con law (2)
Overruled National League of Cities.
Justice Blackmun sided with the four dissenters (Brennan, White, Marshall, and Stevens) from National League of Cities.
Difficulty of line drawing: It was hard to identify an organizing principle to differentiate between traditional governmental functions and others. Attempts to distinguish between traditional and non-traditional governmental functions proved inconsistent and problematic.
Problem of subjectivity: Allowing a federal judiciary to decide which state policies it favors or dislikes based on the traditional, integral, or necessary nature of government functions. This raised concerns about judicial overreach and subjectivity in determining the scope of state sovereignty.
Procedural safeguards: State sovereign interests are protected by procedural safeguards inherent in the federal system's structure, not by judicially created limitations on federal power.
Examples:
Each state has senators, ensuring equal representation in the Senate.
States control electoral qualifications for federal elections, influencing the composition of the electorate.
States have a role in presidential elections via the Electoral College, affecting the outcome based on state-level votes.
Dissent: The majority opinion allows federal political officials invoking the Commerce Clause to be the sole judges of their own power's limits. This raised concerns about potential overreach by the federal government at the expense of state sovereignty.
Significance:
Garcia suggests that if Congress regulates states under its Commerce Power, the fact that a state is being regulated has little practical significance if the regulation would be valid for a private party. The Court indicated that the Tenth Amendment does not provide states with special exemptions from generally applicable federal laws.
The majority suggests constitutional protections against congressional interference with state sovereignty exist within the structure or process of congressional lawmaking, not necessarily through judicially-imposed limitations.
Printz v. US
Court held that Congress may not compel a state or local government’s executive branch to perform functions. The federal government cannot directly commandeer state resources to implement federal mandates.
This is true even if the functions are fairly ministerial and easy-to-perform and even if the compulsion is only temporary. The Court emphasized the importance of maintaining the distinction between federal and state authority.
Decision:
Rationale: States retain sovereignty, remaining independent and autonomous within their sphere of authority. This underscores the principle of dual sovereignty, where both the federal and state governments have distinct powers.
Basis: Unclear if Scalia believed a specific constitutional provision had been violated; he seemed to rely on a general principle of state sovereignty rather than a specific clause. The decision was rooted more in the structure of federalism than in a specific constitutional text.
Dissent
The Commerce Power gave Congress the authority to regulate handguns. The dissenting justices argued that the Commerce Clause provided sufficient authority for the federal government to regulate firearms, even at the state level.
The necessary and proper clause gave Congress the right to implement its regulation by temporarily requiring local police officers to perform the ministerial step of identifying persons who should not be entrusted with handguns. This emphasized the federal government's power to enact laws necessary to carry out its enumerated powers.
The 10th Amendment provides no support for a rule that immunizes local officials from obligations that might be imposed on ordinary citizens. The dissenters argued that the Tenth Amendment should not be interpreted to prevent the federal government from imposing obligations on state officials that are consistent with the Constitution.
Control over purse strings: Congress could condition a state or local government’s receipt of federal funds on its officials’ willingness to do the federal bidding to circumvent the problem. This highlights the federal government's power to influence state behavior through conditional spending.
Significance: Congress may not:
Force a state to legislate or regulate in a certain way, respecting the states' legislative autonomy.
Require state executive-branch personnel to perform even ministerial functions, preventing federal intrusion into the states' executive functions.
Distinguished from Garcia:
Garcia applies mainly to generally applicable federal lawmaking, where the Tenth Amendment does not provide special exemptions for states.
Garcia holds that where Congress passes a generally applicable law, the 10th Amendment does not entitle a state’s own operations to an exemption, merely because it is a state that is being regulated along with all the other private entities.
Under Printz, the federal government may not use coercion like this: where the federal government tries to force a state or local government to enact legislation or regulation or tries to force state or local officials to perform particular governmental functions, this is not part of a generally-applicable federal scheme, and is instead directed specifically at the state’s basic exercise of sovereignty: the state’s right to carry out the business of its government.
Regulation of states as actors: Congress may regulate how states conduct activities without being deemed to "commandeer" state processes, allowing for federal oversight without infringing on sovereignty.
Achievement of Otherwise Disallowed Objectives: If Congress could not achieve objective X by direct regulation because that would lie beyond its enumerated powers, it could use its conditional spending power to achieve that result indirectly by, e.g., depriving the states of money if they do not achieve the regulatory result. South Dakota v. Dole. This is subject to the following restrictions:
Expenditures have to be for the general welfare, ensuring that federal funds are used for the betterment of society.
Congress must state the conditions clearly, providing clarity to states regarding the requirements for receiving federal funds.
Conditions have to relate to the federal interest in the national program, maintaining a connection between federal spending and national objectives.
Expenditures cannot violate any independent constitutional requirement, preventing the use of funds in unconstitutional ways.
US v. Butler
The powers to tax and spend are enumerated powers under Art. I, § , so Congress may tax and/or spend to achieve the general welfare, even though no other enumerated power is being furthered. This expands the scope of Congress's fiscal authority within constitutional boundaries.
The 10th Amendment is basically dead as a limit on Congress’s using its spending power in areas of primarily local interest, reducing state autonomy over local matters through federal fiscal influence.
Achievement of otherwise disallowed objectives: If Congress could not achieve objective X by direct regulation because that would lie beyond its enumerated powers, it could use its conditional spending power to achieve that result indirectly by, e.g., depriving the states of money if they do not achieve the regulatory result.
South Dakota v. Dole.
This seems like an easy way to do an end run around Printz, potentially undermining state sovereignty.
Prigg v. Pennsylvania
Struggle between northern, anti-slavery states who wanted to ignore the provisions of the Fugitive Slave Act, southern states who wanted the Fugitive Slave Act to be enforced, and the federal government. This reflects the deep divisions in American society over slavery and federalism.
In an area of legislation like this, there can be approaches:
Only the states have the power to act in the area, asserting state control over specific legislative domains.
States and the federal government have concurrent jurisdiction absent conflict, allowing both levels of government to act unless federal law preempts state law.
Schechter Poultry Corp. v. US
The Supreme Court expressly rejected the idea that the federal government has the right to meddle in state affairs to avoid the race to the bottom, preserving state autonomy and preventing federal intervention in intrastate commerce.
Youngstown Sheet & Tube Co. v. Sawyer
Summary: The president may not make laws; he may only carry them out, reinforcing the separation of powers.
As articulated in Youngstown, there are categories for analyzing the president’s power:
Maximum authority: Where president acts pursuant to an express or implied authorization of Congress. This represents the strongest presidential power.
Minimum authority: Where president acts in contradiction to express or implied will of Congress. This signifies the weakest presidential power.
Zone of twilight: Where president acts in absence of either congressional grant or denial of authority. He and Congress may have concurrent authority, or the distribution of authority may be uncertain. This area involves ambiguous boundaries and shared powers.
Prize Cases
The president may commit armed forces to repel a sudden attack on the US itself, recognizing the president's inherent power to defend the nation.
It is not clear if he may do the same with an ally or whether he may launch a preemptive strike, highlighting ongoing debates about the limits of presidential war powers.
Plessy v. Ferguson
Being able to pass for white was, at times, considered a property right, reflecting the social and economic advantages associated with racial identity.
In Plessy v. Ferguson, one issue was that Plessy was deprived of his property right (as an octoroon) without due process to pass for white by being forced to sit in the colored car, illustrating the legal challenges to racial segregation.
Shelley v. Kraemer
Outer limits of the law of state action, exploring the extent to which state involvement can be attributed to private discrimination.
Its analysis is structured strangely, and the Court backs off of this position later, partly out of the fear of how far this case could conceivably go. This reflects the case's controversial nature and its potential implications for broader interpretations of state action.
The Supreme Court held in this case that judicial enforcement of the restrictive covenants would constitute state action and would therefore violate the Fourteenth Amendment, extending constitutional protections against discrimination.
Note: The Court noted that this was not a case in which the state was simply remaining inactive while one private person discriminated against another, emphasizing the state's active role in enforcing discriminatory covenants.
Dred Scott v. Sandford
Citizenship doesn’t necessarily equal equality in the antebellum period, as we see from the examples of women and blacks, underscoring historical disparities in rights and privileges.
ways to divide the bundle of sticks:
You only have some rights (voting, standing to bring suit), limiting the scope of rights for certain individuals.
You only have rights in some states, restricting rights based on geographic location.
McCulloch v. Maryland
Is judicial supremacy really asserted in Dred Scott v. Sandford, or is the court just saying that whenever there is a serious problem, whichever branch of the government has the problem in their hands is obligated to try to fix it? This raises questions about the judiciary's role in resolving complex societal issues.
Can the court take a leadership role? If the court in Plessy v. Ferguson had called for equality without separateness, would it have overstepped its bounds? Maybe we like to leave decisions like these to the legislature, where there is more accountability. This considers the appropriate division of authority between the courts and the legislature.
Home Building & Loan Association v. Blaisdell
While the Contracts Clause cannot be used for naked redistributive purposes, but it can impair the obligations of contracts when doing so would be inconsistent with the general public interest. This acknowledges the state's power to regulate contracts for the common good.
The Court held that the state had at least the right to temporarily delay enforcement of a mortgage’s literal terms where vital public interests would otherwise suffer, providing relief during times of economic crisis.
Civil Rights Cases
What qualifies as a badge or incident of servitude/slavery? This explores the lingering effects of slavery and the constitutional prohibitions against them.
The case produced holdings, which have varying degrees of acceptance today:
Applicable solely to state action: The Court held the guarantees of equal protection and due process, given by § of the Amendment apply by their own terms solely to state action. This holding remains valid today, at least in the sense that in the absence of congressional legislation, the courts will not find conduct that is exclusively private to be violative of these Amendment guarantees.
Congress without power: The Court held that the grant to Congress in § of the Amendment of the power to enforce these guarantees did not authorize Congress to regulate solely private conduct. It is not clear whether this aspect of the Civil Rights Cases remains good law, but it probably does not.
Amendment not applicable: The Court held the statute could not be justified as an exercise of the Amendment. The Court conceded that the Amendment applies to private as well as state conduct, since it prevents private individuals from holding others in slavery. But the Amendment by its terms bars only slavery and involuntary servitude, and the Court took a narrow view of this phrase.
Today, only conduct involving actual peonage has so far been held directly violative of the 13th Amendment.
Substantive Due Process
Exam Tip: Any time the fact pattern suggest the state or federal government is taking away something that could be considered life, liberty, or property, then entirely apart from the issue of whether the government has used proper procedures, you must ask if the government has carried this out by violating the individual’s substantive interest in life, liberty, or property.
Remember:
Substantive due process limits the substantive power of the government to regulate certain areas of human life, protecting fundamental rights from government intrusion.
Procedural due process imposes certain procedural requirements when it takes an individual’s life, liberty, or property, ensuring fair treatment under the law.
Though courts have interpreted them identically,
Fifth Amendment pertains to the federal government.
Fourteenth Amendment pertains to state action through selective incorporation.
Standard of review
Non-fundamental rights: rational relationship
Economic rights, such as the right to contract and engage in business.
Social rights, such as access to education and welfare benefits.
Fundamental rights: strict scrutiny.
In analyzing an SDP problem, first decide if we’re talking about:
Fundamental rights
Non-fundamental rights
It is very easy for economic regulation to survive. It only needs to meet two requirements to conform with SDP:
State must be pursuing a legitimate state objective. Virtually any health, safety or general welfare goal comes within the state’s police power and is thus legitimate.
There must be a minimally rational relation between the means chosen by the legislature and the state objective. The Court will presume the statute is constitutional unless the legislature has acted in a completely arbitrary and irrational way.
Slaughter-House Cases
Regulation of butchers was held to be a legitimate state objective (keeping nasty butcheries out of the city) and the means chosen (monopolization of slaughterhouses) was rationally related to this state objective.
Don’t rely on the privileges and immunities phrase. After the Slaughter-House Cases, that phrase has been neutralized and will get you nowhere.
Lochner
Abridgements of the liberty of contract were held to violate SDP in Lochner. This was the Court’s attempt to force laissez-faire economic theory on a society that had outgrown it. This case was pretty much obliterated by the New Deal line of cases.
No deference to legislative fact-finding in Lochner. That changed during the New Deal period.
Lochner test:
Close fit: Very close fit between statute and its objectives.
Relation to fundamental interests: Only certain objectives were acceptable. Health and safety regulations were okay, but readjustment of economic power/resources was not.
Nebbia
Beginning of application of rationality review to economic rights: The modern approach, discarding Lochner, was presaged in Nebbia. It explicitly shifted in West Coast Hotels.
Nebbia Case: Noted that due process required only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.
Nebbia’s requirement of a substantial means-end relationship was essentially the test of Lochner. But the Nebbia Court was clearly determined not to impose upon legislatures its own views about correct economic policy as the Lochner Court had done.
West Coast Hotels
The Court upheld a state minimum wage law for women, explicitly overruling Adkins (discussed in class, but not assigned).
US v. Carolene Products
Presumption of constitutionality: In US v. Carolene Products, the court made it clear that a presumption of constitutionality would be applied in the case of an economic regulation subjected to due process attack.
Starting in Williamson v. Lee Optical, the Court became willing to hypothesize reasons the legislature may have acted.
Current standard of judicial review for economic regulation as articulated in Williamson v. Lee Optical: The law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction and that it might be thought that the particular legislative measure was a rational way to correct it.
Non-economic and Fundamental Rights
Test for economic rights: There must be a rational relationship between the statute and a legitimate state objective.
Test for fundamental rights:
State’s objective must be compelling and
The relation between that objective and the means must be very close so that the means can be said to be necessary to achieve the end.
Which rights are fundamental rights:
Examples:
Sex, determining the classification of individuals.
Marriage, establishing legal unions.
Child-bearing, concerning reproductive freedom.
Child-rearing, regarding parental rights.
The Court has treated most of the interests it has found to be fundamental as falling within the broad category of the right to privacy. In many instances, e.g., child- bearing, a more descriptive term might be the right to personal autonomy.
Significance of having tiers of scrutiny: The Court’s decision on the fundamental issue tends to be dispositive.
Non-fundamental right: Where the right is found not to be fundamental, so that a legitimate state objective and a rational relation between the means chosen and that objective are all that is required, the Court’s deference to the legislative judgment is so extreme that there is virtually no scrutiny at all.
Fundamental right: If the right is found to be fundamental, the scrutiny is so strict that few statutes impairing the right can meet the double test of showing that the state’s objective is compelling and cannot be achieved in a less burdensome way.
Action/Inaction Distinction
In the Civil Rights Cases in 1883, the outcome hinged on the action/inaction distinction whether a state could violate someone’s rights through inaction as well as action. This case comes down in favor of requiring state action otherwise you could hold the state liable for not legislating against the kinds of private violations of rights (e.g., lynching) that were going on.
Griswold
The Court declined to make explicit use of the substantive due process doctrine. Instead, the opinion found that several of the Bill of Rights guarantees protect the privacy interest and create a penumbra or zone of privacy.
Developments since Griswold make it clear that the case ultimately means much more than that married persons may not be prevented from using birth control. It means that no person, single or married, may be prohibited from using contraception, or otherwise be subjected to undue interference with decisions on procreation.
Problems with Griswold:
Penumbra theory illogical: Douglas, in articulating his penumbra theory, points to particular aspects of the right of privacy in the First, Third, Fourth, and Fifth Amendments. He then appears to conclude that under the collective penumbra of these Amendments, a general, complete right of privacy must also dwell. (And it is this general right of privacy which was necessary to decide Griswold as the Court decided it. The privacy aspects explicitly addressed by those Amendments don’t deal with the Griswold type of problem.)
No search at issue: Douglas’s main privacy rationale in Griswold was that enforcement of the statute would require possible searches of the marital bedroom, another public inquisition into intimate details. But the heart of the case was the giving of counseling about birth control use, not the search of the marital bedroom or other inquisition.
The property/personal rights distinction: The Douglas opinion declined to use substantive due process analysis and explicitly rejected the choice of using a Lochner-type approach. Instead, Douglas used the penumbra theory as a way of protecting personal rights (like the right of privacy), while not having to give equally strict scrutiny to economic or property rights. Yet the penumbra theory seems to be equally applicable to many property rights.
Roe v. Wade
In Roe v. Wade, the Court held a woman’s right to privacy is a fundamental right under the 14th Amendment. Blackmun premised the right to choose an abortion on the constitutional right of privacy which derived from the concept of personal liberty in the Due Process Clause.
Rationale: Right of privacy.
Standard of review: The Court held a woman’s interest in deciding this issue herself was a fundamental one, which could only be outweighed if:
There was a compelling state interest in barring or restricting abortion, and
The state statute was narrowly drawn so that it fulfilled only that legitimate state interest.
Countervailing state interest: The Court found that the state had two interests which, in particular circumstances, might be compelling:
Protecting the health of the mother: Only is compelling after the first trimester when the abortion-related dangers outweigh the live-birth-related ones.
Protecting the viability of the fetus: Only applies during the last trimester when the fetus is viable.
Fetus is not a person: The Court explicitly rejected the argument that the state had a compelling interest, even before viability, in protecting the fetus as a person as the term is used in the 14th Amendment.
Precise holding: The actual holding was very specific, dividing pregnancy into trimesters:
First trimester: During the first trimester, a state may not ban, or even closely regulate, abortions. The decision to have an abortion and the manner in which it is to be carried out, are to be left to the pregnant woman and her physician.
Rationale: At present, the mortality rate for mothers having abortions in the first trimester is lower than the rate for full-term pregnancies. Therefore, the state has no valid (or at least no compelling) interest in protecting the mother’s health by banning or closely regulating abortions during this period.
Second trimester: During the second trimester, the state may protect its interest in the mother’s health, by regulating the abortion procedure in ways that are reasonably related to her health.
No protection of fetus: But the state may protect only the mother’s health, not the fetus’s life, during this period.
Third trimester: At the beginning of the third trimester, the Court stated, the fetus typically becomes viable. That is, it has a capability of meaningful life outside the mother’s womb. Therefore, after viability, the state has a compelling interest in protecting the fetus. It may therefore regulate, or even proscribe, abortion. However, abortion must be permitted where it is necessary to preserve the life or health of the mother.
Criticisms of Roe:
Weighing of relative values: Before viability (i.e., before the third trimester), the Court favors the mother’s interest (in health, safety, or perhaps just convenience) over the state’s interest in protecting a potential human life. Although the Court discusses the strength of the woman’s interest in some detail, it never states why this interest should outweigh the state’s interest in protecting the fetus.
Use of privacy: What the Roe Court calls privacy is not what most people understand by that term. (Autonomy might be a better term.) The privacy interest upheld in Roe bears little resemblance to, e.g., the freedom from official intrusion or official surveillance protected by the 4th Amendment. Even the penumbra theory in Griswold has to be stretched to cover Roe.
Lack of abstractness: The Roe decision, with its division of pregnancy into trimesters, each with its own rules, was obviously a very specific one. The Court can therefore be criticized for not articulating a precept of sufficient abstractedness to lift the ruling above the level of a political judgment based on the evidence currently available from the medial, physical and social sciences.
Judicial legislation: A related argument says this decision smacks of judicial legislation. The Court makes all sorts of factual assumptions about the present state of medicine, which may not be true for all areas of the country. These kinds of factual and perhaps even value decisions might be better left to the legislature.
The modification of Roe by Casey: Roe was partially overruled by Casey.
States may now restrict abortion as long as they do not place undue burdens on the woman’s right to choose.
Abortion is no longer a fundamental right.
The trimester framework has been abandoned.
Joint opinion: Reaffirmed the central holding of Roe, which it saw as:
Recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.
Confirmation of the state’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies endangering the woman’s life or health.
Recognition of the state’s legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus.
Doctrine of stare decisis played a key role in the joint opinion.
Scalia’s dissent: Scathingly decried the majority opinion for two reasons:
Constitution says nothing about this issue.
Long-standing traditions of American society have permitted abortion to be legally proscribed.
Significance of Casey:
Abortion as protected interest: The case seems to ensure that a woman’s right to decide whether to terminate her pregnancy will be an interest that receives special constitutional protection.
Regulations easier to sustain: On the other hand, state provisions that in some way regulate the abortion process are much more likely to be sustained than they were prior to Casey.
Stenberg v. Carhart:
Court struck down a ban on partial birth abortion because:
Lack of health exception: The statute did not contain an exception allow the procedure where it was necessary to protect the health (as opposed to the life) of the woman. The majority believed that Casey required a health exception.
Might cover D&E method: The statute’s ambiguous language might be construed to cover the more common D&E method of abortion. The mere possibility that the statute might be so construed was enough to constitute an undue burden on a woman’s abortion rights because practitioners might be reluctant to use the method lest they be prosecuted for a felony.
Significance of Stenberg: This case probably does not establish major new abortion doctrine. It does, however, indicate that by the barest majority, the Court will closely scrutinize state efforts to regulate abortion procedures, at least those that are used pre-viability.
Future of Roe: The central holding of Roe held up in Stenberg, but it hangs on by a single vote.
Future of a woman’s right to choose: As a result of Casey, the state clearly have vastly greater leeway to regulate the abortion process than they had before the composition of the Court began to shift in the late 1980s.
No right to ban: The state may not completely ban abortions (except that it may ban post-viability abortions that are not necessary to protect the mother’s life or health). In fact, not even an exception to protect the life or health of the mother will be sufficient to justify a blanket ban on pre-viability abortions – the woman’s right to choose may not be unduly burdened and a prohibition on all non-medically-necessary abortions would clearly be an undue burden in the view of the three-justice plurality in Casey.
Restrictions: States may clearly enact a potpourri of restrictions as long as these do not unduly burden (defined to mean place substantial obstacles in the path of) a woman’s right to choose an abortion before the fetus is viable. In addition to those upheld in Casey itself, here are some that might be upheld:
Type of setting, such as requiring abortions to be performed in hospitals or licensed clinics.
Public facilities, restricting abortions from being performed in publicly-funded hospitals.
Types of abortion allowed, regulating or banning specific abortion procedures.
Parental consent for minors’ abortions beyond what was permitted by Casey.
One thing that seems clear from Casey is that there is no constitutional difference now between an abortion in the first week of pregnancy and an abortion in the last week before viability. Because the trimester framework of Roe has been overturned, the only significant dividing line is that which occurs at viability.
Maher v. Roe
Non-therapeutic abortions: In Maher v. Roe, the Court held that a state may refuse to provide Medicaid funding for non-therapeutic abortions, i.e., abortions which are not necessary to save the mother’s life. The Court in Maher held that the state could do this even though it gave Medicaid financing for the expenses of ordinary childbirth.
Harris v. McRae
Harris v. McRae, the Court held that the state could refuse to fund medically-necessary abortions. The existence of a constitutionally-protected right did not obligate the government to grant the funds needed to exercise that right.
Lawrence
A person’s sexual conduct – apart from any issues of procreation or family life – will now receive substantive due process protection thanks to Lawrence.
The majority said that liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
Direct holding: Only that states may not criminalize private homosexual conduct between consenting adults.
Overruled: Bowers v. Hardwick (not studied in class, but studied in Criminal Law).
Bowers overturned because:
Historical analysis was wrong or, at best, overstated.
There was an emerging recognition of a liberty interest in sex.
Other countries (e.g., those in Europe) recognized even before Bowers that the government should not bar private homosexual conduct.
States were overturning their anti-sodomy laws and those that still had them had a pattern of non-enforcement.
Decisions like Casey and Romer caused serious erosion of Bowers
Standard: Applies rationality review.
Significance:
Anti-sodomy laws that apply to heterosexuals as well as homosexuals: Probably strikes these down too, especially since Kennedy didn’t decide to go for an equal protection approach.
Gay Marriage: Explicitly reserved for another day by Kennedy.
Procedural Due Process
The Due Process Clause does not bar the government from procedural irregularities per se. If the government is not depriving someone of life, liberty or property, it can be as arbitrary or unfair as it wants.
Procedural Due Process is only a right when the government action involves an individualized determination.
Equal Protection
Only implicated where the government makes a classification.
Key Concepts:
Classifications: The Clause imposes a general restraint on the governmental use of classifications based on race, but also those based on sex, alienage, illegitimacy, wealth, or any other characteristic.
Federal government: The direct text of the Clause applies only to state governments. But the federal government is also bound by the same rules of equal protection – the Amendment’s Due Process Clause is interpreted to bar the federal government from making any classification that would be a violation of the Equal Protection Clause if done by a state.
Government action only: The Equal Protection Clause (and the 5th Amendment’s Due Process Clause) applies only to government action, not to action by private citizens. This is the requirement of state action.
As applied versus facial: There are different types of attacks Π may make on a classification:
Facial: If Π attacks a classification that is clearly written into the statute or regulation, he is saying that the statute or regulation violates equal protection on its face.
As applied: If Π’s claim is that the statute/regulation does not make a classification on its face, but is being administered in a purposefully discriminatory way, then he is claiming that the statute/regulation is a violation of equal protection as applied.
What the Clause Guarantees: The Clause guarantees that people who are similarly situated will be treated similarly.
Three levels of review:
Strict scrutiny: The Court gives strict scrutiny to any statute that is based on a suspect classification that impairs a fundamental right. Where strict scrutiny is invoked, the classification will be upheld only if it is necessary to promote a compelling governmental interest. For our purposes, the relevant suspect class is race. The rights that are fundamental are principally the right to vote, the right to have access to the courts, and the right to migrate interstate.
Remember: The means-ends fit must be tight in cases where strict scrutiny is going to be applied.
Intermediate scrutiny: This level is for semi-suspect classifications. Under intermediate scrutiny, the means chosen by the legislature (i.e., the classification) must be substantially related to an important governmental objective.
The Court will look only at the objectives which actually motivated the legislature, unlike with rationality review.
Rationality review: This standard applies to all classifications that are not based on a suspect or semi-suspect classification and do not impair a fundamental right. Under this standard, the classification will be upheld so long as it is conceivable that the classification bears a rational relationship to a legitimate governmental objective. Almost every classification survives this easy review.
The Court will look at hypothetical objectives for passing the legislation, which need not have been the legislature’s actual motives.
Rationality with bite: Occasionally, the Court has examined legislation that is finds to have been motivated by animus or hostility towards a politically-unpopular group. The Court has been willing to strike down such legislation even though rationality review is used.
One or both of these rationales is usually used:
That the desire to harm an unpopular group cannot be a legitimate governmental objective.
That to the extent some apparently legitimate state objective is cited by the statute’s defenders, the means drawn are so poorly linked to achievement of that objective that not even a rational relation between means and ends is present.
Most famous case: Romer v. Evans. The Court (led by Justice Kennedy) struck down a Colorado constitutional amendment that would have prevented the state or any of its cities from giving certain protections to gays and lesbians. The Court found the measure flunked rationality review on bases:
There was no legitimate state interest in fact being served.
The means chosen by the state were not rationally related to the (possibly legitimate) interest that the state asserted.
City of Cleburne: Court refused to make mental retardation a semi- suspect classification, but it still applied more rigorous scrutiny to Cleburne’s statute than it would to ordinary economic regulation.
Key features of how courts review suspect classifications
Purposeful: Strict scrutiny will only be applied where the differential treatment of the class is intentional on the part of the government. If the government enacts a statute or regulation there merely has the unintended effect of burdening, e.g., blacks more than whites (Washington v. Davis disparate impact), the Court will not use strict scrutiny.
Invidious: The discrimination must also be based on prejudice or tending to denigrate the disfavored class.
Rationale: Ordinarily, groups will protect themselves through the use of the political process, but:
These particular groups don’t usually have very much political power because the past discrimination against them has included keeping them out of the voting system; and
Even if the minority votes in proportion to its numbers, the majority is likely to vote as a block against it because of the minority’s extreme unpopularity.
Discrete and insular minorities are so disfavored and out of the political mainstream that the courts must make extra efforts to protect them because the political system won’t.
Traits showing suspectness:
Immutability, referring to characteristics that are unchangeable or difficult to change.
Stereotypes, involving generalized and often negative beliefs about a group.
Political powerlessness, indicating a lack of influence in the political process.
Strict = fatal: Once the Court decides that a suspect classification is involved and that strict scrutiny must be used, the scrutiny is almost always fatal to the classification scheme.
Race-conscious affirmative action