Con Law

Slaughterhouse cases' in-class notes

- What happened: the waterway was being polluted by diff slaughterhouses about a mile north of NOLA; their runoff was causing health problems in the city bc there were animal parts everywhere. LA decided to create a central slaughterhouse that all the butchers had to go and use - monopolized industry in the state. Butchers got together and sued. The state created a monopoly where all butchers had to use this one slaughterhouse. Butchers claimed violation of 13th amend rights, all three 14th amendment clauses. - Big question: was purpose of 14th amendment to transfer protection of rights from the state to the fed gov. - Talks about why 13th amend was passed, talks about ideas of reconstruction. Say even though it was passed for a specific purpose, they can still be used by people who are not black, not previously enslaved, can apply much more broadely (same for 14, 15) - Ct spends a lot of time going over issue that somebody is a citizen of a state and a citizen of fed gov. there are certain state privileges and immunities (gives rights like right to acquire and possess property, pursue happiness and safety)(over time, ct says we've come to see that these are some of the P and Is that people have as state citizens), ADD TO FORM, fed Ps and Is (access to high seas, assembly, etc) in short: ct is pointing to our separated system of state, fed govs. - P565: ct says 14th amend P and I clause...trying to draw bright line between what is state and what is fed. But it's not very bright at all, bc nobody can come up with a def of what P and Is are. - Why does 14th amend P and I clause only apply to fed gov: structure and spirit of our state and fed institutions have always been separate. - Dissent: maj opinion makes no sense bc the way you have interpreted this amend makes it completely useless. ADD TO FORM. Concern was oppression by union, but bc of CW, reconstruction, we started to try to curb rights' abuses by the states - totally ignoring the purpose of these amends, you've made this clause completely useless. - So, ultimately, bc of the slaughterhouse cases, we've pretty much abandoned the P and Is clause as the part of the 14th amend to apply any enforcement of rights to the states. Instead look to Due Process clause to do what the P and I clause was, arguably, meant to do, protect people from const vioaltions by states. - Today: P/I clause of 14th amdn still not used to apply bill of rights to the states. - J. Thomas often talks about how he disagrees with using due process for any substantive rights issues. Should just use due process clause as, literally, process. - Currently, DP clause has two parts: 1) procedural, 2) incorporating the bill of rts. DP is where we find the other unlisted, fundamental rights. Does a lot of heavy lifting. - Lotta people think SC made a big mistake in slaughterhouse cases. But we are where we are.

McDonald v. City of Chicago says that: "Laws that are challenged for regulating/limiting protected rights (fundamental rights or enumerated in the bill of rights)...:"

...may still be upheld under the right circumstances.

1The president can clearly exercise powers granted by: The Constitution and Constitutionally passed federal legislation. (NOTE: Exec branch, in general, meant to enforce the law. Also: if cong wants a certain program implemented, that plan will be implemented by exec. If Cong wants to punish exec branch, they can withhold money). Questions arise when considering whether the President may act beyond statutory authorization and no expressly enumerated constitutional provisions.

a. Argument against implied presidential powers: There is no Necessary and Proper Clause equivalent in Article II. N and P is just a tool used to expand upon powers given elsewhere in const - doesn't give any powers just by itself. There's nothing like that in Art 2 - but the argument for implied powers is that Arts 1 and 2 read totally diff. Art 1 specifically says cong only has the powers they've been granted, with N and P filling in the gaps. But Art 2 much broader, gives broad exec power. That makes us ask questions like 'what is exec power.' b. Argument for implied presidential powers: Article I and Article II read differently. Article I vests only the legislative powers "herein granted" but Article II is broader. It grants "executive power" in the president. Restatement of this: questions arise when pres really doesn't have any real statutory authorization form cong, no express const provisions.

Chemerinsky notes for Obergefell v. Hodges

1. Ct, 5-4, declared unconstitutional state laws that prohibit same-sex marriage. J. Kennedy's opinion for the majority primarily focused on why such laws violate the right to marry, but also said that he laws are unconstitutional as denying equal protection to gays and lesbians. He wrote: "Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbian serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry." But once more, the ct didn't indicate the level of scrutiny to be used for sexual orientation discrimination. 2. Ct said that the tradition of discrimination couldn't justify continued discrimination.

notes on the Dormant Commerce Clause (DCC)

1. DCC justification: cong has to act to keep states from going crazy. Question is where should those lines be 2. So when you're looking at whether something needs a uniform system, you should be considering what would the consequences be if we just let the states regulate this all themselves - even though cong hasn't acted, the argument against letting the states regulate, say, rr, is that doing so would cause the rr to be unworkable 3. Test for DCC: legit state interest, discriminating against other states, is there a reasonable alternative to discriminating. 4. Dormant commerce clause is the principle that state and local laws are unconstitutional if the place an undue burden on interstate commerce. Note that there is no constitutional provision that expressly declares that states cannot burden interstate commerce - rather, SCOTUS has inferred this from the grant of power to congress in Art I, section 8, to regulate commerce among the states. a. If congress has legislated the issue, the question is one of preemption. But if cong has not acted or no preemption is found, the state or local law can be challenged on the ground that it excessively burdens commerce among the states. 5. When the state or local law doesn't discriminate against out of staters, but treats in-staters and out-of-staters alike: ct uses a balancing test and invalidates a state or local law under the dormant commerce clause if its burden on interstate commerce exceeds its benefits. 6. If state or local law is deemed to discriminate against out of staters: usually are declared unconstitutional, allowed only if they are necessary to achieve a government purpose. 7. Exceptions to the dcc: if cong approves the state or local action, the market participant exception - a state or local gov may favor its own citizens in receiving benefits from state or local govs or in dealing with gov-owned businesses. 8. This approach has since shifted, and there is now a Balancing Approach (shift from a national subject matter test). This approach is based on cts balancing the benefits of a law against the burdens that it imposes on interstate commerce. 9. The way in which the ct balances isn't the same in all dormant commerce clause cases - it varies depending on whether the state or local law discriminates against out of staters or treats in staters and out of staters alike. If the ct concludes that a state is discriminating against out of staters, then there is a strong presumption against the law and it will be upheld only if it is necessary to achieve an important purpose. In contrast, fi the ct concludes the law is nondiscriminatory, then the presumption is in favor of upholding the law, and it will be invalidated only if it's shown that the law's burdens on interstate commerce outweigh its benefits. 10. Facially discriminatory laws: sometimes it's obvious that a state or local law is discriminatory bc the statute expressly draws a distinction between in-states and out of staters. Sometimes states attempt to keep their natural resources and limit their accessibility to out of staters. In Hughes v. OK, ct considered an OK law that prevented the transport of minnows obtained in OK for sale outside the state. The ct has held that reciprocity reqs - where a state allows out of staters to have access to markets or resources only if they're from states that grant similar benefits to their citizens, are facially discriminatory. 11. The ctr quires discriminatory state or local laws to serve more than just a legit purpose - they must also serve an important purpose. At the very least, such laws must be justified by a purpose that is "unrelated to economic protectionism." a. Aka, "shielding in-state industries from out of state competition is almost never a legit local purpose. Discriminatory laws will be upheld only if the purpose could not be served as well by available non-discriminatory means, even if they do serve an important purpose.

EOs are primarily directed to and concerned activities by executive branch agencies and officials - supposed to be like the pres, chief managerial person in the exec branch, has a variety of management things they have to do. So some EOs are v mundane. There are some that are v controversial.

1. Mundane executive orders a. Presidents have also used executive orders for arguably more mundane governing tasks such as directing federal agencies to evaluate their ability to streamline customer service delivery and establishing advisory committees. 2. Controversial Executive Orders a. Internment of Japanese Americans During WWII. Exec. Order No. 9066, 7 Fed. Reg. 1407 (February 25, 1942); see also Korematsu v. United States, 323 U.S. 214 (1944) (internment of Japanese Americans during WWII) b. Suspension of Writ of Habeas Corpus. Executive Order from President Lincoln to Major-General H. W. Halleck, Commanding in the Department of Missouri (December 1861) in James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1902, at 99 (Vol. VI) ("General: As an insurrection exists in the United States and is in arms in the State of Missouri, you are hereby authorized and empowered to suspend the writ of habeas corpus within the limits of the military division under your command and to exercise martial law as you find it necessary, in your discretion, to secure the public safety and the authority of the United States."); see also Ex Parte Milligan, 71 U.S. 2, 115 (1866). c. Equal Treatment in the Armed Services. Exec. Order No. 9981, 13 Fed. Reg. 4313 (July 28, 1948) ("It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin."). d. Ban on Military Service by Transgender Individuals, officially the Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security signed by Trump on August 25, 2017. Upheld by SCOTUS (because they refused to hear the appeal from lower courts). Repealed by Biden in Jan. 25 2021. 3. In short: EOs can do all sorts of things, but they're not supposed to be creating law. More like just providing direction to exec agencies.

I. Reconstruction Amendments A. In addition to commerce, taxing, spending powers, Cong can act if it is granted specific power by the const (as in the 14th, 13th, 15th amends).

1. Note that the const, for the most part, just protects us from state action, not the actions of private actors. These amends sometimes give a way we CAN legislate private action

some final notes on immunity and privielge:

1. Privilege: generally, pres has right to keep communications confidential. 2. Nixon in watergate case: I need privilege bc my advisors need to be able to ttalk to me 3. Trump v. Vance: pres isn't immune from criminal charges on official or unofficial acts.

source of executive power:

1. Source of exec power: Art 2, Section 1 - "executive power shall be vested in a president of the USA."

in a case wehre someone asserts their rights have been infringed upon, we must ask who is the proper defendant:

1. State action (government actor - yes, we even refer to fed gov as a "state actor") a. Const rights (generally) don't reach the action of private parties, only gov actors. This is known as "state action." b. State action is req when bringing suit against the gov for violations of SDP/EP 2. Private actor a. May sometimes sue a private actor (a regular person) for a specific rights violation

Note on Sexual Orientation, EPC, and Levels of Scrutiny:

1. We will discuss the levels of scrutiny in class re: equal protection further. However, just note that for our purposes (even though it's an open question) we will treat discrimination against gender identity (transgender) and sexual orientation (LGBTQ) as receiving INTERMEDIATE SCRUTINY under the Equal Protection Clause.

ripeness:

A. Ripeness: you cannot preemptively file a lawsuit. 1. It's the opposite of mootness - something is coming too son rather than too late.

I. Federalism and Federal Powers - now we move from fed judiciary to other fed powers - legislature and the commerce clause A. Federalism: rel tween fed gov and states 1. Const divides powers tween fed and state govs, but it doesn't give perfect guidance about where the lines tween competing sources of authority should be drawn Congress has a variety of ways to accomplish its goals:

A. express and implied powers, commerce, taxing, spending

What exactly is affirmative action?

AA is about creating policies and practices to increase the representation of particular groups. Usually, we discuss it in terms of race or sex, but it applies to any number of groups. The goal is usually to rectify past and continuing discrimination

section 1982 - property rights of citizens:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

further elaboration on how to use Carolene:

Carolene: springboard for deciding is someone is part of a suspect/quasi-suspect class. Cleburne: whether someone is a discreet and insular minority and entitled to rb with bite.

A fed law can only preempt a state law IF it is constitutional/doesn't violate SDP or EPC.

Ex, in midterm question 2: congress hadn't discriminated - said that ANY waste had to be charged a minimum amount upon disposal.

brief roadmap as to the EPC and DPC:

I. Brief roadmap: A. Substantive Due Process (fundamental/non-enumerated rights) 1. Economic liberty (rational basis) 2. Contraception and abortion (strict scrutiny and undue burden) 3. Marriage and sexuality (heightened scrutiny) B. Equal Protection and status-based classifications 1. Based on race/national origin a. Look at discriminatory purpose/effect b. Affirmative action c. Based on sex/gender d. Based on disability C. Equal Protection and Fundamental Rights 1. Welfare and Education, access to courts D. Reconstruction amendments

Chemerinsky notes on McCullough v. Maryland:

McCullough: this is the seminal case defining the scope of the fed legislative power and its rel to state gov authority. The specific issue in this case is whether the state of Maryland could collect a tax from the Bank of the US. J. Marshall used it as an occasion to broadly construe Cong's powers and narrowly limit the authority of state govs to impede the fed gov. thirty years before this case, there was a maj dispute as to whether cong had the authority to create such a bank. Hamilton wanted it, but was opposed by Sec of stae Jefferson and Attorney Gen Randolph. Jefferson, Randolph argued that cong lacked the authority under the const to create such a bank and that doing so would usurp state gov prerogatives. Ultimately, Hamilton persuaded Washington to support creating the bank, but the debate continued in Cong. The bank existed for 21 years until its charter expired in 1811. Bank was recreated in 1816, when we had financial probs after war of 1812. States didn't like it bc it called in loans owed by the states. Thus, many states adopted laws designed to limit the operation of the bank. Maryland taxed it. Trial cts found for the state, but the SC reversed. Marshall's opinion considered the two main questions (does cong have authority to create the bank; is the state tax constitutional). ii. As to the first question, does cong have the power, Marshall made four arguments: 1) hist practice est the power of cong to create the bank. Aka, he invoked the history of the first bank as authority for the constitutionality fo the second one. 2) second maj point was to refute the argument that states retain ultimate sovereignty bc they ratified the const. Marshall said it was the people who had ratified the const, and thus the people are sovereign, not the states. 3) third maj point was to address the scope of congressional powers under Art I. Marshall admitted that the const doesn't enumerate a power to create a bank of the US, but said that this isn't dispositive as to cong's power to est such an institution. It's not a statute, so const has to be interpreted diff from a statute. His ultimate conclusion is that cong isn't limited only to those acts specified in the const; cong may choose any means, not prohibited by the const, to carry out its lawful authority. Even though the const doesn't mention a power to create a bank, cong can create one as a means of carrying out may of its other powers. This was a dramatic expansion in the scope of cong authority. If Cong were limited to the powers specifically enumerated in Art I, the range of laws would be finate. But if cong can choose any means not prohibited by the const to carry out its powers, it truly has an almost infinite range of options that can be enacted into law. 4) fourth point Marshall made concerns the meaning of the necessary and proper clause. Art I, section 8 has this clause. Marshall said that it made it clear that cong may choose any means not prohibited by the const to carry out its express authority. iii. Considering the second question, could Maryland tax the bank: Marshall explained that the power to create the bank includes a power to preserve its existence. However, he pointed out that 'the power to tax involves the power to destroy; and that the power to destroy may defeat and render useless the power to create." Thus, ct reasoned that the state may not tax the bank bc such exactions could greatly impede its operation and potentially even tax it out of existence.

condensed version of the takeaway from Yick Wo:

Racially discriminatory laws with discriminatory enforcement/intent = strict scrutiny

•13, 14, 15 are not ONLY enforceable in conjunction with N&PC.

They grant Congress power to "enforce" each amendment "by appropriate legislation." Various pieces of legislation that congress passes in order to get from zero (the grant of power) to 100 (protection of the right) is "implied" power that N&PC makes possible.

PP notes on Cooley:

What is it about the law at issue that lends itself to local control and not national? The court looks at: iii. Congressional intent (1789 law left some state regs to govern pilotage) iv. Local issue v. Best provided by several states because of local peculiarities of their ports

•When stating claim, (law violates 2nd Amendment and 14th Amendment) do we need to state the specific clause? (2nd Amendment and Due Process clause of 14th Amendment)

Yes

how to define SDP:

•14th Amendment: nor shall any State deprive any person of life, liberty, or property, without due process of law •What is liberty? Is it a fundamental liberty interest?

Injunction overview

•Injunctive relief - a court order to cease or refrain from unlawful conduct or to take legally required action. •Impact litigators use this to halt government practices and policies directly rather than indirectly through damages awards (which may or may not actually stop the conduct you're suing about). Some plaintiffs may not be able to get a large damages award anyway

Chemerinsky notes on Baker v. Karr (and PQD):

a. Chemerinsky notes i. Baker as an ex of standing: Baker says that standing reqs a P allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the ct so largely depends for illumination of difficult constitutional questions." ii. PQD: SC has held that certain allegations of unconstitutional gov conduct shouldn't be ruled on by the fed cts even though all of the jurisdictional and other justiciability reqs are met. The ct has said that constitutional interpretation in these areas should be left ot the politicaly accountable branches of gov, the president and cong. Aka, the PQD refers to subject matter that the ct deems to be inappropriate for judicial review. PQD first mentioned in Marbury - Marshall said "questions in their nature political, or which are by the const and laws, submitted to the executive can never be made in this ct.' frustratingly, the ct has failed to articulate useful criteria for deciding what subject matter presents a nonjusticiable pol question. The class statement of th e PQD is in Baker v. Carr, where the Court stated: "Prominent on the surface of any case held to involve a pol question is found a textually demonstrable commitment of the issue to a coordinate pol department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a ct's undertaking independent resolution without expressing lack of the respect due coordinate branches of gov; or an unusual need for unquestioning adherence to a pol decision already made; or the potentiality of embarrassment form multifarious pronouncements by various departments on one question." iii. The ct's def of pol questions in Marbury was quite narrow included only were matters where the president had unlimited discretion, and there was thus no allegation of a const violation. For ex, presidents have the choice about whether to sign or veto a bill or who to appoint for a vacancy on the fed judiciary. Bc the const vests a pres with plenary authority in these areas, there's no basis for a claim of a const violation regardless of how the pres acts. But if there is a claim of an infringement of an individual right, aka if the P has standing, there is no conflict with the PQD iv. The PQD can be understood only be examining the specific areas where the SC has invoked it. Specifically, the ct has considered the PQD in the following areas: the republican form of gov clause and the electoral process, foreign affairs, cong's ability to regulate its internal processes, the process for ratifying con amends, instances where the fed ct can't shape effective equitable relief, and the impeachment process. v. In 1962, in Baker, SC deemed justiciable claims that malapportionment violates the equal protection clause. Interestingly, the ct distinguished cases brought under the equal protection clause from those pursued under the republican form of gov clause. Brennan explained that whereas "the Guaranty Clause isn't a repository of judicially manageable standards...judicial standards under the equal protection clause are well-developed and familiar." This holding that challenges to malapproprtionment are justiciable was one of the most important rulings in US history.

1. Kagan dissent in Seila:

a. Difficulty in removing is the whole point. The CFPB is supposed to be further insulated from political desires of the president. b. Separation of powers isn't supposed to be rigid and absolute - it's a balance that includes some interdependence. c. Congress has a central role in structuring the executive branch (Article II advice and consent of appointees) d. Take Care Clause is about upholding the law itself, not every policy preference the president might have e. Precedent is mis-stated here: Humphrey's and Morrison were about whether restricting removal power would impede the president's ability to perform his constitutional duty. It was about the functions (quasi legislative and quasi judicial - not purely executive functions) that allowed Congress to limit removal authority. f. The CFPB has quasi legislative and quasi judicial powers too. This means Congress can limit the president's ability to remove.

1. I got confused when we were discussing liberty, enumerated rights, and strict scrutiny. So, if something is deemed to be a liberty, is it an enumerated right? I thought that enumerated rights used the strict scrutiny test, but if abortion is a liberty, I do not understand why it receives the undue burden test rather than strict scrutiny.

a. Enumerated rights = Amendments 1-8 b. Liberty = 14th Amendment Due process c. Fundamental Liberties & enumerated rights = strict scrutiny (or other heightened scrutiny as the court has dictated) Abortion= a fundamental liberty subject to heightened scrutiny through the undue burden test

1. Where does the right to privacy come from:

a. Grisold Majority said: zones of privacy (important to know this theory of privacy b. Griswold (Harlan) concurrence said: came from 14th amendment alone (this is the modern approach to privacy)

cases the illustration the intersection between the commerce clause and private discrimination and commerce:

a. Heart of Atlanta v. US b. Katzenbach v. McClung i. Katzenbach: ct considers challenges, facial and applied challenges. c. What effect did racism have on interstate commerce? Aren't these local problems? d. What was the importance of the Congressional Record? e. Facial v as applied challenges i. A facial challenge argues that a law is unconstitutional on its face - as applied to everyone in all situations. Much harder to win. ii. As applied argues a law is unconstitutional in a specific instance. Can lead to amending the law at issue to make it constitutional. iii. This is discussed much more in the context of the First Amendment c. US v. Lopez

A. Planned Parenthood v. Casey 1. Chemerinsky notes

a. In this case, SC said that the gov regulations on abortions before viability would be allowed unless they placed an "undue burden" on access to abortions. b. In this case, SC reaffirmed Roe, again held that the gov can't ban abortions prior to viability. However, the ct ruled that the gov may regulate abortions before viability so long as it doesn't place an "undue burden" on access to abortions. c. In Roe, ct found privacy as part of the liberty protected under the due process (not in penumbra of rights, as in Griswold). d. In Roe, ct broke pregnancy into three trimesters. During first trimester, gov couldn't prohibit abortions, could regulate abortions only as it regulated other medical procedures, such as by requiring that they be performed by a licensed physician. During second trimester, gov also couldn't outlaw abortions, but the gove may regulate the procedure in ways that are reasonably related to maternal health.

in-class notes on dormant commerce clause:

a. In-class notes on DCC a. Whether the mere grant of Article I, Section 8 of powers to congress divests the state governments of any powers b. DCC Justification: Under the Articles of Confederation individual states were acting as sovereign countries - imposing tariffs and regulations that inhibited interstate commerce. Caused discord among the states. DCC fixes this problem. Conflict stifles commerce. c. DCC Critics:Congress has affirmative power under the commerce clause. It has to exercise that power in order to preempt state law. Should not be able to impact state regulations when not acting.

1. How do you (generally) analyze a 14th SDP question:

a. Is the right at issue fundamental b. Has the gov infringed on that right c. Is there sufficient justification for the giv's infringement of a right d. Is the means sufficiently related to the purpose e. NOTE: in some cases, SCOTUS has given us the tools to sufficiently apply all four factors. In other, it may not have.

1. Privileges AND/OR Immunities

a. Privileges AND Immunities (P&I) i. Article IV, Section 2, Cl 1 § The citizens of each state shall be entitled to all privileges and immunities of the citizens in the several states b. Privileges OR Immunities (P/I) i. 14th amendment § No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US

DCC ex: 1. Wabash St. L.& P.Ry. Co. v. Illinois

a. This case was an application of Cooley test. Ct used the Cooley approach to invalidate a state law that regulated railway rates for goods brought to ro from other states. The ct emphasized that there would e enormous burdens on interstate commerce if all states adopted such laws and thus concluded that it was an area that required nat uniformity and not local regulation. b. Wabash: rrs are by their nature more nat than local - you want them to be more regulated, more identical. By their nature go between states. Be confusing, hard for people to comply constantly with all the diff regulations. c. Diff from Cooley: There's just diff in the types of transportation.

strict scrutiny elements (EPC):

compelling necessary narrowly tailored

limits to executive power:

express/implied leg + const authority

SDP is for:

fundamental/non-enumerated rights

legislative process =

how legislative branch interacts with the executive.

Is the Arizona abortion statute likely to be invalidated in the courts? Would the only way for it not to be invalidated is if Roe v. Wade were vacated?

i. To the second question first - it depends. If the AZ abortion statute is forbidding all abortions prior to viability, then yes, Roe would need to be overturned. ii. Someone else asked about the odds of Roe being overturned. Those odds are high given the 6-3 conservative split on the court. Justices Gorsuch and Barrett are proving to be more moderate-conservative, so they might uphold Roe because they believe in upholding SCOTUS precedent. But, it is a matter of vote counting at this point. iii. Here's a super quick write up re: question 1 in the form of an exam answer: § SCOTUS re-affirmed in Planned Parenthood v. Casey that the 14th Amendment Due Process Clause protects a woman's fundamental liberty interest in obtaining an abortion. The government may not pose an undue burden on that right. An undue burden is found where a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus. A statute with an undue burden is invalid because the means chosen by the State to further the state interest must be calculated to inform the woman's free choice, not hinder it. A statute which furthers the interest in potential life (protecting the health/safety of the mother or other legitimate state interest) has the effect of placing a substantial obstacle in the path of woman's choice cannot be considered a permissible means of serving its legitimate ends. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on her right. § If the Arizona law at issue criminalizes the performance of all abortions before viability except for the life/health of the mother, that violates SCOTUS precedent by placing a substantial obstacle in the path of the woman seeking an abortion of her non-viable fetus because she will be unable to exercise her right at all. Such a law doesn't just burden her right, but stops her ability to exercise it altogether. Before viability, her right cannot be burdened to that extent. § If the Arizona law is limited to a genetic abnormality (essentially forbidding abortions when you can tell a baby would be born with a physical or mental impairment), that would be a closer question. The state is not forbidding the right altogether, so it would not be obviously unconstitutional. Given SCOTUS precedent we have read in class, the court has indicated that the state has an interest in protecting potential life. Potential life likely includes potential lives with potential impairments/birth defects. The real question is whether forbidding a pre-viable abortion that is limited to this category of fetuses presents an undue burden. § Casey considered legislation that impacted a woman's access to abortion in the form of a 24 hour waiting period, spousal notification, parental consent, and record keeping and reporting requirements. The only one of these burdens that was considered to be undue was the spousal notification requirement because it hindered a woman's constitutionally protected liberty based on the fact that she was married. A state cannot give a man that kind of dominion over his wife. Ultimately, all of the constitutionally permissible regulations centered on the practical effect of barriers placed in the woman's way: timing, finances, travel, and physical intrusions. Requirements like the 24 hour waiting period were permissible in their favoring childbirth over abortion despite the fact that there was no health interest in making the mother wait. § Given the Court's decision in Casey, it is unlikely that a statute that forbids terminating a pregnancy on the basis of potential abnormalities would present an undue burden. The right to an abortion for a pre-viable fetus without abnormalities is still present. The state did not legislate barriers impacting a woman's time, finances, travel, bodily intrusions, or another requirement that impacts the woman's efforts to secure an abortion. Rather, the state is making its interest in potential life even clearer, by indicating that all life, regardless of physical or mental ailments, is worth protecting. § A woman seeking an abortion under this law would likely argue that it is an undue burden because the state is impacting her liberty interest. The Court has already said that a fetus is not a person for the purposes of the 14th Amendment. Therefore, it is not the right to life vs the right to liberty. It is a recognized fundamental liberty interest weighed against the state's interest in potential life. This is not a question of morality, this is a question of law and keeping a proper check on the role of the state to interfere with individual liberty. § Casey indicated that a woman's "suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role." It is the woman and not the state who must live with the consequences of abortion or birth. Bringing a child to term "is subject to anxieties, to physical constraints, to pain that only she must bear." Depending upon the abnormality, the woman will have to suffer the pain of giving birth to a child who is in physical pain and who may only live for hours or days. Depending upon the abnormality, the woman will have to shoulder the enormous cost of caring for a child, without the help of the state, a cost that is exponentially larger for a child with special needs. It is not for the state to dictate the woman's role to that extent. Thus, a woman seeking an abortion under this law would argue that it poses an undue burden as it hinders her free choice, sets her up for immense financial and emotional obstacles, and does nothing to inform the mother's free choice or protect her health or safety. § Ultimately, a court would likely hold that the state's law is constitutional and does not pose an undue burden. The law at issue does not place a burden in the way of getting an abortion at all. It is designed to further the state's interest in protecting potential life. There are other parts of the law that create a cause of action for a father or grandparents to sue on behalf of the fetus. The analysis would go on to discuss those provisions and whether they present an undue burden. Perhaps yes because the state created the cause of action. Perhaps no because a suit would be a private cause of action and not state action. This question would go beyond what we have learned in this course.

Chemerensky notes on Cooper v. Aaron:

q. Cooper v. Aaron: fed cts also have the authority to review the constitutionality fo state laws and the actions of state officials, not just state ct decisions. This was reaffirmed in Cooper, where a fed district ct ordered the desegregation of Little Rock, AK, public schools. Ct rejected state's position, said that every state legislator and executive and judicial officer is solemnly committed by oath...to support the const.

Allen v. Wright is an ex (largely) of:

standing (Standing - has the person that has brought the case the right person to do so)

Justice Goldberg concurrence in Griswald:

v Our Constitution was written deliberately. It wouldn't make sense for the court to interpret it in a way that completely invalidates any provision. v Your book discusses this in a few places. The Federalists and anti-Federalists argued over whether enumerating our rights was wise. The judges in Griswold v. CT have theories as to what the purpose of the 9th amendment is. Many believe it eases fears that unenumerated rights are protected even though they weren't written down.

1. Pre-emption U.S. Constitution, Article VI, Clause 2:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."

free the nipple hypo (women can't show nipples in public places bc would cause distractions, want to protect kids from nudity, breasts are inherently sexual)

- Hypo 1, free the nipple: go to VMA, see if reasoning behind this is based on societal baises, paternalistic - VMI said if was based in stereotypes, law can't stand. Arguments will be if the sexualization is a biological thing, or simply that we as a society have decided that this is the way it is. this is a CO ordinance, so would be 14th amendment EPC clause. There is facial discrimination, talks specifically about women, intermediate scrutiny. Ask if this ordinance is substantially related to an important gov purpose. argument needs to focus on biological diff or societal narrative. "maintaining traffic, safety:" at worst, somebody could die - traffic safety is usually important, protecting kids is usually important. Is it substantially related, and if so, is it undermined bc of a stereotype. If wanted to argue that no, it's a stereotype: breasts have a "hallowed sexual status in western culture" - that's not the same for other cultures. We've just fetishized female breasts, which means it's a social narrative. In VMI, Ginsburg says that differences are an instance of celebration, not discrimination. Here, there's a solid argument that there is an important purpose, bc people will be distracted driving by beaches. Important gov purpose is undermined if there is a stereotype. You can argue that, the way the statute is worded, there is a substantial gov interest. but that is still undermined if there is a stereotype.

In-class notes for McDonald v. Chicago:

- McDonald v. Chicago - Have to indicate 14th amend, bc 14th includes the incorporation. If you say MS violated your f5th amend right - wrong. MS violated your 5th amend right, that part has been incorporated by the 14th amend. most people now just say, for ex, 1st and 14th amends. - What did the ct say about whether a particular right is "fundamentl to our scheme of ordered liberty:" it was fundamental - historically, the right to have a gun to protect yourself was woven into the fabric of being American. Call back to history, history for the English and how htat people in Eng felt it was fundamental, the colonists brining that fundamental way of looking at gun ownership to the colonies. Looked at it as an issue of self defense. Self defense is a fundamental right. Inextricable rel, to them, between guns and self defense. - "the rights are incorporated..." enforced like they would be if they were being enforced against he fed gov. - Stevens: shouldn't be mandating a nat standard for how to use guns when people have diff uses - Chicago people don't go hunting a lot. - Breyer: history is mixed on the issue of self defense. We can't just point to one history or one framer's intent - they were mixed. Whose version of hist is the most accurate? - In short: doesn't mean states can't regulate, but those regulations can be challenged through 14, 2nd amend.

(From Cleburne) !!!!! How to determine whether a group's classification is "quasi-suspect" and entitled to higher scrutiny (for our purposes rational basis with bite):

1) Are the differences immutable? 2) Are the immutable differences relevant to their ability to function/perform in society? 3) Do they suffer historical discrimination (and what is being done today to continue to discriminate against them)? 4) Are they politically powerless? 2. Cleburne gives us a fourth type of review, "quasi-review," that exists between intermediate and rational review. Unlike ordinary rational review, where we just imagine random reasons the government might have had to pass a law, we look at the specific reasons the law was passed to see if they are reasonable. Use the four factors we get from Cleburne. The more of those which have their answer as 'yes,' the more likely it is that the case will be under quasi/rational basis with teeth review.

regarding Cooley: What is it about the law at issue that lends itself to local control and not national? The court looks at:

1) Congressional intent (1789 law left some state regs to govern pilotage) 2) Local issue 3) Best provided by several states because of local peculiarities of their ports

1. Cong may act only if there is express or implied authority to act in the const: states, however, may act unless the const prohibits the action. In evaluating the constitutionality of any act of cong, therefore, there are always two questions:

1) Does Cong have the authority under the const to legislate; 2) if so, does the law violate another const provision or doctrine, such as by infringing separation of powers or interfering with individual liberties?

issues in McCulloch:

1) Does congress have the power (express or implied) to create a national bank? i. Yes ii. Enumerated (express) powers are merely an outline. This doesn't mean that congress has unlimited powers. This means that the Constitution does not expressly define all of them. iii. Necessary and proper clause makes it possible for congress to reach the express ends authorized by constitutional text by undertaking necessary and proper means to reach them. (post office example) iv. The national bank is necessary and proper to reach the ends of Article 1 Section 8 powers: taxing, regulating commerce, declaring and conducting war, raising and supporting armies and navies. 2) If so, may states tax the national bank? i. No ii. The power to tax includes the power to destroy. iii. Federal law is supreme over state law iv. All of the states got together and ratified a constitution - the United States represents the states as a whole. It would be inappropriate for one state to tax the national bank which is for the good of all states. a. Our constitution limits federal powers (1) to preserve liberty through limited government and (2) to reserve certain matters for states. i. Take note of the many constitutional arguments: constitutional text, structure (detail vs outline), history, original meaning, political theory (taxing people and property as essential to the existence of government); pragmatism (state's power to tax federal govt would be state's power to destroy it)

in US v. Nixon, Nixon argued that he had absolute privilege bc:

1) He needed it to protect confidential communications i. Part of the reason why privilege wasn't granted here: based on a super broad claim of public interest, wasn't based on something more specific like military, diplomatic, or security interests. (for "confidential communications" argument). ii. Ct said yes, you need some amount of privilege, but that doesn't mean we're going to give you absolute privilege all of the time unless you give us a good reason to. iii. The ct noted that complete candor and objectivity from advisers requires broad deference from the cts. But the requested pribilege is based on a broad, undifferentiated claim of public interest in the confidentiality of those communications. It wasn't based on something more specific like military, diplomatic, or nat security interests. 2) The doctrine of separation of powers, and the independence of the executive branch, protects the pres from subpoena. i. Ct says separation of powers just doesn't work the way Nixon was asking it to. An unqualified privilege would inhibit the judicial branch's ability to perform its functions under Article III. ii. A balancing test is required to weigh the legitimate needs of the judicial process with the general confidentiality required in government. iii. Due process is impeded and the basic function of the courts is impaired if relevant evidence is withheld in a criminal trial - it could completely frustrate a criminal trial iv. Advisers to exec won't be less candid by infrequent disclosure of their remarks in criminal cases. v. A generalized need for privilege fails when balanced against a demonstrated, specific need for evidence in a pending criminal trial. (!!!!!!!!) Main takeaway from the overall idea of exec privilege. Separation of powers works in a couple of ways - one branch could usurp another's powers, or just interfere unreasonably with another's powers. Giving unqualified privilege to the exec in this case would hinder legislature'a bility to hear criminal cases. So ct says we need to balance the needs of the judicial process with the general confidentiality that's required in gov. aka, would completely frustrate a criminal trial if couldn't get the evidence they needed.

1. When evaluating whether a legislation falls under the commerce clause, the ct considers:

1) Whether congress had a rational basis for concluding the regulated activity substantially effects interstate commerce 2) Whether there is a reasonable connection between the regulatory means selected and the asserted ends. The court presumes the statute under review is constitutional and may strike down only on a plain showing that Congress acted irrationally.

Nixon v. US - this case just gives us a little more info about the first six factors about the political question doctrine rule.

1. a. Article 1, Section 3 Clause 6 i. The Senate shall have sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. b. What is a declaratory judgment? i. Ex: 'we want a law to be declared unconstitutional.' Aka: a decision in which the court is requested to determine the legality of proposed conduct without awarding damages or injunctive relief. c. Background/facts i. Nixon = US district judge ii. Nixon is found guilty of perjury in MS but refuses to resign. Senate impeaches him, he says that this violates a trial by the senate clause. His prob with the trial that he got: it was heard by a sub-committee, not the entire senate. Says it needs to be the full senate. iii. What was the issue the court was trying to decide: § Whether it was justiciable for them to hear this case. § Whether Senate Rule 11 allowing a committee to rule on impeachment was a pol question. v The answer: Ct says it is a political issue bc they said that impeachment was a check on the judiciary, and for the judiciary to decide it would be like them holding their own fate in their hands. v Also: it violates the first element of the six-part test. The const gives them the sole authority to try impeachment proceedings - Art 1 S3 clause 6. Talk about 'sole' power to try and their power to try. iv. They're trying to decipher what the writers meant. What does 'sole' mean, "try" (answer: the senate has the sole power to decide how they want to try impeachments). d. "Sole:" i. One thing Nixon argues about the word 'sole' is that it is the authority granted to the senate, as opposed to the cts or a lay jury. § Aka, that 'sole' means still the entire senate. ii. Which interpretation do you agree with? Well one factor to consider is that if the drafters wanted to specify that the senate as a whole had to try impeachments, they would have said so. iii. In talking about 'sole,' ct talks about factor 1 - the legislature has a certain duty in the text. Also, they talk about natural reading v. common sense reading of 'sole.' e. What about the word 'try:' i. Say that you can't really say the framers didn't mean it to be restricted to any single procedure. Said they have three other v specific reqs, so if they had wanted to be any more specific, they definitely would have done so. That section also mentions 'judicially manageable standards,' and the trial clause lacks sufficient precision to afford the judicial branch to any judicial standard of review. Ct says, then, that 'try' lacks sufficient precision?

A. Executive Power is found in Art 2 of const. the clauses she pulls out is "more" power-focused, but there's a lot in there. Ones she pulled out:

1. 1. Section 1, Cl. 1 The executive Power shall be vested in a President of the United States of America. 2. Section 2. Cl. 1 The President shall be Commander in Chief of the Army and Navy of the United States a. Youngstown: "these cryptic words have given to some of the most persistent controversies in our const history," with Presidents at various points claiming that it "vests power to do anything, anywhere that can be done with an army or navy." b. Purpose of this clause (historical lessons learned by framers): i. Subordination of the military to civilian (democratically accountable) control. That's helpful in stopping coupes from happening. ii. One person in control - limitation on Cong's ability to delegate command of the military to anyone other than the pres. This helps limit cong's power to delegate military power to someone else.

Review/consolidation: Equal Protection Clause (EPC)

1. 14th Amendment: nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws 2. What is equal protection? a. If the law is going to grant a right or privilege, it cannot unduly discriminate. b. We don't care about all discrimination to the same extent (ex: race, sex, children v. adults, wine drinkers v non-wine drinkers, students v. non students). c. Is the distinction justified by a sufficient purpose? 3. Three (ish) tiers of scrutiny a. Strict b. Intermediate c. Rational Basis* (With and without bite) 4. How do you generally analyze these issues: a. Is the law making a classification on its face? b. If yes, what is the appropriate level of scrutiny for the classification? c. (if no) The law is facially neutral d. Does it have a Discriminatory impact AND proof of discriminatory purpose ? e. Identify and apply the appropriate level of scrutiny. 5. The 5th and 14th Amendment Due Process clauses protect: Suspect and quasi suspect classes from discrimination due to a government law/policy 6. Rational Basis review is the default review for a piece of challenged legislation or government policy. 7. Heightened review is only used if there is a reason to subject the government law/policy to greater scrutiny (if it draws distinctions based on suspect/quasi suspect classes) 8. A law is upheld as constitutional if: a. Strict (race, national origin) i. Necessary to achieve a compelling government purpose ii. Proof that the law is the least restrictive or least discriminatory alternative iii. Burden on the government b. Intermediate (sex, gender identity, sexual orientation, children born out of wedlock, undocumented immigrant children's access to education) i. Substantially related to an important government purpose (must be substantially related to achieving the important government goal) ii. Burden on the government c. Rational Basis with Bite i. Consider whether (1) characteristics immutable, characteristics impact ability to function in society, historical discrimination, relative political power and (2) whether prejudice underlying the law's relationship to the government's purpose (irrational) d. Rational Basis )traditional) (everything else - undefined/non-suspect classes) i. rationally related to a legitimate government purpose (the goal need not even be the actual purpose, but a conceivable one) ii. Burden is on the challenger 9. Takeaway from Cleburne v. Cleburne Living center: factors that address whether someone is a discreet and insular minority and entitled to suspect or quasi suspect status and higher scrutiny for the govt action (for our purposes rational basis with bite): a. Are the differences immutable? i. What is an immutable characteristic: something that you're either born with or cannot change. ii. Debate about whether hair, weight, heights are immutable characteristics. b. Are the immutable differences relevant to their ability to function/perform in society? c. Do they suffer historical discrimination (and what is being done today to continue to discriminate against them)? d. Are they politically powerless?

Review/consolidation: Substantive due processs (SDP)

1. 14th Amendment: nor shall any State deprive any person of life, liberty, or property, without due process of law 2. What is liberty? Is it a fundamental liberty interest? a. Economic b. Grounded in Privacy, intimate association, autonomy, family planning, etc. c. Contraception d. Abortion e. Marriage f. Sexual Privacy 2. Other: the right needs to be fundamental to our scheme of ordered liberty and system of justice to receive more than rational basis review 3. How do you generally analyze these issues: a. Is the right at issue fundamental? b. Has the government infringed on that right? c. Is there sufficient justification for the government's infringement of a right? d. Is the means sufficiently related to the purpose? 4. The 5th/14th Amendment due process clauses protect: a. Enumerated rights (state =selective incorporation) b. Fundamental Rights (Liberty) c. Procedural Due Process (we did not cover in this class) 5. Rational Basis review is the default review for a piece of challenged legislation or govt. policy. 6. Heightened review is only used if there is a reason to subject the govt law/policy to greater scrutiny 7. A law is upheld as constitutional if: a. Strict Scrutiny (Enumerated rights; contraception) Fundamental i. Necessary to achieve a compelling government purpose ii. Proof that the law is the least restrictive or least discriminatory alternative iii. Burden on the government b. Undue Burden (abortion) i. An undue burden is found where a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus. ii. A statute with an undue burden is invalid because the means chosen by the State to further the state interest must be calculated to inform the woman's free choice, not hinder it. iii. A statute which furthers the interest in potential life (protecting the health/safety of the mother or other legitimate state interest) has the effect of placing a substantial obstacle in the path of woman's choice cannot be considered a permissible means of serving its legitimate ends. iv. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on her right. c. (Undefined) Heightened (marriage (including interracial and gay marriage), sexual privacy) i. All we really know is that the government may not limit marriage between same sex couples and interracial couples. Or sexual privacy between same sex partners ii. Pay attention to the reasons for why the court rejected the state interests iii. Burden on government d. Rational Basis (economic, other non-fundamental liberties) i. rationally related to a legitimate government purpose (the goal need not even be the actual purpose, but a conceivable one) ii. Burden is on the challenger

I. Substantive Due Process (fundamental/non-enumerated rights) A. What are the three topics we'll be talking about under SDP/three ways to answer "what does 'liberty' mean:" 1. Economic liberty 2. Contraception and abortion 3. Marriage and sexuality B. Once rights are incorporated, where do we find out more about how they're protected?

1. 1st Amendment - Con Law II 2. 2nd Amendment - McDonald v. City of Chicago 3. 4th Amendment - Criminal Procedure, Civil Rights 4. 5th Amendment - Criminal Procedure, Civil Rights 5. 6th Amendment - Criminal Procedure, Civil Rights 6. 8th Amendment - Civil Rights (maybe advanced crim pro) 7. 9th Amendment - Griswold v. Connecticut (not actually incorporated, but this is where we learn more about it) 3rd (there's persuasive authority in the 2nd Circuit), 7th, 9th, 10th are not incorporated

Discrimination despite a facially neutral law - Yick Wo v. Hopkins (1886)

1. 320 total laundries made of wood; 240 owned and operated by people of Chinese descent; 80 owned and operated by white people = ~75% of the wooden laundries owned by Chinese descendants and denied a permit 2. What's the jurisdiction at issue? State or federal? a. Where did this happen/what's the j: San Francisco, makes this a state issue. 3. What part of the constitution did Lee Yick claim was violated? If the opinion hadn't said with specificity, how would you know? a. So what part of the const did Yick claim was violated, then: 14th amendment. This is an EPC claim under the 14th bc this was state action. 4. Was the law facially discriminatory or facially neutral? Why does that matter? a. Was the law facially discriminatory or neutral: neutral. Bc: didn't talk about race, just what the buildings for laundromats were made of. 5. How was the law enforced? What did the court say about its enforcement? a. How was this law enforced? If you had a wooden laundry, you could petition for a license to keep operating it, but it had to be approved by some legislative body before could keep operating it. So what happened when these wooden laundries requested a permit to operate: 80 were permitted to keep working, the Chinese ones weren't. essentially, looking at a discriminatory enforcement as to this law. 6. The court concluded that the ordinance had been applied in a discriminatory fashion to disadvantage persons of Chinese descent. 7. Can an argument be made that the ordinance was motivated by a purpose to exclude persons of Chinese descent from the laundry business? a. Is there an argument to be made the law itself was motivated by a purpose of exclusion? Yes. Suspicious that the vast maj of people who own wooden laundries are Chinese descendants, even though there's a legit discriminatory reason. b. In short: we can't tell if this law was discriminatory when it was passed, by it was forced discriminatorally, so can't stand, violates EPC. 8. One way to shot a statute is discriminatory: look at its legislative history. 9. What were the non-discriminatory reasons why the City might have been concerned about laundries operating in wooden buildings? How was this issue addressed in the opinion? What were the non-discriminatory reasons why the city might have been concerned about laundries operating in wooden buildings: fire could spread very fast, burn large portions of the city.

EP summary - begin with whether the law is facially discriminatory

1. 5th (Federal) and 14th (State) Amendments 2. All equal protection issues consider: a. Law is facially discriminatory i. Ex of a facially discriminatory law: § Strauder v. West Virginia (1879) : "All white male persons who are twenty one years of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided." Held to violate the EPC. § Black defendant challenged his conviction on the ground that blacks were excluded from jury service. The law also excludes women § (Related to the later peremptory challenge doctrine that prohibits excluding jurors on the basis of race (Batson) or sex (JEB)) b. Facially neutral i. Discriminatory impact or effect AND proof of discriminatory purpose 3. What is the appropriate level of scrutiny a. Strict Scrutiny: law is upheld if it is necessary and narrowly tailored to achieve a compelling governmental purpose. Govt burden of proof. i. race/national origin discrimination b. Intermediate Scrutiny: substantially related to an important governmental purpose. Govt burden. i. Gender/sex/sexual orientation, children born out of wedlock, undocumented immigrant children + access to education c. Rational Basis review: rationally related to a legitimate government purpose. Challenger burden.

My notes on Seila:

1. About how much we want to remove pol actors from pol impact. 2. The CFPB is about consumer protection. Take action against cos that break the law. Money that they recover from those cos they often get back to consumers who were taken advantage of. Look into a lot of issues that are v politically-charged, like the ability of payday lenders to exist, what the regulations around them should be. 3. Issue with the fact that CFPB is structured around one director, take issue with fact that he can't be easily removed by pres, has no boss, not really answerable to anyone. Question is if that structure is const. 4. Is the power to remove necessary from the power to supervise? (Which is implied from the Take Care Clause "exec has duty to take care...") 5. Essentially, lay out two main cases on when cong can limit pres's ability to remove. 6. Details all of the powers the director has. Quasi judicial = conducts judicial proceedings. Doesn't rely on normal appropriations process. So when cong creates programs, assigns the secretaries of certain departments to run those programs, also assigns money for those programs to even happen. One way for cong to control exec is to say we're not givin you money. 7. Ct says that there are v few ways of holding the director accountable, and he has all this broad power, so shouldn't the pres be able to better to supervise them? 8. Distinguish from Humphrey's case: here's everything that distinguishes director from these other cases. Pres shouldn't be limited for removing this person - should be able to remove for any reason, bc director could theoretically end up lasting from a prior presidency. Pres and direcot rmight not even be aligned on policy goals - if director is making all these policy deiciosn, but not aligned with rpes's goals, and pres supposed to be accountable forall decisions of exec branch, how can they supervise that person if they don't have the threat of removal. Dissent: difficulty in removing is the whole point. So what if they're insulated from pres's pol desires - he can still remove him for cause. We just have ahigher bar for removal bc we WANT the CFPB to be more independent. Dissent lays out a good argument for separation of powers.

Legislative Process and separation of powers' conflict: Either there is a conflict between cong's power and the Pres's power or a claim that cong has impermissively given away its power to another branch. Context of legislative process: administrative law:

1. Administrative law focuses on the creation and operation of governmental agencies. 2. Congress grants rulemaking authority to federal agencies to implement statutory programs. Regs have force and effect of law. 3. Congress delegates rulemaking authority so it does not have to focus on the technical program details for programs that congress created in statutes. 4. Congress passes laws, creates programs, funds those programs, and then agencies create regulations and other policies to implement those programs. 5. Admin law slide: admin law is huge. Part of reason why it's so huge is bc society has gotten more complicated than at its founding. There are a limited no of elected officials who all have to spend their time across many diff areas. A lot of agencies helps the legislature. V practical

general notes about the judiciary

1. Arguably act anti-democratically when the courts exercise their power to invalidate decisions that are the product of democratic action. 2. Most important power of fed courts: judicial review. 3. In Marbury, the court concluded it has the authority to determine if a fed statute is inconsistent with the const and thus void. 4. Const and ordinary law: at least theoretically, statutes today reflect the current democratic consensus. Why should we be deprived to decide for ourselves how to govern ourselves, regardless of const, using a charter that represents long-dead people's opinions? 5. Together, Marbury and Martin stand for the proposition that the court has the power of judicial review, which it can exercise in cases arising in state and fed court and in cases involving the constitutionality of state of fed laws. 6. There are two possible ways to undo constitutional decisions by the SC: a. negate the SC"s decisions by amending the const. second way is to replace justices. New judges with diff views might overturn old precedents.

intro to Cong's taxing power:

1. Article 1, section 8 a. Cl. 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; 2. If you're asking if something is a tax, need to see if it's raising revenue. THEN ask if that money is actually a penalty. That's why the taxing part of the ACA case is looking at who's collecting money, what's the burden of the money going to be. If it is a penalty, it cannot be a tax. Because penalties we usually get in the commerce clause, when cong is regulating commerce and say you'll be punished for violating this law. 3. The principle question here is whether Congress can rely on the power to tax to achieve objectives that it could not achieve under its other powers. 4. Under current law, Congress can use the Taxing Power to accomplish regulatory objectives under the Commerce Power, as long as the tax serves some conceivable revenue-raising purpose.

layout of the constitution

1. Article 1: legislative powers - congress (house, senate) 2. Art 2: executive 3. Art 3: judiciary (SC and inferior courts) 4. Amends: Bill of rts (first ten) and Reconstruction Amends (13-15)

Const basis of "case or controversy" judicial limitation:

1. Article 3, Section 2 a. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Baker v. Carr (a case that deals with political question doctrine):

1. Baker v. Carr a. Deals with legislative apportionment = The division of a state into districts for purposes of representation in the state or national legislature i. Issues of unequal representation can arise depending upon how districts are drawn b. This case's chief concern: Political question doctrine. i. Issue here: 1901 designed to apportion seats, but bc of population growth in cities, districts change, have a lotta people in one district over another. § Issue: hadn't been re-drawn in a long time. ii. Baker's claim: challenged the equal protection clause. What did court say about this clause and if it could consider this case at all: § Considering a specific question about whether the conduct at issue could be heard by the court or whether it was a pol question. Considering it under the equal protection clause. iii. Why did they ultimately decide it wasn't a political question: came up with a test for discerning whether something is a political question. § Then decide based on past court cases that they could hear it. Come up with six factor test. iv. Pol question = talking about co-equal branches of gov, separation of powers. v. Another reason they decided that here this wasn't a political question: say that if Baker had brought it under the guarantee clause, it WOULD be a political question. § But he brought it under the equal protection clause, felt that bc it was an issue of voting, SCOTUS has all sorts of precedent for dealing with equal protection clause issues, that this was something they could resolve. § Because this issue doesn't have to do with a co-equal branch of the gov, felt like they had more power to hear it. vi. Pol question doctrine is a separation of powers issue. Marbury was about exec branch's ability to make judicial appointments, ct there weren't willing to step into the business of the executive branch. vii. What did dissent have to say about this case: § it's a guarantee clause claim masquerading under a different title. Say this is v political, the judiciary shouldn't be wading into it bc also mention at v beg that the judiciary doesn't have the leverage the other branches have to enforce its commands - operates on public confidence. § Dissent says that this type of decision would erode public confidence, judiciary would then have no power to enforce its orders. § Dissent says they think this is a guarantee clause issue, what form of gov people want to have. c. It's because of this case that we have a 'one person one vote' standard for district-drawing issues, and when cts get involved when districts are in question.

1. Modern voting challenges a. Polling place closures b. Reduced voting hours c. Reduced Early voting d. Poorly trained poll workers e. Lack of funding to manage elections (flawed ballot designs, failing voting machines) f. Provisional ballot requirements (if a voter's eligibility to vote is questioned, they can use a provisional ballot which is counted once the voter is confirmed eligible. Localities set their own rules on the number of provisional ballots to print and training poll workers to process them) g. Partisan election administrators h. Lack of language access i. Voter roll purges j. Voter ID requirements 2. Recent voting issues + intersection with EPC a. Brakebill v. Jaeger, 932 F.3d 671 (8th Cir 2019). i. Address required on identification to vote. Plaintiffs claimed violation of Section 2 of VRA and EPC. No injunction granted even though 65.6% of Native Americans missing qualifying ID. ii. If this were a test question, what would the plaintiff have to show to get the court to look at the law under a strict scrutiny analysis? iii. If this were a question asking about EPC, what would the P have to show to get a strict scrutiny analysis: that it's facially discriminatory or that it wasn't just a discrimniaty impact but there was a discriminatory motivation for the rule. Note: as long as there is state action, there might still be an EPC issue.

1. Barriers to voting, despite 15th amendment: a. Poll taxes (outlawed with 24th amendment) b. Discriminatorily applied literacy tests c. Ownership of property as a pre-requisite d. Grandfather clauses: can only vote if could vote in 1867 or descended from an 1867 voter) e. Vouchers of good character f. White primary: allowing "private" political parties to conduct elections and establish qualifications for their members. g. Racial gerrymandering/vote dilution: setting boundaries of electoral districts to exclude racial/minority voters h. Harassment, intimidation, and physical violence

Takeaway from Bolling v. Sharpe:

1. Bolling v. Sharpe: EP is reverse incorporated for enforcement against the fed gov in the 5th amendment.

Breakdown of issues in Marbury

1. Breakdown of Issues in Marbury a. Did Marbury have a right to the commission? Was he appointed? i. If pres had authorized it, that appointment would've been just a formality b. If so, does he have a remedy? Any exception to the duty of the US to provide a remedy if one exists? i. The court says yes. Why does he have a remedy? § He can bring it up to a lower court, begin the process in a lower level. § Government has to afford people protection of the laws. We wouldn't be able to put our trust in the laws if they didn't give a remedy for a vested legal right. § Hypothetically yeah he has a right bc he was appointed, so law should give you a remedy. ii. Is there any exception to the duty of the gov to provide a remedy? § If it concerned a pol issue, not an issue mandated by law. § There are some pol acts that reside with the executive branch that for various reasons the court won't touch. c. His remedy is: the write of mandamus to appoint him into his judgeship. i. Can the SC give him his remedy? No. Didn't have og j to issue the remedy. § Aka, the actthey were looking to said it was expanding SCOTUS's og j. § Art 3 section 2 lays out exactly when the court has og j, congress can't just legislate in opposition to the constitution.

Breyer dissent in DC v. Heller

1. Breyer Dissent a. Brings up role of legislature, competing statistics, role of gun violence in present day. b. What was Breyer getting at when he talks about the diff levels of review: certain const issues deserve diff levels of scrutiny or review. Rational basis review is for lower review. Kind of this spectrum that goes depending on the issue. i. Levels of review come up in the second half of the course. Typically Rational basis review, x, strict scrutiny. ii. Breyer's concern was he didn't feel the maj opinion set out any standard. iii. Rational basis standard is really easy for the gov to meet. Scalia mentions that 2nd amend rights aren't unlimited - that's true for basically every right. c. Breyer's main concern: how are we ever supposed to balance gov and personal interests. d. Also mentions role of legislature: amici briefs for either side lay out tons of data on the issue of gun violence. e. Essentially says that this isn't our job. If anything, Scalia you're being an activist judge. Legislature has spoken - democracy is at work. i. We unelected judges shouldn't be overruling the will of the people, which is what you're doing in the way you interpret the second amendment.

Final notes on the CFPB case:

1. CFPB: director cannot be removed except for cause. Take Care clause implies the removal power. (NOT in the const) Need to be able to remove officials from their position. 2. Ct seems to say that the director of CFPB has tons of power. Since have tons of power, shouldn't pres be better able to supervise them. Contrast to other cases: multiple members, don't all leave at the same time so you lose institutional knowledge. That acknowledgement of when pres CAN remove people doesn't apply here - would lose expertise all at once. Pres then should be able to remove director for any reason. 3. If director is making decisions contrary to pres's goals, how can pres supervise if they don't have that power. 4. Dissent to CFPB: hard to remove is the point = you can still remove, but it's just a higher standard, has to be for cause. Kagan dissent says the branches needs to work together, not have strict lines drawn between them. More on Kagan dissent: 1. Because CFPB has quasi legis, judicial powers, that allows legislature to limit pres's ability to remove - that's what Kagan thinks.

Chemerinsky notes on Cong's spending power:

1. Chemerinsky notes a. Spending power: ct has held that cong has broad power to spend funds to advance 'the general welfare.' The ct, though, has enforced an important limit on cong's ability to put conditions on grants to state and local govs: they cannot be unduly coercive. In ACA case, ct daeclared unconstitutional provision of ACA that req staes receiving fed Medicaid funds cover with their Medicaid programs those within 133 percent of the fed poverty level. Any state that failed to comply would lose all of its Medicaid funds. Roberts said that the financial inducement cong had chosen was more than encouragement, it was a gun to the head. The threatened loss of such a huge chunk of the states' budgets is an economic dragooning that left the states with no real option to acquiesce in the Medicaid expansion. (NOTE: we CAN tax stuff we don't like. But it does have to be an exercise of the taxation power). In short: cong may impose conditions on grants to state and local govs so long as the conditions relate to the purpose of the spending, are clearly stated, and are not unduly coercive.

Short hypos on insanity:

1. Cinema as life: assassinating the president a. Cinema as life: don't get anything super helpful, bc docs couldn't agree what the guy was suffering from. In the book bc this is where a lot of people get the idea that insanity defenses are bogus, bc Hinkley won on insanity 2. Escaping the aliens Erica Clark a. Guy thinks cops are invading aliens, kills cops. In which of the two main state js does he have an insanity defense: M'Naughten j. not irresistible impulse: he is in control of himself, he just believes he's saving the earth from aliens. He's just doing right in his weird idea of the world. 3. Multiple Personalities, Same Body a. We have to figure out what personality committed the crime, then decide what disorder that personality has to decide if can win in a particular state. Then: we can't take just the personality that committed the crime to prison, have to send the dominant personality. 4. Saving Her Children from Eternal Damnation by Drowning Them a. The problem here is that Andrea is trying o make a M'Naughten claim, the problem is that she's trying to do what her preacher says. She's getting right and wrong scrambled, getting it scrambled up, but still trying to do right.

A. The main, and first, question we must ask when dealing with EPC and DPC: who action (fed gov + DC? State gov? (includes local gov - city, county)); what is the source of the constitutional protection?

1. Citizens seeking a redress for a violation of an enumerated right: a. If it was a state action - 14th amendment (incorporating the bill of rights) b. If it was a federal action (including DC): Specific amendment (1-8) 2. Citizen seeking a redress for a violation of a fundamental right/EP: a. If it was a state action: 14th amendment DPC or EPC b. If it was a federal action (including DC): 5th amendment DPC (via Bolling v. Sharpe)

Protecting against private discrimination:

1. Civil Rights Cases (1883): Congress did not have the power under the Fourteenth Amendment to prohibit discrimination practiced by private parties (was about public accommodation like transportation, hotels, etc) 2. 13th Amendment -housing discrimination 3. Article I, Section 8 taxing/spending "for the general welfare of the US" - congress can put whatever conditions (as long as not unconstitutional) on the money it gives to other through contracts, grants, aid, etc.) 4. The federal government may (and does) prohibit private discrimination in various pieces of legislation a. Title VI - private parties receiving govt funds may not discriminate b. Title IX - educational programs receiving federal funds may not discriminate on the basis of sex c. Title VII discrimination in employment d. Commerce Clause - Title II public accommodations - prohibits private discrimination (restaurants/hotels) (Heart of Atlanta and Katzenbach v McClung)

Executive immunity and Clinton v. Jones:

1. Clinton v. Jones (conduct complained of happened prior to presidency, was unrelated to official duties. Civil case) a. Concerned about if these acts happened before you were president, so all of the things we said in Fitzgerald about uniqueness of office doesn't apply here, but it's significant that going to ct or responding to requests for evidence can take up a lot of time. But that doesn't mean a pres shouldn't be responsive at all. Shouldn't be this blanket immunity til you stop becoming pres. Need to act while witnesses still remember, docs are still easily found. Aka, district ct has to show an amount of deference to pres when making scheduling decisions. Not like he gets no deference as all, nor that he cant deal with it at all til out of office - kind of a middle ground has to be reached. Consider demands on pres's time and attention to decide if there should even be a delay on a lawsuit. b. Principle rationale for providing certain officials immunity from suits for money damages arising out of official acts does not apply to unofficial conduct. c. Clinton claimed that because he then became the president, the lawsuit should be automatically postponed. i. Separation of powers is not implicated here. The judiciary is not taking on an executive function. And, even though SOP requires that one co-equal branch not unreasonably impair another, the district court can act in a way so as to not substantially impair the president's time. ii. Waiting until the end of the presidency would be too long because there is a danger of prejudice from loss of evidence. But, district court can manage the case with deference toward the president's time

A. Intro question to Affirmative action: Is affirmative action considered prohibited discrimination within the meaning of the equal protection clause? 1. Mindset vs. data: a. Discrimination as a zero-sum game (the less blacks are discriminated against, the more whites are discriminated against). b. Increasing diversity as anti-white bias. c. Sociologist, Devah Pager, sent pairs of experimenters—one black and one white—to apply for 340 job ads in New York City. She gave them resumes doctored to have identical qualifications. She gave them scripts so that the applicants said the same things when handing in their applications. She even dressed them alike. She found that black applicants got half the call backs that white applicants got with the same qualifications. d. One study responded to more than 14,000 online apartment rental adds but varied whether the name attached to the email implied a white applicant (e.g., Allison Bauer) or a black applicant (e.g., Ebony Washington). The black applicants were twenty-six percent less likely to be told that the apartment was available. 2. Difference between exclusion and inclusion? Is it permissible to seek to rectify past discrimination and searching for substantive equality? 3. Why assume that affirmative action = unqualified?

1. Common critiques, and responses, of affirmative action: b. Critiques i. Affirmative Action is Immoral § Response: That's just a conclusion. What are the premises? ii. Stigmatizing (Thomas - Grutter): paints affirmative action beneficiaries as undeserving § Response: If their presence is stigmatizing, surely their absence is as well. iii. Divisive - endorses race based reasoning and escalates racial hostility and conflict § Response: Assumes that without race conscious programs, racial hostility and conflict would be minimal or nonexistent. De facto racial segregation in jobs, schools, neighborhoods, churches, etc lead to "othering." Racial hostility and conflict are due to separation iv. Harms innocent white victims (have not engaged in any discriminatory acts) § Response: Innocence ignores the way that white people as a group have benefitted from the oppression of people of color. v. Affirmative Action Promotes/Depends on Racial Stereotypes. Presumes people are a product of their race. Monoliths. § Response: True - not monolithic. But being a person of color has an impact on your world view in some respect. Just recognizes that race matters. vi. Hard to implement (so many groups and subgroups. Who is black? Rely on self-identification. Different levels of social, political, and economic success within groups. Ex: socioeconomic status + race. Or Asian American (overrepresented = Japanese, South Asian, Filipino; underrepresented = Hmong, Cambodian, Laotian) § Response: Then we need better programs! vii. Affirmative Action reinforces rather than challenges the structures of power that lead to racial inequality. (white males benefitted from their own program of affirmative action through unjustified preferences in jobs and education through old boy networks and official laws that lessened competition) § Response: Not an effort to repopulate hierarchy. It is a tactic to attack white privilege as embedded within traditional definitions of merit and other exclusionary practices that were cast as neutral and fair. B. Affirmative action socioeconomic class critique 1. Abigail Fisher, was quoted as saying, "I took a ton of AP classes, I studied hard and did my homework—and I made the honor roll . . . I was in extracurricular activities. I played the cello and was in the math club, and I volunteered. I put in the work I thought was necessary to get into UT." a. Osamudia James notes, "[Fisher] seemed unaware that the very things she identified as examples of her hard work also demonstrated privilege bestowed on her through no effort of her own. For instance, [she] was able to participate in extracurricular activities because her family's financial stability likely freed her from the necessity of an afterschool job; she could become a cellist because she had free time for instruction, possibly paid for by her parents; and she could enroll in AP classes because, even though many schools throughout the United States do not offer such courses, the one that she attended did." 2. Class critique: we might say that traditional indicia of merit "replicates and perpetuates a class-based distribution of educational opportunity and privilege by choosing to make the very opportunities denied to poor children the prerequisites for admission."

A. FYI Line Item Veto - Clinton v. New York

1. Congress enacted the Line Item Veto Act giving the President the power to cancel provisions in subsequently passed bills before signing them into law. 2. Clinton used his power under that act to cancel some provisions - was challenged. 3. SCOTUS ruled that this violates the Bicameralism and Presentment requirements of Article I, Section 7 4. Outcome here is reinforcing INS v. Chadha. Pres can cancel after passing both houses, but before being signed. Clinton used that to strike out certain provisions. The way that the statute was written, though, only meant to be limited to specific provisions the pres could strike. So SC says no, pres has to sign or not sign whatever law comes through both houses - can't just take stuff out, and legis can't just give him the power to take stuff out. Not how const works

A. "Other" classifications (under EP) and fundamental rights (aka, these cases look kinda at both EP and DP issues):

1. Dandridge v. Williams (1970) a. Maryland limited the amount of welfare benefits available to families with many children. The state imposed an upper limit on the total amount of money any one family unit could receive. b. Recipients of welfare benefits who had large families sued under the Equal Protection Clause. c. Court held that: d. The law did not violate the EPC. e. The state has a legitimate interest in encouraging employment and in avoiding discrimination between working families and families of the working poor. The state maintains an equitable balance between families on welfare and those supported by an employed breadwinner. The policy is rationally related to this interest. f. Resisted going back to the days where the court overturned laws just because the social/economic policies were imperfect 2. San Antonio Independent School District v. Rodriguez (997, 999) a. (San Antonio v. Rodriguez) education is not a fundamental right BUT (Plyler v. Doe) if a state is going to provide free, public education, cannot deny that right to undocumented immigrants; (Brown v. Board) may not segregate on the basis of race; (VMI) may not discrim on the basis of sex stereotypes. b. Equal Protection c. Facial classification? d. Suspect class? e. What level of review? f. Fundamental right at stake? g. In-class notes i. Ct said education wasn't a fundamental right. Was there a facial classification: no. the law was about how schools would be funded - said if we're basing this on property taxes, people in richer neighborhoods can make their schools more funded. ii. Ultimately: ct said not going to see wealth as suspect class, no fundamental right, so no rational basis

"Davis" and separation of powers (NOT TESTED - just an ex for immunity)

1. Davis v Passman: Federal Congressman fired his assistant because she was a woman. A damages remedy was appropriate (5th Amendment equal protection claim) because there were no other forms of relief. She could not be re-instated (Passman no longer a Congressman at the time case being decided). There was no explicit legislative bar to recovering damages. Dissent: Until congress legislates otherwise, the court is wrongfully encroaching into congressional business. Congress has not created a remedy. They could, but have not. Congressional staff are different from other employees - there is a need for political compatibility to the individual member.

Notes regarding the insanity defense: 1. Exclude: a. Intoxication/under the influence b. Psychopathy/sociopathy

1. Explanation a. We're going to exclude any attempt to make an mental illness claim when the excuse REALLY is just intoxication or use of drugs. Can't use drug or alcohol evidence as part of your mental health claim. Why: where there's a specific doctrine available, D can't use the more general rule (insanity is, here, the more general defense). Also, don't want people to try to repackage this stuff as temporary insanity, get a not guilty verdict b. What mental illness has, as its defining feature, 'I don't believe/care about your laws, just believe in myself:" sociopaths. Psychopaths are completely delusional. So we exclude psychopathy and sociopathy from mental illness bc those are anti-social disorders; if we let these people win, that'd be saying it's ok for you to not believe in society, just believe in yourself. That'd encourage sociopathy, psychopathy

ex of legislative process - INS v. Chadha:

1. Facts - An immigration judge suspended respondent alien's deportation pursuant to 244(c)(1) of the Immigration and Nationality Act ("Act"). The House of Representatives passed a resolution vetoing the suspension pursuant to 244(c)(2) of the Act, which authorizes one House of Congress to invalidate the decision of the executive branch to allow a particular deportable alien to remain in the United States. The immigration judge reopened the deportation proceedings to implement the House order, and the alien was ordered deported. The Board of Immigration Appeals dismissed the alien's appeal, holding that it had no power to declare unconstitutional an act of Congress. Respondent then appealed to the Court of Appeals, which held that the House was without constitutional authority to order the alien's deportation and that 244(c)(2) violated the constitutional doctrine of separation of powers. On appeal, the United States Supreme Court affirmed. 2. ISSUE: Did the Court of Appeals have jurisdiction to review the House's order of deportation? Yes CONCLUSION: The deportation stands or falls on the validity of the challenged veto; the final order of deportation was enteredonly to implement the action of the House of Representatives. Although the Attorney General was satisfied that the House action was invalid and that it should not have any effect on his decision to suspend deportation, he appropriately let the controversy take its course through the courts. the alien directly attacks the deportation order itself, and the relief he seeks -- cancellation of deportation -- is plainly inconsistent with the deportation order. Accordingly, the Court of Appeals had jurisdiction to decide these cases.

A. Express and Implied Fed powers:

1. Federal Legislative power a. Leave behind justiciability concerns - start thinking "levels of review" b. Look for how the court interprets the bounds of federal power c. Take note of enumerated powers in Article I d. Generally, states (and not the federal government) are considered to have a general "police power" to act for health, safety, and morals of their citizens. Federal power must have a constitutional basis. 2. Article 1, Section 8 a. "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; b. Cl. 3: To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes; c. Cl. 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof"

I. Excuse Defenses: Insanity Main hypo: Andrew Goldstein

1. First, talk about the two main categories of mental illness that the law recognizes (NOTE: DSM = diagnostic manual for psychologists. The law does NOT look at this, does NOT do science): a. M'Naughten test - did they know right from wrong. This is the oldest test. b. The other really common test: irresistible impulse - the person lacks the ability to control their body even though they knew what they were doing is wrong. c. Diff tween the tests: you have your own moral compassion, you have your own vision of right and wrong. The second test is completely diff, just asks if you had the ability to control your body. Depends on which j you're in to decide if you use first or second test. Most states choose one test or the other. That's kind of a crap shoot for Ds - if you have an illness that matches one defense, but no the other, you just lose if you're not in the right state. 2. Which j would Goldstein wish to be in: irresistible impulse. He admitted he knew that he shouldn't push her, that it would kill her. What's his immediate reaction when he's confronted right after the incident? Like a kid who's getting in trouble, he knows he's done something wrong. So he def seems to lose if we're under M'Naughten test bc he knows what he did was wrong. 3. If we were prosecuting Goldstein, what facts would we point to to help the prosecution: he's intentionally not taking his medication. He's definitely neg. he's also aware that he has a mental illness that causes him to be violent. He's aware of a substantial risk, so he's at least reckless. So there's a really fair prosecution argument against Goldstein for Manslaughter. That feels fair. a. AG's arguments against this argument: he might have been aware of something, but not a risk of death. Also, is he really reckless about not taking his medicine? He was trying to get in a home, he knew he should be supervised, asked to be put in a hospital. Aka, he wasn't deliberately not taking his medicine, the only deliberate thing he was doing was asking for treatment. One of the symptoms of my illness is that I'm tricked into not taking my medicine.

introducing the Commerce Clause:

1. General note: a. Filburn was about challenging the law under which he was guilty as being unconstitutional. Aka: standing is a "who" question. Commerce is a "did congress have power in the first place to pass whatever law that they passed that this party is now challenging" 2. Article 1, section 8 a. Cl. 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; b. Cl. 3: To regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes; c. Cl. 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Officer thereof

Diff tween Gratz and Grutter:

1. Gratz was just giving points to anybody that fit in the group. Grutter was less specific, said they considered a variety of soft factors, but was unclear how much a particular factor was weighted. In Grutter, still considering race, but it's unclear how exactly it's weighted against other soft and hard factors. That's why the dissent in Gatz says we should reward schools for being upfront about how they consider race. Now, school are super vague, and that's considered more of a virtue than transparency/assigning a specific point value. So schools now, basically, operate in a super fuzzy zone. a. In Thomas's eyes: it's impossible to determine whether or not an applicant is really qualified if the school has an AA policy.

Results from Marbury

1. Holding in Marbury: court couldn't order Jefferson to delivery Marbury's commission. 2. Marbury makes us ask what is the power of SCOTUS? a. If court says no, congress can't expand our og j to grant this writ, what does that mean for the resolution of this case? i. In essence, there was none. SC can't issue it, Marbury lost out. ii. Judge laid out roadmap for Marbury to get his appointment - he had a right to it, no exception on duty to US to provide the remedy, but the SC can't issue the remedy bc the law that congress had passed, saying they could issue the writ, was in violation of the const. iii. But still said that the SC is the right court to interpret the const and say what the law is.

Final notes on the INS case:

1. INS: if Cong has delegated authority, can it maintain control over the authority it has granted? Ct says you can't do that in the form of a legislative veto. Why: if you're altering rights, duties of anybody out of the legislature, has to go through presentment and bicameralism. Have to go through those const reqs. 2. Powell concurrence in INS: thinks that the legislature, in leaving themselves a veto, was wrong bc it took on a judicial function in violation of the separation of powers. Took it on themselves to decide the fate of the six people fighting the AG's decision. 3. COmpare to FYI Clinton case: SC said legislature, you can't give him the power to get rid of stuff - he has to just sign or veto

A. regarding express and implied exec powers: unless we have read something in this class that specifically says the pres can do something, assume that his act wold be highly controversial.

1. If, on exam, she wants us to consider statutory authority, she'll tell us 'there's a statute that says x,' and we should discuss if the pres has done what he should to satisfy that statute's application. Note concerning emergencies: const doesn't specify what should happen in a variety of emergency situations. To make it more clear, the const would have to be amended, or cong'd have to pass a statute that something should specifically happen in a specific emergency situation.

A. Brown v. Board 1. Why does separate but equal violate the equal protection clause? 2. Several theories: a. Subordination i. How should a court figure out what policies are designed to subordinate? b. Stigma i. What if a study showed that black children did better and felt better in all black schools? c. Lack of effective electoral strength i. Would segregation be constitutionally permissible if it were a product of a system where all racial groups were fairly represented? d. Good social results e. Colorblindness theory f. Separate but equal was never possible re: equal i. What if schools literally were equal? Would separate but equal have been acceptable?

1. Immediate backlash to Brown: a. Senator James Eastland of Mississippi, declared that "the South will not abide by nor obey this legislative decision by a political body." b. Senator Harry Byrd of Virginia described the opinion as "the most serious blow that has yet been struck against the rights of the states in a matter vitally affecting their authority and welfare." c. By 1956, Senator Byrd had created a coalition of nearly 100 Southern politicians to sign on to his "Southern Manifesto" (officially titled Declaration of Constitutional Principles) an agreement to resist the implementation of Brown. d. On February 25, 1956, Senator Byrd issued the call for "Massive Resistance" — a collection of laws passed in response to the Brown decision that aggressively tried to forestall and prevent school integration. e. Flashback to Cooper v. Aaron (1958) i. Cooper v. Aaron: Supremacy Clause of Article VI made the U.S. Constitution the supreme law of the land, and Marbury v. Madison made the Supreme Court the final interpreter of the Constitution, the precedent set forth in Brown v. Board of Education was the supreme law of the land and was therefore binding on all the states, regardless of any state laws contradicting it ii. 1957 The Governor and the Legislature of Arkansas openly resisted the Supreme Court's decision in Brown, More than 1,000 paratroopers from the 101st Airborne Division and a federalized Arkansas National Guard protect nine black students integrating Central High School in Little Rock, Ark. (Little Rock Nine). iii. 1958 The Supreme Court rules that fear of social unrest or violence, whether real or constructed by those wishing to oppose integration, does not excuse state governments from complying with Brown. (Cooper v. Aaron) f. In-class notes i. Overturned Plessy ii. This is a 14th amend. EP analysis bc talking about state actions. iii. Why did ct say separate but equal violate the EPC: bc separate is inherently unequal - it would generate a feeling of inferiority in the kids unlikely to be undone. Ex: the doll test - hold up a black and white doll and ask the kid which one they want. Typically students regardless of their race will take the white one. Brown considered a lot of social science evidence, part of which was the doll test. iv. Brown raises a lto of interesting theory, getting into issues of if separate but equal is problematic, is it problematic bc the law is subordinating people based on race. People have a lot of ideas about which theories, or combo of theories, went into the Brown decision v. How WOULD a ct figure out what policies are designed to subordinate (rhetorical question): you could examine the diffs in the rights and privileges that diff groups were afforded - ex if not afforded same access to learning materials, can say it was designed to discrimination. Accessibility to opportunities, resources. vi. How should a ct figure out what policies are designed to subordinate: it's tricky, bc have to figure out if there's just subordinate effect, not subordinate design. vii. Stigma: what if a study showed that black children did better and felt better in all black schools: Ct was saying even if the schools would've bee 100% equally resourced, the law still would've been separating people, negative things still flow from that, the issue is still should the law be splitting people up bc of race, effectively creating second class citizens.

ex of fed executive power: Clinton v. Jones

1. In Clinton v. Jones: held that a sitting pres doesn't enjoy absolute immunity from civil liability for private conduct - decides that the 'dominant concern' in Fitzgerald wasn't mere distraction but the distortion of the executive's "decisionmaking process" with respect to official acts that would stem from worry as to the possibility of ds. (Trump says that the same is true of criminal subpoenas - just as a 'properly manged' civil suit is generally unlikely to occupy any substantial amount of' a pre's time or attention, two centuries of experience confirm that a properly tailored criminal subpoena won't normally hamper the performance of the pres's constitutional duties.

Chemerinsky notes for Lawrence v. Texas:

1. In Lawrence, SCOTUS held that a state cannot prohibit private, consensual homosexual activity. Overruling its earlier decision in Bowers v. Hardwick, SCOTUS held that the right to privacy protects the right of consenting adults to engage in same-sex sexual activity in their bedrooms. However, as discussed in Ch 10, which considers Lawrence in more detail, J. Kennedy's majority opinion focused on privacy and due process, not equal protection. Moreover, J. Kennedy's opinion didn't state the level of scrutiny being used and thus it's unclear, even under the right to privacy, whether rational basis review or heightened scrutiny is to be applied to laws that prevent private, consensual same-sex sexual activity 2. In Lawrence, ct held that states may not prohibit private consensual sexual activity between consenting adults of the same sex. It is thus an extremely important decision reaffirming constitutional protection for privacy and applying it to private, consensual homosexual activity. J. White argued that the earlier decisions protecting privacy pertained to matters of family and reproduction; homosexual activity, he argued, didn't fit within these rights. White said that ct should protects rights as fundamental only if they are supported by the const's text, the framers' intent, or a traditon of being safeguarded. Lawrence meant that states laws prohibiting gay sex were unconstitutional.

ex of fed executive power: US v. Nixon

1. In US v Nixon, ct concluded that the Pres "generalized assertion of privilege must give way to the demonstrated, specific need for evidence in a pending criminal trial." 2. Executive privilege: refers to the ability of the pres to keep secret conversations with or memoranda to or from advisors. The const doesn't mention such authority, but presidents have claimed it throughout history. In US v. Nixon: tapes were subpoenaed, pres challenged the subpoena in ct. ct said he had to comply. Ct rejected pres's contention that the case posed a nonjusticiable pol question bc it was an intro-branch dispute and that the pres alone had authority t ocontrol prosecutions. Ct said that the pres had the authority to delegate this power and that he had done so through the acts of th e attorney general, in creating the office of the special prosecutor. Moreover, ct said there was no doubt the special prosecutor and pres were adversaires, even though they were both executive officials. On executive privilege, ct made three points: 1) ct held that it's the role of the ct to decide if the pres hasa executive privile and if so its scope. 2) ct recognized the existence of executive privilege - recognized that the need for candor in communications with advisors justified executive privilege; indeed, ct said that a need for confidentiality was too plain tot require further discussion. Although Art II doesn't expressly grant this power to the pres, ct said that the privilege can be said to derive from the supremacy of each branch within its own assigned area of const duties. Nixon thus recognizes executive privilege as an inherent pres power. 3) ct held that executive privilege isn't absolute, but rather must yield when there are important countervailing interests. Ct explained that 'neither the doctrine of separation of powers, nor the need ofr confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances." More specifically, ct said that an absolute privilege would interfere with the ability of the judiciary to perform its constituioanal function; it would conflict with the function of cts under Art III.

ex of legislative process - Whitman v. American Trucking. Chemerinsky notes:

1. In Whitman, ct unanimously rejected a challenge to the federal Clean Air Act as an impermissible delegation of legislative power. The US Ct of Appeals for DC Circuit declared unconstitutional the environmental protection Agency's air quality restrictions, particularly as to ozone levels, on the ground that it was an impermissible delegation of power. The ct emphasized the lack of an "intelligible principle" to explain why the statute permits one level of pollution, but not another, when all amounts entail some risk to public health. The ct unanimously upheld the delegation and the constitutionality of the EPA's air quality regulations. Scalia wrote for the ct - began by declaring that the const "permits no delegation of legislative powers." But he noted that only twice in history, in two cases decided in 1935, had the ct invalidated delegations. Scalia said that Cong must give 'intelligible principles' to guide the agency in its exercise of discretion and concluded that "the scope of discretion the statute allows is in fact well within the outer limits on nondelegation precedents. He emphasized that the law doesn't permit the EPA to consider implementation costs in promulgating clean air act rules, something that considerably narrows the discretion of the agency. Scalia concluded his maj opinion by declaring that the req that the "EPA...set air quality standards at the level that's 'requisite' - that is, not lower or higher than is necessary - to protect the public health with an adequate margin of safety, fits comfortably in the scope of discretion permitted by our precedent." In short, since this, a successful challenge to fed law as an impermissible delegation of legislative power seems unlikely. Still, there's the possibility the the SC might find a statute so devoid of "intelligible principels" as to be unconstitutional.

Substantive due process ex - Williamson v. Lee Optical Chemerinsky notes:

1. In Williamson, SC upheld an OK statute that prohibited an optician to fit or duplicate lenses without a prescription from an optometrist or an ophthalmologist. The fed district ct had declared the law unconstitutional as failing the rational basis test bc a prescription was unnecessary if a person broke a pair of glasses; an optician could measure the power of the lenses and duplicate them without a new prescription 2. The SC reversed and stressed the need for judicial deference to legislative choices. Williamson shows that so long as the ct can conceive of some legit purpose and so long as the law is reasonable, a law will be upheld

A. Grutter v. Bollinger (2003) 1. Was there a racial classification on the face of the policy? 2. What level of scrutiny needed to be applied? Why? a. Necessary? b. Compelling? c. Narrowly Tailored? 3. How was this different from Bakke? Why would a critical mass be okay? 4. Thomas: a. State interests? b. Benefit to students? c. Harm to students? d. law school continues to privilege the LSAT (and other traditional standards of merit) even though it is imperfect and biases underrepresented students

1. In-Class notes a. U of Michigan, student that had been applied had been denied based on the fact they considered race when making admissions decisions. The uni considered race as one factor among others. One factor among many. b. What was the compelling interest of the school to consider that factor: the ct essentially recognizes they have a compelling interest in having a diverse student body. They say it's necessary to its educational mission. Promotes learning outcomes, better prepares students as professionals. Lotta benefits from diversity, which his why it's compelling. c. So why was this narrowly tailored to that goal of attaining a diverse student body: because they weren't using a quota system for the students. Ct says their plan is narrowly tailored. Instead of instituting a quota, they maintained flexibility, was just a 'plus' factor. It's flexible enough to make sure each applicant is evaluated as an individual. d. It's not a quota, considering race, but it's just a plus factor, it's no more than what's necessary to achieve what they're going for. e. Thomas has a variety of comments: says that the state has no legit interest in even having a law school, let alone maintaining an elite one. Says this is important, but it's not a pressing public necessity; it's not like Korematsu, when we're talking about national security. He thinks the school didn't present a compelling interest, don't talk about remedying anything, just want diversity. He also says it's not JUST Michigan's interest bc a lot of people that go to that uni don't stay in Michigan. He also contests the benefit to the students: people who aren't qualified shouldn't get in, who aren't prepared. 2. Chemerinsky notes a. Here, ct reaffirmed that all racial classifications imposed by government must be analyzed by a reviewing ct under strict scrutiny. b. Ct ruled that colleges and unis have a compellinginterest in creating a diverse student body and that they may use race as one factor, among many, to benefit minorities and enhance diversity. Dissent, though, strongy challenged the basis of this conclusion, contending that the ct's deference to the uni wasn't appropriate under strict scrutiny, that diversity wasn't a sufficient interest to justify the use of racial classifications.

A. Gratz. v. Bollinger (805) 1. Was there a racial classification on the face of the policy? 2. What level of scrutiny needed to be applied? Why? a. Necessary? b. Compelling? c. Narrowly Tailored? 3. Souter Dissent a. Why did he think the point system was permissible? 4. Ginsberg Dissent

1. In-class notes a. Gratz considered a point system, so there was a facial race classification - awarded twenty points for someone's membership in a racial minority, so it gets strict scrutiny bc on its face it is considering race. We know there is a compelling interest in having diversity. Whatever the program is, it has to be necessary to that compelling interest, and it has to be narrowly tailored. Why wasn't this narrowly talored: bc they didn't review the applications individually; if you were black, you'd automatically get the twenty points. b. Why did Souter think the twenty points was a non-issue: gave out points for all sorts of stuff. School said that anybody who got 100 points are qualified to join the school. Souter says you can also get 20 points for socioeconomic disadvantage, playing sports, there are a variety of things you can just get twenty points for. If we look at the point system as a whole, they're giving away points for all sorts of things. 2. Chemerinsky notes a. Affirmative action: ct invalidated an affirmative action program for undergraduate admissions that added 20 points to the applications for minority students. Ct ruled that the undergraduate program wasn't sufficiently "narrowly tailored" to meet the strict scrutiny used for gov racial classifications.

A. Loving v. Virginia (1967) 1. "All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process."Va.Code Ann. § 20-57 (1960 Repl. Vol.). 2. Does the statute concern a facial racial classification? 3. What level of scrutiny applies? 4. Is there a compelling government interest here? 5. Footnote 11- would it make a difference if the statute prohibited all interracial marriage? 6. The statutes proscribe generally accepted conduct (marriage) if engaged in by members of different races.

1. In-class notes a. This is the second half of the Loving decision - first half was on substantive DP, how marriage was fundamental. Rn talking about the EP part. b. Does the statue concern a facial racial classification: yes, it very cleary says so. c. What level of scrutiny applies: strict scrutiny d. Is there a compelling gov interest here: ct said the state's interest wasn't legit, not legit to propose racial discrimination. Totally illegitimate interest from the state. e. State argued that the law was const bc it was punishing both white people and POC. But the said it wasn't const, equal application alone isn't enough - it's not a legit state interest to pursue racial discrimination. f. Would it make a diff if the statute prohibited all interracial marriage, not just white and black, said instead 'everybody has to marry somebody of their own race:" ct said that wouldn't have made a diff, bc you're still making these distinctions on race, there's no compelling gov interest there.

A. Incorporation doctrine: bill of rights is enforceable against ate (not just fed) action

1. Incorporation doctrine: Bill of rts is enforceable against state (not just fed) action) 2. Are the due process clause and the incorporation doctrine both means to the same end, or do they achieve something different? a. The incorporation doctrine tells us how and which rights contained in the Bill of Rights can be enforced against state action (those that are fundamental to our scheme of ordered liberty) b. The Due Process Clause focuses on (1) procedural issues (fair notice and opportunity to be heard before rights are impacted); (2) protecting the rights found in the Bill of Rights (once they have been incorporated as enforceable against the states) and (3) other fundamental rights not enumerated 2. 14th amendment a. Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. b. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. 3. Results of incorporation illustrated: a. "this is an action brought under the First and Fourteenth Amendments." 4. Once rights are incorporated, they are protected in v specific areas of the const. You HAVE to say "xth and 14th amendment." When you're saying one of your right siwhtin the first eight amends has been broken, need to show it's actually been incorporated, say "and 14th."

Role/use of insanity claims:

1. Insanity 2. Extreme Mental or Emotional Disturbance a. Remember: homicide mitigation only 3. Negate element/mental state a. Example: mistake 4. Explanation a. Where else in our coverage, so far, could you bring up evidence of mental illness other than insanity? Mistake. Mitigation - extreme mental or emotional disturbance. b. EMED is JUST a homicide doctrine. Aka, don't need to talk about it in an arson case where the person is still mentally ill (extreme mental or emotional disturbance). c. Some states let defendants make ALL of these arguments - mistake, EMED, insanity. Some states say if you raise insanity, the only defense you have is insanity. Other states you can pick - pick one.

review: Part 2 - Individual rights/liberties

1. Introduction to Individual Rights a. Privileges or Immunities b. Incorporation Doctrine 2. Substantive Due Process a. Economic Liberty b. Contraception and Abortion c. Marriage and Sexuality 3. Equal Protection and Status Based Classifications a. Based on Race/National Origin b. Discriminatory purpose/effect c. Affirmative Action d. Based on Sex/Gender e. Based on Disability 4. Equal Protection and Fundamental Rights a. Welfare and Education, Access to Courts 5. Reconstruction Amendments

A. Brown v. Board (1955)

1. Issue: a. whether racial segregation in public schools (even though tangible factors may be equal) was a denial of equal protection of the laws in violation of the 14th Amendment. 2. Facts: a. SCOTUS considered consolidated cases with the same legal issue from Kansas, SC, VA, and Delaware. Black children from those 5 states sought admission to racially segregated public schools in their communities. b. SCOTUS overturned Plessy in ruling that "separate but equal" facilities are inherently unequal and violate the protections of the Equal Protection Clause of 14th amend. c. The segregation of public education based on race instilled a sense of inferiority that had a hugely detrimental effect on the education and personal growth of black children. i. Opinion was based on information from social science studies rather than court precedent. d. The decision caused massive backlash from several states who then fought integration efforts for decades. 3. Backlash to Brown: a. Senator James Eastland of MS declared "the South will not abide by nor obey this legislative decision by a political body." b. Senator Harry Byrd of VA: "the most serious blow that has yet been struck against the rights of the states in a matter vitally affecting their authority and welfare." c. By 1956, Senator Byrd had created a coalition of nearly 100 Southern politicians to sign on to his "Southern Manifesto" (officially titled Declaration of Constitutional Principles) an agreement to resist the implementation of Brown. d. On February 25, 1956, Senator Byrd issued the call for "Massive Resistance" — a collection of laws passed in response to the Brown decision that aggressively tried to forestall and prevent school integration.

West Coast Hotel Co. v. Parrish (1937) A Washington statute required employers pay a minimum wage to women and children. An employee sued to recover the difference in the wages she received and the wages she was owed by statute. The hotel claimed that the Washington statute was unconstitutional and was in violation of the employer's freedom of contract.

1. Issue: Does a minimum wage law for women violate the Due Process Clause of the Fourteenth Amendment? a. No. It is constitutional. Why? 2. Reasonableness standard: "Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process." a. What was the public interest at stake here? 3. The Court explicitly overrules Adkins which relied on Lochner in striking down a minimum wage law (saying it unjustly interfered with the freedom to contract). West Coast Hotel effectively overrules Lochner as well. 4. Dissent: judges must faithfully interpret the law. If the constitution is a hurdle in the way of good legislation, then the constitution should be amended. The meaning of the constitution doesn't change with economic events.

Missouri v. Jenkins, 515 U.S. 70 (1995) (Thomas, Concurrence):

1. It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior. Instead of focusing on remedying the harm done to those black schoolchildren injured by segregation, the District Court here sought to convert the Kansas City, Missouri, School District (KCMSD) into a "magnet district" that would reverse the "white flight" caused by desegregation. 2. The mere fact that a school is black does not mean that it is the product of a constitutional violation. 3. Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment. Indeed, it may very well be that what has been true for historically black colleges is true for black middle and high schools. Despite their origins in "the shameful history of state-enforced segregation," these institutions can be " 'both a source of pride to blacks who have attended them and a source of hope to black families who want the benefits of ... learning for their children.' " Fordice, 505 U.S., at 748, 112 S.Ct., at 2746. (THOMAS, J., concurring). Because of their "distinctive histories and traditions," ibid., black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement. 4. Missouri v. Jenkins: encapsulated Thomas' view on affirmative action. He feels like the cts feel like anything that is predominantly black is automatically inferior. Here, there'd been white flight. A school became predominantly black bc of de facto segregation. Ct was figuring out if it should force the school to integrate, even though there were no real segregationst policies. 5. Affirmative action focuses on the issue of whether there's a diff tween exclusion and inclusion, is it permissible to seek to rectify past discrimination and searching for substantive equality.

A. Recap of judicial review

1. Judicial Review (Marbury v. Madison) - the United States Supreme Court has the power to declare a law unconstitutional. 2. Judicial review includes the power to review and invalidate state laws that are inconsistent with the U.S. Constitution (Martin v. Hunter's Lessee). 3. Judicial Supremacy (Cooper v. Aaron) - SCOTUS's rulings interpreting the Const are "supreme law of the land" for the purposes of Article VI and are binding on all state officers.

Doctrines/Approaches to the insanity defense

1. M'Naghten a. Didn't know right from wrong b. This test is from the 1800s. says you win an insanity defense if you didn't know right from wrong. This is based on the false/incomplete idea that mental illness is stuff like schizo, where you have delusions and think you're god. There's no statement on how serious this needs to be, so what doctrine have we studied before are we going to have to turn to figure out how serious your illness needs to be for you to have to have a defense: causation. Ask if the illness caused the crime. Aka, we're going to have to say it was the illness that caused the crime, not you. So we're trying to figure out how seirous is the illness, how much did it really cause the crime. This test doesn't help us with that 2. Irresistible Impulse a. Inability to control conduct b. Irresistible impulse test: says you have an insanity defense if you were unable to control your conduct. This again suggests a causation standard, which is pretty high. c. In short, both M'Naghten and Irresistible Impulse aren't effective scientifically, not as clean as they'd like to be. 3. Durham Product Test a. Mental illness caused the criminal offense b. Js pick one or the other of the two main tests. There's a third test that basically nobody uses right now, but Hall thinks it's the only one that's scientifically valid: Durham Product Test - we're just asking if the mental illness caused the criminal offense. Aka, if the illness was just 40% of the crime, you lose. If it was 51%, you win. Why does Hall think this is unpopular, other than general hostility to criminal defense: one thought a lot of people have is that criminal defense lawyers are manufacturing mental illnesses to help their clients. What other stereotype is at play here: a lot of people think that mental illness isn't real, that you just lack willpower. 4. MPC a. Lacks substantial capacity to appreciate criminality/wrongfulness ORlacks substantial capacity to conform conduct b. The MPC isn't quite as good as Durham test. The MPC approach says you have an insanity defense if can prove you lack substantial capacity to appreciate the criminality/wrongfulness of your conduct (M'Naghten) OR you lack substantial capacity to conform conduct (irresistible conduct). MPC combines both the two main tests, which is a major improvement. c. MPC also solves another problem: under other tests, have to prove causation. MPC gest us in a better position on causation bc it says the standard isn't that insanity has to 'cause' a crime, it just has to rob you of a substantial capacity. 'substantial' could be a lower standard than just 'predominant.' So that's cool. d. Problem with MPC approach: if you're 35% unable to appreciate criminality, and 35% lacking in substantial capacity to conform conduct, you can't add those together to say that you lacked substantial capacity. 5. When you get the insanity question on the exam, how much work do you have to do: you have to run through four tests. This is a long answer, at least four sections. Save MPC for last, bc you're essentially going to be reviewing the M'Naughten and Irresistible Impulse tests. (LOOK AT EXS FOR DISCUSSION QUESTIONS TO SEE HOW TO DEAL WITH MPC APPROACH, DON'T WANT TO JUST REPEAT WHAT I'VE ALREADY SAID) a. He'll give you points if you have good organization, organize arguments weakest to strongest.

1. Whitman case: focused on a specific section of the clean air act that allowed EPA to set primary ambient air quality standards. Ct considers two issues: dose statute delegate legis power, does statute provide an intelligible principle.

1. Maj avoids saying satute delegated any legis power - focus on confirming decision-making authority of agencies instead of calling it a delegation of power. The concurrent really takes issue with that - I agree on how we decided this, but it'd be more honest to just say the legis is delegating its authority. a. Bc if cong really wanted to, they could be the ones to come up with whatever air quality standards they want - but for whatever reason, might be too complicated or not enough time, have just left that to an agency. So let's just call it what it is. b. Maj though decided to call it decision-making authority. 10. When legislature goes decision-making authority, has to give agency an intelligible principle to follow. Can't just say 'hey EPA, do stuff.' EPA has to get instructions on what it's supposed to be doing. Ct interprets 'intelligible principle' v liberally, almost never second-guesses cong's decision. a. "vague terms" in Whitman: don't req a statute too say how hazardous is too hazardous - just is enough to say we want your regulations to focus on what's imminent/necessary/hazardous. There is an argument that anything more than that would require the expertise, the absence of which is the very reason why cong is handing issue off to an agency. b. Ct also mentions they will keep an eye on the degree of agency discretion. Talk about 'grain elevators vs. whole eco' - cong can be less specific about intelligible principles if agency is just making regulations for grain elevators. But they feel like when you're handing something over to an agency to regulate whole eco, need to say more than just tell them to promote 'fair competition.' 11. Main takeaway: legis can delegate authority to agencies to come up with regulations; when they do, has to be an intelligible principle, and ct will look at that v leniently. 12. Ct's concern: if you're going to delegate rule-making authority for something limited in scope, can be more vague. But if it's going to be a huge area, like the entire eco, need to provide more guidance.

A. Examples 1. EXAMPLE (1): Westernstate passes a law which mandates that "no person who was born in Japan shall be eligible for jury service." This law explicitly discriminates on the basis of national origin and no independent showing of discriminatory intent is required. The law will be subject to strict scrutiny, which most likely means that it will be struck down. 2. EXAMPLE (2): A law requires all city students be tested at the beginning of each school year to determine which classes they will take. Although the school district has approximately equal numbers of white and black students, a disproportionate number of black students are placed in "Special Education" classes. Absent a showing of discriminatory intent, the law will not be subjected to strict scrutiny. However, the disparate impact can be used as evidence in an attempt to show a discriminatory intent. If the discriminatory intent is found by the court, then the law will be subjected to strict scrutiny. 3. EXAMPLE (3): A city ordinance requires that all residents making alterations to their homes first obtain permission from the city council. In the past three years, approximately 98% of the requests made by white home owners have been approved while less than 5% of the requests by non-whites have been approved. This racially discriminatory administration of the facially neutral law could almost certainly be used to show that the law is purposefully discriminatory

1. McCleskey v. Kemp (1987) (EPC) a. SCOTUS held that proof of discriminatory impact in administration of the death penalty was insufficient to show an equal protection violation. Statistics demonstrated racial inequality in the imposition of capital punishment. However, the defendant needed to prove the decision makers in his case acted with discriminatory purpose. He could not, so there was no EPC violation. b. Moreover, in order to challenge the law authorizing capital punishment, he would have to prove the Georgia legislature enacted or maintained the death penalty because of an anticipated discriminatory effect. c. Does the ct have what it needs to find that the death sentence would've violated the EPC? We're not challenging a single statute, we're challenging a wide-ranging effect. So probably would just be rational basis test. McCleskey, ct was basically right this is insufficient for an EP violation. d. These were just sort of statistics demonstrating racial inequality in capital punishment generally. Ct said he'd need to show a discriminatory purpose in his sentence specifically. This specific D would need to show in his specific case there was adiscriminatory purpose in sentencing him to death. e. It is not enough to just show that in general there's stiatitstics showing there is discrimination in an area if someone is going to challenge their treatment, have to show a purpose, and it has to be more specific to them. 2. Answer to (in-class) multiple choice: B. they limited it specifically to women, not men. It's facially discriminatory bc it's specific to women. Why would we not choose A: bc strict scrutiny only goes to racial and national origin problems - this instance is only subject to intermediate scrutiny.

A. Lochner Era - 1897 to 1937 where SCOTUS is widely believed to have made it a common practice to use its own interpretation of substantive due process to invalidate laws held to be infringing on economic liberty or private contract rights.

1. Minimum wage, federal child labor laws, banking regulation, etc 2. Most scholars (on either end of the political spectrum) see the Court as playing an activist, conservative role. Some scholars have challenged the near universal hatred of this decision. 3. The end of the Lochner Era is marked by West Coast Hotel Co. v. Parrish (1937). 4. The Lochner era ended when the Court's tendency to invalidate labor and market regulations came into direct conflict with Congress's regulatory efforts in the New Deal. a. Switch in time that saved nine 5. Lochner era: a lot of people hate the Lochner decision. Lochner was effectively overruled. However, it's important to know about Lochner bc it'll probably come up with any no of convos you'll have. 6. Lochner era is considered to have ended it when ct suddenly stopped invalidating labor regulations bc of New Deal. FDR was super irritated by SCOTUS overruling regulatory efforts, wanted to enlarge the ct. when ct resolved West Coast Hotel, was a switch in time. Didn't want ct to get packed.

case or controversy ex: Muskrat v. US

1. Muskrat v. US a. Background facts i. 1800s: US reserved land for Cherokee Nation. ii. 1902: Congress allotted land to citizens of the Cherokee Nation iii. 1904-06 Congress increased the number of people who would have claims to the land; Cherokee Nation citizens believed the law would dilute their interest in the land iv. 1907: congress authorized a limited class of people who had interest in the land to sue v. 1911: court decided that there was no case/controversy because the parties had no adverse interest "the whole purpose of the law is to determine the constitutional validity of this class of legislation" b. SC has declined to provide advisory opinion on proper resolution of abstract legal questions that are presented in a setting divorced from a actual dispute between parties. c. Art 3, section 2 - judicial power extends to all "cases and controversies." i. Ct decided that the case couldn't proceed bc it didn't include a case or controversy. § Why: they felt the US didn't have any adverse purpose, aka there's no adversarial rel tween P and US. Suing to just challenge the constitutionality of some of this legislation. ii. Why'd court feel there was no controversy here: if they ruled on it, they'd be giving an advisory opinion, basically. Ct preemptively would say 'sure that legislature is/isn't constitutional.' iii. Ct doesn't want to say something is or isn't const if there's no adversarial case in front of it. § Why: there are benefits to our structure of adversarial litigation. There is a lot of work that goes into pulling out the many facts, all of the diff issues at play when in such a rel. Cts don't like to resolve constitutional matters until they have to, because that's a big deal.

Options/general knowledge concerning the insanity defense:

1. NGI/NGRI a. The normal result iff you raise insanity defense: either not guilty or not guilty by reason of insanity (NGI/NGRI). If NGI result, walk free of criminal charge, but (usually) immediately face a civil commitment proceedings - process by which we put people in mental hospitals if they pose a danger to themselves or others. Why is this problematic: putting someone in a hospital involuntarily. To civilly commit a person, the moving party has to prove that that person is a dagner to themselves or others with CLEAR OR CONVINCING evidence. That's a high standard. b. Civil commitment is indefinite. Get a review every so often, ultimately it's up to docs to say when you're not a danger anymore (if at all). 2. Abolish inanity defense a. Some states have just abolished the insanity defense, SCOTUS says this is constitutional. 3. GBMI a. Some states have moved to a Guilty but Mentally Ill Verdict (GBMI). Wanted to remove incentive for defendants to make up mental illness defenses. If you think they're ill, jury will give them a GBMI verdict, go to prison but get mental health treatment. A lot of critics say this is an illusion, just sending these people to prison, not giving them actual treatment. 4. Proposal: cannot be justly held responsible a. One reform proposal: cannot be justly held responsible - Hall thinks this is just an effort to revitalize the Durham Product Test.

Executive immunity and Nixon v. Fitzgerald:

1. Nixon v. Fitzgerald (civil suit where civilian analyst was fied after testifying before cong about inefficiencies and cost overruns) (basically a whistleblower suit) a. Nixon as former president, entitled to absolute immunity from damages liability based on official acts taken while president i. Unique office: enforcement of federal laws; supervisory and policy responsibilities; visibility and scope of responsibilities ii. Because of the singular importance of the President's duties, diversion of their energies by private lawsuits would raise unique risks to the functioning of government iii. Scope of absolute privilege - sphere of protected action - outer perimeter of official responsibility b. Dissent: is dismissal of an employee really the kind of executive action that we're concerned about being impaired if suits are allowed to go forward? Just bc pres has a million things to think about, should firing a civilian analyst really be a thing we want to discourage them from doing? Maj would probably be like yeah, bc that same employee was reporting also on inefficiencies and cost overruns. Pres's job description is so broad that his acts can touch on a variety of scopes, doesn't need to be burdened with people being upset with those decisions he's making bc his job is just so unique it could be a problematic diversion of his attention and efforts.

ex of fed executive power: Nixon v. Fitzgerald

1. Nixon v. Fitzgerald: recognized a pres's absolute immunity from ds liability predicated on his official acts. In explaining the basis for that immunity, ct said that the prospect of such liability could "distract a pres from his public duties, to the detriment of not only the pres and his office but also the nation that the pres was designed to serve." Trump argued later that the diversion caused by a state criminal subpoena imposes an equally intolerable urnden on a pres's ability to perform his Art II functions. But Fitzgeral didn't hold that distraction was sufficient to confer absolute immunity - ct instead drew a careful analogy to the common law absolute immunity of jduges and prosecutors, concluding that a pres, like those officials, must "deal fearlessly and impartially with the duties of his office" and not be made unduly cautious in the discharge of those duties by the prospect of civil liability for official acts. 2. Although Nixon v. Fitzgerald held that a pres may not be sued for ds for conduct during the pres's term in office, the case doesn't resolve whether a pres can be sued for conduct prior to taking office this issue was resolved by Clinton. Clinton was sued for sexual harassment that allegedly occurred while he was gov of AR. He moved in fed district ct to dismiss the suit, or at least to have it stayed until he wasn't pres. The district ct ruled that a pres doesn't have absolute immunity to suits for conduct prior to becoming pres, but the ct used its discretion to stay the trial until after the completion of clinton's tenure. SC granted cert and ruled against Clinton, held that a suit against a pres should be neither stayed nor dismissed if it's based on conduct that allegedly occurred prior to his taking office. Ct explained that immunity exists to safeguard the exercise of discretion by an officeholder; thus, there's no basis for "Immunity for unofficial conduct" ct expressly rejected pres's claim that civil suits would unduly interfere with the pres's carrying out the important and unique const functions of the office. 3. The ct has directly faced the issue of money ds and held that a president or ex-pres can't be sued for money ds for conduct in office. In Nixon v. Fitzgerald, ct held that the pres's "unique status under the conts" and the singular importance of the duties of the office justify absolute immunity. In this case, Fitzgerals, an analyst in the air force, alleged that his job was eliminated in unconstitutional retaliation for his exposing cost overruns in the defense department in testimony to cong. In ruling that the suit aginat the pres for money ds was barred, the ct emphasized that it feared that frequent suits against the pres would etract from his ability to perform effectively. Ct concluded not only that a sitting pres was immune from suit, but also that a former pres was entitled to immunity from ds liability predicated on his official acts. The ct explained that there are other checks against the pres, ranging from formal ones, such as impeachment, to more informal ones such as pol pressure. The dissent responded that these checks don't provide compensation to an individual injured by unconstitutional pres action.

A. Several theories of Presidential Power that come out of Youngstown and similar cases:

1. No inherent presidential Power. (Youngstown Majority). The president may only act pursuant to express or clearly implied statutory or constitutional authority. 2. May not Usurp/Interfere. The president may act without express statutory or constitutional authority as long as the president is not usurping the powers of another branch or stopping another branch from performing its duties. a. Justice Douglass's opinion was bothered by the president using federal funds to compensate the steel mill owners. He felt that was a usurpation of Congress's spending power.cong is the one that spends money, why is the pres doing that. 3. Legislative Accountability. The president may take action not prohibited by the Constitution or a statute. (Justices Frankfurter; Jackson - Congress explicitly rejected giving the president the authority to seize industries - so even though there's not a specific statute saying the pres can't act, cong had explicitly rejected giving him the authority he used) Broad inherent authority. President may act unless the conduct violates the constitution. (Justice Vinson dissent in Youngstown)

Review/consolidation: The different categories of people 1. Suspect Classifications are the distinctions that courts are most suspicious of because they rarely (if ever) have a reason to be used to draw distinctions among people (race, national origin are the ones we've discussed.) 2. Quasi-suspect Classifications are still viewed with skepticism, but less so, because it is more likely that there will be legitimate reasons for drawing distinctions (ex: sex, gender, sexual orientation). 3. Non-suspect Classes are basically everyone else. It's fine for the government to draw distinctions because, ultimately, not all distinctions are harmful and there could be legitimate government reasons for doing so. When someone in a non-suspect group wants to be considered quasi suspect or suspect (and force government action to be carefully scrutinized by a court), they need to give really good reasons for that. That's where the Carolene Products FN4 and Cleburne come in.

1. Notes a. Suspect classifications: the distinctions that cts are most suspicious of bc they rarely have a reason to be used to draw distinctions among people (like race, national origin) b. Quasi-suspect classifications: still viewed with skepticism, but less so, bc it is more likely that there'll be legit reasons for drawing distinctions (ex sex, gender, sexual orientation). c. Non-suspect classes: basically everybody else. Would have to argue for them to get them to a quasi-suspect or suspect class d. Why do we care about these classifications, the kind of scrutiny (!!!!!!!) they receive: helps us figure out how much scrutiny a ct would have to give to the law or policy in question. e. She wants us to use the four factor test from Cleburne as part of our rational basis with bite analysis. f. Rational basis with bite: rational basis itself is almost a joke - trad tb review, a legislature just has to say that its law or policy is reasonably related to a legit gov purpose, and a ct would probably find reasons for the law, even if the legislature didn't present its own reasons. Rb with bit was the SC in Cleburne saying that there are times when we will actually inspect the gov's reasons for passing a law or policy. That's v diff than trad rb review. g. Strict scrutiny goes to suspect groups. Sex, gender, sex orientation are quasi-suspect, get intermediate. Rb with bite: gov just noticing that a state's reasons are rational, rb = just a rubber stamp. h. In Cleburne, ct found that disabled people weren't a quasi-suspect group. Quasi-suspect would get intermediate scrutiny. In Cleburne, ct just said that bc of prejudice laying below the state's zoning law, it is bc of that prejudice that they said the state failed rational basis. In short: disabled people aren't a quasi-suspect class, but ct birthed rb with bite bc they were concerned about prejudice. Aka, rb with bite doesn't ask if someone is a quasi-suspect class; is just more than traditional rb review. i. In Cleburn, didn't mention much about immutability, but they did mention that the people they were talking about did have mental handicaps that they could not control, those handicapped their ability to interact with society. j. The ct in Cleburn was using the factors to figure out if they were dealing with a suspect class. HOWEVER, we just need to consider them in the context of rb with bite analysis. Say: going through these four factors, the ct would probably decide there was prejudice underlying this issue, use rb with bite, would further investigate the motives of the state. k. Rb with bite is not linked to the quasi-suspect group analysis. Quasi-suspect status is linked to intermediate scrutiny. l. Rb with bite: all that happens is wether the ct actually looks at the reasons the state passed the statute. In trad rb, just rubber stamp it, if gov can give basically any reason. The default review of a statute is rb. There has to be a SDP or EP issue to bring it above rb. ALSO: If a person is claiming SDP or EP, that their rights have been violated, they first have to point to a source for those rights.

another breakdown of originalism, non-originalism

1. Notes on this section: originalists believe that the ct should find a right to exist in the const only if it's expressly stated in the text or was clearly intended by its framers. If const is silent, originalists say it's for the legislature, unconstrained by the cts, to decide the law. Non-originalists think it's permissible for the ct to interpret the const to protect rights that aren't expressly stated or clearly intended. Non-originalists believe that the const's meaning can evolve by amendment and interpretation. Ex: originalists argue it was wrong for ct to strike down state laws prohibiting the use of contraceptives and forbidding abortion. Bc the const is silent about reproductive freedom, and there's no evidence the framers intended to protect such a right, originalists argue that the matter is left entirely to the legislatures to govern as they deem appropriate. Non-originalists, however, believe it was appropriate because word 'liberty' includes a right of privacy, reproductive freedom is included in privacy.

A. Breakdown (simplistic) of cong's powers:

1. Once you start analyzing Congress' authority, then you need to consider the rules SCOTUS has developed for each power (commerce, taxing, spending) as appropriate (NECESSARY AND PROPER is always lurking re: implied powers): a. Taxing i. Is Congress raising revenue? Is the supposed tax really just a hidden desire to regulate and punish (penalty)? b. Spending i. Is Congress spending funds for the general welfare? Has it imposed conditions on the receipt of federal funds by the states? Is the financial inducement coercive? c. Commerce clause i. Has congress tried to regulate something? What do the cases we read tell you about how you're supposed to analyze this use of power? d. NOTE: If Congress has acted, just because one of these avenues would not have been constitutional, does not mean that Congress cannot act. If any one of these works, then Congress acted constitutionally e. NOTE: Commerce Clause + Necessary and Proper Clause = Congress' authority to pass a variety of regulatory laws (including criminal laws)

initial breakdown of originalism, non-originalism:

1. Originalism: a. The og meaning of the const is dispositive. To interpret the const is to seek the og meaning of the text. b. It properly recognizes the const's status as law. Necessary to preserve democratic values. Uniquely situated to prevent judges from imposing own personal views 2. Non-originalism: a. The const's meaning today isn't always the meaning it had when it was ratified. i. Significant and sometimes dispositive weight to og meaning. The general terms in the const provide guidance. b. Precedent - in common law decision making, const principles evolve gradually over time; potential state consensus. i. Framers disagreed, and the record is silent in many aspects - lack of concrete og meaning means that judges select the meaning that matches their personal values. c. More flexible about if const can be interpreted differently, if it can be more living and grow with the times. d. Dead-hand problem: the idea that the framers were putting forth these ideas in the const, they're reaching their dead hands in the future, their decisions are still affecting us even though they're dead. 3. Note: there is no one single type of originalism, non-originalism

I. Limits to Judicial Review (Justiciability = whether a claim may be resolved by the courts. Cases are justiciable (able to be heard by the courts) or non-justiciable (unable to be heard by the courts)). Limits to a claim being resolved by the courts:

1. Political question doctrine 2. Ripeness 3. Mootness 4. Standing 5. Case or controversy

Seila Law LLC v. Consumer Financial Protection Bureau: 1. Deals with congressional power in limiting presidential power to remove 2. CFPB: Protects consumers from unfair, deceptive, or abusive practices and take action against companies that break the law. Issue: Whether the CFPB single Director serving for 5 years, unable to be removed except for cause is unconstitutional. (Yes - president should be able to remove for cause)

1. Power to Remove = power to supervise (Take Care Clause Article II, Section 1, Cl 1) - it is also incident to appointment power which is located in Article II 2. Congress can limit the President's ability to remove if it concerns (1) members of multimember expert agencies that do not wield substantial executive power and (2) inferior officers with limited duties and no policymaking or administrative authority. 3. CFPB director has broad quasi legislative, quasi judicial, and enforcement powers. It also does not rely on the annual appropriations process for funding. a. Quasi legis and judicial - making policy, holding administrative hearings. Kagan was saying that those precedents were based on functions, not these weird determinations of multi-persons boards as opposed to single person boards. Isn't it easier to supervise one person than five anyway. b. Bc CFPB has quasi legis and j powers as well as exec, cong has the power to limit the pres's ability to remove. c. But bc of majority: our focus is whether: 1) office concerns members of a multimember expert agencies that don't wield substantial executive power and 2) inferior officers with limited duties 4. Ct distinguishes this case from Humphrey's Executor and Morrison: a. Single person b. Abrupt departure c. Loss of expertise d. CFPB director is not inferior officer 5. The president is responsible for the actions of the executive branch - how can they be if cannot remove this person with ample power? The legislature cannot control them by withholding funds through the appropriations process either.

limitations on state power: Preemption, dormant commerce clause. Intro to preemption:

1. Preemption: Art 6 has the supremacy clause. If there's conflict tween fed and state law, fed law is supreme. But there's difficulty in deciding if a particular state or local law is preempted by a specific fed statute or regulation. a. Two places that we're looking at: Supremacy clause, dormant commerce clause (doesn't actually exist - is the "negative" of the supremacy clause) b. Supremacy clause: Art. 6. Generally thinking is that fed law has to be supreme, bc if not, what's the pt, states could pass all sort of comflicting laws, would be as bad as if the fed gov couldn't act at all. If we as a country are going to operate smoothly, can't have a lot of conflict from laws passed by the states, favoring each other or themselves. c. Most of the questions from supremacy clause come from when there is just implied preemption and not express preemption. 2. There are two maj situations where preemption occurs: a. where a fed law expressly preempts state or local law. b. preemption is implied by a clear congressional intent to preempt state or local law 3. Preemption can be express or implied - explicitly stated in statute's lang v. implicitly contained in statute's structure and purpose. 4. The maj situations where preemption is found: a. express preemption occurs where there is explicit preemptive language. b. there is implied preemption. i. Three types of implied: 1) "field preemption - where the scheme of fed law and regulation is 'so pervasive as to make reasonable the inference that cong left no room for states to supplement it. 2) when there's a conflict between fed and state law. Even if fed law doesn't expressly preempt state law, preemption will be found where "compliance with both fed and state reuglaoints is a physical impossibility. 3) Implied presumption will also be found if state law impedes the achievement of a fed objective.

A. What is the source of exec power: 1. Exec/implied legislation + constitutional authority B. What are some of the limits of exec power:

1. Privilege a. Note: generally, the pres has a right to keep communications confidential. Other gov acts as well have absolute right to keep certain things confidential. But their presumptive rt of confidentiality is overcome by a demonstrated, specific need for something, lie in Nixon case where there was a need for evidence in a pending criminal trial. In this case ct said that military secrets might be a reason for absolute privilege, but that's not what happened in Nixon. Any sort of unqualified privilege would inhibit judiciary's ability to perform their functions. When there's a demonstrated need, that could over come a request for privilege - it's a balancing test Immunity

A. Barron v. Baltimore (1833) 1. 5th Amendment a. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 2. How was his property impacted? 3. Ruled that the Bill of Rights restrains the federal government and not the states. Why? a. The constitution was drafted by the people of the union for themselves and the government of the union. Not for the government of the individual states. b. SCOTUS looked to Article I Section 9 and 10 and discusses the limitations specific to states and specific to the federal government > there is express text applying restrictions to the states. Thus, if the Framers intended the bill of rights to limit the states, they would have said to explicitly c. Plus, again looking to purpose, the main concern was restraining the powers of the federal government, not the local governments. 4. What did this mean for Barron if he couldn't sue Baltimore under the 5th Amendment of the US Constitution?

1. Questioning Barron a. Is the Court's rationale persuasive? i. If we are looking to the language of the text, the first amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." ii. Compared to other amendments like the 5th that use passive voice (nor shall private property be taken for public use, without just compensation). iii. How do these clauses support or undermine the Court's ruling in Barron?

Post-Lochner Era: The Court applies the Rational Basis Test unless heightened scrutiny is warranted. Also:

1. Rational Basis Review says that legislation is presumed to be valid and will be sustained if the regulation is rationally related to a legitimate state interest. (The burden is on the challenger) a. Highly deferential to legislation b. Virtually always results in a conclusion that the challenged legislation is valid. 2. A legitimate governmental interest considers possible objectives that the legislature might have sought to accomplish its goal. 3. Post Lochner: heightened scrutiny = reference to any amount of scrutiny that might be higher than rational basis. Chemerinsky: Considers possible objectives that legis might have sought to accomplish its goal

A. South Carolina v. Katzenbach (320) 1. Background: the coverage formula a. The rates of black registration and participation increased only slightly in many parts of the South before 1965. i. AL: 14.2% to 19.4% ii. LA: 31.7% to 31.8% iii. MS: 4.4% to 6.4% iv. In each instance, registration of voting-age whites ran ~50+% points higher b. Sections 4 and 5 of the VRA were designed to deal with the intransigence that had rendered case-by-case litigation largely ineffectual. Section 4 designated certain states and counties "covered" jurisdictions, based on two criteria: i. the use of a test or device for voting, such as a literacy test; and ii. (2) fewer than 50% of voting-age residents registered or voting in the 1964 presidential election. c. If a jurisdiction was "covered" section 5 required authorization by the DDC or the Attorney General before that jurisdiction could change its voting laws. d. Post 15th amendment, but before the voting rights act: participation in voting from black increased only slightly. e. Sections 4 and 5 of VRA was supposed to deal with the resistance of those southern states that made case by case litigation largely ineffectual. As a practical matter, then, for someone to actually get relief of some sort under the const, that takes years and a lot of money. A lotta people don't have the necessary time and resources to do that. f. Note that after the VRA, there was a much closer parallel between black and white voters. g. Rationale for sections 4 and 5: no need to litigate case by case basis; would confine remedies to a small number of states where we were having the most issues with voter suppression.

1. Rationale for sections 4 and 5 of VRA a. No need to litigate each issue (legislation that would purposefully burden the vote) b. Confines remedies to a small number of states where had the most difficulty c. Burden on states not high - just submit affidavits from voting officials asserting that they have not been guilty of racial discrimination through the use of tests and devices during the past 5 years and refute any evidence to the contrary the federal government produces 2. Challenge to Sections 4 and 5 of the VRA a. What was the alleged problem with the VRA? 3. What does the court say about facially neutral and facially fair laws? Can they still perpetuate discrimination? 4. Why did the majority think it was appropriate for Congress to mandate oversight of state changes in voting legislation? 5. Why did Justice Black agree and disagree? 6. What did SC was the problem with the voting rights act: it robbed them of their autonomy as a state to pass laws. SC was like, 'cong has the power to enact legislation to enforce the 15th amend. but sections 4 and 5 go too far, in part bc we're a state, should be able to pass the laws that we want.' Also felt like sections were doing more than just enorcing the 15th amendment if cong is singling out particular states instead of just applying something to everybody. 7. What does ct say about facially neutral and facially fair laws: they can still perpetuate discrimination. Ct talks about how literacy tests that may be fair on their face can be employed to create discrimination the 15th amend was meant to prevent. The problematic states would use such facially neutral laws to discriminate, were executed in an executionary fashion. 8. Cong did a lot of research to figure out which states to fixate on. Basically decided that this was an insidious and pervasive evil that's perpetuated only in certain parts of the country, and they needed to replace past remedies with sterner measures - way they did that was through these sections. 9. What did J. Black say: Sections 4 and 5 of VRA goes against the structure of federalism. States should at least have the power to pass laws, shouldn't have to go begging for permission.

A. Shelby County Alabama v. Holder (321-2, 810) 1. Why do you think there were changes made to the definitions of voting tests/devices? 2. Why did the court invalidate Section 4 of the Voting Rights Act (preclearance)? 3. Voter parity! Does that mean all of our problems are fixed? The VRA worked and should now RIP? 4. Is preclearance itself constitutionally suspect?

1. Remember in the 15th amend, section 2, that cong has ability to enforce 15th by appropriate legis, did that through VRA, and it was ok to have sections 4 and 5. How does this hold up in Shelby Cnty: SC used the data that was available at the time of this case, and not in the 60s, to say there was not as much of a disparity, not as much of a need for section 4. Aka, the majority thought there was no more need for an 'umbrealla' to prtect from the 'rain.' Aka, majority paints the picture that back in 1965, when they were putting VRA together, put in a lot of work to identify specific issues, the VRA needs to be justified by current needs. So took issue with the fact that cong didn't engage in the same sort of fact finding to justify it now. We had needs in 1965 that aren't the needs now. They also go through the development between 1965 and 2013, talk about some of the changes over time. Our population has also changed. There are diff ways discrimination at the polls can occur. Voter turnout now approaches parity. Aka, basically all of the reasons why we needed section 4 are no longer present. 2. What did Ginsburg have to say about this: there were other barriers to minorities voting. There are second-generational barriers. She also talked about how the cong looked at DOJ objections - aka, there are more objections now. Aka, the voting rights act is doing its job - it's not that everything is fixed jst bc there's parity. Bc these states have to seek permission, the DOJ is actually denying states the ability to pass hundreds if not thousands of potentially discriminatory laws that would end up violating people's rights under the VRA. Cong's whole purpose behind the VRA and these particular sections is that litigation was becoming way too burdensome, people were always having to sue. Aka, VRA is doing a good job, which is why we have parity - DOJ is actively rejecting laws. 3. Preclearance itself isn't const suspect - it's more about cong having to play a v active role to justify current needs with the burdens they are placing on states. 4. Preclearance = cong has to approve a state's new voting laws. Answer to hypo: D. since the formula is saying that the AG has to conclude there have been documented instances of discrimination in the past two years, that's basically them saying preclearance is based on current needs and conditions.

A. Regents of the University of CA. v. Bakke (1978)

1. Ruled that universities may constitutionally consider race as one factor in its admissions process but may not use a quota 2. Potential benefits of diversity: increased number of minorities in medical schools and the medical profession; addressed past societal discrimination increased the number of doctors willing to serve underserved communities; educational benefits flowing from a diverse student body 3. Should not distinguish between benign and invidious uses of race. a. White majority = several minorities b. Every minority group can be oppressed on the basis of race. Not always clear that a preference is benign; reinforce common stereotypes; inequity in forcing innocent people to bear the burden of redressing grievances they didn't cause 4. Dissent: a. benign vs invidious uses of race is a meaningful distinction b. Strict scrutiny for laws burdening racial minorities, intermediate scrutiny for laws burdening white people

A. Comprehensive takeaways from Cooper, Marbury, Martin

1. SC has the power to invalidate statutes that are unconstitutional. 2. The power includes the authority to review and invalidate state laws that are inconsistent with the Constitution. 3. Doctrine of Judicial Supremacy - decisions of the Court interpreting the Constitution are the "supreme law of the land" for purposes of Article VI of the Constitution and are binding on all state officers. 4. SC has the power to invalidate statutes that are unconstitutional. This includes the authority to review and invalidate state laws that are inconsistent with the Constitution. When the supreme court makes rulings, the decisions are the "supreme law of the land" for purposes of Article VI of the Constitution and are binding on all state officers. THIS IS THE BIG RULE

Chemerinsky notes for Loving v. Virginia:

1. SCOTUS recognized that racial classifications are impermissible under the equal protection clause bc they're based on assumptions of the inferiority of blacks to whites. 2. In Loving, SCOTUS declared unconstitutional a state's miscegenation statute that made it a crime for a white person to marry outside the Caucasian race. The court expressly repudiated the state's argument that the law was permissible bc it burdened both white and minorities. The ct said that "we reject the notion that the mere equal application of a statute concerning racial classifications is enough to remove the classifications from the 14th amendment's proscription of all invidious racial discriminations. Ct explained: "There can be no question but that VA's misgenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races....There can be no doubt that restricting the freedom to marry solely bc of racial classifications violates the central meaning of the Equal Protection clause." 3. SCOTUS first recognized the right to marry as a fundamental right protected under the liberty of the due process clause in Loving. In Loving, ct declared unconstitutional VA's antimiscegenation statute that prohibited a white person from marrying anyone other than another white person. The firs tparty of the ct's opinion explained why the law violated equal protection. Ct concluded by saying that the law also deprived the Lovings, an interracial couple prosecuted in VA for violating the law, of constitutionally protected liberty without due process of law. The Ct declared: "The freedom to marry has long been recognized as one fo the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." Ct thus concluded that the law "surely...deprives all the state's citizens of liberty without due process of law."

A. Brief comparison of Substantive Due Process (SDP) and Equal protection clause (EPC):

1. SDP: a. nor shall any State deprive any person of life, liberty, or property, without due process of law b. Contained in the definition of liberty is the protection of contraception, abortion, sexual expression, marriage, and more. c. Rational basis review applies unless a heightened standard is required to protect a fundamental liberty interest. 2. EPC: a. nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws. b. Concerned with discrimination (does the law treat women differently from men? Blacks from whites? Gay people from straight people?) c. Discrimination is only impermissible depending upon the level of scrutiny

General notes on cong's limits:

1. Some questions will require you to investigate multiple powers to see if what cong has regulated was a constitutional use of its powers. 2. If someone is challenging a tax, will argue that it was a penalty, and that it was an unconstitutional use of cong's taxing power. 3. Through necessary and proper clause, have found that SC has implied powers. 4. When you consider whether something constitutional, you must consider the options that cong has to achieve its goals (taxing, spending, commerce, express and implied) B. Congress has a variety of ways to accomplish its goals: express and implied powers, commerce, taxing, spending 1. The larger question is how does cong constitutionally do something.

I. Equal Protection Clause - Status Based Classifications A. Standards of scrutiny for the EPC (same for state or federal action): a law is upheld as constitutional if:

1. Strict (race, national origin) a. Necessary to achieve a compelling government purpose b. Proof that the law is the least restrictive or least discriminatory alternative c. Burden on the government 2. Intermediate (sex (gender identity and sexual orientation?), children born out of wedlock, undocumented immigrant kids' access to education) a. Substantially related to an important government purpose (must be substantially related to achieving the important government goal) b. Burden o the government 3. Rational basis (minimal) (everything else - undefined/non-suspect classes) a. Rationally related to a legit government purpose (the goal need not even ben the actual purpose, but a conceivable one) b. Burden is on the challenger

A. Type of Limitations on state power:

1. Supremacy Clause (Article VI) a. Congress has legislated. Has it pre-empted states from legislating? i. Express ii. Implied § Conflict § Field 2. Dormant Commerce Clause a. Congress has not legislated or pre-emption is not at issue. Is there a reason the states should be prohibited from legislating? i. Need for a Uniform National Standard ii. Discrimination Against Interstate Commerce iii. Excessive Burden on Interstate Commerce

A. Williamson v. Lee Optical 1. Definitions: a. Optometrist - examines diagnoses, and treats your eyes b. Ophthalmologist - medical doctor who performs medical and surgical interventions for eye conditions c. Optician - fits eyeglasses, contact lenses, other vision correcting devises 2. Oklahoma statute prohibited anyone not licensed as an optometrist or ophthalmologist from duplicating or replacing lenses without a written prescription. Optician challenged the law.

1. The District court held that the ban on fitting without a prescription was not "reasonably and rationally related to the health and welfare of the people." a. Why did the supreme court disagree with this? i. SC: talked about how specific lenses could be for specific problems, someone who didn't understand that oculnd't put in frames correctly. List a lot of reasons why ct felt this law was rationally related. Gives reasons why legislature might have done this. b. What Separation of Powers argument do you see? i. What separation of powers argument do you see: not worried about how wise the statute was. Ct basically says we're going to be super deferential to legislature here. Raises question on if ct is derelict in its duties for not tying its review to the exact reasons legislature had instead of just finding reasons for the legislature (that they might not have actually used) c. Will the Court be more or less deferential to legislation moving forward? i. Will ct be more deferential: yes.

substantive due process ex - West Coast Hotel Co. v. Parrish Chemerinsky notes:

1. The Great Depression started a shift, a move from the Lochner principles, as people started to think we needed more gov interference. 2. In West Coast Hotel, SC upheld a state law that required a minimum wage for female employees. 3. Ct said that the gov wasn't limited to regulating only to advance the public safety, public health, or public morals: "There is an additional and compelling consideration which recent eco experience has brought into a strong light: the exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenseless against the denial of a living wage isn't only detrimental to their health and wel being but casts a direct burden for their support upon the community." For forty years, ct had refused to allow the gove to regulate to equalize bargaining power; now it was permitted.

Famous Footnote 4 - Carolene Products (p609)

1. The court upheld a federal statute that prohibited the shipment in interstate commerce of skim milk mixed with some fat/oil other than milk fat. In doing so, it rejected the defendant's argument that the statute violated their 5th Amendment due process rights. While explaining that the court would use "rational basis review" and would be extremely deferential, the Court dropped a footnote stating when heightened judicial scrutiny might be warranted (this footnote was incredibly influential for due process and equal protection cases moving forward) a. A violation of a specific constitutional provision (ex: Bill of rights) b. When the regulation is the product of a defect in the political process (restricting the ability to repeal undesirable legislation) c. When the regulation unduly disadvantages discrete and insular minorities 2. All of these situations foresee a potential reason to distrust the product of the political process.

I. Substantive Due Process ex: Lochner v. New York Chemerinsky notes:

1. There have been two major uses of substantive due process. Early in the twentieth c, before 1937, SC used it to safeguard economic liberties and to protect freedom of k as a fundamental right. The paradigm case of this era was Lochner, where the SC declared unconstitutional a law that imposed a limit on the number of hours bakers could work. In the more contemporary era, substantive durprocess ahs been sued to protect the rights of privacy and personal autonomy. Roe is the most famous ex of this modern substantive dur process. 2. In Lochner, SC declared unconstitutional a NY law that set the max hours that bakers could work. SC declared law unconstitutional as violating the dur process clause of the 14th amendment bc it interfered with freedom of k and bc it didn't serve a valid polic purpose. The ct articulated three maj principles that were followed until 1937. This period is called the Lochner era: 1) First the ct, throughout this era, stated that freedom of k is a basic right protected as liberty and property rights under the due process caluse. 2) Ct said that the gov could interfere with freedom of k only to serve a valid police purpose: to protect the public safety, public health, or public morals. 3) Ct said that it was the judicial role to carefully scrutinize legislation interfering with freedom of k to make sure that it serve a police purpose. Ct applied the three principles to declare NY law unconstitutional - saw the max hours as interfering with freedom of k bc it prevented bakery owners and bakers from contracting for as many hours of work as they wished.

General notes on EPC matters:

1. There's still an open legal question as to what level of scrutiny sexual orientation and gender identity receives. For our purposes, they receive intermediate scrutiny, bc that seems the direction the law is going. 2. Aside from Korematsu, there's been no other case that has survived strict scrutiny when they were facially discriminatory. 3. For the future: the same problem can have a SDP and a EPC issue in it. Ex is loving: SDP of marriage, EPC issue of the way the case considered race. 4. 5th amendment doesn't have an EP clause in it. Bolling tells us we just sort of readin in EP to the 5th amendment, which means fed gov is held to same standards as the states when discriminating against people using classes we should be suspicious of. That concept = reverse incorporation. 5. Beginning EPC analysis: is the law facially discriminatory. If so, then EP applies, apply the relevant level of scrutiny. 6. The more challenging questions arise when the law ISN'T facially discriminatory

A. Jones v. Alfred H. Mayer Co. (310-1, 554) 1. Issues a. Whether purely private discrimination violates Section 1982 b. Whether congress has the power under the constitution to prohibit all racial discrimination, private and public, in the sale/rental of property 2. What was the court's decision on the issues? The rationale? 3. Jones went to buy a house, was denied based on his race. He tried to file in ct about the discrimination, but cts said they couldn't regulate private discrimination, can only discriminate state action. So the case went up to the SC. Basically, ever since 1883, when SC was like 14th amend you can't prohibit discrimination by private parties, cts had been following the precedent that the const only protects against state action. This case is the ct coming back to say no, there are some ways that cong can prohibit private conduct that discriminates.

1. They ask if section 1982 prohibits against private discrimination: well, what would the use of the 13th amend be if they couldn't actually enforce it. 2. Cong has a clear directive that they have the power to enforce the 13th amendment. The article says that neither slavery nor involuntary servitutde can exist in the US. When cong has a directive, the N and P clause comes in to give them the implied power to do whatever intermediate steps need to be done to meet that directive. 3. So ct here says that cong has the power to enforce 13th amend, turn that into effective legislation. 4. Section 1982 prohibits all discrimination - if cong didn't want it to prohibit both public and private discrimination, they would've specified. 5. Cong has section 2 of the 13th amend saying they can pass legislation they need to to enforce it. Have also N and P clause to carry out that express power, so they passed section 1982. 6. In short: cong is able to prohibit private discrimination in the sale of housing here. Says it's a "relic of slavery," cong needs the power via the 13th amend to prohibit the various relics of slavery from reappearing. 7. What was the dissent saying: should only be applied to public, not private, action. Also said that the civil rights act of 1968 was going to have a housing provision, need to just wait for that to come in - will clearly relate to private discrimination, so why not just let that happen. Ct's response: cong said what it said the first time around, might as well go ahead and enforce what they've said. 8. There ARE diffs tween section 1982 and the Fair Housing Act of 1968. Housing act doesn't just apply to race. The whole point of section 1982 was meant to enforce 13th amendment, which is why it's tailored to race. 9. Section 1982 came into being bc cong had power under section 2 of the 13th amendment, and N and P clause, to ensure that the 13th amendment is actually enforced. The reasoning for this: 13th amendment can't be enforced if any random individual says that 'hey I'm going to discriminate against you" - it's not just a gov that plays a part in slavery and everything that went into it. 10. Main takeaway here: in certain situations, cong can regulate private activity (usually we can only evaluate gov/state activity). Pre-jones, the rule was just that Cong can't prohibit private discrimination. Now, here, there are some situations where they can. For any exam questions: will need to recognize this is a private actor, evaluate whether, based on the case we read, it's close enough to Jones that the act can be regulated.

SO: how do we think about affirmative action problems?

1. Think about this as an analysis: a. Look at what the compelling interest is: is it necessary, and is it narrowly tailored. Note that remedying discrimination is a compelling interest. i. Whether something is necessary = does this even go to the goal that the school/gov/etc has stated. What are they doing to achieve that goal. ii. Narrowly tailored: if you want to achieve your interest in this way, is the strategy narrowly tailored. Do no more than is necessary. Ex: can't use quotas. That's super tailored, but it's too rigid.

Concurrences in Whitman:

1. Thomas concurrence - always talking about straying too far from Framers intent and should overrule precedent 2. Stevens Concurrence a. It would be more intellectually honest to just say that Congress is delegating lawmaking power and that delegation needs a sufficiently intelligible principle. The constitution is silent on delegation.

What is the background/setup for the Youngstown case:

1. To avert a nationwide strike of steel workers that he believed would jeopardize the national defense, President Truman, on April 8, 1952, issued an executive order directing the Secretary of Commerce to seize and operate most of the steel industry of the country. a. Why did Truman do this: in the middle of the Korean war, really need steel. You need to keep producing steel. Truman did compensate the steel mills, though - didn't just takek property without compensation. EO didn't cite to any specific statutory authorization, just the general powers given to Exec by the const. b. Issue: if pres was acting in his const power. 2. The order cited no specific statutory authorization but invoked generally the powers vested in the President by the Constitution and laws of the United States.

A. Voting rights 1. In-class notes a. 15th amendment is about the right to vote not being denied on the basis of race, color, or previous servitude. b. Why did we need a voting rights act if the 15th amend said that you can't abridge right to vote: bc you could still place barriers to them exercising that right. 2. 15th amendment a. Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. b. Section 2: The Congress shall have the power to enforce this article by appropriate legislation. Granted black men the right to vote. Women couldn't vote until 19th Amendment (1920)

1. Voting rights act of 1965 a. All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding. b. (Sometimes called "Second Reconstruction" c. Major sections of the VRA: i. Section 2: prohibits states and political subdivisions from imposing discriminatory election practices and procedures (discriminatory intent or effect). Attorney general or private citizens can sue. ii. 1975 Amendment also added: "Whenever any State or political subdivision [covered by the section] provides registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, it shall provide them in the language of the applicable minority group as well as in the English language." iii. Covered jurisdiction = where there are more than 10,000 or over 5 percent of the total voting age citizens in a single political subdivision (usually a county, but a township or municipality in some states) who are members of a single language minority group, have depressed literacy rates, and do not speak English very well iv. Section 3. The law authorizes a federal court to require the appointment of federal examiners to ensure voting rights in a jurisdiction whenever the Attorney General or an aggrieved person has brought suit to enforce the guarantees of the Fourteenth and Fifteenth Amendments. Applies nationwide. v. The federal court may retain jurisdiction if violations are found and no changes to voting pre-requisites may be made without a determination from the court that the qualification does not have the purpose or effect of abridging the right to vote on account of race or color.

A. Lochner v. New York (1905) 1. The state, through its police powers (to protect safety, health, morals, and general welfare of the public) passed a labor law limiting the number of hours bakers could work. Lochner faced penalties for permitting an employee to work more than 60 hours per week. 2. Justice Harlan's Dissent tells us more about why the law may have been enacted. What were those reasons? a. In Lochner: what were some of the reasons the og labor law limiting no of hours bakers could work was passed: the inhalation of flower over time wasn't healthy. Shorter life expectancies. A variety of work-safety related reasons why legislature might've passed the law. Also, this general era was around the time the legislature was beinga ware that employers, employees have unequal bargaining power - what if employees don't wanna work that much, but employers said that if they didn't tthey'd get fired. Legislature concerned for people's wellbeing and bargaining power. 3. What is the liberty interest at stake here? a. Right to enter into a k, economic interest (in general). That's some of the liberty at stake. 4. Did the majority decide the law was related to the state's police powers? a. Did the maj decide the law was related to the state's police powers: No, and if they didn't limit this power, legislature would just say that everything was for the public good. Even if this was related to police powers, other things might not be. b. Lochner majority says this is unrelated to police power, it's just concern about labor law, which is infringing upon people's right of labor, free contract. 5. What does Justice Holmes say about economic theories and constitutional interpretation? a. What did Holes say about rel tween eco theory and const interpretation: const isn't supposed to rep a particular eco theory. No eco theory is contained in the const, should be separate. In short, the const isn't supposed to be using a specific eco theory, that shouldn't govern the ct's decision 6. What does Justice Harlan say about the relationship between the state's police powers and fundamental liberty interests? a. Says maybe there's a liberty interest here, but ct should give some deference to the legislature, give deference to whatever the legislature has decided to do.

1. We see the tensions from Pt 1 of class still because many of the questions center on the proper role of the court in stepping in to stop tyranny from the majority (rights protection) or maintaining separation of powers (deference to the legislative process). 2. No case specifically overruled Lochner, but West Coast Hotel effectively overruled it 3. Why is the law constitutional: they're not forcing anyone to pay anyone anything. Just don't hire women, kids if you don't wanna pay them that amount. The ct, in tying the legislation to the police powers of the state, talks about exploiting workers at wages so low can't meet bare cost of living, talk about how women and kids get the least power, have little bargaining powers, are ready victims. Aka, what could be closer to the public interest than the protection of women and kids from unscrupulous employers. Tying rationale of legislation to statute itself. 4. How much deference should a ct be giving to the legislature? Some people think that the ct should be really willing to strike down legislation if it affects rights and liberties, others think that judges shouldn't get in the way of the majority: well, the ct is meant to stop 'tyranny of the majority,' like when states pass laws crimanlizing homosexuality.

what about minimum standards + preemption:

1. What about minimum standards + preemption: a. One thing that's important to note is that "minimum standards" are often something that the federal government legislates but does not result in field pre-emption. b. Silkwood: the congressional intent was to set the standard for nuclear safety period. It felt that states weren't equipped to do so. c. Avocado hypo: you could argue that the federal government set up "minimum" standards and as long as state government didn't conflict (i.e. make it impossible) to comply with both fed and state legislation, then the state law could survive (ex: forbidding overripe or diseased avocados) d. Maine Economic DV Law

ex of EPC - Korematsu v. US (754-6) Facts: a. That Court ruled in a 6 to 3 vote that the federal government had the power to arrest and intern Fred Korematsu under Presidential Executive Order 9066. President Franklin D. Roosevelt issued the order after fears generated by the Japanese Pearl Harbor attack made the safety of America's West Coast a priority. Roosevelt directed the military to isolate any citizen, if needed, from a 60-mile-wide coastal area from Washington state to California and extending inland into southern Arizona. b. The executive order didn't specify Japanese-Americans as a group, but the U.S. military detained about 120,000 people during the war. About two-thirds of them were Japanese-Americans who were born in the United States. People of Italian and German heritage were also detained.

1. What amendment was he seeking protection under? a. What amendment was K seeking protection under: 5th. Since this was the US gov, and this is an EP issue, it's the 5th amend. 2. "All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny." a. If we're concerned about the treatment of a single racial group, that's immediately suspect, ct has to apply the most rigid scrutiny. 3. Why wasn't the order discrimination based on race? a. Why wasn't the order discriminatory based on race? Mention 5k US citizens refused to swear unqualified allegiance to US. That, combined with them being concerned with no of Japanese Americans they were suspicious of, combined with their loyalty. Felt like had to be Japanese americans bc of who we were at war with, NOT because they were just Japanese. Dissent takes issue with that - we're also at war with Germans and Italians, didn't intern thousands of them. Dissent says this is clearly based on race, need to separate good military procedure from what is constitutional. 4. Justice Murphy Dissent a. How did he find racial purpose of the law? Racial discrimination in its enforcement? 5. Justice Jackson a. How did he find racial purpose/effect? b. What did he say about permissible vs constitutional military procedures? c. What is the future danger he was pointing out? 6. Lasting effect of Korematsu - Trump v. Hawaii (2018) a. Executive Order No. 13,780 (EO-2) also referred to as the "Muslim Travel Ban". Section 2(c) of EO-2 directed that entry of nationals from six of the seven countries designated in EO-1 be suspended for 90 days from the effective date of the order. i. Held: The president has lawfully exercised the broad discretion granted to him under 8 U. S. C. §1182(f) to suspend the entry of aliens into the United States b. Sotomayor Dissent: i. the court "blindly accept[ed] the government's misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, [in the process] redeploying the same dangerous logic underlying Korematsu." ii. "Korematsu was gravely wrong the day it was decided, and has been overruled in the court of history, and -to be clear- has no place in law under the constitution." c. In short: Current day constititonality of things: just like Dred was overruled by 14th amendment itself, Koramatsu generally is now considered to be bad law, has been overruled 'in the ct of history.'

review/consolidation: Questions that concern both EPC and DPC:

1. What if there is a fundamental right at stake and the government draws a distinction between classes of people: a. Fundamental right + equal protection claim (even if non-suspect class)= strict scrutiny ("classifications which might invade or restrain fundamental rights must be closely scrutinized and carefully confined." Harper) i. Example: if you're convicted 3+ times of a crime involving moral turpitude, then you're sterilized. Skinner v. Oklahoma. Impacts right to procreate which is fundamental. Strict scrutiny is applied. ii. Harper v. Virginia State Bd. Of Elections (1966): a poll tax violates the equal protection clause. Voting is a fundamental right and wealth has no rational connection to the wealth of an individual. b. No fundamental right + equal protection claim (suspect class) = EPC tiers of scrutiny i. Example: the government realizes there is a dearth of women owned businesses and creates a grant that only women may apply for. No fundamental right implicated, but it's only for women and not men. Apply intermediate scrutiny. c. No fundamental right + equal protection claim (non-suspect class) = rational basis i. The government passes a law stating that all businesses must close at 9pm. This is facially neutral because it doesn't draw any distinctions based on characteristics. It is also likely an economic issue, so it would receive rational basis review anyway.

Washington v. Davis (1976) (EPC)

1. What is the jurisdiction? State or federal? It was in D.C., so it's federal 2. What part of the constitution did the rejected applicants claim was violated? If the court didn't say with specificity, how could you tell? a. What part of the const did the rejected applicants claim was violated: 5th amendment. How could we tell: just remembering that if j is fed, it's fifth; if it's state, it's the 14th. 3. Was the law facially discriminatory or facially neutral? Was there a discriminatory purpose? Discriminatory effect? a. What happened in this case: to become a DC cop, had to take a test that measured different benchmarks, like you vocab, how well you could speak, write, etc. the test in and of itself wasn't discriminatory, but even so a disproportionate amount of black candidates failed it. Ct said the discriminatory effect without the discriminatory purpose wasn't enough. It's not that the policy, this test was discriminatory on its face, didn't discriminate as to who had to take it. But there was a discriminatory effect. It's not like the policy of the DC force was that if you were black you couldn't become a police. Ct said that for purposes of EP, discriminatory effect doesn't violate EP; there has to be a discriminatory purpose. 4. What is the result of saying that the test doesn't discriminate on its face or its purpose? What level of scrutiny was applied? a. The reason we care about this distinction: if it were facially discriminatory, we can ask what is it discriminating against, recognize it's race, then go look at our chart, see that we need to apply strict scrutiny. But bc there's no proof of a discriminatory purpose, we just fall to rational basis review - there's nothing happening for the ct to be extremely suspicious of 5. The court in Washington v. Davis hesitated to embrace the disparate impact standard in part because it was too sweeping. It would "conceptualize a whole range of tax, welfare, public service, regulatory, and licensing" regimes as racially discriminatory. Is that a problem? a. Ct in Washington hesitated to embrace the disparate impact standard...is that a problem? I LIKED THIS CONVERSATION ...hesitated to embrace the diparate impact standard in part bc it was too sweeping. It would "conceptualize a ahole range of tax, welfare, public service, regulatory, and licensing" regimes as racially discriminatory." Is that a problem? (Washington v. Davis) 6. Does the identification of something (or most things) as racially discriminatory lose its moral punch? Does that/should that matter? a. Racially discriminatory administration of facially neutral law can almost certainly be used to show that the law is purposefully discriminatory. Just bc there is a discriminatory enforcement, you have to lean on your stats a little bit. 7. This case also has a Title VII component. Title VII was written by Congress to allow plaintiffs to bring successful lawsuits against statutorily authorized employers for discriminatory impact claims. 8. A lot of people argue this case was done wrong bc it ignores generations of inferior education. 9. This case tells us that a law or policy that is facially neutral needs to have both a discriminatory effect AND a discriminatory purpose.

EPC ex - Dred Scott v. Sandford 1. Decision gave momentum to the civil war - the court's decision was seen as an attempt to stop debate about slavery in the territories 2. Issue: a. Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States...become entitled to all rights, and privileges, and immunities...of citizenship?"

1. What was the Framers intent? a. Framers intent: black people never intended to be citizens. 2. Remember: people were considered state citizens and federal (US Citizens). a. Can a state make someone a US Citizen? Blacks were intended to be property. a state cannot make someone a US citizen. States that abolished slavery couldn't make those people US citizens. 3. 5th Amendment Due Process Clause - no one may be deprived of live liberty or property a. Congress could not act to deprive citizens of their property (slaves) just because they travelled to a particular territory of the US b. The right of slave ownership is constitutionally protected in Article I, Section 9, Cl. 1 and Article IV, Section 2, cl. 3. c. Bring up 5th amend DP clause - nobody can be deprived of live liberty or property. Black people, at the time, are property. 4. The laws of the state of MO applied. Why? 5. The result of this decision was overturned. How? 6. Why do we still read this case if black people with slave ancestors are citizens? 7. What does this case tell us about interpreting history and tradition? 8. Should we be concerned about the origins of substantive due process because of this decision? a. No, because we would never get an opinion like this modern-day

A. Legislative process: how legis intersects with exec. How can delegate, control after it delegates, limits on pres's power to remove. Branches: J tells us what law is, L makes laws, exec enforces laws (Legislature has power of purse, can withhold money to hold other branches accountable) B. Main questions:

1. When can the legislature delegate 2. How will the legislature control the delegation 3. What role does cong have in limiting the presidential power to remove

Info on McDonald v. City of Chicago

1. Whether the right to keep and bear arms is protected under the Due Process Clause a. Whether the right is fundamental to our scheme of ordered liberty i. Self-defense is a basic right ii. Heller explored the origins of the right, was one of the fundamental rights of the English, was considered fundamental by colonists, so fundamental that it ended up in the Constitution iii. Later Congressional legislation that worked to equalize the right to guns for blacks iv. Despite controversial safety implications - is fundamental 2. Selective incorporation asks whether a particular right listed is "fundamental to our scheme of ordered liberty and system of justice." 3. The rights that are incorporated are "enforced against the States under the 14th Amendment according to the same standards that protect those personal rights against federal encroachment 4. Thomas Concurrence - thinks the rights should be protected by P/I clause not due process. Details history of needing federal protection to protect the right from state violations 5. Stevens Dissent: be informed by other jurisdictions, leave it up to the states 6. Breyer Dissent: history is mixed on self defense and what the 2nd amendment means

constitutional interpretation

1. Why do we need to study how to interpret the const? a. Sometimes it doesn't address anything specifically. It also is written in v general, vague provisions. Not obvious what answers always are. b. The const is a diff sort of document: Is 'higher' law - Supremacy Clause trumps state law that's inconsistent with fed law i. Also: it's difficult to amend - purposefully anti-democratic/anti-majoritarian

why is Marbury important/why do we talk about it:

1. Why is Marbury Important? a. Role of the federal judiciary i. "We are not final because we are infallible, but we are infallible only bc we're final." ii. "We are under a Constitution, but the Constitution is what judges say it is..." iii. "It's emphatically the province and duty of the judicial department to say what the law is." b. Jurisdiction i. Court's first question nowadays is j. No j = no authority to consider the issue ii. Political question doctrine: Some issues are political and not legal - the court has no j § The court would have no power to force Jefferson to obey its command and they had good reason to believe he wouldn't. v That would have undermined SCOTUS early on. Lost the battle but won the war - we take judicial review for granted. 2. The reason why we talk about Marbury: role of judiciary - const says what judges say it says. i. Duty of judicial dept to say what the law is. ii. Case also shows that Marshall solved the case backwards. Typically, courts start with j question, ask should we even be hearing this case. § Why Marshall wrote the decision this way, worked backwards: he was worried about making a decision that would undermine the court early only, bc he knew Jefferson would undermine the court if it undermined Jefferson. iii. Short version of this case: § Ct est judicial review § SCOTS has the power to interpret the const and tell us exactly what it says § SCOTUS's rulings on what const says are basically final. iv. Who won this case? Jefferson essentially gave away a lot of power to the SC. He won the battle but lost the war.

A. Plessy v. Fergusson 1. What is the jurisdiction? State or federal? a. State, in LA 2. What part of the constitution did Plessy claim was violated? 14th amendment.

1. Why was facially racial specific law not unconstitutional? a. This law specifically talked about race. Why can't we just say this law is facially discriminatory: ct says there's a symmetrical burden - both whites and blacks are burdened, both have to stay in separate cars. Separate but equal. 2. What did the majority say about whether social inferiority is facilitated or curbed by legislation? a. What did the maj say about social inferiority...: talk about the fact that people of color choose to put a negative construction on laws like this. Legislation can't control social biases. Social prejudices can't be fixed by legislation. Ct argues there are equal rights here, you're just separate, that separation isn't problematic, and the law can't fix society. 3. Harlan Dissent: The constitution is colorblind. a. What are the consequences (positive or negative) of a colorblind constitution? a. Harlan's dissent: const is colorblind, we don't have a caste system, we don't crete first and second class citizenship. Lotta people have used this to talk about pros and cons of a colorblind const. 4. Is there another way to argue that the statute should have been unconstitutional? 5. Chemerinsky notes a. Upheld "separate but equal." b. Overturned by Brown

Federal Executive Power ex: Youngstown Sheet & Tube Co. v. Sawyer

1. Youngstown: the leading case addressing the scope of inherent pres power (the ability of the pres to act without express const or statutory authority). In 1952, United Steelworkers Union announced a planned nationwide strike as a result of alabor-management dispute a few hours before the strike was to begin, Pres Truman issued executive order 10340, which directed the secretary of commerce to take possession of the steel mills and to keep them running. Truman believed that the steel strike could endanger the nat defense and the war effort in Korea bc steel was indispensable for all weapons. Secretary of commerce, Sawyer, issued the order. Cong took no action in response to the seizure. SC declared the seizure of the steel mills unconstitutional. Seven diff opinions were written. 2. Justices gave sev diff answers to the question of when the pres may act without express const or statutory authority. In fact, four diff approaches can be identified in the opinions in Youngstown; these varying approaches also are reflected in numerous other cases: a. There is no inherent pres power; the pres may act only if there is express const or statutory authority - in Black's maj opinion. (Pres power to issue an order must stem either from an acto f cong or form the const itself). b. The pres has inherent authority unless the pres intereferes wit the functioning of another branch of gov or usurps the powers of another branch - J. Douglas argued seizure was unconstitutional bc pres was forcing the expenditure of fed funds to compensate the steel mill owners for the taking of their property. Douglas then contended that hteh president was impermissibly usurping cong's spending power c. Pres may exercise powers not mentioned in the const so long as the pres doesn't violate a statute or the cosnt - J. Frankfurter, Jackson. Jackson gave a three-part test for pres power. 1) when pres acts pursuant to an express or implied authorization of cong, his authority is at its maximum. 2) when the pres acts in absence of either a cong grant or denial of authority, he can only rely on his own indep powers, but there is a zone of twilight in which he and cong may have concurrent authority or in which its distribution is uncertain. 3) when the pres takes measures incompatible with the expressed or implied will of cong, his power is at its lower ebb. d. Pres has inherent powers that may not be restricted by cong and may act unless const is violated - aka, fed laws restricting the pres's power are unconstitutional.

Regarding Casey: a. Is the burden undue on any of the following? i. Section VB - 24 Hour Waiting Period ii. Section VC - Spousal Notification iii. Section VD - Parental Consent iv. Section VE - Reporting

1. waiting period: § What is the alleged burden: if you're of a poor class, you have to travel far away, get a hotel, make doc appointments, plus not all docs are available in a 24 hour period. If somebody were to travel to a doc, get there, have to wait 24 hours, means they probably either have to leave and drive back or have to get hotel, have to miss work. v All sort of logical ripple effects from this waiting period. v Concern is especially for people who are lower income. Going to the doc is one thing, but having to go and come back is much harder to explain to spouses, employers. § Does the regulation have the effect of placing a substantial obstacle in the way of a woman's right to an abortion: The court says no. v Why did they say no: the state is permitted to enact methods that favor pregnancy over abortion, even if there is no health interest - v That is: the waiting period is a burden, but not necessarily a substantial obstacle (burden, but not an undue burden). 2. Spousal notification: § What is the alleged burden: Fear of spousal abuse; plus, the court would essentially be giving the husband a veto of his wife's decision. v Women don't lose constitutional liberties when they get married. Though husband has an interest, state doesn't get to give the husband a 'troubling degree of authority' over the wife. v restated: the court reasoned that given issues of abuse, "dominion," this provision is repugnant to our present understanding of marriage, § Is it a substantial obstacle? Court said yes. 3. Parental consent: This is permissible as long as there is a judicial bypass procedure. 4. Reporting: § What is the alleged burden: potential increased cost in the procedure from having to go through the reporting process; also, infringement of woman's privacy. § Is it a substantial obstacle: Court says no - it would benefit medical research. v We just need to know woman's age, the procedure that was used, her physician v Collecting this information is a viable function of medical research. v At most, the reporting requirements might increase the cost by a slight amount. At some point costs could be an obstacle, but court basically says "we're not going to define that."

Hypo on p290:

1. why did you say preemption instead of another issue: to be a dormant commerce clause, there has to be an absence of fed regulation; plus the challenged law is state law, not fed - NOT asking if cong had the power to do what they did, which would make this a commerce clause question. There is already a fed law, and there is a CA law that we're wondering about the constitutionality of. Is this an express or implied preemption issue: implied bc it doesn't expressly state that fed law is preeempted. Is this conflict or field preemption: conflict preemption (though there could be NO preemption bc both laws could exist at same time. NO field preemption bc we're just mandating minimum standards of quality. To be field preemption, and state law dealing with how we define maturity and packing and shipping of avocados before a certain date would conflict, but this law doesn't deal with that, so it's no in the same field that cong was regulating. If you wanted to argue that it WAS field preemption, what would you say: that cong has set out this regulation to set out these minimum standards they want the states to comply with, this is how we want the sale of avocados to go. Here, there would probably be no preemption - hard to argue that cong is trying to ontrol the entire avocado economy. Regarding conflict preemption: it is possible that the date you pick it has nothing to do with its oil content - so an avocado can both contain 8% and be picked at a date in accordance with fed law. a. You could argue against field presumption if you had enough facts to know that oil percentage has nothing to do with quality or picking date !!!!!!!!!!!! Something is a preemption issue when there's already a fed law, trying to decide if a state can also pass a law, if that state law is in conflict with the fed law, if it's impossible for them to exist at same time (conflict) or goes into a field that the fed gov is occupying (field).

important articles of const concerning judicial review:

A. 1. Art 3, S. 1 a. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office 2. Art 3, S. 2 a. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. b. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Background to the constitution

A. Articles of confederation: ineffective bc required unanimous assent of the states. Congress had no way to enforce laws or collect taxes, no nat courts B. Federalists: supported the const 1. Hamilton, Madison, Jay - Federalist papers C. Anti-feds were opposed to the constitution: 1. were skeptical of gov authority bc of leadup to revolution. Also, they wanted a bill of rights. 2. Tension on whether rights should be enumerated. a. If const is silent, do we go with nat rights principle? Just bc no rights are specifically mentioned, doesn't mean they don't exist. b. But anti-feds were afraid if weren't written down, those rights would be infringed upon; thought bill of rts would help limit gov, protect individual liberties.

Cooper v. Aaron (another judicial review case)

A. Cooper v. Aaron 1. Relies on judicial Supremacy (Cooper v. Aaron) - SCOTUS' rulings interpreting the const are "supreme law of the land" for the purposes of Art VI of the const and are binding on all state officers a. In Cooper, ct rejected the view that gov officials may ignore SCOTUS's interpretation of the const if they weren't parties to the litigation that produced the interpretation. i. Aka, it's not simply the const that's the supreme law of the land, but rather the SC's interpretation of the cost. 2. What happened in Cooper a. AR had resisted following SC's order, the school board was asking for postponement of integration because they were having issues with people resisting and protesting. i. Why is it that the SC was only kinda sympathetic to AR's plight: they felt like they were trying to intentionally undermine the decision they had already made. b. What was the ultimate issue that the ct was deciding: if gov officials were bound by SC, if in their capacity they were to adhere to what SC had previously said. i. Another issue: whether the SC's decisions only applied to the parties in litigation or to everyone in the country (!!!) ii. Aka, they were deciding who exactly the SC's decision applies to. iii. Also, is the ct's interp of the const "law." Does interp apply to state actors: yes. § Why? No state legislature, officer can violate const without also violating their oath to protect it.

A. Enforcing civil rights 1. Employment a. 13th Amendment i. Section 1981 a. Title VII 2. Housing a. 13th Amendment i. Section 1982 b. Fair Housing Act 3. State Action that violates Constitutional Rights (and several statutory rights; EPC, SDP, enumerated rights (4th + police misconduct; 8th and prisons; etc)) a. 14th Amendment and Section 1983

A. Housing discrimination 1. Section 1982 a. Applies to race b. Forbids private discrimination c. Rental and sale arrangements d. Private right of action 2. Fair housing act of 1968 a. Applies to race, color religion, sex, familial status, national origin b. Rental and sale arrangements and housing advertisements c. Exempts religious organizations and private clubs d. remedies: administrative complaint procedure with HUD and private right of action Prohibits disparate impact and intentional discrimination

justification for limitations on states' power:

A. Justification for the limitations: 1. Justification: The Supremacy Clause dictates that federal law controls. If it didn't, the US Constitution would be as ineffective and have the same defects as the Articles of Confederation. Also, we are a United States. So even if Congress doesn't act, we can't let individual states disrupt interstate commerce.

first, and most important, case concerning judicial review: Marbury v. Madison Background:

A. Marbury v. Madison - establishes judicial review; SCOTUS has power to declare a law unconstitutional 1. Background Thomas Jefferson defeated John Adams in the 1800 presidential election. a. Before Jefferson took office on March 4, 1801, Adams and Congress passed an Act creating new courts and judgeships, among other things. b. On March 2, 1801, Adams named Marbury as one of 42 justices of the peace. c. March 3, 1801, Adams' last day in office, the senate confirmed the nominations. d. March 3, 1801, Secretary of State John Marshall (the justice presiding over tis case) signed the commissions and sent his brother James to deliver them. James failed to deliver 4 of the commissions, including Marbury's. e. March 4, 1801 Jefferson took office and withheld delivery of those 4 commissions. f. Marbury, joined by 3 other similarly situated appointees, petitioned for a writ of mandamus compelling the delivery of the commissions. He claimed the Judiciary Act of 1789 authorized SCOTUS to grant mandamus in a proceeding initiated in SCOTUS

another judicial review case: Martin v. Hunter's Lesee

A. Martin v. Hunter's Lessee 1. Holdings/effects a. Says that judicial review includes the power to review and invalidate state laws that are inconsistent with US Const b. Congress must have unquestionable right to remove all cases in the scope of the judicial power from tate courts to the US courts. c. Conclusion: the appellate power of the US does extend to cases pending in the state courts. 2. Main question: a. Whether the court has the authority to review state court judgements. 3. Answer to main question: a. The constitution presumes that SCOTUS can review state court decisions. b. Constitution creates SCOTUS and gives Congress discretion whether to create lower courts. i. If congress does not create lower courts, then SCOTUS would be powerless to hear any cases on appeal. § Thus, must be able to hear appeals from state court. 4. Reason for that answer: a. Judges in state court may have prejudices against federal issues i. What happens if states do have a split in interp: SC will usually take cases that determine that split b. Essential for uniformity i. It'd not make sense if half the cts weren't following const. Can't have 35 states interpreting const one way, the others doing it another way. 5. Details: a. Dispute over land - VA ct of Appeals claimed that SCOTUS had no authority to review its decision over state law. b. Court is deciding if SCOTUS has appellate j over state ct of appeals. i. Answer: Art 3 didn't limit SC's j, esp in lower courts. Yes. § How did court get here: all courts, including state cts, must follow const. v Art 3 gives SC power over all cases arising under the const. v Art 3 Section 1 says that there shall be one SC that congress may est lower courts S2 that the judicial power extends to all cases and has...so if congress never made lower fed cts, what would be the point of saying that the SC has appellate power over all these other cases if only have power over lower federal courts. Ø Aka, gives too much detail to just be about fed courts.

mootness:

A. Mootness: refers to whether a controversy has already been resolved. If so, the ct doesn't need to do anything. 1. Ex if someone wants to be re-hired and get back pay. If get re-hired, but no back pay, there is still an open question. Mootness looks at what the person is asking for, have all the questions been resolved. 2. Mootness issue regarding abortion: if someone wanting an abortion gives birth while waiting for judgment, is their case moot? a. Yeah. Nothing to really do about it, now. But why would a court still hear such a case, even if they had already given birth: "capable of repetition yet evading review." You're never going to get a ruling bc takes so long to go through ct system that everybody with this type of case would have given birth in these types of cases. 3. Mootness: the issues being litigated is too short to ever make it to a final determination (pregnancy, short prison sentences, short-term fed gov ks)

intro to political question doctrine:

A. Political Question doctrine - rests on separation of powers 1. Judiciary doesn't play cop on executive branch - there has to be a reason for it to step in, a case. Just about separation of powers p89. 2. Turning back to Marbury: a. "Is the act of delivering or withholding a commission to be considered as a mere political act, belonging to the executive department alone, for the performance of which, entire confidence is placed by our constitution in the supreme executive; and for any misconduct respecting which, the injured individual has no remedy." i. Translation: the constitution places some acts in the hands of one branch of government (here, appointments + the executive branch). There is no remedy in the courts for any wrongdoing related to that decision.

ex of legislative process - Seila Law LLC v. Consumer Financial Protection Bureau:

A. RULE: Congress can create expert agencies led by a group of principal officers removable by the President only for good cause. And Congress can provide tenure protections to certain inferior officers with narrowly defined duties. 1. FACTS: In the wake of the 2008 financial crisis, Congress established the Consumer Financial Protection Bureau (CFPB), an independent regulatory agency tasked with ensuring that consumer debt products are safe and transparent. Congress transferred the administration of 18 existing federal statutes to the CFPB. In doing so, Congress gave the CFPB extensive rulemaking, enforcement, and adjudicatory powers. The CFPB may seek restitution, disgorgement, injunctive relief, and significant civil penalties for violations of the 19 federal statutes under its purview. Unlike traditional independent agencies headed by multimember boards or commissions, the CFPB is led by a single Director who is appointed by the President with the advice and consent of the Senate for a five-year term, during which the President may remove the Director only for "inefficiency, neglect of duty, or malfeasance in office." In 2017, the CFPB issued a civil investigative demand to Seila Law LLC, a California-based law firm that provides debt-related legal services to clients. The civil investigative demand sought information and documents related to the firm's business practices. Seila Law asked the CFPB to set aside the demand on the ground that the agency's leadership by a single Director removable only for cause violated the separation of powers. When the CFPB declined, Seila Law refused to comply with the demand, and the CFPB filed a petition to enforce the demand in District Court. Seila Law renewed its claim that the CFPB's structure violated the separation of powers, but the District Court disagreed and ordered Seila Law to comply with the demand. The Ninth Circuit affirmed, 2. ISSUE: Was the extension of an exception to the President's unrestricted removal power to an independent agency led by a single director and vested with significant executive power proper? No CONCLUSION: The CFPB's leadership by a Director removable only for inefficiency, neglect, or malfeasance violated separation of powers as neither exception to the President's unrestricted removal power applied. Extension of an exception to an independent agency led by a single director and vested with significant executive power was improper as the agency had no basis in history and no place in the federal constitutional structure.

cong's spending power:

A. Spending 1. Article 1, section 8 a. Cl. 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States 2. Spending power: ACA talked about SD v. Dole - used the highway funds to incentivize changing the drinking age to 21. But in ACA, were considering is taking away all of the state's Medicaid funding coercive. Cong can incentivize, but it cannot coerce. There's not a bright line on that. 3. States are sovereign - they can refuse funds if they want to and pay for programs themselves or not provide programs. 4. NFIB v. Sebelius - Spending a. ACA required states to expand coverage under state Medicaid programs or lose all Medicaid funding from the federal government. Is this an acceptable form of conditional spending? b. What was South Dakota v. Dole about? c. Coercive vs incentive? d. Where is the line between coercive and incentive? e. My notes i. Sebelius - spending. SD v. Dole: gave five reqs to exercising spending power. Also: what was fed law in this case trying to accomplish: drinking age. Fed law wanted each state to raise drinking age to 21. Threatened to withhold 5% of a state's fed highway funds if the states didn't do so. Basically cong can give financial inducements to the states to adopt certain laws. States can either make the change the gov wants, or can refuse the money and can continue to do whatever it is that they're doing. ii. Five factors given in SD v. Dole: cong has to act in pursuit of the gen welfare, and receipt of the state's reception of gov funds must be..., conditions imposed must be related for the purposes for which cong approves ..., ON PAGE 232 iii. Was the ACA considered to be incentive or coercive, and why: well, the states would have lost all of their Medicaid funding. Cong, having funded Medicaid program, should be allowed to do an overhaul of the program. The ACA is just trying to reach more people than Medicaid originally covered. If cong wanted to, could even repeal the current Medicaid program. So why make cong jump through this weird hoop of repealing current Medicaid, replacing it with the ACA to attach certain fed funds to the program. iv. Notes: Aca is an overhaul of the Medicaid program.

I. Anatomy of a Lawsuit - use this to locate where we are in proceedings, what type of question is being asked:

A. THRESHOLD QUESTIONS 1. Is the case justiciable? a. Is there an actual case or controversy? b. Does the Plaintiff have standing? c. Is the case ripe? Moot? d. Is there a political question? B. Who can you sue? C. For what? D. What defenses do they have? What limitations are there? E. What remedies are there? 1. Damages (compensatory, punitive, nominal, attorney's fees) 2. Injunctions (preliminary, temporary, perm) Declaratory Relief

Justification for fed executive power:

A. The supremacy clause dictates that fed law controls. If it didn't, the US Const would be as ineffective and have the same defects as the Articles of Confederation. Also, we are a United States. So even if cong doesn't act, we can't let individual states disrupt interstate commerce.

I. Course map/breakdown of topics in first half of course:

A. Threshold question: is the issue that P is suing about justiciable 1. Have to look at: i. Standing ii. Ripeness iii. Mootness iv. PQD 2. NOTE: judicial power is primarily concerned with Art III cases and controversies (the threshold questions). But keep in mind judicial supremacy (eg fed issues in state cts) and what the ct considers when it reaches a decision (history, text, legislative record, etc) B. The second threshold question: if it's justiciable, what kind of constitutional issue has arisen? 1. Your options: legislative, executive, state limit a. If legislative: did Cong's actions come from a constitutional source of power? What is the source? Was it used appropriately? i. Your options for constitutional power: 1) Spending 2) Taxing 3) Commerce clause 4) (over all of the other three, the N and P clause is hovering around) ii. If cong has acted, just bc one of these avenues wouldn't have been constitutional, that doesn't mean that cong can't act. If any one of these works, then cong acted constitutionally. iii. Once you start analyzing cong's authority, then you need to consider the rules SCOTUS has developed for each power as appropriate (remember, again, that the n and p clause is always lurking around): § Spending: is cong spending funds for the general welfare? Has it imposed conditions on the receipt of fed funds by the states? Is the financial inducement coercive? § Taxing: is cong raising revenue? Is the supposed tax really just a hidden desire to regulate and punish (penalty)? § Commerce clause: has cong tried to regulate something? What do the cases we read tell you about how you're supposed to analyze this use of power? b. If a state limit issue: if state limits or interferences with fed powers is at issue, what's the problem: i. A conflict with a fed law (pre-emption) An unreasable burden on interstate commerce? A need for a uniform standard? Discrimiantion against other states? (DCC)

Thoughts that should come up when discussing an introduction to personal rights:

A. Was the bill of rights a good idea? 1. Why did the Federalists think it wasn't a good idea? 2. Why did the anti-federalists think it was a good idea? 3. What do you think in 2021 about whether the Bill of rights was a good idea? B. Natural law v. Positive law 1. Theories of natural law claim that there are morals that are universal and govern regardless of what our human constructed law (positive law) says. a. For example, some people will argue that abortion is morally wrong or morally acceptable, regardless of what our statutes do or do not criminalize b. Or perhaps we have rights that are innate to our existence as humans (right to travel free of borders; right to work; right to self defense), regardless of what our laws say. 2. Positive law: constitution, statutes, case law, etc. that has been enacted through a defined law making process C. Remember Context: 1. 1781 - the United States was governed by the "The Articles of Confederation and Perpetual Union." Colonists were most concerned with tyranny due to centralized government, so the central govt had little power. 2. 1788 - the US Constitution was ratified and became the new governing document with the powers we just discussed. The Framers were concerned with limiting tyranny, but also had learned experience from the Articles of Confederation that the central government needed more power. 3. 1789-1791 - ratification of Bill of Rights 4. 1865 - 13th Amendment Ratified (abolished slavery) 5. 1868 - 14th Amendment Ratified - began debates about what role the federal government (including the courts) have in protecting the civil rights of state citizens and what limits the Bill of Rights places on state conduct 6. 1870 - 15th Amendment Ratified

1. MS passes a criminal law saying that it it illegal for women to engage in prostitution because they need to be protected from harm. A woman is arrested under the law. She alleges that her participation in prostitution was consensual and her only clients were other consenting adults. She claims that the state law violates her equal protection rights. What is the likely outcome? a. What is the source of the claimed right? b. What case or cases would most help us figure out the answer to a question like this?

Answer: what case did we read that might be cited in talking about this: US v. VA. It's potentially paternalistic, makes a broad generalization about women as a class that needs to be protected, can't use blanket stereotypes as justification for discriminating on the basis of sex.

Barron v. Baltimore in-class notes:

Barron v. Baltimore: how was Barron's property impacted in this case: he owned a wharf, state redirected waterways, water level went down, ships couldn't safely be there. Barron said you ruined my ability to use this property. takeaway: the bill of rights only restrains the fed gov, not the states (not true anymore, just part of our hist journey). Why did ct come to this ruling: they said if the framers wanted the bill of rights to apply to the states, they'd have said so. They had a few reasons: there is express text in the const where the framers wanted to limit the states; if they were trying to limit the states with the bill of rights they would've said something. 5th amend doesn't say anything about the states, so we don't need to apply it to the states. Also: mention that the framers' focus - const drafted for the rel between the people and fed gov, not the gov of their individual states. That's what the state const is for. When looking to purpose: the framers' fear is of tyrannical gov, not local gov. said that Barron can't argue that the state broke const rights - have to hope that that is just a right protected at state level, sue them under state statute.

I. Reconstruction Amendments Jones v. Alfred H. Mayer Co. Chemerinsky notes

Congress has broad power under the 13th amendment to prohibit private racial discrimination. In Jones, ct held that CONgress could prohibit private discrimination in selling and leasing property. the case involved a private real estate developer who refused to sell housing or land to African americans. A couple sued under 42 USC 1982, which provides that all citizens have "the same right in every state and territory as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold and convey real and personal property." The ct held that section 1982 applies to prohibit private discrimination and that congress had the authority under the 13th amendment to adopt the law. Indeed, the ct said that congress has broad legislative power under the 13th amendment: "Congress has the power under the 13th amendment raitonaly to determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation."

Nixon v. Fitzgerald tells us that Pres is immune from civil ds based on official acts, but ct acknowledged that a pres wouldn't be immune from crim charges branching from official or unofficial acts.

Found that out in Trump. Consideration: if pres faced no liability, what would that do to protect individual rights.

Ct talks about how marriage has changed over time in Obergefell:

How has marriage changed over time: we've already said it doesn't matter what someone's race is - why should it matter what someone's sex is. Marriage is marriage, doesn't matter what it looks like. ALSO: marriage used to be an arranged situation, and role of women in marriage has progressed - no longer do males dominate the relationship.

hypo, guns being sold without serial numbers:

Hypo 2: we're in enumerated rights territory. When you're in enumerated rights territory: that's our whole thing about selective incorporation. That's our slaughterhouse conversation - we have selective incorporation doctrine; amends can be enforced against the states when they are incorporated/when the SC takes up an inssue, and they determine/let us all know what they think, we find out what amendments are incorporated. We read McDonald v Chicago, which told us that selective incorporation happened for the second amendment. (only amend we've read about for selective incorporation: 2nd amendment). There's a question whether 2nd amendment even applies here, bc this is not a blanket ban on handguns, like on McDonald and Heller. But if the 2nd amendment is implicated, then enumerated rights get strict scrutiny. Strict scrutiny: necessary - can't track them within the serials. The burden isn't greater than it needs to be.

•Tony, Gail, and Sharon are in a poly relationship. All are over 18 and all consented to the relationship. While they'd love to be considered an official thruple, Tony is only legally married to Gail. Mississippi has an ant-bigamy law that prohibits marriage to more than one person. This law is on the books because MS believes in traditional marriage. It is also concerned with protecting women and children from inherent dangers of poly relationships, especially the historical practice of men marrying young and vulnerable women and girls. • •Determine whether anti-bigamy statute violates the thruple's due process rights. •Does your answer change if Tony has children with both Gail and Sharon?

Hypo for marriage: think about Loving, Obergefell. If you can legalize gay marriage (says Kennedy), you can make an argument for poly - bc it's recognized in other cultures. Obergefell - fundamental right to marry; talks about poly a little bit, says that you are taking issue with the fact that we're definint the issue ina way, but you maj are also making an assumption that marriage is between two people and no more. If going to argue on behalf of the thruple, link to Loving and Obergefell, say marriage is central to human condition, personal choices central to personal dignity and autonomy. There are four supporting reasons why marriage is so fundamental: LIST. Also mention that a two-person union "is unlike any other." Also an issue of safeguarding children and families. Obergefell acknowledges that not everybody can have kids - the fundamentl idea of marriage isn't tied to the idea of procreation. You'd need to discuss all of those things. Start: does it violate their 14th DPC right to marriage. Note: are we framing this as a right to poly marriage, or, like in Obergefell, a right to marriage period. Doesn't seem like there's any reason why two people marragies should be standard, but then again, that's not really what OBergefll was talking about.

I. Review Questions A. In Martin v. Hunter's Lessee, the U.S. Supreme Court held that it had the power to overrule: B. The Supreme Court has unlimited power to review cases concerning federal law: C. Question: Q: In the Martin v. Hunter's Lessee case, could you put on a slide (or email me?) the point about Article III sec. I and II where you were saying if Congress never made lower federal courts what would the point be to....I tried to write it both times you explained, but I was too slow and too focused on remembering what you said to even processes the actual meaning. D. Plaintiff sues their workplace for wrongful termination. They seek back pay and reinstatement. While the case is pending, P is reinstated to the position they had before they were terminated. Is the case moot? E. A pregnant woman sues challenging the constitutionality of her state's abortion statute. By the time the case reached the supreme court, she was no longer pregnant. Is her case moot? F. The President is interested in entering into an unusual and unprecedented treaty with a foreign country. There is a great deal of concern over whether or not there will be adverse legal ramifications to the signing of this treaty agreement. President has conferred with the Senate but the Senate is unwilling to give its consent. The President has requested SCOTUS provide an advisory opinion on the legality of the treaty. Does the Court have jurisdiction over this matter?

I. Review Questions A. State ct decisions as they conflict with fed law and the US Const B. False - justiciability limits C. 1. Article III, Section 1: The judicial Power of the US, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. 2. Article III, Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States... 3. Martin v. Hunter's Lessee: "if a discretion be vested in congress to est, or not to est inferior courts at their own pleasure, and congress should not est such courts, the appellate j of the supreme court would have nothing to act upon, unless it could act upon cases pending in state courts" (what would be the point of appellate jurisdiction if congress made lower courts discretionary - what if lower courts were never created by congress? D. A case about wrongful termination is not moot even though the plaintiff had his employment restored if issues of back pay remain [Powell v. McCormick, 395 U.S. 486 (1969)]. E. Case won't be dismissed for mootness if the injury is "capable of repetition, yet evading review," meaning that it is a practical impossibility for there to be adjudication or appellate review before the claims of the P, or other individuals who are members of the class, become moot. F. No, because there is no case or controversy. Article III provides that the "judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish." The j of fed ct is limited to cases and controversies. A case or controversy is a real and substantial dispute that touches the legal relations of parties having adverse interests and that can be resolved by a conclusive judicial decree. SCOTUS will not give advisory opinions concerning the constitutionality of proposed action or legislation, as is requested here. Therefore, this answer is correct. a. In order to be a case or controversy, there must be a real and substantial dispute that touches the legal relations of parties who have adverse interests and where the dispute can be resolved by judicial decree. Federal courts may not render advisory opinions (i.e., opinions regarding the legality of a proposed legislation or action). The facts do not indicate that there is any dispute touching on the legal relations of parties here. G. Political question doctrine, case and controversy req, and standing: all are judicially developed doctrines based on interps of the const

ex of fed executive: Trump v. Vance

In Trump case, pres argued against a subpoena from a state ct. he argued that the supremacy clause gives him absolute immunity from state criminal subpoenas bc compliance with those subpoenas would categorically impair the pres's performance of his Art III functions. Solicitor General, arguing on behalf of US, urges us to resolve this case by concluding that the person records must, at least, "satisfy a heightened standard of need." (SG doesn't think that is met here) Marshall's ruing in Burr confirms that fed criminal subpoenas don't "rise to the level of constitutionally forbidden impairment of the executive's ability to perform its constitutionally mandated functions." But the pres here argues that state criminal subpoenas pose a unique threat of impairment and thus demand greater protection.

There are two avenues that the president can take to act: statutory authorization and constitutional authorization. Were there either of these in Youngstown?

Is there statutory authorization for the president to act? The court mentions two statutes that authorize the President to take personal and real property under certain conditions. The government admitted that they did not follow the conditions in order to act according to those statutes because they would be too time consuming for the perceived emergency. Ie, There were two statutes cited in the opinion. However, the ct said that they did not act as they should have to use those statutes - to use them, to meet the pres's needs, there were certain conditions. Gov said it didn't pursue those bc would've taken too much time. So didn't use statutory provisions that were there. The court also did not otherwise infer that Congress would have authorized the action taken by the president because they already considered this exact seizure technique in the resolution of labor disputes and rejected it. Had already rejected something like that. b. So no statutory provision, express or implied, for pres to use here. 1. On the issue "Is there constitutional authorization for the president to act:" a. The court also did not find that this was a constitutional use of the President's military power as Commander in Chief. Our constitutional system would be jeopardized if the court read that power so broadly. Just bc pres can control troops doesn't mean he should get the power to control certain parts of our gov to provide for the troops - way too broad. b. The president also executes laws and does not create them. The executive order was too close to a statute. The Constitution does not give the president the power to legislate. That is reserved to congress.

PP notes on Dean Milk:

Madison, WI ordinance prohibits the sale of milk ii. Not processed and bottled at an approved plant within a radius of five miles from Madison iii. That is not from a source of supply with a permit issued after inspection by Madison officials iv. Dean Milk purchases and gathers milk from almost 1000 farms in both Illinois and Wisconsin. It was denied a license to sell products within Madison because its pasteurization plants were more than 5 miles away from Madison. Why did the court find that the state law was invalid as discriminatory? Were there reasonable alternatives?

Natural law v. positive law:

Natural law is the claim that when people claim about human rights - you have rights that just exist (maybe come from a rel place, or a secular ideal of we as people have certain rights); if you think murder is wrong, the idea is that murder is wrong no matter what the gov says about it. Positive law: const, statutes - idea is that pos law constrains judges, whereas nat law means that judges can be swayed more by their personal opinions.

the commerce clause also considers issues dealing with private discrimination and commerce. background to this:

Negro Motorist Green Book by Victor H. Green. A guidebook for African American travelers that provided a list of hotels, boarding houses, taverns, restaurants, service stations and other establishments throughout the country that served African Americans patrons. Helped black travelers avoid discrimination, price gauging, and physical violence while traveling.

Butler explanation of the political question doctrine:

Political questions are concerned with whether an issue before the court is asking the judiciary to resolve something that is in the hands of another branch and (with the Baker v Carr factors) whether the judiciary even has standards by which to evaluate the question at issue. It is concerned with separation of powers and making sure the judiciary doesn't overstep. So, it falls under the powers delegated to the judiciary, in the sense that the judiciary is trying to stay away from questions that are supposed to be the responsibility of either the executive or legislature. That's why, in Nixon, the court was trying so hard to define terminology like "sole" to figure out whether the judiciary should even get involved in determining whether the senate could create a committee to hear evidence of impeachment. In practice, the doctrine is a mess - the judiciary resolves questions involving other branches all the time and the PQD is fairly limited and specific. But, on an exam, try to spot an issue involving two co-equal branches and apply the Baker v Carr factors.

section 5 of 14th amendment:

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

note on the 'substantial relationship' aspect of the commerce clause:

The Depression called into question the US's laissez-faire economic policy. Franklin Roosevelt's New Deal (series of reforms and regulations to combat the great depression) in the 1930s faced a variety of challenges and losses in the Supreme Court. After his re-election in 1936, he proposed in 1937 that Congress adopt legislation to expand the Supreme Court. He proposed a plan that would lead to 15 justices. Nothing in the constitution prevents increasing the number of justices and the size of the court has occasionally been adjusted. The "Switch in Time That Saved Nine" is the phrase to explain the sudden jurisprudential shift by the Supreme Court in the 1937 case West Coast Hotel Co. v. Parrish.

Trump's arguments in Trump v. Vance: 1. The Supremacy Clause entitled sitting presidents absolute immunity from state criminal subpoenas because they would impair performance of Article II functions. 2.The US argued that a state grand jury subpoena should (at the very least) satisfy a heightened standard of need

The ct rejected both of Trump's arguments. The court considered distraction, stigma, and harassment. § Distraction is not enough. There has to be a potential for distortion of the execs decision making process with respect to official acts stemming from the worry as to the possibility of damages. There is no protection from the generalized worry of being prosecuted once out of office. There needs to be an additional distraction caused by the subpoena itself. There's no protection from a generalized worry of being prosecuted once you're out of office - must have some distraction caused by the subpoena itself. Can't tell a state they can't subpoena evidence just bc the pres is worried about a criminal charge once he gets out of office - has to be something more, has to be some additional distraction caused by the subpoena. § Stigma - prevented by grand jury secrecy and nothing inherently stigmatizing about furnishing information relevant to a criminal investigation. Says two things: Grand jury trials are supposed to be secret, so there's nothing to be exposed in the proceeding that could stigmatize the pres. Also, there's nothing inherently stigmatizing about giving info that is relevant to a criminal investigation. § Harassment - if there were harassment that were impairing the President's duties, that harassment would be illegal, an unconstitutional violation of the supremacy clause, and a federal court could protect the president. If there were actually harassment impairing the pre's duties, that'd be illegal - already have laws about harassing grand jury investigations. A fed ct could protec the pres from the state. But there are no facts here to suggest there was harassment happening. Rejected heightened standard because in this case would protect private as opposed to official documents and there is no basis in law for a double standard related to federal and state subpoenas. Why: this case involves private, not official docs. Also: we don't have history justifying why there should be a heightened standard for state subpoenas as opposed to federal. Also: Rejected heightened standard because in this case would protect private as opposed to official documents and there is no basis in law for a double standard related to federal and state subpoenas. Why: this case involves private, not official docs. Also: we don't have history justifying why there should be a heightened standard for state subpoenas as opposed to federal.

1. Whole Woman's Health v. Hellerstedt (2016) a. A TX statute narrowed circumstances where a doctor could perform an abortion. It was very obvious that the state wanted to ban abortions, but because they couldn't (because it's a protected liberty interest), it tried to regulate abortions away. b. Before the enactment of the Texas law, doctors who provided abortions were required to "have admitting privileges or have a working arrangement with a physician(s) who has admitting privileges at a local hospital in order to ensure the necessary back up for medical complications." c. The new law changed this requirement by requiring that a "physician performing or inducing an abortion ... must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that ... is located not further than 30 miles from the location at which the abortion is performed or induced." d. Before the new law, abortions were extremely safe. There was no problem the new law helped cure. e. The District Court found, as of the time the admitting-privileges requirement began to be enforced, the number of facilities providing abortions dropped in half, from about 40 to about 20. Eight abortion clinics closed in the months leading up to the requirement's effective date. Eleven more closed on the day the law took effect. f. It is undisputed that "hospitals often condition admitting privileges on reaching a certain number of admissions per year." it would be difficult for doctors regularly performing abortions at the El Paso clinic to obtain admitting privileges at nearby hospitals because "[d]uring the past 10 years, over 17,000 abortion procedures were performed at the El Paso clinic [and n]ot a single one of those patients had to be transferred to a hospital for emergency treatment, much less admitted to the hospital." In a word, doctors would be unable to maintain admitting privileges or obtain those privileges for the future, because the fact that abortions are so safe meant that providers were unlikely to have any patients to admit. i. To have admitting privileges, you have to use a hospital a certain no of times per year. Plus, hospitals have their own regulations - doctor ii. can't just show up and have admitting privileges. Basically the law made it so that it was almost impossible for anybody to actually comply with the law, which meant nobody could get an abortion. g. Those closures meant fewer doctors, longer waiting times, and increased crowding. Record evidence also supports the finding that after the admitting-privileges provision went into effect, the "number of women of reproductive age living in a county ... more than 150 miles from a provider increased from approximately 86,000 to 400,000 ... and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000."

We recognize that increased driving distances do not always constitute an "undue burden." See Casey, 505 U.S., at 885-887, 112 S.Ct. 2791 (joint opinion of O'Connor, KENNEDY, and Souter, JJ.). But here, those increases are but one additional burden, which, when taken together with others that the closings brought about, and when viewed in light of the virtual absence of any health benefit, lead us to conclude that the record adequately supports the District Court's "undue burden" conclusion

PP notes on Hughes:

Why did the majority think the law discriminated against interstate commerce? ii. How could the state have protected minnows in a less discriminatory manner? iii. Does the dissent consider the right kind of discrimination? Discrimination against interstate commerce vs discrimination against out of state citizens?

For rational basis review in Equal Protection clause, the burden is on the challenger to prove that the government did not have a rational basis, right? Whereas intermediate and strict the burden is on the government to prove how it is related to its interest?

Yes

1. NFIB v. Sebelius - Commerce

a. ACA (another name for this case) as a whole: In ACA case don't think about it in terms of 'it was unconstitutional under commerce,' bc if it's unconstitutional under one power, it might still be constitutional under another. b. Issue: Whether Congress had the power under the Commerce Clause and Necessary and proper clause to enact the individual mandate c. What is the individual mandate and what was its purpose? i. What was the individual mandate: if one meets certain reqs, has to buy a certain amount of health insurance, if they don't they have to ... d. Five justices decided that Congress did not have the power under the Commerce clause. Why? e. As to the Necessary and Proper Clause i. Roberts: said Congress cannot use the power to "create the necessary predicate to the exercise of an enumerated power." what does this mean? f. Scalia, Kennedy, Thomas, Alito: Congress exceeded the scope of the NPC because it violated the principle of enumerated and limited federal power. g. How does the court consider rational basis?

1. Practice problems (on slides for 11 March):

a. Answer is A. i. What's the best argument in the first question that there is an undue burden on the right to an abortion? Lack of materials makes you need to talk to your parents, people that you wouldn't normally talk to them. ALSO: if that's the only place you get info about abortion, that's not giving you the option to best take care of your life. Not equipping students with the info they need - putting them in the position, alternatively, to ask someone for help. Your response to these arguments: people have access to the internet, there's nothing stopping you from find this on your own. ii. Negative v. positive rights § Positive rights: guarantee gov protection for certain situations. § The const is a negative right - keeps gov from interfering in certain situation. iii. This law in birth control law at public schools ex: probably const. be drawing a line between blocking v. substadizing someone's rights. State hasn't said people can't get an abortion. Not impeding people's access to an abortion instead of just making it harder to learn about options. b. Answer is C. i. Second question: this is a SDP question. Where did we learn about this issue: Casey. What did Casey tell us about this case: to require a woman to go a spouse to ask for consent is chaining her decision making to her spouse, comes with threat of spousal abuse, infringes on her privacy rights. Reason why it's no ok just bc it has bypass procedure: an adult woman is allowed to make her own decisions. Doesn't matter there's a way around her spouse, problem is that the law indicates that she might have to ask her spouse in the first place.

1. Mississippi passes a criminal law saying that it is illegal for anyone to engage in prostitution for reasons related to health and safety. An adult is arrested under the law. They allege that their participation in prostitution was consensual and their only clients were other consenting adults. They claim the MS law violates their substantive due process rights. What is the likely outcome? a. What is the source of the claimed right b. What exactly is the claimed right? Why does it matter? c. What case or cases would most help us figure out the answer to a question like this?

a. Answer: the source of the claimed right = the 14th amendment, bc we're dealing with a state issue. 14th amend protects SDP rights against state action. What is the right the P is claiming they have: bodily autonomy and sexuality. The person would argue this is a fundamental sexual privacy issue, look to Lawrence v. Texas. To differentiate from Lawrence: go to all the reasons in Lawrence why they say this decision relates to sexual private autonomy. In contrast, if you were the gov, you'd say this is prostitution, an economic venture, state receives rational basis review for economic issues. Aka, the ultimate conduct at issue is eco in nature, so rational basis would apply. In reality, cts have not extended Lawrence to prostitution, laws on prostitution only due rational basis review.

arguments for originalism, non-originalism

a. Arguments for originalism: 1) the very nature of interpreting a doc requires that its meaning be limited to its specific text and its framers' intentions. 2) desire to constrain power of unelected judges. Therefore, ct is justified in invalidating gov decisions only when it's following values clearly stated in the text or intended by the framers. 1. Arguments for non-originalism: a. equal protection in the last half of the twentieth c must mean that gov-mandated racial segregation is unacceptable, yet there's strong evidence that the framers of the 14th amendment approved this practice. The drafters of the equal protection clause didn't intend to protect women from discrimination, but it's widely accepted that this clause should apply to gender discrimination. b. there isn't an unambiguous, knowable framers' intent that can be found to resolve constitutional questions. Instead, the process of determining the framers' intent invariably is a process of interpretation that's affected by contemporary values. Also, there wasn't a single framer or group of framers. c. Non-originalism is the preferable method of interpretation because it's the approach intended by the framers. Aka, the framers probably didn't intend that their intent would govern later interpretations of the const. 2. Originalists response to non-originalist arguments: a. argue that the appropriate method of changing the const is through amendment, not interpretation. Non-originalism improperly empowers unelected judges to displace the decisions of popularly elected officials. b. originalists maintain that if the intent on a particular issue can't be determined, then it's a matter that should be left to the political process. c. framers DID mean their approach be followed in const interpretation. 3. Articles of federation: no power to tax or regulate commerce.

1. Events post-Brown a. 1955 In Brown II, the Supreme Court orders the lower federal courts to require desegregation "with all deliberate speed" b. 1955 Between 1955 and 1960, federal judges will hold more than 200 school desegregation hearings. c. 1956 Tennessee Governor Frank Clement calls in the National Guard after white mobs attempt to block the desegregation of a high school. Under court order, the University of Alabama admits Autherine Lucy, its first African American student. White students and residents riot. Lucy is suspended and later expelled for criticizing the university. d. The Virginia legislature calls for "massive resistance" to school desegregation and pledges to close schools under desegregation orders. e. 1957 The Governor and the Legislature of Arkansas openly resisted the Supreme Court's decision in Brown, More than 1,000 paratroopers from the 101st Airborne Division and a federalized Arkansas National Guard protect nine black students integrating Central High School in Little Rock, Ark. (Little Rock Nine) f. 1958 The Supreme Court rules that fear of social unrest or violence, whether real or constructed by those wishing to oppose integration, does not excuse state governments from complying with Brown. (Cooper v. Aaron) g. 1959 Prince Edward County, Va., officials close their public schools rather than integrate them. White students attend private academies; black students do not head back to class until 1963, when the Ford Foundation funds private black schools. The Supreme Court orders the county to reopen its schools on a desegregated basis in 1964. h. 1962 A federal appeals court orders the University of Mississippi to admit James Meredith, an African American student. Upon his arrival, a mob of more than 2,000 white people riot. i. 1964 The Civil Rights Act of 1964 is adopted. Title IV of the Act authorizes the federal government to file school desegregation cases. Title VI of the Act prohibits discrimination in programs and activities, including schools, receiving federal financial assistance. j. 1969 The Supreme Court declares the "all deliberate speed" standard is no longer constitutionally permissible and orders the immediate desegregation of Mississippi schools. (Alexander v. Holmes County Board of Education) 2. Chemerinsky notes on Brown:

a. Brown ushered in the modern era of equal protection jurisprudence. Since Brown, SCOTUS has relied on the EPC as a key provision for combating invidious discrimination and for safeguarding fundamental rights. In 1952-3, SCOTUS granted review in five cases that challenged the doctrine of separate but equal in the context of elementary and high school education. At the time, 17 states, and DC, practiced segregation in the public schools. The school systems challenged in the five cases before SCOTUS involved schools that were totally unequal.

Congress is concerned about a future pandemic and wants to plan for the worst just in case this country ever faces something as bad as Covid in the future so that it can protect the general welfare. With that goal in mind, because of how hard hit certain communities were, Congress mandates that any group of individuals at or below the federal poverty level must be first in line to receive hospital beds and vaccinations. Congress criminalizes the failure of hospitals and medical professionals to implement this mandate. While the poverty rate for the population as a whole is 10.5% the rate varies greatly by race. Blacks have the highest poverty rate at 18.8% and Non-Hispanic whites the lowest at 7.3%. A non-Hispanic, middle class, white man claims the law is unconstitutional. What are the various challenges he might raise? What else would you want to know?

a. Can Congress pass a law like this - Congress can only pass laws using taxation, spending, or commerce clause power. What makes us think Congress is taxing, spending, or using commerce power: there could be an argument that they're using their commerce power - and it would have to be commerce power, bc they're not taxing to raise revenue and haven't decided to spend money to do anything. So the one thing we could really think about is maybe bc Congress is criminalizing something maybe this is a commerce power issue. Necessary and proper would have to be sued in conjunction with one of Cong's main three powers. What would we say about justiciability here, is there standing: there hasn't been an injury yet. This person would also probably bring an EP challenge. Here, we're talking about poverty and race. Here, P would want to argue that this law is unconstitutional bc even on its face it doesn't consider a racial classification, the stats here say that black people have the highest poverty rate, which means that the P would have the end of the line of receiving a hospital bed and vaccination. After you identify there's a facially neutral law, but a potentially discriminatory effect, you have to know if there was any evidence of a discriminatory purpose underlying this. You'd need to argue that cong passed this law bc it was being attentive bc POC were really hard-hit during COVID, then can argue if that is an impermissible reason. You'd also need to see if there is any legislative history with a congressperson saying 'white people don't deserve the vaccine,' etc. the law would only receive strict scrutiny if you had both discriminatory purpose and effect (WHAT IF IT DIDN'T???). you could also ask if there's a class question here - though class isn't itself a protected classification. You'd want to argue there is no underlying fundamental right that raises this issue to strict scrutiny. In short, the ct here would likely just look at this under rational basis review, unless can prove there was a discriminatory purpose.

continuing the review of SDP: Famous Footnote 4 - Carolene Products:

a. Carolene products: gave three ways that rational basis wouldn't be sufficient. The third reason is the springboard for figuring out if someone is a discreet and insular minority, the quasi-suspect four factors. b. The court upheld a federal statute that prohibited the shipment in interstate commerce of skim milk mixed with some fat/oil other than milk fat. In doing so, it rejected the defendant's argument that the statute violated their 5th Amendment due process rights. While explaining that the court would use "rational basis review" and would be extremely deferential, the Court dropped a footnote stating when heightened judicial scrutiny might be warranted (this footnote was incredibly influential for due process and equal protection cases moving forward): i. A violation of a specific constitutional provision (ex: Bill of rights) ii. When the regulation is the product of a defect in the political process (restricting the ability to repeal undesirable legislation) iii. When the regulation unduly disadvantages discrete and insular minorities (this is the springboard for determining whether someone is part of a suspect of quasi suspect class) c. All of these situations foresee a potential reason to distrust the product of the political process.

1. DC v. Heller: all about picking about just a few words. Both Scalia, Stevens use an originalist argument

a. Case Details i. 5-4 decision, invalidated DC's ban on handgun possession and requirement that registered guns be kept locked or disassembled. ii. Second amend text: "a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." iii. The maj and dissent both indicate that the second amend came about for a reason. What were those reasons? § Maj says it's about individual access. Both sides point to this concern of a standing army, state still needed militias, nat gov shouldn't have too much power over those militias. § Both maj and dissent both try to use originalism to explain their position.

what are the channels and instrumentalities of the commerce clause:

a. Channels: i. broad power to regulate the creation, movement, sale and consumption of merchandise, services , and people (allows congress to criminalize explosives, threatening communications, counterfeit documents, and much more) b. Instrumentalities i. Congress may make regulations for the safety, efficiency, and accessibility of the nationwide transportation and communications networks - can reach activities that use those networks and others like railroads, interstate highways, the internet.

Chemerinsky notes on the 'commerce' part of the ACA case:

a. Chemerinsky i. In the NFIB v. Sebelius case, ct emphasized that the necessary and proper clause must be used in conjunction with a valid exercise of another power of cong. The case involved the constitutionality fo the patient protection and affordable care act and specifically the "individual mandate," which required that almost all Americans either purchase health insurance or pay a tax penalty. One of the arguments for the constitutionality fo the individual mandate was based on the necessary and proper clause. Under ACA, insurance cos are required to provide coverage to all and no longer can deny policies based on preexisting conditions, or change higher premiums based on health conditions, or impose yearly or lifetime caps on payments. No one disputes that cong can impose these reqs on insurance cos under its power to regulate commerce amongt he states, but just imposing these reqs would almost certainly fail; many people would wait until they were ill to get insurance knowing that they could do so then and at no additional cost. Reducing the number of healthy people with insurance would dramatically increase its costs and ultimately the reforms of health insurance would prove impossible. The argument then was that cong could impose the individual mandate under the necessary and proper clause as a way of carrying out its regulations. J. Roberts explained that he n and p clause must be used in conjunction with a valid exercise of another cong power. The justices said that since the individual mandate wasn't a valid exercise of cong's commerce power, the n and p clause couldn't be used as the basis for enacting it. Ginsburg, dissent, said that the indivdiaul mandate should be regarded as const under the n and p clause as a means for effectuating cong's power of regulating the health insurance industry under its commerce power: "Cong knew that simply barring cos from relying on an applicant's med history would not work in practice. Without the individual mandate...insurance premiums would skyrocket, the number of uninsured would increase, and cos would exit the market. The minimum coverage provision is thus an 'essential part' of a larger regulation of eco activity, without the provision, the overall regulatory scheme would be undercut. Aka, the minimum coverage provision, together with the guaranteed-issue and community-rating reqs, is 'reasonably adapted' to the attainment of a legit end under the commerce power: the elimination of pricing and sales practices that take an applicant's med history into account. § BUT: Roberts upheld the individual mandate as an exercise of Cong's TAXING power. § Art 1, section 8 is the commerce clause.

Chemerinsky notes on US v. Lopez:

a. Chemerinsky i. Lopez: SC declared unconstitutional an act which made it a crime to have a gun within 1k feet of a school. The ct ruled that the rel to interstate commerce was too tangential and uncertain to uphold the law as a valid exercise of cong's commerce power. ii. Morrison, a later case after Lopez, held that cong can't regulate a noneco activity by finding that, looked at cumulatively, it has a substantial effect on interstate commerce. iii. In Lopez, ct found three types of activities that cong can regulate under this power: 1) channels of interstate commerce (heart of atl was given as an ex). 2) the instrumentalities of interstate commerce. 3) activities having a substantial relation to interstate commerce. iv. In Lopez, ct concluded that he presence of a gun enar a school didn't substantially affect interstae commerce and that therefore the fed law was unconstitutional. J. Rehnquist noted that nothing in the act limited its application to instances where there was proof a gun ahd been part of interstae commerce. the ct specifically rejected the argument that the regulation was justified under the commerce clause bc possession of a gun near a school may result in violent crime that can adversely affect the economy. Breyer's dissent: ct should uphold a fed law as a valid exercise of the commerce power so long as there was a rational basis that the activity affects interstae commerce. v. In Lopez: the SC declared unconstitutional a fed law prohibiting a person from having a firearm within 1k fet of a school on the grounds that it exceeded the limits of the commerce power.

Chemerinsky notes on Muskrat v. US:

a. Chemerinsky notes i. Case or controversy ex is Muskrat. At the core of Art III's limitation on fed judicial power is that fed cts can't issue advisory opinion. This helps with separation of powers by keeping the judiciary out of the legislative process. Second reason for not doing it: judicial resource are conserved. If they did it once, it'd happen a lot more often, and the law wouldn't pass to the legislature. Fed judicial review otherwise is unnecessary, a waste of time and capital. Thirdly, the prohibition against advisory opinions helps ensure that cases will be presented to the ct in terms of specific disputes, not hypothetical legal questions. For a case to be justiciable, not an advisory opinion, two criteria must be met: must be an actual dispute between adverse litigants (Muskrat is an ex of this. Here, cong adopted a statute expanding the participants in an allotment of land that was made to certain NA tribes. To facilitate resolution of constitutional questions about the law, Cong subsequently adopted a statute permitting the filing of two lawsuits in the ct of Claims to determine the validity of the earlier law. Pursuant to this statutory authorization, a suit was initiated, but the SC ruled it wasn't justiciable. The interests of the NAs and the gov weren't at all adverse. In the ct's view, cong simply ad adopted a statute authorizing the fed cts to issue an advisory opinion on the constitutionality of a statute). Second, for a case to be justiciable and not an advisory opinion, there must be a substantial likelihood that he fed ct decision in favor of a claimant will bring about some change or have an effect.

Chemerinsky notes on Nixon v. US (and the PQD):

a. Chemerinsky notes i. Involved fed district ct judge Walter Nixon, who had been convicted of making false statements to a grand jury. Nixon refused to resign from the bench and continued to collect his judicial salary while in prison. After the house impeached Nixon, the senate created a committee to hold a hearing and make a recommendation to the full senate. The committee recommended removal from office, and the entire senate voted accordingly. Nixon argued, however, that the senate's procedure was unconstitutional and that the entire senate had to sit and hear the evidence. The SC ruled that Nixon's challenge must be dismissed as a nonjusticiable pol question. J. Rehnquist, wriging for the ct, emphasized that the framers intended that there would be two proceedings against officeholders charged with wrongdoing: a judicial trial and legislative impeachment proceedings. He said, "the framers deliberately separated the two forums to avoid raising the spectre of bias and to ensure independent judgments...certainly judicial review of the senate's trial would intro the same risk of bias." The ct's desire that the judiciary stay out of the impeachment process is understandable, since it is the ultimate pol remedy. Critique of this: provisions concerning impeachment are part of the const, and if the judiciary can't stop vioaltions, the constitutional limits become unenforceable. Nixon makes challenges to impeachments nonjusticiable. It is thus up to cong to decide what are "high crimes and misdemeanors" and what procedures are appropriate concerning impeachment and removal. ii. More on Nixon: Rehnquist held that the language and structure of Art I section 3, which Nixon said the senate had violted, demonstrated a textual commitment of impeachment to the senate. Said that the framers intended that there'd be two proceedings against officeholders charged with wrongdoing: a judicial trial and legislative impeachment proceedings. Rehnquist noted that 'the framers deliverately separated the two forums to avoid raising the spectre of bias and to ensure independent judgments...certainly, judicial review of the senate's trial would intro the same risk of bias as would participation in the trial itself.' Moreover, ct stated that judicial review of the impeachment process would be inconsistent with the framers' views of impeachment in the scheme of checks and balances. Framers saw impeachment as the only legislative check on the judiciary; judicial involvement would undercut this independent check on judges.

A. Prohibiting private discrimination 1. Civil Rights Cases (1883): Congress did not have the power under the Fourteenth Amendment to prohibit discrimination practiced by private parties (was about public accommodation like transportation, hotels, etc)

a. Civil rights cases: Cong didn't have th power under the 14th amdn to prohibit discrimination practiced by the private parties. Had to do with housing discrimination, discrimination by private parties. Sc said can't use 14th amendment for private discrimination. Instead, have to use 13th amendment as a tool to protect rights found in the const. section 1982 can protect against housing discrimination. ADD TO FORM b. 14th amend doesn't protect from private discrimination

I. Status Based Classifications A. Bolling v. Sharpe 1. Chemerinsky notes

a. Companion case to Brown b. Concerned segregation of D.C. public schools c. Ct held that equal protection applies to the fed gov through the due process clause of the 5th amendment. d. Obviously, it would be unacceptable to allow the fed gov to discriminate based on race or gender in a manner prohibited the states by the 14th amend. to avoid this embarrassment, ct interpreted the 5th amendment as including an implicit req for equal protection. Ct simply declared that "discrimination may be so unjustifiable as to be violative of due process." e. It's now well est that the reqs of equal protection are the same whether the challenge is to the fed gov under the 5th amend or to state and local actions under the 14th amend. the SC has declared that "equal protection analysis in the 5th amendment area is the same as that under the 14th amend." but technically: equal protection applies to the fed gov through judicial interpretation of the due process clause of the 5th amend, and to state and local govs through the 14th.

In-Class notes on states' limitations

a. Cong, fed gov ONLy has power that it's been given. States have gen police power. States can act except when they can't fed gov acts when it's authoroized to act, states act except when there's some limit on their power to act. b. Pre-emption v. DCC: easy to think of them as being mutually exclusive. But hypothetically you could be presented with facts where there could be both a limitations on state power AND there is a question on pre-emption. Both can, hypothetically, exist at the same time, but your first question is going to be pre-emption. c. Main question we're even concerned about in con law: is something, or isn't something, justiciable. That's our threshold question. That's when we get in questions in Art 3, standing, ripeness, mootness, PQD. d. If decide court CAN hear a case, then ask what kind of constitutional issue has arisen - legislative, executive, state limits? Cong can't randomly act, thre has to be a source of power that they're using, and it has to be used appropriately. e. If looking at states: states can just act for the general welfare. States can act, but they can't act without limits. And so the const directs us toward what those limits might be, like DCC or pre-emption. (is P express or implied, if implied is it field or conflict). f. Three things to focus on for state limitations: unreasonable burden on interstae commerce, need for uniform standard, is one state discriminating against other states. g. Necessary and proper clause is lurking as one of the means cong has to reach its means - remember const is just an outline of powers, doesn't definitively list everything cong can do. h. If a state law is preempted, it's invalidated. If not preempted, see if there's another limits via DCC - is there another reason the state should be prohibited from legislating - then get the three tests for DCC> i. Preemption is linked to supremacy clause. j. DCC clause: the states are part of a nation. We don't want them acting in ways that will adversely affect other states. We had that issue long ago. But in general, states can act whenever, whatever they want - but there are just a few limitations. States don't have to look for a grant of power. k. Fed gov often sets minimum standards, concerned that states didn't have what was needed, as in Silkwood, to set standards at all and figure out how to regulate - so feds should just do it. l. Ex: Maine was trying to make it possible for survivors of eco abuse to have more avenues to challenge eco abuse, get credit damage off of their credit reports. In ex, CDIA said that law was preempted by fed credit reporting act. Butler wrote amicus brief arguing/laying out the issue. m. When you get hit with a preemption issue, the main thing you can go to is that this law isn't prempted, it just supplements. Not only does it supplement, but it actually is aligned with the purpose of the fed law. She argued that Maine law would actually improve credit scores and accuracy by removing inaccurate info stemming from abuse and identity theft. Show that the problem you want to solve is to help achieve the goal of the fed law. Argue fed isn't trying to occupp the entire field, just give minimum standards. n. With preemption, need to think about cong intent, what does ht efed law do, what does the state law do. Keep thinking back to Silkwood, where ct was saying 'this is what cong was trying to do this is what we can decide about cong intent - cong WAS trying to occupy the entire field of safety standards, not trying to just set benchmarks everybody needed to meet." o. "minimum standard" is the language cong typically uses to show that it does in fact mean its just setting minimum standard, not occupying the whole field.

1. The lasting effect of Lopez and Morrison:

a. Congress can get around these rules by penalizing something carried in "interstate commerce." Just plop that into statutes, good to go b. Congress may regulate interstate commerce (commerce that concerns more than one state) if it regulates 1) the use of channels of commerce 2) the instrumentalities of commerce and persons or things in interstate commerce 3) intrastate activity that Congress rationally believes substantially effects interstate commerce. c. If the statute regulates intrastate activities that do not concern channels or instrumentalities of commerce, the legislation could still be constitutional if it substantially effects interstate commerce. d. The impact can be cumulative or in the aggregate if the regulated activity is economic in nature. (Added to help distinguish Lopez from other cases) e. After Lopez and Morrison, the test to determine whether a regulation has a substantial effect on interstate commerce requires reviewing courts to consider the following: 1) whether the regulated activity is commercial or economic in nature (the courts did not totally preclude non-economic activity (which could still have a substantial effect but non-economic, intrastate activity may not cumulatively effect interstate commerce); 2) whether an express jurisdictional element is provided in the statute to limit its reach; i. "express j element" = if there's something in the statute that says Congress is relying on the commerce clause 3) whether Congress made express findings about the effects of the proscribed activity on interstate commerce (helps inform rational basis review); and 4) whether the link between the prohibited activity and the effect on interstate commerce is attenuated i. Attenuated = like in Lopez, are we trying to say the link is this super attenuated connection - aka, if you have a gun, impact on edu, impact on nat markets.

General notes on commerce power:

a. Congress may regulate interstate commerce (commerce that concerns more than one state) if it regulates: 1) the use of channels of commerce 2) the instrumentalities of commerce and persons or things in interstate commerce 3) intrastate activity that Congress rationally believes substantially effects interstate commerce. b. If the statute regulates intrastate activities that do not concern channels or instrumentalities of commerce, the legislation could still be constitutional if it substantially effects interstate commerce. c. The impact can be cumulative or in the aggregate if the regulated activity is economic in nature. (Added to help distinguish Lopez from other cases) d. After Lopez and Morrison, the test to determine whether a regulation has a substantial effect on interstate commerce requires reviewing courts to consider the following: 1) whether the regulated activity is commercial or economic in nature (the courts did not totally preclude non-economic activity (which could still have a substantial effect but non-economic, intrastate activity may not cumulatively effect interstate commerce); 2) whether an express jurisdictional element is provided in the statute to limit its reach; 3) whether Congress made express findings about the effects of the proscribed activity on interstate commerce (helps inform rational basis review); and whether the link between the prohibited activity and the effect on interstate commerce is attenuated

context for Allen v. Wright:

a. Context: white flight and de facto segregation i. De jure segregation § Segregation by law (pre-Brown segregation and post-Brown resistance) ii. De facto segregation § segregation without sanction of law iii. White flight and discriminatory zoning policies in the 1960s and beyond contributed to de facto segregation. iv. Whites moving away from cities into suburbs. v. Whites moving into different suburbs when black families moved in. vi. Black families were met with violence when they moved into the "wrong" suburbs vii. Mortgage lending discrimination viii. Zoning policies based on income, single family homes vs apartment buildings ix. In Allen, "fairly traceable" = what exactly is the IRS's fault. The schools are the ones with the discriminatory policies. Focus on what the D allegedly did, tie that to what the alleged injury is. x. Redressability: if ct were to step in, would whatever the ct ordered the D to do fix whatever problem the P has.

what does liberty mean?

a. Contraception i. The government may not prohibit the use of contraceptives by married couples (Griswold) or unmarried couples (Eisenstadt p. 629). § The modern rule uses strict scrutiny. The court considers (updated once we get to EPC): v Whether the government has a a sufficiently vital or important justification for the interference (on individual liberty) v Whether the government could have achieved its goals without interfering with the right (narrowly tailored to meet the government interest - is it necessary to achieve the objective) § Griswold v. CT shows us how the privacy framework was constructed. We don't use the zones of privacy test when evaluating the right itself, but the case tells us one theory about where the fundamental right to privacy comes from. b. Abortion i. The modern rule is one of "undue burden" instead of strict scrutiny. Before viability, the government may regulate but may not prohibit or cause an undue burden. After viability, the government may regulate and even prohibit abortion except if the life/health of the mother is at stake. c. Both are closely related to the right of privacy which includes intimate association, bodily integrity, family planning. i. Fundamental liberties are basically whatever the SC says they are ii. Economic liberty isn't considered a fundamental liberty anymore, not entitled to heightened scrutiny. iii. Contraception, abortion are fundamental rights. Contraception gets strict scrutiny, abortion gets undue burden test. d. Marriage e. Sexuality

DCC ex: Dean Milk v. City of Madison

a. Ct considered a city's ordinance that required that all milk sold in the city be pasteurized within five miles of the city. The law prevented milk that was pasteurized in other states from being sold in that city, and it also precluded milk that was pasteurized in other parts of the state. Nonetheless, ct decided the law was discrimiantry against out of states. Ct explained that the city could achieve its goal of ensuring safe milk by less discriminatory alternative such as sending its inspectors to importing producers or by relying on inspections by fed authorities b. Main issue was with the five mile radius. Why did the ct find the state law was discriminatory: they said it was preventing other markets from participating in Madison, there were alternative methods to achieve milk quality: if they want to rely on their own officials they can do that and pass on that cost to the importing producers and processors; also, there's a model provision with set standards about how milk could be pasteurized as high as the ones in Madison. So ct was basically saying you don't have a good reason for discriminating against interstate commerce here. c. Diff tween Dean and Hypo p290: DCC, cong hasn't legislated/not concerned with fed legislation - just interaction tween states. Preemption cong HAS legislated. In our hypo, there's a fed law. Dean milk, we're not concerned at all with fed law, just with the state law discriminating against another state.

DCC ex: Cooley v. Board of Wardens

a. Ct has struggled since Gibbons to articulate criteria for when state laws burdening commerce are to be upheld as valid exercises of the police power and when they should be invalidated as violateing the dormant commerce clause. In this case, the ct drew a distinction between subject matter that's nat, in which event state laws are invalidated under the dormant commerce clause, and subject matter that's local, in which event state laws are allowed. In Cooley, a PA law required all ships entering or leaving Por to fPhily to use a local pilot or to pay a fine, which went to support retired pilots. Ct upheld the PA law, said that the crucial question was whether the subject is of a nature that requires uniform national regulation or diverse local regulation. The court found that regulating pilots was a local matter both because of differences among ports and also because a fed law from 1789 expressly allowed states to regulate piloting. However, there are problems with this test. First, it allows state regulations so long as the subject matter is deemed local, no matter how protectionst they might be. In Cooley, the state's goal was to help local pilots at the expense of out of state pilots. If the state goal was instead ot protect safety, this could have been accomplished by requiring a license or test. Second, there's not a clear distinction on what's national, demanding local regulation, and what's local, requiring diverse regulation. Cooley articulates no criteria for making this determination. b. Cooley and Wabash looked at national standards. Cooley was looking at ship piloting and Wabash was looking at railways. Cooley: what lended itself to local control instead of nat: safety concern, dealt with pilots on boats that might not be familiar with the local waterways. The whole fact that these are ships pulling into ports, and ports are located in specific states with local waters, there may be unique features of those ports that might require railroads

Executive Immunity and Trump v. Vance (criminal case):

a. Ct makes clear that the cases we considered before this were all fed. This case, though, is about a state subpoena and state criminal proceedings. Questioning whether the supremacy clause (remember in McCullough case, states aren't supposed to burden the fed gov - states can't tax nat bank. Trying to figure out if this is similar - is a state burdening a pres by subpoenaing these financial records. Basically, to this the ct says no). b. Prior cases all considered federal criminal proceedings. This case considered whether President Trump had absolute immunity from responding to a state subpoena for financial records.

Slide notes on Hughes v. OK:

a. Does the Oklahoma statute violate the commerce clause? Oklahoma Wildlife Conservation Code: No person may transport or ship minnows for sale outside the state which were seined or procured within the waters of this state. The prohibition against transportation applies to natural minnows procured from waters within the state. Another provision states: A person must have a minnow dealer's license before they may lawfully seine or trap minnows with in the state (except for personal use as bait). There are no regulations except the one at issue that are concerned with the disposal of lawfully acquired minnows - they can be sold in Oklahoma or removed from the state for any reason except sale. b. The court talks about facial discrimination in the "strictest of scrutiny." c. Why did the majority think the law discriminated against interstate commerce? d. How could the state have protected minnows in a less discriminatory manner? e. Does the dissent consider the right kind of discrimination? Discrimination against interstate commerce vs discrimination against out of state citizens?

Notes on Lawrence v. Texas:

a. Does the phrasing of the issue matter? What's the difference? i. Bowers v. Hardwick issue: "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." b. Lawrence v. Texas issue: whether adults are free to engage in sexual behavior in the privacy of their home c. The court overturned Bowers. Why? i. Ct said that Bowers ct misframed the issue. Bowers talked about history, how they weren't ok with same sex relations. But then Lawrence talks more about how they feel like that history is really misstated, not until more recent times that states actually singled out same sex relations for criminal prosecution. Also there's the fact since there waere cases since Bowers that undermined liberty jurisprudence. Here they say we've made a lot of decisions since then that DO undermine Bowers. So Bowers isn't valid precedent anymore (they basically had the opposite conclusion than they did in Casey). d. The court considers whether to treat this case as an equal protection issue (Justice O'Connor concurred in the judgement because she viewed it as an equal protection issue). Why do they decline to do so? i. Why decline to treat it as a EP issue; Just becomes a question about if the law makes a distinction between groups of people - at issue would still be this deeper issue if people are free to engage in sex in the privacy of their home. Aka, this bigger question would still be floating out there e. Morality i. (O'Connor) The state's police powers are health, safety, morals, and general welfare. Can the state not legislate morality? ii. (Scalia) If the state cannot regulate morals, then rational basis review will strike down laws like fornication, bigamy, adultery, adult incest, bestiality, and obscenity. § What other reasons are there to prohibit the crimes he lists? f. Scalia Dissent i. History and tradition vs emerging awareness. § At what point does our awareness of a conception of liberty achieve the status of liberty protected by the Due Process Clause? ii. Scalia talks about if the state can't regulate morals, then we can strike down other moral-type laws using rational basis review. But a lot of people have argued there are completely other reasons why the state can regulate some of these criems that he lists. g. Note the diff ways that Lawrence, Bowers frames the issue. What's the diff: negative v positive right - Bowers was asking if there is a positive right, whereas Lawrence it's if there is a negative right for gov not to regulate private sexual activity. i. Bowers subjects the behavior to one specific group, Lawrence doesn't do that. Ultimately, there is a certain level of specificity, classifying this group of people who a right might belong to in a v narrow way; there's also hidden value judgments that's in the way you define a right.

A. Executive Orders 1. EOs aren't in the const, aren't explicitly vested in the pres, but we accept them as an exercise of pres power. Pres doesn't have general powers, power to do general stuff, just from Art 2 - but some stuff IS implied. For ex, removal power isn't in const, but is the flip side of pres's power to appoint people to office. Executive orders, presidential memoranda, and proclamations are used extensively by Presidents to achieve policy goals, set uniform standards for managing the executive branch, or outline a policy view intended to influence the behavior of private citizens. The U.S. Constitution does not define these presidential instruments and does not explicitly vest the President with the authority to issue them. Nonetheless, such orders are accepted as an inherent aspect of presidential power. EOs have limits, though:

a. EOs have limits - They are directed to and govern activities by executive branch agencies and officials

ex of preemption: Silkwood v. Kerr-McGee Corp. Chemerinsky notes on Silkwood:

a. Ex of stae laws that impede achievement of fed objectives. The difficult in applying this type of preemption is often in determining the fed objective and whether a particular type of state law is inconsistent with it. Built on a case that involved a CA law that said no nuclear power plants could be built without a fed agency's approval of a method of disposing of high-level nuclear waste. Utility co argued this law was preempted by the fed gov bc Cong intended to preempt the field of nuclear regulation (a 'field preemption' argument = ct said cong intended fed gov to have exclusive authority to regulate safety, but that states retain their responsibility to regulate utilities for determining questions of need, reliability, costs - here, again, CA law was concerned about economics. Without a permanent means of disposal, the nuclear waste problem could become critical, leading to unpredictably high costs to contain the problem) and bc the state law interfered with fed objective of encouraging the development of nuclear power. SCOTUS rejected these arguments, upheld state law by concluding that cong's intent was to ensure safety, while the state's goal was economic. Also ct said that Cong's purpose was to encourage nuclear power only to the extent that it was economically feasible. SCOTUS had to make two choices: characterizing the fed objective; and characterizing the state law and its purpose b. In SILKWOOD: ct applied Pacific gas and electric to hold that fed law didn't preempt state tort actions against state utilities. Ct held that a state could award punitive ds for the escape of plutonium from a nuclear power plant. The ct decided that fed law preempted states from setting their own safety standards, but didn't preclude states from awarding a tort remedy for harms suffered bc of the operation of the plant, even though the plant was in compliance with fed law.

1. Lujan v. Defenders of Wildlife a. Context: administrations (sometimes called the fourth branch of gov) i. Administrative law focuses on the creation and operation of gov agencies. ii. Congress grants rulemaking authority to federal agencies to implement statutory programs. Regs have force and effect of law. iii. Congress delegates rulemaking authority so it does not have to focus on the technical program details for programs that congress created in statutes. iv. Congress passes laws, creates programs, funds those programs, and then agencies create regulations and other policies to implement those programs.

a. Facts i. Endangered species act > secretary of the interior needs to create regulations listing endangered/threatened species; ii. Act directed that each federal agency needed to consult with the Interior to make sure their actions did not jeopardize the existence of any of those species iii. US Fish and Wildlife + National Marine Fisheries Service promulgated a joint regulation interpreting the statute to require this consultation only for actions in the USA/high seas iv. DoW sued seeking a declaratory judgement and an injunction b. Issue: trying to determine if DoW had standing. i. What did defenders of wildlife say in their arguments that they did have standing - lang in the ESA about citizen suits, any citizen may bring a civil suit on his behalf...they claimed they could use the citizen suit provision. Why was that provision not enough? § Ct said that provision isn't meant to be an in-run around against the case and controversy req. there are times the gov will let an individual sue, but there still needs to be a concrete injury. § AKA: We feel like they still have no injury. Why? What did the defenders of wildlife say was their interest in endangered species? v Submitted saying they travelled to x places, didn't see them, but we want to go back someday. Had loose plans to go back. v Such "someday" claims does not support a definite injury, bc no plan for you to go back. No plan, can't see these animals either way, so no injury. "Imminency" is required in a concrete injury. v "someday" is insufficient c. Concurrence: outwardly recognize it's seemingly trivial that they might need to buy a plane ticket, have some concrete evidence of an injury they might get, but visiting these animals isn't something they do all the time. i. Aka, we still need something much more concrete and imminent. d. Dissent: standing is an over-formality that is prohibiting a legit concern of these people. e. Majority: says its speculation to say that anybody who works with endangered species is hurt through legislation that deals with just a part of that species - way too abstract. i. What facts would need to be diff: if somebody really did have a job viewing these animals, maybe that connection would be enough, but not going to say that anybody who may at some point want to see these animals has a concrete enough interest

Breakdown of Allen:

a. Facts i. IRS denies tax exempt status to racially discriminatory private schools. IRS has guidelines for determining whether a particular school is racially discriminatory. ii. Parents of black public school children alleged the IRS's procedures were insufficient to fulfill its obligation to deny tax exempt status to racially discriminatory private schools. b. What is the test for whether there is standing in a case: P must allege personal injury fairly traceable to D's allegedly unlawful conduct and likely to be redressed by the requested relief. i. IN OTHER WORDS, there are three components to the standing test; they must all three be met for there to be standing: 1) Injury 2) Fairly Traceable 3) Redressability c. Overview of injunction: i. a decision in which the court is requested to determine the legality of proposed conduct without awarding damages or injunctive relief. ii. P must meet the case or controversy tests, as well as other jurisdictional questions related to ripeness, mootness, political questions, standing. d. Issue in Allen: if the families had standing. Why did the parents say they had standing: i. their kids were being deprived edu at an integrated school. ii. the fact that IRS is giving tax-exempt status is wrong. Seeking declaratory judgment and an injunction asking ct to say that its unconstitutional to give tax exemption to racially discriminatory private schools. iii. Parents second argument was that the exemptions prohibit their ability to have schools desegregated. Ct said: linked that issue to it being to "attenuated." § Uncertain how many racially discriminatory schools were actually getting exemptions, speculative that withdrawing it would lead to a real change in the way things are, might not do anything for you. § White flight could continue. White parents might still keep kids in private school. If your concern is desegregation, we have no way of knowing if the injury you suffer is really going to end up having an impact. § How do we know how parents, administrators will react. e. Ct's application of the standing test - why did the ct say there was no injury: i. bc the individual kids had never applied to those private schools. ii. Also: ct said that being harmed by discriminatory tax exemption is not an injury...one interp was they were trying to stop the gov from breaking the law, which isn't an injury the ct can recognize. iii. An alternative injury: stigmatic injury suffered by a racial group when gove discriminates on race. That is an injury recognized by the ct. But the kids weren't denied bc never applied - aka, there needed to be a personal harm that was suffered, specific instance of discrimination § Didn't want ot make it that a black person in Main could complain about a school in Hawaii. Prob with this: parents who know that it's happening can't do anything about it before they are personally injured, even though they can show discrimination is clearly happening, just bc they haven't personally been harmed by it yet.

I. How to outline/breakdown the issues we've been talking about A. Review of issues from the first half of class 1. Part 1 - Structures and Powers

a. Federal Judiciary i. Judicial Review § Limits to Judicial Review b. Federal Powers i. Express and Implied ii. Commerce iii. Taxing iv. Spending c. Limitations on State Power i. Pre-emption ii. Dormant Commerce Clause d. Federal Executive Power i. Domestic Affairs ii. Immunity e. Legislative Process i. Delegation of Leg. Power ii. Leg. Veto 2. Who acted? President? Congress? Judiciary? Agency? State? 3. Where did they derive that authority from? a. Congress - Article I b. President - Article II c. Judiciary - Article III d. State - general police power 4. How is the actor limited? Did an exercise of power go too far? a. Congress - Express/Implied Powers (Commerce, Tax, Spend) b. President - Express/ Implied Leg/Constitutional Power c. Judiciary - Case or controversy + justiciability limitations d. State - limited by Article I (Commerce Clause -- Dormant Commerce Clause + (other powers that were given to the federal government in the constitution)

ex of commerce clause: Wickard v. Filburn

a. Filburn is a farmer, grew more wheat than he was supposed to bc he was under agricultural adjustment act of 1938 meant to avoid shortages and surpluses, stabilize the eco and make it more predictable. Filburn claimed that it was necessary for his farm, his own personal use to grow more wheat than he was supposed to. Why did he get in trouble: even though done for a personal reason, it stil affected commerce, and it would still be a big deal if everybody did it, would affect the market. Is anybody bothered by this reasoning: yes - because it's his own personal use. It's like they're restricting what he can do on his private property. counterargument: cong is dealing with stockpile of food from a lot of farmers that happened before great depression, had to do regulation to stop the depression. b. Private discrimination and commerce: check her slide. Heart of atl and Katzenbach are companion cases, dealt with at the same time. c. What effect did racism have on interstate commerce, why weren't these just local problems: if black people don't have ability to stop somewhere, eat somewhere, they can't travel, that'd stifle the market. Even though these were happening in specific locals in states, people were trying to travel out of state, stay in a motel, in Katzenbach eat food, do things just tied up in interstate cong. So SCOTUS felt that cong had power to regulate private discrimination in this way. Also could cause other industries that might want to move in be reluctant to move to discriminatory places. d. Here, what's the importance of cong record: look into purpose of the law, see what things the legislature considered when passing a law. In Heart of atl, ct mentions: cong has discretion in making these laws, the only way the ct would interfere is if there was no rational basis. e. Filburn sought an injunction to stop enforcement of a monetary penalty on part of his wheat crop which was grown in excess of the national quota. He planned to use the excess for his own personal use f. Why did the court decide that it was a proper exercise of Congress' commerce power to regulate Filburn's personal use of wheat? His personal use is trivial. But what if all farmers were growing personal shares of wheat? What effect would that have on interstate commerce? g. Courts will not take into account the law's "wisdom, workability, or fairness" when deciding whether the legislature passed constitutional laws re: commerce.

A. McDonald v. City of Chicago 1. Chemerinsky notes

a. Here, the ct rejected argument that it should use the privileges or immunities claus to apply the second amendment to the states. "For many decades, the question of the rights protected by the 14th amendment against state infringement has been analyzed under the due process clause of that amendment and not under the privileges or immunities clause. We therefore decline to disturbe the slaughterhouse ruling." Here, ct held that the second amendment is incorporated and applies to state and local govs.

1. Griswold v. Connecticut a. Basic facts: Connecticut law forbade the use of drugs or instruments to prevent conception.

a. How did the court define the right at issue? i. Define it as a right to privacy. More specifically: the court ties it to the right of "intimate association between husband and wife." b. Did the court identify a constitutional basis for the right? Where? i. This is where J. Douglas brings up "penumbras:" § In short: court said that specific rights that are given in the Bill of Rights have emanations that give those rights more "coverage." § Chemerinsky has a better explanation of this c. Even if there was a right being protected, could the state have written its statute differently in order to achieve the same end of curbing access to contraceptives? i. Court mentions that the problem is that the law prohibits the use of contraceptives instead of otherwise regulating their manufacture or sale. The ypothetically, state could've regulated the sale, manufacture of contraceptives (which, currently, states do do). Court here just doesn't like that the state has completely outlawed contraceptives' use. d. Though the court talks about a right of privacy, that right is not specifically enumerated. Instead, the court says that there are "zones of privacy" that can be found in the penumbras of the Bill of Rights. i. Notably, this case doesn't go into detail about how to balance state interests with individuals' interests e. Justice Goldberg Concurrence i. Framers believed there were additional fundamental rights ii. Fears about specifically enumerated rights iii. "It cannot be presumed that any clause in the constitution is intended to be without effect." What does this have to do with the 9th amendment? § Goldberg argues that the 9th amendment was meant to assuage fears about enumerated rights. § "Why can't we assume any clause in the const has no effect:" if we don't assume that 9th had to do with protecting un-enumerated rights, it's not clear what it SHOULD do. v Goldberg uses this to argue, then, that so in situations like this, we should feel free to use 9th amendment. That is, we should use it to recognize other fundamental rights that exist but aren't enumerated. iv. He reminds us how the court determines what rights are fundamental. What is that test? § There is no good test for this § A right is fundamental when it is deeply rooted in our society and viewed as such. v. Does Goldberg say that a fundamental right can never be regulated or encroached upon? If not, how can a state regulate activity that impacts a fundamental right? § From Goldberg, we get the idea that although certain rights are indeed fundamental, they can still be overcome. v A state can still show that it has a compelling interest, can still argue that a statute is necessary (and not just useful for accomplishing state policy) f. Justice Harlan Concurrence i. Would recognize the right (marriage and related intimacies) as a fundamental liberty protected by the 14th amendment that should be protected by more than rational basis. ii. Judicial self restraint is possible by relying on history, basic values of our society, and the role of federalism and separation of powers. § Harlan brings up issue of judicial self-restraint (When people talk about judges being activists, imposing their own will on our laws: that's when judges need self-restraint). g. Justice White Concurrence i. Questions the objectives of the law and doubts the justifications given. ii. At minimum, what does this tell us about the level of review that he would NOT give the CT law? h. Justice Black and Stewart Dissents i. There is no constitutional provision that protects privacy. The 9th amendment isn't supposed to broaden power, but make sure that the Constitution limits the Federal Government to the powers granted expressly or implicitly - the 9th Amendment is being used as a weapon of the federal government against state action. i. Initial results from this case: i. There is a right to use contraceptives that is tied to fundamental issue of privacy and intimate relation that is constructed from various amends. § Contraception is a fundamental right: v The right to use contraceptives is a liberty interest that is closely related to the right to privacy. v The government may not prohibit the use of contraceptives by married couples (Griswold) or unmarried couples (Eisenstadt p. 629). ii. This case established that we look at strict scrutiny when contraception is concerned. § Strict scrutiny standard no longer applies post-Roe.

Notes on Obergefell v. Hodges

a. How is the issue framed? i. What is the potential consequence of framing rights only around who was able to exercise them in the past? b. What 4 reasons does the court give as to why marriage is so important? c. How has marriage changed over time? i. Obergerfell overruled Baker v. Nelson (was dismissed for lack of a fed question/smj) ii. Ct talks about the history of marriage, how it has changed over time, esp in regards to women. These things don't stay static over time, they do evolve. d. Why DPC and not EPC? e. Roberts Dissent i. Role of the Judiciary ii. What is the proper role though? f. Scalia Dissent i. Role of the Judiciary/Democratic Process - some people will be disappointed - it's a feature and not a flaw of our system g. Thomas Dissent i. Importance of procreation ii. Marginalization of people with traditional ideals. Is this a real concern? What harm do they suffer?

Diff tween immunity and privilege:

a. Immunity: somebody is suing pres for something, pres is saying you can't sue me I'm immune from suit. b. Privilege: if somebody is requesting docs and president is like no I don't have to give you those bc I'm invoking privilege

DCC ex: Hughes v. Oklahoma

a. In Hughes: law essentially reserved profiting from minnow fishing exclusively for in-state residents. In Hughes, ct stated "far from choosing the least discriminatory alternative, OK has chosen to conserve its minnows in the way that most overtly discriminates against interstate commerce. The state places no limits on the numbers of minnows that can be taken by licensed minnow dealers; nor does it limit in any way how these minnows may be disposed of within the state." b. Hughes: another discrimination question whether there was discrimination against inter state commerce, if there was a legit state interest and a nondiscriminatory alternative. As in Dean, ct said there was a potential alternative - could have limited the sale of minnows in another way. They were concerned about the practical effect on interstate commerce. Also when they lay out the code, they mention how there's no limit on the amount you could take if infrastate. The regulation was focused on the sale of minnows - they could be sold in OK and could be taken outside the state for any purpose except sale. If OK was really concerned about the environment, there were other ways they could limit their law instead of worrying about where the minnows were sold.

1. June Medical Services LLC v. Russo 591 US_(2020). (almost exactly like the previous TX law - places undue burden)

a. In June 2014, Louisiana passed Act 620, which required "that every physician who performs or induces an abortion shall 'have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced.'" b. Several abortion clinics and doctors challenged Act 620, and while that challenge was pending in the district court, the U.S. Supreme Court struck down a "nearly identical" Texas law in Whole Women's Health v. Hellerstedt (WWH), finding that the Texas law imposed an "undue burden" on a woman's right to have an abortion while bringing about no "health-related benefit" and serving no "relevant credentialing function." c. The law was unconstitutional because it presented an undue burden

A. Slaughterhouse Cases 1. Chemerinsky notes

a. In this case, SC interpreted the 14th amendment's clause "no state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the US" in a very narrow manner. This precluded its use as a vehicle for applying the bill of rights to states. However, in the 20th c, the SC 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 amendment. b. Apart from claims based on the framers' intent, a strong argument can be made that the privileges or immunities clause should be interpreted as applying the bill of rights to the states. The claim wold be that the provisions of the bill of rights are the basic 'privileges' and 'immunities' possessed by all citizens. That argument, though, was foreclosed in the first SC case to interpret the 14th amendment: slaughterhouse cases c. LA gave monopoly in the livestock landing and the slaughterhouse business for NOLA to the crescent city livestock landing and slaughterhouse company. The law required that the co allow any person to slaughter animals in the slaughterhouse for a fixed fee. Several butchers brought suit challenging the grant of the monopoly. They argued that the state law impermissibly violated their right to practice their trade. The butchers invoked many of the provisions of the recently adopted constitutional amendments. They argued that the restriction created involuntary servitude, dprived them of their property without due process of law, denied them equal protection of the laws, and abridged their privileges or immunities as citizens. The SC narrowly construed all of these provisions and rejected the Ps' challenge to the legislature's grant of monopoly. d. Ct said that the purpose of 13, 14th amends was solely to protect former slaves. e. The SC's extremely narrow interpretation of the privileges or immunities clause, however, has never been expressly overruled f. This case essentially nullified the privileges or immunities clause

A. Yick Wo v. Hopkins 1. Chemerinsky notes

a. In this case, SCOTUS declared "the 14th amendment isn't confined to the protection of citizens...its provisions are universal in their application, to all persons within the territorial j without regard to any differences of race, color, nationality; and the equal protection of the laws is a pledge of the protection of equal laws." b. In Yick Wo, a city's ordinancy required that laundries be located in brick or stone buildings unless a waiver was obtained form the board of supervisors. The P alleged that over 200 petitions by those of Chinese ancestry had been denied, but all but one of the petitions filed by non-Chinese individuals were granted. SCOTUS unanimously reversed Yick Wo's conviction for violating the ordinance and explained: "The facts shown est an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of ht eordinances as adopted, they're applied by the public authorities charged with the administration, and thus representing the state itself, with a mind so unequal and oppressive as to amount to a practical denial by the state of equal protection of the laws."

Reconstruction Amendments South Carolina v. Katzenbach (320) Chemerinsky notes

a. In this case, SCOTUS upheld the constitutionality of the Voting Rights Acts of 1965. The Voting Rights Act empowered the AG to suspend literacy tests and other restrictions on voting in those states where less than fifty percent of the citizens had voted or were registered to vote. In addition, once these findings were made, the state couldn't adopt any new standards with regard to voting iwhtou obtaining preclearance from the AG. The ct upheld the constitutionality of the Act as an exercise of Cong's power under section two of the 15th amendment. Although the ct spoke broadly of cong's authority, it emphasized that the provisions of the viting rights act were a remedy for proven violations of the 15th amendment.

Reconstruction amendments Shelby County Alabama v. Holder Chemerinsky notes

a. In this case, the ct, for the first time since the 19th c, declared a fed civil rights statute unconstitutional. Here, ct again considered the constitutionality of key provisions of the voting rights act - but unlike in the prior deciisons, this time the ct declared aspects of the law unconstitutional. Section 2 of the act prohibits state and local govs from having election practices or systems that have a discriminatory effect against minority voters. Lawsuits can be brought to enforce it. But cong believed that this wasn't sufficient to stop discrimination in voting. Cong knew that litigation is expensive and time consuming. Cong also knew that southern states especially had the practice of continually changing tehri voting systems to disenfranchise minority voters. b. Section 5 of the voting rights act provides that js with a history of race discrimination in voting may change their elecitno systems only if they get "preclearance' from the AG or a three-judge fed district ct. Section 4(b) of the act defines those js that must get preclearance, nine states and many local govs with a history of race discrimination in voting. Each time the law was set to expire, cong amended it. In 1982, cong held extensive hearings, modified the formula under section 4(B) of the act, and extended the provisions for another 25 yeears. As the law was set to expire in 2007, cong held 21 hearings and produced a record that is over 15k pges. c. In Shelby, the ct held section 4(B) unconstitional and thereby also effectively nullified section 5 bc it applies only to js covered under section 4(B). Ginsburg wrote a dissent: stressed that race discrimination in voting remains and was documented by congress. Dissent argued that the ct should be deferential to this judgment and the exercise of power by congress.

1. MLB v. SLJ a. Fundamental right? i. Is this about parental rights or ability to pay? Both? b. Suspect class? i. Could the court have reached its conclusion on an equal protection analysis alone? c. Level of review? i. Did the court ever say? ii. Is this more searching than rational basis?

a. In-class notes i. Ct abolished MLB's parental rights when she tried to appeal that, ct said she couldn't afford the ct costs to fight it. HELP MEEE. Bc of parental rights issue, seems like they're considering a fundamental issue. ii. Said it was a violation of EPC to deny this person the ability to appeal, even though she didn't have the funds. Unclear what level of review the ct is using here, but it's potentially rb with bite, potentially intermediate. iii. Takeaway: wealth in and of itself isn't a suspect class, but wealth can lead to an EP issue if the underlying rights are important enough. This is a super murky case, but leads us to a v specific place. Wealth isn't a suspect class, just look at the underlying rights at issue, how important are they. iv. MLB takeaway: there are times when someone could theoretically win on a wealth discrimination claim. Not because wealth in itself is a protected class, gives them a claim. But because of the rights that they claim they're being discriminated against in society bc they're missing out on basic rights, like parental rights, bc you can't pay for your appeal. Do four factors, say this leans in x direction.

Cleburne v. Cleburne Living Center a. Why was there an equal protection claim raised? How were the mentally handicapped people at issue being treated differently? b. Was the group quasi-suspect (and therefore entitled to scrutiny higher than rational basis review?) c. Is mental incapacity immutable? d. Are the mentally handicapped able to function in society? e. Have the mentally handicapped suffered historical discrimination (and continue to)? f. Are they politically powerless? g. What level of scrutiny did the court apply?

a. In-class notes i. How were the mentally handicapped people being treated differently/why was the state saying they needed a special permit to build a home for them: they said they were concerned from ti being across from a high school, didn't want the people to be harmed by the students, also said that the property was on a flood plain. ii. All of those reasons were based on fear and prejudice, ct didn't want to accept those as legit gov interests. iii. What level of scrutiny did the ct apply here: rational basis. Diff tween rational basis applied here and rational basis when we're talking about economic liberty: in this case, the ct actually examined the reasons the state provided, whereas with eco liberty, ct would use its imagination to come up with reasons to support it. iv. Rational basis with bite (here): we're going to just examine your reasons to see if they are even rational. Here, they said that the state's reasons were irrational prejudice - no rational connections tween the interests of the state, the zoning law because it's all based on prejudice for handicapped people. v. FOR OUR PURPOSES: call this, still, rational basis. vi. When we ask about quasi-suspect groups, asking if they're going to get scrutiny higher than rational basis. For our purposes: never apply strict scrutiny on a classification other than race or national origin. But the four factors for quasi-suspect groups (ADD TO FORM): consider these. All of these things, potentially, gives more than rational basis review. If you can answer 'yes' to some of them, then the more likely ti is that your analysis won't be just traditional rational basis. More likely that someone is being discriminated bc of their differences, the more we're led to the conclusion that the ct may need to step in an overturn a law. HOW KNOW IF INTERMEDIATE OR JUST "WITH TEETH" vii. If these four elements are in play, you're going to need to actually investigate the gov's interest, whereas under trad rational scrutiny, don't really do that viii. Hypothetically, if you meet all four of quasi suspect factors, your case would be worthy of intermediate scrutiny.

MS University for Women v. Hogan (1982)

a. In-class notes i. MU for Women: men not allowed to attend the school for nursing. Ct said it wasn't compensating for discriminating barriers, but perpetuating a stereotype of nursing as a woman's job. Might not have reached the conclusion if the program was, for, say, STEM. b. What is a stereotype: i. Personality traits — For example, women are often expected to be accommodating and emotional, while men are usually expected to be self-confident and aggressive. ii. Domestic behaviors — For example, some people expect that women will take care of the children, cook, and clean the home, while men take care of finances, work on the car, and do the home repairs. iii. Occupations — Some people are quick to assume that teachers and nurses are women, and that pilots, doctors, and engineers are men. iv. Physical appearance — For example, women are expected to be thin and graceful, while men are expected to be tall and muscular. Men and women are also expected to dress and groom in ways that are stereotypical to their gender (men wearing pants and short hairstyles, women wearing dresses and make-up. c. Excluded men from the school of nursing. d. State interest: compensatory purpose for past discrimination against women. e. Stats: women earn 90% of nursing degrees in MS and nationwide. f. Court concluded that it's not compensating for discriminatory barriers faced by women but perpetuating a stereotyped view of nursing as an exclusively women's job.

1. Plyler v. Doe a. Fundamental right? b. Suspect class? c. What level of review? d. What were the state's interests? What kind of interests did the majority say the state needed? e. How about the policy? Was it sufficiently related to the interests provided by the state? f. Dissent g. Are tiers of scrutiny more or less helpful than a continuum?

a. In-class notes i. Still didn't characterize education as a fundamental right. But the ct decided it was a problem to deny undocumented immigrant kids an education. It's an EPC issue, singling out one group of kids - doesn't comport with fundamental ideas of justice to punish kids for the decisions of their parents. ii. What were the state's interests: rewatch class for breakdown. Ct said that all the interests' were...tldr, this is an intermediate scrutiny case. iii. We now treat undocumented kids as a quasi-suspect class, they get intermediate scrutiny.

Equal Protection 1. Bostock v. Clayton County (June 2020) a. Facts: i. Bostock - gay - Georgia - 11th Cir said Title VII not violated ii. Zarda - gay - New York - 2nd Cir said Title VII violated iii. Stephens - transgender - Michigan - 6th Cir said Title VII violated b. Issue: Whether Title VII permits an employer to fire someone simply for being gay or transgender i. An employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. ii. Title VII prohibits employers from discriminating against any individual "because of such individual's race, color, religion, sex, or national origin." iii. Discrimination on the basis of sexual orientation or gender identity requires an employer to intentionally treat employees differently because of their sex. No explicit statement of level of scrutiny. However, if discrimination based on sex is intermediate and discrimination based on LGBT status is discrimination based on sex, then LGBT discrimination deserves heightened scrutiny.

a. In-class notes i. Title VII protects against discrimination in the workplace based on many things, including sex. In this case, ct had to decide if sexual orientation discrimination is same as sex and gender discrimination. ii. In deciding wht level of scrutiny discrimination based on sex orientation: the evolving thought is that SCOTUS will consider sex orientation, gender under same heading as 'sex' and give it intermediate scrutiny.

1. United States v. Virginia (VMI) (under intermediate scrutiny) a. Is there a facial classification here? b. Did the policy reflect an important state interest? A substantial relationship between the interest and the policy? Where did the govt fail the test? i. What were the assumptions and generalizations the court made about men and women? c. Why was VWIL not a good alternative? If it were equal, would that satisfy the court's concerns? d. Scalia Dissent e. Ginsberg: Supposed inherent differences are no longer accepted as a ground for race and national origin, but they "are enduring" between men and women. We appreciate inherent differences and they can be cause for celebration, "but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity." i. This is basically why sex discrimination doesn't receive strict scrutiny, but is something that courts are highly suspicious of anyway. There are bio differences (like pregnancy) that don't exist between races, but the differences shouldn't be grounds for limiting equal opportunity

a. In-class notes i. What was this VMI case about? VMI was an exclusively for male institution. US sued them bc they said it was unconstitutional bc it violated EPC under 14th amend. In response, they created VA Women's Institute, a parallel institute for women. The majoiryt held that this was till unconstitutional bc it wouldn't provide women with the same level of education they'd get at the men's institution. ii. Was there a facial classification: yes. School explicitly said male only, no females. iii. What was the state interest they were pursuing here? They wanted to raise military men at a rigorous course that was hard, their justification was that men and women were tought diff - if they admitted women, they'd have to change their curriculum, make it not as hard. What other interest did they mention/some of their other arguments: having a single sex institution allowed them to have diversity and public education - by offering single sex edu, that'd diversify the kind of edu that people could receive. There are important edu benefits people get from pursuing single sex education. iv. There were all of these other schools that were being converted to co-ed. v. There were about three reasons why Ginsburg said there was a lack of single sex-ed options for women: Ginsburg said you wouldn't have to change that much except the dorms, you can keep edu rigorous, if the women can meet that level, you don't have to change the curriculum. Also: schools for women were not equal in their resources and their reputation. Any schools the state may have tried to create were not equal. That essentially undermines the state's interest in creating diverse edu opportunities, bc really there's only diverse opportunities for men. vi. Accommodations: they'd have to make new barracks, but they wouldn't avhe to change the whole curriculum. Some women CAN meet your physical standards, you just need to make it possible for women to try. vii. Ginsburg talks about stereotypes, assumptions that were being made about men and women. What was her point there: it's not that you can't make any classifications based on gender, but you can't make broad generalizations about what women are capable of, how we should be protecting women, what type of education is best suited for men - those are harmful and inaccurate assumptions and generalizations, and the state isn't allowed to make those. ADD TO FORM viii. Potential remedy: if it is possible and acceptable to eliminate discriminatory effects of the past, what was wrong with VWIL as an alternative for women: the military training wasn't there, and it straight up wasn't equal in faculty, facilities, course offering, doesn't have all the benefits of an est school. ix. Main things from this case: intermediate scrutiny standard. x. What's the best argument why sex and race are diff, why sex gets a lower level of scrutiny: there are biological diffs tween the sexs, not between the races. Gives teeth to Ginsburg argument: we're not asking you to make any changes to your curriculum. xi. Scalia: says that intermediate scrutiny doesn't require that whatever is done is narrowly tailored to the state's interest. you just applied a strict scrutiny standard to this intermediate standard issue.

In class notes/breakdown of Hughes v. OK:

a. In-class notes/breakdown i. Hughes v. OK: statute said nobody could ship minnows outside of the state. ii. If have a statute v clearly discriminating, triggers strict scrutiny - in this case, ct will look less favorably on the statiteu. iii. Why did the ct think the law discriminated against inter state commerce: it had diff rules for OK citizens as opposed to citizens from other states - people outside of state couldn't take a commercially significant amount from OK. They were essentially v clearly discriminating, bc said you can't come take too many minnows, can't take our minnows from our waters and go sell them outside of OK. How could the state have protected minnows in a less discriminatory manner (bc this was technically part of a wildlife conservation code) couldn't said that NOBODY could take more than x amount of minnows. Argument why this is fair: nobody owns the minnows, it's a public resource - if goal really was to help this natural resource, should be limiting everybody. Argument of it being fair: theoretically anybody could take as many minnows as they want - maybe this was legit. BUT EVEN SO: can have protected them less discriminatorially. iv. The dissent doesn't seem that they're focused too much on interstate commerce. Are they focused out of state commerce or citizens? Seems like dissent might be considering the wrong kind of discrimination. Dissent is considering discrimination against interstate commerce bc the fact you can still export as many farm-raised as you want they say doesn't adversely affect interstate commerce. The easy knee-jerk to have is that people from other states can't come get these minnows (bc people are the ones that actually act), but our focus has to be on discrimination of inter-state commerce - so yes, people aren't allowed to take these minnows, but it's putting them into commerce outside of OK that is the focus. Focus is on commerce itself, not supposed to focus on citizen specifically - so check your knee-jerk reaction. WHAT??? THIS IS A QUESTION

status based classifications Dred Scott v. Sandford Chemerinsky notes:

a. Invalidated Missouri compromise, precipitated the CW. b. MO compromise: said MO was slave state, but prohibited slavery in territories north of a certain latitude. States and territories below that could decide whether to allow slavery and could make that choice when admitted as states. c. In Dred, SCOTUS declared that the compromise was unconstitutional, broadly held that slaves were property, not citizens. Dred, a slave owed in MO, was taken into IL, a free states. Dred sued the administrator of his old master's estate, said that his residence in IL made him free. d. SCOTUS ruled against Dred. The issue: "Can a negro, whose ancestors were imported into this country and sold as slaves become a member of the pol community formed and brought into existence by the US Const, and as such become entitled to all of the rights, and privileges, and immunities, guarantied by that instrument to the citizen?" SCOTUS said that slaves weren't citizens, thus couldn't invoke fed ct diversity of citizenship j. however, though the ct concluded that it lacked j to hear Scott's suit, it went further and declared the Compromise unconstitutional. SCOTUS ruled that congress couldn't grant citizenship to slaves or their descendants; this would be a taking of property from salve owners without due process or composition. The ct concluded: "The right of property in a slave is distinctly and expressly affirmed in the const...it is the opinion of the ct that the act of Cong which prohibited a citizen from holding and owning property of this kind in the territory of the US north of the line mentioned therein, is not warranted by the const, and is therefore void."

1. The intern who was kidnapped in the last hypo is returning from leave and wants to return to a "contact" position. The prison denies her request and gives her a secretarial position instead. The intern's new boss, Traci, after hearing the story, is furious. Traci files an equal protection claim against the prison, alleging that the intern was clearly discriminated against because of her sex. She demands that the intern be re-instated in the previous position and compensated for her court fees and attorney fees. What is the likely outcome?

a. Issue is that Traci doesn't have standing to bring the lawsuit.

Issue and Rule from Silkwood:

a. Issue: i. Whether a state-authorized award of punitive damages arising out of the escape of plutonium from a. federally-licensed nuclear facility is preempted (conflict or field) b. Rule: i. State law can be pre-empted if (1) Congress evidences an intent to occupy a given field, any state law falling in that field is preempted. (2) If Congress has not occupied the field, state law is preempted if it conflicts with federal law (impossible to comply with both state and federal law OR state law is an obstacle to the accomplishment of the full purposes and objectives of Congress.

Breakdown of Katzenbach:

a. Katzenbach v. McClung i. In Katzenburg, a companion case to atl: ct upheld the application of the act to a small business: a barbecue restaurant in Bham. The ct again emphasized the interstate connections of the restaurant - 46% of the meat it purchased came fro out of state. Ct also found that discrimination by the restaurants cumulatively had an impact on interstate commerce. they sold less itnerstae goods because of discrimination, interstate travel obstructed by it, business in general suffered.

Equal protection heightened scrutiny is only triggered if:

a. Law is facially discriminatory (regarding race, sex, other suspect classifications) OR b. Law is facially neutral and there is: i. Discriminatory impact or effect AND Proof of discriminatory purpose § Yick Wo v. Hopkins considered discriminatory administration of a law. There was a discriminatory effect (almost no Chinese owned laundries were given permits while almost all of the white laundries were) and a discriminatory purpose (they all met the requirements for the permits, but there was a decisionmaker who intentionally denied the permits of only the Chinese laundry owners (and the one woman) that led to the negative effects)

EPC ex - Bolling v. Sharpe Reverse incorporation - what is it, and how does it work?

a. Let's break it down: i. Citizens seeking a redress for a enumerated right, state action: 14th amendment (incorporating bill of rights) ii. Citizens seeking a redress for a violation of an enumberated right, federal action (including D.C.): Specific amendment (1-8) iii. Citizens seeking redress for a violation of a fundamental right/equal protection for a state action: 14th amendment DPC or EPC iv. Citizens seeking a redress for a violation of a fundamental right/equal protection for a federal action (including D.C.): 5th amendment DPC b. What is reverse incorporation? EPC says 'no state shall.' Decided this case around same time as Brown. In this case, ct says that EPC is going to be incorporated against the fed gov. D.C. isn't a state, so we recognize it as being under fed control. So like this challenge in D.C. has to happen under 5th amendment, but basically have same lang. ct says there's no 5th amendment EPC, but DP has a substantive component. A substantive component can be triggered when people are treated differently under the law. Ct says it wouldn't make any sense for their to be protection at state level but not fed level, so going to reverse incorporate DP via the 5th amendment. Lotta controversy about whether this even makes sense. c. Reverse incorporation is a thing, ct has only really don't it once, to incorporate DP to the fed level. The actual process of figuring out the EP issue, or the DP issue, doesn't differ just bc it's a fed or state issue. The question of what part of the const you point to is diff, but the analysis is essentially the same.

1. My notes on the Commerce Clause

a. Long journey to get to this clause. When talking about what commerce is: more about exchanging goods across states, it's about commercial intercourse - about all phases of business, including navigation - is super expansive. b. Const text, Art 1 Sect 8 says "AMONG THE SEVERAL STATES." Scotus, when talking about 'among' = concerning one state, if it has an impact on inter-state activities. i. Three ways to interpret among: 1) concerning more than one state (the one that they went with - the 'middle ground' interp) 2) c. Cong can regulate the channels of commerce. Channels = basically like the broad creation, movement, sale, consumption of merchandise, services, and people. Instrumentalities = transportation networks communication networks, intersate highways, internet - basically everything. d. The main thing that we are concerned about: if something has a substantial relationship to interstate commerce. e. It's not at all in the const how big or small SCOTUS needs to be f. Rational basis review: ct is v differential to cong, feels like it's the best place to come up with eco, social policy bc they can consider all sorts of things when coming up with legislation. g. Brings up 14th amen and title 2: at issue in two of our cases. Gives it for context. 14th amend only applies to states, not private actors - that's the reason we have Title 2

ex of express and implied powers: 1. McCulloch v. Maryland a. Background i. Hamilton proposed a Bank of the US with a $10 million capital (then five times more than all other American banks combined) and the ability to issue paper money. The federal government would have a minority stake in the Bank, but its board of directors would be private individuals, thus ensuring a mix of public oversight and private enterprise. The Bank would be able to lend the government money and safely hold its deposits, give Americans a uniform currency, and promote business and industry by extending credit. Together with Hamilton's other financial programs, it would help place US on an equal financial footing with the nations of Europe.

a. My Notes i. At one time, we didn't have a nat bank. Hamilton proposed it. ii. This case concerned about two things: does cong have power to ceate a national bank, and if so, can states tax the nat bank. iii. Enumerated powers in const are just an outline. Just mean that const doesn't expressly define all of the powers. So the const texts in Art 1, Section 8 are ENDS - cong needs to regulation eco, pay debts. Question is what is the mean sby which cong can achieve those goals. Marshall says the express powers lead us to infer these other powers - for cong to achieve its goals, it has inferred powers so it could do what it needs to to achieve those goals. Necessary and proper clause makes it possible to reach the express ends iv. May states tax nat bank: power to tax includes the power to destroy (a leap, but that's what they decided). Said it'd be wrong for one state to tax the bank which is meant for the goods of ALL the states. v. Main importance of this case: express and implied powers, use of necessary and proper clause; helpful to also note the many const arguments (Marshall talks about const text, the structure, that the const is an outline instead of being super detailed, talks about og meaning and pol theory, pragmatism, the states' power to tax).

breakdown of US v. Lopez:

a. My notes i. Legislature tried to make it a fed offense to own a firearem in a place where you know or should know is a school zone ii. Did they regulate channels or instrumentalities of commerce: they held that this criminal statute had nothing to do with commerce. So ruled in favor of Lopez. What did they say about the channels or instrumentalities: there were three categories - p169. Cong can regulate channels of interstate commerce, instrumentalities involving interstate commerce, or... iii. Said this isn't trying to regulate a channel or instrumentality - isn't about highways or networks, is straightup penalizing possession of a firearm. Have to look at whether the fed offense legislated something that had a substantial effect on interstate commerce (THIRD ONE). What did they then say: said it didn't have a substantial effect on interstate commerce. Argued it did have an impact bc it effects edu, which affects nat productivity, and that it caused/affected crime, which had an effect on markets. But they said that under this reasoning, cong could regulate basically anything, this would go way too far and it seems really tenuous. Here, also, ct was NOT deferential to the cong record - felt like it wasn't rationally related this time around iv. For anything affecting the commerce clause: get a sense of the justifications the ct gave in each of these cases - what were some of the things congress found, are those findings to attenuated, or are they sort of clear, like in Katz and atl. Is the line you can draw clear, or a parade of horribles that just ends up snowballing. v. On exam, she'd give language that something is "unlawful to deliver" in intersate commerce, or have that absent. See if there is a specific j requirement here or not. b. Questions to ask about this case i. Federal offense to possess a firearm at a place the individual knows or should know is a school zone - Did the legislation regulate channels or instrumentalities of commerce? ii. Did the activity being legislated have a substantial effect on interstate commerce? iii. Did the court fairly summarize precedent? What was the importance of the Congressional Record?

1. NFIB v. Sebelius - Commerce: My notes

a. My notes i. Why did they write in the individual mandate - what problem were they trying to solve: a trade-off for preexisting conditions. ii. One issue they said was cost-shifting. If somebody is unable to pay for health care, hospitals still need to provide care. So then hospitals take care of those people and then charge insurers more to cover their expenses, insurers cover that cost by raising premiums. iii. Because the ACA made it so insurers couldn't reject people with pre-existing conditions, and that's going to be more expensive for them, they don't want insurers to increase their premiums to a crzy amount where nobody can afford healthcare iv. If make people pay into the system, can help offset costs. Fiv justices decided cong didn't have power under the commerce clause for this individual mandate. Why: the ct says that regulates commerce presupposes that there is commerce activity to regulate. The power to regulate doesn't include the power to create. They also mentioned the importance of precedent and the power to regulate commerce reaches activity. What did they say about activity v. inactivity: five justices say well if you look at Wickard, the prob was that he was growing too much, not that he just wasn't buying wheat in the market. Him growing it kept him out of the market, that could be aggregate with all other farmers that might do the same thing. v. Individual mandate compels people to be active in commerce. They cite separation of powers concerns - if gov was allowed to regulate inactivity, that would destroy the limits to the fed gov that are in const bc could regulate both what we do and don't do. vi. N and P clause: Roberts quote: you can't just create commerce so you can regulate commerce. The clause isn't meant for that - it's meant to fill in the gap between the ends Cong is authorized to meet. If cong doesn't have the power to create, can't use the power to regulate commerce to create that commerce.

1. Standing definition: a. The question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. Butler's Diagram about standing:

a. Need to distinguish redressable from traceability. Both are causation issues, but it's about the perspective of causation. b. The flow of the diagram: redressable by the court, actual injury, fairly traceable to D's conduct i. Application using the facts of Allen: § Redressability: similar questions in the other direction - what could the court do that would solve the problem? § Actual injury: black children unable to attend integrated public schools § Fairly traceable: IRS is approving racially discriminatory schools for tax exemptions. But how is this the IRS's fault? Those schools are the ones with discriminatory policies. There is so much that is speculative. We don't know how many private schools are receiving exemptions; whether that is the reason the exemption is making private schools discriminatory. How can the court fairly trace the IRS decision to the segregation issue? Maybe if the plaintiffs could show that the IRS decision would have a significant impact on whether or not parents were sending their kids to private schools - but they haven't done that. c. Directly traceable examines the connection between complained conduct and alleged injury d. Foreseeability considers alleged injury and the judicial relief requested. e. Problem p.100: Congress enacts a statute that requires the Nuclear Regulatory Commission (NRC) to "provide adequate training to managers of nuclear plants" in order to lower the risk of nuclear catastrophes. Residents who live near a nuclear power plant file suit against the NRC claiming that the agency failed to adequately train the plant's managers. The NRC moves to dismiss the suit for lack of standing. How should the court rule? i. We don't have facts to suggest anything has actually happened yet. Are concerned about an increased risk of injury. When you play with the question about injury, deciding if there's an injury, play around with facts of has anything happened yet, is there really an injury. NRC would argue that's not an actual injury. With traceable, the concern is that the NRC failed to properly train, focused on connection between training and injuries. Redressability = if the ct ordered better training, what better chance is there to decrease the chance of injury. Know what the elements you need to think about are, what is the argument for and against standing. Remember the right perspective of the test that you're using.

INS v. Chadha: Deals with congressional authority to control once delegated The immigration and nationality act sets out the procedure for deportation and removal hearings. Authorizes the AG to make a decision. Congress left itself a veto provision Section 244(c)(2) to overrule the AG's decision 1. Is the legislative veto provision constitutional?

a. No - Importance of Bicameralism and Presentment (system of checks and balances). If Congress wants to change its mind about delegation, it must amend or revoke a statute through normal processes Powell concurrence - legislature took on a judicial function in violation of separation of powers

what are our takeaways from Youngstown:

a. No SCOTUS case definitively makes one of the approaches, theories of pres power as correct and the others wrong. Depending on the circumstances, the court has considered them all. b. For our purposes, the state of the law is the Youngstown majority opinion. Remember that the president acted without statutory authority and appealing to an inherent power of the president that was generally found in the constitution, as opposed to relying on a specific clause. Use Justice Jackson's concurrence as a guide to identify how the president is acting and when the president's claim to act is strongest or weakest. Ask yourself what kind of zone, on a hypo, an act would fall into. Note also the statutory situation in Youngstown - Cong said explicitly they didn't give him power, so that probably amounts to acting without the will of cong. Look at past legislative landscape, what cong has said, to decide if acting with or without cong's assent, if they've said 'no' or 'yes' to something in a previous case.

contraception and abortion falls under our substantive due process issues. 1. Brief review of substantive due process:

a. Our main concern for substantive due process is the fact that some liberties aren't listed in the Bill of Rights. What level of scrutiny do these liberties get? i. If they are fundamental rights, they are subject to stricter scrutiny. b. Asking "What does liberty mean?" i. Economic Liberty (Freedom of Contract) (not entitled to heightened scrutiny) § Economic liberty is subject to a Rational Basis Review v Legislation is presumed to be valid and will be sustained if the regulation is rationally related to a legitimate state interest. The burden is on the challenger (the person asserting the claimed right) v Highly deferential to legislation. Virtually always results in a conclusion that the challenged legislation is valid. ii. Contraception and abortion (discussed below) iii. Marriage and sexuality c. A legitimate governmental interest considers possible objectives that the legislature might have sought to accomplish its goal. Not just the objective that the legislature actually considered.

Intro to problem p290:

a. Problem p290: Federal law authorizes the Secretary of Agriculture to "establish and maintain minimum standards of quality and maturity" for agricultural commodities. Each year, the Secretary has promulgated a regulation that forbids the picking and shipping of avocados before a certain date, to ensure quality and maturity. California law prohibits the sale of avocados that contain less than 8 percent oil. A trade group representing Florida avocado growers filed suit to enjoin enforcement of the California law against Florida avocados certified as mature under the federal regulations. How should the Court rule?

Slides' notes on DCC

a. Question: Whether the mere grant of Article I, Section 8 of powers to congress divests the state governments of any powers b. DCC Justification: Under the Articles of Confederation individual states were acting as sovereign countries - imposing tariffs and regulations that inhibited interstate commerce. Caused discord among the states. DCC fixes this problem. Conflict stifles commerce. c. DCC Critics: Congress has affirmative power under the commerce clause. It has to exercise that power in order to preempt state law. Should not be able to impact state regulations when not acting.

A. Here's a flowchart to help understand the different levels of scrutiny: 1. What is the classification, facially discriminatory or facially neutral? Then ask what it's discriminating against:

a. Race, national origin, aliens: i. If the text of the law draws a distinction among people based on race of national origin, it is facially discriminatory. ii. If the administration of the law has a discriminatory act and can prove discriminatory prupose: it's facially neutral § This type of discrimination gets strict scrutiny: it's upheld noly if it's proven necessary to achieve a compelling purpose. Burden is on the state and is almost always struck down b. Gender, non-marital children: i. Gender discrimination based on stereotypes isn't allowed, and gender classifications benefitting women designed to remedy past discrimination is allowed. § This type of discrimination gets intermediate scrutiny: it's upheld only if it is substantially related to an important government purpose. The burden of justification is on the state and is demanding. c. Anything else: i. Receives rational basis review: a minimum level of scrutiny. The challenger has the burden of proof. § Ask if the law has a legit purpose § Ask if the classifications drawn in the statute are reasonable in the light of its purpose

A. Griswold v. Connecticut 1. Chemerinsky notes

a. SC has rarely invoked 9th amendment. But in Griswold, J. Goldberg used ninth amend to justify invalidating a law prohibiting the use of contraceptives b. In Griswold, SC declared unconstitutional a state law that prohibited the use and distribution of contraceptives. Law also made it a crime to assist, abet, or counsel a violation of the law. c. Griswold was the executive director of the Planned Parenthood League of Connecticut. Prosecuted for providing contraceptives to a married woman. d. Douglas, in maj, found that the right to privacy was a fundamental right. Douglas, however,r expressly rejected the argument was protected under the liberty of the due process clause. Instead, Douglas found that privacy was implicit in many of the specific provisions of the bill of rights, such as the first, third, fourth, and fifth amends. Douglas then concluded that the law violated the right to privacy in prohibiting married couples from using contraceptives. We wouldn't allow police to search bedrooms for signs of contraceptives - that idea is just crazy. e. It is notable both as to where Douglas found the right to privacy in the Const and as to what Douglas deemed offensive to that right. In an attempt to avoid substantive due process, Douglas, who had lived through the Lochner era, found privacy in the "penumbra" of the bill of rights. This approach has been criticized, hasn't been followed by subsequent cases. It also doesn't achieve Douglas's goal of avoiding substantive due process bc the bill of rights is applied to the states through the due process clause of the 14th amendment; the penumbral approach is thus ultimately a due process analysis. f. Also it's important to note that Douglas didn't focus on a right to avoid procreation; rather, Douglas focused on the need to protect the privacy of the bedroom from intrusion by the police and the ability to control info about contraceptive use. Not until later cases did SC expressly protected access to contraceptives as part of reproductive autonomy. g. Goldberg wrote a concurring opinion emphasizing the 9th amendment as authority for the ct to protect nontextual rights such as privacy. h. Dissent by Black and Stewart: contended that the law was constitutional bc there's no right of privacy mentioned in the const. i. Subsequent to Griswold, SC recognized a right to purchase and use contraceptives based on a right of individuals to make decisions concerning procreation.

Status-based Classifications: A. Korematsu v. US (754-6) 1. Chemerinsky notes

a. SCOTUS first articulated the req for strict scrutiny for discrimination based on race and nat origin in Korematsu, which upheld the constitutionality of the relocation of Japanese Americans during WW2. Ct declared: "All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictinos are unconstitutional. It is to say that cts must subject them to the most rigid scrutiny." b. There is only one situation in which the ct has expressly upheld racial classifications burdening minorities: the rulings affirming the constitutionality of the evacuation of Japanese Americans during WW2. c. Ct accepted the gov's claim that there was a serious risk to nat security from Japanese Americans who were disloyal to the US and that there was no way of screening to identify such individuals. J. Black: "exclusion of those of Japanese origin was deemed necessary bc of the presence of an unascertained number of disloyal members of the group....it was because we couldn't reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group." Korematsu is objectionable bc the gov used race alone as the basis for predicting who was a threat to nat security and who would remain free. This classification was enormously overinclusive.

Scalia's thoughts on DC v. Heller

a. Scalia i. Scalia concluded 2nd amend protects right to keep arms for purposes unrelated to participation in state militia. ii. Scalia focused on what language meant at the time of its ratification § 'The people' means everybody, not just the militia - look at how this phrase is used throughout the const. § 'Arms' - was applied, then as to now, weapons that were not specifically designed for military use, weren't employed in military capacity. § "Carrying" doesn't connotate participation in military action. Historically, can understand this as a right to protect oneself iii. Scalia's aim: to find the og meaning of each word. Was parsing them to see what's the og meaning of 'the people,' 'keep, 'bear,' etc. § What was the significance of 'right of the people:' referring to individuals, people in the political comm, and not a subset of that comm like a militia. § Scalia also talks about what exactly is the substance of the people's right. v He says that this is to have weapons for self-defense, hunting. § Basically digs up 18th c. definitions, 1773 dictionary that defines 'arms,' talks about what it means to bear and to keep. Pulls apart all these diff words, strings them together. iv. Does Scalia ever address whether a handgun would have been anticipated by the framers? He talks about that handguns are commonly used - doesn't say if the handguns are commonly used in 18th c. He mentions 17th c dictionary - 'arms' applied to weapons that weren't specifically made for military use.

14th amendment sections to know:

a. Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. b. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

1. Planned Parenthood v. Casey a. "The essential holding of Roe v. Wade" is reaffirmed. Women have a 14th Amendment liberty interest in deciding to terminate a pregnancy. i. Why does this right exist (where does it come from/what is it related to)? § An interest in bodily integrity. ii. How is a woman's liberty impacted by pregnancy? § Court says that the liberty of the woman is at stake in a sense "unique to the human condition:" she suffers from anxieties, physical constraints, pain. These things that happen to woman's body physically, psychologically relate to her interest in determining what to do about her pregnancy.

a. Section III - Decision to Follow Precedent i. Why did the plurality say that precedent was important here? § The court felt a lot of public pressure around Roe, abortion cases in general. Court was saying that in order to overrule itself, it has to have a valid reason, and it's not enough that there was just a lot of pressure on it to overturn Roe. § If we wanted to overturn Roe, we'd need a really, really good reason. § This was them basically saying we couldn't overturn Roe even if we wanted to. ii. Why did the plurality say that precedent should not be overruled - why did they overrule cases like Lochner and Plessy? § In those cases, the facts were diff; the court had precedential force/very very good reasons for overturning precedent. § To overrule just due to criticism about abortion, in absence of compelling reasons, would subvert the court's legitimacy. iii. How do separation of powers principles weigh into this decision? b. Section IV: How the interest can be constitutionally regulated i. The court draws the line at viability - before that the woman has a right to terminate her pregnancy. ii. The court rejects the trimester framework - replaces it with undue burden standard. What is that standard? § A law is invalid if it places undue burden in the path of a woman seeking abortion - has to help woman's free choice, not hinder it. § UNDUE BURDEN TEST: v "An undue burden is found where a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus. A statute with an undue burden is invalid because the means chosen by the State to further the state interest must be calculated to inform the woman's free choice, not hinder it. A statute which furthers the interest in potential life (protecting the health/safety of the mother or other legitimate state intrest) has the effect of placing a substantial obstacle in the path of woman's choice cannot be considered a permissible means of serving its legitimate ends. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on her right." iii. Acceptable regulations: Further health or safety of the woman iv. Unacceptable: Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion c. The state interest is in protecting potential life and the health/safety of the mother. d. The means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice.

A. Washington v. Davis 1. Chemerinsky notes

a. Some laws are racially facially neutral; those laws are administered in a manner that discriminates against minorities or has a disproportionate impact against them. SC has held that there must be proof of a discriminatory purpose in order for such laws to be treated as racial or national origin classifications b. Washington v. Davis was a key case articulating this req. applicants for the D.C. police force were required to take a test, and statistics revealed that blacks failed the examination much more often than whites. The SC, however, held that proof of a discriminatory impact is insufficient, by itself, to show the existence of racial classification. J. White, writing for th emaj, said that the ct never had held that "a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely bc it has a racially disproportionate impact." The ct explained that discriminatory impact, "standing alone...doesn't trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations. c. In other words, laws that are facially neutral as to race and national origin will receive more than rational basis review only if there is proof of a discriminatory purpose. The ct justified this conclusion, in part, based on its view that the purpose of the equal protection clause "is the prevention of official conduct discriminating on the basis of race." THe Ct also emphasized that allowing discriminatory impact to suffice in proving a racial classification "would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." Cases like Washington clearly est that proof of a discriminatory impact isn't sufficient by itself to prove an equal protection violation; there also must be proof of a discriminatory purpose.

1. A federal men's prison says that women are not allowed to work in "contact" positions in the prison. The prison claims that is because (1) prisons are dangerous places for women and (2) women generally are unable to subdue prisoners. In fact, the prison just had a female intern taken hostage last week. A woman who was denied an opportunity to work in a "contact" position in the prison claims her equal protection rights were violated. What is the likely outcome?

a. Source of her right - 5th amendment, bc this is a federal issue. Is there an equal protection claim here: not super clear. In general, prisons are dangerous, and the gov is basically saying we can't guarantee your safety - the way that they are limiting women's opportunities seems to be substantially related to the gov purpose of making sure its employees aren't harmed by prisoners. There's not a stereotyped reason why women can't work in those positions. If the guard hadn't been take hostage, however, more likely to be an EP issue.

A. Slaughterhouse Cases 1. What are the facts? Butchers claimed violations of : a. 13th Amendment (neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction) b. 14th Amendment: privileges or immunities, equal protection, and deprivation of liberty and property without due process of law 2. Was the purpose of the 14th amendment to transfer protection of rights from the state to the federal government? 3. Court explanation of 13th amendment - purpose was to end African slavery, but is applicable to any kind of slavery > goes toward the argument that any of the amendments are to apply more broadly than to whatever issues they were rectifying 4. 14th Amendment a. Section 1, cl. 1 - overrule Dred Scott by making all persons born in the US citizens of the United States 5. There are two kinds of citizenship at issue in this case.

a. State citizenship and federal citizenship. i. State Privileges and Immunities (p.564) state citizenship gives certain privileges and immunities like the right to acquire and possess property, pursue and obtain happiness and safety. There are more we haven't necessarily figured out, but they're the same type of rights that governments are supposed to protect ii. The US constitution places certain limits on state governments to protect US Citizens (ex post facto, bills of attainder, etc) aside from those, P&I lies with the states b. Federal Privileges and Immunities (p 566) i. Right to be a citizen of the US and the privileges that follow, free access to seaports, demand protection of the federal government over life, liberty, property while on the high seas, peaceably assemble, etc. 2. Was the purpose of the 14th amendment to transfer protection of rights from the state to the federal government? a. Held: No - 14th P/I applies only to "those rights that owe their existence to the Federal government, its National character, its Constitution, or its laws" (p.565) b. Why: The structure and spirit of our institutions has been separate. People have rights as citizens of states and rights as citizens of the United States. The 14th Amendment would also allow Congress to pass legislation to protect the rights of US Citizens (including P/I) under Section 5. c. It would be a radical change and "we are convinced that no such results were intended by the Congress which proposed these amendments" 3. Dissent: The 14th Amendment doesn't make any definitions or create new Privileges or Immunities. It assumes there are P and I and says they cannot be violated by state legislation. What was the point of the 14th Amendment's P/I clause if it did literally nothing? The 14th Amendment expanded bill of rights protection to the states. 4. Today: the P/I clause of the 14th amendment still isn't used to apply the bill of rights to the states. That's done through the due process clause and the "selective incorporation doctrine."

Stevens' thoughts in DC v. Heller

a. Stevens i. Stevens held 2nd is a principally a structural protection to ensure congress can't disarm the state militias. ii. Stevens focused on amend's drafting history. § Adopted to protect the right of the people to maintain a militia. Not applied to civilians. § Looks at comparable provision in state declarations of rights adopted at same time as DOI. These highlight importance of state militias. "to bear" means to act as a soldier and fight. v State consts keep the language, couch it in military settings. 1. Stevens a. Stevens dissent talks more about the natural reading of the text. His concern about the way Scalia was reading the text: i. calls attention to Scalia minimizing the purpose of the preamble. Scalia talks about the preamble like 'yeah, in general, here were founders' concerns regarding a nat army,' but he downplays the significance that Stevens feels the preamble has. ii. Stevens doesn't like that picking apart, feels that you can't define the words in a vacuum, they all need to be read together. iii. Essentially, it's unusual to read the text the way Scalia did. Don't minimize the preamble, you need to start at the beginning - that's not how the court usually reads texts. iv. Also mentions state constitutions and constitutional ratification § State consts: specifically mentioned hunting and self-defense, but they didn't put the second amend with those - they placed it with their sections on militias. § Ratifications: in earlier drafts of the 2nd amend, drafters did write with some specificity 'individual right to bear arms' but that didn't make it into the const. v. Issues with ideas on state constitutions, constitutional ratifications § Butler thoughts: an argument could be made that at the time they weren't that concerned about individual rt to bear arms, were concerned about nat intervention with a militia, but that didn't negate any individual rt to bear arms - that might have been a non-issue for them. § There are diff ways to look at the state consts. § Another way to look at it: the fact that individual lang didn't make it into const doesn't mean it's NOT a right - doesn't mean that it doesn't exist. § Another thing: amici = amicus brief. Experts in social sciences, law, etc are interested in the question before a court, so they create briefs. Amicus briefs. You can find amici for both sides.

Thomas dissent in Grutter:

a. Strict Scrutiny requires: (1) Compelling govt. purpose (2) Necessary (3)Narrowly tailored i. He took issue with the compelling nature of the interest. If war is compelling and rectifying past discrimination is compelling, how does diversity rise to the level of compelling? Is it even a compelling interest to have a law school? An elite law school? ii. The state can't even claim it has a compelling interest because of the attorneys it is producing for the state. Most people leave Michigan after getting the degree.

1. Roe v. Wade (1973) a. Basic facts: Texas law made it a crime to procure an abortion unless it was to save the life of the mother. i. Texas argued that the fetus is a person under the 14th Amendment has has a right to life (beginning at conception) that is protected by the 14th Amendment. § Specifically: 14th amendment refers to "life, liberty, and happiness." TX said that this applies to fetuses. ii. SCOTUS: The Constitution does not define "person" and no one agrees on when personhood begins ("when those trained in...medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer")

a. The Court found that the state has an important and legitimate interest in preserving and protecting the health of the pregnant woman and protecting the health and potentiality of human life. The closer to term, the more compelling the interests. b. For this case, the court adopted a trimester approach (we no longer use this approach, but it was implemented in Roe and Casey): 1) 1st trimester: state may not prohibit abortions, can regulate the same way it regulates other medical procedures (ex: licensed physician) 2) 2nd trimester: state may not prohibit, may regulate in ways that are reasonably related to maternal health 3) 3rd trimester (viability): state may prohibit except if necessary to preserve the life or health of the mother c. Viability is when the state has a compelling interest because there is the possibility of meaningful life outside of the womb. d. Like other fundamental interests, strict scrutiny initially applied to abortions. HOWEVER: post-Roe, the strict scrutiny analysis no loner applies. There is, instead, now a "undue burden" standard. e. Roe found there was a fundamental liberty issue in abortion because abortion was related to bodily liberty and privacy. i. As such, strict scrutiny would've applied. BUT: the 'strictness' decreases the closer a woman got to the 3rd trimester. The closer she got to viability, the easier her interest could be overcome by the interest of the state.

In Wo v. Hopkins, procedurally, if San Francisco's now unconstitutional statute had a legitimate purpose (i.e. for fires, safety, etc.), how does the city go about rescuing that portion of the statute?

a. The city would have to (a) pass a new statute that focuses on the need to prevent fires (or focus on other safety concerns) and (b) make sure that it is not being administered in a discriminatory manner. Practically speaking, it could write the law/policies to indicate that as long as x standards are in place, a permit will automatically be granted. That way, you remove the danger of a court locating a discriminatory purpose.

INS v. Chadha, White's dissent:

a. The legislative veto was placed into statutes with attention to separation of powers concerns - went through regular legislative process and presidential signature. b. This was a tool placed into many statutes and never abused. The constitution is silent on whether it is permissible. The constitution gives our government the flexibility to respond to contemporary needs without losing sight of democratic principles - need to allow congress some practicality i. Isn't this a check on delegated power for congress? 1. White dissent: lotta practical concerns. We use agencies is bc our society is really complex, const gives gov the flexibility to respond to contemporary needs without losing sight of democratic principles. Everybody agreed to this act with the veto the first time around, so really the checks and balances are there - if anybody wanted to take that out, could have been negotiated. Also: White is concerned that cong has this power to delegate but then can't do anything with it. 1. White dissent: bicameralism and presentment is how this statute got passed in the first place. So the branches have already had the power to express disapproval.

Some essential facts on the Slaughterhouse Cases:

a. The portion of the Slaughterhouse case we read (that has never been overruled) is the Supreme Court's rejection of using the Privileges or Immunities Clause of the 14th Amendment to incorporate the Bill of Rights to the states. b. Basically, Slaughterhouse interpreted the 14th P/IC extremely narrowly in sating that the only privileges that the Fourteenth Amendment protected against state encroachment were declared to be those "which owe their existence to the Federal Government, its National character, its Constitution, or its laws." The Due Process and Equal Protection Clauses were developed out later on.

Executive Privilege ex: US v. Nixon "It's not the crime, it's the cover-up" What's going on in this case: Nixon does Watergate, doesn't wanna deliver these tapes bc he's weird and recorded every convo that happened in the oval office. Special investigator asks for them, Nixon says he has special privilege to not turn them over. Watergate was a raid on the DNC. Nixon decided he needed to cover it up.

a. The v first thing the court considers is justiciability. Ct says that it IS a case or controversy bc there is a concrete adverseness. The special prosecutor wanted evidence produced that the pres didn't, that's real adversity. AND it's not a pol question: this case arises in the course of a fed criminal prosecution, which is something that cts often take up. Hear criminal prosecutions all the time, routinely rule on what evidence is admissible in criminal trials. Special prosecutor was granted power to investigate, explicitly granted the authority to contest exec privilege. Recall in other Nixon case, ct was like Senate decides how to try, not us. Here, though, it's v clear that the special prosecutor can contest exec privilege. So deal pretty quick with justiciability question. b. Justiciability. There is a case/controversy (req by Article III) because (1) there is a concrete adverseness the court relies upon to flesh out the presentation of the issues (the special prosecutor wants certain evidence produced that the president does not) and (2) this case is one that arises within the course of a federal criminal prosecution, which is within the traditional scope of article III power (courts routinely rule on what evidence is relevant and admissible in criminal trials). Also, the special prosecutor was granted power to investigate and was explicitly granted the ability to contest executive privilege p. 412 FN 8.

A. Korematsu v. US (754-6) 1. Clarification re: Korematsu - Theories of Discrimination and Scrutiny

a. There are really two theories of Korematsu: a. It was not discrimination based on race, so strict scrutiny didn't apply. The majority said that "Korematsu was not discriminated from the Military Area because of hostility to him or his race. He was excluded because" of who we were at war with. b. The second theory is that it was discrimination based on race, but it overcame strict scrutiny because the compelling governmental interest was the pressing public public necessity re: WWII. The compelling interest was necessary because there were no other alternatives "exclusion from a threatened area has a definite and close relationship to the prevention of espionage and sabotage...curew was inadequate protection and ordered exclusion." i. As your book mentions, under this second theory, Korematsu is the only case post- adoption of the 14th Amendment that survived strict scrutiny despite a facially discriminatory law.

A. Vaccinations 1. Jacobson v. Massachusetts (1905) a. What was the issue in this case? Did the state want people to be vaccinated at any time for any reason? Or was its goal more tailored? b. What power do states have to pass laws? What are the limits to the state's power to accomplish its goals? c. Are there limits to "liberty?" Why or why not? d. Is there a fundamental right at issue? Did the court decide? e. What level of review did the court apply? Why do you think so?

a. This case took place before the court really started outlining "heightened" review. It is possible today that we would interpret this case as applying (and overcoming) strict scrutiny. b. In general, people have a right to refuse medical treatment. c. In Mass, they were mandating the people get vaccinated for smallpox unless you were a kid and a doc said tha you had some condition where you were unfit to get it. People 21 and older were fined if they refused to vaccinate. Jacobson was fined, and he sued. What was the issue that the ct was even trying to resolve: whether Jacobson had suffered a liberty deprivation, and whether the state even has the power under its police power to enact these types of laws to protect public health and safety. They didn't super clear answer if there was a specific liberty interest here - but in general, people do have the right to reject med treatment. Why yes to the second question: it was an issue of public health and safety - there was a smallpox outbreak, and bc officials didn't want the population getting sick with smallpox, wanted people to get vaccinated - so for v clear and specific public health goals. d. States have in their police powers (health, safety, morals, general welfare) the ability to act for health, safety, morals, gen welfare to accomplish its goals. e. Are there limits to "liberty," like here Jacobson was arguing that his liberties were infringed on: yes, there are limits. The ct said that liberty is limited when individual rights need to give way to preserve public health or safety. Aka, in pursuing our common good as people in a society, there are limits to our liberty. We may not agree with those restraints, can argue about them, but in general we all agree that there are restraints that exist, like you have to wear clothes. f. So: ct says that Jacobson doesn't have this impaired liberty interest to not be vaccinated. g. In general, people have a right to refuse medical treatment. Can be overcome by the importance of the gov interest. h. If there was a fundamental right at issue (don't know if this would have gotten strict scrutiny) it was overcome by the importance of the government interest i. IF there was a fundamental right at issue, then it was likely overcome by the the importance of the issue at hand (spread of smallpox), the necessity of vaccines to preserving public health, and the substantial relationship of mandatory vaccinations to resolving the smallpox epidemic. j. However, the court also mentions that regulations can be "so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression." So, even though the law survived scrutiny this time, it is possible under different circumstances an "arbitrary and oppressive" law would not survive either rational basis or higher scrutiny. k. Was there an equal protection violation? What would the classes be? i. Was there an EP violation in Jacobson? And if so, why did it come up: they allowed kids to claim exemption but not adults ADD TO FORM. Ct says basically there are acceptable reasons to draw distinctions between kids and adults. In a way, we're in that place now. In MS, people 16 and over can get vaccine; if younger, can't. EP doesn't say if there's any distinction drawn it's a problem - there has to be a problematic distinction drawn, and here in Jacobson, the ct found tha the distinction between adults and kids wasn't problematic. And that's often the case. l. In Jacobson: ct applied strict scrutiny

1. Problem P.178

a. This was meant to be a commerce question. On the basis of the commerce clause: Parents were in different states. Could argue that interstate commerce could be affected, arguably. Tweaks to be made could highlight the interstate nature. If you feel the act isn't eco in nature and aggregate, is something still happening across states lines where multiple states are involved. This question is to get us to think about what facts could be added that could change some of this, what cts talked about like added a jurisdictional element ot highlight where their power is coming from. b. Lotta people criticize Lopez, ct creating a rule that lets it weasel its way around things. c. Is Congress regulating a channel or instrumentality? (highways? Railroads internet? Cars? Trucks?) d. Is there movement across state lines? e. If not, does the activity have a substantial effect on interstate commerce? f. This question is asking you to consider whether the activity is economic in nature. (Lopez - economic activity can have an aggregate effect if it is economic in nature) g. What are ways you can define the conduct? h. What amendment could fix the issue? i. Consider the "jurisdiction." Limit to payments across state lines. Limit to parents who evade enforcement across state lines. Limit to children in other states. Etc. j. Effect post Lopez/Morrison: Cong has to specifically say in the statute that they're relying upon commerce power for their power to regulate this i. Note on jurisdictional element § Consider slide 22 and the difference between these two: v "It is unlawful to possess a gun in a school zone." v "It is unlawful to possess a gun that has traveled in interstate commerce in a school zone." § Jurisdiction relates to Congress' legislative jurisdiction. Makes sure that the activity being regulated has a connection to interstate commerce.

1. We have two ways to apply the commerce clause: to states and to individuals

a. Title II Civil Rights Act 1964 i. All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin ii. Commerce Clause - may apply to private citizens b. To states: 14th Amendment i. Section 1 § All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ii. Section 5 § The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. § Interpreted by the courts to only apply to state actors (not private) (Civil Rights Cases 1883)

1. US v. Morrison (2000):

a. Very similar to Lopez, the Violence Against Women Act contained a provision that someone who was the victim of gender based violence can sue for civil damages and other relief. b. The court, as in Lopez, found that crimes of violence are not economic in nature. Also like in Lopez, the statute at issue lacked a "jurisdictional element" indicating that it was enacted pursuant to Congress' commerce power. c. The court was (as in Lopez) pushing against Congress' ability to regulate any crimes due to what it felt was an incredibly attenuated basis - the nationwide, aggregate impact had a substantial effect on employment, national productivity, medical costs, etc. d. US v. Morrison: jurisdictional element - Lopez court sort of brings this up. Ct essentially pushes against congress's ability to regulate any crimes using what it felt like was a tenuous basis on the commerce power of cong.

Issue in Youngstown: 1Whether the President was acting within his Constitutional Power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills.

a. Was it an improper lawmaking function as argued by the mills? Or was unilateral presidential action authorized under Article II powers or congressional authority? b. Majority opinion (6-3): unconstitutional because there is no inherent presidential power. The president may only act pursuant to express or clearly implied statutory or constitutional authority. Here, the president did not act according to a statute and the president does not claim to be using an express grant of constitutional power. There IS no implied exec power.

Notes regarding Loving v. VA:

a. What is the right at issue: right to marry. TX statute says that you can't have interracial marriage. b. What was the claimed state interest in limiting interracial marriages: wanted to maintain/preserve racial integrity of its citizens. i. Why did ct reject this, what was wrong with the state interest: marriage is fundamental right, 14th amendment required the choice the marry. To marry or not marry is a choice that resides with the individual, state shouldn't interfere with that. Racial 'purity' is not a valid basis. c. Takeaway: Marriage protected by DP clause of 14th amendment.

Immunity Takeaway: The constitution doesn't provide for immunity. It is judicially created. Be cognizant of what separation of powers means in these cases. Consider how you would analyze separation of powers concerns on an exam. (ex: in Nixon, pres says it's important for exec to be independent - consider what ct says in response to this). Also Consider:

a. When the conduct took place (before? during? after? the term of office) b. What kind of conduct was it? Were they official or unofficial acts? (The timing helps figure this out as well. If someone wasn't in office, it's highly improbable (impossible?) for it to be an official act). c. What would be the effect of the action? Is it going to be more than a distraction? Will it divert their energies so much so that their decision making process might be compromised? Is it going to tie up their time in court or responding to the request such that it would raise unique risks to the proper functioning of government? d. Is the president claiming immunity for a specific reason? Is it more general? When does deference have to be shown? (e.g. Clinton - district court management of cases; ct showed it could show deference to the pres's time, even if decide that for the purposes of due process they need to hear the case - how can district ct still be deferential) e. What is the claim against the president? Nixon and Clinton were specifically about immunity from civil damages.

main questions we'll be considering under executive immunity:

a. Whether Presidents face civil liability for actions taken in their official capacity b. Whether courts may entertain a civil lawsuit against a President during the President's term of office for unofficial actions taken before the Presidents term of office. 2. Important considerations when evaluating these considerations: a. If presidents face no liability, they might not take care to avoid violating individual rights If they do face civil liability, they may hesitate to carry out their duties for fear of being sued

1. NFIB v. Sebelius - Taxing

a. Whether the money that a person must pay under Section 5000A(b) of the ACA for not buying health insurance is properly characterized as a tax or a penalty. b. Why did the majority say this money was not a penalty? c. Why did the dissent say this money was not a tax? d. My notes i. Taxing power: look at taxing power for this case: cong has a variety of options to reach its goals - might not have power under commerce to pass a leg, but might under taxing or spending powers. ii. Under current law, cong can use taxing power to accomplish regulatory objectives, as long as it serves some conceivable revenue-raising purpose. Why, for hypo, was a commerce issue and not tax issue: facts didn't give us a reason to think cong was trying to raise money for any gov programs. iii. Cong usually tries to regulate under commerce power. If going to use tax, has to show there's some revenue-raising purpose iv. Why did maj say this money was not penalty: the ct mentioned that the gov agency collecting the money, IRS, is one that's usually for tax purposes - so it's not meant for punishment. Also: they mentioned the fact that the penalty was also linked to how much money you do or don't make. v. Compare, contrast to a case that discusses exactly what is a tax. vi. Amount due for most people is lss than the cost of insurance, so it's not a heavy burden. Also point to the fact it has no santa requirement. Is collected through IRS through normal means of taxation. vii. With a tax, the main thing we're concerned about is raising revenue. viii. Just because something has a regulatory effect, like taxing cigarettes, doesn't make it penal/penalty Dissent say it wasn't a tax: clear diff tween penalty and tax. Act calls it a penalty. Ct's never held that any sort of monetary burden on someone for not following a law is a tax - it's always been a penalty. 1) we don't care it costs lower than insurance. Penalties are often meant as punishment. And based on where it's found in the statute - not found where the other taxation issues would be listed - found in regulatory section of this law. Also mention that in crim law, we don't always list intent. also says it's illogical to suggest a penalty isn't a penalty just bc there isn't a sianter requirement. Also: IRS collects penalties all the time.

Congressional authority to delegate - Whitman v. American Trucking: 1. Section 109(b)(1) of the Clean Air Act was at issue because it allows the Environmental Protection Agency to "set primary ambient air quality standards the attainment and maintenance of which are requisite to protect the public health with an adequate margin of safety." Requisite = sufficient but not more than necessary 2. Two issues:

a. Whether the statute has delegated legislative power i. What authority does the statute confer? ii. Article I Section 1 of the constitution provides no delegation of those powers, but Congress conferred decision making authority upon agencies and must give them an intelligible principle. b. Whether the statute provides an intelligible principle to which the person or body authorized to act is directed to conform" i. The courts interpret this liberally and almost never second guess congress on this decision. But, the scope of power conferred matters (ex: gain elevators vs whole economy)

J. Jackson concurrence (in Youngstown) - Presidential power and categories of legitimacy: These zones help us figure out what it is we're looking at, help ct figure out how much scrutiny they should be providing for presidential action:

a. Zone 1: Maximum Presidential Power. The president has the authority granted to them by the Constitution and express or implied authorization of Congress. If the president acts pursuant to an Act of Congress, judges should presume that the act is constitutional and the burden rests with the person claiming the act is unconstitutional. b. Zone 2: Medium Presidential Power. The president relies only on the powers granted by the Constitution. Without a congressional grant or denial of authority, there is a question as to whether the power is shared with Congress. An actual test on authority will be dependent on the events and the contemporary theory of law existing at the time. Zone 3. Lowest Presidential Power. President acts in contrary to the will of Congress. Should be heavily scrutinized by courts.

Summarization of all the dissents in Obergefell:

a. all essentially agree with defining the issue so broadly, issue should be one that foucses on same-sex unions as opposed to marriage more generally. Talk about role of judiciary in democratic process. Their general rule about the role of the judiciary v. the democratic process: society has had its definition of marriage for forever. It's not the prerogative of 5 people to change that. Also, separation of powers: is this really the ct's role? Reason we have the ct is when we feel fundamental rights are at issue. Thomas also brings up the importance of procreation. Problem with this: does this mean the state can prohibit marriages between people that can't biologically have kids. b. Could the ct limit plural marriage? What is the limiting principle? Is there one? i. Ct still defines marriage as between two people, but there are a lot of societies that have plural marriage. c. If marriage is limited to a traditional definition, then shouldn't states still be able to prohibit interracial marriage?

In INS case: 1. The immigration act: attorney general makes the ultimate decision in immigration cases, but Cong has a veto provision to overrule the AG's. 2. Issue: if cong has delegated authority, can it still maintain control over what it has delegated: ct says you can't do that through the form of a legislative veto. Why:

a. if you're altering the rights or duties of anybody outside the legislature, either both houses of cong have to agree to it, or have to submit it to exec's approval, bc of checks and balances. When interfering with rights and duties, have to go through the process of checks and balances. b. There's a normal legis of amending or repealing a bill. Have to do that with the legis where they made that delegation decision. Ct can't do that through giving yourself this unconstitutional power. Powell: there's a whole adjudicative process to decide if somebody should be removed. Legis just took it on themselves to decide to veto or not. In short: 1. This case sets out this conversation on checks and balances. Sets out that the part that it alters the rights, duties, rels of people outside the legis branch without going through the const-required process. 3. Another thought: const could say if cong had this power. But it is silent. That indicates that bicameralism, presentment needs to happen, here the legis isn't authorized to act alone.

In Silkwood: Blackman and Powell dissent:

a. the field actually WAS preempted. Blackman sits on the line between conflict and field preemption - talks about effect on safety precuations. Powell brings up silence, that the ct should read silence as pre-emption - leans into Kerr's argument about regulatory effect. Blackman talks about private funds levied by public juries, ds are supposed to have an effect upon regulations. Compensatory ds aren't the question here - states can use their own law to regulate what compensatory ds would look like; but the dissent says the punitive ds in particular have a regulatory effect, and as a result of precedent, in the field of nuclear safety concerns, cong occupies the field and anything that sort of has a regulatory effect on safety concerns is interfering with cong's field.

what are the two types of immunity that the exec officials can have:

absolute immunity and qualified immunity

regarding taxing power in ACA case: a. In ACA case, ct gave another limit on cong's commerce power: it cannot regulate economic inactivity. The majoiryt said that the individual mandate is a tax and within the scope of cong's taxing power. But five justices said that the mandate wasn't a constitutional exercise of the commerce clause power. They said that cong under the commerce clause can regulate economic activity that has, cumulatively, had a substantial effect on interstate commerce. they saw the individual mandate as regulating inactivity, regulating those not engaged in commerce, and thuse xceeeding cong's power. The dissent said that the mandate wasn't really regulating inactivity - they argued that everyone receives med care and thus everyone is engaged in activity. People either purchase insurance or they self-insure. Cong was regulating those who were engaged in the eco activity of self-insuring bc of the way in which it increase health insurance costs for everyone else in society.

b. In Aca case, arguments for why the mandate was a tax: calculated like a tax, collected by the IRS, funds go to fed treasury.

a. Privileges or immunities: we dn't use privilege clause of 14th amendment a whole lot. Rest of the time, just going to be talking about the 14th amendment.

b. Why did feds think it was a bad idea to put bill of rights in const: alright, do we put it in there so everybody knows what's protected - keep it out bc const is meant to limit powers of gov, or keep it out bc any rights that aren't enumerated people think don't exist. c. What do you think about whether the bill of rights was a good idea: probably good. There's just some stuff the gov can't do to you. Devil's advocate: dead hand problem

Chemerensky notes on Marbury:

e. The specific issue in Marbury is whether a section of the judiciary act of 1789 is consistent with Article III. f. Note: Art III never gives the fed cts, expressly, the power to review the constitutionality of fed or state laws or executive actions. But from the country's earlier days, SCOTUS has claimed this power. Martin helped est the SC's authority to review state ct jugments and proceedings. g. Bc of these decisions, the power of judicial review is firmly est and is an integral part of American government, even though it's not expressly authorized in the const' text. h. Marbury: the authority for judicial review of congressional and presidential actions. Est the authority for the judiciary to review the constitutionality of executive and legislative acts. i. In Marbury: SC ruled aginast Marbury and held that it couldn't constitutionally hear the case as a matter of original j. the ct held that although the judiciary act of 1789 authorized such j, this provision of the statute was unconstitutional bc cong can't allow og j beyond the situations enumerated in the const.

Baker v. Carr - Baker gives us the 6 Factor Test To Determine Whether the Political Question Doctrine Applies:

i. (1) whether there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; ii. (2) a lack of judicially discoverable and manageable standards for resolving the issue; iii. (3) the impossibility of deciding the issue without an initial policy determination of a kind clearly for non-judicial discretion; iv. (4) the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; v. (5) an unusual need for unquestioning adherence to a political decision already made; vi. (6) the potential for embarrassment from multifarious pronouncements by various departments on one question.

a. "Test Understanding" Hypo: A rural community has experienced a building boom in the past decade, causing significant strains on municipal services. With a view to controlling residential and commercial building, and stabilizing the town's population, the community enacts a zoning ordinance requiring a two-acre lot minimum for the construction of single-family dwellings. The community also restricts the number of building permits to be issued annually, totaling no more than 50 residential permits and 10 commercial permits per year. According to a city planner hired by the community to conduct a study, if all allowable permits are issued each year, the community will be built out (that is, no more buildable land will be available) within 15 years. A builders association, headquartered in a nearby town, is an organization of family-owned companies specializing in the construction of affordable housing, including single-family homes and small apartment and condominium developments. If the builders association sues to enjoin enforcement of the two-acre lot minimum size requirement for residential construction, on whose injury must the builders association establish standing?

i. A. Builders who have pending projects in the community ii. B. Family-owned construction companies that would have difficulty asserting their own rights iii. C. Home buyers who would like to live in the community. iv. D. Builders association members who build residential property in the community. § Issue is about people's ability to build. A direct eco injury here - builders association constructs home, but there's a two acre size lot requirement. Building homes is adversely affected by lot sizes. I'M CONFUSED ABOUT WHAT THE ANSWER IS

Differing opinions in Casey: i. Stevens would declare the 24 hour waiting period unconstitutional because it denies women equal respect under the law. ii. Blackmun sees the issue as one of equal protection (stereotypical women's role of motherhood)- women are forced to carry pregnancy to term and provide maternal care. He would apply strict scrutiny and says it is more workable than an undue burden standard. iii. Rehnquist would recognize the liberty interest protected by 14thDPC but would apply rational basis. iv. Scalia says it is not a liberty interest and takes issue with the plurality opinion taking bits and pieces from Roe - it's not true to stare decisis. He also discusses how the selection of judges has become focused on this one issue. By taking up the issue of abortion, the court prolongs the fight. a. Application of undue burden standard:

i. An undue burden is found where a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus. ii. A statute with an undue burden is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. iii. A statute which furthers the interest in potential life (or other valid state interest) has the effect of placing a substantial obstacle in the path of woman's choice cannot be considered a permissible means of serving its legitimate ends. iv. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on her right. a. How are abortion cases now analyzed: i. Fact-heavy analysis ii. 14th amendment due process iii. Undue burden standard

When we say "substantive due process" was does that actually mean (referring to the substantive part)?

i. As the cases we read were debating, the initial question in interpreting the 14th amendment was about where substantive rights come from. Substantive rights are the rights themselves as opposed to any procedural aspect. Ex: speech, freedom from unreasonable searches/seizures, liberty, life, etc. ii. It is argued that the Privileges/Immunities clause of the 14th Amendment was supposed to confer the ability for citizens to hold states accountable for violating their US Constitutional rights. However, we know now that we do not use P/I clause for substantive rights, outside of really limited situations (like a state discriminating against the citizens of another state). The 14th Amendment Due Process Clause protects (1) incorporated enumerated rights (2) procedural due process (notice and opportunity to be heard before your rights are deprived - we're not covering this) and (3) substantive due process (we are covering liberty and what is contained within "liberty" in the due process clause)

1. Background to the Commerce Clause: Gibbons v. Ogden (1824)

i. Commerce is more than exchanging goods across state lines. It means "commercial intercourse between nations, parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse". It includes all phases of business, including navigation (which was the issue in Gibbons) ii. "Among" the states is defined as "concerning more than one state", including the ability to regulate intrastate commerce if it has an impact on interstate activities. This requires a case by case inquiry into whether a particular activity has interstate effects. Gibbons also considered 2 other ways to define among that would not have required a case by case inquiry. One way would have said that intrastate commerce was beyond the power of Congress. The other would have defined "among" as "in the midst of." All commerce in the US could be regulated by congress because the states are all "in the midst of" the United States

breakdown of heart of atl v. US:

i. Cong used the commerce power to outlaw private discrimination in employment and public accommodations. In Heart of ATL: ct upheld that constitutionality of Title II of civil rights act, which prohibited discrimination by places of public accommodation. The motel was located in downtown atl and haad 75% of guests from out of state. Ct upheld the application of the act to the motel, which had a policy of refusing blacks. The ct concluded that the evidence showed that discrimination by hotels impedes interstate travel. Also didn't matter that the hotel was meant to be local ' "if it is interstate commerce that feels the pinch, it doesn't matter how local the operation which applies the squeeze."

In Obergefell, what 4 reasons does the court give as to why marriage is so important?

i. Ct gives four reasons why marriage is so important: goes back to person choice and ideas of personal autonomy, it's about dignity and the autonomy of two people to make the choice to get married, talk about right to marry bc it's a two-person union unlike any other in our society, intimate association, its safeguard of children and families, recognizing legal structure to a parents' relationship, stability that is in a child's best interest. Super important to society itself, super important to an autonomy of an individual.

a. In-class notes on Conflict Preemption in Silkwood:

i. DOJ (Solicitor General) argued that an award of punitive damages was preempted because it conflicted with the federal remedy. Why? ii. Why did the court reject this? iii. What did the Powell dissent argue? a. Second question on Conflict Preemption: 'Why' on DOJ question: i. the fed remedy they were referring to = NRC civil fines - talking about that the NRC has civil penalties when the fed standards have been violated. ii. What did the ct say about those civil fnes and whether they conflicted: (dissent) punitive ds serve the same purpose as the NRC fines, and so there was. Why'd the ct feel like there was no conflict: it wasn't physically possible for both to be paid, so they don't conflict with each other.

Dissent in Allen:

i. Feels like parents are requesting direct causal connection that seeps into the substance of the legal claim. Standing is supposed to be 'do people have a stake in what's being brought to court.' Dissent feels like maj is starting to look at issues that would be decided on the merits. § Like, whether the P should get the outcome they're looking for, not that they have a stake in it. Aka, Maj has crossed the line from standing to merit. ii. Whose behavior is ct supposed to change, how are they supposed to do that, will it really change things, who is doing what, what is P asking the ct, if ct did tell IRS to change their policies, those school might still say open. § But is the more apt legal question can these schools exist in the first place? iii. If they had had an actual injury, had really been turned away, still have to determine if that harm is traceable to D's conduct and if that injury could really be helped Note: Even if one can prevail on merits, if they don't have one of the three elements for standing, their case will never proceed. Won't get to the "for what" on anatomy of a lawsuit slide

Regarding the six-part test from Baker:

i. First pol question factor: what does it mean to say that something is "textually demonstrable const commitment...?" § Ex in Nixon, asked a question if senate could create a committee. There is a constitutional commitment on the question of impeachment. ii. Factor 2: SCOTUS says they consider equal protection cases all the time, have a ton of precedent about it. iii. Focus on Factors 1 and 2 of the test for Nixon. Don't worry about the other 4, but do acknowledge that 6 exist

qualified immunity:

i. For Law enforcement, Assorted gov officials ii. Test for this is objective: would a reasonable official have known that his actions violated the P's constitutional rights? Their unconstitutional acts must violate clearly est constitutional rights of which a reasonable official should have known. iii. 5th Circuit is most likely to grant qualified immunity (in New Orleans) iv. Allows police to escape civil liability for violating a person's rights under when those rights are not "clearly established." Courts first ask whether police force was reasonable or excessive. If it was excessive, courts then consider whether the type of force used has been found to be illegal under clearly established precedent. v. Clearly established often means that there has to be a case with a fact pattern similar enough for the official to know their conduct was unconstitutional. Over time, courts have interpreted this very narrowly - some cases need to have almost identical facts.

1. San Antonio Independent School District v. Rodriguez (997, 999) a. Chemerinsky notes

i. Held that disparities in school funding don't violate EPC. ii. In this case, the SC expressly held that poverty isn't a suspect classification and that discrimination against the poor should only receive rational basis review. Rodriguez involved a challenge to TX's system of relying heavily on local property taxes to pay for public education. The result was that poor areas were taxed at high rates, but still had little to spend on education. Wealthy areas could tax at low rates and had a great deal to spend on schooling. The Ps argued, in part, that the disparity in funding discriminated against the poor in violation of the EPC. The SC held that discrimination against the poor doesn't warrant heightened scrutiny. Ct also rejected the claim that the law should be regarded as discriminating against the poor as a group. Powell, writing for the ct,, stated, "a cursory exam, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system mdiscrimiantes against the poor, appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent...there is no basis on the record is this case for assuming that the poorest people, defined by reference to any level of absolute impecunity, are concentrated in the poorest districts. Second...lack of personal resources has not occasioned an absolute deprivation of the desired benefit."

Chemerinsky notes on Allen v. Wright:

i. In Allen, parents of public school kids, black, brought a class action suit challenging the failure of the IRS to carry out its statutory obligation to deny tax-exempt status to racially discriminatory private schools. The Ps claimed two injuries. One was that they and their kids were stigmatized by gov financial aid to schools that discriminate. Ct held that this injury was too abstract to confer standing. The Ps also claimed tha thteir kids' chances to receive an integrated edu were diminished by the continued tax breaks to discriminatory schools. The parents argued that if the IRS enforced the llaw, the schools either would stop discriminating or have to charge more money bc of the loss of the tax breaks. Either way, more white students likely would attend the public schools. The SC acknowleged that this second claim stated an injury, but denied standing based on an absence of causation. Ct stated that respondents' second claim of injury can't support standing bc the injry alleged is not fairly traceable to the gov conduct respondents challenge is unlawful...from the perspective of the IRS, the injury to respondents is highly indirect and results from the independent action of some third party not before the ct. also, ct stated that even though a change in IRS policy might redress the injury that's insufficient for standing bc the IRS didn't cause the segregation. ii. In Allen, critics argue that the IRS could be said to be the cause of segregation through its tax policy to exactly the same degree that eliminating the exemptions would reduce segregation. More generally, commentators question why standing should be denied if the defendant acted illegally and restraining the D's wrongful behavior will cure the P's injury iii. In Allen, ct refused to allow standing to challenge the IRS"s policy of providing tax exemptions to private schools that discriminated on the basis of race. Ct said that the Ps' claim that they were stigmatized by the gov's policy was insufficient to constitute an injury for standing purposes. "Stigmatic injury accords a basis for standing only to those persons who are personally denied equal treatment...if the abstract stigmatic injury were cognizable, standing would extend nationwide to all members of the particular racial groups against which the gov was alleged to be discriminating by tis grant of tax exemption to a racially discriminatory school.

Notes from Chemerinsky on Lujan:

i. In Lujan, the ct expressly noted that the generalized grievance standing barrier reserves matters to the political branches of gov, thereby promoting the separation of powers. Moreover, the generalized grievance standing barrier reflects a desire to exclude Ps who sue entirely out of ideological interests and not on the basis of specific, concrete injuries. ii. In Lujan, ct treated the bar on citizen standing as constitutional. The ct, in an opinion by Scalia, held tha the Ps were asserting a generalized grievance and that cong by statute cannot authorize standing in such an instance. The prohibition against citizen standing was characaterized as being derived from Art III and therefore not suspecptibble to a staturoty override. Lujan has potentially dramatic implications for the many fed statutes that authorize citizen suits as an enforcement mechanism. Lujan appears to mean that these provisions are unconstitutional except in instances where the P can otherwise demonstrate an injury sufficient for standing. More generally, Lujan likely means tha the bar against generalized grievances will be treated as constitutional and not prudential in the future.

Chemerinsky notes on Casey:

i. In this case, SC said that the gov regulations on abortions before viability would be allowed unless they placed an "undue burden" on access to abortions. ii. In this case, SC reaffirmed Roe, again held that the gov can't ban abortions prior to viability. However, the ct ruled that the gov may regulate abortions before viability so long as it doesn't place an "undue burden" on access to abortions. iii. In Roe, ct found privacy as part of the liberty protected under the due process (not in penumbra of rights, as in Griswold). iv. In Roe, ct broke pregnancy into three trimesters. During first trimester, gov couldn't prohibit abortions, could regulate abortions only as it regulated other medical procedures, such as by requiring that they be performed by a licensed physician. During second trimester, gov also couldn't outlaw abortions, but the gov may regulate the procedure in ways that are reasonably related to maternal health.

1. Plyler v. Doe (998) a. Chemerinsky notes

i. In this case, SCOTUS declared unconstitutional a TX law that provided a free public education for kids of citizens and of documented aliens, but required that undocumented aliens pay for their schooling. J. Brennan, writing for the ct, emphasized that "aliens, even aliens whose presence in this country is unlawful, have long been recognized as 'persons' guaranteed due process ofl aw by the 5th and 14th amendments." ii. Ct didn't expressly articulate a level of scrutiny, but it did say that undocumented aliens can't be treated as a suspect class bc their presence in this country in violation of fed law isn't a constitutional irrelevancy. Nor is education a fundamental right. But the ct also made it clear that it was using more than rational basis review. The state's claim of a desire to reserve benefits for its own citizens likely would meet a rational basis test. Thus, it appears that the ct was using intermediate scrutiny in evaluating the discrimination against undocumented alien kids with regard to education. iii. The ct stressed the blamelessness of the kids: they were being punished by being denied an education bc of their parents' choice to bring them into the country. Moreover, the ct also emphasized the importance of edu and the unfairness of leaving kids without this crucial service. Brennan concluded the majority opinion by explaining that it hardly can be argued rationally that anyone benefits from the creation within our borders of a sub-class of illiterate persons many of whom will remain in the state, adding to the problems and costs of both state and national governments attendant upon unemployment, welfare, and crime. iv. The dissent argued that rational basis review was appropriate and that the judiciary should refer to the legislature on matters of how to allocate resources for education. Burger said that heightened scrutiny was inappropriate bc there was no suspect classification and there was no fundamental right. The dissent maintained that "the solution to this seemingly intractable problem is to defer to the political processes, unpalatable as that may be to some." v. SCOTUS hasn't overruled Plyler or even called it into question, though there have been other laws discriminating against undocumented immigrants. In 1994, CA voters approved Proposition 187, which denies all gov services, including edu, welfare, and med care, to undocumented aliens. Under Plyler, this is clearly unconstitutional, at least as to education and likely as to the other services as well. The fed district ct declare most provisions of the law unconstitutional on fed preemption grounds and the case settled while on appeal before the 9th circuit as the state, but the new gov decided not to pursue the appeal.

1. MLB v. SLJ a. Chemerinsky notes

i. In this case, SCOTUS declared unconstitutional a state req that parents pay a fee for preparation of the trial record in order to appeal a termination fo custody. A MS ct entered an order permanently terminating a mother's custody of her kid. The mother sought to appeal from the termination decree, but mS required that hse pay in advance record preparation fees. Bc she lacked funds to pay the fees, her appeal was dismisse.d the ct, in an opinion by J. Ginsburg, found this unconstitutional. Ginsburg began by stressing the fundamental rights involved: "Choices about marriage, family life, and the upbrinign of kids are among associational rights this ct has ranked as of basic importance in our society, rights sheltered by the 14th amendment against the state's unwarranted usurpation, disregard, or disrespect. ii. The ct noted that access to the cts, as reflected in rpior decisions, embodied both EP and DP concerns. The ct said that generally access fees only have to meet rational basis review, but that there is an exception in that access to judicial processes in cases criminal or quasi criminal in nature may not turn on ability to pay. The ct said that proceedings to permanently terminate parental custody fit into the latter category bc termination adjudications involve the awesome authority of the state to destroy permanently all legal recognition of the parental relationship. Thus, the imposition of costs for the record preparation was declared unconstitutional. Even after MLB, it's unlikely that the ct will find such a right in many other instances.

A. Equal Protection 1. United States v. Virginia (819, 821, 824) a. Chemerinsky notes

i. In this case, the SC declared unconstitutional the exclusion of women by the VA Military Institute. VA, in response to an order from the US ct of appeal for the 4th circuit, had created the VA women's institute for eladership at Mary Baldwin Colege. Ct found this insufficient to excuse the institute's gender discrimination; women were still denied an opportunity available only to men. ii. J. Ginsburg applied intermediate scrutiny and said that parties who seek to defend gender-based government action must demonstrate an exceedingly persuasive justification for that action. The burden of justification is demanding and it rests entirely on the state. Ginsburg said that the justification must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. The institute's exclusion of women was found unconstitutional bc it was based entirely on gender stereotypes.

in-class notes/breakdown of city of Philadelphia v. NJ

i. In-class notes/breakdown § City of Philadelphia v. NJ: NJ trying to cut down the amount of cos outside of the state that could use NJ as a dump, argued that it wasn't interstate commerce bc just moving useless trash around. They were like this isn't commerce, it's trash. But ct said that all objects of interstae trade merit commerce clause protection. § Was the law banning interstae movement of waste (keep people from dumping stuff in NJ) a law that was directed to legit local concerns with an incidental or excessive effect on interstate commerce? NJ was trying to be able to protect its natural resources, its space for trash by saying that trash isn't commerce, so we're allowed to protect our land resources by not letting anybody else bring their trash here. But ct said that that was being discriminatory - they do have a state interest, but consider the balancing test - do their actions justify the burden on interstate commerce. § Why does the ct say that that's still excessive: this is an issue that every state has to deal with; all have to deal with it; not fair for NJ to exclude itself. The DCC will protect NJ in the future, just as it protected NJ"s neighbors then, when a state tries to isolate and benefit itself. We all need to share the burden of trash. You can't just act in a self-protecting way. § Main thing from this case: what counts as interstate commerce, movement of waste. There's moving in waste, yes, but NJ's argument doesn't hold up that garbage should be exempted from commerce clause. Reaffirms the policy reason behind placing these limits on states - that states should be happy that one day they too will be protected. Their interests in interstate commerce won't be burdened by other states. ii. Is the interstate movement of waste in commerce within the meaning of the Commerce Clause? iii. All objects of interstate trade merit Commerce Clause protection. Congress can regulate the interstate movement of waste and States are not free from Constitutional scrutiny when they restrict that movement. iv. Was the law banning interstate movement of waste a law that was directed to legitimate local concerns with an incidental or excessive effect on interstate commerce? Is it protectionist (discriminatory)? What was the state interest? Did it justify the burden on interstate commerce?

In-class notes/breakdown of southern pacific co. v. State of AZ

i. In-class notes/breakdown § Dive into 'excessive burden on interstate commerce.' What is an excessive burden, what is interstate commerce as it relates to the DCC. Southern Pacific tells us that ct will invalidate a state law that imposes a burden on interstate commerce that is excessive in relation to legit local interests § State law at issue in this case: how many train cars per train you can have in AZ. Was there anything discriminatory about the law - did they talk about trains only going through other states, where they came from? No. We're not dealing with something that's facially discriminatory, we're dealing with a neutral law - any trains at all, no matter where they're from, that come through AZ need to only have x cars. Legit reasons/concerns AZ had: cutting down the size of trains cut down on accidents, made trains safer. Was it actually safer? No - you had to run more trains because you couldn't have as many cars, so the number of accidents increased. So what was the burden on inter-state commerce: the problem was that even though it was an AZ state law, it extended to other states bc the effects of that law meant that they could only have x cars in, say, TX. Huge efficiency issues, extra costs of operation of trains complying with that limit. Also, they were afraid other states would try to do the same thing. Needed to be a national standard to ensure efficiency. § How do you know to tell the diff tween burden on interstate commerce, need for nat standard: do several things. When trying to decide if there's an excessive burden, go into a balancing test - what's the objective, what's the burden on interstate commerce, is that excessive - if incidental, might be ok. Uniform nat standard is something the cts consider when you have the question of conflicting state laws and workability. In Southern, ct is looking at both balancing test and nat standard. Instead of trying to decide if it's going to be one of the other, might be necessary to consider one limit at a time. Under both an excessive burden and nat standard, violates DCC. § When analyzing excessive burden, look at whatever probs could be caused by state law - inconvenience, if nat standard would fix those problems (if answer is no, but state is still excessively burdening commerce, just talk about an excessive burden on commerce) § Why did the ct say that burden was excessive in Southern: the regulation of the lengths obstructs interstate train operation - have to stop, deconstruct outside of states, effects efficiency and economy, beyond what's plainly essential. There's not a good test for when something is incidental or excessive (what is the interest the state hopes to achieve, has it closely tailored the statute to accomplish that). ii. The court will invalidate a state law that imposes a burden on interstate commerce that is excessive in relation to legitimate local interests. iii. The court invalidated the AZ law regulating the length of trains. iv. What were the legitimate local interests? v. What was the burden on interstate commerce? vi. Why was it excessive?

More Chemerinsky notes on Lujan

i. Injuryr: "The P must show that he has ustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical." ii. Lujan: Ps challenged the fed policy lessening the environmental protection of certain fed lands. Two members of the National Wildlife Federation submitted affidavits that they used land "in the vicinity" of that which was reclassified and that the increased mining activity would destroy the area's natural beauty. SC said that this allegation was too general to est a particular injury, and thus the D was entitled to summary judgment bc of the Ps' lack fof standing. Affidavit at minimum was ambiguous regarding whether the adversely affected lands are the ones she uses. Aka, Ps weren't entitled to standing unless they could demonstrate they used specific fed land that was being mined under the new fed regulations. "a mere interest in a problem, no matter how long standing the interest and no matter how qualified the organization is in evaluatgint the problem, isn't sufficient." § "P who complains of gerrymandering, but who doesn't live in the gerrymanderer district, asserts only a generalized grievance against gov conduct." iii. Injury must be real, not abstract iv. Lujan: SC considered a challenge to a revision of a fed regulation that provided that the endangered species act doesn't apply to a US government activities outside the US or on the high seas. The Ps claimed that the failure to comply with the act "with respect to certain funded activities abroad increases the rate of extinction of endangered and threatened species. The ct expressly applied Lyons and held tha the Ps lacked standing bc they could not show a sufficient likelihood that they would be injured in the future by a destruction of the endangered species abroad. Two of the Ps had submitted detailed affidavits describing their trips abroad and their viewing of endangered animals such as the Nile crocodile, elephant, leopard. The ct said that the fact the women had visited the areas in the past proved nothing, and their desire to return someday in the future was insufficient for standing "without any description of concrete plans or indeed any specification of when the some day will be." J. Blackmun wrote a vehement dissent, lamented that the req that a P have specific plans to return to a foreign country created only a silly formality that P must purchase a plane ticket to sue. Moreover, the dissent challenged the majority's assumption that a person is harmed by the destruction f the environment only if the individual has concrete plans to visit the harmed place. J. Blackmun stated: "It cannot be seriously contended that a litigant's failure to use the precise or exact site where animals are slaughtered or where toxic waste is dumped intoa river means that they cannot show injury." v. Perhaps the most important application of the req for a personally suffered injury is the req that a P seeking injunctive of dec relief must show a likelihood of future harm. Under Lyons: Ps would have standing to seek injunctions only of ongoing practices that were likely to directly harm them in the future. Lyons est that in order for a person to have standing to seek an injunction, the individual must allege a substantial likelihood that he or she will be subjected in the future to the allegedly illegal policy vi. Violations of rights created by statute are sufficient for standing purposes. The interesting question concerning injuries to statutory rights is how far cong can expand standing pursuant to this authority. For ex, the clean air act empowers 'any person' to bring suit to enforce certain pollution control regulations. In Lujan, SC indicates that such broad authorizations for standing are not sufficient by themselves for standing. In Lujan, ct considered a challenged brought under the endangered species act, which provides, in part, that any person may commence a civil suit to enjoina violation fo the act. The ct held that cong could not create standing in the is manner. Scalia stated that to permit cong to convert the undifferentiated public interest in executive offiercers' compliance with the law into an 'indiviual' right vindicable in the cts is to permit cong to transfer from the president to the cts the Chief Exec's most important constitutional duty, to take care tha the laws be faithfully executed. Alternatively, though, the ct may interpret statutes authorizing any citizen to sue to expand standing th ethe max allowed by article 3. Aka, cong is expressly premiting such citizen suits is seen as abrogating prudential reqs and allowing standing so long as it is constitutionally permissible. In Trafficante case, the citizen suit provision was a basis for standing bc Art III's reqs were also met; in Lujan, Art III standing reqs were not satisfied. vii. Req two, causation: P must allege that the D's conduct caused their harm viii. Redressability, req 3: P must allege that a favorable court decision is likely to remedy the injury ix. In Lujan, Ps challenged a change in fed regulation that provided that the endangered species act wouldn't be applied to fed gov activity outside of the US> the ct ruled that the Ps lacked standing, in part bc invalidating the new regulation might not change gov behavior. Scalia, writing for a plurality fo four Justices, said that agencies might not comply with a revised regulation in the future, thus preventing a fed court action from redressing the alleged harm. But if the possibility fo noncompliance by gov officials is sufficientto undermine redressability, countless cases would have to be dismissed bc noncompliance with a judicial order is always a possibility.

absolute immunity for officials/diff types of officials:

i. Judicial functions - prosecutorial functions. Judicial misconduct: Judges have absolute immunity, but that's usually focused on the conduct of their office. So, when judges make crazy decisions, they are generally absolutely immune from civil suits bc they will make decisions a lot of people might like, we don't want judges getting distracted, worried about making hard decisions just bc might get sued. § Ways, then, that we keep judges accountable: v State Judicial Oversight Commissions v Judicial Ethics Rules v Federal Ethical/Judicial Conduct Rules and Investigation processes https://www.uscourts.gov/about-federal-courts/judicial-administration/administrative-oversight-and-accountability v Regular Judicial Processes (appealing decisions) ii. Legislative functions/prosecutors § Prosecutorial misconduct (misconduct by prosecutors): The function matters. If a prosecutor is engaging in "prosecutorial activities" or acting as an advocate in a judicial proceeding, immunity applies. If the prosecutor is acting as an investigator (i.e. like a police officer) or otherwise not acting as an advocate, qualified immunity applies. § The following (and more) may be (and in several states have been found to be) intentional prosecutorial activities entitled to absolute immunity: v Solicitation and subornation of perjured testimony v The withholding of evidence (esp. exculpatory) v Falsification of evidence v Coercing witnesses to give false testimony v The introduction of illegally-seized evidence at trial § Remember that immunity does not mean there are no remedies. Prosecutorial misconduct could lead to exclusion of evidence, dismissal of charges, mistrial, right to appeal, Bar complaint (suspension/loss of license to practice). Only one prosecutor has ever been jailed. iii. Presidential functions § Nixon v. Fitzgerald: immune from civil ds based on official acts; not immune from criminal charges stemming from official/unofficial acts § Clinton v. Jones: acts taken prior to presidency (unofficial acts) not given absolute immunity from civil litigation; no right to delay lawsuits for private acts, even while serving as President § Trump v. Vance: the president isn't absolutely immune from state grand jury subpoenas - such subpoenas aren't subject to a heightened standard of review

IN-class notes on Field Preemption in Silkwood:

i. Oklahoma law permitted punitive damages awards in tort actions - Silkwood's estate sued to recover for contamination injuries to her person and property. ii. Atomic Energy Act (federal) occupies the field of nuclear safety concerns. iii. What was the legislative purpose of making this a federal issue instead of one that the states could regulate? iv. Is there evidence the legislative purpose related to prohibiting states from creating remedies? v. What did Kerr-McGee argue? Was the Oklahoma law within the prohibited field of nuclear safety concerns? vi. Why did the court disagree? vii. Why did the Blackmun/Powell dissents argue that the field was pre-empted?

Can you further explain a positive right v. a negative right?

i. Our Constitution is built around the idea of negative rights. The government (and at certain times, private citizens) may NOT infringe your right to certain things (ex: speech, fundamental liberties, equal protection, etc) without an excellent reason. However, that doesn't mean that the government needs to GIVE or make it EASIER for you to exercise your rights (ex: give you a platform on which to speak, pay for an abortion, give you free birth control, etc). The main argument against the distinction is that for many, their rights are meaningless without assistance to be able to access their rights. ii. The arguments get tricky when you get really close to the line between the two. Like we've been discussing, the structure of the question matters. iii. For example, if the government mandates segregation then it is clearly violating equal protection (Brown v. Board - we're reading this on March 25). If the government doesn't intervene when public schools close to avoid integrating and become private schools instead, is it a violation of equal protection for the government not to intervene? Is this the government infringing upon the right to non-segregated schools by NOT forcing those schools to integrate? Or does this get to the positive right of someone to attend an integrated school? If the right is framed as negative, then the government is doing something to burden your right. If the right is framed as positive, then the government must provide you with the means to access your right. If the right is framed as negative, then we must consider the state interests and whether they're sufficiently important or compelling to justify the state's action. If the right is framed as positive, then the state had no obligation because it hasn't infringed on your rights. iv. This is often a common misconception in the US, because we talk about having a "right to" something (positive) rather than a "right to be free from" (negative) something. Some countries have a right to healthcare, housing, food, potable water, etc. We don't have any of that. There are fabulous arguments why we should. But because of the way our constitution is written and our country was founded, the question will ultimately come down to whether it is specifically mentioned in the text or whether it is a liberty interest that is "so deeply rooted in our history and tradition as to be fundamental" (or whether it can be read into any other part of the constitution - ex: DPC right to life; EPC; or something else). If the answer is yes, then the government may not INFRINGE that right without an excellent reason. Positive and negative rights are not something you need to articulate on the exam. They're a tool that some of you might find helpful in conceptualizing the question at issue

1. Cleburne v. Cleburne Living Center (848-9) a. Chemerinsky notes

i. Rational basis test. In general, ct has been enormously deferential. In this case, ct used rational basis review to invalidate a zoning ordinance that prevented the operation of a home for the mentally disabled. ii. SCOTUS declared unconstitutional a city ordinance that required a special permit for the operation of a group home for the mentally disabled. Ct expressly held that raitonal basis review was the appropriate standard for evauating gov actions discriminating against the disabled. Ct nevertheless declared the ordinance unconstitutional. The city offered a number of justifications for ht elaw; the ct concluded either that they weren't legit purposes or that the ordinance wasn't a reasonable way of accomplishing the goals. For ex, the city argued that the property owners in the area opposed having a facility for the mentally disabled, and the city expressed concern that students from a junior high school across the street might harass occupants of a group home. Ct held that these justifications were based on prejudices against the mentally disabled and that indulging such private biases isn't a legit government purpose. The city also contended that the home was located on a five hundred year flood plain. Ct dismissed this concern bc in the same area the city allowed facilities such as nursing homes, homes for convalescents and the aged, hospitals, and sanitariums. Likewise, ct rejected the city's concern over the number who would live in the home bc no similar restrictions on size existed for nursing homes, boarding houses, fraternities, or others

reasons for standing:

i. Reasons for standing: § Standing is the determination of whether a specific person is the property party to bringa matter to the ct for adjudication. Positive of standing: promotes separation of powers by restricting the availability fo judicial review. v In Allen, ct declared that standing is built on a single idea, ie the separation of powers. Keeps judicial process from bing used to usurp the powers of the pol branches. § Second reason for standing: serves judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome. § Standing also consrrves the ct's 'political capital' - they'd lose the confidence o fhte people if they just went crazy § Fourth reason for standing: serves the value of fairness by ensuring that people will raise only their own rights and concerns and that people cannot be intermeddlers trying to protect others who don't really want the offered protection

Chemerinsky notes from Griswold:

i. SC has rarely invoked 9th amendment. But in Griswold, J. Goldberg used ninth amend to justify invalidating a law prohibiting the use of contraceptives ii. In Griswold, SC declared unconstitutional a state law that prohibited the use and distribution of contraceptives. Law also made it a crime to assist, abet, or counsel a violation of the law. iii. Griswold was the executive director of the Planned Parenthood League of Connecticut. Prosecuted for providing contraceptives to a married woman. iv. Douglas, in maj, found that the right to privacy was a fundamental right. Douglas, however, expressly rejected the argument was protected under the liberty of the due process clause. Instead, Douglas found that privacy was implicit in many of the specific provisions of the bill of rights, such as the first, third, fourth, and fifth amends. Douglas then concluded that the law violated the right to privacy in prohibiting married couples from using contraceptives. We wouldn't allow police to search bedrooms for signs of contraceptives - that idea is just crazy. v. It is notable both as to where Douglas found the right to privacy in the Const and as to what Douglas deemed offensive to that right. In an attempt to avoid substantive due process, Douglas, who had lived through the Lochner era, found privacy in the "penumbra" of the bill of rights. This approach has been criticized, hasn't been followed by subsequent cases. It also doesn't achieve Douglas's goal of avoiding substantive due process bc the bill of rights is applied to the states through the due process clause of the 14th amendment; the penumbral approach is thus ultimately a due process analysis. vi. Also it's important to note that Douglas didn't focus on a right to avoid procreation; rather, Douglas focused on the need to protect the privacy of the bedroom from intrusion by the police and the ability to control info about contraceptive use. Not until later cases did SC expressly protected access to contraceptives as part of reproductive autonomy. vii. Goldberg wrote a concurring opinion emphasizing the 9th amendment as authority for the ct to protect nontextual rights such as privacy. viii. Dissent by Black and Stewart: contended that the law was constitutional bc there's no right of privacy mentioned in the const. Subsequent to Griswold, SC recognized a right to purchase and use contraceptives based on a right of individuals to make decisions concerning procreation.

another ex of DCC: City of Philadelphia v. New Jersey

i. The obvious threshold issue under the DCC is whether the state or local law affects interstae commerce. If the state or local law affects interstate commerce, then the dormant commerce clause may be applied. The key initial question is if the state law discriminates against out of staters or whether it treaters in staters and out of staters the same. In Philadelphia v. NJ, the ct reviewed a NJ law that effectively kept landfills in the state exclusively for NJ's use by preventing the importation of any wastes from out of state. ii. In Philadelphia v. NJ, we get an ex of laws that limit access to state resources to in staters. In this case, the state attempted to reserve its scarce landfill space for in-state refuse. The ct found this to be an impermissible protectionist action and declared the law unconstitutional

As we were analyzing the second hypo. question, I realized we basically leaned to the side that regardless of a judicial bypass clause, the statute would be unconstitutional based on Casey. Should this be the way we approach an exam question? I'm so used to an analysis of making the argument for both sides, but sometimes there seems to be an obvious yes or no question such as this one where cases can lead us to the answer.

i. There are some questions (like the midterm and the hypo you're referencing) that push you toward a certain answer. Despite all of the "it depends" language in law school and lawyering in general, there are some questions that have answers. You need to know the law well enough to know whether the question you're answering as a solid answer. ii. If I presented that in the form of an essay question and not multiple choice, you would still have room to present the other side's argument, but ultimately that other side would fail based on the law.

a. Is the constitution actually colorblind? Wouldn't there be negatives for a strictly blind constitution?

i. This is a complicated question. The constitution has parts that are not colorblind (sections relating specifically to slavery or the reasons for the 13-15th amendments/the text of the 15th Amendment itself. But generally speaking, the goals we have arguably working toward since passing the 14th amendment are to a place of "formal equality" where everyone is treated identically under the law. This is why "substantive equality" or equitable treatment is so difficult to implement. When we discuss issues like pregnancy and affirmative action based on race or sex or other identity, the goal is different treatment to further goals of a level playing field, as opposed to just treating people the same, regardless of history.

Can you show the relationship between non-fundamental/enumerated rights getting rational basis review vs. fundamental right receiving either heightened/strict scrutiny? (If this doesn't make sense I'm sorry.)

i. This is one place especially where I want you to pay close attention to what we say in class vs a supplement. Some supplements simplify the concepts by giving all fundamental rights strict scrutiny review. That may be the position you take on a bar exam and that may even be how SCOTUS occasionally talks in retrospect about some of its cases, but since you're just starting law school and nuance matters, that's not really accurate. That's just not what the court has done. ii. In our Due Process jurisprudence so far, we have: § Enumerated Rights (Amendments 1-8) § Fundamental Rights (liberty) § Non-fundamental rights (claimed liberty interests that the court has rejected - economic) iii. The types of scrutiny § Rational Basis Undue Burden § Heightened Scrutiny Strict Scrutiny iv. Rational Basis is the lowest level of review. Heightened scrutiny is anything above rational basis. More specifically, in this class we have covered undue burden and strict scrutiny as the two types of heightened. v. So far we know: § Enumerated rights = Strict § Fundamental contraception = Strict § Fundamental abortion = undue burden § Fundamental marriage= heightened scrutiny vi. Loving just said "the right to marry cannot be "restricted by invidious racial discriminations." It is unclear whether that merited heightened review but with the court's language on how fundamental marriage is + subsequent developments (notes after Loving) + Obergefell, we give marriage restrictions heightened scrutiny. vii. Fundamental sexual privacy = heightened (Lawrence - the court didn't say, but discussing as a fundamental liberty)

Question: why do you think that sexual orientation/ gender identity is not grouped with race under strict scrutiny? Do you think it's because the judiciary thinks these things can be faked, that they are a choice, etc?

i. We will get to this on Tuesday, March 30. The short answer is because sexual orientation and gender identity are considered to be inextricably tied to sex/gender and sex only receives intermediate scrutiny. It receives intermediate scrutiny in part because we are less suspicious of sex as a grounds to discriminate than race, in part because there are some (though people debate the extent to which this is true, esp with advances in technology) biological differences between sexes which make differentiating between sexes reasonable in ways that it would be unreasonable to differentiate between races. Scholars argue about this a lot.

1. When a fundamental right is at stake: a. The court considers:

i. Whether the government has a sufficiently important justification for the interference (on individual liberty)Whether the government could have achieved its goals without interfering with the right a. Griswold didn't identify the level of scrutiny, the interests that the state said were advanced, or explain whether the state could have accomplished its goals in another way. Later cases conduct this analysis.

Why does ct treat Obergefell as a DPC issue and not EPC?

i. Why DPC issue and not a EPC issue? Marriage is a fundamental right. Their concern: if a statute is written in a particular way, then you can still essentially write it so the purpose is to discriminate based on some classification, when really they're trying to focus on this as a fundamentl right available to anybody. ADD TO FORM Remember: with Lawrence, ct wanted to recognize it as a fundamentl liberty interest bc if not, legislature could continue to infringe upon people's rights as long as it wasn't facialy discriminatory. Here, this is ct trying to emphasize the right at issue and protect against future state action by writing a facially discriminatory law meant to discriminate against some people and not others

Chemerinsky notes on WIckard v. Filburn:

i. Wickard: under the Agricultural Adjustment Act, the secretary of agriculture set a quota for wheat production and each farmer was given an allotment. Farmer Filburn owned a small dairy farm and grew wheat primarily for home consumption and to feed his livestock. It went over his allotment and was fined. He claimed that the fed law couldn't constitutionally be applied to him bc the wheat that he grew for home consumption wasn't part of interstate commerce. The ct upheld the application of the law and ruled against Filburn. They rejected the limits on the commerce power that were enforced in the earlier era. The ct upheld the application of the Agricultural Adjustment Act to homegrown wheat bc of the cumulative effect of that wehat on the nat market. The ct explained that homegrown wheat was the single most variable factor in the wheat market and that it could account for more than 20% of production. Therefore, even though Filburn's wheat only had a negligible impact on interstate commerce, Cong could regulate his production bc cumulatively, homegrown ehat had a substantial effect on interstae commerce. Even though his own contribution to the demand for wheat might have been trivial, that wasn't enough to remove him from the scope of fed regulation where his contribution, taken together with that of many others similarly situation, was 'far from trivial.'

a. I'm super confused about how we would use the takeaway from Plyler (wealth, by itself, isn't a suspect class , but wealth can lead to an Equal Protection issue depending on how important the rights involved are) in an actual analysis. If we had a hypo where the affected group is distinguished by their wealth/lack of wealth, would we just need to say that wealth isn't a suspect class, and therefore not due intermediate or strict review, but then give a short paragraph about how that, depending on the rights at stake, they could still be due a higher level of review?

i. Yes, wealth is not automatically a suspect class. But when the underlying right is fundamental wealth may be a factor in favor of finding an equal protection violation where the law may have otherwise been permissible. ii. Ex: the state requires that someone spend 30% of their income on a marriage license. If marriage is a fundamental right and 30% is drastically different for someone who makes 10,000k/year and 100,000k/year there may be an EPC issue

redressability issue in Lujan:

i. if Ds of wildlife successfully challenge the regulations, sec of interior would have to revise the regulations. If granted their request, ct is essentially telling the sec to revise the regulations. But would that really fix their problem: ii. Debatable if agencies working on overseas projects would even be bound by sec's regulations i. the money received for x project is only like 10% of what they're afraid is harming these animals - you take that away, the project will probably still go on, still hurt the animals. Changing the rule probably wouldn't have any real effect.

another ex of DCC: Southern Pacific Co. v. State of Arizona

i. regarding state laws limiting train size :ct will evaluate state laws on a case by case basis, considering the specific evidence as to the safety benefits of the laws compared ot their burden on intersteate commerce. ii. In southern pacific, SC declared unconstitutional a state law that limited train lengths to 14 passenger of 70 freight cars. The ct said the enforcement of the law in AZ must inevitably result in an impairment of...efficient railroad operation bc the railroads are subjected to regulation which is not uniform in its application...the carrier must conform to the lowest train limit restriction of any of the states through which its trains pass, whose laws thus control the carriers' operations both in and out of the state. The ct deemed the law unconstitutional bc it said that viewd as a safety measure, it affords at most a slight and dubious advantage over unregulated train lengths. Aka, ct decided that the AZ law put a substantial burden on commerce but did little to enhance safety.

Notes regarding Silkwood: a. How did the plutonium escape: a problem with the safety equipment that Silkwood was using, plutonium got on her, her roommate, everything. Ct lays out the rule: state law can be preempted if...ON SLIDE. i. Silkwood got de-contaminated, then got killed in an unrelated car crash. Her estate sued Kerr based on tort law principles to recover from the contamination injuries of her person and properties. We're concerned that there is an OK law that allows for punitive ds and if that law is somehow preempted by fed law. b. Legislative purpose of making the regulation of nuclear safety a fed issue instead of oen that the states could regulate: they said tha the technical safety considerations were so complex it wasn't likely any state would be ready to deal with them in the foreseeable future (when the act was passed). i. What did ct say about remedies and if they relate to nuclear safety: combo of cong's silence on the point and fed remedies for people who have been harmed with safety concerns. a. What did Kerr argue about whether there was field preemption:

i. they argued that punitive ds in their own way can force regulation of industries, so allowing punitive ds allowed states to impact regulation of nuclear energy. Aka, bc punitive ds deter and punish conduct, they argued that that has a direct relationship to nuclear safety and could have their own regulator effect. Why did the ct reject this argument: p286, they call back to congressional intent, and their silence, that cong assumed that remedies would be available. Also said that the regulatory consequences that cong would have been ok with - would have been okay with the ds regulatory consequences.

i. Whenever morality arguments happen post Lawrence: can argue there are other reasons besides morality to say certain behavior is not lawful. Phrasing in Bowers v phrasing in Lawrence:

if you phrase the issue in a way that is more exclusive, focused on a minority group, the odds of that being grounded in history and tradition is very small. So if our history is one of Christianity, which prioritizes monogamous rels tween people of diff sexes. Phrasing of Bowers makes it v clear what justices, society felt about sexuality at that time. With Lawrene's diff phrasing, could talk about how Bowers misstates history of same-sex rels, talk about the real issue at play.

1. Conflict preemption is much narrower than field preemption. i. Ct says that paying both fed fines and state imposed punitive ds are NOT physically impossible, both can happen, and since both can happen, there's no conflict preemption. In Silkdwood, Powell about this says that punitive ds conflict with the fundamental concept of comprehensive fed regulation. But the maj didn't find that that happened here. Dissent though felt that it got in the way of comprehensive fed regulation more broadly Silkwood highlights:

it's really important how you define exactly what the field is that cong is regulating. Aka, 'nuclear safety concerns' - if arguing for Kerr, you lean into the regulatory effect of whatever is happening, say that the effect of the law is butting into cong's lane. When looking at conflict preemption, looking more specifically at 'can these things both exist in the same timeline.' And/or is the overall purpose totally undercut by whatever the state is trying to do.

breakdown of the three issues in Marbury (j. J. Marshall in marbury structured the opinion around three questions: 1) does marbury have a right to the commission 2) if so, do the laws of the USA afford him a remedy 3) if so, can the SC issue this remedy):

k. First question :Marbury had a rt to the commission bc all appropriate procedures were followed. l. Issue two: "the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. Said that judiciary could provide remedies against the executive when there's a specific duty to a particular person, but not when it's a pol matter left to executive discretion m. Issue 3: ct again made distinction between ministerial acts, where the executive had a duty to perform, and pol acts, within the discretion of the executive. Judicial review, including mandamus, was deemed appropriate only in the former realm. Marbury est the power of judiciary to review the constitutionality of executive actions. Some matters, like whether to veto a bill or who to appoint to an office, are entirely within the president's discretion and can't be judicially reviewed. But where the executive has a legal duty to act or refrain from acting, the fed judiciary can provide a remedy, including a write of mandamus.

heightened (undefined) scrutiny under DPC:

marriage, sexual privacy

More Chemerensky notes on Marbury:

n. In Marbury, J. Marshall est judicial review while declaring unconstitutional a statute that he read as expanding the ct's powers. The particular statutory provision invalidated was minor, and Marshall's holding was a victory for his opponents. o. Marbury est the SC's power to review the constitutionality of fed executive actions and of fed statutes. Martin v. Hunter's Lessee was key in est the ct's authority to review state ct decisions. Though the const doesn't explicitly say that the SC may review state ct decisions, the judiciary act of 1789 provided for the SC review of state ct judgments.

Chemerensky notes on Martin v. Hunter's Lessee

p. Martin: in this case, there were two conflicting claims to land in VA> Martin claimed title to the land based on inheritance from Lord Fairfax, a British citizen who owned the property. however, Hunter claimed that VA had taken the land before the US had made treates with the UK to protect the rights of British citizens to own land in the US. Hence, Hunter argues that Martin didn't have a valid claim to the property. VA ct of appeals ruled in favor of Hunter. SCOTUS reversed the VA decision, held that the fed treaty was controlling and that it est Fairfax's ownership and thus the validity of inheritance. VA ct said that SC lacked authority to review state ct decisions. SC then said it had authority to review state ct decisions. J. Story argued that the const creates a SC and gives cong discretion to create lower fed cts. But if cong chooses not to est such tribunals, then the SC would be powerless to hear any cases, except for the few fitting within its og j, unless it could review state ct rulings.

explanation of "discrimination" in Hughes v. OK:

§ Remember that when discussing state and congressional powers to regulate - we were discussing the commerce/dormant commerce clause. § We are going to discuss some of this later, but part of the reason I re-emphasized commerce in Hughes v Oklahoma (the minnow case) is because it is easy to think of that case as saying that Oklahoma is discriminating against citizens of other states, rather than the sale of minnows outside of Oklahoma. § The Privileges and Immunities Article IV, Section 2 of the Constitution states that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." This clause prohibits discrimination against out-of-state citizens. SCOTUS has interpreted this clause as prohibiting a ban on interstate travel. § We will discuss this clause briefly when we discuss rights and liberties. P&IC has not been used to recognize rights to the extent that the Due Process Clause of the 14th Amendment has. § In short: states are limited to affecting interstate commerce, you're always asking about what's being bought, sold. Always ask how commerce, trade comes in. § The Privileges and Immunities clause is what governs citizens of other states, stops discrimination against citizens from other states. Don't touch on that yet. In short: do NOT mix up commerce and people bc there's a specific part of the const that deals with people. Privileges and immunities clause comes up when you're talking about interstae travel - one state can't forbid citizens from another state from traveling inside of it.

i. Three standing reqs: In addition to the three reqs, ct has identified three prudential standing principles:

§ ct has said these aren't based on the const, but instead on prudent judicial administration - and unlike constitutional barriers, congress may override prudential limits by statute. First, a party generally may assert only his or her own rights and can't raise the claims of third parties not before the ct. second, a P may not sue as a taxpayer who sharea grievance in common with all other taxpayers. However, the SC has also indicated that the bar on citizen suits, obviously quite similar to the limit on taxpayers suits, si constitutional and not prudential. Third, a party must raise a claim within the zone of interests protected by the statute in question.

•The portion of the Slaughterhouse case we read (that has never been overruled) is the Supreme Court's rejection of using the Privileges or Immunities Clause of the 14th Amendment to incorporate the Bill of Rights to the states.

•Basically, Slaughterhouse interpreted the 14th P/IC extremely narrowly in sating that the only privileges that the Fourteenth Amendment protected against state encroachment were declared to be those "which owe their existence to the Federal Government, its National character, its Constitution, or its laws." The Due Process and Equal Protection Clauses were developed out later on.

•What is the significance of the court's discussion of "state rights" and "federal rights" in the slaughterhouse case?

•For our purposes, P/IC is not tested. However, as your book states (p.570), we use P/IC today basically just to talk about discrimination between citizens of one state and citizens of another state. •Slaughterhouse just tells us that 14th P/IC is not the source for incorporating fundamental rights. • •There are two kinds of citizenship at issue in this case. State citizenship and federal citizenship. •State Privileges and Immunities (p.564) •state citizenship gives certain privileges and immunities like the right to acquire and possess property, pursue and obtain happiness and safety. There are more we haven't necessarily figured out, but they're the same type of rights that governments are supposed to protect •The US constitution places certain limits on state governments to protect US Citizens (ex post facto, bills of attainder, etc) aside from those, P&I lies with the states •Federal Privileges and Immunities (p 566) •Right to be a citizen of the US and the privileges that follow, free access to seaports, demand protection of the federal government over life, liberty, property while on the high seas, peaceably assemble, etc.

•The way I understood Lopez was that when deciding if the statute placed an excessive burden upon intrastate commerce, the court found there was no rational basis for the statute under the commerce clause and the action it prevented was not economic in nature. How do these two factors interact - does the "rational basis" engage with the "economic nature" evaluation at all?

•I think this identifies a big tension that was at issue in Lopez. The majority overturned 60 years where the court gave Congress ample deference in regulating commerce. •Post-Lopez, the economic nature of the regulated activity is something that the court is unlikely to give much deference to Congress about. That's why the court ended up examining whether the reasons the government gave for whether and how gun violence is too attenuated. They also seemed to suggest that Congress had not developed much of a record for the court to evaluate. (p. 170) •Congress's findings on whether the law they passed is rationally related to the article of commerce they're regulating is what receives the deference. This part doesn't get much attention in the cases because rational basis is so deferential. Could Congress reasonably believe that their regulation (if otherwise constitutionally passed) would have addressed the problem they identified? If yes, then it passes rational basis review.

exs where we have conflict preemption and not field preemption:

•If a state law required all widgets to be red and a federal law stated that no widget could be red, the state law would be preempted under conflict preemption. A state law could still require blue widgets and not run into conflict pre-emption. •If federal law indicated that Congress is regulating widgets of any and all colors, then there is no room for a state law to require a certain color widget. •If a federal law requires lotion to be diluted at least 30% to avoid toxicity, and a state law requires 50% dilution, a state is probably acceptably creating a higher standard and preemption isn't at issue. •If Congress holds a hearing considering evidence on various dilution levels of lotion and decides that it's a complex issue that should be handled federally, then the law it passes to that effect probably occupies the field.

What is EP:

•If the law is going to grant a right or privilege, it cannot unduly discriminate. •We don't care about all discrimination to the same extent (ex: race, sex, children v. adults, wine drinkers v non-wine drinkers, students v. non students). •Is the distinction justified by a sufficient purpose?

what is a stereotype?

•Personality traits — For example, women are often expected to be accommodating and emotional, while men are usually expected to be self-confident and aggressive. •Domestic behaviors — For example, some people expect that women will take care of the children, cook, and clean the home, while men take care of finances, work on the car, and do the home repairs. •Occupations — Some people are quick to assume that teachers and nurses are women, and that pilots, doctors, and engineers are men. •Physical appearance — For example, women are expected to be thin and graceful, while men are expected to be tall and muscular. Men and women are also expected to dress and groom in ways that are stereotypical to their gender (men wearing pants and short hairstyles, women wearing dresses and make-up.

•The current status of education for undocumented children/how to approach an EPC analysis for undocumented kids

•Plyler v. Doe (1982) •Education is not a fundamental right (San Antonio Independent School District v. Rodriguez (1973)). However, it is particularly important and serves a fundamental role in society. A state would have to further a substantial interest by whatever policy it implements. Plyler court discusses several potential state interests that the court rejects. - - Undocumented kids: Plyler says edu isn't a fundamentl role. But it is crucially important in society. Bc of that, a state would dhave to have a substantial policy in whatever it does to further the restriction of edu to undocumented kids. They've never been able to successfully do that. In Plyler, ct lays out all sorts of reasons the state says it has an interest in restricting edu, like mitigating the eco effects of sudden shifts of immigration. But restricting those kids doesn't seem like it'd really help that. Alt, they're concerned about the ability to provide high quality of edu with too many kids - you don't have to blame undocumented kids for that. So if considering a question that has to do with undocumented kids: really look at the state interests, look at how the state's prerogatives didn't relate to the goal - Hypo for immigrant kids: deemd to be unconstitutional, bc it says that undocumented kids cannot be admitted into school. Plyler is simple: you cannot discriminate against undoc kids - in practice is intermediate scrutiny, but in practice no school has ever been able to keep up a policy to restric them access.

15th amendment:

•Section 1 The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. •Section 2 The Congress shall have the power to enforce this article by appropriate legislation.

13th amendment:

•Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. •Section 2. Congress shall have power to enforce this article by appropriate legislation. Most agree that Section 2 of the Thirteenth Amendment empowers Congress to legislate regarding the "badges and incidents of slavery." Few, however, have explored in depth the precise meaning of this concept. Jennifer Mason McAward, Defining The Badges And Incidents Of Slavery (2011)

•Was the takeaway from Shelby County v. Holder that the sections in question were unconstitutional, that the way that the federal government used outdated standards to decide which states to enforce it against was unconstitutional, or that the fact that it was only enforced against some states and not others unconstitutional?

•Section 4 was unconstitutional because of the outdated coverage formula (specific states with problematic histories of discrimination) - if you're going to treat states differently there needs to be current needs justifying the current burdens •Section 5 (states listed in section 4 need to seek permission for any changes in voting law) was not ruled unconstitutional but was powerless without the coverage formula indicating which states needed to seek permission - Problem with Shelby county: the coverage formula hasn't been updated. The current needs that justify a burden on states needs to be up to date.

- Lochner era: SC struck down all sorts of labor relations bc were worried about burdening economic liberties. After Lochner: decided to use traditional rbr. We're not concerned about freedom of k as a fundamental liberty interest anymore, any sort of eco policy/concern about freedom of k will receive rational basis review post-Lochner era:

•The Court applies the Rational Basis Test unless heightened scrutiny is warranted. •Rational Basis Review says that legislation is presumed to be valid and will be sustained if the regulation is rationally related to a legitimate state interest. (The burden is on the challenger) •Highly deferential to legislation •Virtually always results in a conclusion that the challenged legislation is valid. •A legitimate governmental interest considers possible objectives that the legislature might have sought to accomplish its goal.

How to frame/approach the Cleburne factors:

•Whether someone is a discreet and insular minority and entitled to suspect or quasi suspect status and higher scrutiny for the govt action (for our purposes = rational basis with bite): 1.Are the differences immutable? 2.Are the immutable differences relevant to their ability to function/perform in society? 3.Do they suffer historical discrimination (and what is being done today to continue to discriminate against them)? 4.Are they politically powerless?

•If we receive a hypo that deals with voting rights, how in depth do we need to go in terms of analyzing whether or not Congress's use of preclearance/execution of the VRA addresses up-to-date concerns and analyses of voter representation?

•You should be specific as to how the law addresses up to date concerns. •Current conditions - What data was presented? What year is the case? What year was the data from? What problem is being presented? •Rational means of preventing racial discrimination in the exercise of the right - What is the problem? What is the strategy to solve that problem? Are they related? Just has to be rational

•How should we approach an EPC question? Should we just identify the one level of scrutiny or go through them all?

•You should identify the classification at issue and then apply that level of scrutiny. •Ex: if you identify race as the classification, apply strict scrutiny. If you identify wealth and there is no underlying fundamental right, apply rational basis. If you identify another class we haven't discussed, apply the Cleburne factors and determine whether RBw/B is necessary. You don't have to work through all of the factors. However, depending upon the question, perhaps the statute would have multiple problematic parts that require sep analysis