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Constitutional Law II
Wayne State University Law School
Sedler, Robert A.

–          In Const Litigation, you win when you get what you want – in many contexts, a court decree will give the officials an excuse where they can cover themselves politically! 
A.    Primary Historical Purpose
–          Primary purpose to prevent discrimination for newly released black slaves. Made to protect any classification in legislation. Most laws do not apply universally. But exceptions exist. – usally to a particular class or type of person. When only some protected chance for EP argument. Regulated group is disfavored Those protected are the favored.
○   In Regulatory laws—the favored group is exempt and the disfavored are the groups that are NOT exempt. See Railway Express.
○   In Benefits law- favored group gets the benefits and the disfavored group is the group that doesn’t get the benefits. See Moreno. The disfavored group will claim that the legislation denies them equal protection of the laws.
○   When the court applies Deferential Rational Basis – the court gives the legislature, very BROAD leeway. It is likely to be a valid justification—court will not look for much of a reason why the legislature enacted the law. Certain classifications can be objectively unreasonable but based on the use of that language, if the court is applying a looser standard of rational basis compared with the more exacting standard of compelling govt interest, the court is likely to uphold the classification.
○   5th Amendment: applies to fed govt does NOT contain an EPC. – Does EPC apply to the federal government? à The USSC held that a violation of equal protection when done by the states is a violation of due process when done by the federal government.
·         Bottom Line: Whatever is a violation of EP done by state is ALSO a violation of EP by the fed government UNLESS federal interest without corresponding state interest—e.g. discrimination against resident aliens.  States cannot deny civil service employment to aliens but the federal government can deny civil service employment.
○   EPC: the right to equal protection is an INDEPENDENT right, it is NOT dependent on any other right. GOVT doesn’t have to provide benefits BUT once it chooses to provide those benefits, then the EPC applies to any classifications that it may make. E.g. school district doesn’t have to take kids in, but once school district takes in children thru contract, it must apply equal protection.
–          Once gov makes decision to apply benefits Const comes in and gov canot violate EP clause.
B.     Traditional Approach – AFTER substantive DP
a.       Defined – must appear that a classification is based upon some reasonable ground- some difference which bears a just and proper relation to the attempted classification—and is not a mere arbitrary selection. Matter is valid based on DP. – Gulf v. Ellis – so that all persons similarly circumstanced are treated alike. 
b.      Introduction
○   EPC Treats General Classifications and Classifications on the Basis of Identifiable Group Membership (e.g. race, gender, sexual orientation, age, etc..) Differently:
·         Classification on basis of Identifiable Group Membership – groups that exist independent of a classification such as men and women, blacks and whites, no one can get in or out…based on characteristics unchanging etc…
·         General Classification: frequently in legislation—exists solely for the purpose of classification itself. E.g. no fault law that sets a 10K min to sue for tort. Anyone can fall into either group depending on amount of loss.
○   How to evaluate a General Classification: Look at purpose behind the classification and how effective the classification is at meeting that purpose. 
·         e.g. minimum of 10K loss in tort cases: Purpose is to keep the smaller cases out of the courts.   The legislature uses out of pocket loss as a surrogate for serious injury.   If under 10k limited to just no fault recovery (loss pain suffering).
·         This is objectively reasonable- much more than a gender classification based on stereotypes.
·         How effective are classifications? It is based on assumptions of differing characteristics of each group. 2 types:
·         Underinclusive: did not purport to solve the entire problem, but took only a partial step. Where you don’t include in a regulatory exemption those who should have been included; or in benefit group those who should have received the benefit; Applies to the underlying purpose of the law…problem is when classification does not include everyone it should.
·         Overinclusive: subject an entire class to regulation, even though not every person within the class may pose the problem the legislature seeks to address. If it includes in the favored group those who should NOT be included in light of the purpose for which it was made! E.g. in a regulatory group, to the extent that the exempt group includes those who should not be exempt. E.g. in a benefit group, if you give benefits for people who shouldn’t have received those benefits. Can’t over regulate.
·         If a statute is only somewhat underinclusive or overinclusive, then it is not arbitrary. 
·          E.g. Tax breaks for widowed people. What if the legislature uses gender as basis for the tax breaks. Underinclusive if it only includes widows; Overinclusive if it includes the very wealthy.
○   BOTTOM LINE: courts are more likely to uphold a General Classification. – Nevertheless, some Classifications based on identifiable groups are upheld.
c.       Standards of Review
○   Rational Basis- law must advance legitimate state interest.
○   Fundamental rights (1) right of marriage (2) right to travel (3) right to vote (4) reproductive freedom; CLASSIFICATION must be narrowly tailored to a legitimate govt interest.
○   How to apply Standards of Review for General Classification Groups:
1-      Identify the favored and disfavored groups—this sometimes depends on the lawyers identifying the disfavored group.  à E.g. Rape laws that do not prosecute men for raping their wife—this is discrimination – married v. unmarried women.
2-      Ask whether the favored group and the disfavored group are similarly situated  (treated alike) with respect to the purpose of the underlying legislation. If not, then no discrimination by definition and the EPC challenge fails.
·         Standard of Review: Under rational basis (applies today to general classifications), the standard is reasonableness of being similarly situated. Under compelling govt interest, are they objectively similarly situated.
·         Crt only takes stance if objectively unreasonable.
·         5th A no EPà no EP clause binding on Fed. Gov.
·         Railway Express pg. 1179: (see Below) purpose of legislation is traffic safety. COURT may find that the favored and disfavored group objectively are not similarly situated with respect to the purpose of the underlying legislation. Express Agency v. New York, 336 U.S. 106 (1949) [1138] (Underinclusive)
Overview: A NYC traffic regulation banned the placing of advertising on vehicles, except that the owner of a vehicle is permitted to advertise his own products. The purpose of the regulation is to reduce traffic hazards. The act is challenged on the theory that a vehicle carrying advertising for the vehicle’s owner is no less distracting than a vehicle carrying advertising for others. The challengers also point out that other traffic hazards, such as displays in Times Square, have not been banned.
The favored group was business that displayed advertisement on their own trucks for their own products. The disfavored group was those wishing to sell advertising on the sides of their trucks.
The purpose of the law was to decrease the number of distractions on the road. The legislature could reasonably conclude those who advertised their own wares on their trucks do not present the same distractions as those selling advertising space; therefore the Court found the two groups were not similarly situated. Advertising is meant to be distracting, where a sign for a business on a delivery truck is not necessarily designed to be that way.
Held: The regulation is not a violation of equal protection because not similarly situated. à analysis stops. Must ask if favored and unfavored are similarly situated. “It is no requirement of equal protection that all evils of the same genus be eradicated or none at all.”
·         Jackson’s concurrence looked at this objectively (even though only rational basis) and stated that they were not similarly situated. The MAJ deals with whether the legislature could reasonably conclude that the two groups are not similarly situated and thus, the law is upheld. Both believe leg could reasonably conclude favored group do not create same dangers of distraction as disfavored does. Jackson gives less deference and is willing ot uphold BC objectively reasonable. He is not willing to give same degree of deference to the legislature. Why? 
HYPO:congress pases law says Women cannot be in combat. POINT: crts strike down for

ualified to work, the classification serves the general objectives of safety and efficiency and does not define a class based on an unpopular trait or affiliation.
–          Legislature doesn’t have to make individual decisions can make a generalization.
○   Extent of Deference Accorded – US RR Retirement BD v. Fritz, 1980, Congress fundamentally altered the RR retirement system by eliminating future accruals of windfall benefits, resulting from concurrent qualification for RR retirement and SS. (Favored Group: People with current connection with the RR get something,  Disfavored Group: no current connection with the RR.). Held: REVERSED- hold for Δ. A legislation MAY be upheld if there is a plausible reason for the classification made based on the plain language of the statute, regardless of the actual reason for which the statute was enacted. Rational Basis = hypothesizing purpose = no requirement of actual showing that this is the actual purpose.
·         HERE: Congress could properly conclude that those with a current connection had a greater equitable claim to the windfall benefits than those who did not have a current connection.  Congress needs to draw a line somewhere. Purpose of RR act in 1930’s was to give current employees benefits. Could assume that those who were current workers at the time would be invested and work a long-time ‘career workers’.
○   Scope of Review – FCC v. Beach Communications (Π), Inc, 1993- Under the Cable Act, facilities that serve one or more buildings under common ownership or management are exempt from regulation if they do not use public rights of way, while facilities that serve separately owned and managed buildings are not exempt from regulation. Favored Group: people providing cable systems inside commonly owned buildings- exempt. Disfavored Group: multiple separately owned buildings. Held: REVERSED- hold for Δ/FCC.  RULE: once the court finds plausible reasons for the law, then the judicial inquiry comes to an end. Legislature not required to articulate the reasons for the law.
·         It was rational for the Congress to enact this exemption: (1) Because it didn’t infringe on fundamental rights (2) not similarly situated – where buildings were commonly owned, the common owner could negotiate a better deal with a SMATV system.
IF separately owned, potential for monopoly because the first person to get the cable has an advantage over the rest.
○   US Dept of Agriculture v. Moreno, 1973 p p1191: Held that a provision of the Food Stamp Act- excluding any household containing an individual who is unrelated to any other member of the household- was wholly without any rational basis. Exclusion was clearly irrelevant to the stated purposes of the act to raise levels of nutrition among low income households. Hypothesized Benefits: (1) to stop hippie communes from participating in the food stamp program à the desire to harm a politically unpopular groups is NOT a legitimate governmental interest. (2) trying to prevent fraud – because two unrelated people can also alter their living arrangements to get the benefits. The lawyer couldn’t come up with a rational reason for the law!!!! Clearly purpose of this was to deny benefits to hippies (politically charged but not in a good way).
Logan v. Zimmerman Brush Co., 1982 p 1192:  IL CR commission says that all claims have to be processed within 6 months even though it was our fault that it wasn’t processed. Favored Group: processed within 6 months; Unfavored Group: not processed within 6 months. Similarly situated for civil rights claims. Appellant filed employment discrimination complaint before an ILL commission but commission