Outline Con Law - Constitutional Law I

Constitutional Law

1. FRAMEWORK FOR ANALYSIS

   1. (1) Is there an affirmative authority in the Constitution for the actions taken?

   2. (2) Are there any applicable limits in the Constitution for the actions at issue?

2. Tools for Constitutional Interpretation (See Printz - pg. 693)

   1. (1) Constitutional Text

   2. (2) History

   3. (3) Structure of the Constitution

   4. (4) Prior Jurisprudence of the Court

3. Same-Sex Marriage Cases

   1. Perry

      1. Standing

         1. "Whether petitioners have standing under Article III, § 2 of the Constitution in this case."

            • LOOK AR BOWLING v. SHARPE

      2. On the Merits

         1. Whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from retracting state constitutional law that had allowed same-sex couples to marry.

   2. Windsor

      1. Article III Questions

         1. (1) First, "[w]hether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case."

            • Article III of the United States Constitution requires that any appeal present a justiciable "case" or "controversy." See Art. III, § 2.

            • "To enforce [the 'cases or controversies'] limitation, we demand that litigants demonstrate a 'personal stake' in the suit. The party invoking the Court’s authority has such a stake when three conditions are satisfied: The petitioner must show that he has 'suffered an injury in fact' that is caused by 'the conduct complained of' and that 'will be redressed by a favorable decision.' And the opposing party also must have an ongoing interest in the dispute, so that the case features 'that concrete adverseness which sharpens the presentation of issues.' To ensure a case remains 'fit for federal-court adjudication,' the parties must have the necessary stake not only at the outset of litigation, but throughout its course. Camreta v. Greene

              • With respect to a party's standing to appeal, the petitioner must merely show that the "injury in fact" suffered by the petitioner was caused by the judgement of the court below.

            • 28 U.S.C. § 2414 provides that payment of a final judgment against the United States rendered by a federal district court "shall be made on settlements by the Secretary of the Treasury," and that "[w]henever the Attorney General determines that no appeal shall be taken from a judgment or that no further review will be sought from a decision affirming the same, he shall so certify and the judgment shall be deemed final." Thus, the U.S.’s own appeal, and subsequent petition for certiorari, prevents the judgment from becoming final until the case is resolved.

              • Therefore, there is still a case or controversy to resolve.

            • Windsor shares important characteristics with Lovett and Chadha. As in Chadha, the United States and the plaintiff agree that the injunction in the plaintiff’s favor (here, for reimbursement of estate taxes paid) is the proper disposition. And the Court’s resolution of the question of DOMA’s constitutionality will determine whether the U.S. actually makes such a payment: If the Court affirms the court of appeals, the U.S. will pay Windsor; but if it reverses (i.e., holds that DOMA Section 3 is constitutional), the U.S. will not reimburse her. If that is sufficient for Article III jurisdiction even before there are any adverse parties in the case requesting the opposite outcome (as the Court held was the case in the court of appeals in Chadha), that should settle the "case or controversy" question here.

              • And if, in the case of the statutory question in Chadha, the government’s 'status as an aggrieved party . . . [wa]s not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional,' 462 U.S. at 931, it is not obvious why the conclusion would be any different for purposes of Article III.

              • In I.N.S. v. Chadha, this Court determined that the government's "status as an aggrieved party under [8 U.S.C.] § 1252 [wa]s not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional." Although Chadha involved whether the party was aggrieved for purposes of the statute (repealed in 1988), we see no principled reason why the conclusion would be any different for purposes of Article III. Accordingly, we find that Chadha adds further support to our conclusion that the Government does indeed have standing to bring this appeal.

         2. (2) Second, "whether the Bipartisan Legal Advisory Group of the United States House of Representatives [BLAG] has Article III standing in this case."

            • Since we rule today that there is a case or controversy to resolve and that the United States does have standing to bring this appeal, the Court need not address the question of whether the Bipartisan Legal Advisory Group of the United States House of Representatives [BLAG] has Article III standing in this case. Therefore, we turn to the merits.

      2. On the Merits

         1. The Fifth Amendment of the United States Constitution states that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law . . . ."

         2. Issue: Whether Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional under the Due Process Clause of the Fifth Amendment.

            • DOMA Section 3, which provides that “[i]n determining the meaning of any Act of Congress, . . . the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

         3. First Question to ask is whether review of DOMA requires heightened scrutiny because it discriminates based upon sexual orientation

            • This Court has employed certain factors in deciding whether a new classification qualifies as a quasi-suspect class. These factors are (1)whether the class has been historically "subjected to discrimination," Bowen v. Gilliard, (2) whether the class has a defining characteristic that "frequently bears [a] relation to ability to perform or contribute to society," City of Cleburne, Tex. v. Cleburne Living Center, (3) whether the class exhibits "obvious, immutable, or distinguishing characteristics that define them as a discrete group," Bowen, and (4)whether the class is "a minority or politically powerless." Id.

            • Immutability and lack of political power are not strictly necessary factors to identify a suspect class. See Cleburne. Nevertheless, immutability and political power are indicative of the issue.

            • To withstand intermediate scrutiny, a classification must be "substantially related to an important government interest." Clark v. Jeter

         4. If heightened scrutiny is not warranted, we review the statute under rational basis review.

            • Under rational basis review, legislation will upheld the "if it bears a rational relationship to a legitimate governmental objective." Thomas v. Sullivan

              • Of course, "'a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate government interest.'" Romer v. Evans (quoting Dep’t. of Agric. v. Moreno)

              • So while rational basis review is indulgent and respectful, it is not meant to be “toothless.” Schweiker v. Wilson

            • Rational basis review places the burden of persuasion on the party challenging a law, who must disprove "'every conceivable basis which might support it.'" Heller v. Doe (quoting Lehnhausen v. Lake Shore Auto Parts Co.)

            • Several courts have read the Supreme Court’s recent cases in this area to suggest that rational basis review should be more demanding when there are "historic patterns of disadvantage suffered by the group adversely affected by the statute." See Massachusetts v. U.S. Dep’t of HHS; Able v. U.S. Proceeding along those lines, the district court in this case and the First Circuit in Massachusetts both adopted more exacting rational basis review for DOMA.

              • This is sometimes referred to as "rational basis plus or intermediate scrutiny minus."

         5. Rational Bases put forth by BLAG

            • (1) Sovereignty and Caution (BLAG Reply Brief at 3)

            • (2) Uniformity (BLAG Reply Brief at 6)

            • (3) Preserving Past Congressional Judgments (BLAG Reply Brief at 9)

            • (4) Providing Definitional Clarity (BLAG Reply Brief at 9)

            • (5) Fiscal Prudence (BLAG Reply Brief at 9)

            • (6) Procreative potential of opposite-sex relationships (BLAG Reply Brief at 12)

              • "There is no dispute that, unlike opposite-sex relationships, same-sex relationships do not have a propensity to produce children without advance planning, Windsor Br. 43-44, or that marriage creates a beneficial social structure for responsible procreation and childrearing." (BLAG Reply Brief at 13)

              • BUT, could this possibly be a rational basis for all of the effects of the statute?

                • E.g., one effect of the statute is to deprive the surviving member of a military couple formal notification of his or her spouse's death in the line of duty, and blocks surviving spouse's access to veteran's benefits. /(Respondent's Brief at 6-7).

4. Historical Background to the Constitution

   1. [SEE pp. 19-26]

5. The Bank Controversy - Implied and Inherent Powers

   1. James Madison's View (pg. 28)

      1. Madison's Rules of Interpretation:

         1. (1) An interpretation that destroys the very characteristic of the Government cannot be just.

         2. (2) Where the meaning is clear, the consequences, whatever they may be, are to be admitted - where doubtful, it is fairly triable by its consequences.

         3. (3) In controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide.

         4. (4) Contemporary and concurrent expositions are a reasonable evidence of the meaning of the parties.

         5. (5) In admitting or rejecting a constructive authority, not only the degree of its...