L6133, 5 Constitutional Law Professor Dorf Spring 2004 Model Answer to Final Examination In the following Model Answer,

, I have exceeded the word limit so as to address most of the major issues raised by student answers. Needless to say, answers reaching different conclusions and/or missing some of these points received credit where argued effectively.

Question 1 Standing Kentworthy arguably lacks standing because even a decision invalidating the new police officer selection system would not necessarily redress his injury: absent the reconsideration procedure, the Ginsburg PD might well fall back on the written and strength tests, leaving Kentworthy ineligible. However, in cases of this sort, the Court finds redressability on the ground that a court can, at the least, order that the plaintiff be given a fair opportunity to compete. Jnortheastern Fla Chap. v. Jacksonville; Bakke. Whether the ultimate result would be a new selection system in which Kentworthy might be chosen or the old system without the reconsideration mechanism would be a matter of remedial discretion. Disparate Impact The reconsideration portion of the selection system has a profound disparate impact on Kentians in favor of Stoners. Under Washington v. Davis, that fact alone is not sufficient to warrant an inference of purposeful discrimination, although the sheer size of the disparity here approaches those of Yick Wo and Gomillion, in which impact alone permits an inference of discriminatory intent. More directly, the reconsideration protocol apparently was adopted with the purpose of favoring Stoners, as the Police Chief expressly stated. Per Arlington Heights, the desire

to favor Stoners over Kentians was at least a substantial factor in the adoption of the reconsideration protocol. Absent further evidence, the challenged procedure triggers whatever level of scrutiny an express classification disadvantaging Kentians would trigger. (See next section). Comment: Some answers stated that because the Chiefs purpose was to pacify the city rather than to harm Kentians, the selection system ought not be treated as purposefully discriminating. That view is at odds with the Courts affirmative action cases, which treat the relevant purpose for triggering heightened scrutiny to be the purpose of drawing distinctions, not the purpose of acting invidiously. Comment: Some answers suggested that the selection system as a whole may not have a disparate impact, given that Kentians perform better than Stoners on the written and strength tests. This was an interesting argument that I credited, although I think it is wrong. The Courts Title VII cases, though not directly on point, are closely related, and they make clear that an employer cannot validate a discriminatory mechanism by pointing to the absence of bottom-line effect. See Connecticut v. Teal (1982). The principle at work is something like two wrongs dont make a right. Level of Scrutiny The fact that the selection system purposefully distinguishes between Kentians and Stoners only takes on constitutional significance if the Kentian/Stoner distinction triggers strict (or otherwise heightened) scrutiny. Kentians and Stoners are not, conventionally speaking, of different races, as both are descended from the same white English Protestant settlers. Although a religious schism explains their original parting, distinctions between Kentians and Stoners today are not distinctions on the basis of religion. Nor are they technically of different national origins: all are now Americans and all were formerly British subjects. Perhaps they could be considered different ethnicities, although ethnicity is usually associated with cultural differences that go beyond accent. Virginians and Vermonters (even those descended of English settlers) sound very different and have some different ways, but these probably wouldnt count as ethnic differences.

Nonetheless, the Kentian/Stoner distinction seems enough like a national origin distinction to trigger strict scrutiny. It is hard to see why the formal sovereignty of the two halves of the island is relevant for equal protection purposes, given that their populations were in fact isolated for centuries. Prior to the breakup of Yugoslavia, Serbs, Croats, and Bosnian Muslims all had the same national origin in the sense of the formal sovereign, but distinctions by a U.S. state favoring one group over another would surely have been subject to strict scrutiny. Perhaps thats because of ethnic and religious differences that themselves trigger strict scrutiny, but if the national origin category has any independent force it seems the relevant inquiry is not whether the two (or more) groups are sufficiently different along some set of sovereignty-related, physical, and cultural dimensions, but whether the perceived differences between the groups have the social significance that differences clearly drawn on the basis of race do. Another comparison: There are nearly no real differences between Hutu and Tutsi; yet the history of genocide strongly suggests that classifications drawn on this basis ought to be strictly scrutinized. Although the Supreme Court and, a fortiori, lower courts, are reluctant to expand the list of suspect classifications, recourse to the Carolene Prods test can probably be had to see whether to stretch the understanding of national origin and ethnicity sufficiently to cover the Kentian/Stoner distinction. In Kent, Stoners are a numerical minority; they are insular in living primarily in the isolated impoverished Stonerville district; and they are discrete in the sense that their accent and typically their stature make them identifiable. To be sure, an accent is not strictly immutable, and the short stature, as a product of poor nutrition, will likely erode in a generation or twobut not for any individual. The matter of a history of discrimination against Stoners is complex. The two populations first diverged because of what might be called Kentian persecution of Stoners, but current antiStoner prejudice seems largely unrelated to that original sin. Whether prejudice against the Stoners that have arrived in Kent in the last decade counts as a history is unclear, but ifas I suggested abovewe are using the Carolene Prods test to see whether to call the Kentian/Stoner difference a national origin/ethnicity

distinction, we need not find all the factors technically present. Accordingly, although a plausible case can be made for the opposite conclusion, the Kentian/Stoner distinction is suspect for equal protection purposes. If one were to conclude otherwise, it would be worth exploring whether the distinction is subject to any form of heightened scrutiny under one or more of the constitutional provisions and doctrines barring distinctions based on state citizenship. Stoners living in Kent are, by virtue of the citizenship clause of the 14th Amendment, Kent citizens, so the protections of the Art IV privileges and immunities clause are not relevant. More promising is the right to travel protected by the 14th Amendment privileges or immunities clause, which, per Saenz v. Roe, bars discrimination against new migrants to the state. (The same protection has been rooted in the EP clause in Shapiro v. Thompson.) Likewise, one might try to ground Kentworthys claim in the Dormant Commerce Clause. The difficulty with either move is the assumption that these provisions protect against discrimination in favor of new residents. The basic rationale for heightened scrutiny of laws that disadvantage out-of-staters or those new to the state is that the state political process will under-protect their interests relative to those of long-time state residents. That rationale clearly doesnt apply to laws favoring outof-staters and new state residents. But perhaps the inapplicability of the doctrines rationale is itself irrelevant. After all, a premise of heightened scrutiny of race discrimination is that racial minorities are underserved by the political process; yet that fact has not prevented the Court from applying strict scrutiny to laws favoring racial minorities. Thus, a plausible argument can be made that some form of heightened scrutiny ought to be applied to the selection system by virtue of its discrimination in favor of the right to interstate travel. In the interest of brevity, I dont go through that analysis below. Comment: A small number of exams suggested that heightened scrutiny applies because Kentworthy has applied for a govt job, which is a fundamental right. However, a govt job is only fundamental for purposes of the Art IV privileges and immunities clause, which, as discussed above, does not apply because the relevant Stoners are

Kent citizens. For substantive due process purposes, in the post-Lochner era, a job is a mere economic benefit, the denial of which triggers only rational basis scrutiny. Application of Strict Scrutiny Per Croson/Adarand/Grutter, strict scrutiny applies to all facially race (or national origin or ethnicity) based classifications, even those that are assertedly benign. No Supreme Court case considers whether a facially neutral policy that was adopted with the purpose of, and has the effect of, benefiting a minority group, is also subject to strict scrutiny, and there is at least a plausible argument that under some circumstances such a program does not trigger strict scrutiny. That was the position taken by the U.S. as amicus in Gratz, arguing that admissions programs like those in California, Florida and Texasin which graduates in some top percentage of their respective high school classes were guaranteed admission to a state universitywere a race-neutral alternative to conventional affirmative action, even though these percentage plans were adopted with the purpose and had the effect of increasing minority enrollment relative to the prior regime. In Grutter, the majority casts doubt on the raceneutrality of these programs ( even assuming such plans are race-neutral ), but even if we assume that the percentage plans would be considered race-neutral, the Ginsburg PDs new selection system is quite different. Whereas the formal decision mechanism in the formerwhere one placed in ones high school classtakes no account of race, the formal mechanism for the Ginsburg PD is a subjective assessment that, if Kentworthy is right, makes ones status as a Stoner determinative. Accordingly, the selection method should be assessed as an affirmative action program. Does the advantage for Stoners serve a compelling interest? Remedying prior discrimination by the government entity that committed the violation is a compelling interest, Croson, and there is some circumstantial evidence that the Ginsburg PD previously discriminated against Stoners. The strength and written tests, which have a negative disparate impact on Stoners, were both adopted at roughly the same time that the influx of Stoner immigration occurred and may have been adopted precisely to keep Stoners off the force. However, absent specific evidence to that effect, the remedial rationale seems weak.

Croson suggests that only a remedial interest can justify a race (or ethnicity or national origin) based preference in government contracting/employment, whereas Grutter indicates that a broader set of interests might be found compelling. Because Grutter does not formally cast doubt on Croson, it may be tempting to tempting to distinguish the two as relating to education and job opportunities respectively. If so, then diversityand arguably other interestswould be compelling in education but not in the distribution of job opportunities. We would then have to face the interesting question of whether an application to the Police Academyan educational institution whose graduates immediately begin in a government jobshould be classified on the education or the employment side of the line. But this approach seems overly formalistic. In affirming that diversity is a compelling interest in the construction of a student body for a university, the Grutter Court more likely was saying that diversity is a compelling interest where the institutional setting makes diversity extremely valuable to the attainment of the institutions goals. That is true in university education but not (the Court appears to think) in contracting. (But see Professor Estlunds new book on the value of workplace diversity.) Diversity of a police force is, if anything, a more compelling government interest than diversity of a university classroom. As visible authority figures, police must interact with and have the trust of the community. The Grutter Court favorably cited the military brief for the proposition that a racially integrated (i.e., diverse) officer corps is essential for commanding a racially diverse force. That point seems even stronger where the issue is relations with the community to be policed. Thus, the diversity interest here is ultimately a security interest of the sort that might even satisfy Grutter dissenters like Justice Thomas. Despite serving a compelling state interest, the admissions protocol may fail the narrow tailoring prong of strict scrutiny. It is not a quota in the Bakke sense: Kentians are not categorically ineligible for the reconsideration procedure, as the success of the Olympic athlete shows. Nor does it rely on fixed numerical weights as in Gratz. Formally, the individualized subjective

determination of whether a given candidate has the requisite intangible qualities looks like the permissible law school admissions program upheld in Grutter. If the juxtaposition of Grutter and Gratz means a state actor can adopt any formally holistic affirmative action program it wants, even if the Harvard-plan plus factor for race is enormousas Justice Kennedy suggests in his Grutter dissent then the large statistical disparity is unimportant. Formally, Ginsburgs reconsideration protocol falls on the Grutter side of the line. But there are reasons to think that even the Grutter Court would deem the reconsideration protocol unconstitutional as not narrowly tailored. First, whereas Michigan Law School legitimately did look at non-numerical factors other than race, the stark statistical pattern here suggests that it is nearly impossible for a Kentian to succeed under the reconsideration protocol while it is very highly likely that a Stoner will. One might think that a race (or national origin or ethnicity) based set-aside program ought not to be deemed narrowly tailored simply because a very occasional extraordinary applicant of the majority group slips through. Second, there is no indication that the Ginsburg PD attempted any neutral alternatives, such as the obvious expedient of scrapping the strength and written tests, or modifying them in ways that result in less of a disparate impact without sacrificing quality. It is possible that, as in Grutter, modifying the basic tests would result in too great a sacrifice in the goals of the institution (there student body quality, here police effectiveness), but the burden would be on the Ginsburg PD at least to come forward with some evidence to that effect. Especially in light of the fact that the city got by without the written and strength tests until only about ten years ago, it is quite possible that there are neutral alternatives. Third, there is no time limit to the review process (although perhaps, as in Grutter, the court could read one in). Accordingly, although the question is reasonably close in light of the formal operation of the policy, the reconsideration protocol is not narrowly tailored. It thus fails strict scrutiny and the court should hold it unconstitutional. Rational Basis Scrutiny

If one were to conclude that the selection procedure is not subject to strict scrutiny, it would clearly pass rational basis scrutiny. Being a Stoner certainly bears a rational relationship to being an effective police officer in the restive Stonerville community. Rational basis scrutiny with teeth per Moreno/Cleburne/Romer would not apply because the selection system is certainly not motivated by animus towards Kentians.

Question 2 Ripeness and Standing Flintstone seeks compensatory damages of $5, the amount that Stone would be obliged to pay him (assuming the constitutional issues are resolved in his favor) upon his appearing at the polls. The injury will not occur until November and accordingly the action appears not to be ripe. To be sure, (according to allegation 1 of the complaint) the State has made plain its intention not to compensate any citizens for voting in the coming November election, and so under the usual test of imminent injury, Lujan, the issue could be resolved now without doing violence to the case or controversy requirement of Article III. Such anticipatory cases, however, usually involve claims for injunctive and/or declaratory relief, rather than just damages, but we should envision an amended complaint rapidly following a district court dismissal (without prejudice) on these grounds. Depending on the merits analysis (below), Flintstone may want to so amend his complaint anyway, given that the States sovereign immunity may block damages actions but not a suit against a state official seeking injunctive relief. Were Flintstone seeking damages for the States failure to provide notice as required by Section 3b of the Act, he could perhaps bring the case in an anticipatory posture, but Section 4 of the Act only authorizes a private right of action for those injured by the States failure to provide written notice; given that Flintstone obviously already knows about the repeal of the poll tax, it is hard to see how he has been injured by the failure to provide notice. On the other hand, the Supreme Courts procedural due process cases like Mullane (yes, I know you read that case in civil procedure rather than con law but the law is a seamless web) suggest that a right to notice is a right to have the government jump through the hoops calculated to provide notice, not a right to notice itself, and conversely, a right to notice is not satisfied if the person with the right happens to learn of the relevant event. Moreover, someone in Flintstones position is a good candidate for third-party standing for a right to notice. Anybody whos savvy enough to sue for notice because he knows about the poll tax would be denied standing if Flintstone is denied standing on these grounds. Perhaps then, Section 4 should be seen as a Congressional

waiver of the prudential prohibition on third-party claims. The statutes injured by language would have to be deemed satisfied by the future injury of the denial of the $5, which the third-party plaintiff would indeed suffer. The remainder of this analysis assumes the court will reach the merits. Separation of Powers/Non-Delegation Flintstone claims that the Enforcement Act Panels effort to cancel Section 3(a) of the Act is ineffective. He is right on several grounds. To begin, the panels selection violates the appointments clause. If the panels members are principal officers, they must be nominated by the President and confirmed by the Senate. And even if they are inferior officers, they cannot be named by Congress itself, which may vest appointment power for such officers in the President alone, in the heads of departments, or in the courts of law, but not in itself. Metrop. Washington Airports Auth. However one characterizes the power exercised by the panel, it is unlawful. If, as the name suggests, it is executive power, then per Bowsher, Congress may not retain a check, as it does through the Speakers participation. If the power is legislative, as it appears to be, then its exercise must satisfy bicameralism and presentment, Chadha; Clinton, which it does not. Whether the power is executive or legislative, the participation of the Chief Justice goes well beyond the sort of nonadjudicatory functions that Mistretta permits Congress to grant the judiciary. Perhaps that problem is solved by the Chief Justices refusal to participate; the unconstitutionality of his participation would not, per the severability clause, taint the remaining two members of the panel, but the question is unimportant given that neither the President nor the Speaker may constitutionally participate either. Apart from the panels composition, the panels power may violate even the nearly-toothless non-delegation doctrine. Although nearly any standard will qualify as intelligible, here Congress has given the panel no standard at all to apply in deciding whether to suspend any

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portion of the Act. Under such circumstances, the courts will sometimes infer a standard from the structure of the Act, and perhaps the panels statement that cost justified the suspension of Section 3b can be attributed to Congress, though this is a stretch. The Presidents promulgation of the suspension as an executive order as well as on the authority of the panel suggests that he believes he has inherent authority to take the action at issue. However, this is not an area like foreign affairs where the President has inherent authority. Moreover, even if one treats the Act as signaling Congressional acquiescence in Presidential power here (per Jacksons concurrence in Steel Seizure) that does not avail the President. The power the President (implicitly) asserts is a line item veto, which, per Clinton, he lacks even if expressly given by Congress. A fortiori, he cannot construct one on the ruins of the Enforcement Act Panel. Accordingly, Flintstone is correct that the panels actions are without effect, and Section 3b is valid, unless, as we now consider, it is substantively unconstitutional. Comment: Some exams argued that Section 6 is invalid to the extent that it purports to take effect immediately upon passage, construing this language to refer to passage by Congress rather than passage by Congress and signature of the President (or passage by Congress, veto by the President, and subsequent override by Congress). Thats clearly right, although many statutes contain such language and are universally construed to refer to the full Article I, Section 7 process. State Sovereign Immunity and Affirmative Power As a damages action against a state entity (rather than a political subdivision like a city), Flintstones claim will be barred by Stones sovereign immunity unless it has been waived by Stone, which it has not, or it has clearly been abrogated by Congress acting under a power that permits Congress to abrogate state sovereign immunity. Section 4 of the Act is an unequivocal abrogation, so the question is whether Section 4 is a valid exercise of a relevant Congressional power. Congress can abrogate state sovereign immunity when acting pursuant to Section 5 of the 14th Amendment because the 14th Amendment postdates the 11th Amendment and specifically limits state power. The 24th Amendment also postdates the 11th Amendment and specifically

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limits state power, and its Section 2 is substantially identical to the 14th Amendments Section 5. Accordingly, it is fair to infer that the purported abrogation is valid if a measure to enforce Section 1 of either the 14th or 24th Amendment. As self-executing requirements, neither the 14th Amendment (in state elections) nor the 24th Amendment (in federal elections) affirmatively requires the payment of voters or the mailing of written notice of the abolition of a past poll tax. Further, per Boerne, Congress lacks power to impose new substantive obligations on the states. But Congress does retain the power to impose remedial or preventive obligations that go beyond what the Court itself would require, so long as those obligations are congruent and proportionate to what the Court would deem a constitutional violation. Where Congress has sought to remedy discrimination that the Court itself would not subject to heightened scrutiny (as in Boerne, Kimel, and Garrett), congruence and proportionality has required a very tight fit between means and ends, as well as a well-developed Congressional record. By contrast, in Hibbs, the Court applied a somewhat more relaxed version of the congruence and proportionality test in light of the fact that sex discrimination triggers heightened scrutiny. (Morrison, which also dealt with a purported remedial expansion with respect to sex discrimination but applied a forbidding version of the congruence and proportionality test, may be distinguished from Hibbs on the ground that extending remedies to the private sector is like a Congressional expansion of the domains of heightened scrutiny). The Act at issue here would appear to qualify for the relaxed version of the congruence and proportionality test because, as in Hibbs, Congress is operating in a domain in which its own precedents would require heightened scrutiny. Harper affirms that the voting rights status as fundamental triggers heightened scrutiny under the 14th Amendment, and the express provision of a right against poll taxes in federal elections contained in the 24th Amendment suggests a similar fundamentality. This line of reasoning was validated by the Supreme Courts decision, after you handed in your exams, in Tennessee v. Lane, upholding the public access provisions of the Americans With Disabilities Act, even though the Court had previously

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found other provisions of the ADA invalid in Garrett. The difference for the Lane majority was that the public access provisions implicated a fundamental right (access to the courts) triggering strict scrutiny. The Act here would pass a very deferential version of the congruence and proportionality test. Certainly paying people to vote is a rational remedy for previously charging them to vote. And the fact that the payment operates only for the first post-poll tax election and is in exactly the same amount as the prior poll tax gives it an appearance of proportionality. But even the Hibbs/Lane version of congruence and proportionality will require more than mere rationality. In Hibbs, it was easy to see how the failure to provide workers with family or medical leave was tied up in sexist stereotypes. Here the Act requires paying registered votersmany or perhaps most of whom will have previously voted despite the poll tax and thus dont need a remedy. Perhaps the notice requirement will induce many of those previously deterred from voting by the poll tax to come to the polls and receive their $5, but the remedy is certainly overinclusive. Indeed, it is not even remedial in any real sense. Stone never violated Harper or the 24th Amendment because the poll taxes all occurred while Stone was under British sovereignty. The obligations would have to be justified therefore as preventive measures, but they clearly are unnecessary to prevent future poll taxes; at most they are designed to prevent lingering effects of a regime which, had it occurred in the United States, would have been unconstitutional. The Act borrows from the Courts desegregation jurisprudence the idea of eliminating lingering effects, root and branch, but the system of de jure segregation was itself a constitutional violation. Perhaps if one wanted to be strongly positivist about these things, one might say that the pre-Brown system of segregation was legal because validated by Plessy, just as the prestatehood poll tax regime was legal under British law; and so in both instances, there is authority for a constitutional remedy to root out what was previously constitutional. But even under this reading, there remains the question of whether Congressional power to enforce the

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14th and 24th Amendments includes going after lingering effects that the courts themselves would not deem unconstitutional. The best argument against a finding of proportionality may go to the inadequacy of factfinding. Section 2 of the Act cites no lingering effects, and given that there has post-statehood general election, it is hard Congress could have had any such evidence. congruence and Congressional evidence of not yet been a to imagine that

Finally, one might plausibly find that the notice requirement of Section 3b is congruent and proportionate where the payment requirement is not, citing, among other things, the fact that constitutional rights are generally rights against various impositions rather than affirmative rights to payment, as well as the cost difference. And to the extent that Flintstones complaint could be amended to seek injunctive relief regarding notice, it would not be subject to state sovereign immunity. If so, one could then look to Article I, Section 8 powers, such as the Commerce Clause, for authority. But the regulated actthe states putative failure to provide notice regarding the abolition of the poll taxdoes not look like economic activity, and arguably concerns a matter of traditional state sovereignty. In any event, the unamended complaint could not, per Seminole Tribe, be justified under the Commerce Clause. Comment: Some exams argued that the Act is likewise deficient in invoking events in Stone but then subjecting the whole country to the Act. Thats a fair objection except that the Act doesnt impose obligations anywhere else because there havent been poll taxes anywhere else. Commandeering Even if Section 3 is authorized by a valid power under which Congress can abrogate state sovereign immunity, it may be invalid as commandeering in violation of New York and Printz. The required actions occupy a middle ground between these precedents and permissible regulation per Reno v. Condon. Like the law upheld in Condon, the requirements of Section 3 do not require the states to regulate their citizens; they are regulations of the states themselves. However, Condon may be read as drawing an act/omission distinction: Congress can prohibit certain

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acts by the States but cannot require affirmative conduct. If this is the lineand in terms of preserving state autonomy this line makes considerable sensethen the requirements of Section 3 do trigger the anti-commandeering rule. But there is a threshold question of whether the anticommandeering limits apply to laws passed under the authority of constitutional provisions, like Section 5 of the 14th Amendment and Section 2 of the 24th Amendment, that specifically authorize federal limits on state autonomy. Much of the language of New York and Printz is categorical, suggesting that, in addition to admitting of no de minimis or emergency exceptions, the anti-commandeering rule applies to all of Congresss power. Nonetheless, there is reason to doubt that categorical suggestion. Even if one thinks, per the Printz Courts account of Testa v. Katt, that impositions from the judiciary are different from impositions from Congress, in order to preserve a domain of remedial freedom under Congressional power to enforce the 14th, 24th, and like amendments, Congress must be free not only to prohibit states from taking certain actionslike holding elections in which English literacy is required even for those citizens who were educated in Spanish in Puerto Rico, Katzenbach v. Morganbut also to require some affirmative measures of the stateslike inter-district busing to undo lingering effects of prior de jure racial segregation. The matter is hardly free from doubt, but there is at least a plausible argument that Printz does not apply if the Act is otherwise a valid enforcement of the 14th and 24th Amendments; after all, if that is so, its because the forced payment of moneyordinarily offensive to state sovereigntymust yield to a federal interest, a justification which might be sufficient to overcome the insult to state sovereignty that commandeering ordinarily entails.

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