Professor Harpaz
Constitutional Law
Spring, 2011

Constitutional Law Review Spring, 2011

Judicial Review

Marbury v. Madison established that the Supreme Court has the power to review the constitutionality of federal laws. This principle of judicial review later was extended to give the federal courts the power to review the constitutionality of state laws as well as federal laws. While Marbury established the Supreme Court's power of judicial review, it is a principle that serves as a backdrop for this course and not one we explored in much detail. Therefore, it will not be tested on the exam.

Challenges to the Scope of Federal Power

The Scope of Congressional Power under Article I, Section 8. In this area, the general question asked is whether Congress has exceeded the boundaries of the affirmative grants of power contained in Article I, Section 8 of the Constitution (Marbury, McCulloch, Gibbons, Wickard, Heart of Atlanta Motel, etc). As early as McCulloch v. Maryland, it was established that Congressional power would be liberally construed. As a general principle, under Article I, Section 8's grants of specific enumerated powers, together with the Necessary and Proper Clause, Congress can choose among all means that are adapted to an enumerated end and is not restricted to absolutely necessary means. The significance of the Necessary and Proper Clause as a source of power has diminished as the Supreme Court has adopted broad interpretations of some of the enumerated powers such as the commerce power. However, members of the Court who view the scope of the Commerce Clause more narrowly, such as only extending to the regulation of interstate commerce itself, may use the Necessary and Proper Clause to permit Congress to regulate local (intrastate) commerce when that local commerce has a substantial economic effect on interstate commerce. That was the approach taken by Justice Scalia in his concurring opinion in Gonzales v. Raich.

On the subject of the enumerated powers under Article I, Section 8, we studied the Commerce Power (extensively) and the Taxing and Spending Powers (briefly).

I. Congressional Power to Regulate Interstate Commerce

Congress has the power to regulate interstate commerce. The source of Congressional power to regulate interstate commerce is the Commerce Clause in Article I, Section 8. This power is viewed as consisting of 3 categories of regulatory authority: (1) the power to regulate the channels of interstate commerce, (2) the power to regulate the instrumentalities of interstate commerce, and (3) the power to regulate local activities that have a substantial economic effect on interstate commerce. While most of the current members of the Supreme Court recognize the commerce power itself as including all three categories, Justices Scalia and Thomas do not. The third Commere Clause category is seen by Justice Scalia as justified by the combination of the Commerce Clause and the Necessary and Proper Clause (a grant of power to Congress to employ all means that are plainly adapted to an enumerated end) and not based on the Commerce Clause alone. Justice Thomas is the only member of the Court who views category 3 legislation as beyond the power of Congress.

A. Category One - Regulation of the Use of the Channels of Interstate Commerce:

1. What is a channel of interstate commerce? These include navigable waterways, airspace, highways, railroad tracks, telephone lines and the internet - these are the conduits through which interstate commerce travels.

2. What does the power to regulate include? Congress’s regulatory power is complete. It can regulate the use of the channels of interstate commerce in any fashion (including prohibiting transportation entirely) and for any purpose. The purpose need not be to protect or stimulate or inhibit the economy, but could be related to morality, health or safety. Congress can use its plenary power to regulate the channels of interstate commerce even if it is doing so to accomplish traditional police power objectives.

3. What are some examples of this use of the commerce power? The Lottery Case where Congress banned the shipment of lottery tickets in interstate commerce, Hammar v. Dagenhart (The Child Labor Case) (reversed in Darby), and Darby (§ 15(a)(1) - the ban on shipping goods not produced in compliance with the FLSA).

B. Category Two - Regulation of the Instrumentalities of Interstate Commerce:

1. What is an instrumentality of interstate commerce? These are means used to transport goods and persons in interstate commerce including railroad cars, buses, trucks, airplanes, and boats (as in Gibbons v. Ogden). The line between a channel and an instrumentality is somewhat unclear, but it has no practical consequence since the Court’s analysis is the same for activities falling within either of the first two categories.

2. What does the power to regulate include? In Lopez, the Court stated that Congress has the power to “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.” Therefore, the power includes the power to regulate the instrumentalities or means of interstate transportation and persons or things in interstate commerce as well as to protect those instrumentalities, persons, or things in interstate commerce against threats to them even if the source of the threat is from intrastate activities. This allows Congress to regulate activities at places such as airports, train stations, and cargo storage areas to protect interstate commerce. Category two can be thought of as incidental to category one since it is designed to protect activities that occur in the channels of interstate commerce from threats even if those threats originate from intrastate activities.

3. What are some examples of this use of the commerce power? One example is the Shreveport Rate Case, where the Court upheld the federal regulation of intrastate rail rates which discriminated against interstate commerce by charging less for longer intrastate railroad journeys than for shorter interstate railroad trips. Another is a federal law that makes it a crime to damage or destroy an airplane employed in interstate or foreign commerce even though the destruction occurs while the plane is stored in an airplane hangar. A third example is a federal law that makes it a crime to damage property that is in the possession of an air carrier, motor carrier, or rail carrier and is awaiting transportation in interstate or foreign commerce.

C. Category Three - Regulation of Local Activities that have a Substantial Economic Effect on Interstate Commerce.

Since United States v. Lopez, this category has been further subdivided into the regulation of local economic (or commercial) activities on the one hand and the regulation of local non-economic (or non-commercial) activities on the other. While this is the first of the four Lopez factors, it is the most important factor because it is used as a threshold inquiry to decide if the Congressional action is going to be reviewed using a highly deferential standard (likely to result in upholding the law) or a less deferential standard (less likely to result in upholding the law).

1. Regulation of Local Economic Activities

a. When Congress regulates an intrastate economic or commercial activity (as in Wickard v. Filburn, Heart of Atlanta and Perez), the test the Court uses is whether Congress could have rationally concluded that the regulated activity has a substantial economic effect on interstate commerce.

b. This test shows great deference to the judgment of Congress, a judgment often, but not necessarily, reflected in Congressional findings, hearings and committee reports.

c. The substantial economic effects required under this test can be found in the aggregate so the question is not whether an individual instance of the regulated activity affects commerce (the wheat grown by farmer Filburn or the guests who want to stay at the Heart of Atlanta Motel), but whether the regulated activity in its entirety (adding together the impact of each individual instance of the regulated activity) has a substantial economic effect on interstate commerce (all the wheat that farmers grow for home consumption or all the travelers who are unable to stay at hotels and motels because such places discriminate based on race).

d. When Congress regulates an interstate economic activity or enterprise under a comprehensive regulatory scheme, it may also regulate the aspects of that activity that are intrastate in character (as in Wickard v. Filburn and Gonzales v. Raich). The intrastate aspect of the activity (even if it is an agricultural product grown for home or personal consumption) may be regulated in order to make the entire regulatory scheme effective. This is true where the characteristics of the product are the same (fungible), whether intended for interstate shipment or local use (like the wheat in Wickard and the marijuana in Raich) and the failure to regulate the local production would, in the view of Congress, leave a significant gap in the regulatory scheme.

e. In a similar fashion to (d) above, Congress may regulate a class of activities if the class as a whole affects interstate commerce even if not all members of the class affect interstate commerce. The “class of activities” rationale was relied on in Perez to regulate extortionate credit transactions and was a source of disagreement between the majority and dissent in Gonzales v. Raich. In Raich, the majority concluded that the class of activities being regulated was the cultivation, possession, and distribution of marijuana, a class of activities that had a substantial economic effect on interstate commerce. Congress could regulate the cultivation and possession of marijuana for medicinal purposes since it was part of the regulated class. The dissent, by contrast, concluded that the cultivation and possession of marijuana for medicinal purposes was a separate class of activities and that this more limited class did not have a substantial economic effect on interstate commerce and, therefore, could not be regulated by Congress.

f. The fact that Congress may have been motivated in whole or in part by a moral objective is not relevant so long as the regulated activity also has a substantial economic effect on interstate commerce (as in the case of the Civil Rights Act of 1964 when Congress outlawed racial discrimination in places of public accommodation both because of the immorality of discrimination and also because the discrimination had a negative economic effect on interstate commerce by discouraging travel by African-Americans).

2. Regulation of Local Non-economic Activities

a. The distinction between economic and commercial activities as contrasted with non-economic and noncommercial activities (factor one) became critically important after the Court’s decision in Lopez. The distinction is evaluated on a case by case basis and the dividing line may be somewhat murky. If the regulated activity involves the production of a good for sale or the sale of a good or service, it will easily be classified as economic activity. If it does not involve a commercial transaction, the Court may be inclined to characterize it as non-economic. The Court characterized possession of a gun in a school zone as non-economic in Lopez and violence against women as non-economic in Morrison. By contrast, growing wheat for home consumption was considered to be an economic activity in Wickard and racial discrimination against travelers by hotels and motels was considered to be an economic activity in Heart of Atlanta Motel. The question of whether the activity regulated is economic or not may depend on the scope of the Congressional regulatory scheme. If the scheme generally regulates a commercial activity, the Court may be willing to characterize all of the applications of the statute as the regulation of commercial activity including those that reach activity, which viewed in isolation, might be considered noncommercial (such as the medicinal marijuana grown for personal consumption in Raich which was regulated as part of a comprehensive regulation of the illegal drug market). Some activities may be difficult to classify as either economic or non-economic. For example, if a regulated activity does not involve an economic exchange (such as a sale of goods), but the motivation for the activity is economic, it is not clear how the activity will be classified. In such cases, the challenger will argue that the regulated activity is non-economic and the federal government will argue that the regulated activity is economic.

b. When Congress regulates an intrastate noncommercial, non-economic activity (as in Lopez and Morrison), the court is less deferential to Congress.

c. When Congress regulates a non-economic, noncommercial local activity the Court will be more likely to uphold the regulation if the statute contains a jurisdictional element (factor two) that requires a connection to interstate commerce be shown in each individual case where the statute is applied (such an element was missing in both Lopez and Morrison). However, there is still uncertainty over what kinds of jurisdictional elements will be viewed as sufficient to tie the regulated activity to interstate commerce. After Lopez, Congress amended the statute struck down in that case to add the requirement that the firearm have “moved in or that otherwise affects interstate commerce.” It is unclear whether this jurisdictional element is sufficient to cure the constitutional defect identified in Lopez.

d. The presence or absence of Congressional findings (factor three) are not determinative (they were present in Morrison, but absent in Lopez), but such findings may help to demonstrate that the local activity being regulated has a substantial economic effect on interstate commerce.

e. The substantial effect on interstate commerce needs to be based on more than a showing of an attenuated connection between the regulated activity and interstate commerce (factor four). The effect needs to be more direct and not based on a long series of links in a chain that eventually connects the regulated activity to interstate commerce. An attenuated connection is likely to be available in most cases including when Congress regulates violent crime (and can show a connection between local crime and an increase in costs and/or a reduction in economic productivity (Morrison)) and education (and can show that poor educational quality leads to a less qualified workforce and less economic productivity (Lopez)). Therefore, the Court views such "limitless" arguments as insufficient because they do not impose any real limits on Congress's power to regulate local non-economic activities.

f. Without a limit on the nature of the connection that must exist between the regulated activity and interstate commerce, Congress would have the equivalent of a federal police power and its power would be virtually unlimited and include areas (education or family relationships, for example) that have traditionally been the province of the states and not the federal government. However, the distinction between activities that have traditionally been the province of the states as contrasted to those that have traditionally been the province of the federal government is far from clear cut. Therefore, this is not one of the specific factors in the Lopez analysis, but only a consideration which may influence the Court’s analysis of the four factors it relies on.

g. In the case of non-economic, violent crime, the Court will not allow Congress to regulate “based solely on that conduct’s aggregate effect on interstate commerce.” Therefore, the federal government must show a connection to interstate commerce in each individual instance of the regulated activity (as it must if the statute contains a jurisdictional element). It is not yet clear whether a similar restriction on the use of aggregation will be applied to Congressional regulation of all non-economic activities even when violent crime is not being regulated and even when the statute does not regulate criminal behavior at all.

II. Taxing Power

The federal government has the power to raise money by taxation and spend that money to advance the general welfare. The power to tax and spend is not a regulatory power. Therefore, the Court wants to make sure that the government is not engaging in regulation through the guise of taxation. The difficulty with drawing a line between taxation and regulation is that taxing measures always have indirect regulatory effects by encouraging or discouraging certain activities. In addition, to implement a tax it is necessary to enact certain incidental regulatory measures to assist in indentifying persons who are subject to the tax and to collect the tax. Therefore, the Court has had difficulty over the years in distinguishing between a tax and a regulation.

In considering the constitutionality of taxing measures, the Supreme Court distinguishes between taxes (which are within the taxing power) and penalties (which are considered to be regulations rather than taxes). If a tax is found to be a penalty, it can only be upheld if the penalty could be justified as a valid regulatory measure. As a regulatory measure, it would be valid if it falls within the scope of some other Congressional power such as the Commerce Power. If it falls within the scope of one of Congress's regulatory powers, it is irrelevant whether it is a tax or a penalty. In distinguishing between a tax and a penalty, the Court will look at whether the so-called tax contains regulatory features and whether those regulatory features have some rational relationship to the collection of the tax. If the regulatory features are related to collecting the tax, the Court will not consider the tax to be a penalty. In addition, the court will not strike down a tax simply because it was motivated by a desire to regulate a particular area or because it raises only a small amount of revenue. These standards defer to Congress's judgment in creating a tax and make it very difficult to successfully challenge a tax just because it has regulatory features.

III. Spending Power

Congress has broad power to spend funds to advance the general welfare. The spending power, however, cannot be used to regulate in an area where Congress has no regulatory power, only to spend in such areas. The scope of the spending power often arises as a constitutional issue when Congress attaches conditions to money that it offers to states and local governments. As long as the entity that is offered the money has the theoretical right to turn down the funds and therefore reject the condition, such conditions are legitimate exercises of the spending power and are not considered unconstitutional regulations if they satisfy a 4 part test from the Court's decision in South Dakota v. Dole:

(1) the exercise of the spending power must be in pursuit of the general welfare (courts generally defer to Congress in defining general welfare);
(2) the condition needs to be unambiguously stated so that the states can make a knowing choice;
(3) there needs to exist some relationship between the condition imposed and the purpose of the federal spending; and
(4) the condition may not induce the states to violate some other provision of the Constitution and, therefore, be independently barred. (Consider this issue by asking whether a state could enact the condition on its own, in the absence of the incentive of a federal spending program, without violating the Constitution.)

In addition, to these four parts of the Dole test, the Court also requires that the financial inducement offered by Congress cannot be so coercive as to go beyond pressure and amount to a compulsion.

Limits on Federal Power

When examining the constitutional limits on federal power, the issue is whether the federal government has acted unconstitutionally by violating one of the limitations the Constitution places on its exercise of its power.

I. State Autonomy or State Sovereignty Limits (confirmed by the Tenth Amendment)

In recent years, after abandoning the National League of Cities approach in Garcia, the Court's state sovereignty/state autonomy focus has shifted to protecting the states from being forced to adopt or administer federal regulatory programs. For example, in Printz v. United States, the Court struck down a provision of the Brady Act which commandeered, without the state’s permission, the services of state law enforcement officers to assist in the administration of a federal regulatory scheme. While the federal government is free to regulate areas falling with the scope of its Article I, Section 8 powers, including to apply those federal laws to the state’s own activities, or to provide incentives to encourage the states to cooperate, it can't force the states to participate in the administration of those laws. Federal programs that require the states to enact legislation, such as in New York v. United States, or require the states to administer and enforce federal regulatory programs, as in Printz, can be successfully challenged under the state autonomy principle confirmed by the Tenth Amendment.

In Reno v. Condon, the Court upheld provisions of the Driver’s Privacy Protection Act which prevented state motor vehicle departments from making available personal information about drivers without their consent. In upholding the provisions, the Court distinguished between federal laws that regulate the state’s own activities (as in Reno v. Condon in which the state was regulated as the owner of a database) and federal laws that require the states to regulate the behavior of their own citizens (as in Printz and New York v. United States). The Court focused on the fact that the federal law in Reno v. Condon did not require the states to legislate or to enforce a federal regulatory scheme.

Beyond the limited examples of federal laws that force the states to either enact legislation or administer a federal regulatory program, the Tenth Amendment has not been a significant source of limits on the power of Congress. When asserted in an effort to prevent the federal government from regulating in areas that have traditionally been regulated by the states, the Court has rejected this argument and described the Tenth Amendment as a tautology, only stating that whatever power has not been granted to the federal government remains with states and not defining the scope of the non-granted power. Further, Tenth Amendment state autonomy arguments have also been rejected when states have argued that the states' own activities cannot be regulated along with their private conterparts. Therefore, Congress is free to regulate the state as an employer, an energy user, a trash disposer, etc. along with private entities that engage in these same activities. The Tenth Amendment does not require, as interpreted in Garcia, that the state be exempt from such federal regulations.

II. Separation of Powers - this subject will not be tested on the exam.

III. Economic Liberty and Property Rights Protected by the Fifth Amendment Due Process Clause

When the Court reviews laws that interfere with economic and property rights protected by the Fifth Amendment Due Process Clause, it uses a very deferential standard of review that presumes that the law being challenged is constitutional. The test is whether the federal action is a rational means to a legitimate end. This standard of review is called minimum scrutiny review or rational basis review or minimum rationality review (more extensive discussion later on when discussing Due Process under the Fourteenth Amendment).

IV. Personal Liberty Rights Protected by the Fifth Amendment Due Process Clause

When the Court reviews laws that interfere with liberty interests protected by the Fifth Amendment Due Process Clause, it first must decide if the liberty interest interfered with is a fundamental right or a nonfundamental right. If fundamental, then a more rigorous or heightened standard of review applies. If nonfundamental, then minimum scrutiny review applies (more extensive discussion later on when discussing Due Process under the Fourteenth Amendment).

V. Equal Protection

Even though the Fifth Amendment does not contain an express provision guaranteeing equal protection of the law, the Court has interpreted the Fifth Amendment Due Process Clause as protecting equal protection as well as due process. When a federal law is challenged as a violation of equal protection it is challenged relying on the equal protection component of the Fifth Amendment Due Process Clause. When the Court reviews laws that interfere with the right to equal protection guaranteed by the equal protection component of the Fifth Amendment Due Process Clause, it first must examine the nature of the classification scheme and identify the trait that is the basis for the classification. If the class that is being discriminated against is a suspect class, such as race, then the Court will apply strict scrutiny review. If the class is a quasi-suspect class, such as gender, the Court will apply intermediate scrutiny review. If the class is nonsuspect, the Court will apply minimum rationality review (more extensive discussion of equal protection later on when discussing the Fourteenth Amendment’s Equal Protection Clause).

Challenges to State Action

I. Preemption

In a preemption challenge, the challenger is claiming that a state law is unconstitutional because it has been preempted by a valid federal law. Under this analysis, the state law violates the Supremacy Clause of Article VI because the federal government has enacted a law that prohibits the state from acting in a particular way and the state law being challenged is one in which the state is acting in the prohibited manner. To successfully assert a claim of preemption, the challenger must show:

A. that the federal government has enacted a valid federal law (the law is a constitutional exercise of Congressional regulatory power such as the power granted by the Commerce Clause) and that the federal law either:

B. expressly preempts the state law because it contains explicit preemptive language (see D below); or

C. impliedly preempts the state law because Congress intended to preempt the state law and the Congressional intent can be implied based on conflict preemption (see E below) or field preemption (see F below).

D. To demonstrate express preemption (see B above), you must show that there is language in the federal statute that expressly states that the federal law preempts certain types of state legislation. Even if the statute contains express preemptive language, there may still be an issue as to the scope of the preemptive effect under that statutory language because it is hard to draft preemption language that removes all ambiguities as to the scope of the intended preemption. In addition to expressly stating an intent to preempt, Congress can also expressly state that it does not intend to preempt certain types of state legislation (express nonpreemption). Just as in the case of express preemption, there can be an issue as to the intended scope of the nonpreemptive language.

E. To demonstrate (implied) conflict preemption (see C above), the challenger must show either:

(1) that the state law is in conflict with the federal law because it is physically impossible to comply with both at the same time; or

(2) that the state law is in conflict with the federal law because it interferes with the objectives of the federal law or is an obstacle to the accomplishment of the federal purpose. To decide whether this type of implied preemption exists, you need to review the statutory language in the federal law and/or its legislative history to determine what the purpose of the federal law is, and then ask whether the operation of the state law interferes with accomplishing the objectives of the federal law.

F. To demonstrate (implied) field preemption (see C above), the challenger must show that the federal government has fully occupied the field it has chosen to regulate (as in the field of the safety of nuclear power plants). In field preemption cases, there does not need to be any conflict between the state and federal law. The state law may even further the same purpose as the federal law. Nevertheless, there may be preemption if the federal regulatory scheme is sufficiently comprehensive to make reasonable the inference that Congress left no room for supplemental state regulation. 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 (as in the areas of immigration or foreign affairs). If the area regulated by Congress is an area that has traditionally been regulated by the states (as in the area of regulating electrical utilities), the Court will be less likely to presume that Congress intended to occupy the field. In cases in which a field preemption argument is made, there may also be an argument over how broad or narrow the preempted field is and whether the state law falls within the scope of the field preemption. This argument can be seen in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n.

G. The state can defend its state law against a preemption challenge in a variety of ways. It can argue that (1) the federal law is beyond the power of Congress, (2) the federal law does not expressly preempt state law, (3) the federal law expressly authorizes the states to continue to regulate in the area, and (4) the federal law does not impliedly prempt the state law because it is possible to comply with both state and federal law at the same time, the state law does not interfere with the achievement of the federal purpose, and the federal law does not fully occupy the field the state is regulating.

H. On the exam, preemption issues are usually obvious because an exam question raising a preemption issue must describe both a state law that is being challenged and a federal law or regulation that regulates an identical or at least a similar area to that of the state law.

II. Dormant Commerce Clause

In challenging a law because it violates the dormant Commerce Clause, the challenger argues that while the federal government has been silent in the area (meaning that the state law or municipal ordinance is not preempted by federal law), the state law (or municipal ordinance) places an unreasonable burden on out-of-state or interstate commerce and therefore violates the Commerce Clause. These cases are analyzed in two different ways depending on the type of burden placed on interstate commerce. Laws that discriminate against out-of-state commerce on their face or in their effect are subject to very rigorous review whereas laws that burden interstate commerce in a nondiscriminatory way are subject to a balancing test often referred to as the Pike balancing test from the case of Pike v. Bruce Church, Inc. The very rigorous or strict test requires that the government prove that the law serves a legitimate local purpose and that the purpose cannot be adequately served by reasonable nondiscriminatory alternative means (often discribed by the Court as a standard of virtual per se invalidity). Under the less strict balancing test, the Court weighs the burdens on interstate commerce as against the local benefits. Each state or local law that burdens out-of-state commerce in a significant way is reviewed under one of the two tests. In choosing between the two tests, the challenger is always trying to argue, if at all possible, that the strict test applies, but must be prepared to argue, in the alternative, that the law is unconstitutional even if the balancing test applies. By contrast, the government is always trying to argue that the balancing test applies, but must be prepared to argue, in the alternative, that the law is constitutional even if the strict test applies.

A. Discrimination Against Interstate Commerce. Two forms of discrimination justify the application of the strict test: (1) if the state or local law discriminates against out-of-state commerce on its face (such as by expressly favoring local businesses as in Dean Milk and C & A Carbone, Inc. v. Clarkstown or hoarding resources for local residents as in Hughes v. Oklahoma and Philadelphia v. New Jersey), or (2) if the state or local law, while not discriminatory on its face, nevertheless has a discriminatory effect on out-of-state commerce as demonstrated by extrinsic evidence (as in Hunt v. Washington State Apple Advertising Commission and Bacchus Imports, LTD. v. Dias). If either of these two types of discrimination exists, the presumption of validity normally afforded to such laws disappears, and the burden of proof shifts to the state or locality to demonstrate that it has a legitimate objective and that it cannot accomplish that objective by any less burdensome alternative means. Under this test, an economic protectionist purpose (to benefit local business at the expense of out-of-state business) is not a legitimate objective. In addition, under this strict test, means that discriminate against interstate commerce may only be used if there are no other means available to achieve the government's purpose. (Dean Milk v. Madison - alternative means existed; Maine v. Taylor - alternatives means did not exist). While laws that discriminate against interstate commerce on their face are usually easy to identify, laws that discriminate against interstate commerce in their effect are harder to identify. In such cases, the challenger will argue that the discriminatory effect is sufficient to justify applying the strict test and the government will argue that the discriminatory effect is insufficient to justify applying the strict test so that the less strict balancing test should apply.

In a recent case, United Haulers Ass’n v. Oneida-Herkimer Solid Waste Management Authority, the Court clarified the meaning of laws that discriminate against interstate commerce. It said that such a law must favor in-state private businesses to qualify as a law that discriminates against interstate commerce. It made this point in upholding a law that favored a government entity performing a traditional government activity, waste processing, and discriminated against all in-state private waste processors as well as all out-of-state waste processors. Because the only discrimination was in favor of a government entity, the Court applied the Pike balancing test applicable to laws that burden interstate commerce, but do not discriminate against such commerce.

B. Balancing Test. Even if the state or local law does not discriminate against out-of-state commerce, it can be challenged under the dormant Commerce Clause if it imposes a significant burden on interstate commerce. In evaluating the constitutionality of such a law, the Court will apply a balancing test: “Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” This test is called the Pike balancing test because it derives from the case of Pike v. Bruce Church, Inc. Under this balancing test, a presumption of validity attaches to the state statute (or municipal ordinance). It will be upheld even though it burdens interstate commerce so long as the burden it imposes is not excessive in relation to its value as a health, safety, environmental protection or consumer protection measure. To win, the challenger must show the law burdens interstate commerce in a significant way and the benefits of the law are not sufficient to outweigh the burdens. For examples of this balancing approach see Bibb v. Navajo Freight Lines, Inc. and Kassel v. Consolidated Freightways Corp.

C. Economic Protectionism. If the state or local law is designed to achieve some economic benefit for the state or locality in the form of hoarding resources or avoiding economic burdens, the purpose of the law will be viewed as economic protectionism and this purpose is illegitimate under the dormant Commerce Clause. Typically, a law that is aimed at achieving the goal of economic protectionism will discriminate against out-of-state commerce on its face or in its effect. If the law discriminates against out-of-state commerce, a state or local purpose designed to achieve economic protectionism will not satisfy the strict test employed to evaluate such discriminatory laws because the law will lack a legitimate objective. In the rare case that the law is nondiscriminatory, a state or local purpose that is designed to hoard resources or avoid economic burdens rather than sharing them with other states will not be sufficiently weighty under the balancing test used in such cases and will not outweigh a substantial burden imposed on interstate commerce. Cases in which laws are struck down under the dormant Commerce Clause because they were found to be motivated by nothing more than economic protectionism include Bacchus Imports, LTD. v. Dias (state law was discriminatory in its effect and lacked a legitimate local purpose) and South-Central Timber v. Wunnicke (state law was discriminatory on its face and lacked a legitimate local purpose). Frequently, it will not be clear if the purpose of the law is the illegitimate one of economic protectionism or some other legitimate purpose. In such cases, the challenger will argue, based on the available evidence, that the law is designed to accomplish the illegitimate objective of economic protectionism and the government will argue, based on the available evidence, that the law is designed to accomplish a legitimate objective. Since neither party can be certain a court will agree with its argument, both parties must be prepared to try and argue in the alternative with the challenger trying to argue, if possible, that the law is unconstitutional even if it has a legitimate purpose and the government trying to argue, if possible, that the law is constitutional even if it has an illegitimate purpose (only possible if the government can rely on the market participant exception described in D. below).

D. Market Participant Exception. There is also one additional argument seen in dormant Commerce Clause cases. It is not an additional test, but is, instead, a defense that may be available to a state or locality in a limited number of cases when the challenger argues that the state or local law violates the dormant Commerce Clause. Relying on the market participant exception, the government may defend itself by arguing that it is permitted to engage in protectionist behavior or discriminate against out-of-state commerce because it is acting as a market participant by directly engaging in commercial activities rather than by regulating the activities of private participants in the market. This exception permits a state or locality to discriminate against out-of-state commerce when it acts as a market participant, but not when it acts as a market regulator (South-Central Timber v. Wunnicke). The market participant defense is not limitless and it may not be available if the state is controlling access to a natural resource, if the state is controlling a market in which it is not a direct participant (downstream activity), or if the state is interfering with international commerce. All three of these factors were present in Wunnicke and the Court, therefore, rejected the state's effort to defend its action based on the market participant exception to the dormant Commerce Clause and found instead that the law was invalid as a protectionist measure.

E. I want to add a word or two about the relationship between a preemption argument and a dormant Commerce Clause argument. In cases where there is no federal law on the subject, obviously there is no preemption argument, but there could be a dormant Commerce Clause argument. Where there is a federal statute on point, there may be a preemption argument and there could also, in the alternative, be a dormant Commerce Clause claim if interstate commerce is discriminated against or unduly burdened by the state law being challenged. In making this claim, the challenger is assuming that the preemption challenge could fail, and is presenting the court with an alternative ground of decision in its favor.

III. Privileges and Immunities Clause of Article IV, Section 2.

To show that a state law (or a municipal ordinance) violates the Privileges and Immunities Clause of Article IV, Section 2, the challenger first must satisfy three preliminary hurdles:

A. The state law or municipal ordinance must treat differently citizens (residents) and noncitizens (nonresidents) of the state and discriminate against noncitizens (nonresidents); and

B. The state law or municipal ordinance must be challenged by a flesh and blood nonresident of the state rather than a corporation or other artificial entity; and

C. The discrimination must adversely affect a privilege or immunity of state citizenship. The question is whether the activity the nonresident is seeking to engage in is one that is a basic right or essential activity and is, therefore, "fundamental to the promotion of interstate harmony." Access to private employment opportunities have been found to be fundamental or essential activities protected by Article IV, Section 2 as has the right of a nonresident to purchase property within the state. However, both the right to obtain government employment and the right to gain access to recreational activities on the same terms as residents have been found not to be activities protected by the Clause.

D. If a court concludes that the challenger has satisfied the three preliminary hurdles (A, B, and C above), the burden shifts to the government to satisfy a two part test:

1. Does the state or locality have a substantial reason for treating nonresidents differently? (are nonresidents a peculiar source of the evil); and

2. Does the degree of discrimination against nonresidents bear a substantial relation to the state or local government's objective? This includes a consideration of the availability of less restrictive means (Supreme Court of New Hampshire v. Piper).

E. In this analysis, unlike under the dormant Commerce Clause, there is no exception when the state is acting as a market participant (United Building & Construction Trades Council v. Mayor and Council of Camden).

Because of the differences between the dormant Commerce Clause and the Privileges and Immunities Clause of Article IV, it is possible for a law to be constitutional under the dormant Commerce Clause (immunized by the market participant exception, for example), but unconstitutional under the Privileges and Immunities Clause (no market participant exception). The opposite result can also occur. A law can be successfully challenged under the dormant Commerce Clause (the law discriminates against out-of-state commerce and there are nondiscriminatory alternatives available), but unsuccessfully challenged under the Privileges and Immunities Clause (the challenger is a corporation or the degree of discrimination bears a substantial relation to the objective even though there are nondiscriminatory alternatives available).

IV. Economic Liberty and Property Rights Protected by the Fourteenth Amendment Due Process

The Due Process Clause of the Fourteenth Amendment is used to challenge state and local laws that infringe economic liberty and property rights, including the right to employment and liberty of contract, protected by the Fourteenth Amendment Due Process Clause. Since such economic liberty and property rights are nonfundamental, such a challenge is reviewed using minimum scrutiny review, also called rational basis review and minimum rationality review. To satisfy this test, the challenged law must employ a means that is rationally related to a legitimate state end. State ends may also be referred to as state interests, objectives or justifications. In some cases, the challenger may be able to argue that the right infringed is a fundamental personal liberty right subject to strict scrutiny review (see V. below) while the government argues that the right infringed is an economic or property right that should be analyzed using minimum scrutiny review.

V. Personal Liberty Rights Protected by the Fourteenth Amendment

The Due Process Clause of the Fourteenth Amendment is used to challenge state and local laws that interfere with personal liberty rights. Such personal rights may receive only minimum protection because they are nonfundamental or be viewed as fundamental and receive the benefits of more rigorous or heightened review. Rigorous review includes several standards of review that impose a greater level of justification on the state than under the minimum scrutiny test. Standards of rigorous or heightened review include strict scrutiny review, the undue burden test, and intermediate scrutiny review.

A. Fundamental vs. Nonfundamental Rights. Among the nonfundamental personal liberty rights are rights such as the right to drink and take drugs. Among the fundamental rights are: (1) rights specifically enumerated in the Bill of Rights like freedom of speech (which will not be on the exam) and the right to bear arms (which will not be on the exam); and (2) nonenumerated fundamental privacy rights such as the right to choose whether or not to bear a child (Griswold v. Connecticut, Roe v. Wade, and Planned Parenthood v. Casey), the right of an extended family to live together (Moore v. City of East Cleveland), the right to marry (Loving v. Virginia and Zablocki v. Redhail), and the right to decide how to raise one’s children (Troxel v. Granville).

B. Minimum Scrutiny Test. The test used to review the constitutionality of laws which interfere with nonfundamental personal liberty rights is the minimum scrutiny test (also called rational basis or minimum rationality review), the same test used to examine the constitutionality of laws that interfere with economic liberty and property rights. Under that test, the means must be rationally related to a legitimate state end. In some cases, the nature of the right may be subject to argument and the challenger may be able to argue that the right infringed is a fundamental personal liberty right subject to strict scrutiny review (see E. below) while the government argues that the right infringed is a nonfundamental personal liberty right that should be analyzed using minimum scrutiny review.

C. Strict Scrutiny Test. The traditional test used to review intrusions on fundamental privacy rights is strict scrutiny review as seen in Griswold. Under this test, the government must show that it is employing a narrowly tailored means to accomplish a compelling end. A means is not narrowly tailored under this test if there are less restrictive alternative means available. In its early strict scrutiny cases, the Supreme Court described the test as requiring “necessary means.” While the Court now typically refers to narrowly tailored means instead of necessary means, both formulations of the test are acceptable since the substance of the test has not changed. Under both formulations, the means must be the least restrictive means available. In applying the strict scrutiny test in Roe, the Court characterized the state’s interest in promoting the potential life of the fetus as compelling only after the fetus becomes viable. By contrast, the state’s interest in maternal health became compelling only after the first trimester. This trimester approach was rejected in Casey and these governmental interests are now viewed as compelling throughout the pregnancy.

The strict scrutiny test presumes that the law being challenged is unconstitutional and places the burden on the government to overcome that presumption by proving that it is seeking to accomplish a compelling governmental objective by narrowly tailored means. A central aspect of this analysis is the government’s demonstration that there are no alternative means available that would be equally effective in achieving the government’s objective while at the same time infringing less on the fundamental right. The challenger will seek to prevent the government from convincing the court that it can make this necessary showing by suggesting less restrictive, but equally effective alternative means the government could employ to achieve its compelling objective.

D. Undue Burden Test. Since Casey, the right to choose whether to terminate a pregnancy is reviewed using the undue burden test. Using this test, even though the right is fundamental, it is unconstitutionally infringed only when the state imposes an undue burden on the exercise of the right to terminate a pregnancy. Another way of looking at the undue burden test is that it recognizes that not all regulations of a fundamental right need to be subjected to strict scrutiny review. Under this view, the undue burden test performs a sorting function. It divides regulations of the fundamental right to terminate a pregnancy into two categories: (1) regulations that are relatively minor intrusions on the right, those that do not impose an undue burden on the exercise of the right, are subjected to minimum rationality review to evaluate their constitutionality; and (2) regulations that impose substantial obstacles on the exercise of the right, those that do impose undue burdens on the right, are subjected to strict scrutiny review to evaluate their constitutionality.

When using the undue burden test, it operates, in effect, as a threshold inquiry to determine the appropriate level of scrutiny. In applying the undue burden test in Casey, the Court found the spousal notification provision to be an undue burden because it placed a substantial obstacle in the path of a woman who wanted to terminate her pregnancy (withstanding a threat to her physical safety) and therefore struck down the requirement. By contrast, the Court found that the 24 hour waiting period requirement was not an undue burden (because it only imposed economic burdens) and therefore upheld that provision of the law. In applying the undue burden test, any complete deprivation of the right (like a state law forbidding abortion) obviously amounts to an undue burden on the exercise of the fundamental right. A more complex issue arises only when the state imposes obstacles in the path of exercising the right, but those obstacles fall short of a complete deprivation. In such cases, it will be necessary for courts to determine if the obstacles rise to the level of an undue burden or not. In Casey, the Court stated: “An undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” In applying this test, the Court will uphold laws that are designed to promote the state’s interest in potential life by attempting to persuade women to choose childbirth over abortion so long as the laws do not create an undue burden on the exercise of the right. However, a law that has the purpose of hindering the woman's decision to terminate her pregnancy (as opposed to informing or persuading the woman) imposes an undue burden.

The undue burden test is applied by focusing on the group that is the most adversely impacted by the law rather than those who the law regulates, but does not adversely impact. For example, in Casey, the Court focused on poor women and women who would have difficulty explaining their absence from home in deciding whether the 24 hour waiting period imposed an undue burden, ultimately concluding that it did not. Moreover, the spousal notification requirement in Casey was found to be an undue burden by examining its impact on women who were victims of spousal abuse rather than women who voluntarily told their spouses about their pregnancy. This same approach was applied in the two challenges to partial birth abortion bans the Court has considered, but with conflicting results. In Stenberg v. Carhart, the Nebraska ban was struck down because it would be an undue burden on women whose life and health would be put at risk by the unavailability of the partial birth abortion procedure. By contrast, in Gonzales v. Carhart, the federal ban on partial birth abortion was upheld by finding that it was insufficiently clear in the context of a facial attack on the statute that the law would impose an undue burden on the health of any particular group of women, but the Court preserved the possibility of future as-applied challenges by women with particular health conditions who might be able to show that the unavailability of the procedure was an undue burden as to them because it created a substantial risk to their health.

One question that arises is whether the undue burden test should be applied to other fundamental rights or whether it is exclusively used in cases involving abortion. In many cases involving interferences with an aspect of the fundamental right of privacy, the issue need not be resolved. This is because the law imposes a complete ban on the exercise of the right and, therefore, there is no dispute about whether it imposes an undue burden. However, in some cases involving less than total restrictions on the exercise of a fundamental right, the Court has suggested the test might be appropriate. This is particularly true in some cases involving the right to marry. In some right to marry cases, the Court has suggested a distinction between minor intrusions on the right to marry, such as waiting periods and blood tests, which do not impose undue burdens on the exercise of the right to marry, and more major intrusions. In the case of lesser intrusions, laws not creating an undue burden, the means must only be reasonable. By contrast, in the case of more major intrusions on the exercise of the right to marry, such as not allowing someone to marry as in Loving and Zablocki, the law must satisfy rigorous review because the state law imposes a substantial obstacle on the exercise of the right to marry.

It is impossible to know how widely the Court will employ the undue burden test as compared to the traditional strict scrutiny test in future fundamental right cases. Thus far it seems to have been motivated to use the undue burden test in Casey by the difficult balance between the rights of the fetus and the rights of the woman and motivated in the marriage cases by the desire to avoid invalidating myriad state regulations of the marriage relationship that impose minor barriers on the exercise of the right. In analogous situations, the Court could decide to use the undue burden test as well to screen out lesser intrusions on the exercise of a fundamental right while preserving the strict scrutiny test for substantial intrusions.

E. Distinguishing Between Fundamental and Nonfundamental Rights. In deciding whether a right is or is not a fundamental privacy right under the Due Process Clause, the Court uses several different approaches:

(1) Reasoning by Analogy. Here the Court compares the right at issue to rights already declared to be fundamental privacy rights (the right to choose whether or not to bear a child, the right of an extended family to live together, the right to marry, and the right to decide how to raise one’s children) as well as those declared to be nonfundamental liberty rights (the right of an adulterous father to visitation rights with his biological child, the right of a group of unrelated persons to live together, and the right of grandparents to visitation rights with their grandchild over the objections of the child's custodial parent) and decides which analogy is more convincing. The Court used this approach in Bowers v. Hardwick to find the right at issue to be nonfundamental.

(2) History and Tradition. The Court also looks to history and tradition to see if a right is deeply rooted in the fabric of American society. We first saw this approach in Griswold. In considering tradition, issues arise as to how broadly or narrowly tradition is to be interpreted. This argument was at the core of the disagreement between Justices Scalia and Brennan in the Michael H. case. Recently, in Lawrence v. Texas, a majority of the Court downplayed the importance of history and tradition in overturning Bowers v. Hardwick. It is difficult to make extensive arguments based on history and tradition in the exam context because you are usually not provided with specific historical materials to support such arguments. You can, however, make use of general arguments about history and tradition based on general knowledge.

(3) Personal Identity. As a third approach to deciding whether a right is a fundamental privacy right, the Court also looks at whether the activity at issue is central to personal identity. This approach was used in Casey, for example. In that case, the Joint Opinion stated: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” This approach was also used in Lawrence v. Texas.

E. Application of the Appropriate Test. It is essential not only to identify the appropriate test, but also to apply the facts provided to that test. If the right is nonfundamental, then review using minimum scrutiny to make sure the state has chosen a rational means to a legitimate end. In this review, the court is not bound by evidence of the actual legislative purpose, but may consider hypothetical purposes that might support the law.

If the right is fundamental, then review under strict scrutiny to make sure that the state has chosen a narrowly tailored means to achieve a compelling state interest. In this review, make sure to consider if there are any less restrictive alternative means available to the government to achieve its compelling ends. In strict scrutiny analysis, the ends have to be the actual objectives of the law.

As an alternative, if the case seems like one where the undue burden test might apply because the intrusion on the fundamental right is minor, not cutting off the ability to exercise the fundamental right entirely, you should also consider applying the undue burden test.

If there is any doubt about the character of the right at stake, and whether it is fundamental or not, be sure and present alternative arguments on the application of the standard of review, if such arguments are at all feasible. This means the challenger will argue the law is unconstitutional under the strict scrutiny test (applying the facts to the test), but will also argue, in the alternative, that the law is unconstitutional under the minimum scrutiny test (applying the facts to the test). It also means the government will argue the law is constitutional under the minimum scrutiny test (applying the facts to the test), but will also argue, in the alternative, that the law is constitutional under the strict scrutiny test (applying the facts to the test). In other words, the challenger will argue that the law fails both tests while the government argues that the law satisfies both tests.

VI. Equal Protection Clause of the Fourteenth Amendment

Three standards of review are used in Equal Protection analysis:

A. Minimum Scrutiny Test (or Rational Basis or Minimal Rationality Review). This standard of review is used to examine laws that discriminate against nonsuspect classes including economic classifications as well as classifications based on age, wealth, and mental disability. The standard of review requires that the use of the classification be rationally related to a legitimate government justification. Equal protection analysis is comparative, focusing on whether there is a rational reason for the difference in treatment between those the law applies to and those it doesn’t apply to in light of the purpose of the law. In applying this low level of scrutiny, a court can hypothesize about the reason for the use of the classification rather than limit its consideration to actual reasons for the use of the classification scheme. Under the minimum scrutiny standard, to win the challenger must show either:

1. There is no legitimate purpose for the law. This was part of the Court's reasoning in U.S. Department of Agriculture v. Moreno, for example, where the Court found that one purpose of the law was the desire to harm a politically unpopular group. The Court concluded that such a purpose was illegitimate under the Equal Protection Clause (see also Romer v. Evans for a similar conclusion); or

2. The classification scheme does not rely on a difference that is relevant to the state’s purpose so that the classification is not rationally related to the state’s objective. In Moreno, for example, the law relied on the difference between households of related persons and households with at least one unrelated person, but that difference was not rationally related to the government’s objectives of encouraging the purchase of agricultural products or encouraging good nutrition. In the Court's view, the use of the classification actually undermined those purposes.

B. Intermediate Scrutiny Test. Under intermediate scrutiny, used to review laws that utilize classifications based on gender and other semi-suspect classifications, the standard of review requires that the use of the classification be substantially related to an important governmental justification. Under this form of rigorous scrutiny, the burden of proof is on the government to show both an important objective and that the use of the classification is substantially related to that objective (Craig v. Boren). In describing the burden on the government to justify classifications based on gender, the Court in United States v. Virginia used the phrase "exceedingly persuasive justification" to describe the required showing that the government must make. In this analysis, the challenger can present less discriminatory alternatives to the Court and argue that the use of the classification is not substantially related to an important objective because the government does not have to use the challenged classification to achieve its objective since, for example, gender neutral means are available. The government can defend by showing that the less discriminatory alternatives would be less effective or that the use of the classification is substantially related to its important objective even though there is not a perfect fit between the classification and the important objective. The challenger can also argue that the state’s objective is not important because it would reinforce archaic stereotypes or overbroad generalizations about the proper roles of men and women or because it seeks to achieve an objective (such as administrative convenience) that is not sufficiently weighty and the government can defend by arguing that its objective is important because, for example, its objective is to help and not harm women. In the gender discrimination cases, the Court is more sympathetic to different treatment rooted in biological differences rather than socially constructed differences, although sometimes it is hard to distinguish between these two sources of difference.

C. Strict Scrutiny Test. Under strict scrutiny review, used to review laws that utilize classifications based on race or ethnicity and other suspect classifications, the standard of review is whether the use of the classification is narrowly tailored to achieve a compelling government objective. In these cases, the government sometimes lacks a compelling objective and may even lack a legitimate one (as in Loving v. Virginia where the objective was to maintain white supremacy). In addition, even if the government has a compelling interest, it cannot use a suspect classification if there are any other means available to the government to achieve its compelling objective. Therefore, when the government employs a racial classification, it must prove that no race neutral means would achieve its objective and that no less discriminatory race-conscious solution is available either.

D. Identifying the Nature of the Classification. Under equal protection analysis, the most critical factor is the nature of the classification because it controls the choice of the standard of review. You should start by identifying the classification - what groups are treated differently under the law - with one group winning and the other group losing in that it is receiving worse or disadvantageous treatment. You then need to identify the basis for the difference in treatment - what trait distinguishes the winners from the losers? That is the trait that serves as the basis for the classification scheme.

Once you identify the basis for the classification, you must figure out whether the group discriminated against is a suspect class, a semi-suspect class or a nonsuspect class. You then need to apply the appropriate level of scrutiny to evaluate the constitutionality of the law. If the classification singles out a trait, like race, which the Supreme Court has already found to be suspect, you should apply strict scrutiny without any need to argue that the classification should be subject to strict scrutiny because racial classifications have characteristics that merit suspect class treatment. Since the Court has already established that race is a suspect class, there is no need to make such an argument. In the same way, you need not establish that gender is a quasi-suspect class or age is a nonsuspect class. However, if the classification at issue does not obviously, based on precedent read during the semester, belong in one of the three groups, but appears at first glance to have some similarities to classifications such as race or gender that have been considered suspect or semi-suspect, you should evaluate the characteristics of the classification to determine its constitutional status. This requires that you evaluate the status of the class for equal protection purposes using the 5 characteristics that the Court has used to determine if a classification is suspect, semi-suspect or nonsuspect. These characteristics were employed by the Court in deciding whether gender classifications would be treated as suspect or not:

(1) has the group singled out suffered from a history of discrimination;
(2) is the trait shared by the group one over which its members have no control, an immutable or unalterable characteristic;
(3) does the trait generally bear no relationship to a person's ability to contribute to society;
(4) is the trait often singled out to reinforce prejudice against the group or label the group as inferior; and
(5) is the group politically powerless by its numbers in the population, by under-representation in government, or by its inability to influence the legislative agenda.

Groups that share some, but not all, of these characteristics may be semi-suspect (like gender) and discrimination against them may merit intermediate scrutiny review. Realistically, semi-suspect status is the most a challenger can hope to achieve out of this analysis since the Court has shown itself to be unwilling to add to the category of fully suspect classes. In cases where the challenger argues that a class is quasi-suspect, but cannot know that the argument will succeed, the challenger will attempt to argue that the law is unconstitutional under both intermediate scrutiny and minimum scrutiny. Similarly, in cases where the government argues that a class is nonsuspect, but cannot know that the argument will succeed, the government will attempt to argue that the law is consitutional under both minimum scrutiny and intermediate scrutiny.

E. Purposeful Discrimination. The Equal Protection Clause is only violated by purposeful discrimination. This is usually obvious because (1) the discrimination is apparent on the face of the statute (Loving) or (2) the discrimination is admitted by the government official whose action is being challenged (Palmore v. Sidoti). However, in cases where the challenger asserts that the invidious discrimination is covert, the challenger must introduce evidence to show a discriminatory purpose. Such evidence can take the form of, for example, statistical proof that the law is being applied in a racially discriminatory way even though it is neutral on its face (Yick Wo); statistical evidence that a facially neutral law has a disproportionate impact on members of a particular race or gender (Washington v. Davis); evidence of irregularities in substance or procedure; or statements by some of the decisionmakers. The government can introduce evidence to overcome the prima facie case established by the challenger by showing an absence of a discriminatory purpose (Washington v. Davis) or by showing that the government would have made the same decision in the absence of a discriminatory purpose.

On the exam, most equal protection questions will involve overt discrimination (the classification is apparent on the face of the statute) where there is no need to introduce evidence of purposeful discrimination. If there is an issue about covert discrimination, you will be given some facts about the administration of the statute, arguably showing disproportionate impact, or facts about the legislative history of the statute, arguably suggesting some purpose other than the admitted purpose for the law such as a statement by the law's proponent that suggests racial bias.

F. Benign Discrimination or Affirmative Action. While invidious discrimination is the first concern of the Equal Protection Clause, benign discrimination is also actionable. In cases of benign gender or racial discrimination or affirmative action, the Court applies the same standard of review (strict scrutiny for race and intermediate scrutiny for gender) it would use to evaluate cases of invidious discrimination.

1. In applying the intermediate scrutiny test to gender discrimination the government contends is benign, the Court will make sure that the actual purpose and effect of the law is to help and not hurt women, that the law does not reinforce archaic stereotypes (Mississippi University for Women v. Hogan), and that the important purpose cannot be achieved by means that do not employ a gender classification such as individualized review rather than class-based generalizations.

2. In applying the strict scrutiny test to racial discrimination the government contends is benign, the following general statements can be made:
(1) The Court finds few ends to be compelling. Among the few recognized compelling objectives are remedying past invidious discrimination by the specific government entity engaging in the affirmative action and a college or university seeking to achieve diversity in its student body (Grutter);
(2) An admitted discriminator (e.g., a state school that previously refused to admit minority students or a government employer who in the past has refused to hire minority employees) will have considerably more latitude to remedy its own past discrimination than a government entity that has no such history of discrimination;
(3) Racial quotas are rarely if ever an acceptable means; and
(4) While other less drastic race-conscious remedies may be necessary (such as race as a plus on the scales), before upholding such a measure, the court will require the government to consider available race neutral means and find that race neutral means will not be as effective in achieving the government’s compelling purpose.
(5) Even if the government demonstrates that it is necessary that it use race-conscious means to achieve its compelling purpose, it will be required to use the most narrowly tailored (least discriminatory) race-conscious means available to achieve its purpose. In Grutter, the Court accepted Michigan’s argument that no race neutral means would achieve the university’s educational objective. While the Court upheld the use of race in the University of Michigan’s Law School application process, it found unconstitutional the undergraduate admissions process in Gratz. The Court concluded that the holistic approach used by the Law School, where race was one factor among many weighed in assessing student diversity and diversity was one factor among many factors used to decide whether to admit a particular applicant, was constitutionally acceptable as the most narrowly tailored (least discriminatory) race conscious means available because the admissions process only considered race as one factor among many and did not assign a specific number of points to that factor. By contrast, it struck down the undergraduate admissions system where being a member of a historically under-represented race was worth 20 points without regard to the individual circumstances of particular applicants. The undergraduate point system was viewed as closer to the quota system struck down in Bakke.