CONSTITUTIONAL LAW – CONGRESS RULES

FEDERAL LEGISLATIVE POWER

It must (1) first be determined if Congress has authority under the Constitution to legislate. If so, (2) then
we must determine whether the law violates another constitutional provision such as infringement on state
sovereignty. (Separation of powers or interfering with individual liberties) McCulloch v. Maryland

Commerce Clause1
Article I Section 8, clause 3 gives Congress the power to regulate commerce with foreign nations, among
the several States, and with the Indian tribes. The Necessary and Proper Clause gives Congress powers
to make laws, which shall be necessary and proper for executing the Commerce Clause. In Lopez the
Supreme Court gave three broad categories in which Congress may regulate under its commerce power:
the channels of interstate commerce; the instrumentalities, persons or things that are related to interstate
commerce; and where the activities have a substantial relation to interstate commerce. Congress’s actions
must always be reasonable. (Pierce County)

Channels
A channel is anything upon which or through which interstate commerce is conducted and thus facilitates
commerce. National roadway = channel, shippingmisuse, shipment of stolen goods, or kidnapping…

Instrumentality
Instrumentalities are things and or people that are related to interstate commerce that help facilitate or
conduct interstate commerce. Motels on roadways are instrumentalities; Internet = C and I

Activities
Finally, congress can regulate activities that have a substantial effect on interstate commerce. When
determining whether the activity has a substantial affect and is not attenuated to interstate commerce,
courts look at three considerations. The court looks to see (1) If the act is economic in nature, (2) if there is
a jurisdictional element that explains how and why the activity is connected to interstate commerce, and
(3) legislative findings to determine why Congress has tried to legislate in this area. All three of these
determinations must be found with rational basis.

Cases that exemplify the Lopez factors:

 US v. Morrison  Violence against Women’s Act. The case fell under activity and there
were Congressional findings, but it was non-economic and did not have a jurisdictional
element. It violated the Tenth Amendment because it tried to appropriate state police
powers.

Economic affect
Economic activity involves trade- usually goods or services for money or something of value.

Non-economic
If the activity is not per se economic, under Wickard, the activity may become economic if the aggregate
effect will have a substantial effect on interstate commerce. “. His contribution taken together with that of
many others similarly situated creates an effect on interstate commerce.” Morrison significantly limited the
scope of Congress’s commerce power by holding that in regulating noneconomic activities; substantial
effect cannot be based on cumulative impact.

Cases that exemplify economic effect:

 Lopez (no firearms at school – no economic effect)
 Wickard v. Filburn (wheat case – aggregate effect)

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Look for regulating of individuals or businesses. Not state officials
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  Raich (weed – aggregate effect)
 Heart of Atlanta (hotel who wouldn’t allow blacks)
 Katzenbach (restaurant who wouldn’t dine in blacks)
 Perez (criminal case of loan sharking)
 US v. Morrison

Jurisdictional Nexus
A jurisdictional nexus is simply a phrase that rationally connects the regulated activity to interstate
commerce. Such a jurisdictional element may establish the enactment is in pursuance of Congress’s
regulation of interstate commerce if the nexus has a rational basis (Morrison). “We are regulating under
the Commerce Clause” (Note still need to determine Congress’s word under a rational basis test)

Legislative Findings
To determine if Congress’s enactment has support through legislative findings, the court looks at whether
there are any findings from which Congress could have rationally found that the regulated activity
substantially effects interstate commerce.

Activities that are intrastate

Although activities may be intrastate when separately considered, if the acts directly burden or obstruct
interstate or foreign commerce, or the free flow of commerce, Congress has the power to exercise control
under the commerce clause. It is not about what happened or one act, but how that one instance is related
to the final product being shipped interstate (NLRB)

THE TENTH AMENDMENT

It must be determined whether the federal law is unconstitutional violating the Tenth Amendment. The
constitution provides “The powers not delegated to the US by the Constitution, nor prohibited by it to the
States, are reserved to the states respectively or to the people. To preserve state sovereignty courts have
held that Congress may only regulate individuals not states unless provided in the Constitution. Further,
Congress is not authorized to compel, coerce, or commandeer the State to enact or administer a federal
regulatory program.

Commandeering occurs only when congress directs the manner in which states regulate private parties,
and not when Congress applies a general regulation to both states and private parties alike.
 Forcing someone to regulate their citizens (state regulation)
 Enacting laws
 State enforcement of federal statutes

Congress’ control over State and Local Governments

Congress may not directly compel the states to enact, or enforce, a federal regulatory program, b/c it is a
violation of the Tenth Amendment for Congress to impose affirmative duties on state governments. [New
York, Printz] But, Congress may single out the states for regulation when the states are acting as market
participants; prohibit state governments from engaging in harmful conduct, particularly if law applies to
private entities as well. [Reno]

THE TAXING AND SPENDING POWER

Under Article 1 Section 8 Congress has the power to tax and spend and provide for the general welfare
and defense of the United States. The power to tax need not be enumerated in the constitution as long as
it provides for the general welfare. Congress can attach conditions on federal funds granted to states
under its spending power if the condition is in pursuit of the general welfare, the condition is unambiguous
so that the state knows the consequence of receiving federal funds, and the conditions on the grant must
be related to the federal interest. South Dakota v. Dole

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EXECUTIVE POWER
Article 2 Section 1, provides that the Executive Power shall be vested in the President. This provision
confers broad authority in the President to execute the laws of the US.

Executive Privilege
Under executive privilege, the President has an absolute privilege to refuse to disclose information relating
to a claim of a need to protect military, diplomatic, or sensitive national security secrets. The executory
privilege does not apply to claims that conflict with the functions of the courts in criminal cases under
Article III. In criminal cases, the court must balance the President’s interest in keeping the information
confidential with the impairment on the administration of justice.

Administrative Agencies
Administrative Agencies have powers from all the branches of the government and have been held to
have the full force and effect of law. The Non-Delegation Doctrine does not allow Congress to delegate its
legislative powers to the agency, but only to instruct the agency on what basis to regulate. Congress must
lay down, by legislative act, an intelligible principle to guide the agency in the exercise of the
instructions. The Administrative Agency is not permitted to act outside of these instructions.
(Applies to administrative and the president)

Overturning decision by an Administrative Agency

If Congress wants to overturn an action of an administrative agency, they can do so through legislative
actions. Legislative actions have the purpose and effect of altering the legal rights, duties, and relations of
persons outside of the Legislative branch. If Congress’s action is deemed to be a legislative action, there
must be bicameralism, passage by both houses of Congress, and presentment, giving the bill to the
president for signature or veto as required by Article I of the Constitution. Anything less is a legislative
veto, and legislative vetoes are unconstitutional. Chadha

There are only four circumstances where Congress can act without the President: Initiation of
impeachment by House; Trial of the impeachment by Senate; Senate ratifying treaties; and Senate
approves Presidential appointments. Chadha

Appointment and Removal Power

Article 2 Section 2, gives the President the power, with the advice and consent of the Senate, to nominate
and appoint principle officers of the US whose appointments are not otherwise provided for in the
constitution. This appointment power is not in the Constitution, but inherent through the separation of
powers. The Presidents, the heads of the departments, and the judiciary, can appoint inferior officers as
they think proper. To determine if an appointee is an inferior officer the court looks at four factors: (1)
whether the appointee was subject to removal by a high executive branch official; (2) whether the
appointee is empowered by the Act to perform only certain limited duties; (3) whether the appointee’s
office is limited in jurisdiction; and (4) whether appointee’s office is limited in tenure.

The law now stands, the president has the power to remove executive officials, but Congress may limit the
removal power if it is an office where independence from the president would be desirable. Congress
cannot, however, completely prohibit all removal, and it cannot give the removal power to itself. Nor can
Congress prescribe a double layer of protection from presidential removal whereby “inferior officers” may
be removed only for just case by “officers” who may be removed by the President only for just cause

The Removal Power

The President’s power to nominate comes with the President’s power to remove. The President can
remove an executive appointee without cause. However, to remove independent agencies’ executives
with fixed terms the President must have good cause. Without good cause it undercuts the expertise of the
agency since they are supposed to be quasi-judicial and quasi-legislative in nature. Nor can Congress
give itself the sole power to remove an executive official or structure removal so that there is a double
layer of insulation form presidential removal.

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Suing the President
Whether the President is currently or was formerly the President of the US, the president is entitled to
absolute immunity from damages liability predicated on his official acts. This immunity does not apply to
future Presidents.

PRESIDENTIAL POWER AND THE WAR ON TERRORISM

The tragic events of September 11, 2001, have led to new controversies over the scope of presidential
power.

War Power
Article 2 Section 2 provides the President is the Commander in Chief of the military. Under this power, the
president has the power to detain a citizen of the US as an enemy combatant. However, the court held in
Hamdi v. Rumsfeld, a citizen-detainee seeking to challenge his classification as an enemy combatant
must receive notice of the factual basis for his classification, and a fair opportunity to rebut the
Government factual assertions before a neutral decision maker.

MILITARY TRIBUNALS
Another major issue concerning the war on terrorism concerns the legality of using military tribunals. On
November 13, 2001, President Bush issued an Executive Order providing for military tribunals to try non-
American citizens accused of participating in or assisting terrorism. The Department of Defense has
issued regulations for conducting such proceedings.

As Commander in Chief of the Military, the President has the power to subject unlawful combatants acting
against the law of war to Military Tribunals. A citizen detainee seeking to challenge his classification as an
enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to
rebut the Government’s factual assertions before a neutral decision maker. These essential constitutional
promises may not be eroded.

What does the Supremacy Clause mean? (not really necessary, but should know for policy)
“Under the Supremacy Clause, from which our preemption doctrine is derived, ‘any state law, however
clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must
yield.’” The Supreme Court has remarked as to there being no rule for deciding whether a state or local
law should be invalidated as saying there is not “an infallible constitutional test or an exclusive
constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly market formula.”

Preemption of State law

Article VI’s Supremacy Clause of the Constitution provides that the Constitution and laws and treaties
made pursuant to it are the supreme law of the land. Under this clause, States cannot act inconsistently
with the purpose of Congress, conflict or interfere with, curtail, or complement the federal law, or enforce
additional or auxiliary regulations. If there is a conflict between state and federal law, the federal law
controls and the state law is invalidated because federal law is supreme and thus preempts state law.
There are two types of preemption express preemption and implied preemption.

Express Preemption
Express preemption occurs when the federal statute explicitly states, in the language, or implicitly contains
in its structure and purpose, that it preempts any state law.

What is the Scope of Preemption?

The Scope of Preemption is rarely clear. The problem is that even when an express preemption clause
exists, it rarely provides guidance as to the scope of preemption. Thus, we must look to see if there was a
clear congressional manifestation of intent…

Implied Preemption

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Even when there is no express preemption the federal law may implicitly preempt the state regulation.
There are three types of implied preemption: (1) conflicts preemption, (2) preemption when the state law
impedes a federal objective and (3) field preemption.

(1) Conflicts Preemption

Conflict preemption occurs when there is a conflict between federal and state law such that “compliance
with both federal and state regulations is a physical impossibility. In this situation, the state law is deemed
preempted.

The difficulty often lies in determining whether the laws actually conflict. It depends entirely on the intent
of the federal government. If the federal government made the express decision to do something, then a
stricter state regulation is in conflict with the federal law. But if the federal government was just setting the
minimum standard, the floor of regulation, then a stricter state law is not in conflict with the federal law and
would not be preempted. (FL Avocados)
(2) Preemption when impeding a federal objective
Implied preemption will also be found if state law impedes the achievement of a federal objective. Even if
federal and state laws are not mutually exclusive and even if there is no congressional expression of a
desire to preempt state law, preemption will be found if state law “stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.” Essentially, the state and
federal laws are not regulating the same thing, yet the state law obstructs the federal government’s
objective and the state law will be deemed preempted.

(3) Field Preemption

Field preemption occurs where a federal law wholly occupies a field such that the scheme of federal law
and regulation is “so pervasive as to make reasonable the inference that Congress left no room for the
States to supplement it.” Even though federal law does not expressly preempt state law, preemption will
be found if there is a clear congressional intent to have a federal law occupy a particular field or area of
law. When the Court is uncertain as to whether Congress intended to preempt the field, it will look at the
nature of the regulated area. If the area regulated by Congress is an area in which the federal interest is
dominant, the Court will be more inclined to presume that Congress intended to occupy the field.

Dormant Commerce Clause - This is the dormant, or “negative,” commerce clause

The dormant commerce clause is the principle that state and local laws are unconstitutional if they place
an undue and excessive burden on interstate commerce. There is no constitutional provision that
expressly declares that states may not burden interstate commerce. Rather, the Supreme Court has
inferred this from the grant of power to Congress in Article I, §8 of the Constitution, to regulate commerce
among the states. Additionally, although Congress’s power to regulate commerce under the commerce
clause is nonexclusive, the state’s power to regulate interstate commerce is restricted by the negative
implications of the commerce clause. Essentially the dormant commerce clause provides that even absent
federal legislation, state laws that discriminate against interstate commerce may be invalid. As Justice
Frankfurter proclaimed, “The doctrine is that the commerce clause, by its own force and w/out national
legislation, puts it into the power of the Court to place limits on state authority.” The commerce clause thus
has two distinct functions: (1) an authorization for congressional actions, and (2) in limiting state and local
regulation.

When a law is challenged under the dormant Commerce Clause, the Court determines its constitutionality
by examining its discriminatory effects. The Court is primarily concerned with whether a law in one state
discriminates against out-of-Staters. First the court will determine if the law is discriminatory on its face,
facially neutral, or if the law is non-discriminatory. The court then applies the appropriate standard based
on the classification to determine if the law is constitutional.

DISCRIMINATORY LAWS

Does the law discriminate against out of staters?

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There is a strong presumption against discriminatory laws that burden interstate commerce. A state or
local law that discriminates against out-of-staters will be upheld only if it is proved that the law is
necessary to achieve an important government purpose. The purpose must be of the type that cannot
be served as well with nondiscriminatory means. (Safety v. economics) The Court has declared that a
discriminatory law “invokes the strictest scrutiny of any purported legitimate local purpose and of the
absence of nondiscriminatory alternatives.” Also, “State laws that discriminate against interstate
commerce face ‘a virtually per se rule of invalidity.”

Discriminatory on its Face

If a law expressly discriminates between in staters and out of staters, the law is per se invalid. In order for
the law to be upheld, the court reviews the law with the strictest scrutiny. Under this level of scrutiny, the
law is never upheld.

Facially Neutral
If the law is facially neutral it can still be found to be discriminatory if it has a discriminatory purpose OR
discriminatory effect. There is a strong presumption of invalidating the law. However the law will be upheld
if there is a legitimate local interest and the interest cannot be served as well by non-discriminatory
alternatives.

The Court is more likely to find discrimination if it believes that a law is motivated by a protectionist
purpose, helping in-staters at the expense of out-of-staters. The Court often has said the central purpose
of the dormant commerce clause is to prevent such protectionist legislation.

Non-Discriminatory Laws - THE Pike v. Bruch Church BALANCING TEST

If the court decides a particular law is not discriminatory against out-of-staters, that is, it treats in-staters
and out-of-staters the same, then a simple balancing test is used: The court balances the law’s burdens
on interstate commerce against its benefits. There is a presumption in favor of upholding the law,
however the law will be found unconstitutional if the court decides that the burdens from the law exceed its
benefits. (Legitimate local interests) Also, the court looks to see if other alternatives will work just as well.

Exceptions to the Dormant Commerce Clause

There are two exceptions where laws that otherwise would violate the dormant commerce clause will be
allowed. One exception is if Congress approves the state law. Even a clearly unconstitutional,
discriminatory state law will be allowed if approved by Congress because Congress has plenary power to
regulate commerce among the states. The second exception is termed the “market participant
exception”: A state may favor its own citizens in receiving benefits from government programs or in
dealing with government-owned businesses.

(1) Congress approved the legislation

The Supreme Court consistently has held that the Constitution empowers Congress to regulate commerce
among the states and that therefore state laws burdening commerce are permissible, even when they
otherwise would violate the dormant commerce clause, if they have been approved by Congress. Thus, if
congress has approved of the legislation, then the law does not violate the dormant commerce clause
even if the law is discriminatory. The idea behind the dormant commerce clause is that it regulates when
congress has not. If Congress has given the states permission, then the dormant commerce clause is not
violated.

What if Congress has acted?

Of course, if Congress has acted, the commerce clause no longer is dormant. The issue would be whether
the federal law is a constitutional exercise of the commerce power; if so, the law must be followed even if it
means upholding laws that otherwise would violate the Constitution. If the Court deems a matter to violate
the dormant commerce clause, Congress can respond by enacting a law approving the action, thereby

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effectively overruling the Supreme Court. However, although the law will not violate the dormant
commerce clause, it still can be challenged under other constitutional provisions.

(2) Market Participation Exception

Under the Market participation exception, if the state acts like a business or company and not a state or
regulator, then the law does not violate the dormant commerce clause. Thus, the market participant
exception makes it constitutional for the state to favor its citizens over citizens from other states. There are
limits to the market participant doctrine however where the state may not impose conditions, whether by
statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market.

Limitations on the Market Participant Exception

The Court has imposed one important limit on the scope of the market participant exception: State
businesses may favor in-state purchasers, but they may not attach conditions to a sale that discriminate
against interstate commerce.

The Privileges and Immunities Clause

The Supreme Court has interpreted Article IV §2, Privileges and Immunities Clause as limiting the ability of
a state to discriminate against out of staters with regard to fundamental rights and important economic
activities. Fundamental rights are the rights of the citizen to the enjoyment of life and liberty, the right to
acquire and possess property of every kind, and to obtain happiness and safety, and are all
constitutionally guaranteed rights. Important economic activities refer to discrimination regarding ability
to earn a livelihood. To determine if a statute violates the privileges and immunities clause, courts first look
at whether the law discriminates against out of staters. The court then looks at whether there is a
substantial reason for the discrimination.

Does the law discriminate against out of staters?

Do economic right/fundamental right analysis here.

The Court has found a violation of the privileges and immunities clause if a state excludes out-of-staters
from practicing a trade or profession, or charges a discriminatory licensing fee, or mandates that a
preference be given to in-staters for employment. Even if a state is not excluding out-of-staters, it is
denying a privilege and immunity of citizenship if it charges out-of-staters more for a licensing fee than it
charges in-staters.

Was there a substantial reason for the discrimination?

Talk about the nexus
 Dormant Clause/Privileges Differences
o PIC  only if discriminating against out of staters
 Dormant  as long as there is a burden on interstate commerce regardless of out
staters or not
o Dormant  Corporations and aliens can sue under Dormant
 PIC  cannot sue – only citizens
o Dormant has two exceptions (Congress and Market Participant)
 PIC  These do not apply

Additionally, there is no clear or comprehensive definition of “privileges and immunities.” The clause is
used to prevent states from discriminating against out-of-staters with regard to activities that are deemed
“fundamental.” These activities include, but are not necessarily limited to, constitutional rights and the
ability to earn a livelihood. But recreational activities, like elk hunting, do not fit within this clause.

Conclusion
A state may discriminate against out-of-staters with regard to “privileges and immunities” only if the
discrimination is “substantially related” to a “substantial state interest.” B/c the Court uses least restrictive
alternative analysis under the privileges and immunities clause, it appears the discrimination must be

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proved necessary to achieve a substantial government interest. Thus far, the Supreme Court has not
found any law that meets this rigorous test.

THE STRUCTURE OF THE CONSTITUTION’S PROTECTION OF INDIVIDUAL LIBERTIES

The text of the Constitution contains few provisions concerning individual liberties. In part, this was
because the framers thought that an enumeration of rights was unnecessary in that they had created a
government with limited powers and thus without the authority to violate basic liberties. In part, too, the
framers were concerned that the enumeration of some rights in the text of the Constitution inevitably would
be incomplete and thus would deny protection to those not listed. The Ninth Amendment was added to
address this latter concern and provides: “The enumeration of the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.” Today, in one sense, the selective
incorporationists prevailed in this debate; as the Supreme Court has never endorsed the total
incorporationist approach. However, from a practical perspective, the total incorporationists largely
succeeded in their objective b/c, one by one, the Supreme Court found almost all of the provisions to be
incorporated. There are still four provisions of the Bill of Rights that never have been incorporated and do
not apply to state and local governments.

The Content of Incorporated Rights

The Bill of Rights was meant to apply only to the federal government. However, throughout time, the BOR
has been applied to state governments through incorporation of the due process clause of the 14th
Amendment. The Due Process Clause protects fundamental rights with state and local interference.
Among what is protected are those protections of the BOR that are deemed fundamental. From a practical
perspective, except for the requirements of a 12-person jury and a unanimous verdict, the Bill of Rights
provisions that have been incorporated apply to the states exactly as they apply to the federal
government. This might be criticized on federalism rounds as unduly limiting the states. But rights such as
freedom of speech are fundamental liberties and there is no reason why their content should vary
depending on the level of government.

THE STATE ACTION DOCTRINE:

The Civil Rights Cases

In 1879, not long after the ratification of the Fourteenth Amendment, the Supreme Court declared that,
“the provisions of the Fourteenth Amendment…all have reference to State action exclusively, and not to
any action of private individuals.

The Requirement for State Action

The Constitution’s protection of individual liberties and its requirement for equal protection only apply to
the government. Private conduct generally does not have to comply with the Constitution. There are two
exceptions to this rule: the public function and the entanglement exception.

The Public Function Exception

The Public Function exception is an exception to the state action doctrine. A private entity must comply
with the Constitution under the public function exception because of their significant relationship with the
government or because they perform a task traditionally, exclusively done by the government. The more
an owner for his advantage opens up his property for use by the public in general, the more do his rights
become circumscribed by the statutory and constitutional rights of those who use it.

Rationale for the Public Function Exception

The public function exception serves important purposes. The government should not be able to avoid
Constitution by delegating tasks to private actor. Also, there are some acts that seem inherently
governmental in nature; private entity performing them should also be limited by the Constitution. There
are three major areas where the Court has considered the public function exception: the management of
private property, the control of the electoral process, and the running or regulating of schools.

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Private Property Used for Public Purposes
Where the prominent character and purpose of the property is municipal and serves only one purpose, it is
state activity indicating that the State must comply with the Constitution.

Election Cases
Another example of the public function exception is the White primary Cases, where the
Supreme Court ruled that holding an election for government office is a public function that must meet the
constitutional requirement for equal protection.

Entanglement Exception
Under the entanglement exception, if the government affirmatively authorizes, encourages, or facilitates
private conduct, it is state action and violates the Constitution. This exception is often seen in judicial and
law enforcement actions and when the government licenses or regulates activities. .

Judicial and law enforcement

A state may act through different agencies, either through the legislative, executive, or judicial authorities,
and the prohibitions of Amendments extend to all state action.

Government Regulations
When a State leases public property in the manner and for the purpose of public use, the 14th
Amendment must be complied with by the lessee as though they were binding covenants.
The State must have significant involvement with discrimination for it to fall within constitutional violation.

Economic Liberties
Economic liberties generally refer to constitutional rights concerning the ability to enter into and enforce
contracts; to pursue a trade or profession; and to acquire, possess, and convey property. Courts generally
use the Due Process Clause of the 14th Amendment to protect economic liberties. The Court has made it
clear that economic regulations – laws regulating business and employment practices – will be reviewed
under the rational basis test and upheld when challenged under the due process clause so long as they
are rationally related to serve a legitimate government purpose.

A primary impetus for the Constitution was a desire to protect property and wealth – there is no doubt the
framers intended to protect economic rights.

In fact, it does not need to be proved that the asserted purpose was the legislature’s actual objective. Any
conceivable purpose is sufficient. The law only need seem a reasonable way of attaining the end; it does
not need to be narrowly tailored to achieving the goal.

Equal Protection
The Fourteenth Amendment provides that “no state shall deny to any person within its jurisdiction the
equal protections of the laws.” The Fourteenth Amendment is limited to state action. However, there are
essentially two types of equal protection guarantees as discrimination by the federal government also
violates the Due Process Clause of the Fifth Amendment. Equal Protection prevents unreasonable
discrimination based on the use of classifications. When the Supreme Court reviews cases regarding
Equal Protection, it determines the specific class being regulated and applies a corresponding level of
scrutiny. It then analyzes if the means used fits the government’s interest.

Facially discriminatory v. Facially neutral

There are 2 ways of proving discrimination amongst this classification. One is where the law is facially
discriminatory. The other is where the law is facially neutral.

Facially Discriminatory
When the law is discriminatory on its face, the law in its very terms draws a distinction among people
based on race, national origin, or alienage.
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Facially Neutral
When the law is facially neutral, it is not draw a distinction among people by its terms, but has a
discriminatory effect. If a law is facially neutral, a classification can be proven by demonstrating that the
law has a discriminatory purpose and a discriminatory impact.

Discriminatory Purpose
A discriminatory purpose is present when a decision maker selects or reaffirms a particular course of
action, at least in part, because of, not in spite of its adverse effects upon an identifiable group. Courts will
consider several factors in making this determination: the impact of the official action; whether the
defendant is departing from normal procedure; the historical background of the decision; and the
legislative and administrative history.

The Impact of the Official Action

Courts look at whether the decision bears more heavily on one race than another. Sometimes a clear
pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when
the governing legislation appears neutral on its face.

Departures from Normal Procedure

Add rule

Historical Background
The specific sequence of events leading up to the challenged decision will shed light on the decision
maker’s decision.

The legislative or administrative history

Courts consider the legislative or administrative especially when there are contemporary statements by
members of the decision-making body, minutes of the meetings, or reports.

Discriminatory Effect
Courts have held discriminatory purpose is not enough and requires a discriminatory impact. A
discriminatory impact occurs when it effect one classification of people differently than another.

Strict Scrutiny Analysis

What is the classification being regulated?

To determine which scrutiny the court will apply, the court must first ascertain what class of people the law
is attempting to regulate. If the classification is based on a highly suspect class, which includes race,
national origin, or alienage, the proper level of scrutiny is strict scrutiny.

Alienage
If the classification is about what citizens can get versus about what non-citizens can get the court reviews
the case with strict scrutiny.

Alienage Classifications Related to Self-Government and Democratic Process

If the classification regarding aliens relates to the formulation, execution, or review of public policy and
distinguishes citizens from aliens, then the rational basis test is used. Courts use a case-by-case
analysis to determine if the position involves discretionary decision-making or execution of policy, which
substantially affects members of the political community.

Congressionally Approved Discrimination

The federal government’s unrestricted power to control immigration requires judicial deference and
therefore only rational basis review is used if Congress has created the alienage classification or if it
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results from a presidential order. Essentially the trend is, if the state pass the law the court applies strict
scrutiny. If the federal government passes the law, then the court applies.

Undocumented Aliens and Equal Protection

The Supreme Court has drawn a distinction between aliens who are legally in the US and aliens who are
illegally in the US. While illegal aliens are still entitled to Equal Protection, they are not entitled to the same
protection as illegal aliens. Under Plyler, a classification based on an undocumented alien child must be
rationally related to further a substantial state goal. This appears to be a more stringent searching
standard than the commonly applied rational basis test. What type of rational basis test is applied may
be dependent upon the type of person affected.

Strict Scrutiny Review

Since it has been determined the regulated class is one of a highly suspect class and the law is facially
discriminatory/facially neutral, the court must apply the strict scrutiny. Under the Doctrine of Strict Scrutiny,
the law must be necessary to achieve a compelling governmental interest and the goal must be narrowly
tailored.

The likelihood of success is fatal

Governmental Interest
The burden is on the government to show the law is necessary to achieve a compelling governmental
interest. There must be a strong basis in evidence to prove the compelling interest.

Means/Fit
The law must be narrowly tailored and the goal must not be able to be achieved with a less discriminatory
alternative. A law is narrowly tailored when there is little or no possibility the motive for the classification
was illegitimate or from a stereotype. If it is remedial legislation, the law will be upheld only if members of
the classification actually suffer a disadvantage related to the classification.

Intermediate Scrutiny analysis →

What is the classification being regulated?

To determine which scrutiny the court will apply, the court must first ascertain what class of people the law
is attempting to regulate.

If the classification is based on a quasi-suspect class, the proper standard of review is intermediate
scrutiny. Classifications based on gender and non-marital children are traditionally subject to intermediate
scrutiny. Classifications relating to gender are subject to heightened scrutiny because of the long history of
discrimination, because gender is an immutable characteristic, and women are underrepresented in the
political process.

The court has not yet decided on the proper scrutiny to be used, courts look at whether the classification is
based on immutable characteristic; the degree of prejudice, if any, on the class; whether the class is
politically powerless; whether the class requires special protection; and whether the class is part of a
discrete or insular minority.

Intermediate Scrutiny
Under the intermediate scrutiny test, the government carries the burden of proving an exceedingly
persuasive justification under an important governmental interest.

The likelihood of success is somewhere in between fatal and deferential

Means/Fit

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Under intermediate scrutiny, the means fit must be substantially related to an important governmental
interest. If the reasons given by the state are close enough to fit the government’s interest, the law will be
upheld. Underinclusive and overinclusive legislation is allowed if this is the only problem with the law. If it
is remedial legislation, the will be upheld only if members of the gender benefited by the classification
actually suffer a disadvantage related to the classification.

Determining Intermediate v. Rational Basis

If the classification is based on quasi-suspect class such as gender and non-marital children, the
appropriate level of scrutiny is intermediate. Courts use four factors to determine if a classification is quasi
suspect or subject to rational basis: whether the classification is based on immutable characteristic; the
degree of prejudice, if any, on the class; whether the class is politically powerless; whether the class
requires special protection; and whether the class is part of a discrete or insular minority. If the
classification does not fit into a class in which courts have applied strict scrutiny or intermediate scrutiny,
courts apply the rationale basis test.

 Immutability – “born that way”

 Degree of prejudice – past discrimination
 Politically powerless – as a group do they have access to the government
 Requires special protection – are there laws being made for this specific class
 Discrete and insular – must be easily identifiable, i.e. women, sexual orientation

Rational Basis analysis →

What is the classification being regulated?

To determine which scrutiny the court will apply, the court must first ascertain what class of people the law
is attempting to regulate.

If the classification does not fit into any of the suspect classifications, then courts apply the rationale basis
test. (Other rational basis classifications: Age, Disability, Wealth, Sexual Orientation)

Rational Basis Review

Under the rational basis test, the government’s interest must be legitimate and the regulation must
reasonably relate to that interest.

The likelihood of success is high

Government’s Interest
The governmental interest must be legitimate. The court grants great deference to states in determining
what interests are legitimate. Under rational basis, the actual purpose behind the law is if any state of facts
reasonably may be conceived to justify its discrimination.

Means/Fit
The burden on is on the challenger to show the law is not rationally related to a legitimate governmental
interest. Whether the law is underinclusive or overinclusive does not fail rationale basis. However, the law
cannot be arbitrary or unreasonable.

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