Jensen Grant

Judicial Review
Cases
o Marbury v. Madison
Importance:
Established authority for judicial review of federal legislative and
executive acts
Establishes that Article II is the ceiling for federal court jurisdiction
Established the Constitution as supreme over law of the land
Reasoning: Inter alia, part of the reason judges can review legislative acts is
because they take the same oath of office as legislators
o Martin v. Hunters Lessee
Importance: Established Supreme Court review of state court decisions
o Cohens v. Virginia
Importance: Affirmed Supreme Court review of state court decisions to include
criminal cases
Doctrines of Interpretation
o Originalism
Silveira v. Lockyer
Importance: 2nd Amendment does not allocate an individual right to bear
arms; it was meant to guarantee the viability of the state militias.
o Non-Originalism
United States v. Emerson
Importance: 2nd Amendment does protect individual rights . . . [although]
those rights [may] be made subject to [limitations]
The 5 Guidelines for Judicial Review/Justiciability
o Generally
These rules exist so that the Supreme court is satisfied that the cases it is deciding
are good, well-prepared cases with genuine interested parties who will make the
right arguments
These are judge made doctrines and are thus open to interpretation
o 1-No Advisory Opinions: Derived from Art. III cases and controversies req.
o 2-Ripeness: bringing a lawsuit too soon bars it from being heard; exception is facial
challenge which asks whether the federal court may grant pre-enforcement review of a
statute or regulation - this is a response to the usual way of getting a law declared
unconstitutional, which requires conviction under it
Factors to consider include the hardship the plaintiff will suffer without pre-
enforcement review as well as the fitness of the issues in and the record for
judicial review
Poe v. Ullman
Abbott Laboratories v. Gardner
Importance: Two prong test for ripeness
o Whether the issue is fit for judicial decision, and
o The hardship to the parties

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o 3-Mootness: requires an ongoing injury at all stages of litigation; two exceptions include
wrongs capable of repetition but evading review and voluntary cessation (wherein the
defendant voluntary halts the offending practice, but is free to resume it at any time)
Defunis v. Odegaard:
Importance: Case is moot since plaintiff will be allowed to finish law
school no matter what
o 4-Political Question: Requires that some allegations of Constitutional violations be
resolved in one of the other two branches; controversies to fall into this category include
cases under the republican form of government clause, challenges to the Presidents
conduct of foreign policy, and challenges to partisan gerrymandering
Nixon v. United States: Federal judge impeached
Importance: Case is found nonjusticiable since it challenges the
impeachment and removal process vested in the legislature
Reasoning: Nonjusticiable not only because of the explicit directives of
the Constitution, but also to leave the judiciary out of the same process
which checks its power. Also, lack of finality if the judiciary intervened
and the difficulty of fashioning relief militate against justiciability.
Baker v. Carr: Malapportionment challenged under the EPC
Importance: Rule - Is there constitutional text that says the power should
be exercised by some other branch of government. This case found no; a
malapportionment claim was found justiciable under the EPC.
Reasoning: Nonjusticiability of a political question stems from the
separation of powers embodied in the Constitution.
o 5-Standing: requires the plaintiff to be the proper party to bring the matter before the
Court for adjudication
Constitutional Bases of Standing
Injury: plaintiff has to prove he has been or imminently will be injured;
these injuries must be personal
Causation & redressability: plaintiff must allege and prove the defendant
caused the injury so that a favorable court decision is likely to remedy the
injury (idea is prohibition against advisory opinions)
Allen v. Wright: Plaintiffs bring suit during time of private schools
cropping up and discriminating against African Americans
o Importance: Injury too abstract and indirect no real injury; also,
no clear idea that if tax exemptions were taken away they would
change what was happening (redressability)
City of Los Angeles v. Lyons: Plaintiffs suit asking to not be put in a
chokehold again by police
o Importance: Plaintiff is found to lack standing (redressability):
likelihood of event happening again is too remote.
Note: Case law on standing reveals it is difficult to challenge public
policy in court
Prudential Requirements of Standing
No third party standing is allowed: plaintiffs cannot present the claims of
third parties not before the court; two exceptions are close relationships

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between the plaintiff and the injured third party and/or if the third party is
unlikely to assert his or her own rights; idea is that this is better fought
out in other branches
No generalized grievances are allowed: cannot be suing solely as a
citizen or a taxpayer interested in having government follow the law; idea
is that this is better fought out in other branches
o Frothingham v. Mellon:
Importance: Rule no general taxpayer standing
o Lujan v. Defenders of Wildlife: Government policies allegedly
aiding destruction of endangered species
Importance: Suits challenging, not specifically
identifiable violations of law, but the particular programs
agencies establish to carry out their legal obligations . . .
[are], even when premises on allegations of several
instances of violations of law . . . rarely if ever appropriate
for federal-court adjudication
Reasoning: Inter alia, Court worries about slippery slope if
it adjudicates this
o United States v. Richardson: Revealing CIA Expenses
Importance: Taxpayer standing requires first, a challenge
to an enactment under the Taxing & Spending Clause of
Art. I, Sec. 8, and a challenge that the given enactment
exceeds specific constitutional limitations imposed on that
power
Reasoning: Inter alia, fact that no one could would have
standing otherwise is not an argument for justiciability
o Flast v. Cohen: Publics funds alleg. used for rel. schools
Importance: Taxpayers may have standing for
Establishment Clause violations, provided they establish a
link between their taxpayer status and the leg. Enactment
attack and also establish a link between their tax payer
status and the precise nature of the constitutional
infringement
Reasoning: No absolute bar in Article III to suits by
federal taxpayers
Separation of Powers
Presidential Power
o President & Executive Privilege
Clinton v. Jones:
Importance: Rule - President has absolute immunity for acts that done
while carrying out his duties as President; this does not go, however, for
acts done before his Presidency
United States v. Nixon:
Importance: Rule - Executive privilege protects Presidential papers and
conversations, but such privilege must yield to overriding need for the
information, as in criminal trials

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Reasoning: Harm against President is sort of abstract, non-tangible harm,

whereas the harm against the judicial system for not being able to
prosecute a case is clear and tangible
Unlike Congressional power delegation, which in Art. I read herein granted,
the Presidents power is elucidated simply by the executive power shall be
vested
o Domestic Power
Youngstown Sheet & Tube Co. v. Sawyer:
Importance: Rule (Jacksons concurrence) Three levels of Presidential
power
o Acting pursuant to explicit or implied authorization of Congress
o Acting absent a grant or denial of authority from Congress
o Acting against an expressed or implied will of Congress
Reasoning: President in this case is acting under the third level, therefore
has least authority
o Foreign Policy & Presidential Power
United States v. Curtiss-Wright Export Corp.
Importance: Pres. is the sole organ of the nation in its external affairs
Reasoning: Foreign policy power necessarily vests in the Supreme exec.
as a matter of sovereignty
Treaties are negotiated by the President and ratified by the Senate
Executive power at its height in executive agreements
Become effective when signed by the President and the head of the
foreign nation
No limit exists on using these for foreign policy commitments; anything
that can be done by treaty can be done this way as well
These prevail over conflicting state laws, but not over conflicting federal
laws or the Constitution
Dames & Moore v. Regan, Secretary of the Treasury
o Importance: Where settlement claims have been determined
necessarily incident to the resolution of a foreign policy dispute,
Congress has acquiesced in the Presidents action (even implic.)
President has broad powers to use American troops in foreign countries; not once
has the Presidents use of troops been found unconstitutional
War Powers Resolution
90-day limit on troop commitment without notification of Congress
Court tested, Constitutionally approved
Challenges often found nonjusticiable
o U.S. Law and Treaties
State laws that conflict with treaties are invalid
If a conflict occurs between a treaty and a federal statute, which is adopted last in
time controls
Treaties are invalid if they conflict with the Constitution
o War Power & the War on Terror

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Hamdan v. Rumsfeld
Importance: Military commissions violated the UCMJ, and thus no
support in statute or common law for trial by commission for the crime of
conspiracy
Reasoning: Where statutory authority is lacking, precedent must exist
plainly and unambiguously
Hamdi v. Rumsfeld
Importance: Due process demands a citizen held in the U.S. as an enemy
combatant be given a meaningful opportunity to contest the factual basis
for that detention before a neutral decision maker
Reasoning: Though the exec. has authority to hold persons for the
duration of a conflict in which they were captured, this does not answer
the question of what process is due.
Administrative State & Separation of Powers
o No limit exists on Congresss ability to delegate legislative powers
o Prior to 1937 the Supreme Court enforced the nondelegation doctrine; Since 1937 not
one federal law has been struck down that delegates legislative powers
o Whitman v. American Trucking Assn., Inc.: CAA and air pollutant standards
Importance: It is rare when the Court will second guess Congresss delegation of
authority to administrative agencies
Reasoning: First determine what authority the statute confers; next, address
whether any legislative power has been delegated.
o Line-item vetoes
Clinton v. New York: Clinton invalidated two items on a larger bill
Importance: Line-item vetoes are unconstitutional
Reasoning : LIV lacks any Constitutional basis; Washington, first
President, understood exec. Power as rejecting or accepting entire bill
o Legislative veto
INS v. Chadha: Congress overturned AG decision to allow alien to remain
Importance: Legislative vetoes are unconstitutional
Reasoning: Presentment and bicameralism are required for legislative
acts. Furthermore, efficiency and convenience are not valid objectives.
Removal Power
o Independent Council
Morrison v. Olson:
Importance: The closer an exec. officer to the Pres, the more removal
power, since he performs a core exec. function; the farther away, the less
removal power, since some independence is desirable the farther away
Reasoning: Four factors determine whether an official is a principal
officer or inferior officer of the executive
o Whether the office is subject to removal by a higher exec. branch
official
o Whether the officer is empowered by the Act to perform only
limited duties
o Whether the office is limited in jurisdiction

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o Whether the office is limited in tenure

o Myers v. United States
Importance: Closer a Pres. is to an officer, the more likely he will have a
Constitutional power of removal.
Reasoning: Powers granted to Pres., unlike Congress, are open ended (i.e. no
herein granted/enumerated)
o Humphreys Executor v. United States
Importance: Exec. positions which are essentially legislative are unlikely to be
susceptible to exec. removal at will, without good cause
Reasoning: In a removal case, reference will be made to Congressional intent and
whether the position was meant to be independent from exec.
o Wiener v. United States
Importance: Utilizes Humphreys rule
o Bowsher v. Synar:
Importance: Unconstitutional for Congress to retain control over execution of
Acts it passed; only removal power reserved for Congress is impeachment
Federalism
States vs. Federal Government
o Application of the Bill of Rights to the States
Rejection of Application Before Civil War
Barron v. Mayor & City Council of Baltimore: (overruled)
o Importance: Bill of Rights applies only to the Fed. Govt.
The False Start: Privileges & Immunities Clause
Slaughterhouse
o Importance: Renders the 14th Amendment inoperable
o Reasoning: 13th Amendment applied only towards enslaved
Africans; 14th Amendment applies only to citizens as citizens of
the federal government, not state governments; for DPC, no
property interest is invoked; EPC is also inapplicable since no
race issue is involved
The Incorporation of the Bill of Rights into the Due Process Clause of the 14th
Amendment
Palko v. Connecticut:
Adamson v. California:
Duncan v. Louisiana:
o Importance: Incorporates the 6th Amendment to the States; Joins
other amendments 1st, 4th, 5th which are incorporated
o Reasoning: Whether a privilege or immunity is one which applies
to the States concerns whether it is a fundamental principle of
liberty and justice which lies at the base of all our civil and
political institutions or whether it is a fundamental right,
essential to a fair trial
The Entanglement Exception to the State Action Doctrine
Jackson v. Metropolitan Edison Co.

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o Importance: For 5th Amendment questions, the test is whether

there is a sufficiently close nexus between the State and the
challenged action of the regulated entity so that the action may
fairly be treated as that of the State itself
o Reasoning: Heavy regulation does not turn into a sufficient nexus
Shelley v. Kraemer: Discriminatory covenants
o Importance: Actions of the state for purposes of the 14th
Amendment includes action of state courts and state judicial
officials, effectively closing off the Courts as avenue to
legitimize private discriminatory behavior
o Congress and Implementing the 14th and 15th Amendments
It is well established under the 13th Amendment that Congress can prohibit
private racial discrimination
Recently, under Sec. 5 of the 14th Amendment, Congress cannot regulate private
behavior
14th Amendment : The Scope of Congressional Power
Two views on the scope of the Congressional power
o 1st, Narrow; accords Congress only authority to prevent or
provide remedies for violations of rights recognized by the
Court. Congress cannot expand the scope of rights or provide
new ones
o 2nd, Broad; Congress has authority to interpret the 14th
Amendment to expand the scope of rights or provide new
ones. Congress cant dilute or diminish constitutional rights.
Today, congruence and proportionality is the general rule
United States v. Morrison
o Importance: Sec. 5,14th Amendment inhibits state action only
Katzenbach v. Morgan and Morgan
o Importance: Example of 2nd viewpoint.
o Reasoning: Congress does not have to find a transgression in
another part of 14th Amendment in order for it to use its Sec. 5
power, since this would narrow the legislative power to abrogating
only state laws that the Court was prepared to find
unconstitutional.
City of Boerne v. Florez:
o Importance: Example of 1st Viewpoint. Congress cant create new
rights or expand the scope of rights; Congress can only act to
prevent or remedy violations of rights already recognized by the
Courts, and these laws must be narrowly tailored. Congruence
and proportionality test.
o Reasoning: Distinguishing Morgan, the Court reasons that while
Morgan dealt with racial discrimination, something this country
has much history with, theres no serious or long-running problem
with religious bigotry. Court is therefore applying the congruence
and proportionality test.
o Preemption (Article VI Constitution)

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The purpose of Congress is the ultimate touchstone for preemption test

Express: occurs when a federal statute is exclusive in a field, then state and local
laws are pre-empted.
Lorillard Tobacco Co. v. Reilly
o Reasoning: State law was explicitly preempted via an analysis of
the Congressional record because state laws like this one would
upset federal legislative choices
Implied: even if the federal statute is silent on pre-emption, implied pre-emption
can be found
If there is a conflict between federal law and state law (conflict
preemption)
o Florida Lime v. Dept. of Agriculture of California
Importance: Conflict preemption requires a physical
impossibility which leads to inevitable collision
between the two laws
If a state or local law impedes the achievement of a federal objective
o Pacific Gas & Electric Co. v. State of Energy Commn.
Importance: State law occupying the same field as a stated
federal objective is not sufficient; there must be a genuine
impediment of the federal objective by the state law
If federal law wholly occupies the field (field preemption)
o Hines, Secretary of Labor and Industry of Pennsylvania v.
Davidowitz
Preemption of state laws will occur in areas, such as
immigration, where federal law rightfully and permissibly
wholly occupies the field
o Congress and Power to Authorize Suits Against States
Involves the 11th Amendment, which was created to prevent states from being
sued, originally just for citizens not of the party state; passed in response to
Chisholm v. Georgia
Three Ways Around the 11th Amendment
Ex parte Young established the principle that state officers may be
sued for injunctive relief or for damages so long as the state treasury
will not be paying the damages
A state may consent to jurisdiction
The Supreme Court has held Congress, acting pursuant to Sec. 5 of
the 14th Amendment, can authorize suits against State governments
Hans v. Louisiana
Importance: Supreme court extends sovereign immunity from citizens
only diverse from state to all citizens of any state
Though states have sovereign immunity, this doesnt include all lawsuits i.e.
ones where state consents
Can still sue individuals in their individual capacity
Fitzpatrick v. Bitzer: Act creating individual standing for suit under Title 7
Reasoning: Extending the holding from Ex parte State of Virginia

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Importance: Congress can abrogate the immunity of states from suit if it

directly advances the equality principles of the equal protection clause, or
for that matter any of the provisions of the 14th Amendment
Pennsylvania v. Union Gas Co: (overruled)
Importance: Rule Congress can override sovereign immunity so long as
the intention is clearly stated (overruled)
Seminole Tribe of Florida v. Florida:
Importance: By overruling Pennsylvania, the only time now Congress can
waive sovereign immunity of non-consenting states is by using its power
under Sec. 5 of the 14th Amendment; City of Boerne kicks in here insofar
as it narrowed the Sec. 5 power
Reasoning: Two steps in the analysis. First, whether Congress has
unequivocally expressed its intent to abrogate the immunity. Second,
whether Congress has acted pursuant to a valid exercise of powers (no).
Suits allegedly in, but actually outside, the scope of Congressional Sec. 5 power
Florida Prepaid Postsecondary Education Expense Board v. College
Savings Bank and United States: Bank patented financial scheme; Florida
then created its own, and according to the bank copied the idea
o Reasoning: Patent law is statutory law and there is no way to
make this apply to the states
o Importance: Affirms Sec. 5, Amendment 14 as the sole manner
through which the states can be sued
Kimel v. Florida Board of Regents: Age Discrimination Employment Act
o Importance: If an Act is broad and prohibits State action beyond
the scope of which would otherwise be declared unconstitutional,
the Act must be supported by a compelling need in the legislative
record.
o Reasoning: Utilizing rational basis, the Court notes the statute is
overinclusive and that this, together with the lack of evidence of
widespread and unconstitutional age discrimination, is enough to
find the ADEA unconstitutional.
Board of Trustees, University of Alabama v. Garrett:
o Importance: Congress may abrogate the States 11th Amendment
when it both unequivocally intends to do so and acts pursuant to a
valid grant of constitutional authority; the latter can only take
place to the extent that a given statute is appropriate Sec. 5, 14th
Amendment legislation. If Congress is legislative beyond Sec. 1
of the 14th Amendment with its Sec. 5 power, the Act must meet
the congruence and proportionality test.
o Reasoning: Court decides the case largely on EPC analysis.
Again, however, the Court finds insufficient Congressional
findings to support upholding the employees suit.
Greater Congressional authority to legislate regarding types of discrimination
Nevada Department of Human Resources v. Hibbs
o Importance: EPC cases which deal with monetary suits will be
allowed to proceed if, first, the EPC analysis is satisfied pursuant

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to the appropriate level of scrutiny, and second, the remedy is

congruent and proportional to the EPC problem Congress was
attempting to deal with.
Tennessee v. Lane:
o Importance: Congressional Act taken to abrogate state immunity
which responds to a pervasive problem and is congruent and
proportional remedy to the problem it addresses is permissible
o Reasoning: Once again, first, whether Congress has unequivocally
expresses its intent to abrogate the States immunity and whether
that Congressional action is pursuant to a valid grant of
Constitutional authority
Congressional Power Generally
o Analysis for whether an Act is Constitutional
Whether Congress has the authority under the Constitution to legislate it
If so, whether the law violates another constitution provision or doctrine
Commerce Power
o Generally
Congress may tax and spend for the general welfare
Congress may regulate commerce with foreign nations, Indian tribes, and among
the states
o The Initial Era (Thru 1890s):
Gibbons v. Ogden:
Importance: Only if you had some commerce which was entirely
comprised within a single state would you not have interstate commerce.
Power to regulate interstate navigation was granted to Congress under the
Constitution, and Constitutionally granted powers can be used to their
utmost extent.
Reasoning: Interstate commerce is commercial intercourse which
concerns more than one state
o The Lochner Era & A Limited Federal Commerce Power (1890s-1937):
Lochner v. New York
Importance: A statute passed pursuant to the police powers of a state
must have a direct relation, as a means to an end, and the end itself
must be appropriate and legitimate, before an act can be held to be valid
which interferes with the general right of an individual to be free in his
person and in his power to contract in relation to his own labor
Reasoning: Relation to the states police power regulate health, welfare,
morals, etc, - must be direct.
Defining Commerce
United States v. E.C. Night
o Importance: Manufacturing not considered commerce and
therefore not under the control of Congress; Congress has the
commerce power, and this does not include the police power
Carter v. Carter Coal Co.

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o Importance: Law regulating production not regulation

commerce and therefore unconstitutional
o Reasoning: Defines commerce as intercourse for purpose of
trade
Defining Among the States
Houston, East & West Texas Railway Co. v. United States (Shreveport
Rate Case): Distance for intrastate rates, where the train is traveling
farther, is less than the rate for interstate travel where the train is not
traveling as far
o Importance: Congress can take all measures necessary or
appropriate to carry out its power to regulate interstate commerce,
though intrastate transactions may thereby be controlled.
o Reasoning: Reasserting Gibbons; where Congressional power
exists it dominates
Stream of Commerce Cases: Stream of commerce is interstate comm..
o A.L.A. Schechter Poultry Corp. v. United States:
Importance: Commerce not of a sufficiently direct
interstate character cannot be regulated by Congress
Reasoning: New way of thinking about commerce;
whether something is put into the stream of commerce
o Swift v. United States:
Importance: Court upheld the application of the Sherman
Antitrust Act to an agreement among meat dealers to fix
the price at which they could purchase meat from
stockyards since the stockyard was only a temporary stop
for the cattle
o Stafford v. Wallace:
Importance: Court, utilizing stream of commerce
argument, notes stockyards are merely a passageway for
things through which pass interstate commerce (famous
language of throat)
th
10 Amendment Limit on Congressional Power
Hammer v. Dagenhart: Attempt to enjoin enforcement of child labor laws
o Importance: Matters local in character, falling under the police
power of the local government over local trade and
manufacturing, do not invoke the power of the commerce clause
o Reasoning: Court utilizes argument that the 10th Amendment is not
simply a truism but a protection for state sovereignty from federal
intrusion
Champion v. Ames: Lottery tickets in interstate comm..
o Importance: Congresss plenary power to regulate interstate
commerce includes the power to prohibit
o Reasoning: Because states have the police power within their
borders, Congress has the same for things traveling between
states. It is also clear from the Courts language they disagreed
with lotteries anyway (evil of such appalling character)

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o Reversing the Lochner Era and A Broad Federal Commerce Power (1937-1990s):
NLRB v. Jones & Laughlin Steel Corp.: Switch in time that saved 9
Importance: Though changing direction from the previous era the Court
does not reverse the cases. Also, though activities may be intrastate in
character, if in the aggregate they have a close and substantial relationship
to interstate commerce, Congress can regulate
Reasoning: Congressional power in interstate comm. is plenary and
includes the right to protect interstate commerce from burdens and
obstructions
United States v. Darby: Congress regulation of min. wage for interstate goods
Importance: Overrules Hammer v. Dagenhart (Congress can now exclude
from interstate commerce goods it perceives to be injurious to the public
welfare, morals, etc) and adopts language from Champion v. Ames as
rule.
Reasoning: Theres nothing in our system that prevents Congress from
using its commerce power to regulate things it believes are harmful to the
morals or welfare, and in any case it is not the Courts role to second
guess Congresss motivation. With regard to the 10th Amendment, the
Court says it simply restates the relationship between Congress and the
States, and doesnt restrict Congressional power in anyway.
Wicker v. Filburn: Local farmer producing for own use exceeding fed. Maximum
Importance: If an act, because of its cumulative affect on the marketplace,
substantially affects interstate commerce, Congress can regulate it
Reasoning: Court rejects direct/indirect dichotomy mentioned in earlier
cases, adopting the analysis of whether an act has a substantial effect on
interstate commerce
Rule So Far: Congress can regulate any activity, intrastate or interstate,
that has a substantial effect on interstate commerce. This is true even if the
activities themselves, in isolation, have little effect on interstate commerce,
but taken as a cumulative whole, have a substantial effect on commerce.
o Defining Commerce Among the States
Heart of Atlanta, Inc. v. United States: Hotel refuses to rent to blacks.
Importance: Congresss power to promote interstate commerce also
includes the power to regulate the local incidents thereof.
Reasoning: Discrimination in accommodations is widespread and harmful
to interstate commerce. A moral element to a Congressional Act makes it
no less valid.
Katzenbach v. McClung, Sr. and McClung, Jr.: BBQ discriminating
Importance: Congressional acts under the commerce clause are
constitutional so long as Congress has a rational basis for finding a
particular act had a direct and adverse effect on the free flow of interstate
commerce, and so long as the action of Congress does not violate an
express limit of the Constitution
Reasoning: Relies on Wicker and extends its reasoning/holding
Hodel v. Indiana: Regulatory laws for strip mining

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Importance: Commerce clause legislation may only be invalidated if

either lacks a rational basis for affecting interstate commerce or there is
no reasonable connection between the regulatory means selected and the
asserted ends
Perez v. United States
Importance: Outlines three kinds of categories Congress can regulate:
o The use of channels or interstate or foreign commerce which
Congress deems are being misused (i.e. shipping lanes, air or sea,
roads, etc)
o Protection of the instrumentalities of interstate commerce (i.e.
ships, planes, cars)
o Those activities affecting commerce
Reasoning: Crimes may be brought under the commerce clause if the
activity is of such a nature as to have significant effect on inter. comm.
o Reengaging the 10th Amendment
National League of Cities v. Usery: Min. wage requirements
Importance: A Congressional act which increases the financial burden on
the States and/or displaces State policies regarding the delivery of
governmental services is not supported under the commerce clause and
violates the 10th Amendment
Reasoning: Reaffirms other holdings by noting Congress can regulate
wages, overtime, etc, but it cannot touch certain core government
functions traditionally performed by states or pass an act which otherwise
would forcibly restructure the way the state delivers services
Hodel v. Virginia Surfacing Mining & Reclamation Assoc.
Importance: 10th Amendment protections apply only the states as states,
and does not extend to private entities such as businesses
Garcia v. San Antonio Metropolitan Transit Authority:
Importance: Overrules National League of Cities v. Usery. The current
political and federalist system provides sufficient protection for state
sovereignty, without a need for the judiciary to define integral or
traditional state governmental functions.
Reasoning: We doubt that courts ultimately identify principled
constitutional limitations on the scope of Congresss commerce clause
powers over the Status merely by relying on a priori definitions of state
sovereignty.
o Re-narrowing the Commerce Power Once Again
Congressional Power to Regulate Commerce Among the States
U.S. v. Lopez (1995)
o Importance: Three part test established for when Congress may
use its commerce clause authority
To regulate the channels of interstate commerce
To regulate the instrumentalities of interstate commerce,
and persons and/or things in interstate commerce (Gibbons
v. Ogden)

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To regulate economic activities that have substantial effect

on interstate commerce (Wickard v. Filburn)
If non-economic activity, then cant use cumulative
impact argument
o Reasoning: Court finds this a gross overextension of the
commerce clause power. Court rejects reasoning in Wickard v.
Filburn here, as saying crime affects all would allow Congress to
regulate any crime. J. Breyer sets out three categories of analysis:
Commerce power encompasses power to regulate local
activities insofar as they significantly affect interstate
commerce
Whether a local activity will have significant effect on
interstate commerce is to be measured by the cumulative
affect of all similar instances
Courts must give Congress one degree of leeway with
regard to the existence of a significant factual connection
between the regulated activity and interstate commerce,
since the Constitution directly gives the commerce power
to the Congress and the empirical decision is one which
Congress is more likely to get right than the Court
Some other factors to consider, supplied by Wermiel.
Weight given to the fact Congress had hearings?
What about deference to Congress, and second
guessing Congressional motivation?
Do we need economic impact, and is there a
prerequisite if so?
United States v. Morrison: Plaintiff seeks punitive damages for assault
o Importance: Congress cant regulate noneconomic violent
criminal conduct based solely on that conducts aggregate effect
on interstate commerce
o Reasoning: Relying on Lopez, Court notes noneconomic nature of
the Act and the lack of jurisdictional element within the statute.
United States v. Jones: Federal Arson Act
o Importance: Federal Arson Act does not apply to dwellings
o Reasoning: Court sidestepping Constitutional issue and
construing/reading the statute so as to avoid any Constitutional
conflicts
Solid Waste Agency v. U.S. Army Corps of Engineers
o Importance: Court will choose to interpret/construe a statute in a
non-unconstitutional manner if possible unless doing so is plainly
contrary to the intent of Congress
Gonzales v. Raich
o Importance:
Gonzales v. Oregon
o Importance:

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Controlling test set out with regard to whether an activity substantially

effects interstate commerce, set out by Federal Appeals Judge
Whether the regulated activity is commercial or economic in nature
Whether an express jurisdictional element is provided that would
limit the reach of the statute
Whether Congress made express findings on the impact of the
activity on interstate commerce
Whether the link between the activity and interstate commerce is too
attenuated (i.e. too weak or loose)
o Commerce Power & the 10th Amendment: Limit of Congressional Authority?
New York v. United States:
Importance: Congress cant compel state legislative or regulatory activity.
However, Congress can induce states to act, by attaching conditions to
grants or monies, so long as the proposition is clearly stated and related to
the purpose of the program
Reasoning: Similar but more narrow test than in National League of
Cities v. Usery. Court rejects notion that consent by states of
Congressional compelling makes it Constitutional, arguing the
Constitutional structure is permanent. 10th Amendment is a tautology.
Printz v. United States: Challenge to Brady Act, requiring background checks
Importance: Congress cant circumvent the prohibition on its compelling
states to enact or enforce a federal regulatory program by conscripting the
States officers directly
Reasoning: Distinguished from New York, since here states have no
control over policy; act also raises separation of powers problems since
Congress is effectively enforcing a law, not the executive. In any case the
Court is hesitant to have locally responsible political positions to be
responsible for the enforcement of federal laws, as this would effectively
insulate federal politicians from the impacts of their decisions.
Reno v. Condon: Drivers Privacy Protection Act & disclosure of personal
information
Importance: Congress can regulate States, so long as they arent
regulating the way States regulate their citizenry, as this would break the
electoral connection
Reasoning: New York and Printz are inapposite and Baker is on point.
o Congress & the Spending Power:
McCulloch v. Maryland: Rule -
Importance: The states have no power, by taxation or otherwise, to retard,
impede, burden or in any manner control the operation of the
constitutional laws enacted by Congress to carry into execution vested in
the federal government
Reasoning: Court reasserts right of judicial review, affirms the nature of
the Constitution as an outline for government, not a literal code. Maxim
power to tax is power to destroy elucidated.
United States v. Butler

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 Jensen Grant

Importance: Congressional power to authorize expenditures for public

purposes is not limited by the express, direct grants of legislative power
in the Constitution they can tax/spend for reasons beyond these
Chas C. Steward Mach Co. v. Davis
Importance: Federal social security taxes on employers are constitutional
Sabri v. United States
Importance: Constitutional for Congress to criminalize bribery
Reasoning: Primary nexus between bribe and federal funds not necessary
since there is no reason to suspect that enforcement of the criminal statute
would extend beyond a legitimate interest cognizable under Art. I Sec. 8
Conditions on Grants to State Governments
South Dakota v. Dole
o Importance: Three limitations on Congressional spending power
Must be in pursuit of the general welfare
Conditions must be unambiguous enabling the States to
exercise their choice knowingly, cognizant of the
consequences of their participation
Conditions might be illegitimate if they are unrelated to
the federal interests in particular national projects or
programs
Due Process
Due Process, Incorporation & State Action Constitution applies only to the government,
including government officers, entities, and actors at all levels, save for two big exceptions
o Traditional public functions executed by private entities
o Entanglement exception, if the government affirmatively authorizes, encourages, or
facilitates unconstitutional conduct
o All of the Bill of Rights apply to the States, except

2nd, 3rd, 5th (only grand jury the rest does apply), 7th, 8th
Procedural Due Process
o Asks whether there is an invocation of due process and if so what technical procedures
are required
o Two points of analysis

Deprivation of life, liberty, or property?

Procedures required?
Three part balancing test
o Importance of the interest to the individual
o Ability of additional procedures to increase the accuracy of the
fact finding
o The governments interest
Substantive Due Process
o Defined: asks whether the government has an adequate reason for taking away
someones life, liberty, or property
o Economic Substantive Due Process

Constitution has only minimal protections for economic liberties

Only a rational basis is used for laws affecting economic rights

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 Jensen Grant

During the Lochner era, the Supreme court said that freedom of contract was a
fundamental right, and held economic liberty very high, applying strict scrutiny,
often invalidating anything that impeded economic liberty, good or bad

Since then, the Supreme court has applied rational basis review, and the
government will usually win

Lochner Era
Allgeyer v. Louisiana
o Importance: First use by the Court of the DPC to invalidate
government economic regulations as interfering with the freedom
of contract; establishes the general right to make a contract in
relation to business as protected by the 14th Amendment
Lochner v. New York
o Importance: A statute passed pursuant to the police powers of a
state must have a direct relation, as a means to an end, and the
end itself must be appropriate and legitimate, before an act can be
held to be valid which interferes with the general right of an
individual to be free in his person and in his power to contract in
relation to his own labor
o Reasoning: Relation to the states police power regulate health,
welfare, morals, etc, - must be direct.
Laws Protecting Unionizing
o Coppage v. Kansas: State statute prohibition no-union stipulation
on work contract

Importance: Freedom of contract allows a party to
stipulate, as a sine qua non of the inception of
employment, certain terms
Maximum Hours Laws
o Muller v. Oregon: Brandeis Brief Case

Importance: A state may, without conflict with the 14th
Amendment, restrict in many respects the individuals
power of contract

Reasoning: Hinges in large part in the large statistical
presentation made by Brandeis, which elucidated the
difference between men and women
Minimum Wage Laws
o Adkins v. Childrens Hospital

Importance: Invalidated D.C. minimum wage law
Consumer Protection Legislation
o Weaver v. Palmer Bros. Co.

Importance: Prohibition on second hand rags being used in
bedcovers is unconstitutional as arbitrary and
unreasonable
o Nebbia v. New York

Importance: Fixing the price of milk is OK, since it bears a
reasonable relation to the states police power

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 Jensen Grant

End of Lochner
West Coast Hotel Co. v. Parish: Min. wage law in Washington state
o Importance: Establishes judicial deference to government
economic regulations, rejecting Adkins
United States v. Carolene Products: Milk fat regulation by Congress
o Importance: Regulatory legislation affecting ordinary commercial
transactions is not to be pronounced unconstitutional unless it
does not rest upon some rational basis within the knowledge and
experience of the legislators.

Since 1937
Williamson v. Lee Optical of Oklahoma, Inc.
o Importance: So long as a law is at least rationally related to a
legitimate governmental purpose, it will be upheld.
o Reasoning: A statute which is arguably wasteful is to be corrected
by the legislature, not the courts.
BMW of North America, Inc. v. Gore
o Importance: Three part test for whether a punitive damage award
violates DPC

The degree of reprehensibility of the nondisclosure

The disparity between the harm or potential harm suffered
by the plaintiff and his punitive damage award (ratio)

The difference between the remedy in the case at bar and
the penalties authorized or imposed in comparable cases
o Reasoning: Only when an award is grossly excessive in relation to
these interests does it become violative of the DPC
State Farm Mutual Automobile Insurance Co. v. Campbell
o Importance: Upholds Gore test
o Reasoning: Broken down to three prongs, respectively

State cannot punish a defendant for conduct that may have
been lawful where it occurred; also, a Defendants
dissimilar acts may not serve as a basis for punitive
damages

Few awards exceeding single-digit ratio between punitive
and compensatory damages will be upheld under DPC

Relevant state law only penalized $10,000
o Privacy Due Process

Fundamental rights trigger strict scrutiny

Fundamental rights are found under the DPC of the 14th Amend or 5th; little
matters which is used
DPC analysis requires the Court to consider whether the governments
interference is justified by a sufficient purpose
EPC analysis requires the governments discrimination as to who can
exercise the right is justified by a sufficient purpose

Framework for Fundamental Right Analysis
Is there a fundamental right at issue?

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 Jensen Grant

Is the Constitutional right infringed?

o Test: Whether the interference is sufficiently direct and
substantial
Is there a sufficient justification for the governments infringement of
a right?
Is the means sufficiently related to the purpose?
o Under strict scrutiny, this requires that the governments
infringement show it could not attain the goal through any
means less restrictive of the right

As noted in Carolene Products, the judiciary will use rational basis unless there is
a discrimination against a discrete and insular minority

Family Autonomy
Basic rights include
o Fundamental right to procreate
o Fundamental right to custody of ones children
o Fundamental right to keep family together
o Fundamental right to for parents to control the upbringing of their
children

Right to Marry
Loving v. Virginia
o Importance: Right to marry is a fundamental right
Zablocki v. Redhail
o Importance: Right to marry cannot be significantly burdened
without impermissibly violating the 14th Amendment

Right to Custody of Ones Children

Stanley v. Illinois
o Importance: A de facto assumption that a parent is unfit is
unconstitutional
o Reasoning: Implicitly important here is fact that father was fit and
involved with childrens lives; the assumption doesnt necessarily
continue if one isnt involved with their childrens lives
Michael H. v. Gerald D.
o Importance/Reasoning: DPC affords only those protections so
rooted in the traditions and conscience of our people as to be
ranked fundamental
Moore v. City of East Cleveland
o Importance: Choice of relatives of this degree to live together may
not lightly be denied by the State
o Reasoning: Ordinance is not rationally related to the governmental
purpose of reducing traffic, etc. The limits on fundamental rights
take into account respect for the teachings of history (and), solid
recognition of the basic values that underlie our society

Right to Parents to Control the Upbringing of Their Children

Meyer v. Nebraska

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 Jensen Grant

o Importance: State statute preventing teaching of German language

violated the right of parents to control the upbringing of their
children
o Reasoning: Statute lacked reasonable relation to some purpose
within the competency of the state to effect
Pierce v. Society of Sisters of the Holy Name of Jesus and Mary
o Importance: State cant require all children to attend public
schools
Troxel v. Granville
o Importance: Sweeping state statutes which significantly burden
the fundamental right to rear their children are unconstitutional
o Reasoning: Court notes its distaste for lack of deference to the
parents wishes as well as lack of evidence of parent being unfit

Reproductive Autonomy
Fundamental right to procreate
o Buck v. Bell: Forced sterilization of mentally ill (upheld)

Importance: Findings of the legislature are entitled to
significant weight in view of the compelling societal
interest in preventing crime and offspring from becoming
wards of the state
o Skinner v. Oklahoma

Importance: Overrules Buck and recognizes fundamental
right to procreate

Reasoning: Under strict scrutiny there was no reason for
the differing treatment between larceny and
embezzlement, especially in light of the fact they were
otherwise sentenced the same
Fundamental right to purchase and use contraceptives
o Griswold v. Connecticut

Importance: Right to contraceptives is found under the
ethos of the BOR and their implied right to privacy

Reasoning: Penumbras are formed by the individual
amendments in the BOR and give an indication of the sort
of ethos the BOR holds. In any case, privacy within
marriage predates the Constitution and should be upheld
o Eisenstadt v. Baird

Importance: Reaffirms and extends Griswold to non
married persons

Reasoning: Holding contraceptives back from single
persons is an EPC violation
o Carey v. Population Services International

Importance: Strict scrutiny applies when the government is
attempting to justify a law restricting access to
contraceptives
Fundamental right to an abortion

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 Jensen Grant

o Roe v. Wade

Importance: A criminal abortion statute which excepts
from criminality only a life-saving procedure on behalf of
the mother, without regard to pregnancy stage and without
recognition of the other interests involved, is violative of
the DPC
For the stage prior to the 1st trimester, the abortion
decision is left to the woman and her doctor
For the stage after the 1st trimester, the State may
regulate the abortion procedure in ways related to
maternal health
Subsequent to viability, the State may regulate or
even proscribe abortion, except where necessary
for preservation of life or health of the mother

Reasoning: Court traces history of abortion back to ancient
times, finding statutes prohibiting abortion are relatively
new. Noted woman enjoyed wider freedom of abortion in
19th century. Court finds three main reasons for the
enactment of these prohibition statutes: Victorian social
concern, abortion used to be hazardous for the mother, and
the States interest in protecting the prenatal life. Court
then hinges right to abortion on existence of a fundamental
right to privacy.
o Planned Parenthood v. Casey

Importance: Tweaks Roe. Prior to viability, only when a
state regulation imposes an undue burden on a womans
right to choose is the State violating a womans
fundamental right. An undue burden exists if the purpose
of the law is to place a substantial obstacle in the path of a
woman seeking an abortion.

Reasoning: Reaffirms holding of Roe, Court also notes
many other fundamental rights upheld which arent
explicitly set out in the Constitution. Court then notes
importance of stare decisis, but repudiates the trimester
breakdown elucidated in Roe.
o Government regulation of Abortion

Stenberg v. Carhart
Importance: A partial birth abortion ban, lacking a
health exception, constitutes an undue burden on a
womans fundamental right to abortion, and is
therefore unconstitutional
Reasoning: Lack of health exception was fatal, and
in any case outright fully banning a certain
procedure creates a health risk and therefore is an
undue burden. Didnt help that statute was too
vague.

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 Jensen Grant

o Government Restrictions on Funds and Facilities

Maher v. Roe
Importance: Government can deny funding for
abortions that were not performed to protect the
life or health of the mother
Reasoning: Since Congress is perfectly free to
abolish Medicaid, Congress cannot be required to
expand Medicaid money on something

Harris v. McRae
Importance: Refusal to fund a protected activity,
without more, cannot be equated with the
imposition of a penalty on that activity
o Spousal Consent

Planned Parenthood v. Danforth
Importance: State cannot constitutionally require
the consent of a spouse before allowing abortion to
proceed
Reasoning: State cannot delegate unilateral right to
terminate a pregnancy when it doesnt have the
right originally

Planned Parenthood v. Casey II
Importance: Spousal consent is a substantial
obstacle to the exercise of the right to abortion
Reasoning: Relies in large part on statistics of
domestic violence. Also points out the proper
scope of Constitutional analysis is the affected
group of a piece of legislation, not the group it is
irrelevant for
o Parental Consent

Bellotti v. Baird
Importance: If the state decides to require that a
pregnant minor obtain one or both parents consent
to abortion, it also must provide an alternative
procedure, i.e. a judicial bypass
Reasoning: Extends Danforth and casts parental
consent as another form of a third party veto over
an abortion, which is unconstitutional
o Abortion Black Letter Law

Prior to viability, the government cannot prohibit
abortion, only regulate abortion so long as not to place
an undue burden on that right
i.e. 24 hour waiting period for abortion is not an
undue burden and is therefore constitutional
i.e. requirements that abortions be performed
by licenses physicians is permissible

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 Jensen Grant

Prohibition on partial birth abortions is an undue
burden and is unconstitutional
Overruled

After viability, the government can prohibit abortion,
save for exceptions for the health of the mother

Spousal consent and spousal notification laws are
unconstitutional

Parental notification may be constitutional for a minor,
unmarried woman so long as it creates an alternative
procedure (i.e. she can go before a judge and he can
decide whether its in the minors best interest or shes
mature enough to decide on her own)

Medical Decisions
Medical Decision Black Letter Law
o Right to refuse medical care
o Competent adults have a right to refuse medical care, even life
saving medical care
o State may require clear and convincing evidence that a person
wanted treatment terminated before it is ended
o A state may prevent family members from terminating
treatment for another

Right to refuse treatment belongs to each individual
Cruzan v. Director, Missouri Dept. of Health
o Importance: The State is free to enact procedural requirements
regarding the withdrawal of life-sustaining treatment
o Reasoning: Important state interest in life means it is permissible
to require a clear and convincing evidential standard to be met by
the party trying to prove the sick person wanted to be taken off
life support, since death is irreversible
Washington v. Glucksberg
o Importance: No Constitutional right to assisted suicide
o Reasoning: Rejecting analogy to Cruzan, Court notes an
investigation of the DPC requires we take a look into the
traditions of liberty enjoyed in our society the right to suicide is
not one of them
Vacco v. Quill
o Importance: Court once again differentiates right to cease life-
sustaining treatment from assisted suicide, this time based on EPC
o Reasoning: The law has long used actors intent or purpose to
distinguish between two acts that may have the same result

Sexual Orientation
Lawrence v. Texas
o Importance: Sexual preferences manifesting themselves within the
privacy of the home cannot be regulated by the state as they have

23
 Jensen Grant

no rational basis to a legitimate state objective. Overrules Bowers

v. Hardwick.
o Reasoning: Homosexual acts are part of ones liberty under the
DPC. No legitimate state interest is furthered by preventing it.
No level of scrutiny currently outlined
Equal Protection
Approach to Analysis
o What is the classification? How is the government showing distinction
between people?
o Level of Scrutiny?
To determine this, consider
Persons or groups access to political process
History of discrimination against the group
o Does the government action meet the level of scrutiny?
Evaluation of the ends (effects) of the law
Strict scrutiny requires the end to be compelling
Intermediate scrutiny requires the end to be important
Rational basis requires the end to be legitimate
Evaluation of the means
Overinclusive/underinclusive?
o Strict scrutiny requires a tight fit
o Intermediate scrutiny requires a closer fit
o Rational basis requires the lowest/loosest fit
Levels of Scrutiny
o Rational Basis Test: a law is upheld if it is rationally related to a legitimate
governmental purpose
The actual purpose does not have to be legitimate; only the cited purpose
does, and even then it must only be a reasonable way to achieve the end
Very deferential to the government, and it usually wins here
Challenger has the burden of proof
Language: Rationally related to a legitimate governmental purpose
What Constitutes a Legitimate Purpose?
Romer v. Evans: Colorado homosexual amendment
o Importance: Rational basis test will find against a piece of
legislation where it burdens a fundamental right or targets
a suspect class
o Reasoning: Law is born of animosity and is not one we
traditionally enact
United States Railroad Retirement Board v. Friz
o Importance: So long as any plausible reason exists, a law
under rational basis scrutiny will be upheld
FCC v. Beach Communications, Inc.

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 Jensen Grant

o Importance: Those attacking the rationality of the

legislative classification have the burden to negate every
conceivable basis which might support it
Tolerance for Underinclusiveness under Rational Basis
Railway Express Agency, Inc. v. New York
o Importance: Underinclusiveness is permissible
o Reasoning: It is not a requirement of equal protection that
all evils of the same genus be eradicated or none at all
Laws Deemed Arbitrary and Unreasonable
U.S. Dept. of Agriculture v. Moreno
o Importance: A bare Congressional desire to harm a
politically unpopular group cannot constitute a legitimate
governmental interest
o Reasoning: Court seems to be changing the test so as to
find this Act unconstitutional
City of Cleburne, Texas v. Cleburne Living Center, Inc.
o Importance: Private biases may be outside the reach of
the law, but the law cannot, directly or indirectly, give
them effect
o Reasoning: Utilizing rational basis, Court noted there was
no reason to discriminate against the center in terms of a
density regulation which other groups did not have to
observe.
o Intermediate Scrutiny: a law will be upheld if it is substantially related to an
important government purpose
Court will only look at actual purpose
Means chosen must be substantially related to the ends; narrowly tailored
Government has burden of proof; law is upheld only if government can
show that it is substantially related to the government purpose
Includes
Gender discrimination
Discriminated against non-marital children
Language: Substantially related to an important government
purpose
o Strict Scrutiny: a law will be upheld if it is necessary to achieve a compelling
governmental purpose
Court will only look at actual purpose
Means chosen must be necessary to achieve the objective
Government has burden of proof
Includes
Racial discrimination
National origin discrimination, and often
Alien discrimination
Language: Necessary to achieve a compelling governmental
purpose

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 Jensen Grant

Court provisions
o Equal protection of the 14th Amendment only applies to state and local
governments
o Equal protection is applied to the federal government through the process of the
5th Amendment
Race/National Origin
o Strict scrutiny is used whenever the government discriminates among race,
whether to benefit or to burden minorities
o Classification exists on the face of the law if it draws a distinction among people
based on race or national origin
Three types of facial classifications
Race-specific classifications that disadvantage racial minorities
o Korematsu v. United States
Importance: All legal restrictions which curtail the
civil rights of a single racial group are immediately
suspect, and may only be overcome pending a
showing of a pressing public necessity, which can
sometimes justify the existence of such restrictions
Reasoning: Not beyond the power of Congress and
exec. to exclude Japanese from West Coast
Government action that burdens both whites and minorities
o Loving v. Virginia
Importance: Mere equal application of a statute
containing racial classifications is not enough to
remove the classification from the 14th
Amendments proscription of all invidious racial
discrimination
o Palmore v. Sidoti: Divorcee cohabing with black
Importance: Effects of racial prejudice cannot
justify a racial classification removing an infant
child from the custody of its natural mother found
to be an appropriate person to have such custody
Statutes requiring separation of the races
o Plessy v. Ferguson
Importance: Supreme Court upholds separate but
equal
Reasoning: Court argues segregation is a social ill,
if an ill at all, and cannot be remedied by the Court.
o If law is facially neutral it requires demonstrating both discriminatory impact and
intent
Washington v. Davis
Importance: If a law is not facially violative of the EPC, proof of
discriminatory purpose (as well as effect) is necessary in order to
demonstrate the law constitutes a racial classification

26
 Jensen Grant

Reasoning: Importance of discriminatory impact is dodged,

though it seems if it is egregious enough, the Court would find it
relevant
McCleskey v. Kemp
Importance: A discriminatory purpose implies more than intent
as volition or intent as awareness of consequences. It implies that
the decision maker, in this case a state legislature, selected or
affirmed a particular course of action at least in part because of,
not merely in spite of, its adverse effects upon an identifiable
group
Reasoning: Court worries about the dismantling and discrediting
of the entire criminal justice system should the Defendant prevail
Personnel Administrator of Mass. v. Feeney
Importance: Reiterates test from McCleskey regarding purpose
Village of Arlington Heights v. Metropolitan Housing Development Corp.
Importance: Factors which can be used to weigh whether there is
discriminatory purpose: pattern of discrimination, historical
background, departures from normal procedure, sequence of
events, impact of the official action, substantive departures from
procedure, and legislative or administrative history
o Discriminatory Use of Peremptory Challenges
Batson v. Kentucky
Importance: First, criminal defendant must set forth a prima facie
case of discrimination by the prosecutor; second, the burden shifts
to the prosecutor to offer a race-neutral explanation for the
challenge; last, the trial court must decide which explanation is
persuasive
o Affirmative Action
Numerical set asides (quotas) require clear proof of past discrimination
Supreme court is hostile to quotas
University of California v. Bakke
Importance: While affirmative action is constitutional, a quota
system based on race is unconstitutional
Fullilove v. Klutznick
Importance: Congress could constitutionally use its spending
power to remedy past discrimination
Reasoning: 3-3-3 decision; no decision on scrutiny reached
Richmond v. Croson:
Importance: An affirmative action program, absent a specific
situation to remedy and absent any discriminatory attempts to
ameliorate the problem, is unlikely to pass constitution muster.
Court adopts strict scrutiny here for racial discrimination
(plurality).
Reasoning: Lack of prima facie case since discrimination cannot
be tied to any particular persons. Overinclusiveness also harms

27
 Jensen Grant

the statute, and in any case racial classifications should be the

remedy of last resort.
Adarand Constructors, Inc. v. Pena
Importance: All racial classifications, imposed by whatever
federal, state, or local government, must be analyzed with strict
scrutiny
Reasoning: The interest must be narrowly tailored to further a
compelling government interest
U.S. v. Paradise
o Race & Higher Education
Education institutions may use race as one factor in admission decisions
to benefit minorities
Grutter v. Bollinger: Law school
o Importance: Colleges and universities have a compelling
interest in enhancing diversity, so long as it is taken into
account as part of a broader, holistic procedure which
involves truly individualized consideration and is
flexible and non mechanical
o Reasoning: Court relies in large part on social science data,
and defers greatly to the schools findings
Gratz v. Bollinger: Undergrad
o Importance: Racial classifications by government agencies
executed in a mechanical way cannot be narrowly tailored
and therefore are unconstitutional
o School Segregation and Desegregation
Dred Scott v. Sandford
Importance: Citizens have two citizenships; one federal and one
state. Slaves have no federal citizenship, and so have no standing
to bring their claims.
Reasoning: After noting judicial deference to Acts of Congress,
the Court analogizes to the Indian nations with regard to slaves.
Brown v. Board of Education
Importance: In the field of public education the doctrine of
separate but equal has no place. Separate educational facilities are
inherently unequal.
Fashioning Remedies
Swann v. Charlotte-Mecklenburg Board of Education
o Importance: Four findings with regard to Court fashioned
remedies
Racial quotas can be used only to a limited extent
Limited number of one-race schools is not a
dispositive showing of non-compliance; but the
burden shifts to the School Board to then show it is
desegregating

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 Jensen Grant

Assignment plan for students in a district is not

acceptable simply because it appears neutral
Transportation inconvenience is permissible so
long as no negative impact on health or education
is occurring
Milliken v. Bradley: Desegr. beyond original scope
o Importance: Scope of the remedy is determined by the
nature and extent of the constitutional violation at issue
o Reasoning: Plaintiffs are found to have no met their
burden of proof with regard to how the suburbs engaged in
unconstitutional conduct.
Ending Court Monitored Desegregation
Board of Education of Oklahoma City v. Dowell
o Importance: Whether desegregation measures should be
dissolved is a question of whether the vestiges of past
discrimination had been eliminated to the extent
practicable
Freeman v. Pitts
o Importance: Once a portion of desegregation is met, the
federal court should cease its efforts as to that part and
remain involved only as to those aspects of the plan that
have not yet been achieved
Gender
o Intermediate scrutiny is used
o Proof
The classification exists on the face of the law
Alternatively, if the law is gender neutral, proving a gender classification
requires proof of both impact and intent
o Black Letter Law
Gender classifications benefiting women based on role stereotypes
generally will not be allowed
Gender classification benefiting women designed to remedy past
discrimination and differences in opportunity generally are
permitted
o Reed v. Reed: Idaho law regarding intestate succession and male preference
Importance: First time Court comes to terms with gender discrimination
Reasoning: Court applied only rational basis review
o Frontiero v. Richardson: Benefits to husbands of military women
Importance: Court agrees on intermediate scrutiny for gender
discrimination (plurality)
Reasoning: Extends Reed, and finds continued existence of sex
discrimination which justifies intermediate scrutiny
o Craig v. Boren: Oklahoma drinking law allows women @ younger age
Importance: Court formally adopts intermediate scrutiny

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 Jensen Grant

Reasoning: Law doesnt closely serve the purpose of traffic safety, and in
any case, the Court is un-persuaded by the statistics.
o U.S. v. Virginia: VMI reserving education to men
Importance: Supreme Court reaffirmed that intermediate scrutiny is used,
but required exceedingly persuasive justification for gender
discrimination to be upheld.
Reasoning: Court finds repugnant the difference in opportunities the two
separate schools would offer with regard to women. Though the Court
also recognizes the difference between men and women, it refuses to
allow them to serve as a reason for legal, social, or economic inferiority.
o Geduldig v. Aiello: Pregnancy not covered in state disability insurance system
Importance: Excluding pregnancy from coverage in a health plan is not
invidious discrimination
Reasoning: A state may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the legislative mind . . .
[and it may neglect other fields]. Particularly with regard to social
welfare programs, the choice need only be rationally supportable.
o Orr v. Orr: Alabama alimony
Importance: Gender classifications benefiting women based on role
stereotypes is not allowed
Reasoning: Individualized hearings already take account of financial
situations; therefore sex serves as no useful proxy for need
o Mississippi University for Woman v. Hogan: Women only nursing school
Importance: Education situations which perpetuate gender stereotypes are
impermissible
Reasoning: Court rejects argument that women could learn better without
men, since men were allowed to audit the class. Court also utilizes
exceedingly persuasive justification test.
o Michael M. v. Superior Court of Sonoma County: Stat. rape law violate EPC?
Importance: A State can permissibly bar a male from having sex with a
minor female, but not necessarily the other way around too.
Reasoning: Because men and women arent similarly situated with regard
to sex, Court disposes of gender discrimination argument. Court
therefore uses a rational basis test.
o Rostker v. Goldberg: Selective service not registering females
Importance: Women cannot be required to register for selective service
Reasoning: Since women are not allowed to engaged in combat anyway,
and considering the deference owed to the other branches findings (talks
about this ad naseum), the law is not unconstitutional
Other Protection Qualifications
o Alienage
Strict scrutiny is used, but there are several exceptions
Only rational basis is used for alienage classifications relating to
government and the democratic process

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 Jensen Grant

The government may discriminate against aliens regarding voting,

serving on a jury, being a police officer, teacher, or probation
officer
Only a rational basis test is used for Congressional discrimination against
aliens
Congress has plenary power to regulate immigration
It appears that intermediate scrutiny is used for discrimination against
undocumented aliens
Plyler v. Dough: Children of citizens and children of undocumented
aliens cannot receive free education in Texas;
Importance: Illegal children/children of illegals have a right to
attend public schools
Reasoning: Court finds children, even illegals, qualify as persons
under the EPC, and that in any case children cannot be held
responsible for the choices of their parents to remain in the
country. Court also worries about the creation of an underclass,
and looks forward to the possibility of these children gaining
citizenship
Graham v. Richardson
Importance: A state statute that denies welfare benefits to resident
aliens and one that denies them to aliens who have not resided in
the United States for a specified number of years violates the EPC
Reasoning: Court notes it has long been settled that the term
person in the context of the EPC includes lawfully admitted
residents as well as citizens of the U.S. and entitles both to equal
protection of the laws
Foley v. Connelie: NY statute prohibits aliens from becoming troopers
Importance: States can bar aliens from certain jobs or activities
which involve self government and the democratic process
Reasoning: Aliens dont have the same interest as citizens in the
execution of our laws, and therefore barring them from serving
meets the rational basis requirement.
Ambach v. Norwick: State bars aliens from becoming school teachers
Importance: School teachers come within the government function
principle which requires only rational basis analysis
Reasoning: Applies Foley reasoning to school teachers; public
education fulfills a most fundamental obligation of government
to its constituency
Bernel v. Fainter
Importance: In order a job to be considered a government function
with regard to aliens (and therefore for rational basis to apply),
there has to be a reasonable relationship between the job and the
concern

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 Jensen Grant

Reasoning: Notary public simply arent reasonably related enough

to governmental function and concern about execution of laws to
bar aliens from becoming one
o All other discrimination receives rational basis review under equal protection
Other Rights, Interests
Education
o Rodriguez v. San Antonio
Importance: Education is not a fundamental right
Reasoning: Court looks to the Constitution and finds no right which guarantees
an education

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