978-1259638855 Chapter 3 Part 3

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Chapter 03 – Business and the Constitution

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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

h. In Grutter, the Supreme Court held that the University of Michigan’s law school

admissions policy did not violate the Equal Protection Clause because the policy was

narrowly tailored to achieve the compelling government interest in assembling a

diverse student body. Grutter officially resolved an issue that had remained open for a

Gratz majority opinion. Gratz was also a 5-4 decision, with the Chief Justice and

Justices O’Connor, Scalia, Kennedy, and Thomas in the majority. Note the key role

of Justice O’Connor as the only justice to be in the majority in both decisions. In

providing the fifth vote for striking down the undergraduate admissions policy in

affirmative action jurisprudence. (See Problem #6 and the decision that furnished the

basis for it.). According to the Grutter majority, the law school’s admissions policy

differed from the undergraduate admissions policy examined in Gratz. The law

school’s policy was narrowly tailored to the compelling government purpose in

Grutter approach in place even though some commentators had expected the Court to

limit Grutter or to change directions. Note, too, the 2014 Schuette decision (also

discussed at p. 87), in which the Court held that the voters of a state could

constitutionally bar consideration of race-conscious affirmative action in the context

only rational basis review.

k. You might note that prior to the 1970s, there were few equal protection cases

decade, the Supreme Court had agreed upon the intermediate scrutiny test described in

Nguyen case, which appears as Problem #3.

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l. Note the Concept Review at p.88. This feature summarizes the levels of scrutiny

applicable to different equal protection cases, the corresponding tests, and the

circumstances under which the different tests apply.

m. The Ethics in Action box at p. 86 serves as a reminder of a current legal reality: that

sexual orientation is not considered a suspect class for equal protection purposes.

n. Figure 3 deals with a high-profile question: whether it is constitutional for a state to

bar same-sex couples form marrying. Although the Supreme Court had not

relevant as they decided cases directly presenting the same-sex marriage issue. As of

E. Independent Checks Applying only to the States

1. The Contract Clause

a. Emphasize that here, we are concerned with government action that has a retroactive

effect on already-existing contracts.

the impairment of government contracts is stringent. Can this be justified by the

argument that a government’s impairment of its own obligations is more serious than

as an example of the usual deference.

2. Burden on, or Discrimination Against, Interstate Commerce

not follow from the clause’s language. Stress that this constitutional restriction

the cases noted in the text. Additional example: Problem #4.

3. Federal Preemption

a. Make sure students understand that preemption is based on the supremacy clause, and

that some kind of federal regulation (usually statutory) is needed to trigger a

preemption claim.

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situations often pose questions of statutory interpretation and that each case is decided

Chapter 1.

c. Work through the preemption questions presented in Arizona v. United States, a 2012

d. For a further example of preemption analysis, see Problem #13.

F. The Takings Clause

2. Begin by quoting the clause and noting two things about it: 1) that takings of property are

it requires just compensation when this occurs.

3. Although little has been written on the subject, it seems that the range of “property”

interests in real property.

4. The most obvious sort of “taking” covered by the clause is government’s use of formal

condemnation procedures. Potentially more interesting problems arise, however, when

taking” case in which the plaintiff claimed with some plausibility that he had been denied

all economically viable uses of his land. In such cases, there normally is a taking. Note,

5. The Supreme Court now applies a very lenient form of rational basis review when

considering whether a taking is for a “public use.”

to heavy media coverage and a public outcry). Note, too, that as Justice Stevens

pointed out, state legislatures and Congress are free to enact laws limiting the ability

general level should suffice.

IV. RECOMMENDED REFERENCES:

A. L. TRIBE, AMERICAN CONSTITUTIONAL LAW (treatise).

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manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.

C. Any good constitutional law casebook, such as: G. GUNTHER & K SULLIVAN,

CONSTITUTIONAL LAW: CASES AND MATERIALS.

V. ANSWERS TO PROBLEM CASES:

1. The Supreme Court ruled in favor of Jones, holding that under the circumstances, he had been

2. No. Reversing the decision of a federal district court, the U.S. Court of Appeals for the Ninth

Circuit upheld the advertising restrictions after applying the four-part test that controls the

(elements #3 and #4) between the restrictions at issue and the underlying government interest. The

advertising restrictions would directly advance the anti-commodification interest by reducing the

Miller, 598 F.3d 592 (9th Cir. 2010).

the father substantially supported an important government interest in ensuring that a biological

parent-child relationship actually exists. (The obvious facts of birth automatically offer such a

O’Connor expressed her view that the Court’s analysis was intermediate scrutiny in name only, not

in actual substance. Nguyen v. Immigrations and Naturalization Service, 533 U.S. 53 (2001).

4. No. There were sound reasons for a bond taxation rule such as Kentucky’s—a rule existing on a

to do what it did in regard to taxation policy. Dept. of Revenue of Kentucky v. Davis, 553 U.S. 328

(2008).

5. If Nike’s speech was commercial and Kasky succeeded in proving that it contained falsehoods, the

First Amendment would not protect Nike against liability. Commercial speech that is false does

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not receive First Amendment protection. However, if Nike’s speech was noncommercial, Nike

could have a First Amendment defense against liability even if the speech was false. For the

arguments in favor of a conclusion that Nike was engaged in commercial speech and the

arguments in favor of a conclusion that Nike was engaged in noncommercial speech, see the

6. The applicable test called for the school districts to demonstrate that their policies were necessary

to the fulfillment of a compelling government purpose A Supreme Court majority held that the

dissented. Although the Gratz and Grutter decisions (discussed earlier) had recognized that

seeking to achieve diversity in the student body was a compelling government interest, the Chief

the school districts’ use of race in decisions on assignments of students to schools violated the

Equal Protection Clause, but his agreement with the Roberts bloc ended there. Justice Kennedy

7. Yes. This case is United States v. Morrison. The non-economic nature of the behavior being

of Morrison in Gonzales v. Raich, which appears as a text case. United States v. Morrison, 529

U.S. 598 (2002).

8. Because no fundamental right or suspect classification is implicated by this statute, the rational

basis test will apply. Under that test, the end need only be “legitimate” or “permissible,” and

connection between means and end, it generally does not matter whether better means exist; the

law can attack the problem “one step at a time.” In Minnesota v. Clover Leaf Creamery Co., 449

the legislature’s judgment on legislative facts.

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9. Today, the measures would receive intermediate scrutiny (requiring a substantial relation to an

important governmental purpose) if they discriminated against women. This standard should not

females and 2% of males in that age group were arrested for [drunken driving]. While such a

disparity is not trivial in a statistical sense, it can hardly form the basis for employment of a gender

purposes” language that subsequent sex discrimination cases have made the constitutional test.)

temporary nature made it sufficiently similar to the partial takings governments often employ.

Therefore, the government did not need to compensate the developers. Tahoe-Sierra Preservation

power to criminalize the conduct of cruelty to animals. United States v. Stevens, 559 U.S. 460

(2010).

Motor Transport Association, 128 S. Ct. 989 (2008).

13. The Supreme Court held that the federal Immigration Reform and Control Act (IRCA) neither

expressly nor impliedly preempted an Arizona law that subjects employers who employ

not to impose criminal or civil sanctions, “except through licensing and similar laws,” against

employers that hire unauthorized aliens with knowledge of their unauthorized status; and that

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preempted by the preemption clause in IRCA because it fell within the “except through licensing

and similar laws” exception in IRCA’s preemption clause. As for the Arizona law’s requirement

that employers use E-Verify, there was no preemption because this provision in the state law did

not interfere with the objectives of the federal law. IRCA encouraged use of E-Verify even though