SEPARATION OF POWERS

ISSUE: Has The President Overstepped His/Her Boundary?

ART II POWERS: Treatises, Veto, CIC, Pardons, Laws Executed, Appoint
o BROAD
Energy of the Executive
Vesting Clause
o NARROW
Other branch power
Tyranny
YOUNGSTOWN
o BLACK: the president can ONLY act pursuant to a statute that grants him the power
to act, or pursuant to a Constitutional grant of power. When he acts without
authorization (and he does so in a way that effects peoples rights and duties) that is
law making. he puts powers into boxes/slots; executive separate from legislative
separate from judicial
o JACKSON: Although the branches are independent, they are also interdependent, and
the goal is that the branches work well together. He sets out the 3 practical categories
to determine when the president is acting within his power
SUB-ISSUE: What constitutes Congressional Disapproval?
If Congress passes a law that says, President cant do X, that is explicit
Congressional disapproval? Is the failure to enact legislation permission?
Maybe its expecting too much of Congress to say no every time they
disapprove of something.
DAMES & MOORE: Even though Congress had not positively told the
president he could or couldnt do what he did, there were other statutes that
granted President similar power. Therefore, Rehnquist (following after
Jackson) found Congressional consent.
ISSUE: Given The Growth In Size And Power Of The Presidency, Can Congress Control
The Presidents Actions?
AGENCIES:
o Agencies have some type of individual autonomy (dont operate under the executive),
but they are all officially located in the executive branch.
o There were arguments that Congress could not delegate its legislative authority to
other branches. The courts said as long as Congress laid down by legislative act and
in intelligible principle, such legislative action is not prohibited. There have only been
a couple of cases where the courts have found a problem with legislative delegation
of power.
PROS:
There is a lack of competence within Congress on these issues, and these
issues are increasingly complex (technology, railroads, broadcasting,
aeronautics).
If you create an agency stacked with experts they will do a smarter job.

These agencies are not restrained politically and are arguably impartial
Congress has a crowded legislative agenda; if Congress cant let the agency
work, its going to have to write all these rules and regulations itself.
CONS:
The Agencies lack political accountability. It is easy, therefore, for congress to
punt to them.
The Agencies consist of a large bureaucratic expansion of the executive office
LEGISLATIVE VETO: CHADHA
o PROS:
WHITE DISSENT: This was an efficient way to allow the legislature to keep
a check on the administrative agencies.
o CONS:
MAJORITY: It violates conditions of bicameralism in Art. I, Sec. 7 which
required legislation to pass through both houses in order to be effective. Art. I
Sec. 7 also requires presentment (it must go to the president subject to his veto).
there is a complex, law-making procedure (it is supposed to be difficult, but it
protects legitimacy and liberty).
Congress can delegate authority to the executive branch, but it cant delegate
that power to a sub-unit of itself. One chamber of Congress is not a proper
subject/entity of the law, in and of itself. It MUST work with the other
chamber in passing legislation.
o Alternative Legislative Power:
pass new laws/legislatively overturn some prior policy
Sunset provisionsLaw will be in effect for X amount of time, then it will
be re-authorized
Report and wait provisions: AG would have to ask congress for permission.
LINE ITEM VETO: Legislation passed by Congress that would give President power to
veto provision of bill relating to taxing and spending after law was enacted. Congress can
still pass disapproval bill which would override Presidents line item veto.
o PROS:
CLINTON DISSENT: This is just allowing the president to do piecemeal what
would have been done separately years ago. It once was possible to pass bills
dealing with single subjects, but that is no longer the case (now we have massive
bills). Given that, this is just a modern way of evening the balance and getting
back to the equivalent of what we used to have
We should interpret provisions dealing with structure and SOP generously in
terms of the institutional arrangement they present. We should allow the
branches to work together.

Removal of Executive Officers

Constitution is silent; does that mean removal is prohibited or allowed?
o BOWSHER Congress cannot reserve to itself the power to remove an officer charged
with execution of the laws EXCEPT BY impeachment (Congress cant keep all the
removal power to itself).
o MEYERS The court concluded the power to remove is an incident of the power to
appoint and the President has the exclusive power to remove the executive officers of
the US.
o HUMPHERIES clarifies, agency that engages in quasi-judicial or quasi-legislative
powers-then Congress can limit the Presidents power to remove because they are not
purely executive in this case.
o WEINER sets the stage for Morrison; agencies need independence, so Presidents
ability to remove is limited. It said the functional need of independence of a particular
body limited the Presidents removal power.
o MORRISON Morrison challenged the statute due to its insulation of the independent
counsel from presidential removal.
Issues:
Was it permissible to have a group of judges appoint the independent counsel?
o Depending on what kind of officer it is, thats okay IF this is an inferior
officer. The Appointments Clause permits appointments by the court,
b/c the independent counsels duties are consistent with the judicial
branches jurisdiction (as opposed to the judicial branch appointing an
officer whose duties have nothing to do with judicial power).
Is this an inferior officer? Yes
o Can be removed by higher officer
o Limited duties
o Limited jurisdiction
o Limited tenure
Are limits on removal Constitution?
o Yes. Test in Morrison:
Nature of office-is independence necessary?
Does it impose an under burden on the President in performance of his
duties?
Does this constitute undue encroachment or aggrandizement?
o EDMOND: defines inferior officer
Reports to superior officers; their work is supervised by superior officers also
appointed by President with Congressional approval.

ISSUE: Is The Presidential Immune?

NIXON:
o BROAD: President is arguing that he has to have total immunity b/c he must conduct
affairs of the office. President has the power to seek advice from his officials/cabinet
and there is need for candor (particularly in areas of national security)
o LIMITING: There are limits on executive privilege, and this is a court centric opinion
(the SC asserts a role for itself and says when the President makes an assertion, any
Article III judge can weigh the evidence and make that call). Strong assertion of a
role for the courts.
CLINTON: President is absolutely immune from civil liability for official acts
undertaken as President, at least in the absence of explicit action by Congress. There is no
immunity for private action.
ISSUE: Should SCOTUS Invalidate An Act Of Legislation?
LOCHNER:
o ALLGEYER: the liberty mentioned in the due process clause means that the citizen
should be free to live and work where he will and pursue any livelihood, and for that
purpose, to be free to contract.
This is a nice summary of those substantive rights that were thought to be
contained within the due process clause. These are un-enumerated economic
liberties contained within the due process clause.
health, safety, morals, general welfare (exercises of state police power) can
regulate freedom to contract.
The base line assumption the court makes is that any interference with the ability
to contract freely is against the general welfare UNLESS one or both of the
parties are particularly vulnerable. The court was not viewing bakers as a
vulnerable class.
o TEST: Is this a fair, reasonable, and appropriate exercise of the police power of the
state? Theyre really asking, do we thing this legislation is reasonable and nonarbitrary? Go underneath the surface of the statute and ask about the real motive of
the statute.
o CONS:
relies on liberty of contract in space (or behind a veil of ignorance). Its not
necessarily the case that the parties are contracting freely. The legislature should
be able to alter the bargaining power of parties.
We could adopt a FEDERALISM orientation to it and say that by allowing the SC
and other courts to strike down this legislation, we interfere with the states ability
to be laboratories.

There is also a question of judicial activism (competence of courts vs.

legislatures). The court asserted a power to review state laws on the basis of its
own views of liberty.
NEBBIA: The court also takes a broader view of what the legislature may view as
public interest. A state is free to adopt whatever economic policy may reasonable
by deemed to promote public welfare.
o Basically, if after deferential, RB review we conclude that the legislature had a
rational basis for legislating, then the courts job is done.
WEST COAST HOTEL: The court pretty much rejects the idea of freedom of contract.
and the legislature can set and change entitlements and engage in routine social/economic
legislation. Even if we conclude the wisdom of the policy is debatable, that is for the
political process to resolve. Court determines that all we have to decide is whether some
legislative response to some legislatively determined evil is arbitrary. Even if the court
does not exactly agree with the wisdom of the policy.
CAROLENE: Unless we fall in some exception set out, the courts will uphold socialeconomic legislation under rational basis standard.
o Bill of Rights
o Entrenchment/clogging channels of political change
This would be like laws violating voting rights. This could extend the incumbent
advantage. Why do we care about this for thinking about presumptions of
constitutionality? We dont want to give Congress deference at all if they are
trying to entrench themselves or clog the channels of political change.
o Discrete & Insular minorities
What is the risk in the political process of being a
discrete and insular minority? They dont have the option of becoming the
majority. They can be the permanent victim of the political process.
WILLIAMSON: the legislature MIGHT have thought this was a good idea. The court
basically says it doesnt even have to be a good law. There just has to be some connection
b/w the means and ends
o It could be argued that there should be a presumption of self liberty. If the
legislature is not even obliged to come up with a good reason then that is the death of
autonomy, and the court went too far in rejecting the Lochner Era.
o Is it even possible to have a test that determines what a good reason is? And even if
there is, wouldnt this be the court second guessing legislative policy decisions,
something they are not supposed to do

ISSUE: What Are My Fundamental Rights?

Today, the Court focuses on three types of rights under substantive due process in the
Fourteenth Amendment, which originated in Carolene Products, footnote 4. Those three
types of rights are:

o the rights enumerated in and derived from the first eight amendments in the BOR
o the right to participate in the political process (e.g., the rights of voting,
association, and free speech); and
o the rights of discrete and insular minorities.
o If the court establishes that the right being violated is a fundamental right, it
applies strict scrutiny. Strict scrutiny asks whether the law is justified by a
compelling state interest, and whether the law is narrowly tailored to address the
state interest.
o There is also a middle level of scrutiny, called intermediate scrutiny. It is
primarily used in Equal Protection cases
Critics argue that judges are making determinations of policy and morality that properly
belong with legislators (i.e. "legislating from the bench"), or argue that judges are reading
views into the Constitution that are not really implied by the document
o Critics: Scalia, Thomas, White
o Breyer believes the justices need to look at cases in light of how their decisions
will promote what he calls "active liberty", the Constitution's aim of promoting
participation by citizens in the processes of government. That is an approach that
ostensibly emphasizes "the document's underlying values" and looking broadly at
a law's purpose and consequences.
GRISWOLD: Right to privacy in the intimate relations of marital couples.
o Douglas says the BOR creates zones of privacy. We can take a common
meaning b/w rights.
o Goldberg calls it basic, fundamental rights. Ultimately, we have to look to the
traditions and collective conscience of our people. Hes not saying that
ANYTHING will survive (it has to be a deep rooted fundamental principle).
POE: gives a way to determine whether there is a SDP right. There is no formula or code.
Harlan gives us two pointers:
o We look to history or tradition to figure out whether there is some right at issue that is
a SDP right.
o On the other hand, its a living tradition. Its not simply identifying some moment
or idea that is always the case, there is going to be some changes to SDP rights over
time through common law.
o Harlan also mentions judicial restraint; the court should not just invent new rights.
If we find a right at stake, there needs to be something more than RB standard (maybe
not quite strict scrutiny) when the court judges the law.
o Harlan also mentions that morality is a state interest (someone like Barnett would
disagree).
MICHAEL H.
o Scalia says the right should be construed in the narrowest way possible. Footnote 6
Judicial restraint requires adoption of the most specific tradition as the point of
reference.

o Dissent [Brennan]not quite Harlans approach but it is more broad. He rejects

insistence on the most specific level of generality. Reasonable people can disagree
about liberty. Even if we could agree on a particular tradition, we still have to
identify the point at which a tradition becomes fundamental, and these are
questions that cannot be objectively answered.
ROE
o EISENSTADT: The court said the right to privacy means to be free from unwarranted
governmental intrusion into matters like the decision whether to bear or beget a child
o Is there a fundamental right that protects the abortion decision?
Yes, it is a due process right. It is a right of personal privacy. Roe talks about a
right of personal privacy encompassed in marriage, child-rearing, familial
relationships, etc.
Are there problems with identifying a right to abortion as implicit in the concept
of ordered liberty?
There are laws in many states regulating and proscribing abortion, so
historical analysis seems to fail. So how do we get there? You expand the
scope of the right. You dont talk about a right to abortion; you talk about a
right to privacy, and treat the abortion right as encompassed in a right to
privacy.
Can we understand the abortion right in a different way?
Right to bodily integrity
Decisional autonomy
o Important personal decisions of this sort must be left to individuals
to decide, not a political majority.
o There are problems with this though; its hard to say that the right
to decisional autonomy has long roots or applies absolutely. There
are many areas where you decisional autonomy is limited.
o Is there a countervailing governmental interest in regulating abortion or
interfering with the decision to have an abortion?
If this is a fundamental right, what kind of burden must the government meet
here? A compelling state interest
What kinds of interest might the state have in regulating abortion?
o Protecting fetus as person
The 14th amendment itself protects all persons right to life.
The court says that there is still an interest, but we arent going to
treat the fetus as a person for 14th amendment purposes. One of
the reasons they do this is to avoid a deep, metaphysical question.
The judiciary shouldnt speculate on the issue.
o You could argue that the court is punting on the status of the
fetus, and Congress has decided where life begins in this case.
Therefore, the court should have upheld the statute as a
political question.
CASEY
o Does the court emphatically affirm Roe? Yes and no:

The court draws the line simply at viability, not under the trimester approach.
Before viabilitythe woman has a right that the state regulation not be an
undue burden on the mother.
After viabilitystate can restrict except in cases that the life/health of the
mother is at stake.
In this case, the court notes there is a continuing state interest across the whole
term of the pregnancy (this differs from Roe).
GONZALES
o Congress found, under the law, that there was a moral and practical problem with
performing a partial birth abortion, and that the procedure was never medically
necessary
LAWRENCE
o The court overturns Bowers:
The definition of the activity was too narrow. The activity was about controlling a
personal relationship; controlling fundamental/private conduct. It was not just a
sex act.
The Bowers court said there was a long tradition of criminalizing homosexual
conduct, but this court says this was not the case. There were laws against
sodomy, but they werent focused on homosexuals.
o Is the court discovering an emerging value (taking broad approach)?
In this case you can find an emerging value. You could say that this is just a
fundamental right and not even an emerging value. You could argue that we
should allow popular consensus some deference. Could be problematic b/c we are
taking popular consensus about a fundamental right to declare that the
fundamental right exists.
Is there a fundamental right? Its tough to say. The court dodges the issue by
saying they dont even need to get there b/c this wouldnt even pass RB review.
GLUCKSBURG- Asked court to extend existing rights (e.g. refuse treatment) to include
right to assisted suicide
o Whats the test?[p. 611]our established method of SDP has two primary features:
Due process clause protects those liberties objectively deeply rooted in the
nations history such that neither liberty nor justice would exist if they were
sacrificed. In this case, we dont have a tradition of physician assisted suicide.
However, could we have described the right differently (i.e. in a Lawrence-esque
way). We could definitely have put it into more abstract terms: A right to die
with dignity.
o A careful description of the asserted interest is required

ISSUE: When is equal protection triggered?

LOVING:
o Its triggered when we see actions of hostility/ invidious motives on the basis of race.
o Racial classifications are subject to strict scrutiny
PLESSY:
o the law does not subject black and white people to differing treatment. Each are
entitled to equal accommodations. They just cant be the SAME accommodation. The
majority says that if this creates a badge of inferiority its not b/c the law says so.
o BROWN: If we accept this kind of legislation, does that mean that the legislature will
be able to separate people based on hair color? The court says NO. The legislature is
still subject to reasonableness. Why is this a reasonable distinction? Because it is
based on the established customs and traditions of the people with a view toward
public peace and good order
BROWN:
o The first and easiest step was to argue on the equal part. The facilities were not
equal. The next step was represented by cases like Sweatt. The court there found that
not only were physical amenities unequal, but other intangible qualities were as well
(inability to mix with others, learn with a diverse class of people). By the time Brown
rolled around, the court was left with no choice but to ask if segregation was even
valid.
o In the wake of Brown, the court issued a series of short orders applying it to various
public facilities other than schools.
GREENE:
o De jure:
o De facto:
SWANN: This case addresses how broad a remedy could be. The court said in exercising
its equitable powers, a district court could do a number of things:
o Redraw district lines
o Provide for busing students b/w different districts in order to provide for an integrated
school system
ISSUE: What about laws that dont make any racial classification, but have an unequal
impact based on race?
WASHINGTON:
o The SC says that there must be discriminatory intent, not just impact (de jure vs. de
facto). In order to find a violation of EP, law must be traced back to a racially
discriminatory purpose. Disproportionate impact, standing alone, does not trigger
strict scrutiny. A law that disproportionately affects one race isnt necessarily a racial
discriminatory law. If we subjected all laws that have disproportionate impacts based

on race to strict scrutiny, that would force courts to monitor an enormous range of
govt programs and policies
Does Washington tell us that disparate impact is irrelevant? No, its true that
impact is not unconstitutional, but it may be evidence of discriminatory
purpose.
ARLINGTON:
o The court here shows a burden-shifting approach: The plaintiff need only show that
a discriminatory purpose has been a motivating factor in the decision. Once that
burden is met, the burden shifts to the defendant to show that the same result would
have happened regardless of discriminatory purpose. If the defendant cannot show
this, that means the discriminatory purpose was a but-for cause of that govt action.
What kinds of things can we use to find discriminatory intent?
Impact itselfoften will not be enough, but if a pattern emerges that is clearly
explained by improper motive than the law will fail.
Historical background of the decisionlets say you see a series of steps
taken for invidious purposes leading to a law that is facially neutral but
discriminatory in effect.
Sequence of eventslike a pattern of zoning laws that all of a sudden change
once black people start moving into the neighborhood.
Legislative Historydiscussion of legislatures can show intent.

ISSUE: What happens when classification takes place for purportedly benign reasons?
BAKKE: The court said this was a racial classification and therefore it gets strict
scrutiny. So whats the test? The program must be narrowly tailored to achieve a
compelling government interest.
o What compelling government interests?
Remedial? (remedying the lingering effects of discrimination)
Powell and later decisions show that this is insufficient. It is too amorphous in
its own terms. UC Davis asserted it was addressing the effects of GENERAL
society discrimination (not discrimination by UC Davis). The court says that
is not a compelling governmental interest (thats too general).
Does that mean remedial interests are ALWAYS inadequate?
o No, where the institution itself engaged in discrimination then some race
classificatory remedy may be a compelling govt interest
Balancing?
The court rejects racial balancing (simple racial preferences/ interests) within
an institution. That is racial sorting and impermissible under the EP.
Its not societal diversity; it must be educational diversity. The court says this
is linked to universities as special institutions (they have special value under
the 1st amendment). Universities have long recognized it is important to have

a range of voices and exchange of ideas, so universities have had substantial

freedom to select student bodies. If they argue there is a virtue in educational
diversity, that is okay
FULLILOVE: It was important that it was CONGRESS that made the rule rather than a
local government. The SC said Congress does not just have remedial authority, but it also
has a positive power to pass civil rights legislation, whereas states must conform their
conduct to the EP clause. SC uses an intermediate level of scrutiny for federal AA
programs.
ADARAND: The most important thing that this case is does is reject a lower level of
scrutiny for federal programs. It makes clear that the 14th amendments requirement of SS
for racial classification is the same.
GRUTTER: diversity in higher education is fine, as long as race is just one fact, not
determinative factor.
o Court adopts BAKKE reasoning
Why can there not just be one or two black students? This is where the critical
mass argument comes in. These interests are not served well with only a couple
of minority students. You dont want the black perspective on issue X. It
doesnt put a minority perspective in a box.

ISSUE: Is gender like race? What are the differences?

Immutable
There is a history or discrimination and disparate treatment
Numerical differences suggest that perhaps women are a discrete class, but not an insular
minority (they have considerable voting numbers)
Unlike race, the stereotype is less about inferiority and more about them being suited to
specific domestic spheres. It was protective rather than hostile.
There are biological differences (like reproductive capacity).
CRAIG: Set the intermediate scrutiny standard
o The court is less concerned about hostility and more concerned about
distinguishing b/w laws that recognize genuine differences b/w the sexes that are
relevant for govt purposes and laws that engage in archaic and overbroad
generalizations (outdated misconceptions).
VIRGINIA:
o Reviewing court must determine whether the justification is exceedingly
persuasive. The state must show at least that the challenged classification shows
important governmental objectives and those means are substantially related to
achieving those goals.
o This goes to a general tier of scrutiny point. She says we do IS, but she is putting
extra teeth on the IS test and pushing it into something more like SS. Court will

look at ACTUAL motives based on REAL evidence (not on hypothesized

justifications).
ISSUE: How should other classes be treated?
Aliens
o Not an immutable class however, there is a lot of hostility towards this group and they
are not politically represented at all.
o State/ Federal
Most alienage distinctions made by the state are subject to SS b/c it doesnt lie
within the power of the states per se to regulate their status (Congress has this
power).
On the other hand, because the rules to establish nationalization is a federal power
and it requires politically based distinctions (i.e. set detailed rules for citizenship),
that is treated as being almost a political question. Congressional regulations
affecting aliens get a less degree of scrutiny.
o General/ Public Function
Most alienage distinctions by states are subject to SS, but the state government
can condition access to what the court calls, public function. Public function are
positions where citizenship is a presumably relevant characteristic for service
(like representatives of a state: police officers, public school teachers). In those
cases only RB will apply.
Legitimacy/ Illegitimacy
o IS applies b/c the court believes there are some cases where this could be a relevant
characteristic (like laws dealing with distribution of the state). But the courts want to
make sure laws are not passed due to hostile attitudes towards illegitimate children.
Age
o RB applies b/c there are legitimate bases for classifications, they are politically
powerful (they can form alliances with other groups of voters), and many laws
classify on the basis of old age for benign reasons (a lot of protection for the elderly
that would be put under SS).
Disabled
o CLEBURNE:
RB applies b/c the disabled are not a suspect class. Also, the legislature has
substantially attempted to serve and care for the disabled. Since there are a lot of
laws protecting the disabled, they are not utterly, politically powerless. Disability
is not always an irrelevant characteristic, and there is a broad range of
impairments in the class of the disabled (if the state is going to deal well with the
specific needs of the disabled it needs discretion to address those needs)
The law here is invalidated, and yet the state came up with all kinds of
justifications for the law:
If its RB standard, why is this not okay? The zoning ordinance was based in
no other legitimate purpose but hostility to the disabled. Is this RB review?
o The court refused to expand a suspect class, but still provided that class
with a heightened RB standard

Sexual Orientation (LGBT)

o Why SS?
They are a discrete and insular minority
Relevant traits should be treated as immutable.
History of discrimination
o Why anything less than SS?
Uncertainty about the nature of the class
This is still a contested issue (many states believe this is a moral, and therefore,
acceptable issue)
Slippery slope concern
o ROMER
Court says theyre applying RB (but it is slightly ambiguous), but why does the
court strike it down anyway?
This is a law resting solely on irrational prejudice against gay people (the only
basis for the law is animus). Law motivated by animus against a particular
class cannot survive even RB. Why? It doesnt simply involve preferences
as the legislature said. The amendment is a rare case of per se EP violation.
The court treats existing anti-discrimination laws as a baseline for treatment.
Once the state chose to apply these laws (which it didnt have to do), the state
could not now make exceptions. The amendment singles out a particular class
for disparate treatment and that is a violation of EP on its face.
o WINDSOR
The court avoids getting to the issue of scrutiny here; applying what it still calls
RB.
Does the court gain anything by not treating gays and lesbians as a suspect
class?
Obviously it helped gain a majority in this case.
Maybe its not quite ripe to call them a suspect class
Should we apply this standard of RB across the board, or just apply this kind of
RB standard to certain, unique cases?
Both at the Romer stage and today, there might be a concern that if we come
out and say SS, then we would be recognizing same-sex marriage. The court
still assumes that states can choose to recognize or not recognize same-sex
marriage.
What does it mean when we say that a law motivated by hostility or animus is
per se a violation of EP? Does this mean a state cannot be motivated by purely
moral reasons? Does a state have to use publicly accessible reasons to make
arguments for laws?
Wealth/ Class
o In the late 60s and 70s, there was an indication in some cases that courts considered
the Constitution applied positive rights. This view ultimately failed and Rodriguez
shows this.
o RODRIGUEZ

School districts in TX got a minimum amount of funding and then supplemented

the budget with local property taxes. The court said that this program did not
violate EP.
Is wealth, itself, a suspect class? No, it is suspect only to RB review for a few
reasons: Its rational to draw lines on this basis, in terms of ability to pay. Its not
mere invidious, hostile action. If the court went down this line of action it would
end up going back to the Lochner days in that it would be obliged to review ANY
piece of economic legislation.
Is there an absolute right to education?No, and the court wont intrude into the
legislative sphere to try and implement the best system.
The lines in this case were not solely wealth based (there were geographic
boundaries in play as well). And the state provided at least a minimum level of
benefits to every district so nobody was absolutely deprived of the governmental
benefit of education based on wealth.
You might can relate this back to Brown and post-Brown remedies. Once the
legal wrong has been dealt with (no de jure discrimination) then things like resegregation and disparities are not necessarily going to be constitutional wrongs.
Rodriguez said as long as there is minimum access, disparities in wealth are
not going to be dealt with.
o PLYLER
Dealt with the denial of education all together to children of aliens.
It flies in the face of Rodriguez. There is an important distinction here in that this
was a complete denial.
This case did not state some absolute rule/precedent, but this case was a sport.
The facts were so dismal and punitive that, even though the court applied what
looked like IS here, this is probably an anomaly.