Term
| Congressional Powers outlined in |
|
Definition
|
|
Term
| Congressional powers limited internally by... |
|
Definition
|
|
Term
| Necessary and Proper Clause? |
|
Definition
Article I, Section 8, Clause 18
Any means adapted to to enumerated end. |
|
|
Term
|
Definition
Article I Section 8
Congress has the power to regulate interstate commerce |
|
|
Term
| Three Categories of regulatory authority under the Commerce Clause |
|
Definition
(1) Channels of interstate commerce
(2) Instrumentalities of interstate commerce
(3) Local activities which have a substantial economic effect on interstate commerce |
|
|
Term
| Modern Test for category (3) regulatory power under the commerce clause? |
|
Definition
Lopez Test
(1) Economic or Non-Economic? (If Economic, Wickard line of cases e.g. aggregation).
(2) Jurisdictional Element?
(3) Congressional Findings?
(4) Nexus between non-economic local activitiy and the substantial effect on interstate commerce? (Too attenuated?) |
|
|
Term
|
Definition
Wickard (Wheat)
Raich (MJ)
Perez (local extortion)
Morrison (violence against women)
Lopez(Gun Possession in school-zone) |
|
|
Term
| External Limits on Commerce Power |
|
Definition
| Federalism or the 10th Amendment |
|
|
Term
| Modern State of External Limits of Commerce Power |
|
Definition
Applies to:
(1) commands to state legislatures to pass certain legislation and
(2) commandeering state employees to accomplish federal regulatory schemes affecting private individuals (or otherwise confusing federalism based “accountability” rule). |
|
|
Term
| Healthcare and the Commerce Clause |
|
Definition
(1) Large regulatory scheme
(2) Health insurance economic (like wheat).
(3) Individual mandate is focal point of debate. |
|
|
Term
| Individual Mandate of Healthcare and Commerce Clause |
|
Definition
(1) Challengers argue that not buying health insurance is inactivity and this provision compels them to activity. Congress can't regulate economic inactivity, only activity.
(2) Note Raich with possession, act of having something is activity - by extension not having it is also activity.
(3) Requirining people to do things they don't want to do is fair and happens often.
(4) Even if inactivity, Congress can regulate (note Heart of Atlanta and Civil Rights). |
|
|
Term
|
Definition
| Article I, section 8 – Congress has power to lay and collect taxes, duties, imposts, and excises to pay the debts and provided for the common defense and general welfare of the United States. |
|
|
Term
| Taxing Power specifically |
|
Definition
Can't be used as a regulatory device.
Note tax v. penalty distinction. Distinction only matters when law exceeds authority of Congress under enumerated power.
Note Child-Labor Tax Case END-RUN around SCOTUS Decision (Hamer v. Dagenhart). |
|
|
Term
| Spending Power specifically |
|
Definition
| Prefers exercise of spending power because it is nicer to federalism (states perceived as having choice to accept federal money). |
|
|
Term
| Spending Power Test - when Congress offers money to the States with conditions (strings attached), such an exercise of the spending power is valid if: |
|
Definition
South Dakota v. Dole
(1) the spending program is in pursuit of the general welfare (courts generally defer to Congress in defining general welfare);
(2) any condition it includes is unambiguously stated so that the states can make a knowing choice to accept or reject the money; |
|
|
Term
|
Definition
Challenger is claiming state law is unconstitutional because it has been preempteed by valid federal law.
Basis of such challenge is Supremacy Clause of Article VI. |
|
|
Term
|
Definition
| (1) Express (2) Implied Conflict (3) Implied Field |
|
|
Term
|
Definition
Congress expressly states that a federal law intends to preempt certain types of state law.
(1) Determine scope of preemption by Congressional intent.
Congress can also expressly state that a federal law does NOT preempt certain state laws. |
|
|
Term
| Implied Conflict Preemption |
|
Definition
(1) State and Federal law conflict because it is impossible to comply with both. Federal law wins under Article VI Supremacy Clause. Examine Scope.
(2) State law conflicts because it interferes with the objectives of federal law or is an obstacle to federal purpose. Must determine purpose of federal law. |
|
|
Term
|
Definition
The Fed has fully occupied the field it has chosen to regulate. Must show that Congress intended to fully occupy a field and leave no room for state regulation.
(1) Look to nature of regulate area: Note PC&E v. CA State Atomic Agency
Is federal interest dominant?
Traditionally regulated by states? |
|
|
Term
|
Definition
| Federal government has been silent in regulating the area (implies no preemption), but state law imposes unreasonable burden on out-of-state interstate commerce in violation of the Commerce Clause. |
|
|
Term
| Two Tests for Dormant Commerce Clause |
|
Definition
(1) Strict Test - applies if state law facially or purposefully/effectively discriminates against out-of-state commerce.
(2) Deferential Test - if state law adversely burdens out-of-state commerce in a non-discriminatory manner. |
|
|
Term
| Dormant Commerce Clause Strict Test Categories |
|
Definition
Applies to
(1) Facially Discriminatory State Laws (treats interstate worse than local)
(2) Laws not discriminatory on their face, but via extrinsic evidence, are discriminatory in effect.
(3) Purpose of state law is to gain economic advantage. |
|
|
Term
| Dormant Commerce Clause Strict Test |
|
Definition
If facial discrimination = per se invalidity.
Otherwise, state must show:
(1) law serves a legitimate local purpose, and
(2) this purpose could not be served well by nondiscriminatory means (and is of last resort). |
|
|
Term
Dormant Commerce Clause Strict Test
United Haulers Exception |
|
Definition
Government must be regulating traditionally government function and must be securing some kind of benefit to itself - protectionism allowed so long as Pike balancing test is satisfies.
Exception functions to apply deferential test instead of strict test.
United Haulers is the FLOW CONTROL ORDINANCE case. |
|
|
Term
| Dormant Commerce Clause Deferential Test |
|
Definition
Applies where the burden a state law imposes on interstate trade is excessive or an adverse burden. Presumption that state law is valid.
Pike Balancing Test applies - weigh burdens on interstate commerce against local benefits. State law ony invalid if there is a vastly larger burden on interstate commerce than there is a local benefit. If balance about equal, state law is valid. |
|
|
Term
| Dormant Commerce Clause Market Participant Exception |
|
Definition
Applies where state acts as a buyer/seller of goods/services or engages in a program of subsidies or other economic incentives to aid in-state business.
Rule - state can impose burdens on commerce w/in the market in which it is a participant, but no further (e.g. down the stream of commerce, international commerce, natural resources).
United Hauler not market participant. Market participant acts as private business would. Note Alaska (chopsticks). |
|
|
Term
| Privileges and Immunities Clause |
|
Definition
Article IV, Section 2.
Protects rights that are fundamental to the promotion of interstate harmony (rights essential to good relations between the states). |
|
|
Term
| Privileges and Immunities Clause Test |
|
Definition
Intermediate Two-Prong Test
First Prong - challenger must negotiate 3 initial hurdles:
(1) State law treats residents and nonresidents differently and the different treatment is discriminatory.
(2) State law must be challenged by flesh/blood nonresident of the state (not corporation).
(3) Discrimination must adversely affect privilege/immunity of state citizenship - is activity nonresident seeking to engage in fundamental to promotion of interstate harmony? (note difference between recreation and other interests).
Second Prong - burden shifts to state to show that:
(1) State has a substantial reason for treating non-residents differently, and
(2) Does degree of discrimination against nonresidents bear substantial relation to state's objective (are there less restrictive means)? Note New Hampshire v. Piper. |
|
|
Term
| Privileges and Immunities Clause Misc. |
|
Definition
No market participant exception.
Dormant Commerce Clause is a judicially-created doctrine to protect against protectionism.
P&I Clause constitutional text to protect individual rights. |
|
|
Term
|
Definition
No state shall deprive any person of life, liberty, or property without due process of law.
14th amendment applies to states. 5th amendment applies to federal government. |
|
|
Term
| Substantive Due Process Threshold Inquiries |
|
Definition
(1) Is right enumerated or unenumerated?
(2) Is right fundamental or non-fundamental?
Economic Liberty/Property Rights are not fundamental = apply minimum rationality.
Bill of Rights/privacy rights (bearing children, family, raising children, etc) = strict scrutiny. |
|
|
Term
| Substantive Due Process Minimum Scrutiny |
|
Definition
Applies to laws interfering with nonfundamental personal liberty rights, economic liberty rights, and property rights.
Does law use means rationally related to a legitimate state end? |
|
|
Term
| Substantive Due Process Strict Scrutiny |
|
Definition
Applies to fundamental privacy rights (Griswold). Presumption of unconstitutionality.
Does law employ a narrowly tailored means to accomplish a compelling end? Means are not narrowly tailored if less restrictive alternatives available.
Undue Burden Test may apply here. |
|
|
Term
| Substantive Due Process and Undue Burden Test |
|
Definition
From Casey. Operates as a sorting function. So far, applies only to abortion cases, marriage cases.
(1) Does law completely bar a fundamental right?
(2) If no, right is only infringed if state places "undue burden" or obstacle to practice of right.
(3) Look to group most adversely affected by such burden.
Minor "burdens" or intrusions get minimum rationality. Substantial burdens get strict scrutiny. |
|
|
Term
| Substantive Due Process - Fundamental or Non-Fundamental Right? |
|
Definition
(1) Reasoning by Anaology - is right like other fundamental rights or other non-fundamental rights (Bowers)?
(2) History and Tradition - generally rooted in history?
(3) Personal Identity - activities central to persona autonomy? Casey - personal dignity? |
|
|
Term
|
Definition
No state shall...deny to any person within its jurisdiction the equal protection of the laws.
Applied against the states via 14th Amendment. Implied in 5th Amendment to apply against Federal Government. |
|
|
Term
| Equal Protection Clause Standards of Review |
|
Definition
(1) Minimum Scrutiny - non-suspect classes
Classification must be rationally related to legitimate government justification.
(2) Intermediate Scrutiny - gender or semi-suspect classes
Classification must be substantially related to important government justification.
(3) Strict Scrutiny - suspect classes (mainly race/ethnicity).
Classification must be narrowly tailored to achieve a compelling governmental objective. |
|
|
Term
| Equal Protection - Identifying Classifications |
|
Definition
Look at winners and losers.
What groups are treated differently? Why are they treated differently (basis in law)? |
|
|
Term
| Equal Protection - Suspect, Semi/Quasi-Suspect, Non-Suspect |
|
Definition
If unknown, consider using 5 factors:
(1) Is group historically discriminated against?
(2) Trait mutable or immutable?
(3) Trait have any relationship to one's ability to contribute to society (disability)?
(4) Trait often singled out as basis of reinforcing discrimination/prejudice?
(5) Is group numerically powerless, underrepresented, or unable to influence political process? |
|
|
Term
| Equal Protection Application to Purposeful Discrimination |
|
Definition
Equal Protection is violated by purposeful/facial - otherwise invidious - discrimination:
(1) Where discrimination is facially apparent (Loving v. VA ban on interracial marriage).
(2) Where it is not facially apparently, challenger must introduce evidence to show law has discriminatory purpose:
(a) Yick Wo (b) Civil Service & D.C. Cops case (c) Government can mitigate by showing same decision would be made absent classification/discriminatory purpose. |
|
|
Term
| Equal Protection Application to Benign Discrimination |
|
Definition
If invidious = same standard as purposeful discrimination.
Gender = intermediate scrutiny (law helps, doesnt hurt/doesn't reinforce archaic stereotypes).
Benign Racial Classification = almost never compelling end.
(a) Limited to allow "remedy" past discrimination.
(b) Government must consider neutral alternatives e.g. show how they are not sufficient.
(c) Must use most narrowly tailored - note the "time limit" in U of M case. |
|
|
