01/04/2015 19:54:00

The Nature of Judicial Review

Constitutional Supremacy: when there is a conflict between a statutory law

and the Constitution, the Constitution is Supreme

Judicial Review: the Supreme Court looks to the Constitution and interprets

the Constitution

Should judges interpret the Constitution?

o

One view is that since the Constitution was made by the people, for
the people it should be interpreted by the people.

Counter-Majoritarian Difficulty: judges are telling legislatures what they can

do but they are unelected officials, who are in office for life.

Counter-Majoritarian Anxiety: A judge on the Supreme Court who has

anxiety because they are unelected and serve a life term; the judges are worried
that they appear illegitimate

4 Arguments of Constitutional Supremacy

The People

Its Right

Necessary Frame

Tactic Consent

The Origin of Judicial Review

Natural Law and Positive Law

Natural Law: idea that law is an objective set of rights and wrongs; the role

of humans is not to make law but to discover it

Medieval Natural Law; Organic Government and the Divine Right of Kings

o Organic Government: human society is like a giant organism and

connected in a way that a body is connected. Everyone has the
same interest and the people are tie in that way; the people want
to establish that natural law is the law of the land

Divine Right of Kings: kings can make all of the decisions; it is

particularly hard to determine what natural law requires, therefore
the people must obey the king because he has the same interest as
the people

Positive Law (new theory that has just been established about 100 years

ago): law is made by the will of the sovereign; the people are not discovering it,
they are making it
The Social Contract
Social Contract: the strong cripple the weak because the weak have no one to look
out for them. The government is there to protect the natural rights of the people.
No longer is it one great body of people, it is a body of individuals who each enter
into the contract because it is in their own self interest. The social contract has 2
versions, both were present in the Constitution

Civic Republicanism (Framers grew up surrounded by CR but quickly

changed to CL)

Belief: Natural Law

Goal: Common Good; the common good is achieving the natural law

Method (Thomas Jefferson): Participation; the best way to make people

virtuous is to organize them in small homogeneous communities (states),
that are roughly equal in wealth and power.

No pursuit of your own self interest but they know that people are
naturally self interested. Therefore, set up institutions to change the
selfish nature of the people

Corruption: if you put your own self interest ahead of the common good

Virtuous: if you put the common good ahead of your own self interest

Classical Liberalism

Belief: Natural Law

Goal: No Common Law, Maximize Autonomy; everyone is looking out for

their own self interest and you cannot make people virtuous, therefore
create rules that allow people to pursue their own self interest as long as
they do not intrude on anyone else

Method: Individual Rights (the right to be left alone); the one thing that
would violate the natural law would be to take away individual rights

Pure Positivism

Belief: No Natural Law

Goal: Maximize Preferences; no one can judge anyone else, you can only
say that you prefer one thing over another. Therefore, look at human
preferences to make sure that as many people as possible have satisfied
references as possible.

Method: Legislative Supremacy; to maximize utility, you go to the

legislature and let them determine what the law should be

Application: Anti-Goat Sex Statute

CR: the statute is a reflection of the common good made by the

legislature; assuming that the legislature is apart of the social institution,
it is good law

CL: must determine if this is an intrusion on individual rights. The

conclusion is that we intrude on each others rights all the time. Some one
must determine where one persons rights start and where anothers ends.

Pure Positivism: the statute would be a reflection of preferences made by

the legislature; if the legislature passed it, then it is good law

Conclusion: The Framers were writing a legislature when they created the
Constitution. All three of these theories puts legislature at the center of
government. (this changes under Marbury)

Marbury v. Madison (Establishes Constitutional Supremacy and Judicial

Review)

Two political parties: 1) Federalists (pro national government, pro freemarket) and 2) Republicans (no big government, no free market).
Federalists lose the election. The outgoing federalists pass the Circuit
Court act, doubling the number of federal judges. Adams appoints all
Federalists. Some did not get commissions, including Marbury. Marshall,
as outgoing Secretary of State, signs all the commissions and did not
deliver them on time. Marshall then argues that since the statute tries to
give the court more power, it is unconstitutional. Once Jefferson took
office, he told Madison (new Secretary of State) to withhold the
commissions.

Does Marbury have a right to the commission?

Yes, he has the right to the commission because it was signed by

the president and sealed by the secretary of the state

Does Marbury have a remedy?

o

Yes, he has a right to a remedy whenever there is a violation of

legal right. Where there is a right, there is a remedy

Can US courts force the president to give Marbury the commission?

o

There are times where the President has discretion over certain
matters because the Constitution says that he has that power
(Foreign Affair). This is not an issue that is up to Presidential
discretion

3 steps
o

Did Marbury ask for the right remedy?

Yes, he asked for a writ of mandamus

Does a statute give Marshal original jurisdiction in this case?

Yes, the Judiciary Act gives original jurisdiction in this case,

according to Marshall

Does the 1789 Act actually give him the right?

The US Constitution says that he may not take original

jurisdiction and therefore, the Judiciary Act is not
constitutional

What does the statute say and what does Marshal say it says?
o

The Act does not say exactly whether it is original or appellate

jurisdiction. According to the text, it makes sense to say that it is
appellate jurisdiction because it comes right after the discussion of
when the SC has appellate jurisdiction

Marshall says that the Act gives the SC original jurisdiction over the
writ of mandamus (misreading of statute)

Which article of the Constitution does he use to strike down the Act and
what does Marshall say it is?

Article III, Section 2 of the Constitution is used to strike down the

Act Marshall says that the SC had appellate jurisdiction in all cases
except for cases affecting ambassadors, other public ministers and
consuls, and those in which a state shall be a party.

Judiciary Act of 1789

o

The last sentence that deals with writs of mandamus does not have
to do with jurisdiction, it has to do with the type of remedy that is
available if you have jurisdiction over the case.

The Act says that the SC has original jurisdiction in cases involving
states and diplomats

Marshall says that the Act says that the SC has original jurisdiction
in cases involving states, diplomats, and Writs of Mandamus

Article III, Section 2 of the Constitution

o The Article sets out the powers of the judiciary branch. This section
says that the SC has original jurisdiction in cases of states and
diplomats.
o

According to Marshall, the Judicial Act and Article III do not match
up, and therefore, the Act is unconstitutional

Marshalls political brilliance

o

Marshall misread the statute to give himself jurisdiction. But he

also misread the Article to take away jurisdiction.

If he was to allow the Writ, Jefferson would likely strike down the
request and not issue the Writ. This would show that the SC does
not have the authority that it claims to have. Marshall did not want
this.

As a result of misreading both the Article and the Act, he

established that the Chief Justice is supreme and Judicial Review.

Marshalls Version

Jud. Act,

III 2 (2)

1789

The Consensus Version

Jud. Act,

III 2 (2)

1789

States

States

States

States

Diplomats

Diplomats

Diplomats

Diplomats

Writs of

Mandamus

Else

Nothing

Stuff

And Other

Reasons for Constitutional Supremacy

1) Taken for Granted: Democracy is not one thing. People have different

understandings about what democracy should look like. We are creating a

democratic process out of nothing and developing structure (Marshall points out
that is better to have a Constitution that is taken for granted, meaning settled on
and not changed very often)

2) Direct Act of the People (Central claim made by the Supreme Court for

Constitutional Supremacy): A representative government is electing people and

hoping that they will do the things that the people want. The Constitution is made
by the people deciding fundamentally how they want the government and they limit
the government.

3) Its Right: the Constitution was put in place in order to protect our basic

human rights

4) The Constitutional Design: Our Constitutional design is good for the people

only if it is helping them solve their problems. The Constitution has the ability to
give the people a structure that will give them certain incentives. It gives the
people tools that will help them govern themselves.

Who should interpret the Constitution? Supreme Court, but why not

Congress?

Congress is an elected court and it always changing so interpretation will

always be changing

Congress will interpret the Constitution to say that there is no limit on

Congressional powers

Congress is known to be corrupt; judges are objective, rational

Transmission Theory of Judicial Review: when we write the constitution, we

want civil engagement. But this is unrealistic because the people have to go about
their everyday lives. They turn over the job of watching over Congress to Judges

How the Supreme Court Determines the Constitution

Text
o

The court must interpret the words of the text but they often must
use outside thinking; some language is vague

Intent of the Framers

Framers did not anticipate all of these issues; little evidence to

show what the Framers were thinking

Values
o

The court looks to the deep values of the American people (gets
difficult when there is strong feelings on both sides)

Precedent

Application: Defensive Marriage Act for Short and Tall People (No one

between the heights of 54 and 60 tall may get married or have children. Based
on the text alone, why would you strike it down?

Amendment X

o Any power that is not listed in Article I, Section 8 marriage is not a

power that the legislature is in charge of. It is left to the states

Article I, Section 8 of the Constitution

o

This section lays out the rules for what Congress can regulate and
marriage is not on the list

Amendment V
o

You cannot take life, liberty, or property without due process of law

What the Court says the Constitution Means

It divides Powers: checks and balances

Federalism: division of power between the state governments and federal

government; any political system in which power is divided by the
constitution between the central government and sub national
governments

Separation of Powers: the division of powers within the federal

government between the executive branch, legislative branch, and judicial
branch

Individual Rights: the government cannot intrude into individual rights

because that is reserved for the people

Federalism Theory

The Articles of Confederation created a central government that was too

weak, and the Constitution was created in response to that. The Framers wanted a
stronger central government, but not too strong.

he
States

Fed:

Legislature

Fed:

Judiciary

The People

ed:
Exec.
Branch
.

Reasons for Central Government

Unity

Uniformity

Reasons for State Government

Protecting Cultural Diversity

Protecting local people against the central governments hostility of

indifference

Encouraging participation

Taking advantage of local knowledge

Allowing speedy action

Checking the central government

Enumerated Powers vs. Implicit Powers

Brutus (Civic Republicanism) (Decentralization; Virtue)

Why is centralization bad?

o

Too many people: with this many people, there are to many
opinions and the legislature will not mirror the population

Political Gridlock or Oppression: with so many different prospective,

legislation would be at a stand still. If a law does pass, the minority
is not represented

Standing Army: when the government is not respected by the

people, they will feel unpowered. The government will have a
standing army that will keep the people in order

Corrupt: the people in the government are only serving their own
self interests

Publius (Madison) (Centralized Government; Liberty)

What is the great problem in democracy?

o

Factions: people have different interest and they compete for their
own self interest

You cannot remove the causes of factions because everyone is so

different. Except that people are different and have their own self
interest and try to control factions

How do we control factions?

o

Large Republic

Grid Lock: a large republic will cause gridlock which is good

because the factions will not be able to do things in their own
self interest. This makes for very little government; less
government is the best government. The government should
not intrude in private, individual liberties

Virtuous Leaders: a large republic will cause better leaders to

be elected.

Mixes liberalism (self-interests governs behavior) and republican (virtuous

leaders working for the common good)

MCulloch v. Maryland (First great Federalism Case) (Power)

Maryland enacted a state statute that all US banks have to pay if they
want to operate within the state. McCulloch was a bank teller who gave
out bank notes without paying the tax.

Issue: Does Congress have the power to incorporate a bank?

Yes. The US can have a National Bank with branches in any state. No
state can impede on the powers given by the Constitution.

The background assumption is that Congress can do nothing. In order to

rebut that assumption is to point to a power given in the enumerated
powers.

Marshall uses the enumerated tax power to say that the US can charter a
bank. If you give the US the power to tax, you also give the US the power
to exercise a means in order to implement the power to tax.

Means to an End: in order to implement an enumerated power, the

Constitution implicitly gives Congress the power to adopt certain means.
(Broadest interpretation)

Marshal holds that if the end is legitimate, then it is included in the US

powers. It does not have to be a good means or the best means

Application: Congress has bought villas in the South of France, where

senators get to spend their summer vacations. There are safes in the basements
that store tax money. It is a very safe way to store taxes. Would this law be ok
according to Marbury v. Madison?

This would not be Constitutional according to Marshall because the

pretext of the reason why Congress is getting villas and putting the
money in the basement is wrong. The real motive has to be to raise
taxes, which is the enumerated power. (must be good faith)

Foreign Affairs Powers

Congress gets its foreign affairs powers from Article I, Section 8 and Civil

War Amendments

Perez v. Brownell

Issue: is congressional power to legislate on foreign affairs limited to laws

implementing treaties and such sources as are found in Article I, Section
8, the Civil War Amendments, and similar grants of legislative power?

Where does the federal government get its foreign power?

o

The states. The Supreme Court says that the states must be held to
give these powers to the government because it is logical. However,
it is not in the Constitution, it is in the minds of the Supreme Court.

Problem: foreign affairs is not an enumerated power and the people

made the Constitution and give power, not the states

United States v. Curtiss-Wright Export Corp.

Where does the federal government get its foreign affairs powers?
o

The foreign affairs powers come from the King

Problem: We dont have a King, foreign affairs is not an

enumerated power

The Supreme Court says that foreign affairs is not an enumerated power but

it is a power that the federal government should have. Why?

Article I, Section 8 gives Congress 3 clauses that allow the government

some foreign affairs power (treaties, commerce, war). If you put these
three together, they create a very general foreign affairs power

Summary: The Federal Government has enumerated and unenumerated

power. The only unenumerated power that the courts have found are the foreign
affairs powers. Marshall concluded that Congress may use any means at all in order
to achieve an enumerated power. The only provision is that it must be in good faith
and no pretextual intent.

Interstate Commerce Clause (Article I, Section 8, Clause 3)

If it is interstate commerce, Congress can regulate it

Gibbons v. Ogden

Defendant was licensed, under the state of New York, and exclusive right
to take people across New York waters to New Jersey. Plaintiff was
licensed under an Act of Congress to transport people across the waters.

Issue: is the power to issue an interstate license within Congresss

commerce power? If it is in Congresss power, who wins, federal or state
law?

The Federal government will always win over state because of supremacy.
Therefore, the only issue is whether it is within Congresss power.

Commerce: all types of intercourse

Regulate: can be to prohibit or set rules for how commerce can take place

Among: New York says that among means between, therefore, the only
time that it is between is when it is directly on the border. For Marshall,
among means intermingled with

The only time Congress cannot regulate is when it is wholly internal

within the states (Marshall)

Wholly Internal (must have all 3 factors):

o

1) within one state

2) does not affect other states

3) not necessary to interfere for the purpose of executing some of

the general powers of the government

Marshalls 2 types of regulations for interstate commerce

Regulations that , on their face, regulate interstate commerce

It is ok for Congress to regulate

Regulations that, on their face, regulate something other than

interstate commerce

It is ok for Congress to regulate if it has an effect on other

states

Once you determine that Congress can regulate it, Congress must regulate it

in good faith

The Lottery Case (Champion v. Ames)

Congress passed an Act that said that lottery tickets cannot pass through
interstate commerce. The government is thinking about moral values.

On the face, the Act is about interstate commerce. However, the motive is
in bad faith

The court upheld the Act because they said Congress has the power to
regulate, no matter the motive behind the Act.

Dissent: it is not enough to say that it is formally on the subject of

interstate commerce, you have to say that it is animated by a concern
about interstate commerce.

Exactly how broad is Congresss interstate commerce power?

The power to regulate commerce is general and has no limitations other

than those prescribed by the Constitution. It does not however, extend to
commerce that is completely internal. The powers are absolute, as long as
it does not contradict any other provision in the Constitution

Houston, East & West Texas Ry. v. United States (Shreveport Case)

(Substantial Effect Test)

Texas set very low rates for shipments made within the state of Texas.
Texas also set rates extremely high for shipments outside of the state.
The ICC fixed interstate rates to a certain price and ordered Texas to raise
their interstate shipment rates

Formally the Act to lower outside taxes was to regulate interstate

commerce, The motive behind it was also to keep interstate commerce
safe.

Formally the Act to raise intrastate rates was to regulate intrastate

commerce but the motive behind it was to regulate interstate commerce.

Holding: Congress can regulate intrastate commerce when it is, in all

matters, a close and substantial relation between interstate commerce
and intrastate commerce. (Substantial Effect Test)

Hammer v. Dagenhart

An Act that child made goods cannot pass through interstate commerce

Formally, this is interstate commerce but the motivation is child labor. It is

more like morals legislation (similar to Lottery Case)

The court, in this case, strikes down the Act because it is really about
child labor and not interstate commerce. (ruling opposite to Lottery Case)

United States v. Darby (FDR Series of Cases)

President Roosevelt was implementing the New Deal in order to help the
economy (increase spending)

Fair Labor Standards Act: meant to prevent the production of goods for
interstate commerce, under conditions detrimental to the maintenance of
the minimum standards if living necessary for health and general wellbeing

Carter Coal Case (Direct Effect Test)

o

Held that organizations of the company would set the minimum

wage standards and the hourly maximum standard.

Formally, the Act is not about interstate commerce

The regulation is Constitutional if there is a substantial effect on

interstate commerce.

Held that the effect must be direct and not just substantial. (Direct
Effect Test)

Using the Direct Effect Test, low wages do not have a direct effect on
interstate commerce.

NLRB v. Jones and Laughlin Steel Corp. (Substantial Effect Test)

o

Act that prohibits the formation of unions by workers

This court changes the test again. The court goes back to the
Substantial Effect Test

The court says that the form and the motivation are something other than
interstate commerce

After this case, Congress can regulate if there is a substantial effect even
if the motive and the form are not about interstate commerce. Therefore,
if you are creative in the legislative drafting, you can accomplish almost
anything

Wickard v. Filburn (Substantial Aggregate Effect Test)

o

Agricultural Adjustment Act

Farmer grew some wheat and baked some bread to sell it.
Congress said that this Act will ensure that the wheat will move
through interstate commerce at a lower price

This is local in form and interstate commerce in motive

The court uses the substantial aggregate effect test to uphold the
Act

Heart of Atlanta Motel, Inc. v. United States (Rational Basis Test)

Civil Rights Act of 1964

Formally, something else and the motive is something else, not interstate
commerce.

Congress argues that when commercial businesses discriminate against

AA, this discourages AA from traveling and this has a negative effect on
interstate commerce

The court upholds the Act under the Commerce Clause, using the rational
basis test. The court looks to whether there is a rational basis that there
was an effect on interstate commerce

United States v. Lopez (Substantial Effect Test for Economic Statutes)

12th grade student brought a gun and bullets to school. Gun Free School
Zone Act made it a federal offense to knowingly possess a firearm in a
school zone.

Formally, something else, the motive is something else

The rational basis test is no longer valid. The court says that when the
statute is economic in nature, you must use the substantial effect test. If
it is not economic in nature, you must show a concrete tie to interstate
commerce.

Economic Nature: Substantial Effect

Non-Economic Nature: Concrete tie with jurisdictional element

o

In order to make the statute have a concrete tie, you must say that
it was a gun bought from interstate commerce (the gun came from
another state)

United States v. Morrison

If you are a woman and you are subject to violence, you can sue the
person who abused you

This is not economic in nature, therefore there needs to be a concrete tie.

The court found no concrete tie and struck it down.

Gonzales v. Raich

Controlled Substances Act: you cannot grow marijuana at home and use it
for your own consumption. California allowed the home growth and
consumption of marijuana for medical purposes

The Lopez dissenters are now in the majority for this case

The form and motive of the statute is about something else.

The majority says the statute is economic in nature because it deals with
drug trafficking. The court uses the Substantial Effect Test

National Federation of Independent Businesses v. Sebelius

Affordable Care Act (ObamaCare): must buy insurance coverage or you

may have to pay a penalty

The form and the motive is about something other than interstate
commerce. It is an economic statute because you are being forced to
purchase something. Therefore, you must use the substantial effect test
in the aggregate, according to precedent

The court does not go with precedent because the court says that there is
a difference between activity and inactivity. All of the prior cases were
regulation of an activity. Here, Congress is trying to regulate inactivity.

Arguments by Roberts
o

The power to regulate commerce presupposes the existence of

commercial activity to be regulated

If Congress can make you buy insurance, they can make you eat
your vegetables

Must be Necessary and Proper

ObamaCare is struck down under the Commerce Clause and the

Necessary and Proper Clause but it is upheld under the Tax Power.

Spending Power Clause (Article I, Section 8, Clause 1)

Ways that Congress can spend money

1) Raise Revenue (Conventional Tax Laws)

2) Direct Spending (Army, School, Etc.)

3) Incentivize Behavior (Financial Incentive to do Something)

o

tax incentives (tax breaks, heavy taxing)

spending incentives (subsidies, government funded programs)

What goals are Congress allowed to achieve by using incentivizing behavior?

Madison: the only things you are allowed to incentivize people to do are
the things in Article I, Section 8. Therefore, you can give the state money
to do any of the things that are in the enumerated powers.

Hamilton: Congress can spend money for the general welfare. (broad
view)

Bailer v. Drexel Furniture

Child Labor Tax: any company that uses child labor will be subject to 10%
tax.

Act is invalid because Congress cannot use the spending power to

regulate child labor

South Dakota v. Dole

U.S.C. section 158: Congress will take away federal highway funding if the
minimum drinking age is not above 21

Congress cannot directly regulate alcohol because:

o

1) it is not apart of the enumerated powers

o 2) it is a power given to the states under the 21st Amendment

According to the court, this is a valid financial regulation through

incentives

Doles Conditions:
o

1) General Welfare: Congress must spend according to the general

welfare. Congress is to determine what general welfare really is.

2) Clear Choice (Unambiguous)

3) Relate to Program: Conditions must be related

4) Independent Constitutional Limit: must not violate any other

Constitutional provision

5) Coercion: Congress cannot spend money in such a way as to

coerce the states. It must be voluntary.

National Federation of Independent Businesses v. Sebelius

ObamaCare (Medical Expansion): This expands the coverage of Medicaid

to almost everyone. The government will give money to the states and
they must expand their coverage.

The court ruled that this was more than mildly coercive, it is a gun to the
head.

Steward Machine Co. v. Davis

Social Security Act program for unemployment compensation, proceeds of

a federal tax on employers went into the general federal treasury. But
these employees received 90% credit on this tax for payments to a state
unemployment compensation fund under a state law that met federal
requirements

Cardozo says that if the unemployment benefits are not uniform, people
will migrate to where the unemployment benefits are the best. (need for
uniformity) States are not fit to handle it on its own.

Helvering v. Davis

Upheld the Social Security Acts old age pension program, supported
exclusively by federal taxes

State Immunity from Federal Regulations

National League of Cities v. Usery

The states are left with the residual powers according to the 10 th
Amendment. Fair Labor Act enacted by the Federal Government.

The 10th Amendment restricts the FG when they are

3 standards
o

1) traditional government functions

2) functions that are essential to separate and independent

existence of the states

3) cannot impair the ability of the state to function within the

federal system

Garcia v. SAMTA

Congress has those powers delegated in Article !, Section 8 and only

those powers. This basically means that Congress can do whatever it
wants because the enumerated powers are so broad.

New York v. United States

1985 Low Level Radioactive Waste Amendment Act

Ways the Federal Government can Find Waste Sites

o

1) Direct Regulation: have designated waste sites where the waste

must be put

2) Conditional Funding: give the state financial incentives

3) You Regulate or We Will: either the states regulate or the federal

government will

o 4) Find Waste Sites: order the states to find waste sites (this is
what the federal government is not allowed to do; it is taking over
the states) OConnor says commandeering the states

The Federal government cannot force the states to make laws that are not
their own. The court says that the Act looks like there is a choice but it
really does not. The court holds that the federal government cannot force
states to adopt the law because the state politicians will be taking the
heat for what the federal government is doing.

Reno v. Condon
o

Drivers Privacy Protection Act

The laws of New York only applies when trying to protect the people
from an accountability risk. New York only applies if a burden falls
on the people and they do not know who to blame because the
lines of accountability are not clear

In this case, it is purely internal and there is no risk of

accountability misunderstanding

Printz v. United States

Brady Handgun Violence Act: directed police officers to do background

checks before they were issued a gun

The court held that the act was unconstitutional because the federal
government was trying to commandeer the state executive branch

Interstate Privileges and Immunities Clause

The Federal Government cannot erect trade barriers. The United States is a

universal free market

Baldwin v. Fish and Game Commn of Montana

Montanas non resident license fee of $225 for hunting elk, compared to
$30 for residents

This is not about what states can do to their own citizens, it is about what
a state can do to a citizen from another state. We want citizens to be able
to move from state to state without hesitation

The court says that there is clearly discrimination but the right to hunt is
trivial and not a national right that must be protected.

Holding: When determining if something is a natural right, it is a right

that is innate in each individuals moral worth. Blackmun says that this is
not the question. The question is not about natural law, it is about
national law. We must determine how the right will affect the nation as a
whole. This does not mean fundamental rights or individual rights. It is a
federalism questions.

In order to find out if the regulation hinders the purpose of the nation, we
must determine what the purpose for forming the union is. However,
there is no explanation for why the union was formed.

Preemption through the Supremacy Clause

Sometimes Congress might pass a statute that goes against the state as long

as they are within their Article I powers.

The Constitution places federal limits on the states in 2 ways

1) The Constitution itself can regulate the states directly

2) Congress can tell the states that they must do something (as long as
Congress stays within its Article I, Section 8 powers)

Types of Preemption

1) Preemption by Contradiction
o

Congress says do X and the states say dont do X

2) Preemption by Pervasion

Congress has passed an elaborate and detailed statute that covers

every possible contingency. Congress believes that there needs to
be uniformity in a certain field.

Separation of Powers

Separation of powers between the branches of the Federal Government.

Model Theories of Government

1) Rule of Law Model: President should not have many powers. He should
only enforce the law that the legislature enacts

2) Effective Government Model: The President needs to have more powers

in order to act with speed, secrecy, and decisiveness

3) Checks and Balances Model: the branches should get into each others
way. The legislature should enact the law.

Presidential Action Affecting Congressional Power

Youngstown Sheet and Tube v. Sawyer (Rule of Law)

President Truman issued an order for the government to take over the
steel mills. Efforts to resolve a dispute over wages failed and the union
issued a nation wide strike. President Truman wanted to take over the
steel mills in order to prevent a national catastrophe

The President can get his power from two places: an Act by Congress or
the Constitution (Article II). Congress has explicitly ruled against allowing
the President to take over a private field in cases of emergency. President
Truman says that he is Commander and Chief according to the
Constitution and he has the power to take over the steel mills in order to
keep the army resources.

The court says that the President only has the power to execute the laws
that Congress puts in place. He is not allowed to make policy and this law
deals with policy.

Justice Jackson Concurs: there are 3 different situations

o

1) Congressional Authority: The President has the most power

when Congress gives him the authority to do something

2) The Zone of Twilight: This is in between the Presidential powers

and Congress is silent on the matter. We dont really know what
Congress wants. Congress must determine whether the President
has the power according to the exigencies that surround the
situation. If the job needs speed, secrecy, and decisiveness, the
President should have the power to control it.

3) Congress Prohibits: The President must rely on his Constitutional

powers that give exclusive authority over it (Exclusive Executive
Authority)

This case falls under #3 because President Truman is relying on his

Constitutional power to be Commander and Chief. The court says that he
has the power to lead the army only. The law that Congress enacted
specifically instructs him not to seize the steel mills.

The court says that the President has no inherent powers because it will
lead to dictatorship. The President is under the control of Congress.

Why should Congress, rather than the President, set policy?

1) Congress is Democratic: You can structure Congress in a way that

accurately represents the people. The President is far removed from the
people.

2) Congress engages in Deliberation: Congress can deliberate about

issues and must get to a majority. NO one in Congress can do anything by
themselves.

Why do we have the Presidency and Judiciary?

There are two kinds of law, general laws and targeted laws. General laws
are likely to be good because they are likely to fall on everyone the same.
Part of what the rule of law means is that laws must be general.

Rule of Law (keep branches separate and impartial government)

1) Congress sets policy (except in the twilight zone)

2) Laws must be general and prospective

o

Although this is not completely possible, we need to come as close

as possible

3) Separate, Independent Court and Executive

Must have separate branches from Congress because Congress

cannot interpret its own laws. The courts are able to check the
legislature and hold it to its word of impartiality. The President is
separate because he must enforce the laws that Congress makes.

Problem with Rule of law: it works perfectly is the laws are general and fall

on everyone alike. However, everyone is not the same. Therefore, it is inevitable for
the laws to fall on people differently.

Congressional Action Affecting Presidential Powers

INS v. Chad Ha (Checks and Balances)

Day 1: INA->Go; The INA said he had to go but they delegated the power
to the AG to keep him

Day 2: AG->Stay; The House said he had to go because they are

overriding the AGs power

Day 3: House->Go

The court rules that this is unconstitutional. Article I, Section 7, Clause 2

states that both houses have to agree and the President has to agree. In
order for a bill to become a law, the house, the senate, and the President
all have to agree. The House of Representatives alone cannot make a law.
The House changed his legal status by itself when it changed Chad Has
legal status from stay to go. All one house legislative vetoes are
unconstitutional. Once you give the president policy making power, it is
gone for good

Checks and Balances (keep the branches in each others way, limited

government)

Goal: limited government; if you leave the government inactive, the

private sphere will be left alone and the people will have freedom

Set the government in such a way that one branch of government

impedes another branch

Clinton v. New York (Checks and Balances)

Line Item Veto Act: gave the President the authority to cancel certain
provisions of a law that were enacted by Congress. Types of Cancelations:
o

Any dollar amount of discretionary budget authority

Any item of any new direct spending

Any limited tax benefit

The last two types of cancelations are in dispute.

In order to cancel, the President must find:

It will reduce the Federal budget deficit

Not impair any essential Government functions

Not harm the national interest

Two different statutes in dispute:

o

1) Balanced Budget Act

2) Taxpayers Relief Act

The President has a veto power under Article I, Section 7 where he can
veto any Congressional Act in whole.

This veto is different because it is a partial veto and it takes place after
the Act has been enacted.

The court holds that the President cannot veto in part. He must accept in
whole or veto in whole.

United States v. Curtiss-Wright Export Corp. (Effective Government)

Congress gave the President the authority to prohibit sale of arms to

Bolivia and Paraguay. Is an unconstitutional delegation of power to the
President?

The majority holds that the President has preexisting foreign affairs
powers given to him by the Constitution. Congress is just adding to the
powers that the President already has out of necessity. Within the field of
foreign affairs, we need some on who will act with speed, accuracy, and
decisiveness. Congress can delegate this power to the President out of
necessity.

Effective Government (each branch takes care of different things, Effective

Government)

The reason we have separation of powers is for the government to do

things. Each branch is good at different things; decide what each branch
is good at and give them the respective authority.

Campbell v. Clinton

Executive Privilege and Immunity

United States v. Nixon

Issue: Executive Privilege. The special prosecutor subpoenaed presidential

tapes and documents based on an incitement that named Nixon and
unindicted co-conspirator, and charged seven of his staff with obstructing
justice

Nixon argues that he has presidential privilege with all presidential

dealings

The court holds that the President does have some privilege but the
privilege is not absolute. There are certain situations where the president
needs immunity, such as protecting the military, diplomatic matters, and
sensitive national security secrets.

The privilege is a qualified privilege because some times it will come into
conflict with another branches core function. The core function of the
executive branch is national interest. The core function of the judiciary is
justice of the rule of law and the core function for the legislative branch is
popular will. The court must balance the immunity power against justice
and the justice system.

The court says that when there are secrets involved, the President will
maintain his privilege. Therefore, in order for the court to compel him,
there must be no secrets in the matter.

Nixon v. Administration of General Services

Nixon v. Fitzgerald

Issue: Presidential Immunity. Fitzgerald was fired for being a whistle

blower. He sued President Nixon saying that he was fired illegally.

The court finds and absolute immunity in this case, which is distinguished
from qualified immunity. Absolute immunity means that you cannot be
sued even if you knew what you were doing is illegal. Qualified immunity
means that you cannot be sued if you did not believe that you were
breaking the law (good faith)

Limitations for Absolute Immunity:

o

It is only for official presidential acts

Hiring and firing is something that is within the scope of the

White House duties

It is only for civil suits that are asking for damages

The President needs to act with speed secrecy and decisiveness.

Therefore, if he is worried about being sued all of the time, he will not act
in this manner

Clinton v. Jones

Federal civil suit against Clinton for unwanted sexual advances when the
President was the governor of Arkansas. The President wants temporary
immunity. He believes that right now the case will take up too much time
and it could be better used elsewhere. He is not saying that he cannot be
sued, but he doesnt want to be sued now

The court says that the President cannot use the immunity found in
Fitzgerald because he was not President at the time the act took place, he
was only governor. This will not take up too much of the Presidents time
and he needs to address the case now.

Cheney v. U.S. District

Individual Rights

The Federalists said:

No need for specific protections for individual rights because we have a

federalism. The government will never get out of hand because we have
not given them enough power to let them get out of control

The Anti-Federalists said:

The powers can be read very broadly, which will allow the Federal
government to infringe of individual rights. They created the Bill of Rights

Economic Rights

Pure Positivism
o

No extra textual rights

Pure procedural machine

Civic Republicanism
o

Economic independence for democracy

Economic rights: public and private threats

Equality through rights

Hierarchy through rights

Classical Liberalism
o

Autonomy: the goal of economic rights is person autonomy

Diversification

Inequality

Policy Boundaries

Privileges and Immunities Clause

Calder v. Bull

According to the majority, a law should be struck down if it violates the

Constitution or the natural law. The Constitution is meant to protect
natural principles. The natural law does exist and the courts should be the
ones who enforce it. The majority is speaking as a classical liberalist.

The dissent says that the natural law has no fixed standards and it is all
about what you feel. There is no objective standard and therefore, the
legislature should decide the law because they are elected by the people.
The dissent is speaking as a civic republicanism

A pure positivist would say that the natural law does not exist and it is all
about preferences. Therefore, Congress should decide the law. The point
of the Constitution is to write out the preferences of the people and set up
the procedures of preference.

Slaughter House Cases

New Orleans passed a law that created a monopoly to get rid of all the
slaughterhouses except for one. The excluded slaughterhouse owners
challenged this law because it violates his privileges and immunities. He
believes that he has the right to buy property and use the land as a
slaughterhouse. (an economic right)

According to the majority, the privileges and immunities clause protects

the citizens of the United States and not the citizens of the states. The
privileges and immunities for the citizens of the US is only protection
against the federal government, not state government.

Dissent: the privileges and immunities clause for US citizens extends to

protect US citizens against the state governments as well.

Slaughterhouse says that the 14th Amendment does not protect extra textual rights.
The Supreme Court wants to change this without overruling this case. Instead of
using the privileges and immunities clause, the court turns to the Due Process
clause. According to the Supreme Court, you have extra textual rights from the Due
Process clause.
Saenz v. Roe

California made a law that you can only get welfare benefits after you
have lived there for 12 months. (Durational Residency)

Holding: when you permanently relocate from one state to another, you
are a state citizen from the first day you move there and you are awarded
the same rights as all other citizens of that state. If you are a citizen of
the US, you are also a citizen of the state where you reside. Durational
residency requirements are illegal.

Substantive Due Process: the problem is not that we have no extra

textual rights. Maybe we do have those rights but Due Process is not the
place to put it. It should be moved to Privileges and Immunities

Economic Substantive Due Process Clause

Lochner v. New York

The court held invalid a New York statute forbidding employment in a

bakery for more than 60 hours a week or 10 hours a day. New York is
concerned that bakers are dying young because of the dust they inhale.

The court holds that the statute interferes with the right of contract. This
created a substantive right to contract. You can interfere with the contract
if you have a public well fare motive only.

Due Process: The Magna Carter used the words Law of the Land and it
came to be known as Due Process. It means that the king may act against
you only according to general, prospective rules (similar to rule of law)

What is the difference between a general law and a targeted law?

o

You can hurt people as long as the hurt is incidental. There has to
be some good coming from the law

Once the legislature has given you certain rights, those are called
vested rights. If they are given to you by the legislature or common
law, they can be taken away again. The only rights they cannot
take away are Constitutional rights

o Vested Rights Doctrine: if a law restricts the common law or

statutory rights of a discernable class, then we will irrefutably
presume that the motive was to hurt that class and nothing else.

Nebbia v. New York

Milk Control Board set the minimum and maximum for the price of milk.
Nebbia was selling milk below the minimum set price.

A law that is in accordance with the Due Process clause must promote
public welfare. The legislature can adopt any legislation that may
reasonably be deemed to promote public welfare.

Rational Basis: you had a reason for what you did. It does not have to be
a good reason, it just has to be A reason.

Incorporation: Take the first 8 Amendments and apply them to the states.

The 14th Amendment Due Process Clause takes all of those rights and applies those
to the states

Modern Substantive Due Process-Right to Privacy

Griswold v. Connecticut

Connecticut Law that prohibited the use and provision of contraceptives.

Plan Parenthood challenged this law.

The purpose of the law is trying to discourage extra material sex. People
who are not married will be discouraged to have sex because they will not
be able to get contraceptive. It is also meant to encourage married people
not to have sex outside their marriage

Douglas: the law is unconstitutional. It is not the actual provisions of the

Constitution that strikes the law down, it is the penumbra (shadow). The
text has additional rights to provide a buffer that protects the core of the
right.

Harlan Concurred: According to the 14th Amendment the provision is

invalid. There is a continuum between order and liberty. We are
somewhere between totalitarianism and anarchy. According to Harlan, the
living tradition standard is how we find the key to strike the balance.

Black Dissents: looking to extra textual rights is enforcing their own

interests and not enforcing the natural law.

Roe v. Wade (Established limited right to abortion)

Texas statute outlawing abortion, except when the mothers health is at

stake. The state of Texas stated that life begins at the moment of
conception

3 reasons for restrictive abortion laws:

o

1) discourage elicit sex, and encourage morals

2) the health of the woman involved

3) fetus is a life that the state is entitled to protect

Precedential Case: the majority looks to cases before and they have
protected this sort of right, therefore, the court must protect the right to
abortion

You must prove that the right to an abortion is fundamental, involves a

right to privacy and is an extension to marriage, procreation and sex. The
majority lists problems women will face when they are pregnant and the
court must protect women.

There is a claim that the fetus has a right. In the 14 th Amendment there is
rights given to persons. Therefore, it must be determined whether the
fetus is a person. If the fetus is determined to be a person, then any state
that allows abortion is going against the Constitution.

Blackmun says that you are not a person until you are post natal. This is
because the Constitution gives rights to persons who can do things. Pre
natal beings do nothing but grow. The fetus is not a 14 th Amendment
person

There is a right to an abortion. However, laws that regulate fundamental

rights are not automatically unconstitutional. The court must use strict
scrutiny standard of review. There must be a compelling state interest,
meaning it is necessary for the state to impose on the right. The law must
also be narrowly tailored, meaning the law has to match up with the
purpose and restrict rights as least as possible
o

Trimester System:

the critical point is the first trimester. Once the first trimester
is done, it is safer to have the baby then to have an abortion.
Therefore you can regulate abortion after the first trimester if
it will make the mother safer.

Once the second trimester has finished, the fetus is viable

and the interest in the fetus is compelling. Viability: the fetus
can live outside of the mothers womb. You can prohibit
abortion at the point of viability, which means after the
second trimester.

Conception-------------1st --------------------2nd (viability)--------------Birth

o

No Regulation

Safe Regulation

Any Regulation

What does viability really tell us?

o

If viability is determined by whether the fetus can live outside of

the mothers body, then viability is all about scientific methods and
medicine. The better the science, the earlier the baby can stay alive
outside the womb.

Roe was a poorly written opinion.

Maher v. Roe & Harris v. McRae (Funding Abortion)

The state is under no affirmative obligation to fund an individuals private

rights. You have a right to an abortion, but the state does not have to pay
for your abortion

If the state funds, it must fund in a neutral and nondiscriminatory way.

You cannot use funding to do something that you cannot do any other
way.

Hyde Amendment: funding abortions that are necessary in order to save

mothers life and child birth. The state is trying to discourage abortion.

The court upholds the Hyde Amendment because it says that there is no
positive discriminatory funding.

Plan Parenthood v. Casey

The plurality opinion reaffirms the holding in Roe. However, they reject
the trimester framework. They keep the viability distinction. You can ban
abortion after viability but you cannot ban it pre viability. Before viability,
you can regulate in order to protect the womens health. But before
viability, you cannot impose an undue burden upon the womens right to
choose.

Pre Viability: No undue burden

Post Viability: All bans OK

Exception for threat to life or health

Regulations which do more than create a structural mechanism by which

States, or the parent or guardian of a minor, may express profound
respect for the life of the unborn are permitted, if they are not a
substantial obstacle to the womans exercise of the right to choose. The
regulation can be put in place in order to discourage abortion but it
cannot create or have the effect of a substantial burden for the womans
right to choose

The only provision that the court strikes down is the spousal notification
requirement; Upheld: 24 hour waiting period, informed consent, one
parent consent with judicial bypass.

The court says that if a decision is purely wrong, you should strike it
down. If you have some doubt but it is not purely wrong, you should rule
according to precedent. The court says that the viability framework was
not purely wrong because it has not proved to be unworkable.

Much better opinion than Roe

Gonzales v. Carhart

Statute at Issue: Partial Birth Abortion Birth Act of 2003: prohibits

abortions where the doctor begins the process of birth and when the fetus
is partially outside the womb, the doctor dismembers the fetus

Standard D&E: the fetus is dismembered before it is fully removed

Intact D&E: the fetus is dismembered after the fetus is removed

Pre Viability: you can regulate in the interest of the womens health

The court holds that the Act is sustained. In this case, Congress made the
Act, as opposed to a statute from a state. Therefore, we must determine
if they have the enumerated power to do so.

Bowers v. Hardwick (Sodomy not OK)

Statute that prohibits sodomy between any sex.

Sodomy: sexual contact of the genitals of one person into another person
mouth or anus.

Majority says that the real question is whether there is a right to gay sex.
White does not find a right to gay sex. There is no fundamental right to
gay sex and therefore, the standard of review is a rational basis, which
requires that you just have any reasoning.

Dissent: there is a right to gay sex and the standard of review should be
strict scrutiny.

Lawrence v. Texas (Gay Sex OK)

Statute that prohibits sex between the same sex

This case strikes down the statute and overrules Bowers.

Kennedy: he is not saying that there is a right to gay marriage, he is just

saying that there is a right to gay sex.

Before Equal Protection

Equal Protection Clause: restricts the state governments from racial

discrimination It does not restrict the Federal Government because the Federal
Government is restricted by the 5th Amendment Due Process clause.

Dred Scott v. Sanford

Plaintiff is a slave who wants to be free. He was born a slave but he

believes that he is now free. He thinks hes free because he was brought
to Illinois, where he would be a free man. However, now he is back in
Missouri.

Naturalization: power of Congress which grants citizenship to foreigners.

Dred Scott is not a foreigner according to the majority, therefore he
cannot be naturalized into a citizen of the US. Even if he is a citizen of the
state, he cannot become a citizen of the US

The issue is whether the Scott can actually sue because you can only sue
if you are a citizen. Therefore, we must determine if Scott is a citizen.

The court uses the Due Process Clause. If some one brings their property
(slave) into the territory and you take his property away, that is a
violation of the Due Process Clause. Traveling to the territories is an
innocent act and if you are punished for traveling to the territories, it is
obvious that the government is doing it because they just dont like it.

Professors 4 stories/lessons from Scott:

o

1) our nation was founded on Equality is a lie. Our nation was

founded on equality among white men. It took a long time to have
equality and it is still not established today. We are too quick to
congratulate equality

2) the court can do evil things and if the court did it in Scott, it can
do it today. Therefore, we have to be on alert for it.

3) the Constitution can be evil too. We always have to be ready to

amend the Constitution. Do not believe that it is a sacred doctrine.

o 4) The court is not going to save us from ourselves. If we want to

do evil things, we will do evil things. The Constitution does not
provide a wall for the dangers that we bring upon ourselves.

Rational Basis

Congress has decided that it wants to use an anti pollution device that will
be attached to cars. Law: people in Texas must attach these devices to
their cars
o

1) Coherent Reason: a reason that a sane person would recognize

2) The reason cited in the court does not have to be actual reason:
your actual reason could be because you hate Texans, but as long
as you go in and lie with a coherent reason, it is fine.

3) Reason does not have to have any basis in proven fact: you do
not actually have to show that the device reduces pollution. You
only have to show that there is some reasonably conceivable set of
facts. (a sane person might think it so)

4) even if your reason supports a broader reason, you can go one

step at a time

Equal Protection-Racial Discrimination

Korematsu v. United States

Executive Order giving General Dewit the power to force Japanese

Americans to move out of California into camps at war time. Petitioner
says that the provision violates the Equal Protection Clause because it
singles out a racial class. Therefore, there is a suspect class and it must
be put to strict scrutiny.

Laws that have racial antagonism are never Constitutional. If you have a
racial classification that is not simply racial antagonism, it must be put to
strict scrutiny-> compelling state interest and no less restrictive way to
advance it

Racial Animus-> Per Se Unconstitutional

Suspect Classification, No Racial Animus-> Compelling State

Interest with No Less Discriminatory Alternative

No Suspect Class-> Rational Basis

Immutability: racial discrimination is bad because race is immutable. You

do not choose your race and you cannot change it. If you didnt choose it,
you should not be punished for it

Meritocracy: the people should be rewarded for their merit. This helps if
you have the right people in the right place. The people should be good at
what they are doing.

History of Political Incapacitation: was the group restricted in the past

from a fundamental right?

Plessy v. Ferguson

Louisiana Statute that required equal but separate on trains. The

challenge is that it violated the 13th Amendments equal protection clause
because it discriminates based on race.

Racial Discrimination is:

o

Classifying people based on their race then you treat one group
worse then the other

Classifying people based on their race period. Even if you treat

them equally, it is still racial discrimination because you are
distinguished people based on race. (separate but equal)

Majority: Constitutional. It is a social discrimination and not racial.

Separate but equal is ok as long as it is done for the good of public
welfare and not merely to penalize a group that you dont like. The point
of the law cannot be to annoy or oppress a particular class

Why is Plessy wrong?

o

Separate but equal is not really equal. The real meaning of

separate but equal is black inferiority and white supremacy.

Equal Protection-Racial Segregation

Brown v. Board of Education

Issue: separate but equal in schools

This case did not overturn Plessy but it said that separate but equal is no
longer allowed in schools. The court said that when you segregate black
kids, they feel inferior. It is inherently unequal in the context of education

Loving v. Virginia

Virginia statute that abolished marriage between white people and any
other race. The Lovings are a black woman and a white man who got
married in DC and returned to Virginia and were convicted under the
statute.

Virginia says that statute is legal because it punishes both whites and
other races the same, therefore applied equally.

The court uses strict scrutiny because there is a racial classification.

Whenever you classify one race from another even if you arent putting
one group over another, you use strict scrutiny.

Loving says that separate but equal as a whole is unconstitutional

Washington v. Davis

Requirement of the San Francisco Police Department called Test 21. 4

times as many black as whites failed the test. There is no racial
classification on the face of the statute but it does have a discriminatory
result

A discriminatory effect by itself is not enough to call for strict scrutiny. It

is incidental and irrelevant. The standard of review is rational basis. In
order to strike it down, you must show that even though it is not about
race on the face of things, it was intended to have a racially
disproportionate effect.

Proving Intent in Order to Strike down Legislation

1) Totality of Facts

2) Discriminatory Effect

3) History

4) But For Cause

5) Single Intent

6) Reluctance

7) Re-Passage

8) Unconscious Racism

Equal Protection-Affirmative Action: creating new and fare procedures

for the competition. Redistributing the competition gap; a unit of the government
affirmatively wants to do something and take action

Regents of California v. Bakke

California schools were using a quota system for minority groups.

Particularly UC Davis Medical School held 16 spots out of 100 for minority
groups.

Powell: use strict scrutiny. There must be a compelling state interest that
served in the least discriminatory way possible. All classifications will be
treated the same whether they oppress one class or help one class. In
general, you should not look at race, look at qualifications. The diversity
requirement is unconstitutional because there was a quota system.

Remediation: Powel says that you must find identified discrimination:

o

1) who can make findings?

The court, legislature, administrative agencies

2) who can give AA?

If you want to participate in AA today, you must show that

your institution participated in discrimination in the past

3) to whom can AA be given?

You can grant AA to the exact individuals that you

discriminated against in the past. However, this would be
ineffective because the people who you discriminated against
in the past have moved on. Therefore, you can allow AA to
the particular individuals and to members to the group to
which they are apart.

Grutter v. Bollinger

University of Michigan Law School used race as a factor in admissions

process

Diversity: you need a very broad range of perspectives in the university;

looking for some one who will bring a certain perspective to the table.

The admissions process was upheld because the admissions board looked
at each applicant in an individualized manner

Gratz v. Bollinger

University of Michigan Undergrad uses a point system because they had

too many applicants to look at them on an individual basis. Minority
groups get a certain amount of points just for being a minority.

Unconstitutional because it is too much like a quota system

Parents Involved in Community Schools v. Seattle School District

Seattle Washington and Jefferson county Kentucky voluntarily adopted

student assignment plans that rely upon race to determine which public
schools certain children attend. (high school)

Seattle school district was never segregated and Jefferson was

desegregated by law. Therefore, Brown is not the governing precedent
and this does not overrule Brown.

Use Strict Scrutiny: must be narrowly tailored to meet some compelling

state interest. Must show that the process is narrowly tailored to meet
either diversity or remediation. In this case, since there was no past
unlawful discrimination, it is to meet diversity

Unconstitutional.

Fisher v. University of Texas

Stage 1: Plaintiff was denied admission to the University of Texas and

challenged the Universitys use of race in its admissions process. The
University used the AI, which was based on test scores and race. The
lower court said that Bakke was the opinion of one person and the
majority of courts today would not allow you to think about race.

Stage 2: The next thing UT does is automatically accept anyone in the top
10%. Then they use the PAI, which looks at whether the student
overcame a particular obstacle (such as a single family home,
socioeconomic conditions, and speaking another language). This was PAI
+ AI. Once the school moves to this plan, the percent of black students
goes from 4.1 to 4.5%. The numbers went up even though the process
was facially neutral.

Stage 3: top ten, AI and PAI

Strict scrutiny: must show that there is a compelling state interest and
the process needs to be narrowly tailored. In this case, the compelling
state interest is the increase in diversity. Justice Kennedy said defers to
the University to say that diversity is compelling. He says the university
knows what is best because they are the university. Kennedy says that
you cannot defer to the university for deciding that this is the least
discriminatory option (narrowly tailored). The lower court got it wrong
because they relied on the University for the narrowly tailored portion.

Whether the process is narrowly tailored will be determined without

regard to the University. Kennedy did not determine whether this was
narrowly tailored, he sent it back down for the lower court to determine
without deference to the University.

Richmond v. J.A. Croson Co.

Invalidated the city of Richmond, Virginias Minority Business Utilization

Plan, which required prime contractors in city construction contacts to
subcontract at least 30% of the dollar amount of the contract to one or
more Minority Business Enterprises (MBEs)

Remediation: 50% people of color in Richmond. 1% of the subcontracts

went to people of color. According to Richmond, this shows that there
must be discrimination by the private general contractors and therefore,
they can participate in remediation. Richmond wants to say that if thee
was private discrimination, the state can enact a process to remediate
past private discrimination an they can adopt an affirmative action plan to
order private people to remediate their own private discrimination.

OConnor: in some situations they can. It is only if the state has been a
passive participation in enabling past discrimination by a private entity.
Therefore, we dont exactly know when the state can regulate a private
entity for past discrimination.

Adarand Constructions, Inc. v. Pena

Metro Broadcasting Inc. held that affirmative action programs

implemented by the federal government need only satisfy intermediate
scrutiny. Federal affirmative action plans are easier to grant because they
only have to prove that there was societal discrimination in the past. This
is what they needed to do in order to get intermediate scrutiny.

The court in this case reversed this ruling and said that federal affirmative
action must be under strict scrutiny and not intermediate. The court might
defer to the fact findings if it is Congress.

Equal Protection-Gender Discrimination

Religion, ethnic, national origin was determined to get equal protection under

the 14th Amendment. By the 1950 and 60s, the issue of gender arises. The court
upholds gender based classifications at first. They then start to raise it a little bit
above rational basis and that is some times enough to strike it down. It is now
intermediate scrutiny (higher then rational basis but lower then strict scrutiny)

United States v. Virginia

Virginia Military Institute allows exclusive male enrollment. The goal was
to produce citizen soldiers. They used an adversative process (doing this
to break you basically) to determine if some one could be admitted. This
is a state school and that is why there is a potential equal protection
problem. The VMI decides to create another school for women, which they
claimed was the same as the VMI. However, it was much different
because it used the cooperative method (helping build their self esteem).

Justice Ginsburg: You must have an important government interest. The

word important shows that this is an intermediate level of scrutiny. The
government interest must be exceedingly persuasive justification. The
word exceedingly sounds more like strict scrutiny. Professor says that it
makes it kind of confusing. The court says that it gets at least
intermediate scrutiny but it has never been determined whether it is
intermediate or strict.

Sexist laws are always invalid. If the goal is to keep women in their
place then those laws are automatically invalid because they are sexist.
Even if there is an important state interest, it is still unconstitutional

Sexist

Per Se Unconstitutional

Gender Classification

Important Government
Interest + Narrowly
Tailored

No Gender Classification

Rational Basis

When it comes to race, there is no legal difference. However, in gender,

there are inherent differences and you can point them out when it is
appropriate and necessary.

The state must prove:

o

1) the gender differences are weird and they are not merely
overgeneralizations about men and women.

2) they must use it in a good way, they cannot use it as a way to

keep women out of the loop

3) cannot use the real differences as a proxy for something else.

There are differences between men and women but you cannot
generalize based on those differences

4) the law must serve an important state interest

Rostker v. Goldberg

Military Selective Service Act: Women excluded from the draft. Since
women are statutorily excluded from combat, Congress concluded that
they would not be needed in the event of a draft

The court says that excluding women is sufficiently and closely related to
Congress purpose in authorizing registration. It realistically reflects the
fact that the sexes are not similarly situated in this case.

Geduldig v. Aiello

Held that the exclusion of disability that accompanies normal pregnancy

and childbirth from Californias disability insurance system does not
exclude anyone because of gender

Regarded as one of the most serious mistakes. Justice Stewart failed to

reason his way through a fairly simple legal problem

Equal Protection-Sexual Orientation Discrimination

Romer v. Evans

Amendment 2 of the Colorado constitution is challenged. No protected

status based on homosexual, lesbian, or bisexual orientation. Colorado
says that this Amendment puts gays at the same level as everyone else.

After Amendment 2, if you are gay, and you want an antidiscrimination

law you have to amend the Constitution

Rational Basis: all you have to come up with is a reason. According to the
majority, there is no legitimate reason for this Amendment. According to
Scalia in the dissent, there is a rational reason

Kennedy says that the Amendment is too narrow and too broad at the
same time. It denies someone for one trait and at the same time is denies
protection across the board.

Blunder bust: old gun with a muzzle that hits every thing when you shoot
it. This Amendment is a blunder bust because it goes after everything.

Kennedy says that when you have something so broad, it is clearly just
hatred for one specific class of people.

After Romer v. Evans, you cans till disadvantage certain groups as long as
there is a government interest. It cannot be just to hurt or demean a
certain group.

United States v. Windsor

Defense of Marriage Act (DOMA) allows states to refuse to recognize same

sex marriages performed under the laws of other States. The word
marriage means only between a man and a woman. DOMA denies federal
recognition to same sex spouses. Windsor was married to another woman
in Canada and her marriage was recognized in New York. Windsor did not
qualify for the marital exemption from the federal estate tax. She claims
that DOMA violated her equal protection rights by denying her treatment
as a surviving spouse.

Kennedy cites Romer v. Evans. Use rational basis test. There must be a
legitimate state end/reason. Hatred cannot be a legitimate state end.

DOMA is deemed unconstitutional according to Kennedy. He believes that

it is based on hatred because
o

Too Broad: It is just like Romer. It is a blunder bust and it is not a

specific policy analysis, it is just hatred against one class

Departure from tradition: States have historically defined the term

marriage. DOMA changes that and provides its own definition of
marriage. If you just all of a sudden change from the tradition, then
it must be because of hatred

Equal Protection-Alienage

When states discriminate against legal aliens, that gets strict scrutiny

because that is a suspect class. There must be a compelling state interest that the
state has advanced in the least discriminatory way possible

Supreme Court: aliens are a suspect class for the states because they are
a discrete and insular minority and they will not get enough protection in
the political process

For undocumented aliens, that gets rational basis review because that is not

a suspect class. The state needs to have any rational reason.

For the Federal government, all aliens are always rational basis. It is never a

suspect class. This is because the Federal government is preeminent in the field of
foreign affairs.

Ambach v. Norwick

Whether a State, consistently with the Equal Protection Clause, may

refuse to employ as elementary and secondary school teachers aliens who
are eligible for United States citizenship but who refuse to seek
naturalization.

For the states, Aliens are a suspect class-> therefore, strict scrutiny
(narrowly tailored for a compelling state interest)
o

Exception: political community: roles that involve shaping the

political community are closed off to aliens

Teachers play a role in forming the community and therefore, it can be

denied to aliens. Teachers serve as role models and make citizens. It is
about forming people.

Equal Protection-Wealth Discrimination

San Antonio Ind. School District v. Rodriquez

How much money the school receives depends on the value of the
property surrounding the school. The petitioners want equal amount of
money sent to each school, no matter the amount of wealth in that school
district.

The fact that it falls heavily on the poor people is not relevant. The
determination is whether it is a complete deprivation of a fundamental
right. Education is not a fundamental right and it is not an absolute
deprivation of education. As long as you get some education, it is
constitutional.

Federalism, Separation of Powers and Individual Rights Together

Law of Democracy

Laws that structure our democratic system, such as voting rights.

What role should the court play in scrutiny the laws of democracy?
o

Maximum interventionists (1950-1960): it should get really

involved.

Political Lock up: the democratic system is discouraged

against democratic change. Incumbents do not want the law
to change because they were elected by that system.
Therefore, you need an unbiased court to change the laws
and get as involved as possible.

One person one vote: We live in single voting districts. Each

district gets one vote. You want to live in a district with a low
population because your vote matters more and has a
greater impact. The Supreme Court forced the legislation to
redistrict according to the amount of people in that district.
The court wants each district to have about the same
population.

Political Quagmire: Soon, the court decided to not get so involved;

dont intervene because we do not want to get caught in the
political quagmire.

Packing: if you are in the minority, you take the majority and
you pack them into one district. Deliberately concentrate
them in one district so that there is not enough to go around
in the other districts.

Cracking: if you are in the majority, you want to subdivide

the minority voters, and as a result, they are a minority in
every district.

Bush v. Gore

Automatic machine recount when the margin of winning is that small.

Gore protested the election of Bush and asked for a hand recount. There
were many under votes, which means they punched the hole but it didnt
go all the way through and the machine did not count it. The Florida
Supreme Court pushed the deadlines back later and later in order to wait
for the counties to get their hand votes in.

Per Curiam opinion of 5 justices ruling that the Florida recount was
invalid. They are saying that the Florida Supreme Court is violating the
law and making it up as they go along.

Under the Constitution, the state legislature has the power to choose who
will be elected. The people do not have Constitutional right to vote for the
president. However, the states have given the power to the people.
Therefore, the states must treat all votes the same and you cannot adopt
machinery that counts some votes and not others.

The ultimate issue for the Professor is the timing. He believes that the
Florida recount definitely violated the Constitution. The question is, what
do you do about it now? The Supreme Court (mostly Republicans) did not
want to recount to go forward but the Florida Supreme Court (mostly
democratic) did want to the vote to go forward. The Supreme Court
stopped the recount and said that the statutory deadline is over.

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