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THE LAW OF EMERGENCIES Nan D. Hunter

Instructor’s Manual Chapter 2 A. Context: DeShaney v. Winnebago County (p. 34) DeShaney v. Winnebago County grew out of a horrible set of circumstances. A one-yearold Wisconsin boy named Joshua DeShaney placed in his father’s custody in 1980 pursuant to a court order. Three years later, reports of child abuse led the Winnebago County Department of Social Services to intervene and remove the boy to the custody of a hospital. Soon thereafter, Joshua was released to his father based on the recommendation of social workers. Over the course of the next year, a social worker visited the DeShaney home on a number of occasions, witnessed a number of suspicious circumstances, but failed to take any follow-up actions. In early 1984, the father beat Joshua so severely the boy went into a life-threatening coma. Although Joshua did not die, the brain damage from the attack was so severe that he was expected to spend the rest of his life in an institution. Joshua’s mother subsequently filed a lawsuit against Winnebago County for failing to intervene in the situation. The county won the lawsuit at every level – including the Supreme Court – on the grounds that there was not sufficient state action in the case to merit Due Process protection under the 14th Amendment. Essentially the Supreme Court held that because Joshua was not in the custody of the state, the state had no affirmative duty to protect him from a nonstate or private actor. The decision is a seminal case with respect to both the state action requirement for invoking Due Process protection (see below) and the concept of negative liberties. In a famous dissenting opinion, Justice Harry Blackmun berated the majority opinion, arguing that ample state action existed in the process of establishing a Department of Social Services to protect against child abuse. For Blackmun, if individuals expected and were instructed to rely on state social services, it would be a contradiction to deny them relief when they did just that. DeShaney remains a contested decision, with many liberal scholars citing it as an unwarranted and dangerous precedent. Its scope, however, was recently reaffirmed in the case of Castle Rock v. Gonzales.1 Jessica Gonzales of the Colorado town of Castle Rock obtained a restraining order against her husband during divorce proceedings. Less than three weeks later, the husband violated the order by taking possession of the children at around 5 p.m. Gonzales phoned the police four times over the course of the next seven hours, claiming that the husband had taken the children and pleading that the order be enforced. Even though the husband had called Gonzales and admitted he had the children, the police took no action. Sometime after 3 a.m., the husband arrived at the Castle Rock police station and began a gunfight with the police. The corpses of the three children, all of whom had been killed before the husband arrived at the police station, were later found in his vehicle. Ms. Gonzales sued the town – and specifically its police department – for failing to enforce the protection order. Once again, the Supreme Court denied relief on the grounds that the state action requirement had not been met – in this case because the restraining order was not mandatory and therefore created no entitlement by the mother to its enforcement. 1

545 U.S 748 (2005). Copyright © 2009, Elsevier Inc. All rights reserved.


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B. Critical Thinking (p. 41) – Greene, Antoinette R., and Due Process Greene v. Edwards is a representative case for the ways in which the quarantine power can be challenged: Legal challenges to quarantines . . . cannot hope to succeed by attacking the quarantine power in itself but must instead attack some feature of quarantine administration which, as the Supreme Court has also recognized, may proceed “by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.” [Jacobson v. Massachusetts.] An example of a successful attack of this sort appears in Greene v. Edwards, in which a person quarantined for tuberculosis successfully challenged an administrative process that confined him without providing, among other things, adequate access to counsel and an opportunity to cross-examine witnesses against him at the quarantine hearing.2 The chief procedural defect the Greene court located was the failure to appoint counsel for Mr. Greene, although the court also expressed a willingness to take a strict view of other defects, such as: the right to notice; the right to a full hearing (including the right to cross-examine adverse witnesses); and the right to a certain standard of proof. In reaching this decision, “the West Virginia Supreme Court reasoned that there is little difference between loss of liberty for mental health reasons and the loss of liberty for public health rationales,” so that “[p]ersons with infectious disease . . . are entitled to similar procedural safeguards.”3 The more overarching concern is that any such deprivation of liberty (confinement) must be supported by adequate procedural due process protections. In In re Antoinette R, on the other hand, there is no mention of many of the safeguards referenced by the West Virginia Supreme Court in Greene; instead it seems implicit that most of those safeguards have been complied with. The “posture” of the case – how it reached the court deciding the issue – indicates that Antoinette R. had already received a hearing for the detention and was able to present evidence supporting her case (hence all the information about her religious awakening). The chief safeguard appears to be the burden put on the state to demonstrate the appropriateness of detaining the individual in question. As the court says, New York “demonstrated through clear and convincing evidence the respondent’s inability to comply with a prescribed course of medication in a less restrictive environment” (p. 40). This standard of proof is very favorable to the individual to be detained, which many commentators would argue is altogether proper when one’s liberty is to be so seriously restricted. Although not as high as the burden on the prosecution in a criminal case (beyond a reasonable doubt), a clear and convincing standard requires a very thorough showing on the part of the state. The many steps that the New York health department went through indicates that many of the same safeguards that the West Virginia court commanded were met. The clear and convincing standard is one of the safeguards contemplated by the Greene court. Every state has an interest in ensuring that individuals receive a full and fair process before confinement. At its most basic, conforming to such due process protections helps strengthen public support for such confinement programs. On a more practical level, a pre2

Daniel Markovits, Quarantines and Distributive Justice, 33 J.L. MED. & ETHICS 323, 323 n.2 (2005). 3 Lawrence O. Gostin, Public Health Theory and Practice in the Constitutional Design, 11 HEALTH MATRIX 265, 310 (2001). Copyright © 2009, Elsevier Inc. All rights reserved.


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confinement hearing enhances the validity of individual confinements, making them less subject to after-the-fact challenges and thereby requiring less litigation on the part of the state to justify them. C. Context for the Cases Cited under the Heading “Substantive Due Process” (p. 41)  Washington v. Glucksberg was a challenge to a Washington state law that banned physician-assisted suicide on the grounds that it violated a terminally ill patient’s Due Process liberty right to choose death over life. In a unanimous opinion, the Supreme Court upheld the law. As the excerpt on p. 44 indicates, the Court looked with a cautious eye at which interests were so thoroughly rooted in the tradition and history of the nation as to merit fundamental status. Physician-assisted suicide failed to meet that standard since it generally has been and continues to be outlawed. Chief Justice Rehnquist pointed to more than 700 years of AngloAmerican common-law tradition of either punishing or otherwise disapproving of both suicide and assisting suicide, in reaching the conclusion that it is offensive to the traditions of the nation.  Cruzan v. Missouri Department of Health was a case concerning the right to refuse medical treatment. Nancy Cruzan was involved a serious automobile accident that left her in a persistent vegetative state. After Cruzan was sustained for several weeks on artificial feedings, her parents sought to terminate the lifesupport system. State hospital officials, however, refused to do so. The parents brought suit claiming that the Due Process Clause of the 14th Amendment permitted them to refuse such treatment. The Supreme Court, while recognizing that the right to refuse medical treatment is a protected interest under the Due Process Clause, ultimately held that Missouri acted lawfully in restricting that right by requiring a showing of clear and convincing evidence that the patient herself – not her family – would have desired the withdrawal of the treatment. In other words, while the right to refuse medical treatment is a protected interest, a state is not obliged under the Due Process Clause to accept the “substitute judgment” of family members when there is insufficient proof of what the patient would have actually wanted.  Poe v. Ullman represented a 1961 challenge to an almost century-old Connecticut statute that prohibited both the actual use of contraceptives and counseling such use. The two women who brought the case (Poe and Doe) had both experienced pregnancies that resulted in children who did not live past birth, and both were informed by their physician that any further pregnancies would meet a similar end and possibly threaten their own lives. Accordingly the women filed suit alleging that the law violated liberty interests protected by the 14th Amendment’s Due Process clause. The Supreme Court eventually dismissed the case for a lack of standing on the part of the plaintiffs. (Briefly, a plaintiff must have actually suffered an injury or be at risk of suffering an injury to have “standing” to sue in federal court. In Poe, the Court dismissed the suit because the women complained only of the threatened application of the prohibition laws – the laws had never actually been enforced.) Shortly after Poe was decided, two Connecticut physicians (including Estelle Griswold) opened a birth control clinic in New Haven in an attempt to test the prohibition on contraceptives. Both physicians were arrested and fined $100. The case made it back to the Supreme Court, which

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this time reached the merits. In the 1965 decision in Griswold v. Connecticut, Justice William O. Douglas located in the “penumbras” and “emanations” of other constitutional provisions a right to privacy that extended to the use of contraceptives. This “penumbral” argument about constitutionally protected rights has remained both influential and controversial. D. More Background for the Jew Ho Excerpt (p. 46) The case of Jew Ho v. Williamson is not as famous as some of the other cases in these first two chapters – for example, Jacobson is the seminal public health case, while Yick Wo v. Hopkins4 (cited in Jew Ho) is the landmark decision standing for the proposition that a neutral law applied in a discriminatory way will violate the Equal Protection Clause. Jew Ho, however, might have a more interesting fact pattern than either of those, as the following excerpt should help illustrate: One of the most infamous quarantines occurred in 1900 in San Francisco when a small number of cases of bubonic plaque erupted in Chinatown. During the last half of the nineteenth century and well into the twentieth century, the Chinese on the West Coast had been the subject of significant racial hostility, which often manifested itself through discriminatory laws. Much like Russian Jews in New York, health authorities, reformers, and journalists understood the Chinese in California as lacking appropriate homes and domestic arrangements. Indeed, filth was understood as part of Chinese people's very character, and as such, they were deemed a continual source of contagion and disease potentially afflicting whites in San Francisco. Both working class whites and city health officials in the late nineteenth century had repeatedly attempted to raze Chinatown. As a committee of the San Francisco Board of Health stated, the “Chinese cancer must be cut out of the heart of the city.” In fact, the federal government was so concerned that Chinese immigrants would bring contagious disease into the United States that in 1896 the Surgeon General ordered quarantine stations on the West Coast to disinfect the baggage of all Chinese entering the United States. In March 1900, the body of a Chinese man was found in Chinatown; a physician quickly diagnosed the cause of death as bubonic plague and reported it to the Board of Health. That same evening San Francisco's Board of Health made the determination to quarantine all of Chinatown, allowing only Caucasians to leave the area and no one to enter. The death of a Chinese man from bubonic plague only seemed to confirm the belief that Chinatown was a place of danger from which contamination emanated.

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Decided in 1886, Yick Wo also involved the legal and economic hurdles faced by Chinese immigrants in California. San Francisco passed an ordinance requiring anyone operating a laundry facility in a wooden building to obtain a permit. Most laundries at the time were run out of wooden buildings, and about two-thirds were owned by Chinese persons. Even though most of the Chinese laundry owners applied for permits, none were granted. For the first time the Supreme Court was willing to look through the pretext – a neutral law aimed at protecting the public health – with an eye toward the prejudicial administration of the law. Copyright © 2009, Elsevier Inc. All rights reserved.


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Unlike the quarantine of Russian Jews that occurred in New York where no one threatened legal suit on behalf of the quarantined immigrants, the Chinese Consul General . . . immediately threatened to file suit in federal court. This threat, along with uncertain laboratory results from the autopsy regarding the presence of bubonic plague, caused the quarantine to be quickly lifted. Within the month, however, additional potential cases of plague appeared. At this point, the federal government through the Surgeon General formulated a plan to require the inoculation of all Chinese in San Francisco with an experimental vaccine. Federal officials also informed railroad companies that they were not to transport Chinese out of the city unless the individual could produce a vaccination certificate, and federal officials were stationed at crossings out of San Francisco and California to ensure compliance. Meanwhile, the Secretary of the Treasury authorized the Surgeon General “to forbid the sale or donation of transportation by common carrier to Asiatics or other races particularly liable” to bubonic plague. These orders produced considerable protest in the Chinese community. Taking immediate action, the Chinese Consolidated Benevolent Association filed suit on behalf of all Chinese in San Francisco against the San Francisco Board of Health and the federal quarantine officials. The plaintiffs claimed that the vaccine was toxic and experimental and that the actions of local and federal officials were “purely arbitrary, unreasonable, unwarranted, wrongful, and oppressive.” They further claimed that these health orders violated personal liberty and the right to pursue a lawful business. In addition, the complaint alleged that the orders constituted a denial of equal protection as they were applied only to Chinese and Japanese. In Wong Wai v. Williamson, the court ruled in the plaintiffs' favor and issued an injunction against city and federal officials on the ground that the rules violated the Fourteenth Amendment. The court concluded that the rules were unreasonable because there was no rational basis for requiring only the Chinese to be inoculated before leaving the city. They were also racially discriminatory as they singled out Asians, although the government failed to demonstrate that Asians were more susceptible to bubonic plague than others. Furthermore, as the court wrote: [W]hen the municipal authority has neglected to provide suitable rules and regulations upon the subject, and the officers are left to adopt such methods as they may deem proper for the occasion, their acts are open to judicial review, and may be examined in every detail to determine whether individual rights have been respected. The court thus found the regulations to be arbitrary, discriminatory, and unrelated to preserving public health. This ruling did not end the matter, however. Texas health officials soon closed its border to goods and travelers from San Francisco. Further, one federal official wrote in his memoirs that the federal government delivered the following ultimatum to California: “You are a sovereign state . . . but if you do not take steps to control this vital danger, we will establish a quarantine entirely around

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you.” Likewise the California Board of Health began to put considerable pressure on San Francisco authorities to establish a quarantine of Chinatown. In response, city officials passed an ordinance specifically authorizing the Board of Health to quarantine persons, houses, places, and districts “when in its judgment it is deemed necessary to prevent the spreading of contagious or infectious diseases.” Quickly, the Board quarantined all of Chinatown. Chinatown was once again sealed off with barbed wire and wooden fence posts while over a hundred policemen enforced the quarantine. Meanwhile, residents of Chinatown began to suffer from food shortages and implored city, state, and federal officials to provide provisions for those quarantined. Instead, officials of all three levels of government contemplated the removal of Chinatown residents to (yet to be established) quarantine facilities and began discussing the burning of Chinatown ... Quickly, lawyers filed a habeas petition on behalf of a quarantined Chinese man who did not live in Chinatown but who had become trapped while visiting friends. The habeas petition was granted. Within a week lawyers, once again representing a number of Chinese organizations, filed suit, with Jew Ho as the plaintiff. Ho claimed that the quarantine infringed on his personal liberty and his right to conduct business. The complaint alleged that the quarantine itself was discriminatory in that officials demarcated the quarantined area to specifically exclude whites. Furthermore, the plaintiff contended that the vast majority of Chinatown experienced no incidence of bubonic plague and the quarantine of 15,000 residents heightened the risk of exposure to disease rather than protecting their health. Finally, all levels of government had failed to provide for the needs of those quarantined. The city responded that all those who died of plague were Chinese living in Chinatown. Further, it claimed that Ho, and others by virtue of being Chinatown residents, potentially had been exposed to plague. The court took direct issue with the implementation of the quarantine, writing that the quarantine of such a large area exposed those quarantined to the possibility of disease rather than its prevention. It also found that while it might be reasonable to quarantine a particular house when an inhabitant was ill, it made no scientific sense to quarantine an entire community. Thus, the court held that the quarantine was not a reasonable regulation. It further concluded that the quarantine was racially discriminatory and violated the Fourteenth Amendment's Equal Protection Clause. Jew Ho is often understood as having been decided on equal protection grounds alone. It is crucial to recognize, however, that the court only reached the issue of discrimination after it determined that the quarantine was not designed to protect the health of all residents of San Francisco but rather put those in Chinatown at greater risk of contagion. Jew Ho can be interpreted as requiring a quarantine to protect, not endanger, a community by quarantining the smallest number of people necessary and ensuring their health. Furthermore, a particular group of people cannot be cleaved from the community... Where quarantine must be defined and actuated narrowly, “community” must be understood broadly. Jew Ho

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and Wong Wai continue to be two of the most important cases regarding the limitation of a state's power when imposing a widespread quarantine.5 E. Context for the Excerpted Cases in the “Equal Protection of the Law” Section (p. 47-50)  In Romer v. Evans, Colorado had added an Amendment to its State Constitution which banned any governmental action – legislative, executive, or judicial – meant to protect against discrimination based on homosexual or bisexual orientation. As noted in the text, the Supreme Court only applied rational basis review because sexual orientation has not been recognized as one of the inherently suspect classes that trigger heightened scrutiny under the Equal Protection Clause. Usually, a challenge that fails to trigger some form of heightened scrutiny amounts to almost no challenge at all. Over the last 80 years or so, courts have tended to be very deferential under rational basis review. Here, however, the Supreme Court was unwilling to read a legitimate government interest into the Amendment. Although many laws are upheld over Equal Protection challenges, the Court in Romer distinguished this case for what it called a “bare desire to harm a politically unpopular group [which] cannot constitute a legitimate governmental interest.”  In Cleburne v. Cleburne Living Center, the city council denied a special use permit application to operate a home for the mentally retarded, citing a municipal zoning ordinance. The ordinance required the special permit for any hospital intended to house the insane, drug addicts or alcoholics, as well as penal and correctional institutions. The group that submitted the application claimed that the ordinance violated the Equal Protection rights of both the group and its potential residents. In another of the rare examples of a law struck down on rational basis review, the Supreme Court ruled that the denial of the permit was invalid as premised on an irrational prejudice against the mentally retarded. Even though the Court did not grant suspect status to classifications based on mental retardation, the ordinance was nevertheless struck down as having no motive other than animus.  Lawrence v. Texas concerned a Texas statute making it illegal for two persons of the same sex to engage in intimate sexual conduct. The case began when Houston police officers were sent to a private residence in response to a falsely reported weapons disturbance. The officers entered Lawrence’s apartment and found him engaging in a sexual act with another man. The men were arrested, held overnight, charged, and convicted before a Justice of the Peace. The men challenged their convictions in Texas state court, but the convictions were affirmed and the men paid a fine of $200 each. When the men appealed the case to the Supreme Court, two questions were posed: first, whether the law criminalizing sexual intimacy by same-sex couples but not the same behavior by different-sex couples violated the Equal Protection clause; and second, whether the criminal convictions for engaging in adult consensual sexual acts in the home violated Due Process liberty and privacy interests. Justice O’Connor found that 5

Felice Batlan, Law in the Time of Cholera: Disease, State Power, and Quarantines Past and Future, 80 TEMP. L. REV. 53, 105-09 (2007). Copyright © 2009, Elsevier Inc. All rights reserved.


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the statute violated the Equal Protection clause but not the Due Process Clause. O’Connor applied rational basis scrutiny as in Romer and Cleburne, but found as in those cases that the law at issue was motivated solely by prejudice and therefore could not further a legitimate government interest. Five other justices voted to overrule the statute on the basis of Due Process guarantees, finding that the liberty interests protected by the 14th Amendment extends to intimate, adult consensual conduct. F. Critical Thinking (p. 57) – State versus Federal Alienage Classifications The alienage cases illustrate the complexity that can develop when multiple legal doctrines are involved. Ask students to identify three strands of law that are manifest in these two cases: the Equal Protection clause, federalism, and the concept of negative liberty. Alienage classifications are something of a special case in the Equal Protection realm because of the different government interests involved. The federal government has plenary power over all immigration-related matters (i.e., it polices the borders), which means that it will almost always have a strong interest when classifying between aliens and citizens. States, on the other hand, play a far less significant role with respect to immigration policy and practice. Accordingly, states generally have a more narrow interest in distinguishing between aliens and citizens of other states. Thus, while it is a settled principle that the word “person” in the text of the Equal Protection clause applies to lawfully admitted resident aliens, the extent of protection granted to such aliens will depend on whether the government actor in question is at the state or federal government (Federalism concerns). At the federal level, only those classifications that exhibit some sort of invidious treatment of aliens as against citizens will be considered invalid – the equivalent of a rational basis standard. This deference, as the decision in Mathews v. Diaz illustrates, also applies when the federal government makes reasonable distinctions between different classes of aliens. As the Mathews Court explains, the federal government has no duty to provide for all aliens, so it must be allowed to draw lines to the exclusion of some aliens; this is simply “a routine and normally legitimate part of its business” (p. 54). (The concept of negative liberty) States, on the other hand, have no such interest in immigration policy, so courts will consider almost all state-level classifications based on alienage to be inherently suspect and therefore subject to strict scrutiny. Even greater complexity has arisen in this area because the Supreme Court has carved out an exception to the normal rule that state alienage classifications require strict scrutiny. The political-function exception recognizes that there remain certain areas in which the state should be free to consider citizenship more seriously. The contours of the exception are not definite, but the general idea is that states should be allowed to form their governments with “full-fledged members of the political community” (p. 55). Or, as one commentator has explained: The “political function” doctrine is best understood as derived from a theory of preemption: absent a clear statement to the contrary, the federal government's decision to admit aliens for residence does not also admit them to the states' political systems. Because state discrimination against aliens for jobs with a political function does not contravene the federal government's terms of invitation, it is therefore permissible.6

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The Constitutionality of Immigration Federalism, 118 HARV. L. REV. 2247, 2265 (2005). Copyright © 2009, Elsevier Inc. All rights reserved.


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In Bernal v. Fainter, the position of notary failed to fall within the exception because it does not directly bear on public policy or public functions. Functions that have been found to qualify for the exception include police officers, public school teachers, probation officers, and jurors. The political function exception reduces the standard that the state must meet to validate an alienage classification from strict scrutiny to rational basis. G. More Background on Boumediene (p. 62) Boumediene v. Bush is the latest in the line of important Supreme Court decisions arising out of the detention center at Guantanamo Bay Naval Base in Cuba. Boumediene and five other Algerian natives were detained at Guantanamo after being captured in Bosnia as suspected terrorists in 2002. A special military commission called a Combatant Status Review Tribunal designated the men as “enemy combatants,” thereby authorizing their detention. Originally, Boumediene and others filed a petition for a writ of habeas corpus based on violations of constitutional Due Process requirements. Both the District Court for the District of Columbia and the U.S. Court of Appeals for the D.C. Circuit dismissed the petition, reasoning that habeas corpus rights do not extend to non-citizens being detained at Guantanamo, which is Cuban soil leased long-term by the U.S. government. The Supreme Court, however, reversed the lower courts because the significant amount of control that the U.S. exercises over the naval base at Guantanamo warranted the application of habeas corpus rights to anyone detained there.7 Following that decision, Congress passed the Military Commissions Act of 2006 (MCA), which eliminated all federal courts’ jurisdiction to hear habeas petitions from detainees designated as “enemy combatants.” Boumediene then challenged the MCA as unconstitutional under the Suspension Clause of the Constitution, which limits the suspension of habeas corpus rights to “Cases of Rebellion or Invasion [when] the public Safety may require it.” The plaintiffs argued both that the Great Writ applies to aliens in controlled territory (as indicated by Rasul) and that it could only be suspended if an adequate substitute were provided. The Supreme Court agreed on both accounts.

Important Terms 

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“An evil eye and an unequal hand” is a phrase used to describe a policy that is neutral on its face but applied in a discriminatory fashion; such a law can be struck down under the Equal Protection Clause. The prime example of this sort of unequal administration in this chapter is the Jew Ho case, in which a general quarantine order was only enforced against the Chinese population of San Francisco. Black’s Law Dictionary defines “animus” as ill-will or animosity. For our purposes, animus is most frequently relevant in the Equal Protection context – indeed, animus against certain protected classes of individuals is one of the evils the Equal Protection Clause seeks to eliminate. In Jew Ho, for instance, the discriminatory administration of a quarantine law gave rise to a presumption of animus against the Chinese residents. One concern when responding to an emergency is that the urgent nature of the situation could mask animus-based actions on the part of government actors. When a government action infringes on a fundamental right (liberty, privacy, travel) or makes a distinction based on certain suspect classifications (race, alienage), the government must demonstrate that its action is narrowly tailored to a compelling state

Rasul v. Bush, 542 U.S. 466 (2003). Copyright © 2009, Elsevier Inc. All rights reserved.


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interest in order for the action to be valid. An example of compelling state interests would be national security. Broadly speaking, fundamental rights are those that form the backbone of a free and decent society, the rights retained by individuals operating within a social compact. In the Constitutional sense, fundamental rights are those that are so important that any government action infringing them must be justified by a compelling interest and must be carefully designed to create the minimal possible infringement. Fundamental rights are often explicitly noted in the text of the Constitution (free speech, free exercise of religion), while others have been identified by the courts without a specific Constitutional anchor. Examples of the latter include the right to travel, the right to marry, and the right to contraception. Such non-textual fundamental rights generally must be well-established in the history and traditions of the nation in order to be accorded such status. When the government seeks to further a certain purpose by passing a law that infringes on individual rights, there might have been other ways in which the law could have been constructed. If the law infringes on only a minor right or distinguishes between individuals with respect to a benign factor, a reviewing court will probably give little weight to those alternatives when assessing the validity of the law. If, however, the law infringes on a fundamental right or implicates a suspect classification, and is therefore subject to strict scrutiny, a reviewing court will require the government to demonstrate that no less restrictive alternative was possible – that is, no other construction could have minimized the infringement or achieved the end without using the classification in question. Negative rights are couched in terms of what the State cannot do instead of what it is obligated to do. It is widely understood that the core individual rights in the U.S. system – found in the Bill of Rights – are negative in nature. That is, they forbid the State from taking certain actions and act as a limitation of State power. One can think of the distinction between negative and positive rights by phrasing negative rights as, “the right to be free from x” (e.g., restraints on free speech or due process), while positive rights are simply “the right to y” (e.g., health care or shelter). Positive rights, on the other hand, are phrased as entitlements to something. The U.S. Constitution is generally a charter of negative not positive rights – it seeks first and foremost to restrain the power of the State, leaving the question of affirmative obligations of the State to the political process. Not all constitutions are written this way; some adopt a positive rights regime, in which the obligations of the State are spelled out. For example, some countries guarantee the right to health care for their citizens. The rational basis standard is the most deferential level of review of a government action. In order to survive rational basis review, a government action need only bear a rational relationship to some legitimate government purpose. Unlike with strict scrutiny, the purpose in question need not be an especially important one, and the fit between the ends and the means chosen need not be especially close (or, the government can need not have chosen the least restrictive alternative). The Equal Protection Clause of the Fifth and Fourteenth Amendments requires that the government treat all similarly situated individuals alike. Essentially, this means that when the government makes a law that distinguishes between groups of people the distinction must be a valid one. The touchstone of that validity is the use of benign classifications, which are those that draw a line between groups that are not in fact

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similarly situated – for example, landlords and tenants. When race is the dividing line, however, the classification is almost certainly arbitrary. So a law that gave different rights to black landlords and white landlords would treat similarly situated individuals differentially, because the race-based distinction is arbitrary. State action is the trigger for constitutional safeguards. The Constitution, by its terms, does not attempt to protect individuals against every harm or infringement imaginable; instead, it is concerned only with those harms that are attributable to the government. For example, the First Amendment is worded: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” If a private citizen, acting independently of any governmental body, attempts to silence another’s freedom of speech, there has been no Constitutional violation, even if other causes of action might exist. Strict scrutiny is the standard of judicial review applied to government actions that either infringe on a fundamental right or make distinctions based on suspect classifications. In order for a government action to be considered valid when subjected to strict scrutiny, it must be narrowly tailored to achieving a compelling state interest – an extraordinarily high standard that usually results in the law in question being held invalid. Generally the ends-means analysis in strict scrutiny review will not permit the existence of a less restrictive alternative. When the government distinguishes between different groups of individuals, it has created classifications; suspect classifications are distinctions that history proves are inherently dangerous because of the factor used. Race is the archetypal suspect classification. Any distinction made along the lines of race will be analyzed very closely by a reviewing court under the Equal Protection Clause, to the point that it will be almost presumptively invalid. Other suspect classifications are alienage and national origin. Sexbased classifications, meanwhile, receive heightened scrutiny from courts, but not the same strict scrutiny as suspect classifications.

Review Questions 1. From a historical perspective, that the framers chose to build the Constitution on negative rights – defenses against actions by government – was probably an outgrowth of the experiences that led to the Revolutionary War. It was the excesses and unrestricted power of the British government, not abuses by individual British citizens or merchants, which triggered the war. The prevailing view of government and the social compact in the Constitution is that the government’s powers must be closely regulated and restrained, while other matters are best addressed through the democratic process. Also, although United States has since created a series of social safety net provisions by statute, the Constitution has never been interpreted to ensure minimal living standards. Nor were the colonists concerned that the British government failed to provide them with adequate support. 2. The insistence on fair procedures and on the application of the same procedures to everyone subject to government action is arguably the single strongest protection of individual liberty.

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3. Not all liberty interests are listed in the Constitution, although many are. The Bill of Rights is probably the most exhaustive listing of individual liberty rights, but many others have been recognized by the courts. Implied liberty rights include the right to travel and the right to privacy. In addition, the court has distinguished between procedural and substantive due process rights. 4. As the Supreme Court has said, the most crucial guideposts for determining which liberty interests can be characterized as fundamental rights are the “Nation’s history, legal tradition, and practices.” For a right to be considered fundamental, it must be deeply rooted in the history and the tradition of the nation, and it must be central to the nation’s concept of liberty. The purpose of these criteria is to ensure that only those rights that are truly “fundamental” are treated as such. 5. Simply put, if all classifications between groups of individuals were unconstitutional, the government would quickly and inevitably grind to a halt. In the example above and in the text, if the government could not afford different rights to landlords and tenants, it would be impossible to create a system of housing law. Think even more simply: what if the law could not distinguish between the original owner of an object and a thief? Between a criminal and a victim? Classifications in and of themselves are not inherently suspect. In fact, most classifications used by the government are benign – no one would be legitimately offended by their use because they draw lines based on meaningful, acceptable factors. Classifications are only considered suspect when they are based on a factor that we consider meaningless and, perhaps more importantly, invidious. 6. State laws that classify based on alienage (citizens v. noncitizens) are usually subjected to higher scrutiny. Federal laws are generally granted more deference because the federal government is charged with overseeing immigration policy and enforcement and because a federal law that classifies based on alienage will generally draw a line between all U.S. citizens and all noncitizens. State laws that afford lesser rights to noncitizens, however, will frequently distinguish not just between citizens of the state and noncitizens, but also between citizens of other states and noncitizens. The latter distinction is seen as especially problematic because states – having little oversight authority in the area of immigration – have little reason to differentiate between citizens of other states and noncitizens. Both groups, to the state in question, are outsiders to some extent. The exception to this heightened scrutiny of such state laws occurs when a political function is at issue. When a state delegates a discretionary political power to an individual, it may make more sense distinguish between individuals based on their connection to the U.S. generally and its political process specifically. These matters are considered too sensitive to validate the imposition of severe restrictions on how a state apportions such functions. 7. Recognizing that security measures taken during an emergency often conflict with personal and economic liberty interests, Professor Gostin would measure the appropriateness of government responses against the level of risk involved. As one might imagine, Professor Gostin is willing to authorize far greater powers in the event of a greater risk, while more minimal risks would require more finely tuned government intervention. The general guiding principles of Professor Gostin’s schema are that the intervention be aimed at mitigating the risk (so that a greater risk countenances a greater intervention) and that action is well-suited to actually mitigating that risk.

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Solution manual the law of emergencies 1st edition nan hunter