Con Law Ii

Front 1

What are the 3 primary levels of review and what level state interest do they require?

Back 1

Strict Scrutiny - Compelling
Intermediate Scrutiny - Important
Rational Basis - Legitimate

Front 2

In what 3 situations is heightened scrutiny appropriate according to Carolene Products FN 4?

Back 2

1. Legislation which appears on its face to violate an express provision of the Constitution;
2. Legislation which restricts the political process or interferes with democracy, OR
3. Legislation that affects discreet and insular minorities who are not protected by the political process

Front 3

According to the policy underlying FN 4, why is it appropriate for courts to get involved in the affairs of suspect classes?

Back 3

Laws hurting political minorities cannot be overturned through the political process, therefore it is appropriate for courts to get involved.

Front 4

When will a law be upheld under Strict Scrutiny?

Back 4

Law will be upheld if the regulation serves a compelling state interest in the least restrictive means (narrowly tailored) necessary.

Front 5

In what areas does SS apply? Provide an example.

Back 5

SS applies to “suspect” classifications which curtail rights of a particular group (race, national origin, alienage etc).
For example, when the law impedes a “fundamental liberty interest” (i.e. abortion (Roe), marriage (Zablocki)) it is subject to strict scrutiny.

Front 6

What are 3 common characteristics of suspect classes?

Back 6

1. immutability,
2. history of discrimination,
3. less able to protect themselves through the political process

Front 7

What does the Intermediate Scrutiny test require?

Back 7

IS requires that the regulation (the means) is substantially related to an important state interest (the ends).

Front 8

When does IS apply and what effect does it have on the other SoR?

Back 8

IS applies when there is a quasi-suspect class and the Court reserves Constitutional discretion.
This weakens the two-tier framework of strict scrutiny and rational basis.

Front 9

What does the RB test require?

Back 9

RB requires that the regulation (the means) rationally relate (are deferential) to a legitimate state interest (the ends).

Front 10

When does the RB test apply?

Back 10

RB applies when the Court finds no suspect classification and no intent to discriminate.

Front 11

Describe the "ends/means" relationship for each primary type of scrutiny.

Back 11

SS: Narrowly tailored means/Compelling ends
IS: Substantially related means/Important ends
RB: Rationally related means/Legitimate (deferential) ends

Front 12

Where there is a facially neutral statute or practice at issue what do we ask regarding discrimination, and, depending on the answer, what SoR applies?

Back 12

For facially neutral statutes, ask, is there intent to discriminate?
If yes → apply SS
If intent is not readily apparent, ask is there discriminatory impact?
If yes -> and class is suspect, apply SS
If yes -> and class is quasi-suspect, apply IS
If no -> apply RB

Front 13

Describe the current view on the "Incorporation Controversy?"

Back 13

Selective Incorporation says that some rights articulated in the BoR are applicable against the states, and some are not, depending on whether the right in question was a fundamental principle of justice basic to American jurisprudence.

Front 14

Which amendments are not incorporated?

Back 14

2, 3 and 7

Front 15

Define the "natural rights" theory?

Back 15

The "Natural Rights" theory says that certain rights (to own property, to contract freely) are “fundamental” or “natural,” not derived from the Constitution or legal system, but from the nature of things. Therefore, if a state legislature enacted a law which restricted “natural rights,” then the statute was a deprivation of “liberty” and/or “property.”

Front 16

What did Lochner stand for, and where did it go wrong?

Back 16

Lochner applied natural rights (right to K freely) and read economic SDP too broadly. Lochner also limited police powers to "morals, health, safety, and general welfare to the public" which is more limited than how they are defined now. Lochner also mis-interpreted the means/ends relationship saying, "Means must have a 'real and substantial' relationship to the ends, and the end itself must be appropriate and legitimate."

Front 17

Regarding Economic Regulations, which SoR governs modern SDP and how is this standard defined?

Back 17

For Economic Regulations, the Minimum “rational basis” standard governs due process review of state legislation. Minimum RB says an economic regulation has the presumption of constitutionality so long as there is some rational basis for the statute.

Front 18

Summarize the modern approach to SDP in economic regulation.

Back 18

The modern Court has withdrawn almost completely from reviewing state legislative economic regulation for substantive due process violations; BUT where a law impinges on a “fundamental right” a substantially higher level of scrutiny is applied (FN4).

Front 19

What are the 4 elements of the takings clause (TC)?

Back 19

1. What is the taking?
2. Is it private property?
3. For public use?
4. Was there just compensation?

Front 20

What does the TC allow and require?

Back 20

TC allows expropriation in the public interest, and merely requires that the government pay for it

Front 21

In the TC analysis, what does Public Use require?

Back 21

Public Use does not have to be for the general public, instead only for the public benefit.

Front 22

Under the Public Use doctrine, how does the court characterize "public welfare?"

Back 22

Under the Public Use doctrine, “public welfare” is broad and inclusive and Court’s role in determining the parameters is “extremely narrow.”

Front 23

Under the public use analysis, economic development is a traditional function of government.

T or F?

Back 23

T. However, after Kelo, public backlash led to nearly half the states amending their constitutions so that economic development type takings could not be done.

Front 24

Regarding regulatory takings, when does a taking require compensation under eminent domain, and when is it merely a regulation?

Back 24

A regulatory taking under eminent domain requires compensation when the reduction in value of the owner's property is great. The more drastic the reduction in value, the more likely a taking is to require compensation. Here we must balance public vs. private interest.

Front 25

For regulatory takings, how is the scope of “property” defined under the TC?

Back 25

For regulatory takings, "property" includes, real property in land, personal property, intangible interests (IP), and monetary interests.

Front 26

Describe the Penn Central Balancing Test for Takings v. Regulations

Back 26

Penn Central requires that we balance public gain against private harm.
A taking is more readily found when the interference with property can be characterized as a physical invasion by the government than when interference arises from some public program adjusting benefits and burdens of economic life to promote the common good.

Front 27

What 2 scenarios constitute Per Se Takings and require compensation?

Back 27

Per Se takings include:
1. Physical occupation by the government; and
2. Government deprivation of all economically beneficial use.

Front 28

In order for the government to condition land-use permission on the owner’s “give-back” of a significant property right, what 2 conditions must be met?

Back 28

1. The means chosen by the government must “substantially advance” a legitimate aim.
2. The “give-back” required of the property owner must be “roughly proportional” to the harm caused by the new land use.

Front 29

What type of legislation does the Contracts Clause cover?

Back 29

Only retroactive legislation. Must always have a retroactive impairment to invoke the KC.

Front 30

The KC generally does not apply to the federal government. What is the exception?

Back 30

The KC may apply to the federal Government when the US is acting like a private entity (ex. selling ins. to armed forces).

Front 31

What question do we ask to determine if the KC accommodates a state’s police power? What exception may apply?

Back 31

Does the state regulation substantially impair contractual relations?
However, Blaisdell tells us that when there is an emergency situation where “vital public interest” would otherwise suffer, the KC may be temporarily ignored.

Front 32

How does the KC apply to public obligations?

Back 32

The KC applies unless it is “reasonable and necessary" to impair contractual obligations in order to " support an important public purpose.”

Front 33

For private Ks, state police power generally only allows minor modifications to contracts. When can a substantial modification be made?

Back 33

For private Ks, a substantial modification may be made under the KC when:
1. there is an emergency,
2. a basic societal interest is protected (not a favored group),
3. the relief is appropriately tailored,
4. the modification is reasonable, and
5. the modification is limited by duration.

Front 34

What SoR applies to fundamental and non-fundamental rights in SDP analysis?

Back 34

When the right is fundamental (often an expansion of right to privacy), the court applies strict scrutiny.
If the right is not fundamental (often economic rights) then the court applies rational basis.

Front 35

Regarding fundamental rights, how has the right to privacy been expanded and what are common fundamental rights?

Back 35

The right to privacy now includes the “right to personal autonomy” and fundamental rights have included sex, marriage, child-bearing, and child-rearing.

Front 36

How does the court treat SDP and Contraception?

Back 36

Court applies SS because marriage is sacred and the bedroom is private. The BoR guarantees privacy and creates a “penumbra” or “zone” of privacy. (Griswold)
Furthermore, access to Birth Control is essential to the constitutionally protected right of decision in matters of child-bearing.

Front 37

What did the Court hold in Roe v. Wade?

Back 37

A woman’s right to privacy is a “fundamental” right under 14A, therefore the legislature can only regulate abortion, not completely ban it.
Furthermore, states can regulate abortion in different ways depending on the trimester, but the regulation must be in line with the state interest.

Front 38

How did Casey alter the holding in Roe? What is the current law on SDP and abortion?

Back 38

Court reaffirmed Roe but abandoned the trimester framework, instead holding that a State can regulate abortion at any stage so long as it does not place “undue burden” on the woman’s right to choose (current law).
A law presents an “undue burden” if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
Court used intermediate scrutiny test, denying that abortion is a "fundamental right” view of Griswold and Roe.

Front 39

What are the 4 factors to consider in overruling precedent?

Back 39

1. Whether the old rule is workable,
2. Whether there has been a reliance on the old rule such that overruling it would create special hardship,
3. Whether there has been a change in fundamental principles of law so that the old rule is inconsistent with current doctrine, and
4. Whether there has been change in fact, such that the old rule does not make sense (i.e. Plessy – new research)

Front 40

How does the court treat SDP and Marriage/Family relationships?

Back 40

Marriage is a fundamental right and is subject to strict scrutiny. However, if a law merely regulates marriage the court will use rational basis.
Court uses RB for family zoning cases.
Care for and control of children is a fundamental right and invokes SS.
Extra-familial relationships are not traditionally protected.

Front 41

How does the court treat SDP and sexuality?

Back 41

Lawrence de-criminalized sodomy, but did not specify the level of scrutiny. Seems to be rational basis – Kennedy says there is “no legitimate state interest.”
Instead of saying there was a fundamental right to privacy in sexuality, court said there was “special” liberty (in your own home), and “transcendent” liberty (sexuality).

Front 42

How does the court treat SDP and the Right to Die?

Back 42

There is a general “liberty interest” in not being forced to undergo unwanted medical procedures.
A competent person has a right to refuse treatment (“liberty interest”) – and state has a compelling interest in preserving life.
But, Court allowed heightened level of proof for an incompetent person’s wish to refuse treatment – fear is that a guardian will not be acting in the best interest of the individual.

In contrast, there is no general “liberty interest” committing suicide or recruiting a 3rd party to assist in suicide. Use RB.

Front 43

What are the two steps for PDP?

Back 43

First, ask whether there is a liberty or property interest at stake?
Second, if yes, how much process is due?

Front 44

How do we define liberty interests?

Back 44

A liberty interest would be a violation of free speech.
However, the court does not want to give expansive interpretations of liberty interests, so things like personal reputation will not trigger PDP.

Front 45

How do we define property interests?

Back 45

To have a property interest in a benefit, you must have more than a unilateral expectation; you need to have a legitimate claim of entitlement (which is defined by state property laws, welfare laws, etc).
DPC does not protect against deprivation of all government benefits, but only of “entitlements” created by state law.

Front 46

How do we determine what process is due?

Back 46

Mathews balancing test of what process is due when there is a governmental deprivation of a constitutionally protected “liberty” or “property” interest:

Three factors:
1. The private interest that will be affected by the official action,
2. The risk of erroneous deprivation of such interest through the procedures used, and the probable value of substitute safeguards, and
3. The government’s interest in the additional or substitute procedural requirement.

Front 47

What is the goal of EP?

Back 47

To treat similarly situated people the same.

Front 48

What are the 3 Levels of Scrutiny for Equal Protection?

Back 48

1. STRICT SCRUTINY for race discrimination and its analogs (national origin, alienage) Requires that regulation serve a compelling governmental interest and be essential to those interests (least restrictive means).
INTERMEDIATE SCRUTINY for gender discrimination. Requires that a regulation serve an important governmental interest and be substantially related to the achievement of those objectives.
RATIONAL BASIS for all other classifications (age, socio-economic laws, disability, etc). Requires only a rational relationship to the objective.

Front 49

Presently, how do we treat the "separate but equal" doctrine?

Back 49

In the past, we said facilities available to African-Americans were not in fact “equal” to those given to whites. Now we say, separate education facilities are inherently unequal and that even where black and white schools are the same on tangible factors, the intangible differences affect the hearts and mind of black children and lead to feelings of inferiority. Education is a fundamental right and liberty interest – providing education is the most important goal of state and local governments.

Front 50

What are the two parts to every segregation case?

Back 50

Brown [I]: is there a substantive violation of Brown v. Board? If yes, then
Brown [II]: what is the appropriate remedy after finding a constitutional violation by segregation?

Front 51

How did Brown II determine remedies for invalid segregation laws?

Back 51

Court gave the federal district courts primary responsibility for supervising desegregation.
These courts were given no precise guidelines, only to use general equitable principles to implement desegregation programs with all deliberate speed.
Furthermore, the school board bears the burden of proving any need for delay.

Front 52

What were the 2 main effects of de jure segregation?

Back 52

1. School boards have to “affirmatively integrate.”
2. District courts can apply remedies in relation to the violation, including use of quotas in limited amounts, one race schools may be permissible, but in limited situations/per state, restructuring attendance zones,
and use of busing (can't limit segregation remedies by “walk to school”).

Front 53

How does the court treat de facto segregation?

Back 53

Districts with de facto segregation also have to affirmatively integrate because race-conscious actions in one part of the city suggest district-wide unlawful segregation.

Front 54

How is de facto segregation different in the Northern states?

Back 54

Factors to establish a violation in Northern contexts:
Examine school district and consider:
1. Before 1954: what was happening in the school district? If schools were segregated by government action then treat like de jure segregation.
2. After 1954: did the school board meet its affirmative duty to desegregate? Did the school board take any more de jure actions? If the school district did not affirmatively integrate it is subject to Swann – type remedies.

Front 55

In addition to the Swann remedies, what other ways does the court remedy de facto segregation?

Back 55

Where integration can’t be accomplished b/c of housing patterns (ex. Detroit is 90% black) then other remedies must make the victims whole (what they would have without segregation, i.e. reading programs, teacher training, small class size, counseling programs).
But, district court can't impose fiscal burdens or heavy taxes on the state and can't order salary increases for teachers.

Front 56

How has the court treated segregation in terms of interracial relationships?

Back 56

Court has invalidated a criminal adultery and fornication statute prohibiting cohabitation by interracial unmarried couples under strict scrutiny, and a ban on interracial marriage because it impinged the fundamental right to marry.
Essentially, nothing can be decided based on race.

Front 57

How does the court generally treat Facially Neutral Laws that may have a Racially Discriminatory Purpose or Effect?

Back 57

If there is discriminatory intent: triggers a suspect class and therefore evokes strict scrutiny.
If there is discriminatory impact: triggers a quasi-suspect class and therefore evokes heightened/intermediate scrutiny.

Front 58

How do we identify Intentional/Purposeful discrimination?

Back 58

Intentional/Purposeful discrimination can be found in three ways:
1. The law discriminates on its face by explicit terms (Korematsu),
2. The law, although facially neutral, is administered in a discriminatory way (Wick Yo),
3. The law, although facially neutral and applied in accordance with its terms, was enacted with a purpose of discrimination shown by the legislative history, the law’s disparate impact (not enough on its own), or other circumstantial evidence of intent (Arlington Heights).

Front 59

How do we treat facially neutral laws with racially discriminatory application?

Back 59

Any facially neutral law that has racially discriminatory application will be held to Strict Scrutiny.
However, the Court has declined to hold discriminatory impact alone enough to show racial discrimination. Showing a racially disproportionate impact is a factor, but it can never by itself be sufficient to prove discriminatory intent and therefore, does not trigger Strict Scrutiny.

Front 60

Although Discrimination and Affirmative Action cases may both use strict scrutiny, what are there respective triggers?

Back 60

Discrimination cases: strict scrutiny is trigger where race is the motivating factor.
Affirmative Action cases: strict scrutiny is trigger where race is the predominant factor.

Front 61

How have the courts treated Affirmative Action in Higher Education?

Back 61

Race-conscious admission measures will receive strict scrutiny, and thus must be narrowly-tailored to achieve a compelling objective.
The pursuit of diversity in the student body can be a compelling objective, if the University uses a one-student-at-a-time evaluation in which the student’s race is merely one factor among various ones considered (this is sufficiently narrowly-tailored).
However, mechanical approaches resembling quotas, are not narrowly-tailored and therefore violate EPC.

Front 62

How have the courts treated Affirmative Action in Public Employment/Contracting?

Back 62

Any governmental action that is explicitly race-based must be “necessary” to achieve a “compelling” governmental interest, i.e. race-based affirmative action plans must be subjected to the same strict scrutiny as governmental actions that intentionally discriminate against racial minorities.

Front 63

What are the 3 reasons why race-conscious Affirmative Action plans in Public Employment/Contracting must be subjected to strict scrutiny?

Back 63

1. No way to tell which affirmative action plans are “benign” or “remedial” and which ones are possibly benign, but in reality motivated by “illegitimate notions of racial inferiority or simple racial politics.”
2. Danger of stigmatic harm in the long run that minorities cannot make it w/o plans.
3. If race-conscious affirmative action plans are not strictly scrutinized, we will never become truly “race-neutral.”

Front 64

What effect did Adarand have on race classification cases?

Back 64

All race classifications (whether benign or hostile, state or federal, white or black) use strict scrutiny to evaluate program and the provisions must be narrowly tailored to the compelling state interest.

Front 65

What 2 interests are compelling regarding Race Preference in K-12 Public Education?

Back 65

1. “remedying past discrimination”
2. “diversity in higher education”

Front 66

What is "racial gerrymandering" and what level scrutiny does it invoke?

Back 66

“Racial gerrymandering” occurs when race is the predominant factor in redrawing districts, and is subject to strict scrutiny.

Front 67

Race-conscious districting is still allowed.
T or F?

Back 67

T.
Race-conscious districting is still allowed, it just cannot be the predominant factor in redistricting.
Court later said that compliance with the Voting Rights Act is a compelling governmental interest and if a few districts are necessarily drawn where the minority is the majority, then this passes muster

Front 68

How does the court treat Gender Discrimination?

Back 68

IS: Gender classifications, whether hostile or benign, "must serve important governmental objectives and must be substantially related to the achievement of those objectives." (i.e. The ends must have actually motivated the government when determining the means.)
Gender-based classifications must not rely on over-broad generalizations about different capabilities or preferences of men and women and may not be used to create or perpetuate the legal, social, and economic inferiority of women.

Front 69

How does the court treat Intent v. Impact in Gender Discrimination?

Back 69

Court will usually find that discrimination has to be intentional.

Front 70

How does the court treat Affirmative Action for Women?

Back 70

The Court seems to invalidate preferences for females that reinforce traditional “archaic or over-broad stereotypes” of fragility or financial dependence on men, but upholds these preferences when they compensate for past disadvantages.

Front 71

Generally, what SoR does Alienage receive? What is the exception?

Back 71

Legal Aliens are a protected FN4 class so they deserve strict scrutiny.
However, if we held every alien classification to strict scrutiny it would obliterate the distinctions between citizen and alien. Therefore, the state can exclude aliens from position of the state functioning as a government entity (but this Government Function exception is narrowly tailored).

Front 72

How does the court treat Disability, Age and Poverty?

Back 72

These all receive RB.
Disability: not a suspect class, but still must be protected from invidious discrimination
Age: Four reasons why age is not a suspect class: 1. There is no history of discrimination based on age, 2. When we get older our disabilities associated with age are not stereotypical but real, 3. Where would you draw the line at discrimination of the elderly, 4. Unlike a racial minority, everyone goes through aging – not politically powerless
Poverty: wealth classifications alone insufficient to trigger strict scrutiny (must be coupled with a burden on a fundamental interest)

Front 73

What SoR is used for Sexual Orientation?

Back 73

Court uses rational basis ("amendment lacks a rational relationship to a legitimate state interest and cannot be explained except for an 'intent to harm the unpopular'”

Front 74

What is the The “Mere Rationality” Test?

Back 74

Where neither a suspect class nor a fundamental right is implicated, the Court will review a classification with extreme deference, and with a heavy presumption of constitutionality.
The statute will not be stricken if it is conceivable that there is a rational relation between the means selected by the legislature and a legitimate legislative objective.

Front 75

What are the differences in goals between SDP v. EP Analysis?

Back 75

Goal of SDP analysis focuses on whether the law furthers the purpose the legislature held it to.
Goal of EP analysis focuses on the reasons for the use of a particular classification; who is covered by the statute, who is not → Equal Protection strives to treat similarly situated people, similarly.

Front 76

For MINIMUM RATIONALITY REVIEW OF ECONOMIC REGULATION, what 3 truths remain good law?

Back 76

1. Under-inclusive statutes are necessarily invalid b/c “It is no requirement of equal protection that all evils of the same genus be eradicated or none at all…” – Court throws out SDP for economic regulations, it is not used in this area.
2. Any plausible purpose offered by counsel or made up by the court claimed to underlie the legislatures action is acceptable.

Front 77

What is the difference between "Old EP" and "New EP"?

Back 77

“Old Equal Protection” focused on the classification.
“New Equal Protection” focuses on which right is being regulated.

Front 78

There is No Fundamental Interest in Food, Shelter, or Education.

T or F?

Back 78

T.
Welfare: Constitution only protects civil rights and liberties, not social or economic/welfare rights, rationality review is appropriate.
Housing: Constitution does not provide remedies for every economic and social ill, the law serves a rational basis of landlord/tenant rights.
Education: No fundamental right to equality in public-education. to determine a fundamental right, the relative social important of an interest is irrelevant, rather, the issue is whether the right is “explicitly or implicitly guaranteed by the constitution.” However, a total denial of education to a class does trigger EP. (Court found “children of illegal aliens” a quasi-suspect class, and education a quasi-fundamental right, so intermediate scrutiny should apply.)

Front 79

What is the State Action Requirement?

Back 79

Nearly all of the rights and liberties which the constitution guarantees to individuals are protected only against interference by government entities.
Therefore, in virtually every litigation in which an individual argues that his constitutional rights have been violated, the court can grant relief only if it finds that there has been state action, i.e. some sort of participation by a government entity sufficient to make the particular constitutional provision applicable.
Obtaining a finding of “state action” is only the first hurdle, then you must show a constitutional violation.

Front 80

3 holdings came out of the Civil Rights cases. Which interpretation of the State Action Requirement survived?

Back 80

The guarantees of equal protection and due process (14A, §1) apply by their own terms solely to state action – i.e. in the absence of Congressional legislation, the courts will not find conduct that is exclusively private to be a violation of these 14th Amendment guarantees.
State Action has to be proved before EP or DP came into play.

Front 81

Regarding the bases for State Action, what is the Public Function doctrine?

Back 81

Public Function Doctrine holds that when a private individual (or group) entrusted by the state with the performance of functions that are governmental in nature, becomes an agent of the state, his acts constitute state action.

Front 82

What are the 3 ways to demonstrate state action?

Back 82

Public function, judicial enforcement and partnership/nexus theory.

Front 83

How has the Public Function doctrine been narrowed?

Back 83

Question is whether the entity exercised power “traditionally and exclusively” reserved to the state (like voting), the fact that the function is important to the public is not enough.

Front 84

A court’s enforcement of certain provisions or actions may not constitute state action.

T or F?

Back 84

F.
But, court involvement does not per se constitute state action.

Front 85

Describe the Nexus/Partnership Theory.

Back 85

If the government is sufficiently involved in the private actor’s conduct or encourages that conduct, or benefits from it, then the private party’s acts will be deemed state action and subject to constitutional review.

Front 86

How has the Nexus/Partnership Theory been narrowed?

Back 86

“The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the 14A.”

Front 87

What are 2 examples of state action?

Back 87

1. When the private party and state official jointly participate in the activity being challenged (creditor and sheriff took action against debtor).
2. When there is adequate “entwinement.” (action of private sports organization was seen as state action b/c of their heavy involvement with public school board and public schools, and the state “formerly recognized” the role played by the private association in the state-organized activity).

Front 88

Does Congress have the Power to Reach Private Conduct under the 14th and 15th Amendments?

Back 88

No. The 14th and 15th Amendments, by their terms, apply only to state interferences, but 14A, §5 and 5A, §2 explicitly grant Congress the power to enforce each of those amendments by appropriate legislation.
The current state of the law is that it is not within Congress’s 14A, §5 power to reach purely private conduct, even if the conduct interferes with rights protected by the 14th Amendment.
Where Congress tries to reach purely private conduct that has nothing to do with state officials, it is now clear that Congress cannot do this under its §5 enforcement powers.

Front 89

Does Congress have the Power to Reach Private Conduct under the 13th Amendment?

Back 89

Yes. The 13th Amendment provides that “neither slavery nor involuntary servitude (except for crimes) shall exist within the United States” and §2 gives Congress the power to “enforce this amendment by appropriate legislation” – b/c the 13A, unlike the 14A and 15A, is not explicitly limited to governmental action, the Amendment has proved to be a useful source of Congressional power to reach certain private conduct. Congress has the power to “rationally determine what are the badges and incidents of slavery.” Furthermore, every form of racial discrimination is a “badge of slavery.”
Therefore, Congress has total deference.

Front 90

Does Congress have the power to enforce Civil Rights under §5 of the 14th Amendment?

Back 90

Yes. Congress has broad Remedial Powers, but may not redefine the scope of Constitutional guarantees. Furthermore, Congress' regulation of the states must be Proportional to the violation.

Front 91

What kinds of explicitly “remedial” actions may Congress take under §5 of the 14th Amendment?

Back 91

Court construed Congress’ remedial power to enforce the 15A broadly, and held that “any rational means” could be used to enforce 15A’s ban on racial discrimination in voting, because it was remedial of past discrimination.
Congressional remedial powers under §2 of 15A permits it to outlaw practices which the Court would not on its own find to violate §1 of 15A, as long as these practices are reasonably closely related (rational basis) to practices that would violate §1.

Front 92

If Congress disagrees with the Supreme Court about the proper scope of the rights guaranteed by the 13th, 14th, or 15th Amendments, may Congress use its remedial powers to change the scope of these guidelines under §5 of the 14th Amendment?

Back 92

Probably not. “Congress has been given the power ‘to enforce,’ not the power to determine what is a constitutional violation.”
Congress’ remedial power must be “congruent and proportional” to the potential state violation before they can use their remedial powers.

Front 93

Under §5 of the 14th Amendment, in what circumstances may Congress stop a state from engaging in conduct that Congress thinks may violate these Amendments?

Back 93

If the statute is a valid exercise of remedial powers, then Congress can subject the state to private damage suits in federal court; however, if the statute goes beyond Congress’ remedial powers and violates the “congruence and proportionality” test then the private suits against the state are not proper and the states have immunity.
Where Congress tries to remedy state discrimination against a non-suspect or non-quasi-suspect class, only the remedy of truly egregious/irrational state action will be found “congruent and proportional.”
Likewise, where Congress remedies state discrimination against a suspect or quasi-suspect class, they have more power under 14A §5 so it is more likely the Court will find their remedy “congruent and proportional.”