayburns a. No direct executive review of judicial decisions b. SOP violation 2. Plaut a. Congress cannot seek to reopen final judicial judgment in case seeking money damages (SoL changed by state legislature 3. Wheeling Bridge a. Congress did not impermissibly annual prior Court decision where it altered underlying law, rendering ongoing injunction unenforceable. b. when Prospective (injunctive relief), depends upon law itself law can be 2

modified (money damages, cannot modify, because final) 4. Klein a. Congress cannot interfere with judiciarys powers to interpret the Constitution (here, constitutional effect of a pardon) ii. Art. III and Justiciability doctrines 1. Prohibition on advisory opinions a. George Washington requested one, but it has to come from a case/controversy (see article III, Section 2) 2. Standing a. Lujan i. Injury in Fact: Concrete and particularized; actual or imminent; NOT conjectural or hypothetical 1. some day intention not sufficient (visiting locales in future, nexus argument not sufficient) ii. Causation: Injury must be fairly traceable to challenged action of D, but for cause iii. Redressability: Must be likely that injury will be redressed by favorable decision. 1. Only 10% of funding, not sufficient b. Laidlaw i. Injury in Fact 1. concrete and particularized; actual or imminent; NOT conjectural/hypothetical a. desire to camp/fish swim along polluted river sufficient 2. prospective relief requires likelihood of future harm (not just past harm) ii. Causation + Redressability 1. deterrent effect of civil penalties sufficient (no specific relief necessary) c. Frothingham v. Mellon i. No taxpayer standing because of miniscule interest, only possible, partially defunct exception is for expenditures in violation of Establishment Clause, but only as to Congress, not Executive (Flast) ii. Harm must be individuated d. Massachusetts v. EPA i. States get special privileges: procedural right to challenge rejection of rulemaking petition, also stake in protecting quasi sovereign interests ii. Redressability: when litigant is vested with procedural right, that litigant has standing if there is 3

II.

some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant 3. Mootness (case controversy of A3S2) a. dispute between parties must be ongoing b. Exceptions i. Capable of Repetition, yet evading review ii. voluntary cessation doctrine: VC of activity will not moot case unless absolutely clear that allegedly wrongful behavior could not reasonably be expected to recur. Laidlaw iii. Further collateral consequences: adverse to D (e.g., felon losing right to vote although prison sentence served) 4. Ripeness a. cannot be premature; inadequately developed factually to render a proper decision i. Purely Legal Claim: no factual claim ii. Hardship to the parties 1. Effect on the Government 2. Effect on the individual parties iii. Typically comes up in administrative contexts 1. Attempting to stop regulation from taking effect 2. 5. Political Questions Doctrine a. Marbury, then Baker b. Can be misleading, but six factor Baker test i. textually evident commitment to coordinate political department ii. lack of judicially discoverable and manageable standards for resolution iii. impossibility of deciding without initial policy determination not subject to judicial discretion iv. impossible to judicially resolve without expressing lack of respect due to other gov. branches v. unusual need for unquestioning adherence to already made political decision vi. potentiality of embarrassment from multifarious pronouncements by various departments on one question c. Political Reapportionement: not PQ when raising issue of differing voting power Executive v. Legislative Powers a. The Federal Executive Power i. Two underlying purposes 4

1. Prevention of Tyranny 2. Efficiency ii. Approaches 1. Formalism: strict adherence to constitutionally granted powers 2. Functionalism: Purposes of distribution of powers: Violation only if aggrandizing at expense of other branch iii. The Framework 1. Youngstown a. Justice Black: no inherent presidential power, can act only pursuant to express/clearly implied statutory/constitutional authority (Formal) b. Jackson: Three Zones (Functional) i. Express/implied Congressional authorization, most power ii. Acting in absence of grant or denial of authority: depends on context of situation iii. Measure incompatible with Congress, only survive if act unconstitutional 1. Jackson found they had acted, dissenting justices did not 2. internal affairs not governed by powers as commander in chief c. Vinson: Evolutive functionalism: historical precedent supports presidential action iv. Executive Powers, Privileges and Immunity 1. Executive Powers a. Clinton v. New York i. Authority for line-item veto given to President by Congress ii. Impermissibly allows Executive to alter a law adopted by Congress (FORMALIST-STEVENS) 1. Constitutional procedures for enacting/vetoing laws must be strictly adhered to (Presentment Clause) iii. FIELD V. CLARK 1. Congressional authorization for President to impose duties on certain things coming into US a. (foreign affairs) b. Acted under changed conditions c. Duty to suspend, not discretion d. execution of policy embodied in statute iv. Dissent: necessary for administrative purposes (functionalist) b. Curtiss-Wright 5

i. congressional authorization for president to restrict arms sales ii. Allowable: foreign affairs are different, constitutional limits categorically true only to domestic affairs 2. Executive Privileges and Immunities a. Nixon (EXEC PRIV) i. Firing of special prosecutor ii. Court determines reach of exec privilege, not given to exec through SOP (Marbury) iii. Privilege exists, but NOT absolute/unqualified 1. Inherent power exists (contradicting Blacks Youngstown opinion) iv. Criminal justice systems need for evidence outweighs presidential need for confidential communication b. Clinton v. Jones (PRES IMM) i. Crime committed before Presidency ii. Absolute immunity from civil suit for official acts taking place during presidency (both while in office and after), but not even qualified immunity for incidents taking place BEFORE becoming president 1. Absolute immunity from official acts iii. Wont have negative impact on President (turns out to not be true) b. Congressional relationship with Executive i. Delegation of lawmaking Powers 1. Non-delegation doctrine dead, question of how to control president/agencies to whom broad authority has been given; just need intelligible principle a. Control of purse strings, oversight hearings, informal oversight, role in appoint/removal of officers 2. Chadha a. Chadha not deported, Congress had ability to veto AG decision not to deport b. No legislative veto: Congress can only legislate when there is 1) bicameralism and 2) presentment c. Powell Concurrence: Violation of SOP d. White Dissent: if can delegate, can retain powers ii. Appointment Removal of Officers 1. Morrison a. Cannot limit ability of president to remove principal officers. b. Appointment: only president for principal officers i. Inferior: Judiciary, President, Heads of Department

III.

c. Can limit ability of president to remove inferior officers (and independent agency heads) to either President, Judiciary, Heads of Cabinets A2S2. i. Three Qs: Subject to removal by higher exec branch official? Empowered to perform only limited duties? Office limited in jurisdiction tenure? ii. Good reason why office should be independent of president? iii. BUT: Scalia Test: subordination test: are they subordinate/control/monitoring/ by superior officer (now the controlling test) d. Limiting removal to good cause does not overly burden exercise of executive power 2. Buckley: establishes that test to determine if someone is an officer is whether someone has significant authority according to laws of United States, significant enforcement powers a. But if just investigating, not enforcing, not officer Congresss Article I Powers and Their Limits a. Necessary and Proper Clause i. McCulloch 1. Maryland collect state tax from United States Bank 2. Bank is constitutional a. Historic practice (created just after Constitution, many founding fathers still in Congress) i. Constitutional adverse possession b. Form/administration: Constitution we are expounding i. FLEXIBLE READING OF Constitution c. Constitutional text i. N&P A1S8, does not have absolutely necessary ii. Necessary: useful/desirable 3. Tax unconstitutional a. Power to tax=power to destroy b. Federal Supremacy i. People sovereign, not states b. Commerce Clause (A1S8C3) i. Gibbons 1. Steamboat monopoly granted by state over area between two states. 2. Congress can regulate any matter involving commerce concerning more than one state a. Commerce = all phases of business ii. Wickard 1. harvesting of wheat beyond allotment for personal use 2. Substantial Economic Effect: aggregation principle iii. Heart of Atlanta 7

1. Hotel refused to provide blacks service, even though it serves many out of state travellers 2. If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze iv. Lopez 1. 3 Categories a. Channels i. River/freeway ii. Hotels b. Instrumentalities i. Trains/Airplanes, transportation of individuals across state lines c. Substantial Effect i. Inns and hotels ii. Wheat iii. Loan Sharking 2. Factors a. Commercial v. non-commercial i. Allows aggregate effect (Raich) b. Jurisdictional hook i. Could be sufficient in conjunction with legislative findings: Morrison c. Legislative findings i. Not sufficient: Morrison d. Link between regulated activity and IC effect (Nexus) i. Court (Morrison, Lopez) or Congress (Raich)? ii. Court gets to decide (Majority in Morrison), but Raich rational basis applied e. Traditional Area of State Concern? i. Criminal, e.g., or family, education 3. Deference a. None, does not matter that Congress had rational basis or believed activity had substantial effect, i. Court interprets 4. Dissent: Breyer a. commercial/non commercial distinction irrelevant, link exists between guns at school and economic harm, national and local matters can be differentiated under bill v. Morrison 1. Violence against Women Act 2. Non-economic, findings not persuasive, no jurisdictional element vi. Raich 1. marijuana allowed for medicinal purposes in Calif., barred by federal statute

2. Intrastate production of commodity sold in interstate commerce is economic actively and can be analyzed according to cumulative impact c. Taxing and Spending Powers i. Cant be penalty Bailey v. Drexel, but regulatory taxes allowed ii. South Dakota 1. Highway funds conditioned on raising minimum drinking age a. Must be in pursuit of general welfare- vague, attempt to help to country. b. Condition of receipt of federal funds must be stated unambiguously: states must understand choice. Clear Statement Rule c. Might be illegitimate if unrelated to federal interest in particular national project/program (OConnor in Dole) d. Must meet other constitutional provisions. e. Cannot be compulsion because financial inducement so great. Coercion. (Affordable Care act, Medicaid) d. Federalism Limits on Article I Powers i. Generally: 10th Amendment not separate limit on Congresss power, but reminder that Congress may only legislate if given power by US Constitution. ii. Garcia 1. Overruling National League of Cities v. Usery: which held that Congress violated 10th amendment with Fair Labor Standards Act when interfering with traditional state/local government function (forcing state and local governments to pay minimum wage would require tax raises/service reduction 2. No judicial restraint on Congress using Constitutionally delegated power to impose substantive regulations on state (states retain sovereign authority ONLY where Constitution has not transferred powers to fed. gov. a. Political process better remedy for ensuring laws that unduly burden States will not be promulgated iii. New York 1. Radioactive Waste Act: several incentives: 2. Impermissible to provide option between accepting ownership of waste (taking title) or regulating according to federal standards a. The Federal Government may not compel the States to enact or administer a federal regulatory program. b. Policy: would allow Congress to make decisions and force state to take political heat for it. i. Does not matter if state wants it, Constitution protects us from our own best intentions 3. Rejected argument that compelling government interest sufficient to permit law that would otherwise violate 10th Amendment

a. Can still set standards (PREEMPTION) and attach strings on grants (SPENDING POWER) 4. Not overruling Garcia: Garcia was generally applicable law that happened to apply to state, NY legislation directed at/target states specifically to achieve a specific result iv. Printz 1. Brady Act requires CLEOS to make reasonable effort to determine if would-be gun purchasers would be violating law a. May, but does not have to notify firearms dealer, if notifies dealer must tell attempted purchaser why purchase is unlawful 2. Scalia: impermissibly commandeering state executive official to implement federal mandate; federalism a. Also, violation of SOP: implementation of federal law without Presidential control 3. Stevens Dissent: will force creation of regulatory agency that will have even greater detrimental effect on state sovereignty. 4. Breyer: Look at foreign countries for inspiration e. 11th Amendment and State Sovereign Immunity i. Created after Chisholm v. Georgia, which allowed diversity suit by nonresident of Georgia to proceed in federal court. ii. Hans- a federal-question, was barred by the Supreme Court. iii. Seminole Tribe 1. Indian Gaming Act: compact required between tribe and state: authorizes tribe to bring suit to compel performance of negotiation duty 2. Two questions: a. Congress unequivocally expressed intent to abrogate? b. Congress act to abrogate pursuant to valid exercise of power? 3. Result: Totally inclusion: preclusion of suit against state in fed court under fed statute, cannot abrogate immunity with either iCC or Ind. Commerce a. Can abrogate immunity through Section 5 of 14th iv. Alden 1. Claim of overtime owed by probation officers in Maine. Filed in Fed. court, dismissed., sued in state court 2. Congress cannot abrogate states sovereign immunity in state court either. Protection extends far beyond text of 11th Amend LIMITS: a. Waiver: consent i. in ratifying constitution, states consented to suits by other states and by federal government (!!!!!!) b. Ex Parte Young: Suing state official (rather than state official) for prospective relief permissible c. Sov. immunity bars suits against states but NOT lesser entities, e.g, counties, municipalities 10

IV.

V.

d. Congressional abrogation through Section 5 of 14th. (Fitzpatrick v. Bitzer) v. Federal Maritime Commission 1. Also applies to federal agencies Federalisms Limits on the States: Federal Preemption a. HOW TO ANALYZE i. Federal law on point that might preempt? 1. If so, is law constitutional? 2. And does it preempt? ii. If there is NOT preemption, then does state action violate DCC? b. A4C2 c. Summary i. Express Preemption: fed law expressly preempts via explicit language (Geier) 1. But watch for savings clause ii. Implied: if not explicit 1. Field: Scheme of fed reg so pervasive that Congress left no room for states to supplement federal scheme (Garamendi) 2. Conflict: Occurs where compliance with both fed & state law is physical impossibility (direct) or state law is an obstacle (indirect) to accomplishment of full purposes of fed scheme (Geier) d. Geier i. Regulation of vehicle safety: federal safety requirements did not require airbags, injury as a result ii. Savings Clause: conflict preemption can still be found 1. Measuring Congresss intent: here Congress sought variety/mix of devices with gradual phase in of airbags while avoiding disincentivizing buckling up e. Garamendi i. California required insurers to disclose information about policies in effect during Holocaust era in Europe. ii. Pre-empted: limited the ability of the President to negotiate executive agreements (clear conflict between state law and Presidents objectives) 1. More latitude because it is in foreign affairs? iii. Field Preemption also possible, but Court dances around it. iv. Zschernig v. Miller: Oregon statute only allowed foreign inheritance after damaging inquiries. Court invalidated even though Solicitor general denied that it interefered with US conduct of foreign affairs. 1. Holding: state action with more than incidental effect on foreign affairs is preempted Judicial Protection of Interstate Commerce: DCC and P&I a. Origins of DCC i. Willson b. Discrimination Against and Burdens on Commerce i. Philadelphia v. New Jersey 11

1. New Jersey law prohibiting importation of trash. 2. Whatever purpose of state law (environment or economic protection) cannot use discriminatory means, law imposes on out of state commercial interests the full burden of conserving the States remaining landfill. a. also: all objects of interstate trade merit CC protection b. If not discriminatory: then balancing test c. Exception: quarantine laws: also cited: Maine v. Taylor 3. South Central Bell Telephone v. Alabama: different tax standards facially discriminatory, must show special burden on both out and in state to justify ii. Carbone 1. Requirement that all waste be processed at private facility before leaving town 2. Discriminatory: deprives out of state businesses of access to local market and drives up costs for out of state interests to dispose waste: not overcome by health/envtl interests that could be met through nondiscriminatory alternatives iii. United Haulers 1. Same as Carbone, but benefitting County. 2. Laws favoring local govt differ from private industry in realm of trad. local functions: no discrimination between in-out of state private businesses 3. Therefore, balancing test: burdens do not outweigh benefits iv. Kassel 1. Statute preventing vehicles of certain length from using Iowa highways 2. Balancing test when not facially discriminatory a. Valid safety interest (with supporting evidence) may tip in favor of state, but not found here b. Heavy burden, therefore DCC violation c. Market Participant Exception i. South-Central Timber 1. CONGRESSIONAL APPROVAL: if state action allowed, okay. Though it must pass other constitutional hurdles (must be unmistakably clear, however) 2. Law required purchasers of state-owned timber have timber processed in Alaska before shipped out of state. 3. allows state to impose burdens on commerce within the market in which it is a participant, but no further, NO downstream restrictions d. State Privileges and Immunities (A4S2C1) i. Camden 1. City requirement that certain percentage of workers in city construction projects be residents of city

12

VI.

2. P&I applies to municipal, right to private employment does implicate a fundamental interest a. Typically either economic or fundamental right 3. Discrimination can still be allowed, IF the discrimination is closely related to a substantial government interest ii. Baldwin 1. Recreational Hunting not fundamental Reconstruction a. Dred Scott i. Blacks cannot become citizens of United States ii. Congress lacks power to limit slavery in territories using Territories Clause iii. Legislation limiting slavery anywhere would violate due process iv. REVERSED: 13th Amendment abolishing Slavery, 14th Amendment giving national rule of citizenship, guarantees P&I due process of law and EP 15th Amendment prohibits denying right to vote b. State Action and the 14th Amendment i. Civil Rights Cases 1. 14th Amendment prohibits only state action 2. 13th amendment: only regards slavery, but private too 3. Commerce Clause: maybe (Heart of Atlanta says yes) ii. Shelley 1. Racially restrictive covenant, willing seller and buyer 2. Court: cannot be enforced by the Courts: action of state courts and judicial officers in their official capacities is to be regarded as action of the state within the meaning of the Fourteenth Amendment. 3. This is entanglement doctrine: where govt facilitates/encourages unconstitutional private conduct iii. Leesville Concrete 1. State action is two part test: a. Deprivation must be caused by exercise of some right or privilege created by state, or rule of conduct imposed by state, or by person for whom state is responsible b. Party must be state actor because he is state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state i. extent to which actor relies on governmental assistance ii. whether actor performing traditional government function iii. injury caused aggravated in unique way by incidents of government authority? 1. right of peremptory challenges has source in law 13

VII.

2. private actor relies on assistance from gov, which supervises process 3. jury selection traditional govt function 4. injury more severe because in courthouse place where racial bias mars system integrity c. West v. Atkins: private physician contracted with state prison: state actor: function within the state system, not precise terms of employment determine whether state actor 2. DeShaney a. Guardians of four year old child sued state for failing to protect child from beatings that resulted in irreversible brain damage b. States failure to protect individual against private violence does not constitute a violation of Due Process Clause c. Federal Privileges Or Immunities i. Slaughter House Cases 1. Louisiana gives monopoly to single slaughterhouse in New Orleans 2. Court rejects notion that right to exercise trade is PI protected by fed. govt. 3. Only protected rights are national in nature: e.g., right to travel, petition govt, etc. 4. PI clause dead because it can only enforce other rights a. Court instead uses DPC and EPC ii. Saenz 1. California law that limited welfare benefits for new residents in the state to the level of the state that they moved from for their first year of residence. Similar law previously invalidated by EPC 2. Invalidated by federal P&I clause: protects right to travel and right to change state of citizenship (STRICT SCRUTINY) a. Right to travel includes i. right to enter and leave another State (Edwards) ii. right to be treated as welcome visitor when temporarily present (A4S2, privileges and immunities of Citizens in the several States) iii. For new permanent residents: right to be treated like citizens of that state 3. (BUT, now dead: McDonald not willing to expand 14th P&I) Procedural Due Process (what procedures govt must provide before taking away persons life, liberty, property) a. Property and Liberty Deprivation i. Note cases 1. Roth: nonrenewal of one year contract to teach did not create reasonable expectation of continued employment

14

VIII.

2. Perry: 10 year succession of one year contracts potentially created implied contract that would be property interest under 14th Am. ii. Loudermill 1. Lied during application, lost job without pre-termination hearing. 2. State, if giving right, cannot then constrain it. Can choose whether or not to give right, but once given, cannot be modified. 3. Must have pre-termination informal hearing b. Process Due i. Mathews 1. Hearing prior to termination of social security benefit? 2. THREE PART TEST (Mathews fails) a. Nature of private interest i. uninterrupted receipt of disability benefits ii. Significant but lower than welfare benefits b. Risk of erroneous deprivation through procedures used and probable value of additional procedures in terms of decisional accuracy i. value of additional procedures relatively low because of objective medical evidence involved c. nature of government interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedures would entail. i. High: more cost and provide benefits to ineligible recipients pending hearing 3. Policy: transfer money from aid to poor to administrative hearings? Equal Protection a. Intro to Equal Protection and to Traditional Rational Basis Review b. Traditional Rational Basis Review i. Factors for Scrutiny 1. Ability of group to protect itself politically? Carolene 2. Group historically subjected to purposeful discrimination 3. trait unrelated to ability to perform/participate in society? 4. Immuteable trait acquired at birth that cannot be changed, such as race or gender or national origin? ii. Standard 1. Classification must be rationally related to legitimate govt interest, challenger has burden of proof iii. Railway Express 1. prohibited advertisements on certain vehicles 2. Legitimate purpose of enhancing traffic safety: rational review, no consequence that it is under inclusive in that it does not address even greater distractions 3. Williamson v. Lee Optical: can discriminate within profession for safety reasons (eye glasses, e.g.,) 4. Fitzgerald v. Racing Assn: can levy different tax on slot machines at two locations due to plausible policy reason 15

iv. Beazer 1. City regulation prevented those in methadone maintenance programs from holding positions with Transit Authority: ostensibly including some cured patients: 2. Court: rational basis law/regulation can be overinclusive broader than necessary c. Race and Equal Protection: Strict Scrutiny i. Strict Scrutiny for Invidious Race Discrimination 1. Strauder (Facial) a. W.V. law that limited jury service to white males b. Court: unconstitutional under strict scrutiny: 14th Am aim to prevent discrimination because of race or color 2. Yick Wo (DISPROPORTIONATE IMPACT) a. City ordinance requiring laundries located in brick/stone unless waiver granted: 200 Chinese petitions denied, all 80 non-Chinese petitions granted. b. Even if intent and language was neutral, can be applied with a mind so unequal and oppressive as to amount to a practical denial by the State of EP of the laws. 3. Korematsu (Facial-Federal law) (NOT strict scrutiny) a. Evacuation of Japanese-Americans b. Strict Scrutiny: but Court finds compelling security interest on grounds of terrorist/national security threat c. Achacoso-Sanchez v. INS: can discriminate in immigration on basis of race ii. What makes a law racially discriminatory? 1. Loving a. Law that made interracial marriage a crime b. Strict scrutiny: restricting freedom to marry solely because of racial classifications violates the central meaning of the EPC 2. Johnson a. Segregation of incoming prisoners, state says to prevent violence b. Court: all racial classifications must meet strict scrutiny, including prisoners c. Remand for application of strict scrutiny 3. Washington a. Police force applicants required to take test, blacks failed it more often: b. Court: facially neutral laws receive more than rational basis review only if there is proof of discriminatory purpose/intent i. From: contextual circumstances ii. Clearly discriminatory impact, no other explanation iii. history involving govt action 16

IX.

c. Feeney: upheld absolute veterans preference for public employment, even though 98.2% of veterans were male i. Must have acted at least in part because of, not merely in spit of, its adverse effects ii. Rational Basis review d. Gender/Intermediate Scrutiny/Hybrid Review i. Standard 1. Must serve important governmental objectives 2. And be substantially related to achievement of those objectives ii. Craig 1. Statute prevented males age 18-21 from buying alcohol, not women. 2. Court: traffic safety meets important government interest, but NOT substantially related: a) tenuous evidence men more likely to drink and drive b) law only prohibits buying, not drinking: easy to subvert iii. Virginia 1. publicly funded military institute barred women. 2. Justification must be exceedingly persuasive and not genuine, hypothesized and cannot be post-hoc rationalization or overbroad generalization e. Rational Basis and Hybrid Review i. Cleburne 1. Denial of permit for mentally deficient school 2. Court: Mentally retarded only get rational basis a. Diverse group with reduced ability to function: legitimate to treat differently b. lawmakers can address without prejudice c. Not politically powerless, have attracted lawmakers attention d. if mentally retarded are quasi-suspect, then floodgates will open 3. Still invalidated: rational+, legitimate interest but no ii. Romer 1. Amendment denial potential protection for gays/lesbians 2. Court: rejects under rational basis review: no legitimate purpose for denying group same use of political process available to everyone else: rejects moral basis for a law Scope of Power to Enforce Reconstruction Amendments a. Katzenbach i. Congressional Act provided that no person educated in Puerto Rico could be denied right to vote because of failing English literary requirement ii. Allowed Congress to define meaning of 14th Amendment Equal protection clause by overruling earlier SC decision 1. One way ratchet b. City of Boerne 17

c.

d.

e.

f.

g.

h.

i.

i. Church suing under Religious Freedom Restoration Act, enacted to reverse SC decision in Oregon v. Smith lessening protections of free exercise clause ii. In passing legislation to remedy 14th Am, legislation will only survive if congruence and proportionality between injury to be prevented or remedied and means adopted to that end. Abrogation of Sovereign Immunity i. Did Congress clearly abrogate immunity? (Clear Statement Rule) ii. Identify Constitutional right at issue 1. And standard of scrutiny iii. History and pattern of unconstitutional action by state actors iv. Congruent/Proportional? Garrett i. ADA, substantial expansion of rights. ii. Analysis 1. Identify Constitutional Right at issue 2. Determine whether Congress has identified history and pattern a. Only at state level, not local 3. Apply Congruence/Proportionality Test Hibbs i. Family leave provision of FMLA, requiring employers provide unpaid leave time for family and medical care ii. Gender discrimination triggers heighted scrutiny, therefore easier to show history which then makes congruence/proportionality easier to satisfy as well Coleman i. May have went against Hibbs, or it may have just been about injury discrimination. Other cases i. Kimel: Age discrimination not sufficient under rational basis ii. Tennessee v. Lane (2004): ADEA portion pertaining to public entities (access to court fundamental right) Heart of Atlanta i. Douglas argues for Section 5 14th. BUT, not private conduct (Civil Rights Cases) US v. Morrison i. Breyer Dissent: Congress remedying actions of states that failed to provide adequate remedies for women injured by gender-motivated violence.

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