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105 Cards in this Set

  • Front
  • Back
Baldwin v. Seelig
The effect of the law is to create a barrier to interstate traffic in milk, as though a customs duty had been applied at the border
Dean Milk Co. v. Madison
No sale of pasteurized milk if processed more than 5 miles from Madison
Doesn’t this also burden Wisconsin producers?
Struck down: Legitimate health concerns exist, but other adequate protections are available, and it places impermissible burdens on interstate commerce.
Chemical Waste Management v. Hunt
Facial discrimination invokes strict scrutiny: law struck down because less discriminatory means are available
Oregon Waste Sys. v. Dept. of Enviro. Quality
Facially discriminatory:
“Virtually per se rule of invalidity” and “strictest scrutiny”
Could have employed a compensatory tax structure
Carbone v. Clarkstown
Does this statute facially discriminate against out of staters? Does it have discriminatory purpose or effect?
Hoarding resources for the benefit of locals – effect on commerce. Non-discriminatory alternative means are available.
HP Hood v. Dumond
Hoarding. Claimed state interest?
Health of Troy’s children
Can’t do so by denying Boston’s children access to milk market
Hughes v. Oklahoma
Can’t take minnows outside of the state
Why is this unconstitutional?
State is using most discriminatory means to accomplish – Since there are alternative non-discrim. means to protect minnows, state must use them. Non-discriminatory alternatives?
Maine v. Taylor
Maine v. Taylor is the only case we read where a discriminatory state law (bans import of bait fish) survives strict scrutiny.
No non-discriminatory alternative to accomplish a legitimate state interest
Reeves v. Stake
Is the state rule discriminatory?
What distinction does Court make –
Market Regulator
Market Participant
Why does this make a difference?
Founder’s concern only with regulation, concern with state sovereignty, doesn’t implicate interests in unity
Art. IV Privileges & Immunities
Basic Rule: State (or locality) may discriminate against citizen of another state with regard to “matters of fundamental concern” only if necessary to achieve a substantial government interest.
“The primary purpose of this clause… was to help fuse into one nation a collection of independent sovereign states.”.
The question of “fundamental rights” thus focuses more on the goal of national unity than strictly on the individual’s rights.
Hicklin v. Orbeck
Does Alaska Hire infringe a “fundamental interest” protected by Art. IV Privileges & Immunities?
What test must such infringement meet?
Must show (a) Substantial Reason and (b) strangers are “particular source of evil” that the infringing law is aimed at
Baldwin v. Fish & Game
Does higher price for hunting license for non-residents violate Privileges and Immunities Clause of Art. IV?
No, because limiting access to hunting doesn’t implicate an advantage of citizenship that is crucial to maintenance or well-being of national union
Martin v. Hunters Lessee
• 1810: Virginia court: concludes that Virginia validly seized the land, so Hunter wins
• 1813: Supreme Court, reviews under § 25 and reverses – federal treaty protects land. Orders Virginia court to enter judgment for Martin.
• 1815: Virginia declares § 25 unconstitutional
– Says U.S. Supreme Court has no authority to review state court judgments. Federal questions determined in state courts only reviewable by states’ highest court.
Baker v. Carr
– What are the plaintiffs complaining about?
– Is the State’s refusal to redistrict the state’s legislative boundaries a political question that is unsuitable for resolution?
• No – The holding of the case is that the Court has the power to rule on this whether the failure to redistrict violates the Equal Protection Clause of the 14th Amendment.
Vieth v. Julierer
• Partisan Gerrymandering
– In Vieth v. Julierer (2004) Justice Scalia got only four votes for the proposition that such claims are political questions because there is no judicially discernible and manageable standard. Also he argued that there is a textual commitment of the question to Congress – Article I, §4 permitting Congress to “make or alter” federal election districts.
– 18 years “of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case and decline to adjudicate these political gerrymandering claims.”
Warth v. Seldin
– Poor people who can’t afford homes?
– Rochester Taxpayers?
– Associations – Penfield Members Metro Act?
– Home Builders Associations
– Article III requirements
• Injury: actual or threatened
• Causation: the injury was caused by the illegal conduct of the defendant (“traceable to”)
• Redressable: Courts can fashion relief that will relieve the injury.
– Prudential: (Congress can overcome these limits)
• Generally can’t assert the rights of others, no 3rd party
• Not “generalized grievances” shared by everybody
• Many exceptions!!!
three constitutional standing requirements
• Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a legally protected interest which is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.
• Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.
• Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
McCulloch v. Maryland
• Does Congress have the power to incorporate a National Bank?
• Does Maryland have the power to tax national institutions?
• Underlying these issue are two competing visions about the organization of the United States, about what kind of country is embodied in the constitution. Federalism? Limited powers of Congress?
Doctrine of Implied Powers
• How does Marshall define the scope of congressional power?
– Compares how the constitution changed a provision in the Articles of Confederation
– Implications from the nature of the duties assigned to Congress
– Interpretation of the “Necessary and Proper” clause
Gibbons v. Ogden
• First issue – if Congress has legislated on an issue, and a State (or States) has legislated on the same matter, and the laws conflict – who wins?
• Gibbons v. Ogden – p. 83
– “Commerce” is going to be read broadly (not just buying and selling but other activity)
– “Interstate” is going to be read broadly to allow federal regulation within a state where the activity is connected to interstate comm.
– Where there are conflicting laws, state law is unconstitutional. Why?
• Supremacy Clause!
Cooley v. Board of Wardens
– There is at least some concurrent power in the states and in Congress to regulate interstate commerce. Commerce Clause is not an exclusive Congressional power.
– However, some kinds of issues require a uniform national answer, and therefore fall outside of state’s power. Question turns on the nature of the thing regulated (“local” or “national”)
What is the Dormant Commerce Clause?
• A negative implied limit used by the Supreme Court to strike down State laws that burden interstate commerce.
– Note -- Where Congress has legislated under the commerce clause, conflicting state laws will be stricken under the Supremacy clause & preemption
– Where Congress is silent, state laws burdening commerce still may be struck down under an implied limit: the power of the states to do certain things are limited by Commerce Clause granting power to Congress.
Modern approach: CC. Three principles
– No overt (facial) discrimination against outsiders
– Strong presumption of invalidity (strict scrutiny)
– Almost per se invalid, unless no reasonable alternative means for accomplishing a legitimate state end
– No covert discrimination (purpose or effect)
– More likely to be neutral on their face, but court will look behind stated purpose for protectionism. Strong presumption of invalidity (strict scrutiny, same as above)
– Facially neutral, but burdening Int. Comm.
– Pike balancing test: weighs legitimate local benefits against burdens on interstate commerce.
Overarching goals of the Dormant Commerce Clause:
– Prohibit a State from advancing its own economic interests at the expense of other states.
– Promote national unity and prosperity through a free trade market within the United States
– Limit rivalries and chaos that comes from each state regulating aspects of a national market
So. Car. St. Hgwy v. Barnwell
• length & weight limits on trucks using state highways
• Effect on Interstate Commerce?
• What is Court’s role?
– Determine if state is regulating “within its province” – ie not discriminating
– Determine if reg’s are a rational means to a legitimate end.
– Court uses some “balancing” language – state interests are very high
Southern Pacific Co. v. Arizona
– State law?
• Limits the number of railroad cars permitted on trains in Arizona.
• Is there a burden on interstate commerce?
• Court says yes, because of the nature of trains. More suited to uniform rules. Practical effects?
– Is this law discriminatory?
• Do State’s interests outweigh national interests?
• What are State’s interest in limiting train length?
• National interests? Uniformity, efficiency, free flow
– Why does Barnwell uphold, So. Pacific strike law?
• Essentially, the inquiry changes to a balancing test, and the balance came out different (Stone wrote both opinions)
• Court distinguishes Barnwell - how
Bibb v. Navajo Freight Lines
– Non-discriminatory State safety regs have strong presumption of validity. But Barnwell’s rule is “incomplete” – must add considerations from later cases.
– Only strike down State safety laws if “total effect” of law’s safety benefit is so slight as not to outweigh nat’l interest in free flow of interstate commerce.
– Comparison of safety benefits between straight and contoured mudguards. What are the burdens on trade? “Rather massive” burden found v. benefits?
– Holding – Illinois’ mudguard law is unconstitutional. Bibb v. Navajo Freight Lines
Baldwin v. Seelig
• To provide for a regular supply of healthy milk to state’s consumers. State claims any economic motive is secondary to health concerns.
– Is this scheme discriminatory? How?
State Powers / Commerce Clause
• Baldwin v. Seelig (1935)
How does the Court explain its finding?
• Rejects state’s argument that program is only “incidentally” an economic burden on commerce. It uses discriminatory means to burden out of state milk producers who sell milk for less than New York limit
• The effect of the law is to create a barrier to interstate traffic in milk, as though a customs duty had been applied at the border.
• NY can regulate for health effects directly,(reasonable alternatives) therefore this law is stricken.
West Lynn Creamery
– State taxes all sales of milk (non-discriminatory) , but rebates all proceeds to Massachusetts dairies.
– How does the Court characterize scheme:
• Protective Tariff
• Purpose and effect is to let in-state dairies compete with cheaper dairies from out of state.
• Breakdown in political process
United Building v. Mayor & Council of Camden
• Is an out of state worker’s interest in working for private contractors on public works jobs in Camden a fundamental interest?
• Does it sufficiently implicate goals of the P&I clause in interstate harmony and unity?
– How does the Court conduct the inquiry?
• The fact that such a scheme comports with the Commerce Clause is NOT determinative – no mkt participant doctrine.
– Is it a fundamental interest?
• “The opportunity to seek employment with such private employers is sufficiently basic to the livelihood of the nation as to fall within the purview of the P&I Clause” p. 146
Silkwood v. Kerr-McGee
• Does Federal law preempt Oklahoma’s award of punitive damages?
• Field preemption The federal statutes regulate the safety and operation of nuclear power plants and preempt some state authority
– What areas are preempted?
– What are retained?
– Does the award of damages fall in the preempted part or the retained part?

Congressional Preemption
• Conflict preemption: Does the award of damages conflict with NRC regulations on safety?
• Congress assumed state tort damages would still be available
• Impossible to comply with both federal law and state law?
• Interference with the federal program’s objective?
• obstacle to the accomplishment of the full purposes?
Carter v. Carter Coal
– Holding?
• Congress has no authority to regulate local employment conditions under Commerce Clause.
NLRB v. Jones & Laughlin
– What act was being regulated? How did it affect interstate commerce?
– Abandons the idea that “manufacturing is local” activity and the distinction between “direct” and “indirect” effects on IC
– Adopts “stream of commerce” notion that inter-relates each stage of eventual I.C.
– Strikes would have “most serious effect upon interstate commerce”
– Therefore, Congress has authority to regulate fair labor practices, even at local level
U.S. v. Darby
– Over-rules Hammer v. Dagenhart (Child Labor Case). Congress may prohibit interstate shipment of goods produced in contravention of fair labor practices.
– Congress may regulate local activities with a “substantial effect” on interstate commerce, even to the point of forbidding the production of goods for interstate comm. where fair labor standards not met.
– Test: Can reach local activities that “so affect interstate commerce or the exercise of the power of Congress over it as to make reg’s appropriate means to the attainment of a legitimate end.” cites to McCulloch v. Maryland – why?
Wickard v. Filburn
High water mark in expansion effort
– May regulate local production of a commodity intended for farm consumption (no commerce and no movement).
– Why?
• Aggregation of all instances leads to conclusion that home consumption has a “substantial effect” on interstate commerce. If not self-grown, would have to purchase wheat in the market
U.S. v. Lopez
criminalizes possession of a gun near a school
– How does the court determine whether this law falls within Commerce Power?
• History of Commerce Clause Power shows that even with great expansion of reach, there is still some limit to Commerce Power. (We’re applying settled law, not making new law)
• § 922(q) doesn’t fit within any of the areas that the court has spelled out regarding commerce power.
Lopez Sums up Commerce Power in three categories
• Regulate the use of the channels of interstate commerce
– Darby (no interstate shipping), Heart of Atlanta (motel)
• Regulate and protect instrumentalities of interstate commerce or persons or things in interstate commerce, even if threat comes from intrastate acts
– Shreveport Rate cases (planes, trains, etc), bill of lading, things or persons
• Regulate local activities which “substantially affect” interstate commerce
U.S. v. Morrison
– Violence Against Women Act -

• Which of the three sub-sets of Lopez is relevant here?
– Substantially affects commerce
State Autonomy – 10th
– “External limits” – 10th amendment based “state autonomy” limits when congress is enforcing federal laws invoking the commerce clause powers against the states themselves.
Garcia v. San Antonio
Constitutionally ok to apply FLSA to city workers.
• Overrules National League of Cities –
– Test is unworkable – “traditional gov’t functions”
– Invites too much judicial discretion – uphold the laws you like. When there’s no real test, judicial activism takes over.
New York v. US
NucWaste• But New York agreed to be bound by the law and reaped benefits. Why can it back out now?
– Because the people of the states are the ones being protected by the 10th Amendment – not the states as abstract idea. State gov’ts can’t consent to invasion of federalism limits. Otherwise states and national gov’t can collude to avoid accountability.
Printz v. U.S.
– How does Court frame the issue?
• Is it unconstitutional for Congress to compel state officers to execute federal laws?
– What sources will court rely on?
• Constitution is silent: How do we determine Original Understanding of relation btwn feds and states?
US V. Butler
- Issue – does the AAA fall within the scope of Congressional spending power?
The Taxing and Spending Power
US v. Butler: holding
Issue: Does Art. I § 8 authorize the expenditure?
Answer, No, because the program seeks to use the spending power to regulate local matters- to achieve an end that is not within its power.
• Congress is using spending power as a pretext (McCulloch). They can’t use a valid means to achieve an invalid purpose
– Butler’s application to the specific reach of Commerce Clause power is no longer good law: Today, the tax would likely be upheld, since such reg’s would fall within Commerce Clause.
Chas. C. Steward v. Davis
– Challenged provision ?
• Excise tax imposed on employers, 90% of which will be refunded if employer has paid into a certified state unemployment insurance fund.
– Does this law coerce the states in violation of the 10th Amendment?
• No – it encourages them to take actions to relieve the drain on the national budget, so it’s adequately related to a legitimate national interest
Helvering v. Davis
• Upholds old-age benefits provisions of Social Security Act.
– Line between permissible and impermissible under “general welfare”) is for Congress to decide with lots of discretion
• Courts can intervene only where “the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment”
South Dakota v. Dole
directs Sec. Of Transportation to withhold 5% of federal highway funds from states that fail to have a drinking age limit of 21 years.
– Challengers say that since Congress can’t directly create national drinking age limit, they can’t use spending power to do so indirectly
Taxing and Spending – Conditional Spending• This is a permissible spending condition. Even if it can’t legislate directly, Congress has power to condition spending to encourage states to legislate.
Conditional Spending – S.D. v. Dole
Four limits
• must be in pursuit of general welfare – courts defer substantially to Congress on this question
• Congress must include clear statement of conditions so states know they are agreeing to conditions. Let states make a knowing choice
• Germaneness: Suggestion that conditions on fed’l grants might be unconstitutional if unrelated “to the federal interest in particular national projects or programs.”
• Other constitutional provisions may provide an independent bar to conditions.
United States v. Curtiss-Wright
– What is challenged presidential action? Issue?
– Court makes distinction between domestic powers (all enumerated) and foreign affairs powers (inherent)
• Inherent power over foreign affairs, even where no statute
• Historical argument – States only delegated domestic powers they had, Foreign powers transferred from crown
• Law of Nations
• Nature of the Powers requires unitary power, presidential discretion.
• Acquiescence from long practice
– Why does Justice Jackson in Youngstown say this is dicta?
Youngstown Sheet & Tube v. Sawyer
• Facing threatened strike, President ordered Sawyer (the Sec. Of Commerce) to seize the steel mills and keep them running because steel was needed for the Korean War.
• Why might Truman have refused to invoke Taft-Hartley
• Why not go to Congress for authority?
• Issue? How does this case differ from Curtiss?
• Holding:
– No authority to seize the mills. Several opinions by the Justices, all expressing views on whether President may act when no statute or Constitutional provision authorizes
Justice Black – Why does he conclude that seizure of mills is unconstitutional?
President only has power to act when a statute or Constitution explicitly grant him that power (Madison’s view).
– His legislative powers are limited to proposing legislation and vetoing bills.
– Can’t imply powers that stray so far from explicit powers, particularly where it is clear that Congress has the power to do what he did
– Presidential powers fall along a continuum
– Highest -Acting pursuant to legislation
– Middle – Congress is silent – acts only on independent power
– Lowest – In contradiction to express or implied will of Congress
Rasul v. Bush
• Whether Habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory over which the US exercises some jurisdiction but not ‘ultimate sovereignty’. • Since courts have interpreted the statute to permit review where the courts may reach the person who holds the prisoner (here, president Bush), Rasul may invoke the statute. Eisenstreiger was decided before this “gap filling” ruling.
U.S. v. Nixon
• Claim to Absolute Privilege: The President has the final say over the scope of exec. privilege, and court has no authority to determine. If not, then find broad scope. Court holds?
• Executive Privilege is rooted in constitution
• Court has duty to determine scope of privilege
• Confidential communications owed greatest deference when related to national security
• Presumption of privilege not sufficient where info needed for criminal prosecution and no national security interest outweighs. (Balancing test)
Nixon v. Admin. Of General Svcs
– SOP test:
• Extent to which Act prevents Exec. from accomplishing constitutional duties – OK here
– Presidential privilege?
• Here asserted against Exec. Branch by former Prez
• Act contains sufficient protections
• Any intrusion from screening is justified by needs
Nixon v. Fitzgerald
– What was the nature of the suit?
• Damages for official acts while in Office
– Why does Pres. have absolute immunity from suit for civil damages for official conduct?
• Needs to carry out duties free from fear of liability
• Effective functioning of Government - distractions
• Attractive target for many suits
• Other checks ensure he won’t be “above the law
Clinton v. Jones
Claim of temporary immunity (stay the action) from civil suit based on unofficial actions before President.
• Facts –
– Jones wants to depose President regarding her claims of sexual harassment
– President wants a delay till after he’s out of office.
• Claim
– temporary Presidential immunity from suit during tenure, so President can concentrate on faithful execution of duties
Clinton v. New York
Line Item Veto -- – The only way to repeal a law is by following constitution’s procedure of passing a new law (bicameralism and presentment).
– “Canceling” parts of appropriations bills amounts to the President repealing a law. But the President can’t be given legislative power.
– Therefore, Line Item Veto Act is unconstitutional
Bowsher v. Synar
• What was the statutory structure being challenged?
– Balanced Budget Act gave powers to Comptroller General to enforce budget limits.
– Comptroller General is removable by Congress
• Issue:
– Has Congress vested executive powers in a legislative officer controlled by the Congress, thereby retaining power over execution of law? Method?
Separation of Powers
• Why does majority find the Balanced Budget Act unconstitutional?
– Does the bill vest “executive power” in the Comptroller General?
• Yes – he is interpreting and applying a law, has power to order President to take actions.
– Is the Comptroller General a Legislative Officer or an Executive Officer?
• He’s a legislative officer, because historically treated as such, and Congressional power to remove is power to control
– Therefore, unconstitutional since Congress can’t grant an officer in its control power that it lacks
Lochner v. New York
• New York prohibited bakery workers from working more than 60 hours per week. Lochner was fined for violating the limit.
– What is the purpose of the law?
• Health? – of bakers, maybe of general public
• Real reason?
– Why not let bakers protect themselves?
• Unequal bargaining power. Surplus of workers means employers can make any offer.
Nebbia v. New York
• Statutory scheme?
– Milk price regulations
• Challenged on what grounds?
– Setting milk prices violation of substantive due process right to contract and right to property.

Substantive Due Process
• Nebbia seems to apply substantive due process in a different way: law is upheld
Substantive due process is satisfied if economic
– Laws are NOT unreasonable, arbitrary or capricious, and
– The means selected have a “real and substantial relation to the object sought to be attained.”
– More deferential application of Lochner: Broader legitimate state goals, and more deferential to means chosen
West Coast Hotel v. Parrish
• (1937) Regarded as death-blow to Lochner and economic substantive due process.
– Upholds minimum wage for women.
• Right to contract isn’t mentioned in constitution – “liberty” isn’t absolute right.
• Legitimate state ends: State can seek to equalize bargaining power. Ok to use state power to shift economic power/wealth from one group to another.
• Legitimate means: Law is not arbitrary or capricious “and that is all we have to decide”
Griswold v. Connecticut
• (1965) p. 822
– What is the statute being challenged?
• Conn. law (1) makes it a crime to use any contraceptives, and (2) makes it a crime to assist anyone in using contraceptives
– Who is challenging the law?
• Doctors who violated the law by giving instruction in the use of contraception.
• This case doesn’t include a married couple being prosecuted for using contraceptives
– Holding: Strikes down law (6-2)
Doe v. Bolton
• , 1973
– Companion case to Roe, decided on same day, intended to be read together.
– Strikes down a “liberalized abortion statute”
• Residency requirement
• Abortions only in accredited hospitals à clinics
• No need for additional approvals by more doctors
– Defines the “health exception” mentioned in Roe:
• Why not explain in Roe the scope of the health exception required for post-viability abortions
Parenthood v. Casey
, (1992) P. 845
• What are the challenged provisions of the statute? Pennsylvania statute requires (in all trimesters):
– Parental consent with bypass
– Wife certifies either 1) husband was notified or 2) exception
– Required factual information for informed consent
– 24 hour waiting period.
– Reporting requirements for abortion providers
Stenberg v. Carhart
• (2000) p. 866
– What is the statute being challenged?
• Book doesn’t give much detail, but the law bans partial-birth abortions:
• defined in the statute as partially delivering a live fetus and then killing the child while part of the body (the head) is still inside the mother’s body.
• Statute lacked a “health exception”, applied both before and after viability, and was defined using non-medical terms.
Why does the court strike it down? UNDUE BURDEN
1. Lack of health exception
2. Vagueness argument: could misread statute to include other abortion procedures.
Bowers v. Hardwick
• (1986) (overruled)
– What is the statute being challenged?
• Georgia statute makes sodomy a crime regardless of whether homosexual/heterosexual.
• Court of Appeals held that statute “violated respondent’s fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation.”
– Holding:
• No fundamental right to engage in homosexual sodomy
Lawrence v. Texas
• ( 2003) 77 supplement
– What is the challenged statute?
• Texas makes it a criminal offense to engage in sodomy, but only for homosexuals. Heterosexuals can engage in sodomy.

– Court’s holding:
• Law invades “liberty” protected by the Due Process clause of the 14th amendment, and State has no rational basis for the law.
• (1990) p. 888
– What is the state’s action that is being challenged?
• State requires “clear and convincing evidence” of whether patient currently lacking decisional authority had previously expressed her desire to forgo food and water if ever finding herself in a PVS.

Court assumes there’s a right for competent patients to refuse medical treatment, but state has sufficient interests to uphold Missouri's evidentiary test.
- Court treats food and water provided via tubes as “medical treatment” – without directly deciding the question
Washington v. Glucksberg
– What is the statute being challenged?
• State makes it a crime to assist another in suicide.
– How do claimants describe asserted fundamental right?
• The right of a competent, terminally ill adult to control the time and manner of their death with the assistance of doctor. How is this interest different than that in Cruzan?
– Claimant’s argument – how rooted in our tradition?
• Cruzan – right to refuse medical treatment. Casey – right to define meaning of life. Personal, intimate decision, akin to family, reproduction, contraception, abortion.
Vacco v. Quill
• (1997) p. 904
– Companion case to Glucksburg
– Basis of challenger’s equal protection claim?
• State violates the constitution by permitting some dying people to hasten death (by withdrawing treatment) but forbidding other dying people to hasten death (by doctor giving killing dose).
• Two groups are in the same relevant position, but state treats the groups differently.
– Holding?
• No equal protection violation – Everyone is treated equally. Distinction between “allowing to die” and “assisted suicide” is rational.
Railway Express Agency v. N.Y.
• (1949) p. 629
– What is the challenged statute classification?
• Those who use trucks for business deliveries of their own products may advertise on their trucks
• All other trucks may not put ads on them
– What is the asserted justification?
• Harm to be avoided = Public safety and traffic: ads are distractions to drivers and pedestrians
– Is this a perfect fit, under-inclusive, or over-inclusive
• Under-inclusive – many of those who cause alleged harm are excluded from the law.
– (1880) – Strikes down state law providing that only white men could serve on juries. P. 636
• Exclusion of blacks is a legal stigma, assertion of inferiority, stimulant to race prejudice at which 14th amendment is aimed
Yick Wo v. Hopkins
• (1886) p. 639
– What was the state action being challenged as a denial of equal protection?
• San Francisco law forbade operation of a laundry in a non-brick/stone building, unless permit from Bd. Of Sprvisors
• 240 Chinese laundries in wooden structure: almost 2/3ds of them were arrested for violating the statute. None of them were given permission
• 80 non-Chinese laundries – only 1 was denied permit, none of them faced prosecution.
– Holding: City is discriminating in administration of the law, even though facially neutral.
– Court will look at application of the law for discriminatory effects
Plessy v. Ferguson
• (1896) p. 641
• What statute is being challenged?
• Louisiana law requires “equal but separate” accommodations for white and black rail passengers. Plessy is arrested for refusing to leave white area.
• Claim: Law violates 14th Amendment Eq. Pro.
• Holding: Separate but equal satisfies the 14th amendment.
• Is Plessy consistent with Strauder?
Brown v. Board of Ed. I
– What is the state action / statute being challenged?
• States maintain segregated school systems – excludes black children.
– Challenge:
• Segregated schools violate Equal Protection: separate but equal is not equal.
– Holding:
• Separate public schools violate the equal protection clause
Bolling v. Sharpe
– Companion case to Brown
– Holds that 5th Amendment Due Process Clause imposes Equal Protection on federal government
– Therefore, D.C. school district (under federal authority) can’t be segregated either.
Brown II
• 1955) Proper remedies to segregation
– Usually once constitutional violation found – remedy is stop it now (e.g. Roe). Why doesn’t court do this?
• Resistance, complex problem. Lack of court’s power?
– Court concludes that, guided by equitable principles, courts will have to assess whether the efforts of local schools are “good faith” attempt to comply.
– Balance: interest of children to attend integrated school v. public interest in orderly transition
• Most of the children who started the suit never got to attend an integrated school.
Gratz v. Bollinger
• (2003) p. 48, supp.
– Challenged program:
• University admission assigns 20 points to members of racial/ethnic minority groups. 100 points guarantees admission, but total of 150 points possible.

– Claim –
• this denies Equal Protection - fails strict scrutiny because not narrowly tailored to a compelling state interest

• Court re-affirms strict scrutiny of affirmative action programs
– Compelling state interest?
• Education benefits from diverse class
– Narrowly tailored
• No – too rigidly focused on race
• What’s the difference between the law school’s program and the undergraduate program?
– The automatic 20 points for minorities is not narrowly tailored.
– Rigid quantification of race in this way detracts from overall qualitative assessment of how candidate would contribute to school’s diversity
– O’Connor: individualized review
Washington v. Davis
• (1976) p. 665
– What is the state action being challenged?
• Washington DC requires those applying to be police officers to take an exam measuring verbal skills.
– What do the challengers claim:
• Requiring the test is discriminatory because
– Disproportionate impact – higher percentage of blacks fail the test than whites
– Test is not tied to measurements of job performance
Arlington Heights v. Metro
• (1977) p. 668
– Challenged state action: City denied a rezoning request that would permit multi-family town homes to be built in suburb.
The denial’s “ultimate effect” was racially discriminatory, even though city was also motivated by concern to preserve zoning scheme.
No showing of racially motivated purpose, so denial is upheld.
Reed v. Reed
• (1971)
– First case striking down a law that discriminates on basis of sex. Idaho statute preferred men to women as estate administrators
• State justification: Administrative convenience
– Holding: Stricken under rational review. Why irrational?
• Gender is irrelevant in choosing an administrator. Like preferring red-headed administrators.
Frontiero v. Richardson
• (1973) – p. 722
– Law presumes that military wives are dependent on husbands, but military women must prove that husbands are dependents for benefits.
– Is this a completely irrational presumption? Statistics?
– Why does plurality argue for sex as suspect class?
• Lengthy discussion of history of discrimination, similarity to racial categorizations, immutable, misuse of classification,
– Only 4 votes for suspect class:
• Court strikes down under Reed – rational review
• But seems like an expansion from Reed – statistically accurate stereotypes not allowed to burden women.
Craig v. Boren
• (1976) p. 727
– What is challenged statute?
• Oklahoma allows 18 year old women to buy 3.2% beer, but men must wait until they turn 21.
– Claim: this discriminates against young men
• Should burdens on young men trigger higher scrutiny?
– Court lays out test for laws with gender class:
• Classifications by gender must serve “important governmental objectives and must be substantially related to achievement of those objectives”.
• Intermediate scrutiny – between rational and strict.
Equal Protection
• Law fails because sex class doesn’t “closely serve” the objective of safety on roads (fails the means test).
Personnel Admin v. Feeney
• p. 735
– Issue: Does the very generous hiring preference granted to Veterans violate the equal protection clause because almost all vets are males?

– How would plaintiffs state their claim?
• The vet’s benefits are a covert gender classification, by which the state grants benefits to men that are denied to women.
– Holding?
• The gender-neutral statute does not constitute a gender classification. Program upheld under rational review
Mississippi Univ. for Women v. Hogan
(1982) 739
Challenged statute?
– Miss. refuses admission of men to nursing college in an all-women state college.
Test: Intermediate:
Gov’t must show classification serves “important gov’t objectives” and the discriminatory means used are “substantially related to those objectives.”
- “Exceedingly persuasive justification” required -?
Equal Protection
• Facially discriminates based on gender
– Important state goal?
– Compensate for past discrimination? Why doesn’t court accept this goal as important?
– Because no showing that women were ever excluded from nursing school in the past. State has to demonstrate actual past disadvantage
– E.g. Califano v. Webster, Schlesinger v. Ballard – how do these differ from MUW policy?
– What does court say the real state goal is?
– Reinforcing archaic stereotypes
US v. Virginia
• (1996)
– Challenged statute?
• State runs an all-male military academy and refuses to admit women.

– Holding:
• Exclusion of women from publicly supported all-male military academy violates the Equal Protection Clause, and remedy requires that qualified women be admitted.
Ability to disciminate on gender depends on:
• “Exceedingly Persuasive” justification?
• Important gov’t objective
• Program substantially related to the goal
• Actual reason, not hypothesized
• Based on real differences – not stereotypes, nor used to denigrate one sex
Ambach v. Norwick
• p. 701
– Claim that exclusion of aliens who refuse to seek citizenship from hiring as public school teachers violates Equal Protection.
• Alienage is Suspect Class – but exceptions
– Examples of statutes stricken – p. 702
• But where state is hiring for jobs entailing government functions – then only rational basis. Why?
• Is public teaching a government function?
– Yes, so uphold the restriction under rational basis
Mathews v. Diaz
• – p. 712
– Why can the US gov’t exclude some aliens from federal medical care program, while states can’t exclude aliens from state welfare programs (Graham v. Richardson)?
• Federal gov’t has more leeway in determining alien status and the benefits to be granted to various classes of aliens
• Political question doctrine counsels in favor of broad discretion
– Court upholds law because “reasonable”
Lalli v. Lalli
– p. 716
• Claim – state denies equal protection to illegitimate child by denying him intestate inheritance rights
• Test – (which is later refined)
– Does state evidentiary requirement bear a substantial relationship to “the particular state interests” this statute was designed to serve?
– What statute was stricken in Trimble? Why is the statute in Lalli different?
• Holding?
– Statute is upheld under intermediate scrutiny.
Daindridge v. Williams
• (p. 746)
– Claim?
• Maryland’s AFDC program favors small families by reducing the amount of money going to additional family members and by cut-off at $240.
– Test applied by Supreme Court?
• Rational basis – judicial restraint, leave matter to legislatures.
– Holding?
• Poverty is NOT a suspect class. Upholds differential – rationally related to legit goals
San Antonio School Dist.
• (p. 748)
– District Court’s holding?
• State method of school funding (poor district has higher tax rate, but raises least amount of money per pupil) violates equal protection because
– Suspect class?
– Fundamental right to education?
– Test used by Supreme Court?
• Rational basis –
– Holding –
• State’s system not so irrational to be invidiously discrim’ry
Bush v. Gore
• (p. 785)
– What was the claimed Equal Protection violation?
• Use of standardless manual recounts of the ballot violates Equal Protection
– How many justices agreed there was an EP violation?
• Holding:
• State court can’t use arbitrary recount procedures in presidential elections. Remedy?
Rational basis review
– Economic & social legislation
– Wealth, age, mental retardation, homosexuality(?)
Intermediate level review
• (substantially related to important gov’t interest)
– Sex
– Illegitimacy
Strict Scrutiny
• (necessary to achieve compelling state interest)
– Race, national origin
– Alienage (with exceptions)
– Differential treatment re: Fundamental Rights
Marsh v. Alabama
1946) p. 565
– Why must a “company town” permit a Jehovah’s Witness to leaflet on their property?
• Ordinary town couldn’t deny 1st Amendment right
• Private ownership not enough to insulate
• Analogy to Operation of facilities built and operated to benefit the public (toll roads, bridges, railroads) is a public function – subject to regulation
• Balance of interest?
– Holding: Company must respect constitutional rights just like an ordinary town.
Terry v. Adams
• – p. 573
• Claim:
– The Jaybird Association, a private club that votes before the Democratic primary, and uses all the same criteria, and is very successful – is a state actor.
• This private “voluntary club” that votes on candidates is a state actor, can’t shut out black voters.
Jackson v. Metro. Edison
• (1974) p. 596
– Claim: woman whose power was shut off claims that Met Edison is a state actor and therefore it’s required to give due process in shut offs.
– How does she argue that Met Edison is a state actor?
• It provides essential public service required by law to be provided on reasonably continuous basis – public function. State approved monopoly
Shelley v. Kramer
• (1948) p. 578
– What is the basis for the suit?
• Racial covenants running with titles to land. Property owners agree among themselves to only sell to white people.
– Court says the agreements themselves aren’t state action, don’t violate the constitution if only enforced by voluntary action.
– Holding: Court enforcement of the restrictions amounts to state denial of equal protection.
Burton v. Wilmington Parking Auth.
• (1961) 586
– Private coffee shop located in and leased from publicly owned parking structure refuses to serve black customers.
– Claim: coffee shop’s denial of service violates equal protection.
– Holding:
• State is a joint participant with the coffee shop – symbiotic relationship, interdependence, means that denial of service was a denial of equal protection.
Moose Lodge
• (1972)
– State grants a liquor license (significant benefit) to a private club that excludes blacks. State could exclude discrimination in license. Is this sufficient to become state actor.
• No. Everyone receives significant state benefits – fire and police protection, utilities, etc. Not enough to make every action of every person a state actor.
• State must have “significantly involved itself with invidious discrimination” in order to make state actor
• (1982) p. 592
– Patients transferred from skilled nursing homes to health related facilities – 90% of funding, lots of regulations. Patients want due process rights before transfer.
– Why does court reject?
• Decisions to transfer are made by private doctors, not the state. Usually must show coercive power of the state or it provided significant encouragement
Lugar v. Edmonson Oil
• – p. 613
1. Deprivation caused by state-created right, privilege or rule of conduct
2. “Whether private party can be described “in all fairness” as a “state actor”:
• “State actor” Court looks at factors:
• Extent to which actor relies on gov’t assistance and benefits (Burton)
• Is actor doing a traditional, exclusive gov’t. function. (Marsh –; Terry pre-primary)
• Whether injury is aggravated in a unique way by incidence of gov’t authority (Shelly ct. enforces restrictive covenants)
Edmonson v. Leesville Concrete
• p. 614
– Peremptory challenges of prospective jurors as ‘state action?’
– 2 Questions from Lugar:
• 1. Did constitutional deprivation result form exercise of right or privilege having its source in state authority?
• 2. Can private party “in all fairness” be described as a state actor