Con Law

Suspension The Writ of Habeas Corpus:

(Art I Sec 9): The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. Federal authority for military tribunal use: historically done often, President as commander in chief

Korematsu v. U.S. (1944)

(detention camps): Constitutional. But all legal restrictions, which curtail civil rights of a single racial group, are immediately "suspect" and should receive the "most rigid scrutiny" (strict scrutiny). 1) Defer to military authority and 2) pressing public necessity or gravest imminent danger to public safety.

Metro Broadcasting v. FCC (1990):

(federal) upheld FCC minority preferences polices which gave them a plus for licenses and gave them "distress sales" used Fullilove: benign race conscious measures even if they aren't remedial, are constitutionally permissible to the extent they serve important gov't objectives, like bakke: diverse broadcasting=diverse schools. Intermediate scrutiny for remedial racial classifications. overruled

Lawrence v. Texas (2003):

(substantive DP rights)(overruled Bowers v Hardwick) different than GA law because only criminal for homosexual conduct (whereas GA applied to all persons) O'Connor Conc.: Relies on EPC: more searching form of RBR (doesn't always means roll over and allow). This form most likely used when: a law exhibits a desire to harm a politically unpopular group (Moreno, Cleburne). Reason why EPC rather than DP is because don't need to decide broader question of regulating sexual conduct of adults, because confident that if require laws be neutrally applied won't reach problems of discrimination if straight people have to be regulated too

Congress's Reconstruction Amendments Enforcement Power & Sovereign Immunity

13th Amendment, Section 2: Congress shall have power to enforce this article by appropriate legislation. 14th Amendment, Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. 15th Amendment, Section 2: Congress shall have power to enforce this article by appropriate legislation. 11th Amendment (Sovereign Immunity): The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Regents of U. of Calif. v. Bakke (1978):

16/100 seats UCD med school special admissions saved for educationally or economically disadvantaged minorities. Unconstitutional: Some use of race OK, but not UCD's use. Brennan 4: passes intermediate scrutiny. Stevens 4: Illegal under Title VI of Civil Rights Act. Powell: Strict scrutiny required, remedial purpose inadequate without judicial/administrative/legislative findings, pursuit of diversity is OK as compelling interest to satisfy strict scrutiny, but no rigid separate race tracks (not narrowly tailored), can take race into account (reverse injunction of CA supreme court)

Hammer v. Dagenhart (The Child Labor Case)(1918)

1916 Act of congress intended to prevent child labor by prohibiting interstate shipment of items produced by child labor. Unconstitutional use of commerce power, the regulation of child labor is a purely local matter. The goods themselves were not harmful. Necessary effect of this act is to regulate hours of labor of children, which is purely state authority. While Act was facially constitutional, it's clear purpose was child labor. If not unconstitutional, everything would come under federal regulation, no more 10th amend. Court's job it to preserve constitutional separation of powers.

Williams v. Lee Optical of Oklahoma (1955):

A law is not unconstitutional under EPC just b/c it is useless/wasteful. Only matters if the law has a rational basis to legitimate ends (state's purposes/object, but doesn't have to be important). Allows for hypothetical justifications for state rationale. One-step-at-a-time.

Tennessee v. Lane (2004):

ADA title II: state and local gov't services etc. required to provide reasonable accommodations. Sued states over inaccessible courts to plaintiff as a paraplegic. Only Constitutional as it applies to Court Access b/c access to judicial system is a fundamental right (disabled people couldn't get up the stairs at courthouse), leads to heightened scrutiny. Congress's chosen remedy for the pattern of exclusion and discrimination above, Title II of ADA, is congruent and proportional to its object enforcing the right of access to the courts.

Gomillion v. Lightfoot (1960):

AL legislature changed Tuskeegee city bounds. Unconstitutional. Removed all but handful of black voters. Retained all white voters.

Chae Chan Ping v. U.S (The Chinese Exclusion Act)(1889):

Act retroactively "un-permitted" Chinese citizens, Held Constitutional b/c "plenary power" doctrine. Not something that a court can adjudicate and declare unconstitutional (certain political decisions are conclusive on the judiciary). Under enforcement of the constitution by the court. Cited for the "plenary power" doctrine over immigration, Congress can do whatever they want, even if unconstitutional. US needed to restrict their immigration to prevent "oriental invasion" it is not within court's jurisdiction to question congress's right to enact such legislature, nor to question their morals. Congress can exclude aliens from its territory as part of their sovereignty, national security. Last in time rule: treaties or federal statutes that conflict, go with the most recently passed or enacted. Sovereign powers of the U.S. (only constricted by the constitution): Declare war, Make treaties, Suppress insurrection, Repel invasions, Regulate foreign commerce, Secure republican governments, Admit subjects to citizenship.

Gregory v. Ashcroft (1991):

Age Discrimination in Employment Act held inapplicable, conflicted with state law forcing judges over 70 to retire. Adopted a "clear statement" rule where a federal law does seem to restrict states in some area of important governmental functions (substantially burdens state sovereignty), we will not interpret it to apply unless the language of the statute is completely clear. pro-states a. Dissent says inconsistent with Garcia, which rejected idea that certain state functions get additional constitutional protections.

Kimel v. Fla Board of Regents (2000):

Age Discrimination in Employment Act, unconstitutional, Congress's Section 5 enforcement powers under the Fourteenth Amendment did not extend to the abrogation of state sovereign immunity under the Eleventh Amendment where the discrimination complained of was rationally based on age.

U.S. v. Butler (1936):

Agricultural Adjustment Act of 1933 was designed to stabilize production in agriculture with taxes and subsidies for farmers (Unconstitutional under the tenth amendment, this was later overruled). Court held that congress is not limited to spending only to achieve the specific powers granted in Article I of the constitution. Rather Congress may spend in any way it believes would serve the general welfare, so long as it doesn't violate another constitutional amendment. Interpreted the taxing and spending power broadly, separate and unique to other enumerated → this remained good law, the Hamilton interpretation (rejects Madison, only to support other enumerated powers).

Hunter v. Erickson (1969):

Akron charter: voters to approve racial housing laws. Held 8-1: violates equal protection. Charter amendment contains racial classification. Doesn't classify people of different races, but expressly treats racial housing differently. Places special burdens on minorities in the political process. States justifications are unimpressive. Does not require racially discriminatory purpose.

Boumediene v Bush (2008):

Aliens held @ Guantanamo, none are citizens of a nation now at war with the US, and all deny being a member of Al Qaeda. Military Commissions Act section 7 is unconstitutional; detainees have the privilege of constitutional guarantee of habeas corpus. Constitution has full effect in Guantanamo, if the privilege of habeas corpus is to be denied then congress must act in accordance with requirements of constitution. Suspension clause is supposed to protect against abuses of power. Detainee Treatment Act review process is inadequate substitute for habeas corpus.

14th AMENDMENT

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.

Romer v. Evans (1996):

An amendment ("Amendment 2") to Colorado's state constitution, adopted through a statewide voter's initiative, prohibited any legislative, judicial, or executive action at state or local level designed to protect homosexuals from discrimination. Unconstitutional, Amendment 2 classified homosexuals not to further a proper legislative end but to make them unequal to everyone else, violating the Equal Protection Clause. Colorado Amendment after failing to pass "EVEN" the court's rational basis test, does not cement sexuality in RBR. Based on "animus."

Alden v. Maine (1999):

Article I of the United States Constitution does not provide Congress with the ability to subject non-consenting states to private suits for damages in its own courts, extended Seminole tribe to block suits in state courts too

SEPARATION OF POWERS AND WAR

Article II, Section 2, Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States Article II, Section 2, Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties... Article I, Section 8, Clause 11: [The Congress shall have Power...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water...

Art 3: JUDICIAL REVIEW

Article III. Section 2(2). In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], 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.

Central VA Comm. College v. Katz (2006):

Bankruptcy law exception to sovereign immunity

Craig v Boren (1976):

Beer purchasing age is 18 for girls, and 21 for boys in OK. Unconstitutional Under Intermediate scrutiny: Public health and traffic safety were state's interests. Drunk driving rate of .18% for females, vs 2% for males, not big enough of a difference. Sex does not represent a legitimate, accurate proxy for the regulation of drinking and driving. "Previous cases establish that classifications based on gender must serve important governmental objectives and must be substantially related to achievement of those objectives."

Printz v. U.S. (1997):

Brady Handgun Violence Prevention Act that required local officers to background check prospective handgun buyers was Unconstitutional. Congress cannot commandeer New York state/local executive officials. Such demands are fundamentally incompatible with "the very principle of separate state sovereignty." Generally applicable laws may pass as constitutional, but not where the whole purpose of the act/provision is to direct state or local executive officer and hence compromise the structural framework of dual sovereignty. pro-states

James v. Valtierra (1971):

CA Constitution: voter ok for public low-income housing. Held 5-3: no equal protection violation. No distinctions based on race here. Not limited to minority housing projects. Inadequate evidence of discriminatory purpose. i. Dissent: unconstitutional discrimination against the poor

Geduldig v. Aiello (1974):

CA excluded pregnancy from disability insurance, Constitutional under RBR (one-step-at-a-time). State has legit interest in maintaining disability program, cannot cover everything. Not men vs. women discrimination → pregnant vs. non-pregnant classification. Pregnancy discrimination is not sex discrimination.

Michael M v Superior Court of Sonoma County (1981):

CA statutory rape law limited prosecution to males having sex with female under 18, use "sharper" RBR. Constitutional. Court has upheld statutes that realistically reflect the fact that the sexes are not similarly situated in certain circumstances. Statute is "sufficiently" related to the states objectives to pass constitutional muster. State sought to prevent teen pregnancies and only women become pregnant and suffer effects. "Equalizes" deterrents on sex (girls are already deterred by fear of getting pregnant). Not much jurisprudential weight, pre-VMI.

Maher v. Roe (1977):

CT ban on "nontherapeutic" abortion $, $ for childbirth though. Constitutional: no discrimination against a suspect class, indigent women desiring an abortion is not a limited category of suspect class, financial need alone does not identify suspect class. Places no obstacles in path of getting an abortion, doesn't have duty to provide $, state just made childbirth a more attractive alternative.

Stromberg v. CA (1931):

Cannot prohibit red flags showing support of communism, state law violates 1st amend. 1st amend is incorporated into DPC and applies to the states.

Michael H. v. Gerald D. (1989):

Carol had an affair while married to Gerald and had a baby Victoria, blood test indicated Michael was the father, they lived together intermittently. Michael filed "special filiation" action to establish his paternity and visitation rights. California law: after two years of a child's life conclusively presumes that the husband at the time of birth is the father. No violation of rights, no due process violations, lacks a constitutionally protected liberty claim (no const. protected liberty interest in adulterous natural father asserting parental rights over a child born into a woman's existing marriage with another man.) Footnote 6 (no majority): Though the dissent has no basis for the level of generality it would select, we do: we refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.

Shelby County v. Holder (2014):

Challenge to preclearance regime. Section 4 coverage formula unconstitutional. Departs from the fundamental principle of equal state sovereignty. Singles out certain states, requires permission from the federal government to do ordinary governance. Has to be justified "current needs" in order to establish "current burdens." No longer such a disparity, as in the old data that congress relies upon. a. Dissent: Constitutional Text singles out racial discrimination in voting and gives authority to appropriately enforce it. Precedent says just needs to be a rational basis to enforce it. See: record justifying initial legislation, temporal limitation of act (sunset), success of law and re-authorization.

Bailey v. Drexel Furniture Co. (1922):

Child Labor tax Unconstitutional, purely punitive and regulatory in nature. Reasoning similar opinion in Hammer, Child labor case under the commerce clause.

Palmer v Thompson (1971):

City closed pools rather than desegregate, court found it was justified to preserve peace and order and pools could not operate economically on an integrated basis. Improper to rely on gov't purpose. City was treating black and white alike. Probably not god case law, though not overturned.

Richmond v. J.A. Croson Co. (1989):

City contracts should subcontract at least 30% to MBE's. Only .67% of city's prime constructions contracts had been awarded to MBE'S, but no direct evidence of race discrimination on part of city awarding contract. Must prove that the city had become a passive participant in system of racial exclusion practiced by elements of local construction industry to take affirmative steps to dismantle such a system. Does not pass strict scrutiny. No consideration of race neutral plans to increase minority business participation. 30% quota is not narrowly tailored, rests upon assumptions that minorities chose careers in proportion to their race.

Civil Rights Cases (1883):

Civil Rights Act of 1875: gave full and equal enjoyment of accommodations, inns, public conveyances, theaters, and other places of public amusement. Not proper exercise of congressional power. 14th only regulates state action of a particular character, not individual invasion of individual rights, cannot prevent private discrimination. Sec 5 authorizes to congress to make "corrective" laws" not general or direct and primary laws in the domain of local jurisprudence. An individual act does not impose a badge of slavery upon applicant, just a civil injury. 13th amend is different (not just corrective) just b/c congress can make direct and primary legislation to enforce it does not mean that they have the same power for the 14th as well. Words are different and so are the powers of congress. 13th amend did not intend to change social rights.

U.S. v. Morrison (2000):

Civil rights remedy as a section five enforcement measure (already saw holding: outside of Commerce Clause). U.S. argued that it was a proper section five enforcement power law based on criminal systematic bias as EPC violation. Unconstitutional. State action required for 14th amendment violations. "Carefully crafted balance of power." Not a "congruent" and "proportional" response, based on system but suit was against individual.

Carter v. Carter Coal Co. (1936):

Comprehensive congressional act to stabilize interstate coal market required collective bargaining with unions. Exceeds congress's power to regulate commerce among the several states. State's sphere b/c this is production/manufacturing, not commerce. Direct effects on commerce (congress can reach) v. Indirect effects and local evils (congress cannot reach).

Penn. v. Union Gas Co. (1989):

Congress can abrogate Sovereign Immunity under commerce clause (people can sue states for environmental clean up)

McCulloch v MD (1819)

Congress has power to create bank. Where does power come from? US is one of enumerated powers, but nothing says that that excludes another implied powers, 10th amendment omits "expressly" leaving open idea that federal gov't has powers not expressly written, it is like an outline of the major objectives, past practices, constitution is agreement b/t the people, not the states (people went to the conventions and ratifies it), congressional powers are limited, but the sound construction of the constitution must allow the national legislature to have discretion with respects to the means by which the powers it is conferred with are to be executed, which will enable that body to perform the high duties assigned to it, in the matter most beneficial to the people "let the ends be legitimate" (and not prohibited by the constitution) and the means "within the spirit of the constitution", "necessary and proper" clause: necessary" is vague, but look at the "proper" part, it wouldn't make sense if necessary was a strict word. i. Contrast Article 1 section 10 which includes language "absolutely necessary" → thus just necessary is not as restrictive ii. Compare Article V "when necessary to propose amendments"

Seminole Tribe of Florida v Florida (1996):

Congress is without power under the Commerce Clause (or Indian Commerce Clause) to abrogate a state's sovereign immunity. In so doing, the Court overruled Pennsylvania v Union Gas, 1989 decision that found such authority to exist.

U.S. v. Curtis Wright Corp (1936):

Congress passes bill to give President authority to prosecute individuals selling arms and President prosecutes individuals selling arms in Bolivian conflict, Constitutionally permissible delegation of power to the President. Foreign affairs are inherent in sovereignty. View of how powerful the president is in foreign affairs, Stewardship theory: the president is a steward of the people, bound to do all he can do for people unless there is something expressly forbidding him to do so. President is the sole organ of the United States. One voice/treaty negotiation, language of article 2. Century and a half of similar delegations of legislative power about foreign affairs matters to the president.

Art 1 SECTION 8: TAXING AND SPENDING POWER

Congress shall have the 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...

Griswold v. Connecticut (1965):

Conn. banning distribution and use of contraceptives to married couples, to prevent extramarital affairs/spread of disease Unconstitutional. Specific guarantees in the bill of rights have penumbras, formed by emanations from those guarantees that help give them substance. (1,4, 5, 9) Various guarantees create zones of privacy (spatial; secrecy of the home)(also consider informational privacy and decisional privacy/autonomy). Such a law cannot stand b/c it is unnecessarily broad, and invades protected areas. Right of privacy is older than constitution. Association that promotes a way of life. Reaffirms Pierce and Meyer as 1st amend cases that showed "peripheral" rights of 1st amend. Griswold later reinterpreted as SDP "liberty." 1. Harlan CITJ (invoking his Poe dissent): Source of the right: 14th amendment DPC. Interpretation of substantive DPC "liberty": a. What it is not i. Not just a guarantee of procedural fairness → it is broader ii. Not only the BoR/penumbras → more flexible iii. Not reduced to a formula or a code, not mechanical iv. Not "a series of isolated points" v. Not "unguided speculation" vi. Not only spatial privacy b. What it is: i. Substantive rights ii. Rights based on tradition, which is a living thing iii. Values implicit in the concept of ordered liberty iv. Fundamental rights for which we form governments v. "A rational continuum"/"a rational process" 1. Traditions, retained or discarded 2. "Freedom from all substantial arbitrary impositions and purposeless restraints" 3. Arguably, decisional privacy (autonomy) vi. Distinguishing "homosexuality"

Wickard v. Fillburn (1942):

Constitutional regulation of wheat grown for home use. Even if the farmer's activity is local it can still be controlled by congress if it affects interstate commerce, either directly or indirectly. Such volume and variability of home-consumed wheat would have a substantial effect on price and market conditions in the "aggregate."

Washington v. Davis (1976):

Constitutional: applicants for police officers had to pass a written personnel test: disparate racial impact but facially neutral. Challenged under 5th amend equal protection. Must prove discriminatory intent. Court gets the "intent" from Strauder where they intended to not have black judges, and in de jure school segregation where residential division leads to segregated schools. Passes RBR.

Raich v Gonzales (2005):

Controlled Substance Act criminalizing marijuana use is Constitutional, even when CA law decriminalized medical use. Like, Wickard, wheat and marijuana are fungible commodities, and federal gov't had legit reason to fear some marijuana earmarked for legal uses would be diverted for illegal uses. expanded power

Santa Clara County v. Southern Pacific Railroad (1886):

Corporations are persons under the meaning of the fourteenth amendment dues process clause.

Stenberg v. Carhart (Carhart I)(2000):

Court struck down NE Law banning any partial birth abortion unless procedure is necessary to save life of mother. Banned Dilation and Extraction (D&X) and (D&E). Unconstitutional. No maternal health exception to Dilation and Extraction (D&X) or dilation and evacuation (D&E) ban. Undue burden on right to choose D&E. Violated right to abortion b/c language of the statute restricts the safest and most common form of 2nd trimester abortion.

Adkins v. Children's Hosp. (1923):

DC minimum wage law for women, court invalidated the law as Unconstitutional violation of due process of 5th, said its not unreasonable to say the difference between men and women are decreasing now because of 19th amendment. Previous decisions like Muller do not overrule right to free K in Lochner. Overturned in 1937 by West Coast.

United States v. Windsor (2013):

DOMA Unconstitutional EPC component of 5th amendment. Violates basic due process and equal protection principles. Historical power of the state to regulate marriage. No legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect personhood and dignity. "A discrimination of unusual character especially requires careful consideration." Doesn't specify level of scrutiny. Looked to legislative record and the actual purpose, no entertainment of hypothetical purpose.

Twining v. New Jersey (1908):

DPC Doesn't incorporate 5th amendment right against self-incrimination, but may incorporate some of the Bill of Rights. It's possible that states are no longer able to violate certain protections in Bill or Rights, but its not b/c its in the Bill of Rights, its b/c the rights are ones that would deprive you of due process. (Fundamental rights)

Reno v. Condon (2000):

Drivers Privacy Protection Act, bars disclosure by state DMV of personal info without drivers consent. Constitutional: Within congress's commerce power, no 10th amend violation. Regulating articles of commerce b/c "drivers info" is used in stream of business, sold into interstate commerce. General applicability (From Printz) satisfied here? valid use of congressional power via congressional power. Pro-fed govt.

Rostker v Goldberg (1981):

Exempted women from draft. Majority relied heavily on fact they couldn't be in combat so it wouldn't help. Constitutional. Not clear if actually applying Craig IS, lots of deference to Congress on military matters.

Fitzpatrick v. Bitzer (1976):

Extends employment discrimination ban to states, allowed $ damages. Damages Constitutional despite sovereign immunity. Congress has power to abrogate the Eleventh Amendment, if this is done pursuant to its Fourteenth Amendment power to enforce upon the states the guarantees of the Fourteenth Amendment.

Jones v. Alfred H. Mayer Co. (1968):

FHA prevented racial discrimination in private real estate. Reversing many precedents, the Supreme Court held that 13th Amendment Section 2 enforcement powers could reach private discrimination. Authorized Congress to prohibit private acts of discrimination as among "the badges and incidents of slavery." Section two broader than section one band on slavery. Congress possessed the power to "determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation." Deferential McCulloch review.

Garcia v. SAMTA (1985):

FLSA wage and overtime provisions applied to local transit agency are Constitutional, overturned National League of Cities. FLSA is valid congressional enactment under Commerce Clause as applied to States. National League was wrong b/c the constitutional grant of authority to Congress to regulate interstate commerce was not qualified by any implied limitation on the right to regulate the activities of the states when they engaged in interstate commerce. Supremacy Clause allows Congress to preempt state laws that conflict with federal law in this area. -pro-federal govt a. Rehnquist dissents and disagrees with the rejection of a principle that in time will again command a majority of the court

U.S. v. Darby (1941):

Fair Labor Standards Act established by Congress to prevent the shipping in interstate commerce of products produced with conditions of labor that were in violation of wage and hour standards; is within the constitutional authority of Congress. Overrules Hammer v Dagenhart: Congress does have authority to regulate completely intrastate activities including manufacturing and production when they have a substantial effect on interstate commerce. 10th amend states a truism, and doesn't limit the federal government from doing something within its power.

National League of Cites v. Usery (1976):

Fair Labor Standards Act is unconstitutional, overturned Wirtz. 10th amendment/state sovereignty limits commerce power. The enforcement of the federal law interferes with the state's resource allocation. Test: whether federal law impairs states' "freedom to structure integral operations in areas of traditional governmental functions." Court does not explain "integral" or "traditional governmental functions." a. Next nine years lower courts grapple with the precedent of this decision and uphold federal laws under National League

NV Dep't Human Resources v Hibbs (2003):

Family and Medical Leave Act (can sue state): Constitutional Section 5 law, overcomes 11th amendment b/c congress may use its section 5 power to do more than simply proscribe conduct that Court has held unconstitutional. "Power to enforce" includes authority to remedy and deter violations of rights guaranteed there under by prohibiting a somewhat broader swath of conduct including that, which is not itself forbidden by amendments test. This was congruent and proportional prophylaxis. Right: no gender-based discrimination at work, evidence of pattern of state constitutional violations. Higher scrutiny for sex means easier to show.

Coleman v. Maryland Court of Appeals (2012):

Family and Medical Leave Act self care provision (12 weeks unpaid leave) Unconstitutional, allowing $ suits vs. State not a proper 14th amendment Section 5 law. No pattern of constitutional violations and not congruent and proportional. Disparate impact on single parent households not unconstitutional. a. Scalia: no prophylaxis except for Race. b. Dissent: FMLA as a whole aims at gender discrimination. Pregnancy discrimination is sex discrimination (we should overrule Geduldig). Broad self-care provision is congruent and proportional to prevent sex discrimination. Congress thought that pregnancy leave would lead to sex discrimination.

Palmore v. Sidoti (1984):

Father wanted custody when ex-wife remarried a black person. 14th amend was supposed do away with all governmentally imposed discrimination by race: this reflects stigma about the race, not the person himself or herself. Custody law cannot give effect to private biases (father here). "The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from custody of its natural mother found to be an appropriate person to have such custody." The law cannot directly or indirectly support racial biases.

Board of Trustees of Uni. Ala. v Garrett (2000):

Federal ADA: Unconstitutional: Congress cannot force state to pay money damages for violations of ADA b/c of 11th amend. Registered nurse lost her director position after she got breast cancer. Not congruent or proportional to a pattern of constitutional violations.

U.S. v. Carolene Products Co. (1938):

Federal Filled Milk Act banned interstate shipment of skimmed milk compounded with any fat or oil other than milk fat, b/c it is injurious to public health and its sale is fraudulent; held Constitutional. 5th amendment does not compel legislatures to prohibit all evils or none: 5th amend doesn't have an Equal Protection Clause like the 14th. 14th EPC clause only applies to states. Doesn't matter why congress adopted it, it only matters that they have the power to regulate it: just needs a rational basis, and we'll assume their facts are true. Under RBR, the burden of persuasion is on the challenger. If it's a kind of right that only gets RBR, challenger has to prove a lack of a rational basis, i.e. that law is not rationally related to legitimate gov't purpose b/c court presumes it's constitutional. i. Footnote 4 from Carolene: only in a small group of cases, when the political process malfunctions, should the judiciary properly subject legislation to a higher level of scrutiny, or if law goes to infringe on civil rights or certain "discrete and insular" minorities (discrete is an identifiable, targeted group, and insular means segregated, socially isolated, they probably don't have representation).

U.S. Department of Agriculture v. Moreno (1973):

Federal statute that excluded for food stamp eligibility, households with individuals not related to the families had stated purpose to support agriculture and support nutrition for Americans. Unconstitutional under EPC, because the exclusion of these peoples doesn't rationally serve the above stated purposes. In the legislative history there was evidence that the purpose was really just to exclude hippies. If equal protection means anything, it means bare desire to harm a politically unpopular group is not a LETIGIMATE PURPOSE

Gonzales v. Carhart (Carhart II)(2007):

Federal statute: partial birth abortion ban act of 2003: criminal/civil penalties on one who performs PBA. Women's life exception but not health. Congressional "findings": moral, medical, and ethical consensus that PBA in never medically necessary for any woman, blurs the line b/t abortion and infanticide. Facially constitutional, gov't has legit and substantial interest in preserving and promoting fetal life. Definition of PABA not unconstitutionally vague, and if a doctor doesn't intend to do it, they are safe. Relies on anatomical landmarks. Congress should be given deference to its fact finding, especially in the face of medical uncertainty. But some of the fact-finding was blatantly wrong. Undue burden? No, b/c alternatives to intact D&X procedure (just prohibits intact D&X), just b/c there's medical uncertainty about risk of not having D&X doesn't mean congress cannot regulate. 1. Dissent: Fact finding wrong, intact D&X often most safe procedure, from Carhart I → if there is a substantial medical authority that the ban would threaten women's health in some cases, then unconstitutional 2. Stenberg v. Carhart (Carhart I)? Overruled? Distinguished? a. Does not address Carhart I health exception holding b. States medical uncertainty is sufficient to empower legislature vs. substantial medical authority showing health risk c. PABA equally restricts pre and post viability abortions d. Facial invalidity vs. as applied challenges e. Assimilates undue burden to RBR?

Railroad Retirement Bd. v. Alton Railroad (1935)

Federally required RR pension plan unconstitutional, court said congress couldn't require a pension plan, no direct effect on interstate commerce. (Between Schecter and Shreveport: pension plan affects labor costs which affects rates)

U.S v. Virginia [The VMI Case] (1996):

Female student seeking admissions to VMI, men-only-policy Unconstitutional under equal protection clause of 14th amendment. No "exceedingly persuasive justification" for excluding all women from the VMI. Reasons were 1) single sex ed. provides educational benefits/diversity 2) unique VMI method would have to modified for women no proof of this. Remedy provided by Virginia, separate school insufficient, both tangible and intangible deficiencies. See Sweat v. Painter.

Brown v. Board of Education (1954):

Field of public education has no place for "separate but equal", deprives equal protection guaranteed by 14th amend, unnecessary to discuss due process clause.

Barron v. Baltimore (1833):

Fifth Amendment takings clause, Ruled that Bill of Rights restricts the federal government only, not local or state limitations. None of the Bill of Rights are applicable to states, intention of the founders b/c states would not have ratified it if it limited more than the federal govt. Senator who introduced 14th amend said it was intended to apply bill of rights to states, but Slaughterhouse cases say that there is no general incorporation of Bill of Right's Rights by privileges or immunities clause

Hamdan v. Rumsfeld (2006):

Gitmo detainee marked for trial by military commission. Filed habeas petition, government said Detainee Treatment Act established no court has jurisdiction. Supreme Court held as a matter of statutory interpretation: The jurisdiction stripping provision of DTA was not retroactive for habeas; No specific authorization by congress to use this type of trial by military commission; The commission violated two federal laws: the uniform code for military justice and the Geneva Conventions.

City of Cleburne v. Cleburne Living Center (1985):

Group home for "mentally retarded" folks, request for special use permit denied, permitting scheme Unconstitutional as applied under EPC. Level of scrutiny for mental retardation discretion, RBR not intermediate. Slippery slope, if we moved out of rational basis review then aging/disabled/mentally ill/infirm would all have to be protected by more than RBR. No rational basis for above purposes, because hospitals, fraternities, etc. are allowed by the ordinance → attaching wait to under inclusiveness, not one step at a time deference i. Dissent: This was not minimum RBR, Searching scrutiny. Appropriate remedy: facial invalidation. ii. Stevens in Cleburne → only one equal protections clause, must be rational and impartial

US v Lopez (1995):

Gun-Free School Zones Act forbids any individual to knowingly possess a firearm at a place he knows is a school zone. Unconstitutional: Beyond the commerce power, cannot criminally prosecute. Congress can regulate 1) use of channels of interstate commerce 2) instrumentalities of/persons or things in interstate commerce 3) activities having a substantial relation to interstate commerce (substantially affecting test). Criminal law and education are areas of traditional state regulation. Limited power, protects state police power. i. Dissent: Abandoning almost 60 years of precedent → undue judicial activism. Should be "rational basis" test for affecting interstate commerce → deference to Congress. Lochner era missteps → similar to distinction of majority that possessing the gun by Lopez isn't commercial.

Skinner v. Oklahoma (1942):

Habitual Criminal Sterilization Act, to stop criminality being passed down from parents to children. Exempts "the prohibitory laws, revenue acts, embezzlement, or political offenses." Unconstitutional violation of Equal Protection Clause because "Right to have offspring" commands strict scrutiny. Different set of rules, than heightened scrutiny for classification, under Fundamental Rights or interests branch of EPC, if the government significantly burdens you in regard to something the court determines a fundamental right than you get strict scrutiny, if some people continue with access to the fundamental right and others don't. Properly a fundamental right. OK singled out a particular group of offenses, which would lead to sterilization while others were exempt. No evidence of inheritable criminality, of the designated class or otherwise. Slippery slope to racial extermination, Nazi Germany time period. i. Concurrence: Should be decided under due process. Becomes precedent for reproductive rights under substantive due process.

Sweat v. Painter (1950):

Hastily established law school for black law students could not provide equal educa6on as UT law school b/c of intangible qualities. Unconstitutional.

Moore v. City of East Cleveland (1977):

Housing ordinances defined family in nuclear terms, not extended family. Unconstitutional Gov't is intruding on choices concerning family living arraignments, so the court must examine carefully the importance of the gov't interest advanced and the extent to which they are served by the challenged regulation. Violation of substantive due process, close scrutiny. History of Sanctity of family, choice in matters of marriage family life. Court can't standardize family patterns. Caution and restraint in using substantive due process even though the past (Lochner) was not good at it, we shouldn't abandon it. 1. Stewart Dissent: No fundamental right; Not expressive association; Not implicit in the concept of ordered liberty; Desire to share living quarters not enough. 2. White Dissent: no fundamental right; RBR is okay. SDP is suspect and should be used rarely.

Reed v. Reed (1971):

Idaho law that preferred men to women as estate administrators. Unconstitutional under RBR of EPC. Purpose was b/c men had more "business experience" and is administratively convenient. Classification must be "reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike"

NFIB v. Sebelius (2012)(power to tax and spend):

Individual mandate tax penalty Constitutional under power to tax: ACA provides that a "penalty" in lieu of signing up for insurance will be paid to the IRS with an individual's taxes and shall be assessed and collected in the same manner as tax penalties. Medicaid expansion Unconstitutional under spending power, impermissible conditions on spending because coercive. If Medicaid expansion declined by state, then all Medicaid funding withheld. Size of Medicaid funding in state budgets. States developed large administrative apparatus. States compelled to accept. a. Dissent: Congressional reservation to change in initial law, been expanded 50 times prior. Coercion is non-judicial political judgment. Court disincentives cooperative federalism.

Dames & Moore v. Regan (1981):

International Emergency Economic Powers Act authorizes President to declare national emergency from threat arising outside the U.S., then to block and freeze assets. President transferred frozen assets then ended pending contract lawsuits against Iran. Constitutionally within the president's power. Congress didn't explicitly approve exactly what the president did, but with the Emergency Powers Act, the Hostage Act, and other things, the president has this power, Congress hasn't disapproved this action. Zone 2 of the Youngstown analysis (closer to zone 1, presumption of constitutionality).

Doe v. Bolton (1973):

Invalidated hospital certifications, other hospital regulations

Marbury v. Madison

It was unconstitutional for Congress to pass the Judiciary Act of 1789, due to the limitations of Article III pertaining to original jurisdiction of the Supreme Court. Firmly established Article III as the ceiling of federal court jurisdiction, preventing congress from expanding its original jurisdiction through legislation. Most notably, Marbury established the Supreme Court's ability to hold judicial review over the laws passed by congress with Marshall stating in his opinion that "it is emphatically the province and duty of the judicial department to say what the law is."

Ferguson v. Skrupa (1963):

KS law said only lawyers may "debt adjust," Constitutional under EPC. The KS legislature was free to decide what legislation was needed to deal with the business of debt adjusting. Whether the legislation is regulatory or prohibitive is no concern of ours either. No inquiry into reasonableness of fit.

Anderson v. Martin (1964):

LA law added candidate race to ballots. Held: violates Equal Protection Clause. Not reasonably related to any legitimate government purpose. Purely racial character & Purpose. Law places state power behind racial classification that induces private prejudice.

Yick Wo v Hopkings (1886):

Laundry licenses were all given to white people, but none to Chinese people, facially neutral but it was discriminatorily administered on basis of national/origin. Unconstitutional. 200 Chinese applicants were denied permit, 79/80 white applicants had their permit granted.

South Dakota v. Dole (1987):

Law sought to create 21-year-old drinking age by withholding a portion of federal highway funds from any state government that failed to impose such age. Constitutional. The condition imposed by Congress was directly related to one of the main purposes behind the federal highway money: creating safe interstate travel. At some point the financial inducement might become so coercive at which pressure turns into compulsion. Majority's conditional spending test: Must be in pursuit of "general welfare." a. Unambiguous conditions b. Germaneness → relationship of strings to federal interests c. No inducement of other constitutional violations → cannot induce the states to act unconstitutionally d. No coercion (as distinguished from inducement)

Plessey v Ferguson (1896):

Louisiana statute required different cars in railroads for different races, and officers could assign passengers to compartments. Constitutional. Does not conflict with 13th amendment, legal distinction b/t races is not servitude. 14th amend was about equality before the law not intended to abolish distinctions based upon color or protect social rights.

New York v. U.S. (1992):

Low-Level Radioactive Waste Policy Act incentivized states to deal with radioactive waste. "Take-Title Provision" (States will own the waste if they do nothing to deal with it) was unconstitutional. 10th amend confirms that power of federal gov't is limited by powers reserved to the states. Congress cannot "commandeer the legislative process of the states by directly compelling." Congress can encourage states to regulate in a particular way or hold out incentives to states as a method of influencing policy choices. 1) Spending power: congress can attach conditions to federal funds 2) Commerce Clause. pro-states

Cleveland Bd. Of Ed v. LaFleur (1974):

Mandatory pregnancy leave months before baby due. Unconstitutional.

Eisenstadt v. Baird (1972):

Mass. Limited contraceptive distribution to married couples only by physicians (or pharmacists). Held Unconstitutional, violated equal protection's rational basis test, statutory distinctions between married and unmarried did not rationally further a legit state interest. Ostensibly applied RBR. Marriage in Griswold: inessential/incidental; marriage is made up of individuals; individualistic approach to constitutional rights. Rejects discouraging premarital sex or safe hoarding health as rationales.

Eisenstadt v. Baird (1972):

Massachusetts prohibited contraceptive distribution to unmarried persons; Unconstitutionally violates unmarried persons EPC rights. Ostensibly applied rational basis review. Not health purposes/discouraging premarital sex. Court did not accept that the above purposes could rationally be served by banning contraceptives to unmarried people.

Schlesinger v. Ballard (1975):

Men had shorter period to get a promotion in the military than women. Constitutional, extra time women have is to make up for military positions that they are excluded from. Rational and will defer to government (pre Craig v. Boren).

Schuette v. Coalition to Defend Affirmative Action (2014):

Michigan Constitutional ban on affirmative action. Constitutional. There is no authority in the Constitution or precedent that prevents the ban on affirmative action, it's an ongoing national dialogue. Distinguishes Hunter and Seattle. i. Scalia Concurrence: Probably violates political process doctrine, but overrule Hunter and Seattle. ii. Sotomayor Dissent: Minority right to participate in policy process on equal terms. Section 26 has a "racial focus" targeting a policy that inures primarily to the benefit of the minority. Special burdens for racial affirmative action. Hunter/Seattle weren't discriminatory intent/de jure segregation cases → instead structure of the process. Race Matters.

Grutter v. Bollinger (2003):

Michigan Law School's: "critical mass" of minorities. Constitutional b/c 14th Amend protects individual so we must use SS. Compelling state interest: diverse student body yields educational benefits, prepares them for workforce and society and Narrowly Tailored (Fit): Flexible and no quotas, ranges year to year. Individualized consideration of all applicants. Many possible bases for diversity. Doesn't require exhausting all race neutral policies, just serious good faith consideration.

Gratz v. Bollinger (2003):

Michigan's undergraduate plan of points, get 20 for being black, a lot less for other things like leadership. Unconstitutional: based on Bakke. No individualized consideration, only the 20 points is awarded and in a small minority of cases do they get review. Race compensation is too high. 1) Educational diversity is a compelling state interest but 2) Not narrowly tailored b/c its not individualized. i. Ginsberg dissent: Cites widespread enduring disparities and material inequalities between the races. "In implementing this equality instruction, as I see it, government decision makers may properly distinguish between policies of exclusion and inclusion."

Frontiero v. Richardson (1973):

Military members with dependents got increased benefits, men could claims wives, but women could only claim husband if they proved he was dependent on her for over 50% of his support. Unconstitutional under EPC component of the 5th Amendment. Brennan Plurality (4): Fails strict scrutiny → Race analogy/level of scrutiny factors. Powell (3): Fails RBR. Unconstitutional due to arbitrary differential treatment based on gender. The court however, could not agree on whether or not to expand strict scrutiny to include gender classifications, with four justices on either side of the debate. Sex "like classifications based upon race, alienate, and national origin" are "inherently suspect and must therefore be subjected to close judicial scrutiny." Speed and efficiency in administrative functions was insufficient to uphold arbitrary discriminatory classifications.

Pace v. Alabama (1883):

Mixed race fornication/adultery punished more than whites. Held: no equal protection violation. Law had no discrimination against persons (interracial offenders black and white were subject to same punishments), just discrimination between offenses

Dred Scott (1857):

Mostly based on citizenship. Also ruled that Congress couldn't ban slavery, because that deprived people of property of due process of law.

Vacco v. Quill (1997):

NY allowed doctors to aid withdrawal but not suicide. Equal protection grounds: difference in treatment: affirmative v negative treatment, not a suspect class. Distinction passes RBR.

Railway Express Agency v. NY (1949):

NYC advertising vehicle ban Constitutional. It is no requirement of equal protection that all evils of the same type be eradicated, Rational basis scrutiny: ends must justify the means: means was preventing distractions to drivers in the city, served the purpose of this law. One-step-at-a-time: legislature can deal with a problem one step at a time, doesn't have to deal with all at once.

Cruzan v Dir, MO Dep't of Health (1990):

Nancy Beth Cruzan: "persistent vegetative state," MO public hospital kept alive. Parents sought court order for withdrawal. SCOMO: No Living Will formality/Clear and convincing evidence. Constitutional, judgment affirmed. Right of competent adults to refuse medical care, including life saving nutrition and hydration. State may require clear and convincing evidence of patient's will and State need not allow her family to decide. State interests include: Safeguarding personal element of life and death choice; Guarding against potential abuses; "Unqualified" interest in life preservation (Majority position); "General" vs. "Particularized" interests in life. 1. Dissent: Bodily integrity and self determination (autonomy)

U.S. v. Doremus (1918):

Narcotics Drug Act of 1914 Constitutional. "If the legislation enacted has some reasonable relation to the exercise of the taxing authority conferred by the Constitution, it cannot be invalidated because of the supposed regulatory motives which induced it." No distinction between regulatory taxes and revenue raising taxes.

NLRB v. Jones & Laughlin Steel (1937):

National Labor Relations Act of 1935 prevented labor discrimination on the basis of union membership. The Act was Constitutional because of a close and substantial relationship to interstate commerce. Intrastate activities can be regulated if they have a close and substantial relation to interstate commerce, that their control is essential or appropriate to protect that commerce from burdens and obstructions. Cannot be on anything too indirect or remote. The stoppage of manufacturing due to a labor dispute would have a serious effect upon interstate commerce. End of striking down New Deal, End of Lochner Era and increased congressional power under Commerce Clause.

Lochner v. New York (1905):

New York law limiting bakery employees' hours. Interferes with the right to contract, which is Unconstitutional under the DPC of the 14th amendment. No reasonable ground for interfering with the liberty of person/right of free contract by determining the hours of a baker. No legitimate police power here to regulate, including lack of public health justification. Cannot uphold a labor law plain and simple, impermissible illegitimate government interest. "Some other motive dominating the legislature." i. Harlan Dissent: Freedom of contract is subject to reasonable regulation. ii. Holmes Dissent: This case is decided upon an economic theory, which a large part of the country does not entertain. Substantively affirming a particular economic theory, laissez faire. Not the business of our constitutional review to embody economic theory. Due process clause is to enforce fundamental principles reasonable men agree

Carey v. Pop. Serv. Int'l (1977):

New York limited contraceptive distribution only by licensed pharmacists and not to persons under 16. Banned advertising of contraceptives, mail-order vendor etc. sued to enjoin. Held Unconstitutional, Fundamental Right SDP. Right to decisional autonomy in childbearing. Strict scrutiny applies and was not satisfied. Constitutional protects individual decisions in matters of childbirth from unjustified intrusion from the state. Where a decision as fundamental as that whether to bear or beget a child is involved, regulation imposing a burden on it may be justified only by compelling state interests. Decision-making/individual autonomy related to childbirth = strict scrutiny.

Medical Care:

No general constitutional right to provision of care. Constitution is about negative liberty, not affirmative. DeShaney v. Winnebago Cty. DSS (1989): No right under the due process clause to have the government protect you from a private actor. Special circumstances if you are a prisoner, serviceman, etc.

Quilloin v. Walcof (1978):

Non-marital parents, father never sought custody, mother got involved with new man who wanted to adopt, real father could not prevent adoption of this new man. (You snooze you loose) State interest: solidify this new family unit. Constitutional, just being a biological parent does not give you rights that will block state action.

National Federation of Independent Business v. Sebelius (2012)(Commerce Clause):

Not clear if holdings are binding on commerce clause or dictum. Individual mandate, not valid under the commerce clause "substantial effects" prong. Not valid under the necessary and proper clause for a "broader regulation." Congress has never attempted to rely on commerce power to compel individuals not engaged in commerce to purchase an unwanted product. The power to regulate presupposes the existence of commercial activity. Framers gave Congress the power to regulate commerce not compel it.

Village of Belle Terre v. Boraas (1974):

Ordinances restricted land use to one family dwellings (defined as blood, marriage, or adoption) unrelated college students (claimed deprivation of liberty without due process of law. Constitutional, no fundamental right guaranteed that this ordinance is violating, passes under RBR: state interest of family values/over crowding.

Jacobson v. Mass. (1905):

Parental rights from Myer/Pierce have recognized limits. Compulsory vaccination law, constitutional, compelling state interest suffices to justify infringement (public health).

Florida Prepaid v. CSB (1999):

Patent & Plant Variety PRCA, unconstitutional, Act's abrogation of States' sovereign immunity was invalid. Congress could only abrogate sovereign immunity pursuant to its § 5 powers, not its Article I powers. Patent and plant VPRCA outside of section 5 powers so you can't use them to authorize private money suits against states

Planned Parenthood v. Casey (1992):

Penn act requires informed consent of women, given medical info, 24 hr. waiting period, husband consent, and consent of parents for minors, reporting requirements. Constitutional: Reject spousal notification only, states have power to ban post-viability abortions with exceptions for maternal health, legitimate state interest in maternal health and fetal life. Reaffirms essential holdings of Roe, but a woman's liberty is not so unlimited that a state cannot show its concern for the life of the unborn from the outset. No more strict scrutiny, "legitimate interest in fetal life." "Undue burden" test. Overruled trimester framework as too rigid. Stare Decisis concerns, reliance interest, Not unworkable, not a doctrinal anachronism, no dramatic change in either the facts or the nation's understanding of the relevant facts, resolution of a major national controversy.

McCleskey v. Kemp (1987):

Post-conviction challenge to GA capital punishment based on Baldus study statistical analysis: More than 2000 murder cases in GA, coded 230 variables; Kill white victim: more than 4x likely to get death than kill a black victim. Held: 5-4 no EPC violation of EPC. No strict scrutiny, because no racially discriminatory purpose. Failed to show HIS jury had racially discriminatory purpose. Death decisions are not the same as jury selection or employer discrimination where you can use empirical evidence, too many variables/discretion. No practical opportunity for the state to rebut the Baldus study. Failed to show "because of" race, not "despite" the racially disproportionate effect.

Personnel Admin. v. Feeney (1979):

Preferential hiring treatment to veterans. Constitutional. Facially sex neutral, so have to prove discriminatory purpose (gov't acted "because of" not "in spite of" harm to group at issue (women)). Awareness of consequences of issues does not prove discriminatory intent.

Turner v. Safley (1987):

Prison inmates cannot get married without permissions from warden, and would only do so if compelling interest (person had a child out of wedlock) Unconstitutional, not reasonably related to legitimate interest. Rational basis review only because prison inmates. Constitution protects an unremunerated fundamental right to marry.

1960s & early 1970s Civil Rights Legislation:

Public Accommodations Cases, Heart of Atlanta Motel v. U.S. (1964), Katzenbach v. McClung (1964)(Ollies BBQ): Both upheld CRA Tit. II (pub accom provision) via commerce power. Concurrences argued enforcement power allowed (§5 14th). Idea that anti-discrimination principle, CG empowered by Reconstruction amendments can enforce - look at guarantees of citizenship and EP of the laws and give them a broad reading and allow CG to take actions that the court may not be able to do on its own

Pierce v. Society of Sisters (1925):

Public school required for students ages 8-16, private schools sued to enjoin enforcement. Unconstitutional, deprivation of liberty without Due Process. "The liberty of parents and guardians to direct the upbringing and education of children under their control" (Parental rights). Test: reasonable relation to legitimate purpose. Private education "not inherently harmful." "Fundamental theory of liberty": anti-totalitarian. "The child is not the mere creature of the State."

Arlington Heights v. MHDC (1977):

Refusal to rezone for low-income housing Constitutional. Reaffirmed Davis that plaintiff had to show intent to discriminate was a motivating factor, plaintiffs failed at proving that here. Discriminatory purpose does not lead to automatic invalidation. It shifts burden to defendant to show it would have made same decision without purpose to harm. You can look at overwhelming discriminatory impact of official action, historical background of decision, specific sequence of events leading up to challenged decision, departures from normal procedural sequence, substantial departures where factors usually considered important or strongly favor opposite decision, legislative/administrative history.

Hagar v. Panetta (Complaint 2012):

Relevance of lack of statute, just a military regulation? Court has not drawn a line about if there is a difference in amount of deference (congress vs. agency). Relevance of harm to servicewomen? IS does not necessarily any particular harm, just difference in treatment, may perform tailoring analysis, may be related to question of remedy. Legal basics: The discrimination must be substantially related to an important government purpose.

Employment Division v. Smith (1990):

Religious Freedom Restoration Act (RFRA) Unconstitutionally exceeds Congress's section 5 enforcement power (as applied to states, still applies to federal government). Rejects section 5 enforcement power as a substantive power and the deferential McCulloch interpretive approach, congress can't determine what is unconstitutional under the 14th amendment. 14th Amendment Section 5 power is strictly remedial. Test: "congruence" and "proportionality." Allows congress broader latitude to prevent discrimination than simply what the court would rule unconstitutional 14th amendment discrimination. For Congress to ban constitutional state action it must aim to remedy/prevent unconstitutional acts. A section 5 law must be congruent and proportional to a pattern of constitutional violations a. Any time you get a problem that appears that congress may be using their section five power: i. What right is congress trying to protect? ii. Do we have a pattern of constitutional violations iii. How broad is the statute that Congress is trying enact? Is it proportional? 1. Putting congress on a fairly short leash, not broad deference of section 5 powers

NYC Transit Authority v. Beazer (1979):

Rule bars current (& former?) methadone users, Constitutional classification under EPC. Legitimate purpose to serve safety. Doesn't matter if overly or under inclusive.

Brown II (1955):

Schools have the primary responsibility for education, assessing solving these problems, courts will have to consider the actions of schools to constitute good faith implementation. Remedy → requires defendants to make a "prompt and reasonable start" on compliance. Admit minority students in "all deliberate speed"

Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1 (2007):

Seattle school classifies by white or non-white and used race as one of the tiebreakers for choosing high school. Seattle has never operated segregated schools. Louisville: classifies as black or other. Voluntary student assignment, of %15-50% parameters of black attendance, history of segregation. Unconstitutional: programs are not narrowly tailored, no evidence that level of racial diversity necessary to achieve social/educational benefit coincide with racial demographics of school districts. Outright racial balancing is unconstitutional. Ultimate goal was to eliminate race from gov't decision making no compelling state interest. Didn't try any race neutral plans first. i. Breyer Dissent: Browns promise of integrated education. Should apply less than strict scrutiny, context matters. CSI: greater racial integration of public schools. Plans are narrowly tailored.

U.S. v. E.C. Knight Co. (1895)

Sherman Act does not reach sugar monopoly; power to regulate commerce does not include power to regulate manufacturing/production. Sherman Act only appropriate when reaching court's notion of "commerce," must be trade/buying/selling to be constitutional. Manufacturing is local so it should be left to the states to regulate, protecting police powers of the state. • Harlan dissent: 10th amendment improperly used to narrow an enumerated power. Should liberally read the constitution for the benefit of the people of the U.S. All necessary and proper means ok: McCulloch.

Zivotofsky v. Kerry (Pending before Supreme Court):

Since 1948 America has taken a stance of neutrality on the sovereignty of the city of Jerusalem. Congress has passed a law giving citizens the choice of adding the country of Israel to their location of birth if born in Jerusalem... instead of Jerusalem. State department says citizens can't make this choice because it interferes with the Executive branch's position of neutrality and "exclusive recognition" power. Court of Appeals decided that the law was an unconstitutional infringement on the executive branch's "exclusive recognition" power. i. Constitutional Text: Presidential Power →Reception Clause "The president shall receive ambassadors" Duty and/or power; Executive Vesting Clause; Treaty Clause; Take Care Clause; Nominate and appoint ambassadors clause. Congressional Power → Foreign commerce & currency clauses; Naturalization and immigration; Punish offenses against the law of nations; Necessary and proper clause; Treaty clause (Art. II), Senate ratification; Nominate and appoint ambassadors clause (Art. II), senate ratification. ii. Constitutional Structure (Presidential position): Branches relative institutional capabilities; Secretly gather/assess info in a timely manner; "One voice" and flip-flopping; One sided, can't choose Palestine; Not an individual choice, but a diplomatic communication, reflection of foreign policy. Plaintiff Counter → self identification of individual not a statement of the government or a exercise of recognition power; iii. Taiwan: P says there is precedent for putting designations that do not reflect official foreign policy based on Taiwan choice on passports. President counters that it is simply a geographic area and doesn't undermine our official government policy iv. Constitutional Practice/History: Ratification debates; Hamilton in Federalist says the duty to receive ambassadors is largely inconsequential. Washington, his cabinet, & post-revolution France changes Hamilton's opinion. Long history of presidential recognition of nations. Novelty of congress trying to recognize? "Exclusive" recognition power based on history?

Katzenbach v. McClung (Ollie's BBQ)(1964):

Small BBQ restaurant Constitutionally brought under Civil Rights Act of 1964. $150,000 of food product procured in one year, half was meat that had come from an out of state supplier. Discrimination put an artificial restraint on the market and interfered with the flow of merchandise. Discrimination deterred professionals and skilled people from moving into areas. Aggregate affect like Wickard. Test: Rational basis for Congress' action (in commerce clause context, could commerce have rationally thought that there was an aggregate effect on interstate commerce).

Palko v. Connecticut (1937):

State allowed to appeal in criminal cases. Held: no DPC violation/double jeopardy not incorporated. Value/importance not enough. Essence of a scheme of ordered liberty? So rooted in tradition conscience of our people? Fair/enlightened system possible without it?

Troxel v. Granville (2000):

State forced mother to allow kids to visit grandparents (father had died, unmarried couple). Unconstitutional, violates parental rights, but no majority opinion. If there's no majority opinion, the holding of the case should be the narrowest reasoning supporting the judgment (concurrence) (Marks v US), take the narrowest opinion on it as the "rule." O'Connor plurality: Sweepingly broad statute as applied, no finding of parental unfitness, no unreasonable denial of visitation by her, no deference to her decision. 1. Souter concurrence in the judgment: Overbroad law: 2nd guessing, any person at any time. State court can use own facial unconstitutionality rule. 2. Thomas concurrence in the judgment: Fails strict scrutiny required because fundamental right

Stanley v. Illinois (1972):

State law assumed a child of an unwed father became wards of the state upon death of the mother. Unconstitutional: State has to have powerful interest: don't know if these fathers were unfit or just b/c they weren't married.

Coppage v. Kansas (1915):

State law banning yellow dog K's (agree they wont join a union) Unconstitutional violation of Freedom of K. An interference with the normal exercise of personal liberty.

Meyer v. Nebraska (1923):

State law prohibiting the teaching of modern foreign languages for children under the 8th grade. Unconstitutional, deprivation of liberty without due process. Broad definition of "liberty" protected by the due process clause (substantive). Full opinion cites Slaughterhouse and Lochner; Common law, tradition and "natural duty"; Fundamental rights and our institutions. Test: not arbitrary, reasonable relationship to legitimate purpose.

Allegeyer v. Louisiana (1897):

State prohibited contracts with marine insurance companies not licensed by the state of LA. Unconstitutional, deprivation of liberty without due process of law. Employment-related contracts at least.

Minnesota Rate Cases (1890):

State prohibited judicial review of rates set by state commission. Court says you can't do that, we have to be able to examine rates under the Due Process Clause, undermines Munn.

Bradwell v. Illinois (1873):

State refused Myra Bradwell's license to practice law solely b/c she's a woman. Constitutional. Cited limited Privileges or Immunities clause. Granting of license is power of the state, so not a national citizenship priv/immun.

J.E.B. v. Alabama (1994):

State's use of juror preemptory challenges in paternity suit based on gender was Unconstitutional, removed male jurors "we shall not accept as a defense to gender-based preemptory challenges the very stereotype the law condemns"

Strauder v. West Virginia (1880):

Statute against blacks in jury selection pool is Unconstitutional under EPC. 14th amendment intended to prevent the discrimination illustrated by mere fact that people are expressly denied by a statute, affixes a brand on inferiority on them.

Loving v. Virginia (1967):

Statute preventing marriages b/t blacks and white. Violated equal protection & due process clause of 14th amend. The court easily struck down these claims pointing to the simple fact that the law relies of racial classifications, and that the state must be subjected to the "most rigid scrutiny." Doctrinal bases for applying strict scrutiny: Facial racial classifications (EPC); Fundamental right to marry (SDP). For obvious reasons, including the fact that the law subjected only marriages that included a white person, the statute's purpose was clearly to discriminate and uphold white supremacy. Under strict scrutiny the state was not able to show any other state objective for the existence of the law besides discrimination.

Chi Burlington & Quincy RR v. Chi (1897):

Takings Clause gets incorporated through due process.

Plyler v. Doe (1982):

Texas allowed undocumented immigrants to be denied free public education, challenged on equal protection grounds. Unconstitutional. Court applies intermediate scrutiny, "Can hardly be considered rational unless it furthers some substantial goal of the state." Court sometimes says that all laws need to be rational, and scrutiny only gives clarity: Stevens (Cleburne) → only one equal protections clause, must be rational and impartial. Might see Plyler recognizing Marshall's sliding scale approach: to apply intermediate scrutiny → Fundamentality of education with invidious nature of immigrant youth classification.

San Ant. Sch. Dist. v. Rodriguez (1973):

Texas funded education in part by local property tax, challenged on equal protection grounds. Constitutional under rational basis review. No suspect classification used, poverty not suspect (one prong of EPC doctrine); No fundamental right burdened (EPC doctrine of fundamental rights/interests). No proof of wealth discrimination. Past cases struck down wealth discrimination, when wholly unable to pay and so absolutely deprived of a benefit; no absolute deprivation; poorest folks not necessarily in poorest districts. Education is not as fundamental right: nexus between education and other constitutional right not enough. Needs to be more than socially important. Fundamental interests branch of EPC because superfluous to SDP. i. Marshall dissent: Education interest should trigger heightened scrutiny, "The very foundation of good citizenship" and is "A right must be made available to all on equal terms." ii. Nexus/sliding scale: "A principled reading of what this court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violate of the EPC. It comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn."

Lawrence v. Texas (2003):

Texas law prohibiting same sex people from engaging in intimate sexual conduct. Unconstitutional, violated of DPC of 14th. Emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives pertaining to sex. Doctrine of stare decises is not an inexorable command, no individual or societal reliance on Bowers to prevent us from overturning it, cases before and after Bowers have undermined jurisprudential effect. Bowers was wrong the day it was decided. Griwold, Eisenstadt, and Roe establish right to make certain decisions regarding sexual conduct, applies beyond marital relationship. Right was too narrow in Bowers, statute seek to control a personal relationship, not just about sex. Fundamental right vague, and no clarity on level of scrutiny. "Furthers no legitimate state interest which can justify its intrusion into private life of the individual." i. Scalia: Claims RBR, equates homosexual conduct to bestiality, other crimes which almost all cause harms.

Roe v. Wade (1973):

Texas statute makes procuring an abortion a crime except by medical advice for purpose of saving life of mother. Unconstitutional SDP "liberty" violation, "The right of personal privacy includes the abortion decision." Abortion choice = fundamental right/strict scrutiny. Fetus is not a 14th amendment person; does not decide when life starts. Reproductive/ procreative autonomy, bodily integrity/sovereignty, sex equality. Maternity may force upon the woman a distressful life, mental and physical health risks. Trimester framework is adopted. Third trimester/post viability: Potential human life, government interest becomes compelling, regulation permissible, can ban abortions, except to protect the health of the pregnant woman.

Necessary and Proper Clause: Article I Section 8

The Congress shall have Power ... 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 in any Department or Officer thereof.

The Slaughter-House Cases (1873):

The Louisiana Legislature granted a monopoly for the landing and slaughtering of livestock to Crescent City Livestock Landing and Slaughterhouse Company in the New Orleans Area. Constitutional under Reconstruction Amendments. The Thirteenth Amendment created to permanently abolish slavery, as was known during the African slave trade, cannot be applied to this example of de facto "servitude" caused by restricting the slaughterhouse market. The Privileges or Immunities clause was not intended to transfer the power of protection of such rights to the federal government from the states. The rest of the Fourteenth Amendment is likewise not applicable. Essentially gutted the privileges or immunities clause. Carrying out a lawful profession is not a privilege of the United States, but a privilege of state citizenship. Court interprets the clause to add nothing of substance to the constitution (Senator Howard thought this was the most important clause). EPC protection likely bars only anti-black discrimination.

Cooper v. Aaron (1958):

The interpretation of the Fourteenth Amendment enunciated in the Brown is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States. When we have authoritatively interpreted something from the constitution, it is the constitution Interpretation not text. The opinion was not simply unanimous, but was signed in the name of all nine justices

10TH AMEND & STATE SOVEREIGNTY

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

19th Amendment (1920):

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 sex. Congress shall have power to enforce this article by appropriate legislation. i. Prohibited discrimination in voting on basis of sex. Challenged assumptions about women and political representation: about the individual, not the household. Tried to extend 19th to sex based restrictions on employment and compensation. Some states felt 19th gave women political equality to hold office and sit on jurors.

Art I SECTION 8: COMMERCE CLAUSE

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes Also includes Art I section 10: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports

Fisher v. Univ. of Texas (2013):

Top 10% Law in Texas, supplemented post-Grutter to include Race as an admissions factor in order to get the educational benefits Grutter talked about. O'Connor replaced by Alito and more conservative on race issues, so P here asked SC to overturn Grutter. Court of appeals held constitutional, deferred to University: vacated & remanded. Court of Appeals did not properly apply strict scrutiny. Court not deferential on whether means are narrowly tailored. Under SS, courts have to decide whether law is narrowly tailored to its purpose and rely on own judicial judgment. This is the innovation of this case. Taking race into account has to be a last resort. i. Ginsberg dissent: look at purpose, which is the increase inclusion.

Youngstown Sheet & Tube Co. v. Sawyer (1952):

Truman executive order to seize steel mills, when workers went on strike during Korean War Unconstitutional. It is the power of congress to adopt such public policies that are necessary and proper, etc. The President does not have the power to issue an executive order that is legislative in nature. Congress had rejected the opportunity to pass supportive legislation and the President's act did not fall within the boundaries of existing statutes. President's power must derive from an act of congress or the constitution, which is void of any clause that would grant such power to the executive. Not properly interpreted under commander in chief power role. i. Jackson Concurrence: Tripartite Scheme: Zone 1: presumption of constitutionality. Zone 2: twilight zone. Zone 3: presumption of unconstitutionality. Jackson's concurrence laid out a three-category test to determine the validity of the Presidents powers. The three scenarios are 1) situations where congress enacts a law approving the president's action 2) situations where congress is silent 3) situations where congress enacts a law disapproving of the president's conduct. Jackson determined that since Congress had considered passing legislation to support the President but had rejected the opportunity to do so, then this instance fell into the third category, and one outside Presidential power.

Hamdi v. Rumsfeld (2004):

US citizen arrested in Afghanistan, alleged "enemy combatant," indefinitely detained in U.S. Congress authorized detaining enemy combatants, even citizens, for the duration of hostilities. SCOTUS has habeas jurisdiction (9 - 0). Habeas review not limited to "some evidence" (8 - 1). Due Process for citizens, notice of factual basis, fair opportunity to rebut, neutral decision maker, right to counsel (4+2 - 1). Basis for detention was an unsworn declaration against Hamdi. Separation of powers for the executive, power of war, should only have to show some evidence against prisoner, rejected by the court → Doesn't give that much power to executive branch. i. Ex parte Quirin (1942): 8 German service members snuck onto US soil, wanted habeas, U.S. Citizen still "Unlawful combatant"/"unlawful belligerent," may be tried by tribunals for war violations

Schecter Poultry Corp. v. U.S. (1935):

Unconstitutional federal regulation of live poultry industry in NY. The shipping of chickens to NY and regulating wages and hours has only indirect effects on commerce.

Bowers v. Hardwick (1986):

Upheld GA criminal ban and oral & anal sex as applied to homosexual sodomy as Constitutional. Rejected substantive due process argument. NO EQUAL PROTECTION CLAIM DECIDED BY COURT.

Webster v. Repro. Health Servs (1989):

Upheld MO banned use of " Public facilities

Poelker v. Doe (1977):

Upheld St Louis ban on use of public hospitals

Heart of Atlanta Motel v. U.S. (1964):

Upheld as Constitutional the Civil Rights Acts of 1964 under commerce clause, in preventing racial discrimination at private motel. Okay that purpose is to fix a moral wrong, because discrimination has disruptive effect on commercial intercourse. 1) 75% of clientele was out of state, 2) it was right off interstate 3) advertised nationally. Test: reasonably adapted means to regulate interstate commerce.

Stewards Machine (1937):

Upheld provisions of the Social Security Act that provided unemployment tax + compensation scheme. Coercion vs. inducement. Emphasized broad scope of Congress' tax and spending power. Problems for states to adopt their own unemployment systems, individual states would make themselves economically vulnerable. Germaneness, the strings have to have some relationship to the spending.

Munn v. Illinois (1877):

Upheld state law limiting rates charged by Chicago grain storage warehouses. "Police power to regulate conduct of citizens when it becomes necessary for the public good, private becomes public when it is affected with a public interest and used in a manner to make it of public consequence." Court not the proper people to determine reasonableness of the rates. Should be decided by the political process.

Goesaert v. Cleary (1948):

Upheld statute that stated women could only work at bars if dad/husband owned.

b. Naim v. Naim (1955):

VA anti-miscegenation laws, 29 states had them. Dismissed the case b/c no federal question: didn't want to inflame the south, and interfere with efforts to desegregate schools.

Buck v. Bell (1927):

VA authorized sterilizing mentally retarded. Constitutional, it is better for the entire world... Three generations of imbeciles are enough.

U.S. v. Morrison (2000):

VAWA provision authorized gender based violence victims to sue for civil damages. Unconstitutional. Further narrows Lopez by limited ability to regulate based on "substantial effect" prong, at least in areas traditionally regulated by states, cannot use cumulative substantial effect. Cannot regulate noneconomic violent criminal conduct using aggregation principle based on Wickard.

South Carolina v. Katzenbach (1966):

Voting Rights Act: 5-year suspension of literacy tests, preclearance of new voting rules, federal examiners. Held: appropriate 15th Amendment § 2 enforcement legislation. CG broad power.

Katzenbach v. Morgan (1966):

Voting Rights Act: allowed a 6th grade education in Spanish in Puerto Rico vote in places like NY which required English language literacy test. Appropriate measure to uphold 14th amendment; Congress can itself determine that there's an equal protection violation. McCulloch deferential standard used: let the end be legit, within scope of constitution, and all means which are "appropriate" plainly adapted to that end which are not prohibited but consist of letter and spirit of constitution are constitutional. Without judicial finding, CG can prohibit conduct under section 5 of 14th amendment. a. Footnote 10: "ratchet theory" held that Congress could ratchet up civil rights beyond what the Court had recognized, but that Congress could not ratchet down judicially recognized rights.

City of Rome v. United States (1980):

Voting Rights Act: jurisdiction covered by preclearance denied approval for voting procedure change without discriminatory purpose because of possible discriminatory effect. City was unable to use "bail out" provision (if they behaved for a while they could get out of the control of voting rights act). Appropriate legislation to support 15th amendment under Section 2, defer to congress b/c its a reasonable measure they took to deal with voting rights issues.

W. Coast Hotel v. Parrish (1937):

WA minimum wage regulations for women Constitutional overturned Adkins. Constitution does not speak of freedom of contract; the liberty protected is the liberty to be in a community that protects health, safety, morals and welfare of the people, subject to due process. Due process only requires that the infringement on contract is reasonable. Regulation, which is reasonable in relation to its subject and is adopted in the interest of the community (public purpose) is constitutional under due process clause (rational basis review). Health of women is as close as possible to public interest.

Washington v. Glucksberg (1997):

WA prohibition against causing or aiding in suicide Constitutional, no fundamental right so just RBR under SDP. Casey does not establish personal autonomy rights that sweep so broad. Distinguishes negative liberty right asserted in Cruzan, from the affirmative action requested here for assisted suicide. More than one legitimate government interest sufficient to uphold law, "Unqualified interest in the preservation of human life" from Cruzan. Slipery slope to euthanasia.

Zablocki v. Redhail (1978):

WI law that made a resident prove they support their minor before they could get married. (Had to have paid child support). Unconstitutional, right to marry is fundamental, violates equal protection b/c some people had to prove their financial ability to get married, and others didn't. Strict scrutiny is triggered. Law significantly or directly and substantially interferes with the right to marry.

Washington v. Seattle School District:

Washington constitution: busing purposes limited, leaving out integration. Held 5-4: violates equal protection. Kept board's authority save on race issues. Not a mere repeal of power by the enactor. Places special burdens on racial minorities.

Conditional spending doctrine

What kind of strings can Congress attach to spending?

Minor v. Happersef (1874):

Woman tried to vote in St. Louis where statute said, "men can vote." Constitutional. 14th amend didn't affect women b/c they've always been citizens, did not add new priv/immun just said a state could not abridge them.

The power to tax precedents

a. The Supreme court largely has upheld the power to tax i. Before and after Drexel the Child Labor Tax case a. McCray: upholds tax on yellow margarine → power to tax knows no limitations except those explicitly provided by the constitution b. Sonzinsky: upholds federal tax on firearms c. Kahriger: upheld tax on bookmaking

Later Applications of Necessary and Proper Clause

a. The influence of the Necessary and Proper Clause and its broader interpretation under McCulloch v. Maryland in American jurisprudence can be seen in cases generally thought to simply involve the Commerce Clause. b. In Wickard v. Filburn (1942), the Supreme Court upheld a federal statute making it a crime for a farmer to produce more wheat than was allowed under price controls and production controls, even if the excess production was for the farmer's own personal consumption. The Necessary and Proper Clause was used to justify the regulation of production and consumption. c. In National Federation of Independent Business v. Sebelius (2012) the Supreme Court ruled that the individual mandate of the Patient Protection and Affordable Care Act cannot be upheld under the Necessary and Proper Clause. Chief Justice John Roberts wrote in his ruling that the mandate cannot "be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act's other reforms. Each of this Court's prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. [...] The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is "necessary" to the Affordable Care Act's other reforms, such an expansion of federal power is not a "proper" means for making those reforms effective." i. According to its proponents, this ruling in NFIB v. Sebelius returns the Necessary and Proper clause to its original interpretation outlined by John Marshall in McCulloch v. Maryland. According to David Kopel, the clause "simply restates the background principle that Congress can exercise powers which are merely 'incidental' to Congress's enumerated powers."

General Electric Co. v. Gilbert (1976):

accepted Geduldig's reasoning, pregnancy discrimination under Title VII is not sex discrimination for similar reasons to Geduldig, EPC and Title VII not always the same interpretation (some race claims actionable on disparate impact). 1. So then congress amended Title VII to prohibit discrimination on basis of pregnancy, childbirth, etc. Pregnancy Discrimination Act of 1978

Prince v. Mass. (1944):

also recognized limits: boys 12, girls 18, cannot sell magazines in public, no violation of parental right to direct upbringing of children under cause/care. Compelling state interest: power to limit parent's right in things affecting child's welfare (child labor?).

Champion v Ames (The Lottery Case)(1904)

congress may constitutionally prohibit transportation of lottery tickets from one state to another to protect commerce and citizens from widespread pestilences. If a state can look at evils inherent in lottery, then so can Congress. Congress's power to regulate commerce is complete in itself.

MacKenzie v. Hare (1915):

congress treated woman's marriage to a noncitizen as a renunciation of her citizenship, constitutional

Maryland v. Wirtz (1968):

court upheld as Constitutional the amended Fair Labor Standards Act which Extended minimum wage and max hour regulations to almost all state and municipal employees.

Missouri ex rel. Gaines v. Canada (1938):

denied black students to law schools, Unconstitutional they are entitled to facilities substantially equal to those which the state affords for person of the white race. Equal Protection is an individual right.

Fight between the courts and other branches over the role of the courts in Detention

eventually unconstitutional to take courts out of the picture in determining the legality of depriving liberty

Combat Exclusion Policy (1994):

excluded women from combat explicitly for the 1st time, still cannot serve in combat units, on submarines, as navy seals or Air force para-rescue troops.

The Shreveport Rate Cases (1914)

federal regulation of intrastate RR rates, constitutional because of "close and substantial relationship" to interstate commerce. If the subject congress is regulating bears a close and substantial relation to interstate commerce, then congress can use its powers, rates inside Texas, affect people going through Texas, etc.

Detainee Treatment Act of 2005

i. "No court shall have jurisdiction to review habeas corpus reviews from combatants held at Guantanemo Bay" ii. Gave D.C. court exclusive jurisdiction to review the final decisions of respectively, combatant status review tribunals and military commissions

Identifying Fundamental Rights

i. "Very essence of a scheme of ordered liberty" ii. "Principle of justice so rooted in the tradition and conscience of our people" iii. "Neither liberty nor justice would exist if they were sacrificed" iv. "Whether offend those canons of decency and fairness of English-speaking peoples" v. "Necessary to an Anglo-American regime of ordered liberty"

Other Applications Related to Separation of Powers and War: a. Torture b. Wiretapping

i. Bush admin Office of legal counsel memo 1. Core war matters: detain and interrogate ii. McCain Amendment → law prevents torture iii. Geneva Conventions Common Article 3 1. Humiliating and degrading treatment iv. Presidential power to torture retractable by Congress? 1. Youngstown category? a. Category 3 → congress says you can't torture b. Congress will prevail in category 3 unless the president is operating in the realm of exclusive authority

Military Commissions Act of 2006

i. Gives President authority to define Genva violation ii. Bars Geneva as a source of right in habeas or civil proceedings iii. Retroactive changes to War Crime Act (fewer) iv. Section 7 "no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the U.S. as a enemy combatants

Death of Lochner's Freedom of Contract

i. Nebbia v. New York (1934) ii. West Coast hotel iii. US v. Carolene Products iv. The 1941 Decisions v. Lincoln Fed Union v. NIM Co. (1949) vi. Day-Brite Lighting v. MO (1952) vii. Williamson v. Lee Optical (1955)

The 11th Amendment/Sovereign Immunity

i. Private individuals cannot sue states for money damages without consent. ii. 11th amendment was proposed right after Chisholm decision: U.S. judicial power does not reach a suit by a citizen against a State. iii. Sovereign immunity expanded dramatically for money damages iv. Hans v. Luisiana (1890): States can claim S.I. even when their own citizens sue. v. RULE: private parties cannot sue states for money damages unless the state consents, congress cannot authorize private suits for money damages against non consenting states using article I powers

Incorporation Approaches → BOR into due process clause of 14th Amendment

i. Total incorporation → Justice Black 1. All bill of rights in 14th Amendment 2. Black argued in dissent in Adamson (1947) → privilege against self incrimination ii. Selective incorporations → Justice Frankfurter 1. Duncan v. LA (1968) 2. "Whether this is a procedure necessary to an Anglo-American regime of ordered liberty? iii. "Refined" incorporation → Professor Amar 1. Wrong question is "fundamental right" to apply to states 2. POIC was specifically there to apply to the states, anything that is a POI of US citizens should apply to the states 3. Right question → is this an individual right in the BOR? If yes then should apply to the states 4. E.g. establishment clause was a structural amendment, not an individual right, not a POI of citizens of the United States 5. Fighting against Slaughter-house, which the court has not yet repudiated iv. Actual doctrine → Is this a fundamental right? If yes than 14th amendment incorporates and is enforceable against to state 1. 3rd and 7th amendment not yet incorporated

Green v. New Kent Cty. Sch. Bd. (1968):

if you have legally imposed de jure segregation (both it and its vestiges) then had to be eliminated, but if its de facto (like zoning) does not violate constitution

Nguyen v. INS (2001):

immigration laws granted citizenship to child born out of wedlock to American mother, but if the father was American, he had to establish paternity. Constitutional b/c there are 2 state interests: 1) assuring biological parent-child rela6onship exists, easy to prove with mother, (genders not similarly situated) 2) Ensuring child and citizen parent have every day real ties, (connections), different with fathers b/c they don't even have to know baby was born. Use intermediate scrutiny. No "inordinate and unnecessary hurdles."

McLaughlin v. Florida (1964):

law punished interracial cohabitation or fornication more seriously. Unconstitutional, 14th amendments purpose was to eliminate racial discrimination. No legit state reason: Strong public policy renders racial classifications "constitutionally suspect", overturns Pace. Cites Boiling and Korematsu (suspect forms of discrimination).

City of Boerne v. Flores (1997):

legislation must be "congruent and proportional" to be legit use of "section 5" enforcement powers of 14th amend, cuts back Congress' broad enforcement powers.

Lane v Wilson (1939):

literacy test for voting, "grandfather clause" to allow anyone whose family could vote in 1866 (no blacks could). Then adopted new scheme, if you voted in 1914, you are automatically registered and if not, then you have 12 days to register. Unconstitutional. Facially neutral...but history which led up to statute was to deprive minorities.

Miss. Univ. for Women v. Hogan (1982):

men excluded from nursing school: Unconstitutional: State's justification is "compensating for female discrimination," not persuasive. No showing women were discriminated against in nursing. Also perpetuates stereotype of nurse as female job.

Gibbons v. Ogden (1824):

navigation is understood as a "commercial regulation" and can be constitutionally regulated by congress when the interests of more than one state is in question. "Among states" allows Congress to regulate within the interior of the state, when the interests of more than one state are involved. The power to regulate includes the power prescribe the rules by which commerce is to be governed, and is conclusive and complete, and can pass into NY's jurisdictional lines.

Bowers v. Hardwick (1986):

oral sex violated GA's sodomy statute. Constitutional, use RBR: Precedent: none of the past liberty cases (Myer, Pierce, Loving, Roe, Griswold) bear any resemblance to right of homosexual sex, no connection b/t family, marriage, or procreation to homosexual activity. Doesn't fit any definition of "fundamental": not implicit in concept of ordered liberty. i. Dissents: Privacy (decisional and spatial); Intimate associations (including sexual); Autonomy (choice)

Adarand Constructors v. Peña (1995):

overruled Metro Broadcasting: (3 propositions with respect to Facially Racial Classifications (skepticism, consistency, and congruency) any preference based on race must receive searching examination, standard of review needs to be consistent (SS), equal protection is same under 5th and 14th amend. Only when race based action is necessary to further compelling interest it must be narrowly tailored.

U.S. Railroad Retirement Board v. Fritz (1980):

provision of RR Retirement Act held Constitutional under EPC RBR. Gave $ to anyone who worked in a railroad, but not retroactive, only gave benefits to those who currently work for the railroad, challenged by retirees. It didn't matter if the legislature was coerced by the RR Co, b/c congress enacted what it wanted. The democratic process will rectify bad decisions, and judicial intervention is generally unwarranted. i. Dissent: Congress was tricked by the railroad company, actual purpose should matter.

Slaughter-House Cases (1873):

rejected all 14th amendment claims and gutted 14th amendment Privileges or Immunities Clause. Distinguished P/Is of citizens of states vs. P/Is of citizens of US. Art. IV simply requires any state PIs to be non-discriminatory. 14th amendment requires US PIs be honored period. 14th amendment citizenship clause recognizes two types of citizenship, but POIC only recognizes national citizenship. No big change in allocation of authority between national and state governments. The authority to regulate civil rights was not meant by the reconstruction amendments to transfer away from the states. Don't discuss original understanding of POIC, wholly ignored. Congressional speeches and con law treatises: shows evidence of incorporation. Later commentary: SH wrong, or anti-textual. Guts the privileges or immunities clause.

Voting Right Cases:

repeatedly upholds under §5 14th/§2 15th more than court itself would have found.

Bolling v. Sharpe (1954):

segregation of public schools in DC unconstitutional under 5th amendment due process clause. 14th only applies to states, but 5th amend applies in DC: "reverse incorporation" 5th does not contain equal protection clause like 14th "Equal protection is a mere explicit safeguard of un-prohibited unfairness, discrimination may be so unjustifiable as to be violation of due process, **5th amend cases too**

Civil Rights Cases (1883):

the Supreme Court interpreted Section 5 narrowly, stating, "The legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation." In other words, the amendment authorizes Congress to pass laws only to combat violations of the rights protected in other sections.

Harris v. McRae (1980):

upheld Hyde Amend, which prohibited use of federal Medicaid funds for abortion except for life of mother or rape/incest. Roe does not include constitutional entitlement to financial resources to avail her self of the full range of choice, she still has the same options as if congress had chosen to subsidize no health care at all

Fullilove v. Klutznick (1980):

upheld Minority Business Enterprise (MPE), which required 10% of federal funds for local works to go to minority owned/run businesses. Allowed waivers. No majority opinion. Held that MBE was within congress's power under Section 5 of 14th amendment, court was satisfied congress had abundant historical basis for which it could conclude that traditional procurement practices when applied to minority business could perpetuate effects of prior discrimination

Muller v. Oregon (1908):

upheld as Constitutional a statute limiting workday of women in factories b/c child-bearing physiology and social role of women provided a strong state interest in reducing their working hours.

Chisholm v. Georgia (1793):

upheld reach of Art III Sec 2 (creating judicial power), which extends to suits against states. (States can be sued), 11th amend overturned this with state sovereign immunity.

Marks v. United States

what's the holding when no majority opinion. Look at the justices that concurred in the judgment, whatever reasoning is narrowness that is the holding or common denominator.

Corfield v. Coryell (Circuit 1823)

wrote an opinion that privileges and immunities clause protected individual citizens and ensured substantive rights o Protects fundamental rights, that belong as a matter of right to all free persons, enjoyed in all states o Partial (non-exhaustive) enumeration

Basic SDP questions

• Is there a fundamental right (what scope)? o SS vs. RBR • What constitutes infringement of that right? o E.g. no abortion funding does not burden the fundamental right • Is the government purpose strong enough? o Legitimate government purpose vs. compelling government interest • Are the means sufficiently related to the end? o Rationally related vs. narrowly tailored

Senator Howard's Speech

• Privileges or Immunities Clause o Protects rights of US citizens o Article IV privileges and immunities clause → now interpreted as equality clause that providing for substantive rights • Corfield v. Coryell (Circuit 1823) → wrote an opinion that privileges and immunities clause protected individual citizens and ensured substantive rights o Protects fundamental rights, that belong as a matter of right to all free persons, enjoyed in all states o Partial (non-exhaustive) enumeration • Personal rights protected • Not voting (practical/political necessity)

Levels of Scrutiny Factors

• Text of Equal Protection Clause • Original intent behind 14th Amendment • General irrelevance of trait • Stereotypes/prejudice/"animus" • Lack of pol. power/FN4/discrete & insular • History of discrimination/group subordination • Immutability

The Fourteenth Amendment (1868) origins

• The Thirteenth Amendment (1865) o 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. o Congress shall have power to enforce this article by appropriate legislation. • "Black Codes" passed in Southern states • The Civil Rights Act of 1866