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Constitutional Law I, Outline Fall 2012 I. Judicial Review A.) Marbury v.

Madison: Only the Supreme Court has the ultimate authority to declare the constitutionality of a statute or government action. Supreme Ct. decides legal rights, not the president Supreme Ct. has final say whether something is unconstitutional, not the president

B.) STANDARD OF REVIW I. II. III. IV. II. Congresss Authority to Act Rule: Congress has the authority to regulate any area that the constitution expressly or impliedly reserves to it A. Necessary & Proper Clause Congress has the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the U.S. or in any department or officer thereof. necessary = useful but not essential The Federal Constitution and the laws made according to it are supreme. Supremacy clause exists, states cant veto a federal act by their soverignty. (McCullough v. Maryland) If it can point to an enumerated power, Congress can use any N&P means to accomplish their goals. RATIONAL BASIS STANDARD APPLIED Reasonable people can disagree on how Congress uses the power, but as long as Congress is rational, then their power is ok. Possible enumerated powers that N&P can attach to To lay and collect taxes To borrow money, To regulate commerce To conduct war, and To raise and support an army and navy Strict scrutiny: Compelling reason to pass legislation, that is narrowly tailored (necessary) to achieve a legitimate purpose Intermediate scrutiny: Important reason to pass legislation, that is substantially related to achieve a legitimate purpose Rational basis(default): Reason to pass legislation, that is reasonably related to achieve a legitimate purpose Legitimate purpose doesnt have to be the actual purpose.

B.) Commerce Power Commerce Clause Congress shall have the power to regulate commerce among the several States, and within the Indian Tribes. Among several states: 1.) interstate 2.) if in-state substantially affects interstate commerce NOT interstate: purely internal commerce

Lopez, 3 prong test of commerce: (1) Channels of Interstate Commerce? (Heart of Atlanta): things that are moving through states including people or goods that have already moved in interstate commerce or that are destined to move in interstate commerce. Thus, Congress can regulate moral or social policy that affects IC. Discrimination on the basis of race affects commerce. (Heart of Atlanta Motel) (2) Instrumentalities, Persons or Things in Interstate Commerce, even if the threat comes from purely intrastate activity? (cars, jurisdictional hooks) (3) Activities with a substantial relation to IC? (i.e., those activities that substantially affect IC) a) Comprehensive scheme of regulation? Congress has the power to regulate under N&P clause. Congress can regulate intrastate activity if the failure to regulate that class of activities would undercut the regulation of the interstate of the market in that commodity 1.)Wickard court held where there was only one commodity (wheat) it still found a comprehensive scheme because it effected the national market v. one states market 2.) Raich v. Gonzalez court found the Controlled Drug Act affected the manufacturing, distribution, and transportation of drugs, even though the activity was purely local activity. b.) Economic/commercial activity? 1. Rational basis review probably applies for economic activities, if the activity itself is economic then the regulation itself will almost always be upheld. But noneconomic activity cannot be regulated. 2. Economic activity = production, distribution, consumption of a commodity (Raich) c.) Noneconomic/ non-commercial activity strict scrutiny 1. 2. 3. 4. No protection of is it rational Hearings and congressional evidence may be helpful but not sufficient May not use cumulative effect doctrine Traditional state regulation? The court is reluctant about congressional regulation of areas traditionally regulated by the states (e.g., health and safety, crime, education, family law)

C.) Other Government Powers A.) Taxing Power Congress is allowed to tax and raise revenue, even if the amount is only negligible and even if the motive is not to raise revenue, but to regulate activity
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A condition on taxing regulation must satisfy several criteria: b. For the general welfare (limited view) c. Raises some revenue (then not a penalty); d. Cannot violate any other constitutional provision May be independent of other enumerated powers As long as the tax functions with regulatory effect the motive and purpose is irrelevant B. Spending Power Congress has the power to spend for the general welfare Do this or you lose the federal spending = spending power issue For test purposes , analogize back to SD v Dole 1. A condition on federal spending must satisfy several criteria: a. Must be for the general welfare of the U.S. court will defer to Congress (U.S. v. Butler) b. The condition must be clear and unambiguously stated so states can knowingly assume conditions; c. The condition must be related to the purpose of the federal spending program; it cannot be coercive Relationship between funds and condition consider Dole which linked highway safety to changing the drinking to 21. The amount of spending in Dole was 5%. Dole seemed to suggest that a spending that was too high might be deemed coercive. Argument may depend upon how much money is actually involved and what effect it will have on the state d. The conditions cannot violate any other condition of the federal government (making a state give up all their money site the healthcare case sebelius and say probably coercion. Losing 10% of a certain fund is less coercive.) 2. May be independent of other enumerated powers C. War Power congress has the power to declare war and remedy its evils even after the cessation of the hostilities 1. Article I, s. 8 Congress has the power to declare war, raise and support armies, and to make rules for the government and regulation of the land and naval forces a. Article II, s. 2 The President shall be commander in chief of the army and navy 2. Power based on international law not enumerated in the Constitution, but because the US is a sovereign power and all other sovereign powers have this right, we also have this right (Curtiss-Wright) a. Note: this power does not allow Congress to regulate commerce with foreign nations 3. Remedy effects of war established by the N&P clause with the war power. The power continues past cessation of hostilities to remedy effects of war a. Woods upheld the act when rent control measure enacted after WWII and just a couple of years after the war officially ended. Ambiguity in how long power extends depends upon (1) time period; (2) space (theater of war); and connection to the war b. There is little jurisprudence on power because war has not been declared in a long time. War is usually declared through Presidents power as commander in chief or executive power c. When broad domestic legislation there is a danger of Congress such far reaching power with regard to war powers as there is less likely to be judicial oversight because under pressure of great national emergency 4. Tenth Amendment limits state powers No state can engage in war, unless actually invaded or in threat of imminent danger D.) Treaty Power / Executive Agreements the President may enter into treaties with the advice and consent of the Senate. The President also has inherent authority to enter into Executive Agreements with foreign nations without the advice and consent of Senate
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i. Treaties must conform to international law UN Charter, Geneva Convention ii. As a matter of constitutional law 1. Must follow prescribed form 2. Must be proper subject to international relations 3. Cannot violate explicit constitutional restrictions like Bill of Rights (Covert) iii. Tenth Amendment limits state powers No state can make a treaty iv. Last in time governs between treaty and federal law. A treaty that is approved by the senate overrules any prior treaty. Treaties supreme law of the land (Art IV), preempt inconsistent state law so long as treaty is valid v. Congress can enact statutes to execute treaties with N&P clause vi. Does not seem to need senates consent to withdraw from a treaty, just to enter into one E.) Immigration Congress has plenary power to regulate the admission or denial of aliens and to set conditions on their admission into the country 1. Constitution gives Congress right over naturalization not specifically immigration 2. Power comes from intnl laws lodged in federal powers even if there is not a textual basis for it 3. Congress can also put conditions on aliens admission 4. Congress can also put conditions on aliens admission F.) Enabling Clauses gives Congress the power to enforce the provisions of the Amendments and prohibitions on states. This is essentially Congresss N&P clause Civil War Amendments a. 13th Amendment i. Section 1 explicitly prohibits slavery ii. Section 2 Congress has the power to enact laws necessary and proper to abolish the badges and incidents of slavery. It is up to Congress to determine what is a badge or incident of slavery and so long as it is ration, it will be upheld (Jones) b. 14th Amendment Congress has the power to enact laws necessary and proper to enforce the prohibitions on the states in the 14th Amendment, including the prohibition on discrimination in the equal protection clause, citizenship, privileges and immunities, and due process. This includes the power to remedy past discrimination. Enabling clause in 5 applies only to states in discrimination, not private discrimination. c. 15th Amendment discrimination in voting Congress has the power to enact laws necessary and proper to enforce the 15th Amendments prohibition on state denials of the right to vote based on race. This includes the power to remedy past discrimination i. Section 1 the rights of the US to vote shall not be abridged on account of race, color, or previous condition 1. Intentional discrimination denial of right to vote based on race which are proven by acts or statements of government actors (e.g., we are switching to an at-large system to deny minorities voting power) ii. Section 2 Congress has authority to execute laws to prohibit practices that have a discriminatory effect if congruent and proportional to section 1s injuries (e.g., literacy tests, at large voting, poll taxes, and property requirement) III. Separation of Powers Within the Federal Government A.) Separation of Powers : Has the proper branch exercised the power in the proper way?

** How to analyze a separation of powers ? ** Analyze provision by provision, to figure out if interrupting balance of power between different branches of government: 1.) Look @ what act says 2.) No clear cut definition of the power, analogize to cases we have already read I. Each branch may exercise in accordance with requirements of specific clauses of the Constitution i. Appointments: The President, not Congress, has the power to appoint federal executive officers. (Morrison v. Olson) Just as Congress may not directly appoint federal executive officers, it may not remove an executive officer, except by the special process of impeachment ANALYZE law related to independent counsel in Morrison 1.) YES, this is acceptable b/c the appointments clause 2.) If independent is clearly apart of executive branch then Congress cant limit this b. No branch of the government may aggrandize its authority by usurping power that more appropriately belongs to a coordinate branch i. Performing the function of another branch. Congress makes the laws, the Executive enforces them, and the Judicial branch decides disputes concerning laws. In Youngstown (the steel seizure case), the Court held that President Trumans seizure of the steel mills constituted an exercise of legislative power and thus was not permissible. 1. Only Congress can regulate an industry, President can suggest this policy, but not order it ii. Important facts relevant to Youngstown 1. Legislature did not authorize the Executive branch to use military force and thus there was no law that existed for President to ensure law was faithfully executed 2. The President was not close to the theater of war because the war was not in his backyard 3. President can only act pursuant to the Constitution in 3 ways a. With express/implied approval of congress b. When there is a zone of twilight i. Congress neither approves or disapproves of a shared power c. When congress expressly/impliedly disapproves what the president is doing iii. Important facts relevant to Hamdi 1. Executive branch has limited authority during wartime and the war powers do not give the President a blank check 2. Necessary for Congress to set a long-term policy for dealing with terrorist action that is not formed in the middle of a crisis where the Executive branch might be tempted to give into demands in the shortterm and hurt foreign policy in the long run c. No branch of the government may encroach upon the functions of another branch making it difficult for the other branch to do its job i. Exercising control or supervision. In Morrison v. Olson, the Executive argued that the restriction of a good cause requirement of the independent counsel impinged on the executives right to supervise and terminate executive branch officers for any reason. But the Court found that was not enough of an encroachment must be enough to impede the branchs ability to do its constitutional duty
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ii. Undermining the authority of another branch. In U.S. v. Nixon, the Court held that an absolute executive privilege would have undermined the judicial branchs ability to function, while in Clinton v. Jones, the Court held that allowing a suit against the President would undermine his ability to function as President 1. To determine if a qualified privilege exists, the Court must perform a balancing test, weighing the interest in confidentiality) the need for the executive to have the confidential communication) against the purpose for which is sought (Presidents evidence in a criminal trial) a. Consider whether national security or type of proceeding would increase the need for the information to be handed over b. In camera proceeding, where information is not published at large and only for judges viewing IV Limitations on the Power of the Government (State and Federal) A.) Limitations on State Power: Is the action of the states a violation of any limitations in the constitution? 1.) Supremacy Clause federal law is supreme (as long as its Constitutional) in both its statutes and treaties and any state law that conflicts must give way under the Supremacy Clause in one of the three situations: Express preemption the federal law explicitly states that all state law is preempted in particular area. The scope is Congressional intent. II. Implicit preemption involves both field and conflict preemption Field preemption exists where the federal scheme of regulation is so pervasive as to make reasonable inference that Congress left no room for the states to act. Once a pervasive scheme has been found, a court must determine the scope of the field that has been occupied by the federal government. (usually immigration, copyright, or cigarette laws) Conflict preemption Congress has not taken over an entire field (not pervasive scheme or express language of preemption) but federal law is still present i. Compliance with both federal and state law would be physically impossible (e.g. rungs 10 v. rungs 8) ii. It is possible to comply with both federal and state law, but compliance with the state law would obstruct/undermine the accomplishment of the federal purpose (Gade to have one uniform set of regulations) 1. Factors to consider in determining Congress intent: text, legislative history, goals, traditional areas of federal and state regulation, and completeness of the scheme III. PRESUMPTION AGAINST PREEMPTION Congress d[oes] not intend to displace state law. Maryland v. Louisiana I. 2.) Dormant Commerce Clause How to spot as a dormant commerce clause issue: problems where in staters get benefits that out of state people arent getting The presence of the Commerce Clause, which confers on Congress the power to regulate IC, has been held implicitly to limit the powers of states to regulate IC. This implied limitation on state power has been referred to as the dormant commerce clause. A. The commerce clause Gives the federal government the power to regulate IC Precludes the states from enacting certain laws B. Two types of state laws will affect IC: protectionist and evenhanded

1.) Protectionist (strict scrutiny) - restricting business entry; preferential treatment for in-state business, and preserving state resources for residents (out of state tax, general tax + in state subsidy/tax credit) Generally, will be invalid except strict scrutiny applies Laws that facially discriminate IC are valid only if i. Laws serve a legitimate state interest, and 1. E.g., health and safety ii. No non-discriminatory alternative 1. To discriminate against IC means to treat out of state goods/services less favorably than goods or services provided by persons in-state 2. Consider using national standards, send own inspectors out to facilities iii. Balancing test: Harm to interstate commerce vs. benefit to what state is trying to do 2.) Laws that even handedly discriminate IC is subject to balancing test (Healy) Laws serve a legitimate state interest, and The laws will be struck down if they place a burden on commerce that is clearly excessive in relation to the benefits of the local community i. Consider the nature of the benefits (how significant they are), ii. The nature of the burden (whether it falls mainly on out-of-state commerce), and iii. Whether the benefits could have been achieved through an alternative that was less burdensome to interstate commerce iv. E.g., Cost to companies outweigh safety benefits (Kassel) But even if law is even handed, because its purpose and effect is discriminatory, could argue law is facially discriminatory and apply strict scrutiny (Kassel) C. Exceptions how to avoid the dormant commerce clause Market participant the dormant commerce clause does not apply to states when they are acting as a market participant (i.e., when the state is the buyer or seller of the goods or services, rather than the regulator of transactions between others) (Reeves, Inc. v. Stake) Downstream regulation a state may regulate only the transaction in which it is involved and may not regulate conduct that occurs after the transaction is complete downstream (South-Central Timber) Subsidies the dormant commerce clause also may not apply to states when they are exercising their spending power (as opposed to general regulatory power). That is, states may be allowed to grant subsidies (cash payments) to local producers, without having to make the same payments to out of state producers, at least where the source of subsidy is general tax revenues) Congressional authorization if Congress authorizes the state to make law affecting IC, the state law will not violate the dormant commerce clause Applying evenhandedness when Court applies evenhanded standard, most of the time the law will be upheld 3.) Contracts Clause B. Article I, 10 no state shall pass any law impairing the obligations of contracts C. During time of Framers states were allowing people in the states to not pay their debts under contracts for a number of years. Because of inflation, allowing people to not pay their debts was equivalent to allow them to not pay debts at all, which leads to investment instability D. Today states cannot impair the obligations of contracts. This rule ONLY applies to substantial impairments of contracts I. State Action Applies to state action II. States Retain Police Powers (legislating for public health, safety, and welfare) and cannot bargain them away. States can contract away financial obligations (taxing and spending).
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State may also retain the power to contract to subsequently revise its licenses and other contracts III. Spotting Contracts Clause Issue Look for a change in state law that substantially impairs (increases, diminishes or extinguishes) an existing contractual obligation. The clause applies to laws that directly impair contracts, not laws that have an incidental effect on existing contracts E. Is the impairment substantial? Has the state upset the reasonable expectations of the party? Consider I. What did the parties intend? Reasonable expectation of the parties? II. How central is the expectation to the bargain? III. Economic consequences of the impairment? IV. Heavily regulated by the state in the past? F. If substantial impairment, and if the contract is between private parties, need: I. Rule: a substantial impairment of a private contract is a violation of the contracts clause unless the impairment is a reasonable and appropriate means of serving a significant and legitimate state interest (e.g., Mortgage crisis where people cannot pay mortgages leaves thousands of people without homes) Appropriate public purpose rational basis review i. Remedying an economic or social problem, e.g., protecting consumers from escalating gas prices ii. Deference to the state Reasonable = foreseeability G. If substantial impairment, and if it is a contract with the state, the state must prove that its action: I. Two rules Reserved Powers a sovereign cannot contract away its essential attributes of sovereignty (police power and eminent domain). A contract that derogates from the reserved powers violates the contracts clause. i. Reserved powers include the police power and the power of eminent domain, but do not include the taxing and spending powers. A substantial impairment of an enforceable contract violates the contracts clause unless the impairment is reasonable and necessary to serve as an important state interest i. Had an important public purpose 1. No deference to the state 2. Note: A higher standard than appropriate ii. Reasonable and necessary to accomplishing the purpose 1. Foreseeable or changed circumstances? 2. Less drastic methods possible? 3. Consider whether solution is temporary or permanent 4.) Privileges and Immunities Clause 4th amendment A. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states ( typically discrimination for out of staters for work opportunity) B.) Spot a Art IV P&I issue citizen from state A, who ventures into state B, has the same P&I which citizens of state B enjoy C.) Discrimination based on state residency States may not discriminate based on state residency, except in certain circumstances. Privileges and immunities clause ONLY applied to discrimination based on state residency. Resident = citizen a person intending to spend the rest of his/her life in that state D.) Only prohibits discriminations that burden a fundamental right to interstate harmony II. Fundamental right does not mean the same thing as under equal protection those bearing upon the vitality of the Nation as a single entity, sufficiently basic of livelihood of the Nation
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Right to a common calling right to pursue occupation and profession (e.g., shrimp fishing, lawyer), access to the courts, emergency services, purchase property, medical care, (not elk hunting or other recreational activities.) i. Law can require a higher fee for elk hunting in different state, but no fundamental right to elk hunt III. Even assuming the law burdens a right fundamental to interstate harmony, the law will still be allowed if meets intermediate scrutiny test Is there a substantial purpose for the discrimination? i. Consider decaying city, bad employment problems, lousy attorneys (United Building and Friedman) ii. Subsidies given deference (Camden) If a substantial purpose are the means used closely and substantially related to the substantial state interest? i. Must use supporting facts to show substantial relationship with state interest ii. Non-residency must be a peculiar source of evil iii. Peculiar source of evil means there is something about the state residency that justifies the state burdening them with the regulation Is there a less discriminatory alternative? 5.) Privileges and Immunities Clause 14th amendment *right to travel A. Spot 14th Amendment P&I issue durational residency requirement I am in CA seventeen years and youre in CA two years, both have intent to stay but I am treated better because in CA longer B. In Saenz v. Roe, the Court held that it protected the right to establish state residency on the same terms as existing residents. IV. New rule strict scrutiny discriminations based on the length of state residency will violate P&I under 14th Amendment unless there is a Compelling state interest Means narrowly tailored No less restrictive alternative Note: if the state can label something as a portable benefits (e.g., divorce, in-state tuition, or bona-fide residence) then the state can get out of duration residency requirement. B.) Limitations on state and federal power 1.) Due process clause a.) Substantive Due Process Examines the legislations justification underlying an arbitrary or capricious law that effects everyone Strict scrutiny A state action that deprives persons of a fundamental right (life, liberty, property) is in violation of SDP, unless narrowly drawn to serve a compelling state interest and no less restrictive alternatives Has a fundamental right been infringed (Glucksberg test) i. Careful description of the right (e.g., right to marry or right to marry first cousin) ii. Deeply rooted in history and tradition, or inherent in the concept of ordered liberty court has recognized that right to be free from torture, free speech, and right to a jury trial are so fundamental that a free society cannot survive with them. right to an abortion

iii. Text of the Constitution In some cases, however, the court has considered whether the right is one implicitly recognized by the Constitution, such as the right to privacy, or right to bear arms Rights recognized fundamental rights in the context of substantive due process have often related to the right to make choices with respect to marriage, family, intimate relations or procreation through concepts of bodily integrity (right to do with body) and decisional autonomy (make own decisions) 1. Right to have an abortion under certain circumstances- no partial-births, in-womb abortions only 2. Right to refuse medical intervention 3. Right to marry 4. Right to relationship with biological child (narrow description) 5. Right to privacy = right to be left alone If a fundamental right, under strict scrutiny, the burden is on the state to prove: i. There is a compelling state interest (national security, racial discrimination, presidential privacy, not financial interests) ii. The means used to achieve the interest must be narrowly tailored no over or under inclusiveness. If both over and under inclusiveness, the law will not survive strict scrutiny. 1. Over inclusive if law is including persons within the grasp of the law that are not part of the problem 2. Under inclusive people not being included in the ban iii. Consider whether there are less restrictive alternatives name them iv. If there is a less restrictive means, it will not survive strict scrutiny Right to privacy abortion context i. Old rule Roe trimester system 1. First month: No special regulations permitted 2. Second month: Protection of womens health compelling and state may regulate for that interest 3. After viability- fetus can live outside the womb without medical intervention: Interest in potential life becomes compelling and state may prohibit abortion except where necessary to protect the life or health of the mother ii. New rule Casey 1. During the first two trimesters the state may regulate abortion if it does not impose undue burden (i.e., a substantial obstacle) on the womans exercise of her right to procreative freedom 2. Court held that informed consent rules, 24 hour waiting periods, and parental consent requirements do not impose an undue burden (medical emergency exception always applies), while spousal notification requirements do. Rational basis test the state can cite any plausible, legitimate reason, even if it is not the actual reason for the law If not a fundamental right, rational basis test, burden is on the challenger to show: i. Legitimate state interest health, safety, welfare ii. The means must be rationally related to achieve the legitimate state interest 1. Means may be over inclusive (punishing those without trait) or under inclusive (not getting those with trait) 2. May attack the problem one step at a time it does not matter if other means would have worked better so a less restrictive alternative is irrelevant iii. Glucksburg: State has legitimate interest, if not important interests, in 1. Preventing suicide/preserving life 2. Preventing abuse of vulnerable and elderly
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3. Protecting the role of the medical profession Rational basis with a bite Lawrence Court found law criminalizing sodomy flunked rational basis test, but that case had a limited holding which applied to privacy in bedroom, consensual adults, and criminal sanctions. i. No heightened privilege for homosexual sex because there is no legitimate reason

Test tip: All legislative acts are subject to challenge under the substantive due process doctrine. Unless a fundamental right is at stake, however, the law will receive only the rational relationship test and is virtually certain to pass. If congress is interfering with the Bill of Rights, right to vote, or laws prejudicing discrete and insular minorities (race, religion, origin), then use heightened scrutiny.

b.) Procedural Due Process The decision of legislature to apply law or policy to a specific individual in such a way as to deprive that person of life, liberty or property without proper notice and an opportunity to be heard. Lawyers should not take PDP claim on contingency basis because remedy is merely the right to be heard. H. The analysis under this clause involves three steps I. Is there a life, liberty, property interest at stake? Property interest property refers to some legitimate claim of entitlement to specific benefits based on independent sources, such as state law or contract (e.g., employment benefits) Definition no easy test for liberty interest but one definition used by the court is those privileges long recognized by the common law as essential to the orderly pursuit of happiness (e.g., reputation when linked to pecuniary interests; freedom from physical restraint; parent-child relationships). II. Has the state intentionally deprived the person of that interest? The deprivation must be the result of intention and perhaps reckless state action. Negligent conduct is not enough. (must be intentional injury) Not for private employment (employment at will), only for government employment. III. Was the deprivation accompanied by due process? Notice and opportunity to be heard generally, some kind of notice and opportunity to be heard must be afforded, but that does not necessarily mean a civil trial before a judge with right of counsel. A much less formal proceeding may be appropriate under the circumstances Balancing test to determine what kind of process is due, the court will balance: i. Private interest = the importance of the individual interest affected; ii. The value of specific procedural safeguards to adequately protect that right; iii. Public interest = the governments interest to afford fewer procedural protections, including fiscal and administrative efficiency Procedures recognized procedures in the concept of procedural due process have been recognized as a right to a hearing, attorney, or right to an appeal consider Loudermill i. An oral hearing pre or post deprivation ii. Right to bring witnesses iii. Right to a personal appearance iv. Oral rather than written submissions
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v. Right to cross examine vi. Impartial decision-maker vii. Right to an attorney viii. Right to an appeal

Employment example If there is a government employee, and there is a K for employment that describes a procedure for due process (anything more than at-will employment): Pre-Dismissal(or demotion): Give ee reasons for dismissal, provide evidence why the ee is being dismissed, provide ee with a rebuttal opportunity. Post-Dismissal: Complete administrative hearing, fired ee can take the issue to court on appeal Employees at will are not guaranteed PDP. 2.) Equal Protection Clause Claim is that law treats similarly situated people differently Some people are being denied their rights, while others are not. I. Strict scrutiny: RANA, fundamental right, or affirmative action reverse discrimination also gets strict scrutiny Laws that are facially discriminatory laws that on their face classify persons according to a suspect classification are in violation of the EPC unless they are narrowly drawn to serve a compelling state interest Regulations which classify individuals i. Suspect classifications The four suspect classifications found by the Supreme Court are Race, Ancestry, National origin, and Alienage (RANA) there is a fundamental difference between aliens and illegal aliens ii. Factors to consider whether a class is suspect (Cleburne) 1. History of pervasive discrimination 2. Historical purpose of the equal protection clause (generally only applies to racial classifications) 3. Immutable characteristics (race, sex, not alienage) that forms the basis for stigmatization or stereotypical assumptions 4. Discrete and insular minority political powerlessness a. Discrete high visibility of the characteristic b. Insular no easy ingress/egress (immutable trait) The federal government (not states) may discriminate based on alienage because the federal government has plenary power over immigration Fundamental rights to determine whether right is fundamental, use the same tests as under SDP i. In this context, fundamental rights include the right to vote, the right of interstate migration (e.g., violations include discrimination based on state residency or length of state residency), and privacy, but not education SS Test I. Compelling state interest a compelling state interest can include remedying past discrimination and promoting diversity in education (Grutter). In most cases, to make important/legitimate
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interest compelling need activity to cause death or serious bodily injury. Strict scrutiny operates the same as under SDP doctrine. Hearings and studies about specific groups and specific areas, specific industry (not anecdotal information) Not general societal discrimination Means narrowly tailored no over or under inclusiveness Limit on duration cannot exceed the time needed for remedial legislation Flexibility waivers Relationship between requirement and purpose Goals, not quotas i. Must have fixed number that is free from competition No less restrictive alternative race neutral alternatives? Simplified bidding procedures, relaxation of bonding requirements, training and financial aid for entrepreneurs of all races If it is over or under inclusive at all, and there is a less restrictive alternative, it will not survive strict scrutiny. Intermediate scrutiny (gender or non-marital children) I.) Semi-suspect classification Laws on their face classify persons according to a semi-suspect classification violate EPC if means are substantially related to an important state interest The Supreme Court has recognized two semi-suspect classifications: gender and illegitimacy. Public function exception for Alienage i. If a state is discriminating against an alien for a political position (police, probation officers, teachers), apply Intermediate Scrutiny Intermediate Scrutiny Test The interest need not be compelling, merely important. Rule: classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives I. Important state interest remedying past discrimination. Not important interests i. Administrative convenience (e.g., trying to save money is not sufficient) ii. Promoting stereotypes about the proper role of women or men iii. Biological differences using gender as a proxy for some other characteristic II. Means substantially related the link between the means and the ends need to be strong, meaning that there is more tolerance of over and under inclusiveness If it is substantially over or under inclusive, and there is a less restrictive means, it will not survive intermediate scrutiny III. Exceedingly persuasive justification In past cases, the Court began to require an exceedingly persuasive justification requirement. In the latest gender cases, however, the majority state that this requirement was simply a restatement of the requirements of important state interest and means substantially related. If the court applies the requirement as it did in the case of the all male military school (VMI), the state should lose because the court in that case seemed to require a genderneutral rule, unless there were evidence that it would not work. Thus, it would be
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II.

III.

similar to requiring a less restrictive alternative, such as more security on campus, more lighting, shuttle services for students, etc. If it applies the exceedingly persuasive justification requirement loosely (as it did in Nguyen), then the state may win Regulations that discriminate in impact facially neutral laws laws that on their face are neutral but that discriminate in impact apply rational basis review. IV. Cases of age, veteran status, wealth, etc. V. If the laws are based on a motive to discriminate, apply the appropriate level of scrutiny (strict for suspect and intermediate for semi-suspect) VI. Type of motive required Motive must be distinguished from intent. The discriminatory motive must be the reason that the law was adopted; the mere fact that legislature was aware of the discriminatory impact is not enough VII. Plaintiff has burden of proving motive the motive may be inferred from the circumstances. Sometimes the impact alone is so disproportionate as to prove discriminatory motive. The Court will also consider the history of the challenged measure: what was said when it was adopted; did it represent a change from prior procedural practice or substantive policy? Grossly disparate effects are evidence of intentional discrimination i. But if enough to show intent, the burden shifts to government to negate intent with some facts (D.C. police dept. intent negated by recruitment efforts) Statistics systematic/gross statistical disparity raises inference (not sufficient to prove intent, but raises inference) i. Goumillon and Yick Wo 100% people discriminated against. Court said statistics were so stark that no other explanation was possible ii. But see Feeney where 98% discrimination was not enough. Legislative history, statements during meetings prior to enactment i. Specific sequence of events leading up to decision (e.g., recent change in procedures, change in property zoning designation, other similar variances granted Arlington) ii. Legislative history, including contemporaneous statements of the legislature, and may even take their testimony; committee reports, debates; large body v. a small body making the decision; is it a sponsor? Foreseeability of impact is not enough (Feeney) i. Need it to be because of impact on class, not in spite of the adverse impact on the class ii. Awareness of racially disparate effects does not equal intent VIII. Effect of motive where a discriminatory motive is shown, Strict Scrutiny will apply, unless the government can demonstrate that the same result would have occurred without the discriminatory motive BOP shifts to defendant (government) Defendant could rebut by showing i. No discriminatory impact, ii. No discriminatory intent iii. Would have made the decision anyway despite discriminatory intent (where the government can show non-discriminatory motives would have led to same result, then the discriminatory motive was not a but for causation of the injury and heightened scrutiny will not be applied (Arlington) J. Rational basis with a bite in a few cases, the Supreme Court has applied the rational basis test in a more rigorous way, resulting in the invalidation of the law. This seems to occur where the law imposes burdens on those who are the victims of prejudice, but where the Court does not wish to create a new semi-suspect or suspect class (e.g., mentally retarded, homosexuals)

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