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Constitutional Law Outline

REVIEW SESSION APRIL 26 @ 11 in Room 100

Judicial Review

The Constitution is silent as to whether the SC and other federal courts have the
authority to decide the constitutionality of federal, state, and local laws and
executive actions

Marbury v Madison (1803)

Establishes the authority for judicial review of both federal executive and
legislative acts
Judiciary Act of 1789
o Gave the SC original jurisdiction to issue writs of mandamus
o SC says that this Act is unconstitutional because Article III holds that the
SC shall only have original jurisdiction for a limited number of cases, and
shall have appellate jurisdiction for all other cases
Art III gives the SC original jurisdiction in all cases affecting:
Ambassadors, other public ministers and consuls, and those
in which a state shall be a party
You may not change the meaning of the Constitution by passing a
statute
Executive action
o SC differentiates between discretionary acts of the executive, which will
not be reviewable, and those assigned by law, which the courts should
afford a wronged individual a remedy
The political process is the only remedy for the former

Martin v Hunters Lessee (1816)

Extends judicial review to state court decisions as well

Limits on the Federal Judicial Power

Interpretive Limits

How should the Constitution be interpreted?

o Some approaches seek to greatly narrow the judicial power, while others
accord judges broad latitude in deciding the meaning on the Constitution
o Originalists
Believe the SC is justified in protecting rights only if they are
clearly stated in the text or intended by the framers
o Non-originalists
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Believe the SC should have substantial discretion in determining

meaning and that it is important for the Constitution to evolve by
interpretation and not only by amendment
Example
o 2nd Amendments right to bear arms
5th Circuit (Emerson)
Individuals have a right to bear arms and it does not only
address the states need to arm militias
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9 Circuit (Silveira)
The Amendment does not confer an individual right to bear
arms but covers the peoples right to maintain a state militia

Justiciability Limits

Article III section authorizes federal courts to hear several types of cases and
controversies
o Cases arising under the Constitution
o Federal laws and treaties
o Cases involving citizens of different states
In additional to satisfying federal jurisdiction, a party must satisfy the
justiciability doctrines
o Judicially created gatekeeper functions that individuals must satisfy, if
they are present, in order for their case to by heard

Advisory Opinions

Federal courts may not issue advisory opinions

o Some state courts may
There must be an actual dispute between litigants
o Only present flesh and blood controversies

Ripeness (When)

A federal court will not hear a case unless there is a present injury or significant
threat of imminent injury
o Seeks to separate matters that are premature for review because the injury
is speculative and may never occur from those cases that are appropriate
for federal court action
Rationale is to protect courts from entangling themselves in
abstract disagreements over policy
Facial challenge
o In the rare instance that you can show that in no instance may this law be
constitutional, the lawsuit may be filed even if it hasnt affected you yet
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Must look to both the fitness of the issue for judicial decision and the hardship on
the parties of withholding court consideration
o Lawsuits that seek declaratory orders on statutes that have been on the
books for years and never enforced may not be ripe

Mootness (When)

There is not longer an actual controversy between adverse litigants

o Parties settle, challenged law is repealed, futility of proceedings, etc
Exception
o Wrongs capable of repetition but evading review
If there is an injury likely to reoccur in the future and it is possible
that it could happen to the P again
If a suit is not flied as a class action, the recurring issue
exception applies only if the issue is capable of repetition
for the litigating party

Political Question Doctrine (What) rarely applicable

Refers to allegations of constitutional violations that federal courts will not

adjudicate, and that the SC deems to be inappropriate for judicial review
o Broad criteria (Baker v Carr)
If there is a textually demonstrable constitutional commitment of
the issue to a coordinate political branch
If there are judicially discoverable and manageable standards for
resolving the question
If it is impossible for the court to decide the case without an initial
policy determination clearly suited for non-judicial discretion

Standing (Who)

3 constitutional requirements
o Injury
P must allege that he or she has suffered or immediately will suffer
an injury in fact
Actual and immediate rather than ideological and
speculative
o The link between the chain of causation and
asserted injury must be strong and apparent
o Some day intentions, without description of
concrete plans, do not support a finding of actual
and immediate injury required
Particularized to the P rather than generalized to many
citizens, and
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Concrete rather than ideological

o Causation
P must allege that the injury is fairly traceable to Ds conduct
o Redressability
P must allege that a favorable federal court decision is likely to
redress the injury

2 prudential requirements
o P generally may only assert his own rights and cannot raise the claims of
third parties not before the court
Trade associations may sue on behalf of its members if:
The members themselves were injured in fact
The interests involved in the litigation must be relevant to
the organizations purposes
The claims assets and the relief requested do not require the
participation of the individual members
o P may not sue as a taxpayer who shares a grievance in common with all
other caretakers
Taxpayer standing has been allowed only to challenge government
expenditures as violating the taxing and spending clause
It is not sufficient to allege an incidental appropriation of
tax funds in the administration of an essentially regulatory
statute, and
He must show that the challenged enactment exceeds
specific constitutional limitations on the taxing and
spending power
o Ex. Federal funds going to parochial schools

The Federal Executive Power

If the President has explicit constitutional authority for particular conduct, then
the issues are solely whether the President is acting within the scope of the
granted power and whether the President is violating some other constitutional
provision
If there is a statute authorizing the Presidents conduct, then the question is
whether the law is constitutional

Inherent Presidential Power

Youngstown Steel (1952)

If there is no statutory authority, you must look to the Constitution
o In the text of the Constitution, the Presidents power is to see that the laws
are faithfully executed, which refutes the idea that he is a lawmaker
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Can go to Congress and ask for emergency legislation, but cannot

himself take legislative action

Three types of presidential action (Justice Jacksons concurring opinion cited

frequently by both side of the argument)
o Acting directly pursuant to Congressional authorization
Strongest authority
o Acting in the absence of Congressional authorization or prohibition
Zone of twilight
The President and Congress might have concurrent
authority in which the distribution is uncertain
o Acting in a way that is incompatible with the will of Congress
Only support is the inherent powers under the Constitution
Weakest authority
Presidential powers are not fixed but fluctuate depending upon their disjunction
or conjunction with those of Congress

The Scope of Inherent Power: The Issue of Executive Privilege

Executive privilege
o The ability of the President to keep secret conversations with or
memoranda to or from advisors
o Not mentioned in the Constitution, but claimed by all Presidents and the
SC has acknowledged constitutional underpinnings for such a
conditional, yet not absolute, privilege

Nixon (1974)
When the ground for asserting executive privilege as to subpoenaed materials
sought for use in a criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the demands of due process
o Cheney (2004)
In a civil case, executive privilege may outweigh due process
When the claim of privilege rests on a need to protect military, diplomatic, or
sensitive national security secrets, the privilege may outweigh other interests

The Authority of Congress to Increase Executive Power

Line Item Veto

o Gave the President the power to cancel in whole three categories of
provisions in statutes that had been signed into law
Any dollar amount of discretionary budget authority
Any item of new direct spending
And limited tax benefit
SC declared the Line Item Veto Act unconstitutional
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o The Constitution states that if the President disapproves of a bill, he may

only return (veto) it to Congress which can then override such veto by a
two-thirds vote in each House
o If there is to be a new procedure in which the President will play a
different role in determining the final text of what may become a law, such
change must come not by legislation but through the Amendment
procedures set forth in the Constitution

The Constitutional Problems of the Administrative State

The Non-Delegation Doctrine and Its Demise

Doctrine
o The principle that Congress cannot delegate its legislative power
Demise
o In only two cases, has the SC ever overturned statutes as invalid
delegations of legislative power to administrative agencies
Congress established no procedural or substantive standards to
guide the agency

The Legislative Veto and Its Demise

Legislative Veto
o When Congress enacts legislation containing a broad delegation of power
to the Executive but then provides for congressional review and veto of
executive actions taken pursuant to the grant
One-House legislative vetoes are unconstitutional because of the bicameralism
and presentment clauses of the Constitution
o Bicameralism
No law can take effect without the concurrence of the prescribed
majority of the members of both the House and Senate
o Presentment
All legislation must be presented and signed by the President
before becoming law

Checking Administrative Power

The Appointment Power Article II, 2

Hierarchy of appointment power

o Principle officers (along with ambassadors, consuls, SC judges, etc.)
Appointed by the President with Senate confirmation
Congress can put restrictions on the Presidents
appointment powers
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o BUT, the restrictions can then be limited by the

Presidential duties to faithfully execute the law
o Inferior officers
Congress may grant appointment power to the President alone
(without Senate approval), Heads of Departments, or Courts of
Law
o Employees
No restrictions

Criteria
o Is the officer subordinate or independent?
o What is the scope and breadth of the officers jurisdiction?
o What is the extent of the duties performed?

Morrison v Olsen (1988)

Independent counsel was an inferior officer because her appointment was
temporary, limited in jurisdiction, and was removable by the Attorney General for
cause
Independent counsel statute was not renewed though

Buckley v Valeo (1976)

Congress may not have a role in appointing executive officers
o Principle officers must be appointed by the President
o Congress can vest appointment power of inferior officers to the President,
Heads of Departments, of Courts of Law

The Removal Power

Other than impeachment of certain officials, the Constitution is silent as to the

removal of executive officers, but the principle that has emerged is the President
may remove such officers unless removal is limited by statute
o Congress, by statute, may limit removal both if it is an office where
independence from the President is desirable and the statute does not
prohibit removal, but limits it to where there is good cause

Myers (1926)
The President may remove purely executive officials without cause
o Congress may not fetter with the Presidents ability to faithfully execute
the laws

Humphreys Executor (1935)

Statute held that FTC commissioners could only be removed for good cause
This limitation on the Presidents removal power was upheld because this position
is not purely executive but quasi-legislative and quasi-judicial
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o Illimitable power of removal is not possessed by the President in respect to

independent agency officers

Bowsher v Synar (1986)

Congress can play no direct role in the execution of the laws
Congress assigned the Comptroller General executive duties, in that he was
placed in a position of interpreting and implementing legislation
o Therefore, Congress may not hold removal power over him since it would
in effect make an executive official an agent of Congress

Separation of Powers and Foreign Policy

Congress has frequently declared that issues concerning foreign policy are non-
justiciable political questionsmatters for the executive and legislature to resolve
without judicial review

Are Foreign Policy and Domestic Affairs Different?

The President has inherent powers, independent of the Constitution, in the realm
of foreign affairs
o The President is the sole organ of the Federal government in the field of
international affairs
But, see Jacksons concurring opinion in Youngstown Steel

War Powers

CongressArticle I
o The power to declare war and to raise and fund armies
PresidentArticle II
o Commander in Chief

War Powers Resolution

Area of contention
o President can introduce troops, but within 90 days the President must
inform Congress
Congress can then authorize the action or disagree and withdraw
the troops
We have not gotten to the point where Congress has tried to
assert this power
Most presidents have felt that this is unconstitutional
SC has denied standing in any claims brought challenging the Act

Hamdi
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The US may detain, for the duration of the hostilities, individuals legitimately
determined to be enemy combatants who engaged in armed conflict against the
US
Detainees who are US citizens and seek to challenge their status as an enemy
combatant must receive notice of the factual basis for this status and a fair
opportunity to rebut the governments factual assertions before a neutral decision-
maker
o Mathews balancing test used to tailor these proceedings
Sliding due process scale
In a moment of emergency, when the government must act with no time for
deliberation, the Executive may be able to detain a citizen if there is reason to fear
he is an imminent threat to the nation

The Federal Legislative Power

Congress and the States

A basic principle of American government is that Congress may act only if there
is express or implied authority in the Constitution, whereas states may act unless
the Constitution prohibits the action
Two questions to ask in evaluating the constitutionality of a statute
o Does Congress have the authority under the Constitution to legislate?
o If so, does the law violate another constitutional provision or doctrine,
such as by infringing separation of powers or interfering with individual
liberties?

McCulloch v Maryland (1819)

Does the United States have the authority to create a national bank, and if it does
do the states have the authority to tax it?
Although, among the enumerated powers of government, we do not find the word
bank or incorporation, we find the great powers to lay and collect taxes; to
borrow money; and to regulate commerce
o Congress must have discretion with respect to means by which the powers
are to be carried into execution
Art I, 8 Necessary and Proper Clause
Congress has the power to make all laws that are necessary
and proper for executing the powers that the Constitution
vests in it
States have no power, by taxation or otherwise, to retard; impede; burden; or in
any manner control, the operations of the Constitutional laws enacted by Congress

The Commerce Power

Article I, 8 Commerce Clause

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o Congress shall have the power to regulate commerce among the several
states

Gibbons v Ogden (1824)

When Congress has the power to regulate something, it can regulate it to the full
extent it can, unless there is some other Constitutional limitation
o Everyone else must get out of its way
Very broad interpretation
o Commerce among the states does not stop at the external boundary line of
each state, but may be introduced into the interior
But, commerce which is completely internal, and which does not
extend to or affect other states, is reserved to the state itself

1890s 1937: A Limited Federal Commerce Power pre-New Deal

Beginning in the 1890s, the SC took a very different approach to the Commerce
Clause than that expressed in Gibbons v Ogden and interpreted it very narrowly
o Congress can regulate local activities which directly affect interstate
commerce but not those local activities where the effect was only indirect

What is Commerce?

EC Knight (1895)
Commerce comes after manufacturing, and is not a part of it
o Manufacturing is covered by the states police powers

Carter Coal (1936)

Minimum wage and maximum rate statute deemed unconstitutional
o The incidents leading up to and culminating in the mining of coal do not
constitute intercourse for the purposes of trade and therefore are not
subject to Federal regulation

What Does Among the States Mean?

During this period, the SC did not adopt a consistent approach to defining what
constituted commerce among the states

Shreveport Rate Cases (1914) broad close and substantial relation approach
Congress has the right to control the operations in all matters having such a close
and substantial relation to interstate traffic that the control is essential or
appropriate
o Wherever the interstate and intrastate transactions of carriers are so related
that the government of the one involves the control of the other, it is
Congress that controls
o See NLRB below for similar approach
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Stafford (1922) broad stream of commerce approach

SC holds that Congress can prescribe stockyard standards because they are but a
throat through which current flows, and the transactions which occur therein are
only incident to this current from one state to another

Schechter Poultry (1935) narrow direct effect on commerce approach

Congress does not have the power to regulate where the effect of intrastate
transactions upon interstate commerce is merely indirect
o Congress can only regulate intrastate activities if there is a direct effect
Slaughterhouses where poultry comes in from out of state, but
once it gets on their property stays local, do not have a direct effect
on interstate commerce

Does the 10th Amendment Limit Congressional Power?

The powers not delegated to the United States by the Constitution, nor prohibited
by it to the states, are reserved to the states respectively, or to the people
o Two different interpretations
But a truism
This is not a separate constraint on Congress, but rather is
simply a reminder that Congress may only legislate if it has
authority under the Constitution
Protector of state sovereignty from federal intrusion

Hamer v Dagenhart (1918) overruled by Darby

Child labor laws are not within the Federal powers because they relate to
production, and production of articles intended for interstate commerce is a matter
of local concern

1937 1990s: A Broad Federal Commerce Power

From 1937 to 1995, not one Federal law has been declared unconstitutional as
exceeding the scope of Congresss commerce power

Three categories of activities have been able to regulate under the Commerce
Clause
o The channels of interstate commerce
Roads, waterways, airways, etc
o Instrumentalities of interstate commerce
Cares, boats, planes, etc
o Activities affecting interstate commerce

NLRB v Jones (1937)

Federal statute regulating fair labor standards
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Although activities may be intrastate in character when separately considered, if

they have such a close and substantial relation to interstate commerce that their
control is essential or appropriate, Congress may regulate them
o It is the effect upon commerce, not the source of the injury
BUT, the SC still believes that some point along the way the
manufacturing of certain things is not interstate commerce

US v Darby (1941)
Does Congress have the right to prohibit the shipment in interstate commerce of
products manufactured by employees whose wages are less than a prescribed
minimum?
o The power of Congress over interstate commerce is not confined to the
regulation of commerce among the states
This power extends to those local intrastate activities which so
affect interstate commerce or the exercise of the power of
Congress over it as to make regulation of them appropriate means
to the attainment of a legitimate end
Congresss motive and judgment is not judicially reviewable so long as it is
regulating commerce
o Congress basically established an unwritten Federal police power rooted
in its commerce power

Wickard v Filburn (1942) modern standard to apply - but consider US v Lopez (1995)
Local farmer was producing wheat, most of which was for personal use
Even if an activity is local and not regarded as commerce, it may still, whatever
its nature, be regulated by Congress, if looked at cumulatively throughout the
country, it has a substantial economic effect on interstate commerce

What Does Among the States Mean?

Heart of Atlanta Motel (1964)

Motel on a major highway that served interstate clientele barred blacks
There was evidence that uncertainty stemming from racial discrimination had the
effect of discouraging travel on the part of a substantial portion of the country
o If it is interstate commerce that feels the pinch, it does not matter how
local the operation which applies the squeeze
How obstructions to interstate commerce may be removed is
within the sound and exclusive direction of Congress
The means chosen must only be reasonably adapted to the
end permitted by the Constitution
o Congresss motive is not reviewable so long as it is regulating commerce

Katzenbach v McClung (1964)

Restaurant refused to serve blacks
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Even if this one restaurant affects interstate commerce in a trivial way, the
cumulative effect of what this restaurant and other restaurants have on interstate
commerce makes it far from trivial and may be federally regulated

Does the 10th Amendment Limit Congressional Power?

National League of Cities v Usery (1976) overruled by Garcia

Federal minimum wage statute that applied to state (public) employees
o SC says that this is within the scope of the Commerce Clause, but the 10th
Amendment limits Congresss ability to regulate activities that the states
have traditionally controlled
Accepts the protector view

Garcia v SAMTA (1985) overruling Usery

Rejects the rule of state immunity from Federal regulation that turns on a judicial
appraisal of whether a particular governmental function is traditional
o Federal regulation addressing minimum wages of public employees does
not violate the 10th Amendment or destroy state sovereignty
Accepts the truism view

1990s - ?: Narrowing of the Commerce Clause and Revival of the 10th Amendment
as a Restraint on Congress

In 1995, for the first time in 60 years, the SC found that a Federal statute
exceeded Congresss Commerce Clause authority

US v Lopez (1995)
Federal statute, enacted under the Commerce Clause, making it illegal to carry a
gun in a school zone
SC holds that the statute neither regulates an economic activity nor contains a
requirement that the possession be connected in any way to interstate commerce
o The language of the statute must particularly address interstate commerce
and cannot just rely on Congresss authority under the Commerce Clause

What Does Among the States Mean?

US v Morrison
Federal statute, enacted under the Commerce Clause, granting Federal damages to
victims of gender motivated violence
Congress may not regulate non-economic conduct based solely on the conducts
aggregate effect on interstate commerce

Reich
Federal statute, enacted under the Commerce Clause, prohibiting the local
cultivation and use of marijuana
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o Production of a commodity, be it wheat as in Wickard or marijuana here,

considered cumulatively, has a substantial effect on supply and demand in
the national market and can therefore be federally regulated
These activities are clearly economic

Does the 10th Amendment Limit Congressional Power?

The first indication of the revival of the 10th Amendment occurred in 1991 and
was strengthened in NY v US and Printz
SC ruled that a Federal statute that imposes a substantial burden on a state
government will be upheld only if Congress clearly indicated that it wanted it to
apply

NY v US (1992) invalidated the Federal law

While Congress has substantial power to encourage the states, via incentives;
access; etc., to legislate according to its will in state matters, the Constitution does
not confer upon Congress the ability to compel the states
Congress may not require the states to govern according to Congresss
instructions or use the states as implements of Federal regulation
o Congress may pass laws to preempt state legislation contrary to
Federal interests, but cannot pass laws that in effect require states to
enact or administer them
See Preemption Power section below

Printz (1997) invalidated the Federal law

Federal statute required state and local law enforcement officers to conduct
background checks on prospective handgun purchasers
Congress may neither issue directives requiring the states to address particular
problems nor command the states officers to administer or enforce a Federal
statute

Reno v Condon (2000) upheld the Federal law

Federal statute that prohibited state DMVs and private individuals from releasing
personal information to individuals and businesses
o This statute regulates the universe of entities that participate as suppliers
to the market for personal information
It does not require the states in their sovereign capacity to regulate
their own citizens, enact any laws or regulations, or assist in the
enforcement of Federal statutes

The Taxing and Spending Power

Article I, 8
o Congress shall have power to lay and collect taxes, duties, imposts, and
excises, to pay the debts and provide for the common defense and general
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welfare of the United States; but they must be uniform throughout the
United States
At the moment, Congress can essentially do a number of things though the
spending power that it may not do through the Commerce Clause
o Although many commentators have speculated that the recent SC will
limit Congresss spending power, a broad scope has been maintained

For What Purposes May Congress Tax and Spend?

US v Butler (1936)
Congress has the ability to impose taxes to provide for the general welfare
independent of its other powers
o SC held that Federal spending is not simply a means for accomplishing
Congresss enumerated powers, it is an independent source of Federal
power (Hamiltons view)
As opposed to be just a means for furthering enumerated powers
(Madisons view)

Fullilove (1980)
Congress may further broad policy objectives by conditioning Federal grants upon
compliance with statutory and administrative directives and may use its spending
power to induce governments and private parties to cooperate voluntarily with
Federal policy

Conditions on Grants to State Governments

Congress is free to spend and impose reasonable conditions on state and local
grants so long as the conditions are:
o Expressly and unambiguously stated,
States must know the consequences of their choosing to take
Federal funds
o Have some relationship to the spending program, and
US v Dole
Federal statute withholding highway funds to states in
which it is legal to drink under 21
o Condition was held to be related to the purpose of
allocating highway fundssafe interstate travel
o Are not coercive
If the states would lose a large percentage of funding

Congresss Powers under the Post-Civil War Amendments (13th -15th)

13th Amendment
o Prohibits slavery and involuntary servitude, except as punishment for a
crime
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Provides that Congress shall have power to enforce this article by

appropriate legislation
It is well-established that Congress may prohibit private
racial discrimination

14th Amendment
o Provides that all persons born or naturalized in the US are citizens and that
no state can abridge the privileges or immunities or such citizens; nor may
states deprive any person of life, liberty, or property without due process
of law or deny any person the equal protection of the laws
5 provides that Congress shall have power to enforce this article
by appropriate legislation
Congress has made it clear that Congresss authority under
the 14th is only over action taken by state and local
governments and their officials, and does not extend to
regulation of private behavior

15th Amendment
o The right of citizens of the US to vote shall not be denied or abridged by
the US or by any state on account of race, color, or previous servitude
Provides that Congress shall have power to enforce this article by
appropriate legislation

What is the Scope of Congresss Power?

Katzenbach (1966)
Voting Rights Act that superseded state laws was upheld under 5 of the 14th

City of Bourne (1997)

Federal legislation which deters or remedies constitutional violations can fall
within the sweep of Congresss enforcement power even if in the process it
prohibits conduct which is not itself unconstitutional
o BUT, if the statute is so out of proportion to a supposed remedial or
preventive object that it cannot be understood as responsive to, or
designed to prevent, unconstitutional behavior, Congress is exceeding its
5 authority

Congresss Power to Authorize Suits against State Governments

Background on the 11th Amendment and State Sovereign Immunity

11th Amendment
o The judicial power of the US shall not extend to any suit commenced or
prosecuted against one of the states by citizens of another state, or by
citizens of any foreign state
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States may therefore not be sued in Federal court, even for

egregious violations of Federal rights

Hans (1890)
o SC held that the 11th also bars suits against a state by its own citizens

Three ways around the 11th to hold state governments accountable in Federal court
o State officers may by sued in Federal for injunctive relief or for damages
to be paid by them (not the state treasury)
o States may waive their 11th immunity
o Congress may abrogate a states 11th immunity if: :
It makes its intention to abrogate unequivocally clear in the
language of the statute, and
Acts pursuant to a valid exercise of its power under 5 of the 14th
If a law is within that authority, states can be sued in
Federal court for violating it
If a law is not under that authority, states cannot be sued in
Federal court

Cases Denying Congress Authority to Act under 5 to Authorize Suits against State
Governments

Kimel (2000) and Garrett (2001)

Congress enacted statutes under 5 giving private citizens a remedy in Federal
court when a state agency discriminates in hiring someone based on age or a
physical disability
SC holds that Congress made its intention to abrogate the 11th clear in both, but
exceeds its authority under 5
o In order for Congress to authorize private individuals to recover money
damages against the states, there must be a pattern or practice of
discrimination by the states which violates the 14th, and the remedy
imposed by Congress must be rationally related to a legitimate
government purpose
Neither age nor disability was determined to be a suspect
classification covered by the 14th Amendment and therefore was
not given heightened scrutiny
These types of discrimination pass muster if there is a
rational relationship to a legitimate government purpose

Nevada HR Dpt. (2003)

Congress enacted a statute under 5 giving private citizens different remedies
based on gender
Unlike age and physical disability in the above cases, the SC has held that gender-
based classifications are subject to heightened scrutiny
o Intermediate scrutiny is applied to gender-based classifications
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The Preemption Power

Art VI Supremacy Clause

o The Constitution, and laws made pursuant to it, are the supreme law of the
law
o If there is a conflict between Federal and state law, the Federal law
controls and the state law is invalidated

Express preemption
o Where a Federal law expressly preempts state or local law
Implied preemption
o Field preemption
Where the scheme of Federal law and regulation is so pervasive as
to make reasonable the inference that Congress left no room for the
states to supplement it
o Conflict preemption
Where compliance with both Federal and state regulations is a
physical impossibility
o State law impedes the achievement of a Federal statute
Where the state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress

Individual Rights and Liberties

Limited government in the US is achieved not only through the constitutional

allocation of powers but also through the recognition of rights and liberties

The Application of the Bill of Rights to the States

The Bill of Rights is the first ten Amendments to the Constitution

o The first eight Amendments detail protection of individual rights
On their face, these Amendments do not look as though they were
intended to apply to state and local governments and limit their
power to legislate
Before the Civil War, they were not so applied

The Debate over Incorporation of the 14th Amendment

Slaughter-House Cases (1873)

State legislature granted a monopoly in the livestock slaughter business to one
company so long as it allowed any person to slaughter there for a fixed fee
Individual butchers sues saying the state legislature was denying them of some of
their 14th Amendment rights (in addition to other rights under the Constitution)
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SC narrowly interpreted the:

o Due Process Clause
Interpretation quickly overruled
o Equal Protection Clause
Interpretation lasted until well into the 20th century
o Privileges and Immunities (of citizenship) Clause
Interpretation lasted until very recently

Once the SC found that the Due Process Clause protected fundamental rights from
state infringement, there was a major debate about which rights are safeguarded
o Total incorporationists
All of the provisions in the Bill of Rights should be covered by the
Due Process Clause
o Selective incorporationists
Only some of the provisions in the Bill of Rights addressed
sufficiently fundamental rights and should apply to state and local
governments
Today only five provisions within the Bill of Rights have never been
incorporated:
o Right to bear arms
o Right to quarter soldiers
o Right to a grand jury indictment
o Right to a jury trial in civil cases
o Prohibition of excessive fines

The Application of the Bill of Rights and the Constitution to Private Action

The Bill of Rights only applies to government action, and private conduct
generally does not have to comply with the Constitution
o There are two exceptions to this general rule

The Public Functions Exception

Jackson (1974)
The Constitution applies if there is a sufficiently close nexus between the state
and the challenged action so that the action of the latter may fairly treated as that
of the state itself
o There mere fact that a business is subject to extensive state regulation does
not by itself convert its action into that of the state
Must ask whether the challenged action has been traditionally and exclusively
done by the government

The Entanglement Exception

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The 14th applies if the state government affirmatively authorizes, encourages, or

facilitates private conduct that violates the Constitution
o Either the government must cease its involvement with the private actor or
the private entity must comply with the Constitution

Shelley (1948)
State court enforcement of private restrictive covenants that did not allow the sale
of private property to blacks was deemed to be state action
o Private restrictive covenants themselves do not invoke the 14th, but state
enforcement of the agreements does

Economic Substantive Due Process Rational Basis Review

14th Amendment provides that the state may not take a persons property (life or
liberty) without due process of law
o Substantive due process
Whether the government has an adequate reason for taking away a
persons life, liberty, or property
Has been used in primarily two areas
Protecting economic liberties from government interference
Safeguarding privacy from government interference
o Procedural due process
Whether the government follows adequate procedures and allows a
person to defend himself when taking away their life, liberty, or
property

Pre-Lochner Era (Before 1905)

SC rejected the idea that the Due Process Clause could be used to invalidate
government economic regulations

The Lochner Era (1905-1937)

Lochner v NY (1905)
State law that set maximum hours for bakers
o SC holds that the state legislature is trying to pass laws under the guise of
its police power, but was instead interfering with an individuals right to
make contracts
Established principles followed until 1937
o Freedom of contract was a right protected by the Due Process Clause of
the 5th and 14th Amendments
o The government could interfere with freedom of contract only to serve a
valid police purpose such as protecting the public health, safety, or morals
 21

In this era maximum hours, but not minimum wage, legislation for
women was deemed an appropriate use of a states police power
o The judiciary should carefully scrutinize legislation to ensure that it truly
served such a purpose
Very limited deference to legislative judgment during the era

Nebbia v NY (1934)
Beginning of the end of the Lochner era
In the absence of other constitutional restrictions, a state is free to adopt whatever
economic policy it reasonably deems appropriate to promote the public welfare
and to enforce that policy by legislation adapted to its purpose
o The judiciary is without authority either to declare such policy, or, when it
is declared by the legislature, override it
If the laws are seen to have a reasonable relation to a proper
legislative purpose, and are neither arbitrary nor discriminatory, the
requirements of the Due Process Clause are satisfied

Post-Lochner Era

The Depression created a widespread perception that government economic

regulations were essential
Since 1937, the SC has used the rational basis test to review economic
regulations, and not one state or federal economic regulation has been found
unconstitutional as infringing freedom of contract under the Due Process Clause
o One exception may be found in BMW (1996), which held that a state
punitive damage award violated the substantive due process
Factors courts must look to:
Degree of reprehensibility of Ds conduct
Ratio of compensatory damages to punitive damages
o More than 4:1 might be close to the line
Sanctions for comparable misconduct

West Coast Hotel (1937) overruled Adkins

SC upholds a state law that required a minimum wage for women
State legislatures have the right to consider that its minimum wage requirements
are an appropriate way to promote the public welfare
o Such a law cannot be seen as arbitrary or discriminatory

Carolene Products (1938) initial mention of heightened scrutiny

When reviewing economic regulations, the SC shall use the rational basis test
o Footnote 4
There may be a narrower scope when considering legislation
which appears on its face to:
Be prohibited by the Bill of Rights
 22

Discriminate against discrete and insular minorities

Interfere with the political process
o Voting, organizing, disseminating information

Individual Rights under the Due Process Clause

Generally, if a law denies the right to everyone then the Due Process Clause
would be the best grounds for analysis; but if a law denies a right to some, while
allowing it to others, the discrimination can be challenged as offending the Equal
Protection or Due Process Clauses

Rights Held to be Fundamental

SC has held that some liberties are so important that they are deemed to be
fundamental rights and that the government generally cannot take action to
infringe them unless the government action is necessary to achieve a compelling
purpose (strict scrutiny)

FRAMEWORK

Is there a fundamental right?

o No exact test; provokes a judiciary debate about its proper role in
classifying the importance of each right

If it is a fundamental right, has it been infringed?

o Must pass strict scrutiny analysis
The government must present a compelling purpose to justify such
infringement

If it has been infringed, is the means sufficiently related to the purpose?

o Must pass strict scrutiny
The government must show that the law is necessary to achieve the
compelling purpose
Must show that no other less-intrusive alternative can work

Rights Relating to Family Autonomy

Right to marry
Right to custody of ones children
o SC has held that the tradition is protecting the legal family and not other
forms of family relationships
Right to keep the family together
o SC has held that this includes the extended family
 23

o SC has held that individuals must be related by blood to be considered a

family
Right of parents to control the upbringing of their children
o SC has held that it is the natural duty of the parent to give their child an
education suitable to their station in life
Parents should be able to send their children to whatever school
they feel is best

Rights Protecting Reproductive Autonomy

Right to procreate
o Government-imposed involuntary sterilization must meet strict scrutiny
Right to purchase and use contraceptives
o SC has held that this is covered by the implied right to privacy, which is
found in the shadows of the 1st, 3rd, 4th, 5th, 9th, and 14th Amendments

Right to privacy

Individuals have the right to be free from unwarranted governmental intrusion

into matters fundamentally a persons decision whether to bear or beget a child

Right to Abortion

Roe v Wade (1973)

This implied right of privacy, wherever it be found, is broad enough to encompass
a womans decision whether or not to terminate her pregnancy
o This right is not absolute though, but must be considered in light of the
states interest in regulation
Given the fundamental character of the right involved, state
limitations can be justified only by meeting strict scrutiny
In applying strict scrutiny here, the SC dismissed the claim
that the rights of the fetus should be included in the
balance
SC then holds that there are three stages of pregnancy
o 1st trimester
States have no interest in this stage, and therefore may not regulate
beyond ensuring that the woman consults with her doctor
nd
o 2 trimester
States do have an interest in protecting the woman here, and can
therefore regulate for this reason
o 3rd trimester
After viability, the states have an interest in protecting the woman
and the fetus here, and can therefore regulate for these reasons

Planned Parenthood v Casey (1992)

 24

SC reaffirms the essential holding in Roe v Wade, and states three key
determinations:
o A woman has the right (no mention of fundamental right, or right to
privacy) to choose to have an abortion before viability and to obtain it
without an undue burden presented from the state
States, therefore, can regulate abortions performed prior to
viability so long as there is not an undue burden on access to
abortions
SC overrules the use of strict scrutiny analysis called for in
Roe v Wade
o Under the undue burden analysis, states are
permitted to enact persuasive measures which favor
childbirth over abortion
o States have the power to restrict abortions after viability so long as the
state regulation provides an exception to those pregnancies which
endanger a womans life of health
o States have a legitimate interest from the outset of pregnancy in protecting
the health of the woman and the life of the fetus that may become a child
SC, therefore, overrules the trimester distinctions used in Roe v Wade in addition
to the use of the strict scrutiny standard for evaluating state laws concerning
abortion

Government Regulation of Abortions

Stenberg (2000)
SC holds a state law banning partial birth abortions unconstitutional because:
o The law lacks any exception for the preservation of the womans health
o The law imposes an undue burden on the womans ability to choose the
most commonly performed procedure for pre-viability second trimester
abortions, thereby unduly burdening the right to choose abortion itself

Federal Ban of Partial Birth Abortions Act of 2003 (upheld this month)
Congress is entitled to reach its own findingsfindings that the SC then accords
great deferenceand to enact legislation based upon these findings so long as it
seeks to pursue a legitimate interest that is within the scope of the Constitution
and draws reasonable inferences based upon substantial evidence
o Congress used its authority to base its ban of partial birth abortions on
substantial evidence showing these procedures were never medically
necessary and actually harmed the woman

Government Restrictions on Funds and Facilities for Abortions

SC has consistently held that the government is not constitutionally required to

subsidize abortions even if it is paying for childbirth
 25

Harris (1980)
SC upholds state laws that deny public funding for medically necessary abortions
except where they are necessary to save the life of the woman, or for rape and
incest

Spousal and Parental Notice and Consent Requirements

Danforth (1976)
SC has held that the government may not require either spousal consent or
spousal notification as a prerequisite for a married womans obtaining an abortion

Hodgson (1990)
SC has held that a state may require parental notice and/or consent for an
unmarried minors abortion, but only if it:
o Creates an alternative procedure where a minor can obtain an abortion by
going before a judge who can approve the abortion by finding that:
It would be in the minors best interest, or
The minor is mature enough to decide for herself

Constitutional Protection for Medical Care Decisions

Right to Refuse Treatment

Generally, there is a right competent individuals have to refuse unwanted medical

treatment, but it is certainly not absolute and can be regulated by the state

Cruzan (1990)
Without using strict scrutiny, the SC upheld a state law stating that clear and
convincing evidence of a patients intent to have life-sustaining treatment
withdrawn was required in order to do so
o This states standard could apply in proceedings where a guardian seeks to
take the patient off life support as well

Right to Physician-Assisted Suicide

Washington v Glucksberg (1997)

There is not a fundamental right to physician-assisted suicide and state laws can
therefore outlaw it if they have a rational basis

Vacco v Quill (1997)

SC holds that it is reasonable for a state to differentiate between a patient refusing
life sustaining treatment and physician-assisted suicide and this does not violate
the Equal Protection Clause
o When there are two different situations, it may be reasonable for a state to
treat them differently
 26

Constitutional Protection for Sexual Orientation and Activity

Bowers v Hardwick (1986) overruled by Lawrence

SC upholds a state law criminalizing sodomy
o In doing so, the SC states that the right to privacy does not protect a
fundamental right to engage in private consensual homosexual activity

Lawrence v Texas (2003)

SC deems a state law criminalizing homosexual sodomy unconstitutional
o Overrules Bowers, and holds that there is a liberty interests adults have in
engaging in private conduct covered by the Due Process Clause

Individual Rights under the Equal Protection Clause

The 14th Amendment guarantees that no state shall make or enforce any law
denying to any person the equal protection of the laws
Scope
o Like the Due Process Clause, the Equal Protection Clause of the 14th
Amendment only regulates state action
o Even though there is not a specific Equal Protection Clause in the 5th
Amendment, the SC interprets the 5th Amendments Due Process Clause as
encompassing equal protection and therefore applies it to Federal
government action

Overview
o The issue in all equal protection cases is whether the government can
identify a sufficiently important objective for its discrimination and
whether the means it uses are sufficiently tailored

FRAMEWORK

What is the classification?

o Where the distinction among groups of people exists on the face of the
statute
o Where the statute is facially neutral, but there is a discriminatory impact to
the statute or discriminatory effects from its administration
If a statute is facially neutral, demonstrating a race or gender
classification requires proof that there is a discriminatory purpose
behind the law

What is the appropriate level of scrutiny?

o Strict scrutiny
Applies to discrimination based on:
 27

Race, national origin, and alien status

Standard
A law is upheld if the government proves that it is
necessary to achieve a compelling government purpose
o The means must be the least restrictive alternative
to achieving the purpose
o Intermediate scrutiny
Applies to discrimination based on:
Gender or non-marital children
Standard
A law is upheld if the government proves that it is
substantially related to an important government purpose
o The means do not need to be necessary, but must
have a substantial relationship to the end being
sought
o Rational basis
Applies to discrimination based on:
Anything else
Standard
A law is upheld unless a challenger can show that it is not
rationally related to a legitimate government purpose
o The purpose need not be compelling or important,
just something that the government legitimately can
do
The means need only be a rational
alternative to accomplishing the end

Does the government action meet the level of scrutiny?

o Depends on the level of scrutiny for how narrow or broad the scope of the
law is allowed to be
Overinclusiveness
If it applies to those who need not be included in order for
the government to achieve its purpose
Legislators may have a hard time identifying any bright
line marking the point at which individuals should not be
covered
Underinclusiveness
It does not apply to other individuals who are similar to
those to whom the law applies
But, the SC has held that a law does not need to address the
entire problem at once, and the legislature can take it a step
at a time
o There is no requirement of equal protection that all
evils of the same genus be eradicated or none at all
 28

o Virtually all laws are either or both to some extent

Under the rational basis test, the SC will allow laws that are both
significantly under and over inclusive
A classification having some reasonable basis does not
offend equal protection merely because it is not made with
mathematical nicety or because in practice it results in
some inequality

The Rational Basis Test

Since 1937, the SC has made it clear that it will defer to government economic
and social regulations unless they infringe on a fundamental right or discriminate
against a discrete and insular group that warrants heightened judicial protection

Does the Law Have a Legitimate Purpose?

Virtually any legislative goal that is not forbidden by the Constitution will be
deemed sufficient to meet the rational basis test

Romer v Evans (1996)

Using rational basis, the SC holds that a state statute banning all government
action designed to protect homosexuals from discrimination is purely a status-
based enactment divorced from any factual context from which the SC could
discern a relationship to a legitimate state interest

FCC v Beech (1993)

Any conceivable legislative purpose is sufficient and those attacking the
rationality of the legislative classification have the burden of negating every
conceivable basis which might support it
o The actual purpose behind a law is irrelevant and the law must upheld if
any state of facts reasonably may be conceived to justify its discrimination

The Reasonable Relationship Requirement

Under the rational basis test, laws will be upheld unless the government action is
clearly wrong, a display of arbitrary power, and not an exercise of judgment
o As a result, under the rational basis test, the SC will allow laws that are
both significantly under and over inclusive
Rational basis with teeth
o While claiming to be using rational basis review, the SC has occasionally
been more combing
o Moreno (1972)
Amendment to the Food Stamp Act excluding from participation in
the food stamp program any household containing an individual
who is unrelated to any other member in the household
 29

SC holds that this change is clearly irrelevant to the stated purpose

of the Act which was to mitigate fraud involving food stamps

Classifications Based on Race

Dred Scott (1856)

In the Missouri Compromise, Congress admitted Missouri as a slave state, but
prohibited slavery north of a certain boundary line
SC held that the Missouri Compromise was unconstitutional and broadly held that
slaves were property and not US citizens
o Since slaves were not US citizens, they could not sue in a federal court

The Emergence of Strict Scrutiny as the Test

It is now clearly established that racial classifications, whether disadvantaging or

helping minorities, will be allowed only if the government can meet the heavy
burden of demonstrating that the discrimination is necessary to achieve a
compelling purpose and it is the most narrowly tailored means of achieving such
purpose

Classifications on the Face of the Law

Classifications that Disadvantage Minorities

The rulings affirming the constitutionality of the Japanese evacuations during

WWII, is the only situation in which the SC expressly upheld, under equal
protection, racial classifications burdening minorities

Korematsu (1944)
SC announces that it will use the strict scrutiny standard for evaluating laws that
classify individuals based on race or national origin
o It is not clear whether the SC actually applies the new standard in this case
SC holds that exclusion from a threatened area has a definite relationship to the
prevention of espionage and that the military was justified in its assertion that it
was impossible to separate the loyal from the disloyal

Classifications Burdening Both Whites and Minorities

A second type of racial classification that can exist on the face of the law is
government action that burdens both whites and minorities

Loving v Virginia (1967)

SC recognized that racial classifications are impermissible under the Equal
Protection Clause because they are based on assumptions that blacks are inferior
to whites
 30

o There is no legitimate purpose independent of racial discrimination which

justifies such classifications

Palmore (1984)
While the objective of granting custody based on the best interests of the child
represents a substantial state interest, the effects of racial prejudice and the reality
of private bias and possible injury do not justify racial classifications

The Doctrine of Separate but Equal

A third type of racial classification that can exist on the face of the law is a
requirement of racial separation

Plessy v Ferguson (1896)

SC upheld a state statute that provided for separate but equal railway cars
The object of the 14th Amendment was to enforce the absolute equality of the two
races before the law, but, in the nature of things, it could not have been intended
to abolish distinctions
o Laws permitting, and even requiring, their separation in places where they
are likely to be brought into contact, do not necessarily imply the
inferiority of either race to the other

Attack on Separate but Equal

In several cases between 1938 and 1954, the SC found that states denied equal
protection by failing to provide educational opportunities for blacks that were
available to white
o SC did not question the doctrine of separate but equal, but rather held that
the lack of opportunities for blacks was unconstitutional

Brown v Board of Education (1954)

Segregation of the schools solely on the basis of race, even when the facilities and
other tangible factors may be equal, violates the Equal Protection Clause
o This generates a feeling of inferior status in the community
The rejection of state sanctioned racial segregation was summarily extended to
other public facilities

Brown II (1955)
SC held that states were to desegregate their school districts at the earliest
practical date, with prompt and reasonable compliance
This didnt do anything

Civil Rights Act of 1964

Title VI prohibited discrimination by schools receiving federal funds and gave
the Justice Department the authority to intervene
 31

Swann v Charlotte-Mecklenburg (1971)

If school authorities fail in their affirmative obligations, judicial authority may be
invoked; this authority enters only when local authorities default
o Once a right has been shown to be violated, the scope of a district courts
equitable powers is broad and is determined by the nature and extent of
the violation
A reasonable amount of busing where needed to remedy past
discrimination was approved

Milliken (1974)
A federal court may not impose a multidistrict, area-wide remedy to a single
district segregation problem absent any finding that the other included school
districts have failed to operate unitary school systems within their districts

Dowell (1991)
No more court orders from the federal courts

Facially Neutral Laws with a Discriminatory Impact

Proof of a Discriminatory Purpose Required

Some laws that are facially neutral are administered in a manner that
discriminates against minorities or has a disproportionate impact against them
SC holds that there must be proof of a discriminatory purpose for such laws to be
treated as racial or national origin classifications

Washington v Davis (1976)

If a neutral statute has a disproportionate impact, rational basis will still be used
unless it is also shown that there was a discriminatory purpose
o If both impact and purpose are shown, strict scrutiny will be used
Impact may be evidence of a discriminatory purpose, but standing
alone it will not trigger strict scrutiny

Village of Arlington Heights (1977)

Racial discrimination need not be the sole or even the primary purpose for the
law, but once it is shown to have been a substantial or motivating factor behind
the enactment of the law, the burden shifts to the laws defenders to demonstrate
that the law would have been enacted without this factor
o Factors to look at
Clear patterns, unexplainable on grounds besides race
Historical background of the decision
Legislative and administrative history
Departures from normal procedural sequence
 32

The fact that the government adopts a policy knowing discrimination will result
does not by itself satisfy the purpose requirement

Affirmative Action

Affirmative Action in School Admissions

Bakke (1978)
SC, without yet agreeing on which standard of scrutiny should be applied, ruled
that public colleges may use race as one factor in admissions decisions to benefit
minorities but invalidated the use of a set-aside method

Grutter and Gratz v Bollinger (2003)

Student body diversity is a compelling state interest that can justify the use of race
in public college admissions but the means but be narrowly tailored
o Race may not be a decisive factor
It can be used as a plus factor so long as members of the non-
favored racial groups are not unduly harmed
It must also be limited in time

The Emergence of Strict Scrutiny as the Test

Croson (1989)
The standard of review under the Equal Protection Clause is not dependent on the
race of those burdened or benefited by a particular classification
o Strict scrutiny should therefore be applied to all remedial racial
classifications
Elimination for a governments passive support for private racial discrimination in
a certain area would be a compelling government interest
o However, past societal discrimination alone may not serve as the basis for
rigid racial preferences without evidence that the city previously
systematically excluded minorities from the field of work in which
affirmative action is now trying to be used
Since no compelling purpose was shown here, the SC did not rule
on whether the means were sufficiently narrowly tailored
SC did state that racially neutral means should always be
considered and used when possible

Adarand (1995)
SC extends its holding in Croson and holds that all racial classifications, remedial
or benign, must be analyzed by a reviewing court under strict scrutiny

Classifications Based on Gender

 33

The Emergence of Intermediate Scrutiny as the Test

Craig v Boren (1976)

State statute that allowed women to buy beer at 18, yet men could not until 21
While the state had an important interest in traffic safety, statistics offered by the
state on the incidence of drunk driving among males and females did not establish
that the gender classification was substantially related to that objective
o Though statistics such as these could be used, but when the disparity in
numbers is small, they may not form the basis for such a classification

US v Virginia (1996)
US sued VMI alleging that its male only admissions policy violated equal
protection
o As a consequence of this case, the intermediate standard of review may be
applied more rigorously in the past in light of the exceedingly persuasive
justification the SC called for in reviewing statutes that classify based on
gender

Gender Classifications Based on Role Stereotypes

SC has invalidated laws that benefit women and disadvantage men when the SC
perceives that the law is based on stereotypical assumptions about gender roles

Orr (1979)
Remedying past discrimination against women in marriage is invariably held to
be an important interest, but the a law that makes husbands pay alimony but not
wives is not substantially related to this compensatory end
o The states compensatory purpose here would be equally well served by a
gender neutral classification as one that classifies based on gender and
carries with it stereotypical baggage
Similarly, the SC has on several occasions, declared unconstitutional; laws that
automatically allow women economic benefits, but permitted men the same
benefits only if they proved dependence on their wives

In some cases, however, the SC has upheld laws benefiting women even though
they seem to be based on stereotypes

Michael M (1981)
SC upholds a state statutory rape law that makes men alone criminally liable for
the act of sexual intercourse challenged on equal protection grounds
A gender classification which realistically reflects the fact that the sexes are not
similarly situated in certain circumstances will be upheld
o Women suffer disproportionately from the consequences of teenage
pregnancy
The state has an important purpose in preventing such pregnancy
 34

Significantly less women would come forward to report such

sexual activity if they were also punished under the statute

Rostker (1981)
Congress reinstituted the draft in order to have a pool of people available to be
drafted, but only required men to register
o The purpose of the draft is to have combat ready forces

Classifications Based on Alienage

Generally it can be said that when a state awards public benefits to citizens, but
denies them to aliens, such classification is inherently suspect and subject to strict
scrutiny
o However, there is a broadly interpreted political function exception
Rational basis review is to be applied when analyzing laws that
contain alienage classifications related to self-government and
democratic process
There must be a rational relationship between the job and
the concerns legitimizing the objective
o When jobs call for a high degree of judgment and
discretion and substantially affect members of the
political community
SC has held that a state can bar aliens from
being teachers and state troopers, but not
from being notary publics

Constitutional Protection for Education

San Antonio School District (1973)

There is not a fundamental right to education
State statutes that rely on property tax within the school district to fund the
schools are acceptable
o The judiciary should refrain from imposing on the states inflexible
constitutional restraints that could circumscribe them in making decisions
about how to fund their schools
This is a complicated arena in which no perfect alternative exists
Rational basis review of such statutes should be applied

Plyler v Doe (1982)

SC held that discrimination against illegal aliens in providing a free education
violates equal protection
While public education is not a right granted by the Constitution, education has a
fundamental role in maintaining the fabric of our society
o Denying children whose children decided to enter the country illegally an
education is unconscionable
35