Con Law Final!

Taxing Power

SSELR

(1) Severity of burden

(2) scienter (knowledge) requirement

(3) enforcement mechanism

(4) lawfulness of noncompliance

(5) revenue production

Spending Clause

PURIC

(1) pursuit of the general welfare

(2) unambiguous such that states/individuals have freely consented

(3) related to a federal interest in a particular program

(4) not independently barred by the Constitution

(5) not so coercive that it is compulsory

Commerce Clause

Congress can regulate:

(1) things that cross state lines

(2) commercial/economic activity within one state that substantially affects things across state lines

(3) incidental things that are necessary and proper to carry out its regulations under the commerce clause. Incidental things must be related to a broader economic regulatory scheme that DOES pass the normal commerce test

(4) aggregation principle!

Cooperative Federalism

When Congress has the power to regulate private activity under the Commerce Clause, SCOTUS recognizes Congress’s power to offer the states a CHOICE of:

(a) regulate the activity according to federal standards

(b) have their state law preempted by federal regulation

Immigration

(1) Congress has plenary power over immigration, inherent part of being a sovereign nation

(2) take note of any potential (A) preemption or (B) anti-commandeering problems

Preemption

(1) Is the federal law a valid exercise of Congress’s power? (tax, spending, commerce, etc)

(2) does the EXISTING state law stand as an obstacle to the accomplishing Congress’s purposes and objectives?

(3) if fact patten doesn’t specify purpose, make one up. Be very general ex. “protecting civil liberties” “uniformity” etc

(4) Types of preemption

(4a) Express - congress expressly said that state laws are obstacles to its objectives. All relevant state laws are preempted EVEN IF they are complementary

(4b) Conflict preemption - 2 types: (1) Obstacle (implied preemption for state laws that are obstacle to Congress’s objectives) (2) Impossibility (implied preemption if it is impossible to comply with both state and federal laws)

(4c) Field preemption - implied preemption because there is a comprehensive federal regulatory scheme that intends to occupy the field (ALL relevant state laws are preempted, EVEN IF complementary)

Anti-commandeering

Congress cannot force states, local govts, or their agents to:

(1) enact or not enact laws

(2) enforce or administer federal regulatory program

HOWEVER, Congress CAN regulate:

(1) judges

(2) regulate states/local govt AS WELL AS private actors

KEY NOTE: Morales v Trans World Airlines - a law that told states that they CANNOT enact certain legislation was still VALID because it created a private right - protecting airlines from state regulation (a private right for a private party, so BOTH govt and private parties regulated = ok!)

KEY 2: Anti-commandeering DOESN’T APPLY to 14th and 15th Amendment

14th Amendment (Enforcement Powers)

A law is a proper exercise of Congress’s 14th Amendment enforcement powers if

(1) it is REMEDIAL

(2) aimed at an affirmative constitutional violation by

(3) the state, its officials, or agents - NOT private actors!!!

AND

(4) the law is congruent and proportional

Congruent - reasonable relationship between nature of injury and nature of remedy (right KIND of medicine)

Proportional - reasonable relationship between intensity of the injury and intensity of the remedy (right DOSE of medicine)

15th Amendment

A law is a proper exercise of Congress’s 15th Amendment enforcement powers if:

(1) the law is REMEDIAL

(2) aimed at an affirmative constitutional violation by:

(3) the state, its officials or agents (NOT private actors)

(4) its current burdens are justified by current needs

(5) any differential geographic coverage is SUFFICIENTLY REALTD to the PROBLEM that it targets

State Action Doctrine

14th and 15th Amendment enforcement CANNOT target PURELY PRIVATE action.

Ex. Congress CANNOT pass a law remedying gender based violence at the hands of private citizens

Nondelegation Doctrine

A Congressional delegation of power to the Executive is constitutional if:

(1) Congress sets out an INTELLIGIBLE PRINCIPLE or any POLICY or STANDARD to guide the executive. Executive can only carry out Congress’s intent, it cannot legislate on its own.

(2) Congress can only alter that delegation through FULL legislative action, which is (a) Bicameralism and (b) Presentment [president signs the law]

KEY: literally NOTHING fails intelligible principle

Removal power / President’s Ability to Manage the Executive Branch

Is Congress placing a condition on the removal of an agency head constitutional?

(1) Sole director led agency - NO, Congress CANNOT limit the president’s ability to fire sole-directors

(2) Multi-member body - PROBABLY ok for Congress to place a limitation, HOWEVER, factors cut against constitutionality:

(a) the director lacks direct accountability to the president

(c) the structure of the agency is NOVEL or lacks historical precedent

(d) the officers have alot of INDEPENDENT POWER

KEY values: we want the president to have effective control over the executive branch. placing conditions on removal makes that harder.

Youngstown Framework

Trigger: are the President’s actions constitutional?

Category 1—————————————————————-

Congress expressly or impliedly authorized the action.

Test: the president’s actions are valid UNLESS Congress itself LACKED THE POWER

do Congressional powers analysis if relevant

Category 2——————————————————-

Twilight zone

Congress neither authorized nor forbade the action

Test: look for signs of congressional:

(1) acquiescence

(2) indifference

(3) inaction

KEYS: historical practice is a key factor.

President has strongest authority in:

(a) foreign affairs

(b) national security

(c) responding to emergencies

(d) other areas where Congress has historically acquiesced

President DOESNT have authority in:

(a) purely DOMESTIC policy questions

Category 3

Congress expressly or impliedly forbade the action

Test: the President’s action is constitutional if it is within:

(1) inherent

AND

(2) exclusive powers of the president

President STRONGEST in:

(a) theatre of war (foreign, active war)

(b) foreign affairs

NOT domestic

Inherent: constitution gave president the power

Exclusive/preclusive: congress has NO POWER over it

KEY: What satisfies Category 3 that is BOTH inherent AND exclusive/preclusive

(1) removal power

(2) recognizing foreign nations

(3) pardons

Civil Immunity

Official acts - meaning: within constitutional authority, including the “outer perimeter” of authority

Official act = absolute immunity

Unofficial = no immunity

Criminal Immunity

Official = not manifestly or palpably beyond president’s authority, Intent DOESNT MATTER!

if official, pick a category:

(1) conclusive & preclusive core const. power (Youngstown Category 3) = absolute immunity

-youngstown 3 = (1) pardon, (2) removal, (3) recognizing foreign nations

(2) other official acts that CAN be regulated by Congress but are within “outer perimeter” of president’s official responsibilites? = presumptive immunity UNLESS criminal prosecution wouldnt pose any danger to executive function

KEY AMBIGUITY: after Trump v. U.S., everything during presidency is basically considered official, but not before or after term of office

(3) unofficiall = no immunity

Rational Basis

Due Process Clause (DPC) questions and Equal Protection Clause (EPC) questions

(1) reasonably related to

(2) a legitimate legislative purpose

-literally any conceivable purpose, not actual purpose

if something gets rational basis review, it almost always passes

Strict Scrutiny

(1) a compelling govt. interest

KEY AMBIGUITY: Lawrence says moral reasons are NOT compelling govt interest but Dobbs says moral reasons ARE a compelling govt interest, mention this on exam!!

(2) narrowly tailored to serve that compelling interest

-usually fails here

Substantive Due Process (SDP) - Which rights ARE Fundamental?

1. marriage (Loving - interracial ; Obergefell - gay)

2. procreation (Skinner)

3. direct and control upbringing of children (Meyer)

4. same sex sexual intimacy (Lawrence)

5. contraception (Griswold)

Substantive Due Process (SDP) - Which rights are NOT Fundamental?

1. Right to die/assisted suicide (Glucksberg)

2. right to education (San Antonio ISD)

3. abortion (Dobbs)

Substantive Due Process (SDP) - Fundamental Rights Test

Fundamental = strict scrutiny ; not fundamental = rational basis

Is a right fundamental? + application:

1. Dobbs/Glucksberg test

   1. (1) carefully described version of the liberty interest (LOW level of generality)

   2. (2) is objectively, deeply rooted in our nations history and tradition

2. Dobbs/Glucksberg apply appropriate scrutiny test + mini conclusion + normative values

3. TRANSITION: Dobbs unclear whether the Glucksberg test only applies to abortion or to all “critical moral questions” and it is unclear whether [the right at issue] is a critical moral question, so we will also apply the Obergefell test

4. Obergefell test

   1. (1) a right described at a HIGH or low level of generality

      1. talk about a high AND a low version, the evolving liberty part makes either of those pass probably

   2. (2) is objectively deeply rooted in our nation’s history/tradition + our evolving notions of liberty

5. Obergefell apply appropriate scrutiny test + mini conclusion + normative values

6. Overall conclusion

   1. quick restate Dobbs/Glucksberg conclusion

   2. quick restate Obergefell conclusion

   3. Pick a side

   4. normative values

Equal Protection Clause (EPC) - Is Noninvidious Discrimination allowed under the EPC?

noninvidious discrimination is allowed under the EPC as long as it passes rational basis meaning:

(1) reasonably related to

(2) a legitimate legislative purpose (any conceivable purpose)

(3) HOWEVER - if there is evidence of animus against a non-protected class (ex. optometrists ; race + gender are protected) then the law must pass RATIONAL BASIS PLUS+ — related to a 2nd SECOND legitimate govt. purpose, must be a purpose besides harming that group

Rational Basis Plus+

if evidence of illegitimate purpose (animus) toward a NON-protected class, then the law needs to be related to a 2nd SECOND legitimate government purpose BESIDES harming that disfavored group

sexual orientation is NOT A PROTECTED CLASS

What are the protected classes (for this exam)?

1. Race

2. Gender/Sex

What are NOT protected classes?

1. sexual orientation

2. everything else

Equal Protection Clause (EPC) - Race

EPC Race protections test:

1. does the law facially classify based on race?

   1. if yes = strict scrutiny (regardless of purpose)

   2. if no, is there discriminatory purpose?

      1. Arlington Heights factors + Feeney

         1. NOTE: Dobbs makes finding discriminatory purpose very hard even with smoking gun

      2. if yes discriminatory purpose = strict scrutiny

      3. if no discrim purpose = rational basis

Arlington Heights Factors + Feeney

Feeney = must be “because of, not merely in spite of”

CHIPS-S

1. contemporary statements by members of the decision making body

2. historical background of the decision

3. impact of the action

4. procedural departures

5. sequence of events leading up to the action

6. substantive departures from considerations relied on in the past

Equal Protection Clause (EPC) - Race Conscious Policies

race conscious policies already facially classify, so AUTOMATIC strict scrutiny (modified)

Does a race conscious policy survive strict scrutiny?

1. is there a compelling interest?

   1. must be measurable and concrete enough to permit judicial review

      1. OK: preventing harm to prisoners, military necessity, remediating specific race based injuries

      2. NOT OK: amorphous / imponderable diversity goals

2. is it narrowly tailored?

   1. must be an exact connection between the justification and the classification

   2. BUT… universities can consider how race has affected a student’s life thru diversity statements, but race alone cannot be dispositive

Equal Protection Clause (EPC) - Gender

EPC Gender - if there is a facial classification, gender, unlike race, gets Intermediate Scrutiny

1. does the law specifically say “man” or “woman” ?

   1. if yes = intermediate scrutiny

   2. if no, is there a discriminatory purpose?

      1. Arlington Heights factors + Feeney

         1. KEY NOTE: the phrase “pregnant people” (Geduldig) and “abortion” (Dobbs) are actually facially neutral

         2. Note 2: Dobbs makes finding discriminatory purpose very hard even with smoking gun

      2. if yes discriminatory purpose = intermediate scrutiny

      3. if no discim purpose = rational basis

Intermediate Scrutiny

Law passes intermediate scrutiny if:

1. serves important government objectives

   1. must be exceedingly persuasive - enforcing stereotypes isnt ok!

   2. an objective isnt important if:

      1. for administrative ease or convenience

      2. overbroad / archaic generalizations / stereotypes about men/women

      3. outdated conceptions of gender roles (females at home instead of working)

2. the law is substantially related to achieving those objectives

   1. extremely hard to meet

   2. KEY: something being true of most people of one sex isnt enough to burden ALL members of the sex (VMI military education)

Intermediate Scrutiny vs Strict Scrutiny ?

remedial interests point toward “important government objectives” - intermediate scrutiny (remedial laws may be ok if there is hard evidence that the law is actually combatting discrimination)

remedial interests do NOT point toward “compelling government interests” - strict scrutiny

basically, remedial laws may survive intermediate scrutiny but generally do not survive strict scrutiny

Full 14th Amendment Framework [WIP]

1. Did Congress pass something?

   1. if yes, continue with framework

   2. if no (no law passed by congress) = just do the individual rights analysis

2. Is the law a valid exercise of Congress 14th amendment enforcement powers?

   1. affirmative constitutional violation

   2. by state, its agents or officials (NOT private parties)

3. congruent and proportional

1st Amendment - Free Speech Clause

Does a conduct regulation violate the First Amendment?

1. is the regulated conduct expressive?

   1. Conduct is expressive when (Spence test)

      1. (1) an intent to convey a particularized message (sujective element)

      2. (2) observers are likely to understand that message (objective component)

   2. if expressive, move to next step

   3. if not, no 1A violation

2. does the regulation have the purpose of suppressing disfavored speech or compelling favored messages?

   1. if no = subject to something like rational basis ???

   2. if yes = strict scrutiny

      1. conduct regulations are only subject to strict scrutiny if their purpose is to “target” or “compel” expression

         1. hard to meet, need specific intent to suppress disfavored speech or compel state’s favored message

      2. Ambiguity: 303 Creative suggests that laws that have the effect of compelling speech (anti-discrimination, wedding website) may count as having discriminatory purpose

      3. Compelled speech is presumptively unconstitutional however there are some instances where compelled speech is valid - securities disclosures, nutrition facts, cigarette warnings, etc

Key: Basically, if you determine that it is expressive conduct, split the analysis into a (1) O’Brien component (the regulation must target/compel expression in order to trigger strict scrutiny, which is hard to do so “something like” rational basis [O’Brien intermediate scrutiny] is the more likely outcome) and (2) into a 303 Creative component (if the law has the effect of compelling speech, like anti-discrimination laws forcing the creation of a gay wedding website) then strict scrutiny is the more likely outcome.

1st Amendment - Free Exercise Clause

Does a law violate 1st Amendment Free Exercise clause?

1. Does the law mention “religion”?

   1. if yes = facial classification = strict scrutiny

2. Does the law have a discriminatory purpose (religion)

   1. for religion, discrim purpose = lack of neutrality

      1. discrim = specifically intended to limit religious exercise

   2. if yes = lacks neutrality = strict scrutiny

3. Does the law treat any secular conduct more favorable than comparable religious conduct?

   1. Most Favored Nation test

   2. if yes = lacks general applicability = strict scrutiny

4. Does the law have a system for grantin exemptions?

   1. if yes = lacks general applicability = apply strict scrutiny

5. If none of the above, apply rational basis

1st Amendment - Free Exercise Clause - Most Favored Nation (MFN) Test

If the law exempts or otherwise favorably treats some secular activity then do MFN test:

1. Does the state extend an exemption or the same favorable treatment to the religious activity at issue?

   1. if yes = strict scrutiny

   2. if no, is the religious activity comparable to the secular activity?

      1. Ask:

         1. (1) what is the governments purpose behind the law?

         2. (2) how much does the secular exemption undermine that purpose?

         3. (3) would a religious exemption undermine the governments purpose the same amount or less?

      2. if yes = secular activity is comparable = MFN violation = strict scrutiny

      3. if no = rational basis

2nd Amendment

Bruen Test

Is a firearms regulation constitutional?

1. only if there is a historical analog to the regulation, meaning that the modern law:

   1. (1) imposes a comparable burden as historical law

   2. AND

   3. (2) is comparably justified to historical law (meaning that it embodies the same underlying principles

HOW TO THINK ABOUT THE BRUEN TEST

1. to see if there is a historical analog ask:

   1. (1) how it regulated arms

   2. (2) why it regulated arms

2. if the how and why are comparable, then it is an analog!

Cases???