Constitutional Law Outline Ch. 1 The Federal Judicial Power Authority for Judicial Review Marbury v.

v. Madison Chief Justice Marshall said that the Constitution is a legal document limiting government, and, therefore, is the law. Supreme Court only has the authority to apply the law, and must be able to review Congressional decisions that may contradict the Constitution, or the law.

Limits on the Federal Judicial Power Must arise from a Case or Controversy as prescribed in Article III. Exceptions and Regulations Clause Article III allows Supreme Court to have appellate jurisdiction with such Exceptions and under such Regulations as the Congress shall make. United States v. Klein A federal law may be unconstitutional if it violates the separation of powers granted by the Constitution to create an independent sphere of powers.

Judiciability Limits o Prohibition Against Advisory Opinions Two types of legislation that require federal courts to exercise jurisdiction in a way Article III forbids: (1) US v. Klein A refusal to abide by a Congressional rule for decision-making and (2) Congress cant vest review of Supreme Court decisions of Executive Branch officials. Plaut v. Spendthrift Farm, Inc Retroactive legislation cannot reverse final decisions by Judicial Department. Supremacy Clause!

o Standing= Injury, Causation, and Redressability. Whos a proper party? Allen v. Wright (1984) Injuries alleged against the IRS do not have standing because one is an abstract injury and the other is not fairly traceable to the asserted unlawful conduct of the IRS. The line of causation between tax exemptions to some racially discriminatory private schools and impairment of desegregation of the public school is attenuated and the injury is highly indirect. The weak chain of causation between alleged conduct and injury does not allow for redress, and therefore, the case has no standing. Injury City of LA v. Lyons (1983) Lyons has no standing to seek the injunction requested because he cannot prove that a future encounter

with cops will result in an unjustified chokehold that will cause him injury. Lujan v. Defenders of Wildlife (1992) Claim that new regulation regarding the Endangered Species Act increased the rate of extinction due to lack of proper consultation had no standing because injury must directly affect a party apart from just a special interest in the subject. The suit challenged an agencys ability to carry out its legal obligations, which is inappropriate for federal-court adjudication. United States v. Hays (1995) Appellees claim that Louisianas congressional district plan is a racial gerrymander and violates the Equal Protection Clause of the 14th. No standing because appellees do not live in the district and have no direct injury from the alleged racial classification of voters. Federal Election Commn. v. Akins (1998) Commission would not classify American Israel Public Affairs Committee as a political committee subject to regulation and reporting requirements under the Federal Election Campaign Act. A federal statute allows for a suit by any aggrieved person affected by the Commissions decision. An injury in fact, infringement of right to obtain information, existed and standing is met. Causation/Redress Linda R.S. v. Richard D. (1973) Unwed mother challenged TX policy of prosecuting fathers of legitimate kids for not paying child support, but not prosecuting fathers of illegitimate kids. An injunction would not ensure payment, but jailing of the father. No proper redress, so no standing. Warth v. Seldin (1975) Low-income people and builders case challenging constitutionality of zoning practices had no standing because could not prove that buildings would be built without the zoning practices, much less that they could afford the area. Simon v. E. KY. Welfare Rights Org. (1976) Indigents sue to challenge IRS revision limiting amount of free medical care that tax-exempt hospitals required to provide. No standing because purely speculative whether the IRS was responsible for the refusal of free treatment. Duke Power Co.v. Carolina Environmental Study Group, Inc. (1978) Challenge the Price-Anderson Ace which limits liability of utility companies in the event of a nuclear reactor accident. Alleged that the Act violated the Due Process Clause because it allowed injuries to occur without compensation. Although no injury had yet occurred, the court found that the plaintiffs were subject to injury because the construction of a nuclear reactor in the area in which they live. 2

Causation and redressability were met because but for the Act, the reactor would not be built and the possibility of injury would not exist. Prohibition of Generalized Grievances United States v. Richardson (1974) Court finds taxpayer has no standing on claim alleging public reporting of expenditures by CIA unconstitutional. Respondent asks court for injunction requiring Government to give him expenditure information and is seeking to employ a federal court as a forum in which to air his general grievances about the conduct of government. Because the alleged injury is only an interest in having the government follow the law, not a violation of a constitutional right, and he has not alleged that he is in danger of suffering a concrete injury, there is no standing. Flast v. Cohen (1968) Taxpayers have standing to challenge government expenditures as violating the Establishment Clause. To determine whether a taxpayer has the personal stake and interest that impart the necessary concrete adverseness to such litigation so that standing can be conferred on the taxpayer: (1) Taxpayer must establish a logical link between the status and the type of legislative enactment attacked= under the Taxing and Spending Clause, and (2) the taxpayer must establish a nexus between the status and the precise nature of the constitutional infringement alleged, meaning must prove that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending powers. Valley Forge Christian College v. Americans United for Sep. of Church and State, Inc. (1982) Art. IV, 3, cl, 2 allows Congress to dispose of and regulate property belonging to the US. An Act authorized the Sec. of Health, Education, and Welfare to dispose of property for educational use. Americans United challenge the conveyance of land to the school as violating Establishment Clause of 1st Amendment. Applying the Flast test, the court finds no standing because the challenge was not directed to an exercise of congressional power, but of a decision by HEW to transfer property, and was not an exercise of authority conferred by the Taxing and Spending Clause.

o Ripeness= Reviewable only if harm has occurred or imminently will. Poe v. Ullman (1961) Challenge against 1879 CT statute prohibiting the use contraceptives and the 14th Due Process Clause is dismissed for ripeness because CT had never enforced the statute. (Later declared unconstitutional as violating right to privacy following the prosecution of the director of a Planned Parenthood clinic.) Abbott Laboratories v. Gardner (1967) Drug companies sue alleging that the FDA Commissioner exceeded his authority by forcing the 3

generic name to be designated every single time the trade name was used. Court says that the ripeness doctrines purpose is to prevent the courts from entangling themselves in abstract disagreements over administrative policies and to protect agencies from judicial interference until an administrative decision had been formalized and its effects felt concretely by the challenging parties. Fitness of the issues for judicial decision and hardship to the parties of withholding court consideration are the two problems facing ripeness. Ripe for review because a legal issue that is directly impacting the petitioners. o Mootness= Case dismissed as moot if injury cured while case is pending. The purpose of the doctrine is derived from Art. IIIs prohibition against federal courts issuing advisory opinions. Three exceptions to the doctrine: (1) Wrongs capable of repetition, yet evading review, (2) if a defendant voluntarily ceases allegedly improper behavior, but is free to return to it at any time, and (3) properly certified class action suits may continue as long as members of the class have a live controversy. Wrongs capable of repetition, yet evading review. Moore v. Ogilvie (1969) Petition for inclusion on general election ballot denied because not enough votes. Case heard after election, but not dismissed as moot because capable of repetition. Roe v. Wade (1973) Case challenging TX abortion law not dismissed as moot, though by the time she was no longer pregnant, because a woman is capable of being pregnant more than once. Standing, judiciable controversy, and capable of repetition. DeFunis v. Odegaard (1974) Sued law school after denial of admittance alleging that the Universitys affirmative action program denied him equal protection. Law school then accepted him and said that he could finish no matter what the courts ruling. Dismissed for mootness because he will never have to repeat admission process. Voluntary Cessation Friends of the Earth v. Landlaw Environmental Services (2000) Sue for violating pollutant discharge limits. Then, the facility shuts down. Closure of the facility does not give absolute assuredness that behavior by the defendant will not recur. Class Action with live controversy United States Parole Commn. v. Geraghty (1980) Geraghty, named plaintiff in class action suit on behalf of all federal prisoners who are or who will become eligible for release on parole, was released from prison following denial of class certification and appeal pending. Court held that an action brought on behalf of a class does not become moot upon expiration of the named plaintiffs substantive claim, even though certification has been denied. The proposed representative still has a personal stake in

obtaining class certification even though plaintiffs claim on the merits has expired. o Political Question Doctrine Baker v. Carr Apportionment cases had typically been tried under the Guaranty Clause which states that the United States shall guarantee to every State in this Union a Republican Form of Government. These cases always failed as nonjusticiable political questions because involved no federal constitutional right except one resting on the guaranty of a Republican form of government. Here, challenge made under equal protection, which the court finds is not a political question. Six step test for existence of Political Q: (1) There is a textually demonstrable constitutional commitment of the issue to a coordinate political department; (2) or a lack of judicially discoverable and manageable standards for resolving it; (3) or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; (4) or the impossibility of a courts undertaking independent resolution without expressing lack of respect due coordinate branches of government; (5) or an unusual need for unquestioning adherence to a political decision already made; (6) or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Vieth v. Jubelirer (2004) 4-1-4 opinion. (4)Political gerrymandering is nonjusticiable. Neither Art. I, 2, 4, or the Equal Protection Clause provide for a judicially enforceable limit of the political consideration that the States and Congress may take into account when districting. (1) Because no standard to measure the burden on appellants representational rights, appellants cant say that alleged political classifications burden those same rights. First Amendment would have been better avenue to determine whether the legislation burdens the representational rights of the complaining partys voters for reasons of ideology, belief, or political association. (4)(a) Should have applies standard in race cases to decide whether legislature allowed partisan considerations to dominate and control the lines drawn. (b) Political Gerrymandering is justiciable, and Souter and Ginsburg create a prima facie case with 5 elements. Powell v. McCormack (1969) Powell elected to serve in the United States House of Representatives, but House would not permit him to take his seat. House says pursuant to Art. 1, 5 which says to be the Judge of its own members is a textually demonstrable commitment to the House of the adjudicatory power to determine Powells

qualifications. Court says the Art. is a textually demonstrable commitment to Congress to judge only the qualifications set forth in the Constitution and does not bar the claim. Goldwater v. Carter (1979) Goldwater brought a constitutional challenge arguing that the Senate must rescind a treaty. Court finds a political and nonjusticiable question because it involves the Presidents authority to conduct foreign affairs and the extent to which the legislature is authorized to negate the actions of the President. This is better left to the Executive and Legislative branches.

Ch. 2 The Federal Legislative Power Congress may only act if there is an express or implied authority in the Constitution. States may act, though, unless the Constitution prohibits the action. (10th Amendment) McCulloch v. Maryland The Necessary and Proper Clause empowers Congress to make all laws relating to the powers conferred on the government. No State has the power to retard, impede, or burden the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the federal government.

The Commerce Power, Art. I, 8. The Congress shall have the power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes There have been four eras of commerce clause jurisprudence: (1) Early America through 1890s- broadly defined but minimally used; (2) 1890s-1937- narrowly defined with 10th Amendment as a limit; (3) 1937-1990s- expansively defined scope and no 10th Amendment limit; and (4) 1990s- present- narrowly defined scope plus 10th Amendment as an enforceable limit on federal actions. Commerce Defined o (1) Gibbons v. Ogden (1824). This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution. o (2) United States v. E.C. Knight Co. (1895) The court gives a very narrow definition of commerce. The power to regulate commerce is the power to prescribe the rule by which commerce shall be governed. o Carter v. Carter Coal Co. (1936) Commerce is intercourse for the purposes of trade including transportation, purchase, sale, and exchange of commodities between the citizens of different states. Employee-employer relations are of a local nature, and federal government has no control over labor issues because the impact on commerce is indirect. o Shreveport Rate Cases (1914) Congress has the power to foster and protect interstate commerce by all necessary or appropriate means, including the regulation of intrastate transactions affecting interstate commerce. 6

o A.L.A. Schechter Poultry Corp. v. United States (1935) An act regulating intrastate commerce must have a direct affect on commerce. o Hammer v. Dagenhart (1918) Congress granted the power over interstate commerce to regulate, not to give it the authority to control the states in their exercise of the police power over local trade and manufacture. The Tenth Amendment reserves the States control over production, and federal laws attempting to regulate production were unconstitutional. o Champion v. Ames (The Lottery Case) (1903) Court found that lottery tickets are subjects of traffic, and, therefore are subjects of commerce. Congress may protect the commerce concerning all states from the pestilence of lotteries. o (3) New expansively defined scope of Congresss commerce power NLRB v. Jones & Laughlin Steel Corp. (1937) Regulating labor practices that effect interstate commerce is within Congressional power under the Clause. o United States v. Darby (1941) The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation over them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce. o Wickard v. Filburn (1942) Act limited the volume of wheat allowed to produce in order to avoid surpluses or shortages, and therefore, high or low prices. Even though activity may be local in nature and not regarded as commerce, it can be reached by Congress if it exerts a substantial economic effect on interstate commerce. o Commerce among the states concerning civil rights laws 1937-1990s Heart of Atlanta Motel, Inc. v. United States (1964) Unavailability of adequate accommodation to Negroes interferes with interstate travel. Civil Rights Act of 1964 applies to the motel which serves interstate travelers and is constitutionally granted power to Congress through Commerce Clause to regulate interstate commerce. o Katzenback v. McClung (1964) BBQ restaurant refuses to serve Negroes in its dining area in violation of Civil Rights Act. Act applies to restaurants because they apply to interstate commerce. Congress had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce. o Commerce among the states concerning Regulatory Laws 1937-90s Hodel v. Indiana (1981) A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or

that there is no reasonable connection between the regulatory means selected and the asserted ends. o Commerce among the states concerning Criminal Laws 37-90s. Perez v. US (1971) Consumer Credit Protection Acts section against loan sharks is permissible exercise of Commerce Clause powers. Loan sharking is intrastate but may affect interstate commerce as sharks siphon funds from numerous localities to finance . . . national operations. o National League of Cities v. Usery (1976) Minimum wage and time and a half law in Fair Labor Standards Act (FLSA) directly displaces the States freedom to structure integral operations in areas of traditional governmental functions and is not a power granted through Clause. o Garcia v. San Antonio Metropolitan Transit Authority (1985) Any rule of state immunity that looks to the traditional, integral, or necessary nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes. Therefore, the court rejects those rules. FLSA does not destroy state sovereignty and ensures that laws that unduly burden the States will not be promulgated. National League is overruled! o (4) Narrowing of Commerce Power and 10th Amendment Revival. 1990spresent. o Commerce among the states. 1990s-present. United States v. Lopez (1995) Gun-Free School Zones Act made it a federal offense for anyone to knowingly possess a firearm at a place the person knows, or has reasonable cause to believe, is a school zone. Court says there are three categories of activity that Congress can regulate under its commerce power: (1) the use of the channels of interstate commerce, (2) the instrumentalities, persons, or things in interstate commerce, and (3) those activities having a substantial relation to or substantially affect interstate commerce. Government says the presence of guns would substantially affect interstate commerce because of an increase of crime and unwillingness of people to travel to those high-crime areas. Court says that if upheld Governments contentions they would convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. o United States v. Morrison (2000) Gender-motivated crimes are not economic activity in any sort. Congress may not regulate noneconomic violent criminal conduct based solely on that conducts aggregate effect on interstate commerce. Congress lacked authority to enact the Violence Against Women Act which would allow victims of gender-motivated violence to sue in federal courts. o Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) Army Corp. sues county Agency after it allowed a company to dump waste into an area where migratory birds are. Congress did not intend for the Clean 8

Water Act section regulating discharge of dredged or fill materials into navigable waters to prohibit dumping in an abandoned sand and gravel pit even though migratory birds are found there. Allowing federal jurisdiction under the Migratory Bird Rule would infringe upon the States power over land and water use. o Pierce County, Washington v. Guillen (2003) 23 U.S.C. 409, which protects compiled or collected information in connection with federal highway safety programs from being discovered or admitted in certain federal or state trials is a proper use of Congresss authority under the Commerce Clause because it is a regulation of the use of the channels of interstate commerce. It is aimed at improving safety in the channels of commerce and increasing protection for the instrumentalities of interstate commerce. o 10th Amendment as a limitation to Congresss Authority. 1990s-now. Federal law that imposes a substantial burden on a state government will be applied only if Congress clearly indicated that is wanted the law to apply. o New York v. United States (1992) New York sues the US alleging abuse of power by Congress with the Low-Level Radioactive Waste Policy Amendments Act because it forces States to take title of and dispose of waste if the State doesnt provide for disposal of the waste. Can Congress direct or motivate the States to regulate in a particular field or a particular way? Even when Congress has the authority to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. States are not regional offices or administrative agencies of the Federal Government. Congress does not have the authority to require the States to regulate. o Printz v. United States (1997) Brady Handgun Violence Prevention Act, which required state and local law enforcement officers to conduct background checks before issuing a handgun permit, found unconstitutional. The federal government may not compel the States to enact or administer a federal regulatory program. (New York) The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. o Reno v. Condon (2000) Drivers Privacy Protection Act prohibited the States DMVs from selling personal information without the drivers consent. Because the regulation involves a thing in interstate commerce it is a proper exercise of Congresss authority under the Commerce Clause. The Taxing and Spending Power, Article I, 8. Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

United States v. Butler (1936) Congress exceeded its powers with the implementation of a processing tax on agricultural commodities with the Agricultural Adjustment Act. The court held that the regulation and control of agricultural production is a power reserved to the States with the 10th. Sabri v. United States (2004) Congress did not exceed its powers when it made bribing public officials of non-federal organizations that distribute some federal funds a federal offense. Under the Spending and the Necessary and Proper Clauses, Congress has the authority to appropriate federal monies to promote general welfare and to see that taxpayer dollars are appropriated to promote general welfare and not toward projects that siphon off funds or officials are corrupt. The Code safeguards the integrity of state, local, and tribal recipients of federal dollars. South Dakota v. Dole (1987) SD challenged Congresss order to the Department of Transportation to withhold 5% of federal highway funds from states who did not adopt the 21-year minimum drinking age. Court held that Congress did not exceed its spending powers because it was in pursuit of general welfare. Congress may attach conditions on the receipt of federal funds so long as the conditions are expressly stated and have a relationship to the spending program. Here, the spending regards highway safety which is a part of interstate commerce.

Congresss Powers Under Post-Civil War Amendments (13th-15th) Who May Congress Regulate Under the 13th-15th Amends.? United States v. Morrison (2000) Violence Against Women Act civil suit challenged as unconstitutional. Congresss efforts to provide a federal civil remedy cannot be sustained under the Commerce Clause or 5 of the 14th. What is the Scope of Congresss Power? Katzenbach v. Morgan and Morgan (1966) (Broad authority under 14th, 5) Voters in New York challenge constitutionality of Voters Rights Act that allows anyone to vote who has had a 6th grade education, regardless of ability to read and write English. Voters say that it prohibits NY election laws requiring an ability to read and write English. Appropriate legislation to enforce the Equal Protection Clause. City of Boerne v. Flores (1997) (Limited authority) Local zoning authorities denied a church a building permit and the church challenged under the Religious Freedom Restoration Act. Under the RFRA, the government is prohibited from "substantially burden[ing]" religion's free exercise unless it must do so to further a compelling government interest, and, even then, it may only impose the least restrictive burden. The Court held that even though the Enforcement Clause of the 14th is broad, the RFRA determined the manner in which states must enforce the regulation and, therefore, contradicts separation of powers.

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Congresss Power to Authorize Suits Against State Governments The 11th Amendment- 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. The Amendments purpose was to strike down Art. III, 2, which extends federal judicial power to suits between a State and Citizens of another State, and between a State, or the Citizens thereof, and foreign States, Citizens, or subjects. More specifically, it was adopted to overrule Chisholm which held that Article III authorized suits against one State by a citizen of another State. Since Hans v. Louisiana, states have been immune to suits by both their own citizens and citizens of other states in federal court. Three ways around the Eleventh Amendment to hold state governments accountable in federal court: (1) State officers may be sued in federal court, even when state governments cannot be sued; (2) States may explicitly waive 11th Amendment immunity and may consent to be sued in federal court; and (3) Congress may authorize suits against state governments pursuant to 14th Amendment, 5. Fitzpatrick v. Butler (1976) Congress authorized federal courts to award money damages to private individuals against state governments found to violate the Civil Rights Act by discrimination in employment. Congress was within its 14th 5 limits in determining appropriate legislation for the purpose of enforcing provisions of the 14th by providing for private suits against States or state officials which are constitutionally impermissible in other contexts. Pennsylvania v. Union Gas Co. (1989) The S. Ct. held 5-4 that Congress may override the 11th Amendment and authorize suits against state governments pursuant to any of its constitutional powers, so long as the law in its text expressly authorizes such suits. Seminole Tribe of Florida v. Florida (1996) (Overrules Pa. v. Union Gas) The Indian Gaming Regulatory Act says that an Indian tribe may conduct gaming only in conformance with a valid compact between the Tribe and the State in which the gaming is located. The Act imposed a duty on States to negotiate in good faith a compact and authorized tribes to bring suit in federal courts. Court held that the 11th provides sovereign immunity and cant be dissipated because a suit is in an area under exclusive control of the federal government. Even when the Constitution vests in Congress complete law-making authority over a particular area, the 11th prevents congressional authorization of suits by private parties against unconsenting States. Dismissed for lack of jurisdiction. Cases Denying Congress Authority to Act Under 5 Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and US (1999) Neither the Commerce Clause nor the Patent Clause gives Congress the authority to suspend a states sovereign immunity. The Act which abrogated sovereign immunity of the States cannot be sustained as 11

legislation enacted to enforce the guarantees of the 14th Due Process Clause. Kimel v. FL Board of Regents (2000) Congress exceeded its authority under 14th 5 by abrogating States immunity in the Age Discrimination in Employment Act. The States may discriminate on the basis of age without offending the 14th Amendment if rationally related to a legitimate state interest. Congress had no reason to believe that the States were discriminating against their employees on the basis of age, and state employees are protected by state age discrimination statutes and can sue in State court. Board of Trustees, Univ. of AL v. Garrett (2001) State employees may not recover damages for a States failure to comply with the ADA. If there is a rational relationship between disparate treatment and a legitimate government purpose, there is no rise to the Equal Protection Clause. 5 only is appropriately employed by Congress when in response to State transgressions. Congress has not identified a pattern of irrational state discrimination against the disabled and so cant use Sec. 5. Must be a pattern of 14th violations by a state for Congress to use 5 to remedy the violation.

Congresss Greater Authority to Legislate Concerning Certain Discrimination and Rights that Receive Heightened Scrutiny Strict Scrutiny- Discrimination based on race or infringement must be found to achieve a compelling government interest. Intermediate Scrutiny- Must be substantially related to achieving a substantial government purpose. Nevada Dept. of Human Resources v. Hibbs (2003) Family and Medical Leave Act (FMLA) allows state employees to sue State in federal court for violations of the Act. The court says that FMLA to prevent gender-discrimination in the workplace and race discrimination is subject to heightened scrutiny. Congresss awareness of gender discrimination in the administration of leave benefits is weighty enough to justify the 5 enactment, the remedy in the Act is proportional to the targeted violation, and it is responsive to unconstitutional behavior. Tennessee v. Lane (2004) ADA says no person may be denied from any activity on the basis of his disability and allows for suits in federal courts. Lanes sued the state because they could not access the courthouse. The Court held that Congress had sufficiently demonstrated the problems faced by disabled persons who sought to exercise fundamental rights protected by the Due Process clause of the 14th Amendment (such as access to a court). The Court also emphasized that the remedies required from the states were not unreasonable - they just had to make reasonable accommodations to allow disabled persons to exercise their fundamental rights. Because Title II was a "reasonable prophylactic measure, 12

reasonably targeted to a legitimate end," and because Congress had the authority under the 14th Amendment to regulate the actions of the states to accomplish that end, the law was constitutional. Congresss Power to Authorize Suits Against State Governments in State Courts Alden v. Maine (1999) Probation officers sued their former employer, the State of Maine in federal court for violations of the Fair Labor Standards Act of 1938 (FLSA). Dismissed due to Seminole because Congress lacks the authority to abrogate State immunity. Officers sue in state court but courts said sovereign immunity. S. Ct. says that Congress cannot subject nonconsenting States to private suits in their own courts. State governments may not be sued in state court, even on federal claims, without their consent.

Ch. 3 The Federal Executive Power Inherent Presidential Power Youngstown Sheet & Tube Co. v. Sawyer (1952) Truman issued executive order for the Sec. of Commerce to seize all steel mills in anticipation of a labor strike during the Korean War. Court says unconstitutional because nothing gives the President that power and his role as Commander in Chief does not allow him to extend his military power to labor disputes. United States v. Richard M. Nixon, President of the United States (1974) President asserted his right to safeguarding certain documents as an inherent power under his executive privilege following a subpoena directing him to produce evidence. The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes.

The Authority of Congress to Increase Executive Power William J. Clinton, President of the United States v. City of New York (1998) Did the President's ability to selectively cancel individual portions of bills, under the Line Item Veto Act, violate the Presentment Clause of Article I? Yes. In a 6-to-3 decision the Court first established that both the City of New York, and its affiliates, and the farmers' cooperative suffered sufficiently immediate and concrete injuries to sustain their standing to challenge the President's actions. The Court then explained that under the Presentment Clause, legislation that passes 13

both Houses of Congress must either be entirely approved (i.e. signed) or rejected (i.e. vetoed) by the President. The Court held that by canceling only selected portions of the bills at issue, under authority granted him by the Act, the President in effect "amended" the laws before him. Such discretion, the Court concluded, violated the "finely wrought" legislative procedures of Article I as envisioned by the Framers. The Constitutional Problems of the Administrative State Administrative agencies exercise all 3 powers of government. They have legislative power because they have the authority to promulgate rules that have the force of law. They have executive power because they are responsible for bringing enforcement actions against those who violate the relevant federal laws and regulations. They also have judicial power because they employ ALJs who hear cases brought by agency officials against those accused of violating the agencys regulations. The Non-Delegation Doctrine and Its Demise The doctrine forces Congress to make the policy choices, rather than leaving this to unelected administrative officials. A.L.A. Shechter Poultry Corp. v. United States (1935) During the height of the non-delegation doctrine, Congress passed the Code of Fair Competition which allowed the President to exercise his own discretion to make whatever laws he found necessary for the rehabilitation and expansion of trade and industry. The Court found this an unconstitutional delegation of legislative power. Panama Refining Co. v. Ryan (1935) Congress authorized the President to prohibit transportation in interstate and foreign commerce of petroleum produced in excess of limitations permitted by state in the National Industrial Recovery Act. The Court says that Congress is not permitted to abdicate or transfer to others the essential legislative functions it is vested. Whitman v. American Trucking Assn, Inc. (2001) (Demise) Suit over whether part of the Clean Air Act delegates legislative power to the Administrator of the EPA. The constitutional question is whether the statute has delegated legislative power to the agency. When Congress confers decision-making authority upon agencies, Congress must lay down by legislative act an intelligible principle to which the person of body authorized to act is directed to conform. The Act which allows the EPA to set air quality standards at the level that is requisite- that is, not higher or lower than is necessary- to protect the public health with an adequate margin or safety, fits comfortably within the scope of discretion permitted by out precedent.

The Legislative Veto and Its Demise The legislative veto was created in the 1930s at the time of administrative agency growth for Congress to check on the administrative agency actions.

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Immigration and Naturalization Service v. Chadha (1983) In a section of the Immigration and Nationality Act, Congress allowed for a one-House veto to invalidate and suspend U.S. Attorney General deportation rulings. The court found this a violation of bicameralism and separation of powers because the Constitution only allows the House of Representatives to act alone to initiate impeachment. To overturn any other executive action, there must be bicameralism, passage by both houses of Congress, and presentment to the President for signature or veto. Congress may not delegate legislative authority to another branch of Govt, and then, subsequently, retract it. A legislative veto is unconstitutional, and thus, invalid.

Checking Administrative Power The Appointment Power, Art. II, 2, cl..2 Morrison v. Olson (1988) The Ethics in Government Act of 1978 allows for the appointment of independent counsel by a special court upon the recommendation of the Attorney General to prosecute high-ranking government officials for violations of federal criminal laws. The court found that the Act did not violate the Appointment Clause, allocated powers of Article III, or separation of powers as it did not upset Executive functions.

The Removal Power The President may remove executive officials unless removal is prohibited by statute. Not in the Constitutional powers, but through the following cases. Myers v. U.S. (1926) A law providing that the President may appoint and remove Postmaster Generals of 1st-3rd class upon advice and consent of the Senate was found a denial of the Presidents power. No express limit is placed on the Executive power of removal in Article II and the denial of power would discharge him of his own constitutional duty of seeing that the laws be faithfully executed. Humphreys Executor v US (1935) President Roosevelt removed the Commissioner of the FTC from office due to a provision of the Federal Trade Commission Act which authorized Presidential removal. The court found that this exceeded Presidential power and that a President does not possess illimitable power of removal. The reasoning was that the FTC possesses quasi legislative and quasi judicial power and is not an arm or an eye of the executive. The court refused to apply the Myers case which upheld the Presidents right to remove officers who were units of the executive department because its not the case here. Weiner v. US (1958) Eisenhower removed Commissioner of War Claims Commission because he wanted to appoint someone else. Court follows Humphreys and says the President does not have the power to remove a member of an adjudicatory body for that reason and was not granted that power by the Constitution or by statute.

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Bowsher v. Synar (1986) The Balanced Budget and Emergency Deficit Control Act of 1985 gave the Comptroller General authority to request automatic cuts in spending. Through the Act, Congress is reserving control over execution of laws, as the officer would be enacting laws, and the Act allowed for only Congressional removal. This intrudes on the Executive branch. Morrison v. Olson (1988) The Ethics in Government Act permits the Attorney General to remove independent counsel investigating federal criminal violations of high-ranking government officials only when he can show good cause. The fact that the counsel exercises no amount of discretion and judgment in carrying out his duties under the Act does not show that the President needs to control the discretion as central to the functioning of the Executive Branch. The limitation on removal to the AG does not deprive the President of control over the counsel to interfere with his constitutional obligations to ensure faithful execution of the laws. These cases establish that the President may fire any government official unless Congress limits removal when it is an office where independence from the President is desirable and the statute limits removal to where there is a good cause.

Ch. 4 Limits on State Regulatory and Taxing Power A. Article VI Supremacy Clause. Where Congress intends to occupy a field, any conflicting State law is invalid. If there is a conflict between federal and state/local law, the state/local law is preempted. Two major situations when preemption occurs: (1) federal law expressly preempts state or local law, or (2) preemption implied through clear congressional intent to preempt state or local law. o Express Preemption. Lorillard Tobacco Co. v. Reilly (2001) The police powers of the States are not to be superseded by the Federal Act unless that is the clear and manifest purpose of Congress. Here, Congress expressly preempted state cigarette advertising regulations because they would upset federal legislative choices to require specific warnings to address concerns about smoking and health. o Implied Preemption. (1) Conflicts Preemption (2) State law that impedes the achievement of a federal objective (3) Field Preemption Conflicts Preemption. If a federal and a state law are mutually exclusive, so that a person cannot comply both, the state law is deemed preempted. Florida Lime & Avocado Growers, Inc. v. Paul, Director, Dept. of Agric. Of Ca. (1963) Federal law gives to significance to oil content of avocados for marketing in its maturity standards. California law, though, forbade transportation or sale of avocados with less than 8% oil. Court found that there was no inevitable collision between the two schemes of regulation because didnt both include an oil percentage. Cal. law not preempted.

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Interference with Federal Legislative Goal. What is the federal objective? To what extent does the state regulation unduly interfere with achieving that goal? Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commn. (1983) Federal Atomic Energy Act was for the promotion of nuclear energy, but did not expressly require or prohibit states from permitting construction of nuclear reactors. Californias regulation gave conditions for permitting the construction due to capacity for storage and means for waste disposal. Because Congress left authority for the States to allow or not allow for development of nuclear power, California regulation not preempted. Field Preemption. Hines, Sec. of Labor and Industry of Pa. v. Davidowitz (1941) The supremacy of the national power in the field of foreign affairs is made clear by the constitution. The states cannot interfere with the federal law or enforce additional regulations.

B. If there is no federal law that conflicts with a state or local law, the state/local can still be challenged under either (1) Dormant Commerce Clause or (2) Privileges and Immunities Clause. (1) Dormant Commerce Clause- In areas where Congress has not spoken (hasnt used its plenary power to regulate) on area of interstate commerce, the States are free to regulate. The State regulation must be (1) non-discriminatory and (2) places no undue burden on interstate commerce. State and local laws are unconstitutional if they place an undue burden on interstate commerce. H.P. Hood & Sons, Inc. v. Du Mond, Commissioner of Agriculture and Markets of New York (1939) A state may protect its inhabitants against perils to health or safety or from fraudulent trade even when adverse to interstate commerce, but a state may not burden, impede, or restrict commerce for its own economic advantage. Arguments for having a dormant Commerce Clause: (1) Framers intent to prevent state laws that interfere with interstate commerce, (2) the economy is better off if state or local laws impeding interstate commerce are invalidated, and (3) citizens and states should not be harmed by laws in other states where they lack political representation. SC State Highway Dept. v. Barnwell Brothers (1938) and So. Pacific Co. v. AZ (1945) The court uses a balancing test to determine whether the state law is discriminatory against out-of-staters by weighing governmental interests of a State against needs of interstate commerce. Safety outweighed the burden on interstate commerce. (1)(a) Facially Discriminatory- Always unconstitutional. City of Philadelphia v. New Jersey(1978) Jersey passed a law prohibiting waste from other States entering it. Jersey private landfill owners and States in agreement with the landfill owners sue. Court says a State law that overtly blocks the flow of interstate commerce at a States borders is a virtually per se rule of invalidity. C&A Carbone, Inc. v. Town of Clarkstown, New York (1994) Town created an ordinance requiring all waste to go to a specific processing station so that the fees would go toward

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constructing a new building. Court says that revenue generation is not a local interest that can justify discrimination against interstate commerce. Hughes v. Oklahoma(1979) Facial discrimination invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives. Law against transportation of minnows out of the State for purposes of sale overtly blocks the flow of interstate commerce at the States borders. (1)(b) Facially Neutral- Can be found to be discriminatory if has either a discriminatory effect or purpose. Hunt, Gov. of NC v. WA State Apple Advertising Commn. (1977) NCs law restricting apples from having any grade besides the USDA standard would have a discriminatory effect on WA apple growers, whose State requires stricter/higher grades than USDA grade. Unconstitutional. Exxon Corp. v. Gov. of MD(1978) MDs law prohibiting petroleum producers from operating gas stations in the State not interfere with interstate commerce because the burden falls on only some interstate companies and creates no economic advantage for local owners. West Lynn Creamery c. Healy Commissioner of Mass. Dept of Food and Ag. Preservation of local industry by protecting it from the rigors of interstate competition is the hallmark of the economic protectionism that the Commerce Clause prohibits. Massachusetts tax imposed on out-of-state milk dealers went to subsidize local dairy farms and has a discriminatory purpose. State of MN v. Clover Leaf Creamery Co. Minnesotas law prohibiting milk to be sold in plastic containers not discriminatory because the burden placed on interstate commerce is not clearly excessive in relation to the putative local benefits such as conservation of energy and easing solid waste disposal problems. (1)(c) Analysis if a Law if Deemed Discriminatory= Strict Scrutiny State must justify discrimination in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives to preserve the local interests at stake. Dean Milk Co. v. City of Madison, WI (1951) Erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce. One state in its dealings with another may not place itself in a position of economic isolation. Maine v. Taylor and United States (1986) States retain authority under their general police powers to regulate matters of legitimate local concern even though interstate commerce may be affected. Maines prohibition against importing live baitfish was upheld because imported fish would pose significant threats to Maines unique and fragile fisheries. (1)(d) Analysis if a Law is Deemed Non-Discriminatory (Treats in and out-of-staters alike.) Non-discriminatory laws are upheld as long as the benefits to the government outweigh the burdens on interstate commerce.

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Loren J. Pike v. Bruce Church, Inc(1970) Legitimate local purpose? To what extent will that goal be achieved? Could the local interest involved be promoted as well with a lesser impact on interstate activities? Arizona law prohibiting transportation of companys uncrated cantaloupes from AZ to CA to be packed and processed there is unconstitutional. The statute would have required company to build a packing plant in AZ which is a burden on commerce that is virtually per so illegal. The states only interest was in enhancing the reputation of cantaloupe producers within its borders since the label on the fruit would now say AZ. Bibb, Director, Dept of Public Safety of IL v. Navajo Freight Lines, Inc. (1959) States power to regulate the use of its highways is broad. The mudguard law placed an unduly and unreasonable burden on interstate movement of trucks and trailers and passed the permissible limits of State power even for safety regulations. The safety benefit was marginal, so law overturned. Raymond Kassel v. Consolidated Freightways Corp. of DE (1981) Iowas law prohibiting certain large trucks within the State imposes a burden without any significant countervailing safety interest. Thus, it violates the Commerce Clause. CTS Corp. v. Dynamics Corp. of America Indiana Act designed for better protection of its corporations shareholders does not treat out-of-staters disparately and does not affect commerce. (1)(e) Exceptions to the Dormant Commerce Clause Congressional Approval- Congress has plenary power to regulate commerce among the states, so it may approve the state law. One could still challenge the constitutionality under Privileges and Immunities Clause, equal protection, etc, though. Western & Southern Life Ins Co v. State Board of Equalization of Cal. (1981) Congress removed all Commerce Clause limitations on the authority of the States to regulate and tax the business of insurance when it passed an Act. Although California law imposed a retaliatory tax on out-ofstate insurers doing business in California, the court found it was not unconstitutional since the federal act has no limitations. The Market Participant Exception- If a state is literally a participant in the market, like with a state-owned business, and not a regulator, the dormant Commerce Clause does not apply. Discrimination against outsiders is allowed in when the State is a market participant. Reeves, Inc. v. William Stake (1980) South Dakota Cement Commission sold cement to SD customers first and then first come, first served basis after a cement shortage. Because SD a market participant, it should share existing freedoms from federal constraints including the Commerce Clause. A State may discriminate in favor of locals without violating the Dormant Commerce Clause when using its own State funds to create the market. White v. Massachusetts Council of Construction Employers, Inc. (1983) Boston said any construction project funded in whole or partly by city funds should be performed by a work force of at least half Bostonians. When using all funds, it is a market participant and the Commerce Clause does not apply. When using funds partly obtained from federal programs, the programs regulations apply.

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South-Central Timber Development, Inc. v. Commissioner, Dept. of Natural Resources of Alaska (1984) The market-participant doctrine allows a State to impose burdens on commerce within the market in which it is a participant, but the State may not impose any conditions that have a substantial regulatory effect outside of that particular market. Alaska- a seller of timber- cant require all timber to be partially processed by the buyer in the State before it is taken out. That regulates the timber-processing market, not the timber-selling market. (2) Privileges and Immunities Clause of Article IV, 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. States cannot discriminate against out-of-staters with regard to (1) constitutional rights or (2) important economic activities. Such discrimination is only allowed when it is substantially related to achieving a substantial state interest. A citizen is limited to individuals, not corporations. The market participant exception and Congressional approval exception do not excuse laws violating the Privileges and Immunities Clause. Two part test: (1) Has the State discriminated against out-of-staters with regard to privileges and immunities that it accords its own citizens? (2) If so, is there a sufficient justification for the discrimination? Toomer v. Witsell (1948) South Carolina Code requires a license fee of $25 for each shrimp boat owned by a resident, but of $2500 for each boat owned by a non-resident. This disparity of treatment cannot be justified by a desire to conserve shrimp. Unconstitutional. United building and Construction Trades of Council of Camden County v. Mayor of Camden (1984) A municipal ordinance of the city of Camden requires that 40% of employees of contractors and subcontractors working on city construction projects be Camden residents. Clause applies to municipal laws and municipal residency, not just state law and residence. The ordinance discriminates against a protected privilege and to help the unemployed residents is not a substantial reason for protection from the Clause. Lester Baldwin v. Fish and Game Commn. Of Montana (1978) Hunting guide challenges state laws that ridiculously overcharge recreational hunting licenses to out-of-staters ($9 vs. $225). Court says that elk hunting is not a means of a nonresidents livelihood. It is not a fundamental right or activity under the Clause. Upheld because this is recreational NOT commercial. S. Ct. of New Hampshire v. Kathryn Piper (1985) NH limits bar admission to state residents only. Piper lives 400 yards from the NH border and sues to challenge. NH cannot justify that nonresidents would not be unfamiliar with local rules or behave unethically or be unavailable for court proceedings. NH advanced no substantial reason for its discrimination against nonresident applicants to the bar, nor did it demonstrate that the discrimination practiced bears a relationship to its proffered objectives. Ch. 5 The Structure of the Constitutions Protection of Civil Rights and Civil Liberties The Articles of the Constitution contain few provisions regarding individual liberties and are primarily concerned with the structure of the government. James Madisons Bill of Rights was originally only applied to the federal government. In the twentieth century, the Supreme Court

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applied most of the Bill of Rights to the states by finding that the provisions were incorporated into the Due Process Clause of the 14th. Saenz v. Roe (1999) Californias statute limiting the maximum welfare benefits available to newly arrived residents violates the Privileges and Immunities Clauses third component of the right to travel and enjoy the same rights as others who share their citizenship. The Current Law as to Whats Incorporated (which of the Bill of Rights should be included in the 14th Amendment?) Duncan v. Louisiana (1968) Duncan was denied his request for a jury trial for his misdemeanor charge of simple battery because the LA Constitution only granted jury trials in cases in which capital punishment or imprisonment at hard labor may be imposed. The Court held that the right to trial by jury guaranteed by the 6th Amendment is incorporated into the 14th Amendment. It is a fundamental principle of liberty and justice and a right to jury trial prevents oppression of criminal defendants by the Government. The Content of Incorporated Rights The Bill of Rights do apply to state and local governments and with the same content regardless of whether it is a challenge to federal, state, or local actions. The Application of the Bill of Rights and the Constitution to Private Conduct 1. The Requirement for State Action. The Constitutions protections of individual liberties and its requirement for equal protection apply only to the government. Private conduct generally does not have to comply with the Constitution. The state action doctrine says that the Constitution applies to all levels of government and government officers, but not to private entities or actors. The Civil Rights Cases United States v. Stanley (1883) The Civil Rights Act of 1875 affirmed equality of all in the enjoyment of transportation, inns, public amusement, and theaters. The Court held that this did not violate the 10th amendment which reserves power to the States because the businesses, although privately owned, were like public utilities. Because of that, 14th Amendment 5 allows Congress to enforce the prohibition on state action, and therefore, to prohibit states from enacting laws in violation of the Act. 2. The Exceptions to the State Action Doctrine (where private conduct has to comply with the Constitution) a. The Public Functions Exception (a private entity must comply with the Constitution if it is performing a task that has been traditionally, exclusively done by the government) Marsh v. Alabama (1946) (Is the private property used for a public purpose?) A town in Alabama was owned by a company who had all legal title to the town. The Court held that the town is still a town and cannot impose criminal punishment on a person distributing religious literature on the premises of the town. Jackson v. Metropolitan Edison Co. (1974) (Is it an activity that has been traditionally, exclusively done by the government?) A heavily regulated, privately owned utility company, enjoying at least a partial monopoly, and empowered to deliver electricity to a city discontinued Jacksons electricity after notice of nonpayment of bills. Jackson sued for violation of 14th Due Process for deprivation without adequate notice and a hearing. 21

The Court found that the Pa. Public Utility Commission allowed the service termination and was permissible under state law. The Court said that this connection of the utility company and the State was not strong enough to make the utility companys conduct attributable to the State for purposes of the 14th. Terry v. Adams (1953) (Elections) A Texas county political organization excluded Negroes from its primary elections. The Court held that the 15th Amendment bans racial discrimination in voting by both state and nation and is applicable to the right of Negroes not to be discriminated against as voters in elections to determine governmental policies or public officials either at the national, state, or local level. Private Property Used for Public Purposes Evans v. Newton (1966) A GA senator left land to the City to be used as a park for white people only. Negroes protested and the park managers brought suit asking that the city be removed as trustee and that the court appoint new trustees. The GA S. Ct. affirmed that the Senator could give his property to a limited class. The US S. Ct. said that the service rendered by the park, which has been open for years, is municipal in nature, and therefore, is a public institution subject to the command of the Equal Protection Clause of the 14th Amendment. Amalgated Food Employees Untion Local 590 v. Logan Valley Plaza, Inc. (1968) The Court held that peaceful picketing of a business enterprise in a shopping center cannot be enjoined on the ground that it is an unconsented invasion of property rights because the shopping center serves a community purpose and the State cannot exclude those exercising their First Amendment rights on the property conveying a message directly related to the use of the property. However, if the State wants to regulate the use of public property it may. Lloyd Corp. v. Tanner (1972) (Total rejection of Logan Valley holding) Boys distributed handbills in a mall (like Town Center layout) against the prohibition of doing so and when the handbills did not relate to the malls operations. The Court found that the mall is privately owned and operated property even though it is welcome to the public, and that no First Amendment rights were violated. Hudgens v. National Labor Relations Board (1976) Prohibition of peaceful primary picketing by labor union in a privately owned shopping center did not violate any Constitutional rights. b. The Entanglement Exception (private conduct must comply with the Constitution if the government has authorized, encouraged, or facilitated the unconstitutional conduct) Judicial and Law Enforcement Actions Shelley v. Kraemer (1948) A court in 1911 allowed a deed with a racially restrictive covenant. Here, the Court says judicially enforcing restrictive covenants would deny of equal protection laws. (Rarely applied because if any decision by state court represents state action, then ultimately all private actions must comply with the Constitution under Shelley.) Lugar v. Edmonson Oil Co. (1982) (Prejudgment attachment) Lugars property attached by Edmonson with a writ of attachment issued by state court. 34 days later, a trial judge ordered the attachment dismissed because Edmonson had failed to establish the statutory grounds for attachment alleged in the petition. Lugar sues Edmonson alleging that 22

Edmonson acted jointly with the State to deprive him of his property without due process of law. Court uses a two-part approach to test whether the conduct allegedly causing deprivation of a federal right be fairly attributable to the State: (1) The deprivation must be caused by the exercise of some right or privilege created or imposed by the State and (2) the party charged with the deprivation must be a person said to be a state actor. The Court held that Lugar was deprived of his property through state action and Edmonson was a state actor as it was acting under color of state law in participating in that deprivation. Edmonson v. Leesville Concrete Co. (1991) (Preemptory challenges= ability of a litigant to excuse prospective jurors without showing cause.) Applying the Lugar test, the Court holds that a private litigant in civil case may not use preemptory challenges to exclude jurors on account of their race. Here, the preemptory challenge was authorized by a federal statute and a private party could not exercise its preemptory challenge without the participation of the judge who is a state actor. Government Regulation Burton v. Wilmington Parking Auth. (1961) The Authority, an agency of the State, owned and operated a parking building with a restaurant space on the outside of the building leased to a coffee shop who refused to serve a Negro. Although little involvement with the coffee shop they are found to be interdependent, as the State profited from the lease and so the 14th Equal Protection must be complied with. Moose Lodge No. 197 v. Irvis (1972) The Moose Club refused to serve a Negro. Court would not consider the issuance of a liquor license by the state liquor board as state action because the Moose is a private social club in a privately owned building. Government Subsidies Norwood v. Harrison (1973) Parents file a class action on behalf of all students in Mississippi to enjoin in part the enforcement of the textbook lending program. They allege that some of the private schools exclude students due to race and, by supplying textbooks to them, the schools, acting for the State, provide direct state aid to racially segregated education. The Court held this was a violation of the 14th and that a State must steer clear from operating racially segregated schools and giving institutions that practice discrimination aid. Rendall-Baker v. Kohn (1982) Kohn is director of a private alternative school for students who abuse drugs and alcohol or have behavioral problems and are referred to the school by the Brookline or Boston School Committees or the Drug Rehab Division of the Mass. Dept. of Mental Health. The Mass. Act of 1972 says that referred students education to the school is to be paid for by the School Committee that referred the student. To be eligible for tuition funding, the alternative school must comply with regulations in the Act and regulations by Boston and Brookline authorized in the Act. Five teachers were discharged after a dispute over hiring decisions when they told Kohn they were forming a union. They sue for violation of 1st Amendment Free Speech and Due Process of the 14th. Court says that no state action because a private entity performing a function that serves the public since the Act does not make the services the exclusive province of the State. Blum v. Yaretsky (1982) May the State be held responsible for the decisions of nursing homes to discharge or transfer Medicaid patients without notice or opportunity for hearing? The nursing homes were not exercising powers traditionally the exclusive prerogative of the State or coerced or encouraged by the State. No state action.

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Initiatives Encouraging Violations of Rights Approved by Voters Reitman v. Mulkey (1967) California Proposition in statewide ballot was to allow one to refuse to rent, sell, or lease property at his own discretion. Does a repeal of a statute prohibiting racial discrimination be said to authorize and encourage discrimination because it makes legally permissible something that was proscribed? Yes because it would involve the State in private racial discrimination to an unconstitutional degree. Entwinement Brentwood Academy v. Tennessee Secondary School Athletic Assn. (2001) A statewide association that regulated scholastic athletic competition among public and private and secondary schools was held to be engaging in state action when it enforced a rule and imposed a fine against a member school due to the pervasive entwinement of state school officials in the structure of the association.

Ch. 6 ECONOMIC LIBERTIES- Economic liberties refer to constitutional rights concerning the ability to enter into and enforce contracts; to pursue a trade or profession; and to acquire, possess, and convey property. Courts use the Takings Clause, Contracts Clause, and the Due Process Clause of the 5th and 14th to protect economic liberties. A. Economic Substantive Due Process a. Early History Slaughter-House Cases (1872) A LA law granted a private company a 25 year monopoly in the slaughterhouse business and several butchers challenged because it denied their right to practice their trade and thus violated Due Process Clause. The Court rejected a Due Process claim because it said Due Process does not safeguard the right to practice a trade or profession without government interference. Loan Assoc. v. Topeka (1874) The Court used natural law principles, and no mention of the Constitution, to limit government regulatory power. The Court invalidated a city law that imposed a tax to fund bonds to attract private business to the city because it was an unauthorized invasion of private right and purely in aid of private or personal objects beyond the legislative power. Munn v. Illinois (1876) The Court upheld a state law setting maximum rates for grainstorage warehouse, but said that under some circumstances regulation of business would be found to violate due process. RR Comm. Cases (1886)- The Court upheld a state law regulating RR rates, but said that due process could be used to challenge such rates in the future. Mugler v. Kansas (1887) The Court upheld a state law prohibiting the sale of alcohol, but indicated that state laws would be invalidated for violating due process unless they were truly an exercise of the states police power. b. Lochner era (Late 19th c. through 1937)- The Court found that freedom of K was a basic right under the liberty and property provisions of the Due Process Clause, and it did not even touch on the Contracts Clause. During the era, the Court used federalism to limit the ability of Congress to regulate the economy by narrowly defining the scope of Congresss powers under the Commerce Clause. Allgeyer v. Lousiana (1897) A state does have the power to prohibit foreign insurance companies from doing business within its limits, but here, an insurance K was made and

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performed in NY with a foreign insurance company to effect property in LA and then LA sent a letter to the company saying that no can do because violated state law. Because the K was enforced out of state, it would violate due process of law because one has a right to contract outside the state and legislation cannot deprive of that right. The statute was a violation of the Constitution. Lochner v. New York (1905) NY law prohibited bakery workers from working over 60 hours a week or more than 10 hours a day. Due Process allows one to make a K in relation to his business and unless but the state does have police power which can prevail if the safety, welfare, and interests of the public are involved. The Court found this as an abuse of police power because it is not a health law and is an illegal interference with the rights of individuals to make Ks regarding their employment. The Due Process Clause was used to ensure that laws served an adequate purpose and the Court used three themes: (1) Freedom of K protected by Due Process Clauses, (2) government can only interfere with freedom of K to serve a valid police purpose of protecting public health, safety, or morals, and (3) the judiciary would carefully scrutinize legislation to see if its either a valid police purpose or not. (Laws Protecting Unionizing) Coppage v. KS (1915) Law prohibited employers from having an anti-union provision in employee Ks. Coppage, an employer, fined for violating the law. The Court held that the law was unconstitutional because it interfered with freedom of Ks and was not a reasonable use of police power because it takes 2 to bargain and the employee can decline employment if he doesnt like the terms. (Maximum Hours Laws) Muller v. Oregon (1908) The Court upheld a maximum hours law for women because a reasonable use of police power to protect the safety and health of feeble, physically inferior women. (Minimum Wage Laws) Adkins v. Childrens Hospital (1923) A D.C. Act fixed a minimum wage for women and children and was found unconstitutional because it placed a burden on the employer to pay a sum exceeding the services rendered of a partially indigent person. (Consumer Protection Legislation) Weaver v. Palmer Bros. Co. (1926) A law prohibiting the use of shoddy in comforters was found as a violation of the Due Process Clause because not a measure to protect health since no evidence of sickness or disease caused by use of shoddy and so the law is unreasonable. Nebbia v. New York (1934) Law fixed minimum and maximum prices to be charged for milk in stores following a decline in milk prices to that of below production cost and farmers were in threat of unemployment. Court said that milk is essential to diet and farmers in need of aid, so a reasonable use of police power because promoted public welfare. c. Economic Substantive Due Process Since 1937- The Court adopted a policy of great deference to government economic regulations. No more freedom of K under the Due Process Clause and no limits on Congresss ability to regulate the economy based on federalism or on narrowly defined federal powers. The end of substantive due process. (The End of Lochnerism) West Coast Hotel Co. v. Parrish (1937) State law requiring a minimum wage for women and children upheld because the Legislature has a wide field of discretion to protect health and safety and to insure that work is free from oppression and to reduce the evils of sweatshop conditions. 25

B.

United States v. Carolene Products Co. (1938)- The Court upheld a law prohibiting filled milk from being shipped in interstate commerce. The Court proclaimed a need for judicial deference to government economic regulations, with more aggressive judicial review reserved for cases involving fundamental rights and discrete and insular minorities. (Economic Substantive Due Process Since 1937= Any conceivable government purpose is sufficient to uphold a law as constitutional.) Williamson v. Lee Optical of OK, Inc. (1955)- Law required a prescription for any eyeglasses, even a replacement. Court names several possible reasons for the legislatures enactment and upholds saying The days is gone when this Court uses the Due Process Clause of the 14th to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. (Large punitive damage awards invalidated as violating due process) BMW v. Gore (1996)- Gore sued BMW because his new car had actually been repainted and prayed for $500,000 in compensatory and punitive damages. He was awarded 2m and the Court said this was grossly excessive and violates Due Process because the award is unfair and unreasonable punishment. State Farm Mutual Auto Ins. Co. v. Campbell (2003)- The $145m punitive damages award, when compensatory equaled 1m was unreasonable, disproportionate, and an irrational and arbitrary deprivation of the property of the defendant. Since 1937, economic substantive due process has been unavailable to challenge government economic and social welfare laws and regulations. Protection since 1937 has come under only the Contracts Clause, Art. I, 10, and the Takings Clause of the 5th. The Contracts Clause Art I, 10, No State shall pass anyLaw impairing the Obligation of Contracts. This provision only applies if a state or local law interferes with existing contracts. SO, the K Clause doesnt apply to the federal government; challenges to federal interference with Ks must be brought under the Due Process Clause where they will receive the deferential rational basis review. a. The Modern Use of the K Clause Home Building & Loan Assn. v. Blaisdell (1934) MN Mortgage Moratorium Law provided that during emergencies the district court of the county can extend the period of redemption from foreclosure sales. The Court says that the use of state power to give temporary relief from the enforcement of Ks in the presence of disasters was proper because (1) an emergency existed and (2) the legislation was for the protection of the basic interest of society and (3) the interference with Ks was appropriate for that emergency and (4) the redemption extension period is reasonable and (5) the statute doesnt outlast the emergency as to extend to all Ks. (Government Interference with Private Ks) Energy Reserves Group, Inc. v. Kansas Power & Light Co. (1983) Kansas passed law providing that the price of natural gas under a K cannot go up because of an increase in set price by federal government regulators. Sued because in the K, said price would go up accordingly, and not with the law it will not. If a state regulation constitutes a substantial impairment, the State, in justification, must have a significant and legitimate public purpose behind the regulation, such as the remedying of a broad and general social or economic problem. One legitimate public purpose is found, the courts must properly defer to legislative judgment as necessary and

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reasonable. Court says this was a reasonable use of police power to protect consumers from the escalation of natural gas prices. o When a state or local government interferes with existing private Ks, use this three-part test: (1) Is there a substantial impairment of a contractual relationship; (2) if so, does it serve a significant and legitimate public purpose; and (3) if so, is it reasonably related to achieving the goal? (Very similar to traditional rational basis.) Allied Stuctural Steel Co. v. Spannaus (1978) MNs Private Pension Benefits Protection Act required private employers who provided pension benefits to satisfy a pension funding charge if it either terminated the plan on closed a MN office. Steel closed an office and the State notified the company that it owed 185k under the Act. The Court says that there was a substantial impairment of a contractual relationship because it imposed a sudden, unanticipated, and substantial retroactive obligation upon the company, it was not enacted to deal with an emergency like in Blaisdell, and it does not deal with a broad social or economic problem. Held: Unconstitutional. (Government Interference with Government Ks) United States Trust Co. v. New Jersey (1977) Government interference with government Ks will be subjected to heightened scrutiny, although exact test not defined and no other case since. NJ and NY adopted laws prohibiting the use of toll revenues from the Port Auth. of NJ and NY from being used to subsidize RR passenger service as to assure those holding Port bonds that the toll funds would pay those debts. During the energy crisis of the 1970s, the states adopted laws to repeal those earlier prohibitions and bond holders sue alleging violation of K Clause. The repeal seriously disrupted the bondholders expectations, but the legitimate public interest test of necessity and reasonableness cant be put to use as the K was a government K and the States self-interest is at stake. The Court held that the repeal was not a necessity because a modification could have helped and there were alternative means beyond repeal or even modification. The appeal was unreasonable and a State is not free to impose a drastic impairment when an evident and more moderate course would serve its purposes equally well. K Clause prohibits the retroactive repeal. C. The Takings Clause- Both the federal government and the states have the power of eminent domain, but are subject to the Takings Clause of the 5th Amendment which states nor shall private property be taken for public use without just compensation. (1) Is there a taking? Possessory or regulatory?; (2) Is it property?; (3) Is the taking for public use = rationally related to a conceivable public purpose?; and (4) Is just compensation paid= in terms of loss to the owner? a. Is there a Taking? Possessory Takings- Permanent physical occupation of real property through confiscation. o Loretto v. Teleprompter Manhatten CATV Corp. (1982)- NY law forced landlords to permit cable tv companies to install cable upon the LLs property and a onetime $1 fee to the LL must be paid. The Court held that this minor, but permanent physical occupation is a taking because it was authorized by the government. Regulatory Takings o Pa. Coal Co. v. Mahon (1922) Mahon had property rights except for the surface rights granted to Pa. Coal in a deed. A Pa. law forbade the mining of coal in a way that could cause subsidence of any structure used as a human habitation. The 27

Court held that a strong public desire to improve public conditions, nonetheless, a taking because the regulation goes too far and the company cannot benefit from its interest in the subsurface rights and must be justly compensated. Miller v. Shoene (1928) The State forced Ps to cut down red cedar trees because of the Cedar Rust Act as to protect apple farmers trees from disease; the Act does not provide compensation. Court says that a State does not exceed its constitutional powers when forced to destroy one class of property to save another which the legislature feels is of greater value to the public. Connelly v. Pension Benefit Guaranty Corp. (1986) Three factors to determine a regulatory taking: (1) The economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with investment-backed expectations; and (3) the character of the governmental action. Penn Central Trans. Co. v. NYC (1978) NYC placed restrictions on the development of historic landmarks as to preserve landmarks. Penn Central asserts that the denial of ability to exploit a property interest that they believed was available for development is a taking. Court says not a taking because the restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties. The Court used a substantive due process analysis. Lucas v. SC Coastal Council (1992) Lucas bought lots and intended on building homes, but the legis. enacted a law that barred the erection of any habitable structures on the property. If States regulation deprives land of all economically beneficial use in the name of the common good then the owner has suffered a taking and must be justly compensated. Since Lucas, the Court has applied an economic viability test to favor a plaintiff only if denied of all economically viable use of the property as in Lucas; zoning restrictions and other laws that reduce the use are not takings unless economic viability virtually all reduced. Nollan v. CA Coastal Commn. (1987) CA conditioned a bldg permit on the owners granting a public easement to cross the property for beach access. Police power allows the govt to place conditions on development if it is rationally related to preventing harms caused by the construction. Unless the permit condition serves the same governmental purposes as the development ban, the bldg restriction is not a valid regulation of land use but an out-and-out plan of extortion. Dollan v. City of Tigard (1994) City placed condition on permit that would require P to build a sidewalk and bike path on her property. Cannot create conditions as such requiring giving up some property unless an essential nexus between a legitimate state interest and permit requirements of the proposed development. To say who can walk on land and who cant is an interference with the exclusive right of possessory interest. Palazzolo v. Rhode Island (2001) A property owner may bring a takings challenge to regulations already in place when property was acquired. Title was taken with notice of limitation but future generations and the landowner have a right to challenge unreasonable limitations on the use and value of land. 28

o Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) A moratorium on development (temporary restriction on building) is not a per se taking of property. There is no yes a moratorium is a taking or no its not a taking, but the Court must use the Penn Central test approach to the factual circumstances of the particular case. b. Is it for Public Use? Hawaii Hsg. Auth. v. Midkiff (1984) The Public Use Clause does not allow states to take property from people to redistribute to other private owners to combat concentrated land ownership. Government cannot take ones property to benefit another private person without justifying public purpose, even if compensated. c. What is the Requirement for Just Compensation? Market value to owner at time of taking. Brown v. Legal Foundation of Washington (2003) A lawyer whos not entitled to any interest on client funds must put $ in an IOLTA and the interest earned on the account goes to the state legal assistance programs. This is not a taking because the P was never entitled to any interest, so the loss=0 and is not a taking.

Ch. 7 EQUAL PROTECTIONConstitutional Provisions Concerning Equal Protection The Constitution provided no equal protection of the laws originally. After the Civil War, widespread discrimination led to the passage of the 14th amendment which provides in part: No state shall deny to any person within its jurisdiction the equal protection of the laws. The Equal Protection Clause was rarely used to strike down any state or local action until the 1950s. Justice Oliver Wendell Holmes called it the last resort of constitutional arguments. Brown v. Bd. of Ed. (1954) led to the modern era of equal protection jurisprudence and a companion case, Bolling v. Sharpe (1954) held that equal protection applies to the federal government as well through the Due Process Clause of the 5th Amendment. Since the Constitution doesnt explicitly require the federal government to require equal protection, the Court avoided the embarrassment of allowing the denial of equal protection by interpreting the 5th as including an implicit requirement for equal protection. A Framework for Equal Protection Analysis Is the governments classification justified by a sufficient purpose? =an important objective for the discrimination? (1) What is the Classification? =Facially discriminatory or facially neutral? a. Facially Discriminatory- The classification exists on the face of the law. b. Facially Neutral- No classification exists on the face of the law but the law has a discriminatory impact and purpose. (2) What is the Appropriate Level of Scrutiny? =Strict scrutiny, intermediate scrutiny, or rational basis test? a. Strict Scrutiny- For discrimination based on race or national origin. Immutable characteristics- born with it and stuck with it. Government has the burden of proving that the discrimination is necessary to achieve a compelling purpose. b. Intermediate Scrutiny- For discrimination based on gender and against non-marital children. The Govt has the burden of proving that

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the discrimination in the law is substantially related to an important government purpose. c. Rational Basis Test- The minimum level of scrutiny that all laws challenged under equal protection must meet. The challenger has the burden of proving that the law is not related to a legitimate government purpose. (3) Does the Government Action Meet the Level of Scrutiny- The Court evaluates the laws ends and its means. The Court often focuses on the underinclusiveness or overinclusiveness of the law. Underinclusive would be like limiting drivers licenses to those over 16 when some people under 16 are equally capable, and some, if not better, drivers than some who are over 16, thus the law could include anyone incapable of passing driving competency tests. Overinclusive is like the evacuation of all Jap-Ams during WWII even though only few posed any threat. The Protection of Fundamental Rights Under Equal Protection- Usually to analyze govt actions that draw a distinction among people based on specific charac The Rational Basis Test- Must be Rationally Related to a Legitimate Government Purpose What Constitutes a Legitimate Purpose? Romer v. Evans (1996) A Colorado Amendment prohibited all legislative, executive, or judicial action at any level of state or local government designed to protect gays either as a minority status or protected status. The Amendment nullifies any protection against discrimination in employment, real estate transactions, education, healthcare, etc. This law declares that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government and is itself a denial of equal protection; it lacks a rational relationship to legitimate state interests. Must It Be the Actual Purpose or Is a Conceivable Purpose Enough? United States RR Retirement Board v. Fritz (1980) The Court held that the conceivable legislative purpose of enacting the RR Retirement Act was enough. Even though the Act eliminated certain benefits to some employees, the Act was to create a sound financial system of the RR retirement system which had been threatened with bankruptcy. o Limiting the purpose to simply a conceivable purpose would allow for Congress to invent a conceivable purpose for any law, give the Govt far too much deference, and allow nearly every law to survive the rational basis test. The Requirement for a Reasonable Relationship- The law must be reasonable in light of its purpose and will be upheld unless the governments action is clearly wrong, a display of arbitrary power; not an exercise of judgment. Tolerance for Underinclusiveness Under Rational Basis Review Railway Express Agency, Inc. v. New York (1949) Although the NYC traffic regulation that prohibited advertisements on vehicles is underinclusive because it does not regulate any other advertising visible from roadways such as that in Times Square. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all. Tolerance for Overinclusiveness Under Rational Basis Review New York City Transit Authority v. Beazer (1979) Classifications Based on Race and National Origin On the Face of the Law

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Facially Neutral- There must be a proof of a discriminatory purpose for such laws to be treated as racial or national origin classifications. o Washington v. Davis (1976) Two Negro cops sued Commissioner of D.C. alleging that DC discriminates against hiring black cops because the written test is failed by a disproportionately high number of blacks. Although the law may bear more heavily on one race, it is facially neutral and a law establishing a racially neutral qualification for employment is not racially discriminatory because a greater proportion of blacks fail than members of other racial or ethnic groups. o McCleskey v. Kemp (1987) Mc sentenced to death after armed robbery and killing of a cop during. He sues saying GA capital sentencing is administered in a racially discriminatory manner in violation of 8th and 14th since more Blacks are given the death penalty. No evidence that the GA Leg. enacted the capital punishment statute to further a racially discriminatory purpose, and no evidence that the legislature maintains the statute because of the racially disproportionate impact suggested by a study the D presented. o City of Mobile v. Bolden (1980) Municipality with at-large election system and blacks say voting system hasnt had any blacks elected. Not enough to show that the group allegedly discriminated against has no elected representatives in proportion to its number. P must prove the disputed plan was conceived or operated as a purposeful device to further racial discrimination. Negro candidates having been defeated in an election is not proof of a constitutional deprivation. o Rogers v. Lodge (1982) (note) Consistent with City of Mobile, but in this case, atlarge system found unconstit because of sufficient proof of a discriminatory purpose behind the election system. Long history of purposeful discrim against blacks, exclusion of blacks in political process, no black elected even though substantial majority of population and minority of registered voters. o Is proof of discrim effect also required?Never expressly addressed but indicates yes. Palmer v. Thompson (1971) Court entered judgment enforcing desegregation of city pools and parks. City desegregates all, except surrendered lease on one pool and closed the other four which it owned. Negros sue to reopen and operate desegregated. The closing of the pools to all citizens cannot prove any racially discriminatory motive like avoiding integration, and so not a denial of equal protection of the laws. o How is a discrim purpose proven? Desire by govt to discriminate. Not simply action with knowledge of discrim consequences. Personnel Admin of Mass. v. Feeney (1979) Veterans hiring preference statute caused a severe exclusionary impact on women but was made in good faith to reward veterans for service. Court says the adverse consequences to women were intended because they were foreseeable since 99% of veterans in Mass. were male. BUT the awareness of the consequences only shows that legislature chose an action partly because of adverse impacts on women. The statute gives preference to any person who was a veteran, not of men over women. o Village of Arlington Heights v. Metropolitan Hous. Devt Corp. (1977) Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause by the Village when refused to rezone for MHDC who recd federal assistance to build low-income townhouses so MHDC sued under 14th and FHA. Court says determining whether discrim purpose was a motivating factor demands a 31

sensitive inquiry into such circumstantial and direct evidence of intent as may be available. Three ways purpose can be proven: (1) A clear pattern of discrimination emerges from the effect of the state action even when the governing legislation appears neutral on its face , unexplainable on grounds other than race, but impact alone is not determinative and other evidence must be looked at; (2) historical background of the decision is one evidentiary source; (3) legislative or administrative history can be evidence too. o Applic: Discrim Use of Peremptory Challenges Race- or gender-based peremptory challenges deny equal protection whether exercised by prosecutor, criminal d, or a civil litigant. Gender Classifications- Level of scrutiny? How is it proven? The Level of Scrutiny Strict. Until 1971, the Courts approved gender discrimination. Applying a strict scrutiny test, it was repeatedly held that womens health is a great public interest because of the physical differences and traditional role of mother and wife and so women need protected. The Emergence of Intermediate Scrutiny. Reed v. Reed-(1971)-The Court invalidated an Idaho law giving preference to the male heir over the female to be the administrator of an estate. The Court said that the mandatory preference is forbidden by the Equal Protection Clause of the 14th applying intermediate scrutiny that they incorrectly considered a rational basis test. o Frontiero v. Richardson (1973) Female AF lieutenant sued because females could not claim their spouses as a dependent for increased allowances and medical benefits, but men could do so. Govt asserted that the differential treatment saves the Govt money, but offered no concrete evidence. Classifications based upon sex, race, alienage, or national origin must be subjected to strict judicial scrutiny. Differential treatment to achieve administrative convenience violated Due Process of the 5th. o Craig v. Boren (1976) Does a gender-based differential constitute a denial of equal protection of the 14th to males 18-20 years of age since the OK law says women can drink nonintoxicating 3.2% beer at age 18 but men not until 21? The Govt presented statistics showing that males get more DUIs, are more likely to drive drunk, and males are in more traffic accidents. Nothing measured the dangerousness of this nonintoxicating beer and none of the results relate to the age-sex differential in the law= no substantial govt purpose (intermediate scrutiny). Denial of equal protection. o United States v. Va. (1996) VMI for men only, and VMI created VMIL as a separate program for women, but VMIL was at a different college with lower standards and less educated professors. Va. argued that the admission of women would downgrade VMIs stature, adversative system and the school. The Court said they had no persuasive justification. This is a categorical exclusion of women from an extraordinary educational opp. to men at a state-supplied school. Remedy is to eliminate the discrim effects of the past and bar like discrim in the future. Proving the Existence of a Gender Classification 32

(1) On the face- Craig v. Boren and US v. Va. (2) Facially Gender Neutral- Personnel Admin of Mass. v. Feeney When is it Discrimination? Gedulig v. Aiello (1974) CA disability insurance system that provided for privately employed who are not covered by workers comp and are temp unavailable to work, but it did not include coverage for those disabled as a result of pregnancy. State said that it would be impossible to maintain the program, which is funded by worker contributions, because the coverage of those disabilities is extraordinarily expensive. The State does not have to insure all risks, all risks that are insured by the program are gender neutral, and the line drawn by the State is rationally supportable. Not a violation of 14th, EPC. Gender Classifications Based on Role Stereotypes (Invalidated)Orr v. Orr (1979) AL alimony law required men only to pay upon divorce. The State law prefers to keep the wife as a dependent role in the family and uses sex as a proxy for need. This is not substantially related to an important govt purpose because the compensatory purposes of alimony can be served by a gender-neutral classification such as the spouse not in need pays the spouse in need.ViolatesEPC. Miss. U. for Women v. Hogan (1982) State law excluded males from statesupported nursing school. The gender-based classification based on the stereotype that nursing is a womans job is not substantially related to the proposed compensatory objective of educational affirmative action to compensate for discrim against women. Excluding men is not necessary to achieve the schools goals. (Upheld) Michael M. v. Superior Court of Sonoma County (1981) Law made it illegal for a man to have sex with a woman under age 18. State said to prevent illegitimate teen pregnancies. Statute is sufficiently related to the States objectives to pass constit muster because protects the female and provides an additional deterrant for men. Rostker v. Goldberg (1981) Does the Military Selective Service Act which authorizes the President to require registration of males violate the 5th Amendment? Congress recognized and endorsed the exclusion of women from combat in the Army and Marine Corps when drafting the Act. Men and women are simply not similarly situated for purposed of a draft or registration for a draft because of the combat restrictions on women. The decision does not violate the Due Process Clause. (Gender Classifications Benefitting Women as a Remedy for Past Discrimination or Differences) Califano v. Webster (1977) A 1972 amendment to the Social Security Act directly compensated women for past economic discrimination by the discrepancies in earnings provided to women pre-1977. Reduction of the disparity in economic conditions between men and women is an important governmental objective to redress societys longstanding disparate treatment of women.

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o Schlesinger v. Ballard (1975) Upheld a Navy regulation that required the discharge of men who had gone 9 years without promotion, but allowed women to stay until 13 years without a promotion. Constitutional because men had more opportunities for promotion due to combat restrictions on women, and a longer period of tenure for women provides women fair and equitable career advancement programs. Classifications Benefitting Women b/c of Biological Differences between Men and Women Nguyen v. Immigration and Naturalization Service (2001)Nguyen became a US lawful resident at age 6 when moved with his American dad to US but at 22 sentenced to 8 years in prison for sexual assault on a child and 3 years later found deportable since at hearing they found he is an alien convicted of a crime involving moral turpitude. He challenged the Act that required different rules for attainment of citizenship by children born abroad and out of wedlock depending on whether the American parent is male or female. Court says this is not a gender stereotype, but is a governmental interest assuring that a biological parent-child relationship exists, its just easily evidenced that the mother is American because she is there at birth. Dad needs to prove that he is the biological father for purposes of his childs citizenship status. Intermediate Scrutiny. Dissent says must be an exceedingly persuasive justification for the gender discrimination by important governmental objectives being served and the discriminatory means are substantially related to achieving those objectives.

Alienage Classifications

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