1. Marbury v. Madison


Richmond v. J.A. Coroson Co



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1. Richmond v. J.A. Coroson Co., (1989); pg. 791, briefed 2/22/96
2. Facts: Richmond instituted a 30% minority set-aside program for all city construction projects. A particular contractor was the lowest bidder for a city project, but he had not complied with the set-aside provision, and so his bid was refused.
3. Procedural Posture: The District Court found that the set-aside program was a legitimate remedy for past discrimination. The court of appeals applied strict scrutiny and reversed, and the Supreme Court affirmed.
4. Issue: Whether the Richmond set-aside program is a violation of equal protection.
5. Holding: Yes.
6. Majority Reasoning: The city of Richmond does not have the power to institute a “benign” or compensatory program that discriminates against whites beyond the limits of the 14th amendment. This is overt racial discrimination, and must be subjected to strict scrutiny. Here, the city has only provided general assertions that there has been discrimination against minorities in contracting, or that such discrimination has been a cause of their under-representation. The absence of minorities firms may be attributable to many other reasons, and it is speculation to assume that it was the product of intentional discrimination. If the city desires to use suspect classifications, it can not merely rest upon generalizations, because racial classifications are generally harmful to both sides. Past societal discrimination is not sufficient to justify racial quotas, and thus there is not a compelling state interest in providing a quota. Also, the racial classification of minorities is over-inclusive because it includes Eskimos and Aleuts. It cuts against the city’s declared remedial purpose that these groups are included given that there is certainly no evidence of any discrimination against them.
7. Dissent Reasoning: [Marshall] The city should be able to have the power to correct for past wrongs without having to shoulder the enormous administrative burden of proving that there was past discrimination that led to the effects.

1. Adarand Constructors, Inc. v. Peña, (1995); pg. 235, briefed 2/25/96
2. Facts: Adarand is a highway construction firm that submitted the lowest bid on a subcontract. A minority-owned construction firm also bid, and won the contract because the general contractor was given bonus money under federal statutes for awarding the subcontract to a firm controlled by “economically ans socially disadvantaged” persons.
3. Procedural Posture: Adarand lost by summary judgment in both the District Court and the Court of Appeals. Both courts felt that the recent Supreme Court rulings in Fullilove and Metro Broadacasting, which applied a level of “intermediate scrutiny” to federal affirmative action (benign racial classifications), were controlling.
4. Issue: What is the proper standard of review for federal racial classifications.
5. Holding: Strict scrutiny. There are three general propositions with respect to governmental racial classifications, 1) skepticism (racial classifications are inherently suspect, invoking strict scrutiny), 2) consistency (the standard of review does not depend on which race is benefitted and which is discriminated against), and 3) congruence (equal protection under the 5th amendment is the same as that under the 14th amendment).
6. Majority Reasoning: The history of equal protection jurisprudence must be traced to determine the proper course. In Bolling v. Sharpe, the court stated that the phrase: “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” carries no less force in the federal context. Secondly, in Croson, the court announced that the strict scrutiny standard applied to any racial classification under the 14th amendment. Although some other cases have been more split (i.e. Bakke, and Wygant), the same themes are echoed there. Metro Broadcasting, which used intermediate scrutiny for the federal government, was a departure from stare decisis, and is therefore overruled to the extent that it is inconsistent with this opinion. All racial classifications require strict scrutiny in order to determine whether the supposedly “benign” purpose is valid, otherwise we risk making the same mistake as in Korematsu.
7. Concurrence Reasoning: [Scalia] felt that a racial classification could never serve a “compelling interest” [and thus never pass strict scrutiny] because that only fosters racial hatred, even when done for the most beneficial reasons. The Constitution protects individuals, not groups, and there are no debtor and creditor races. [Thomas] wrote separately to disagree with the dissent’s premise that there is “a racial paternalism exception to the principle of equal protection.”
8. Dissent Reasoning: [Stevens] Remedial-based race classifications are distinguishable from race discrimination and should be afforded a more intermediate standard of review consistent with Fullilove and Metro Broadcasting. It is wrong to have “consistency” between the standard of review for discriminatory and benign racial classifications because the first is a “No Trespassing” sign, where the second is a welcome mat. Furthermore, there is solid justification for treating the 5th and 14th amendments as affording different levels of protection, namely that Congressional deliberations about a matter should be accorded far greater deference than those of a State or municipality. Lastly, the stigma of affirmative action is surely less than that of discrimination.

1. San Antonio School Dist. v. Rodriguez, (1973); pg. 820, briefed 2/25/96
2. Facts: Texas had a system of financing public education by allowing the local school boards the power to levy higher property taxes in their districts to pay for school upgrades. However, the state had a minimum educational standard level which applied to all schools. In urban San Antonio, there were disparities between the qualities of the school districts because the affluent children attended better school (paid for through local taxes) than the hispanic children, because the hispanic neighborhoods could not pay higher property taxes.
3. Procedural Posture: The District Court, exercising strict scrutiny, held that the Texas schme violated equal protection.
4. Issue: Whether the Texas system impinges on any fundamental right (i.e. is quality public education a fundamental right), thereby requiring strict scrutiny.
5. Holding: No.
6. Majority Reasoning: There is no reason to give quality of education the level of fundamental right for equal protection purposes. First, not all poor people live in the poorest school districts, and do not have the traditional indicia of suspectness (i.e. “immutable” characteristics - poor people can improve their financial situation). Second, the students have not been denied all public education, they is just not as much money being spent on them (and there has been no correlation shown between money and quality of education, or that the minimum standard of the state funding guarantee is insufficient to provide meaningful education). Equal protection does not require precisely equal advantages. Although education is important because it leads to informed voters and effective free speech, it is not explicitly or implicitly constitutionally protected. Lastly, the appropriate standard here is rational basis, and the Texas scheme passes.
7. Dissent Reasoning: [Marshall] Even if education is not a “fundamental” right, the court should apply higher level scrutiny than “rational basis.” Many fundamental rights are simply closely enough tied to explicitly protected rights that they must be protected to give the explicit rights any meaning. The local school district wealth bears no relation to the Texas state interest in providing educational opportunity to the students by vesting power in the local school districts to tax. Since the amount of revenue depends largely on the physical amount of property located within the district, a factor over which voters have no control, the means is not related to the ends.

1. Plyler v. Doe, (1982); pg. 831, briefed 2/25/96
2. Facts: Texas had a law denying benefits to schools to teach undocumented illegal school age children, and allowing these schools to deny admission to those students as well.
3. Procedural Posture: The lower courts held that the exclusion of the children from free public education violated equal protection.
4. Issue: Whether the exclusion of the non-documented illegal immigrant children from free public education violates equal protection.
5. Holding: Yes.
6. Majority Reasoning: Illegal immigrant children are entitled to 14th amendment protection. Although the right to free public education is not fundamental, and illegal aliens are not a suspect class, the children are not able to control their status, and should not be held accountable for the actions of their parents. By depriving the children of the education, the law forecloses any means by which that child may elevate himself into a functioning member of society. As such, the law must further some substantial goal of the State [intermediate level of review]. There appear to be no federal level objectives in denying these children education. The state’s justification of preserving scarce resources for legitimate citizens is not rationally served because employment, not education, is the dominant reason for illegal immigration. The state’s justification that undocumented children are unlikely to remain in the U.S. and become citizens is not supported by any proof.
7. Dissent Reasoning: The court is overstepping its bounds in finding a non-fundamental right, and a non-suspect class, to require special judicial scrutiny. Their reasoning is wholly result-oriented, and against precedent. The proper measure of review is rational basis. It is not irrational for a state to exclude illegitimate children from school in order to save costs. However, this is a choice for the legislature.

1. Shapiro v. Thompson, (1969); pg. 861, briefed 3/3/96
2. Facts: The District of Columbia had a federal statute, [and Penn. and Conn. both had state statutes] which required that an indigent family be present in the state for at least one year before being eligible for welfare benefits.
3. Procedural Posture: The lower courts invalidated the statutes on violation of equal protection grounds.
4. Issue: Whether the statutes violate equal protection.
5. Holding: Yes.
6. Majority Reasoning: The statute divides the indigent population into two similar classes, residents > 1 yr. and residents < 1yr. The first class is granted and the second denied welfare benefits based on this arbitrary distinction, even though these are the very means that the families subsist for their food, shelter and other necessities of life. The state makes several justifications that are constitutionally impermissible objectives: 1. deterring people from entering the state is an unconstitutional burden on the fundamental right to travel, even if it is only to deter them from obtaining larger benefits, and 2. distinguishing between whether the person has made significant past contributions to the community is impermissible because it would theoretically preclude any state protection. Also, the permissible objectives forwarded are not sufficiently “compelling” to justify the burden on the fundamental right to travel: 1. there is no evidence that the waiting period promotes budget predictibility, 2. that it is administratively efficient will not withstand scrutiny, 3. there are less drastic means available to guard against fraud, and 4. it does not promote employment because that logic would require that those over one-year residents also have a waiting period.
7. Dissent Reasoning: [Harlan] Apparently the majority has expanded the list of “suspect” classifications unwisely. If the right to travel is fundamental [which it is] then it does not require special constitutional protection under equal protection, and should be treated under the 14th amendment’s due process clause. Thus, the proper question should be whether the governmental interests served by the residence requirements outweigh the burden imposed by the right to travel. Here, they do. The court should not sit as a “super legislature” to second guess the priorities of the state governments.
8. Notes: In Memorial Hospital v. Maricopa County, (1974), the court reexamined and relied on Shapiro in invalidating an Ariz. requirement of a year’s residence in a county as a condition to an indigent’s receiving free non-emergency hospitalization or medical care. The court stated that the essential holding in Shapiro was that strict scrutiny was required when the residency requirements were “penalties” on the right to travel, and that depended in turn on whether the subject of the statute was “a basic necessity of life.” Since medical care is clearly a basic necessity, and the residency requirement is a penalty on that, the statute is unconstitutional because it does not support a “compelling” state interest. However, in Sosna v. Iowa, (1975), the court upheld a state statute requiring one-year residency before bringing a divorce action against a non-resident. The majority distinguished Maricopa County on the basis that the law only postponed the plaintiff’s right [to court access], in contrast to the Maricopa statute which irretrievably foreclosed the indigent’s rights. In Zobel v. Williams, (1982), the court struck down (under equal protection) an Alaska law distributing the income from its natural resources to adult citizens in varying amounts depending on the length of residence. Justice O’Connor’s concurrence based the result on the privileges and immunities clause [because she felt that there was nothing invidious or irrational about rewarding longevity].

1. The Steel Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer), (1952); pg. 313, briefed 3/3/96
2. Facts: In the latter part of the Korean war, labor disputes led to a threatened strike by the steel workers. President Truman issued an executive order directing the Secretary of Commerce to seize the steel mills and keep them running. The Secretary issued orders to the presidents of the steel companies, directing them to keep the mills open. The next morning, the President sent a message to Congress reporting his action and promising to abide by their decision either way. Congress took no action. However, there was evidence that Congress disapproved of allowing the President to exercise such power because a few years prior, they removed a clause from the Taft-Hartley act that would have given the President power to seize an industry in case of national emergency.
3. Procedural Posture: The trial court issued a preliminary injunction restraining the Secretary from continuing possession. The court of appeals stayed the injunction. The Supreme Court accepted the case promptly due to the importance of the subject matter.
4. Issue: Whether the president had the power under these circumstances to seize the steel mills of the country.
5. Holding: No.
6. Majority Reasoning: There is no express power in the Constitution supporting the president’s actions. The government claims that the power should be implied from the aggregate of the presidential powers under the Constitution. However, the order can not be sustained under the power of the Commander in Chief of the armed forces because that power is reserved for military commanders in the theater of war and is not broad enough to cover the situation here. This is a job for the nation’s lawmakers, not the military authorities. Also, the president’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. Congress has the exclusive constitutional power to make laws necessary and proper to carry out the powers vested by the constitution in any officer thereof. Thus, this order is unconstitutional.
7. Concurrence Reasoning: [Frankfurter] felt that the situation was more complicated and flexible. However, in view of the Taft-Hartley act, congress has expressed its will to withhold this power from the president in cases like this. In effect, the Congress has said, “ask for seizure power from us if you feel it is needed in a specific situation.” [Jackson] felt that the presidential powers were not fixed, but rather fluctuate, depending on their congruence with Congress. There are three categories: 1. where the president is acting pursuant to an express or implied authorization of Congress - broadest powers, limited only by the Constitution, 2. where the president is acting in the face of Congressional silence - more narrow powers limited by the “zone of twilight” where there may be overlap with congressional powers, and 3. where the president is acting in opposition to Congress - most narrow powers, supported only by his expressly granted constitutional powers, and then still limited by any overlap Congress may have [Congress’ will is dominant in case of overlap]. This order falls into the third category, and since there is no express authority, it must fall, even when it may be otherwise justified by “emergency.”
8. Dissent Reasoning: The president has some power under the constitution to meet a critical situation in the absence of express statutory authorization. Looking at history (particularly WWII), there were several instances when the president made similar orders. The fact that Congress and the courts have consistently recognized and given their support to such executive action indicates that such a power of seizure has been accepted throughout our history.

1. INS v. Chadha, (1983); pg. 322, briefed 3/3/96
2. Facts: A section of the Immigration and Nationality Act provides that the Attoryney General could suspend the deportation of a deportable alien if the alien met specified conditions and would suffer “extreme hardship” if deported. However, the act also had a provision which provided for legislative veto by one house if the Congress disagreed with the Attorney general’s decisions as to any particular alien. Chadha was an Indian whose education was not yet complete, but whose Visa had run out.
3. Procedural Posture: The Court of Appeals found that the provision was unconstitutional as a violation of separation of powers.
4. Issue: Whether the one house legislative veto provision in the act was unconstitutional as a violation of separation of powers since it did not provide for bicameral support or presentation to the President.
5. Holding: Yes.
6. Majority Reasoning: [Burger] The fact that a given law is efficient will not save it if it is contrary to the constitution. The constitution is very explicit about its grant of powers among the executive and legislative branches. The framers were very clear that it was paramount that the legislative power require bicameral support and presentation to the President (except for some minor exceptions not relevant here). The act is primarily legislative in nature. Although it delegates some broad legislative authority to the executive branch, it is no less legislative. As such, it requires bicameral support and presentment.
7. Concurrence Reasoning: [Powell] felt that Congress was acting in a judicial role in providing for judicial-type review of the actions of the executive branch.
8. Dissent Reasoning: [White] felt the majority opinion was too broad because it read on all legislative vetoes, which weren’t implicated by the present fact situation. The power to exercise legislative veto is not the power to write new law without bicameral support or presidential consideration. The veto must be authorized by statute and may only negative what an Executive deparment agency has proposed.

1. Bowsher v. Synar, (1986); pg. 333, briefed 3/17/96
2. Facts: The Gramm-Rudman-Hollings Act established maximum annual permissible deficits designed to reduce the federal deficit to zero by 1991. If needed to keep the deficit within the maximum, the Act required the OMB and the CBO to make recommendations to the Comptroller General as to the budget reductions necessary in each program. The Comptroller General office was created by the budget and accounting office, in an act that required nomination by the President, but removal [for cause] by a Congressional resolution, subject to presidential veto.
3. Procedural Posture: The act establishing the Comptroller General office was challenged as being a violation of the separation of powers because it gave Congress the power to remove an official having executive powers.
4. Issue: Whether the act establishin the Comptroller General’s office is unconstitutional as a violation of separation of powers.
5. Holding: Yes.
6. Majority Reasoning: Congress cannot reserve for itself the power of removal of an officer charged with the execution of laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. To permit an officer controlled by congress to execute the laws would be, in essence, to permit a congressional veto of the kind struck down in Chadha. The Comptroller is an executive officer because of his duties. The scope of the reasons allowable for his removal are broader than that allowed for impeachment, which is only for “treason, bribery, or other high crimes and misdemeanors.” Even though it may be a small chance of removal in practice, the Comptroller is not sufficiently free from congressional influence. Thus, the fallback provisions of the Act, wherein Congress itself makes the ultimate budget decisions by joint resolution, must be activated.
7. Dissent Reasoning: [White] The removal by Congress of the Comptroller is of such minimal practical significance that it presents no threat to the scheme of separation of powers. It requires 2/3 approval by both houses to override a presidential veto of the Comptroller’s removal.

1. Morrison v. Olson, (1988); pg. 342, briefed 3/17/96
2. Facts: The Ethics in Government Act of 1978 provided that The Attorney General may ask for the appointment of a special counsel by a Special division of three Circuit Judges in order to investigate and prosecute high-ranking government officials for violations of federal crimes. Once appointed, the Special counsel can only be removed by the Attorney General personally (not the president) and only for “good cause” (not at will).
3. Procedural Posture: A group of persons moved to quash subpoenas issued by the Special counsel, claiming that the Act was unconsitutional as a violation of separation of powers.
4. Issue: Whether the Act is was unconsitutional as a violation of separation of powers because it limits the President’s authority to remove an executive officer.
5. Holding: No.
6. Majority Reasoning: The special counsel, due to the limited tenure, duration, and duties of her office, is an “inferior officer” for Appointment clause purposes. As such, her appointment may be vested by congress in the courts. The court has never held that the Constitution prevents Congress from imposing limitations on the President’s power to remove al executive officials simply because they wield “executive” power. The power to vest appointment in other departments implies the power to limit and regulate removal. The imposition of a “good cause” standard is not unduly limiting. The president’s need to control the Special Counsel is not so central to the functioning of the executive branch as to require as a matter of constitutional law that the special counsel be terminable at will by the President. This case does not involve a usurpation of executive power by Congress. The attorney general still has the power to refuse to ask for appointment of a special counsel.


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