Con Law Midterm

Necessary and Proper

All means that are appropriate and plainly adapted to a legit end are constitutional

Commerce Clause Test Part 1

Channels of Interstate Commerce (crosses state lines) (lotto tickets in Champion)

Commerce Clause Test Part 2

Instrumentalitties of Interstate Commerce: intrastate things that serve interstate commerce purposes (stockyards)

Commerce Clause Test Part 3

Substantial effect on interstate commerce / substitution and aggregation (Lopez, Wickard)

Substitution And Aggregation

For economic activity: transactions can be substituted to constitute economic activity (wheat growing substituted for buying wheat, Wickard). And can aggregate that economic activity to create a substantial effect on interstate commerce (aggregating all the wheat farmers that would otherwise buy wheat).

Non-economic activity: can have a substantial effect of IC but can’t aggregate (Lopez: can’t aggregate the effect of bringing a gun into school, Morrison: can’t aggregate effect of gender related violence.

Non-Activity

Congress can’t regulate non-activity and can’t compel individuals to engage in commerce (Sebelius)

Tax vs. Penalty Test

• does it raise revenue?

• scienter requirement (if so, penalty but no scienter requirement doesn’t necessarily mean tax)

• How and when is it collected? (IRS? in tax filing?)

• Is it a financially reasonable decision to pay it? (sebelius fine vs. cost of enrolling in health insurance)

• Does it vary with income level or is it a flat fine?

• where is it in the statute?

• punishment…criminal?

Conditional Spending/Dole Test

• is it in the pursuit of the general welfare?

• the condition cannot be ambiguous (clear condition)

• connection between condition and program (underage drinking and highway funding)

Incentive/Coercion Test

• can not condition old money on acceptance of new program (sebelius, accept new ACA or risk losing preexisting medicare)

• Look to budget: Dole was an insignificant portion of the state budget and of total federal highway funding, compared to Sebelius where existing medicare was over 10% of total state budget

10th A Limits on federal power / Regulating Individuals

permitted so long as pursuant to valid power

10th A Limits on federal power / States as individuals

• when a state is engaged in one end of a transaction, they can be regulated as could any other market participant not protected by 10th A

• States are protected in the form of the political process

• Garcia v. San Anotonio: Congress can regulate wages and hours of states

10th A Limits on federal power / States as States

• Congress cannot tell a state how to directly regulate and force them to legislate a certain way (NY v. US)

• impedes on sovereignty and shifts accountability

Preemption

Express Preemption: federal law facially preempts state law, Congress wrote the legislation to preempt

Conflict Preemption: the federal law necessarily comes into conflict with the state law, cannot follow both

Field Preemption: federal interest so dominant preemption is assumed or congress has so regulated a specific field that is has occupied the field (Arizona v. US)

11th A Immunity/14th A S5

• (Tennessee v lane)

• Congress expressly communicates intent to abrogate the 11th A (only relevant for 11th A issue)

• Identify the right sought to be protected

• identify a history and pattern of violations

• is it congruent and proportional?

• congruent: connection between this provision and underlying violation has to be clear

• proportional: is it over inclusive? is it a remedy or is it prophylactic?

• Congress cannot seek to change a substantive ruling of SCOTUS (Boerne)

All Test

• E/M

• IC Test

• Sub/Agg

• Tax/Penalty

• Dole Test

• Incentive/Coercive

• 10th A Limits

• Preemption

• 11th A/14th S5

Gibbons v. Ogden

Congress has full exclusive power to regulate commerce among the states

Champion v. Ames

Lotto tickets cross state lines, so Congress can use commerce power to regulate them

Houston v. US

railroad case, If a matter has a direct effect on interstate commerce, Congress can regulate the matter even if it’s intrastate. Congress can regulate intrastate railroad rates because there is a direct effect on interstate rates.

ALA Schecter v. US

Congress cannot use commerce power to regulate intrastate activities that have only an indirect effect on interstate commerce

Stafford v. Wallace

Intrastate stockyards can be regulated under commerce power because they are part of the stream of commerce and are a necessary factor of interstate commerce

NLRB v. Jones & Laughlin Steel Corp

Manufacturing is commerce, and Congress can regulate steel manufacturing at a wholly intrastate facility because it has a “close and substantial relation” to interstate commerce

US v. Darby

Congress can regulate something as long as it substantially affects interstate commerce so long as it does not infringe on any constitutional prohibitions

Wickard v. Filburn

Congress may regulate local activity if that activity exerts a substantial economic effect on interstate commerce (substitution and aggregation)

US v. Lopez

Congress can’t regulate guns in school zones under commerce power. Guns in school zones is not an economic activity, and cannot be aggregated to show a substantial effect on interstate commerce

US v. Morrison

Congress does not have power to regulate gender motivated violence under the commerce clause. Gender motivated violence is not an economic activity so cant be aggregated to show a substantital effect

NFIB v. Sebelius

Activity vs. Nonactivity. Congress cannot regulate economic inactivity, cannot compel individuals to participate in commerce on grounds that inactivity (not buying insurance) substantially affects IC

McCray v. US

Congress can encourage/discourage behavior by imposing taxes. Taxation does not have to be the only motive of a tax (oleomargine taxed higher than butter)

Bailey v. Drexel Furniture

A tax passed by Congress cannot actually be a penalty, that is unconstitutional, Congress can’t levy a tax to coerce the people of a state to act in a certain way in an area that is reserved for state governments

South Dakota v. Dole

Congress can condition its spending grants to state as long as it isn’t coercive

Steward machine co v. Davis

Social security program case. difference between a tax being an incentive vs. being coervice

Gonzalez v. Raich

Congress may regulate the use and production of homegrown marijuana because this activity, taken in the aggregate, could rationally be seen as having a substantial effect on IC

Garcia v. San Anotonio

Overrules traditional government functions test, regulating a public actor (state owned bus company) under commerce clause does not violate state sovereignty

NY v. US

Congress may not compel states to enact or administer a federal regulatory program.

Tennessee v. Lane

Congress has prophylactic s5 power, can pass legislation to remedy and deter violation of rights guaranteed by the 14th A by prohibiting a broader swath of conduct (can pass legislation about things not express written into the 14th A to preclude discrimination that is written in 14th A)

Arizona v. US

state law disturbed the balance that Congress had set out in fed immigration law (between foreign affairs and immigration laws). State law preempted by fed law through conflict preemption

Rational Basis Scrutiny

government action must be rationally related to a legitimate governmental interet

rational —> more likely the state interest will be accomplished than before

Rational Basis Plus

• Is there a whiff of some sort of motivating animus

• ask whether the stated end is the actual end

• expressing animus or society’s animus is not a legit gov interest (Moreno, Cleburne)

Strict Scrutiny

Policy must be narrowly tailored to a compelling governmental interest

Intermediate Scrutiny

Policy must be substantially related to an important governmental interest

Race based classifications - EXPRESS

• Apply strict scrutiny

• Compelling governmental interests

  • human safety risks in prisons

  • remedying specific and intentional past acts of discrimination

• Narrowly tailored means

  • There must be a meaningful connection between the means use and its goals, and limited (not broad)

  • Cannot stereotype → no inferences based on race about the person

  • cannot be used in a way that is a negative to someone else (ex: higher ed admissions, zero sum)

  • no quotas

• There must be a defined end date / sunset period

• In education: you can still talk about race as it contributes to you as an individual and your background

• if not race but a correlated proxy (like socioeconomic status) → just rational basis

Race based classifications - NOT EXPRESS / facially neutral

• we must identify discriminatory intent to invalidate the law

• look for discriminatory intent

  • disproportionate impact on one racial group, historical context, leg history, departure from norms → can be evidence of discriminatory intent (IHDL)

2 tests

• Arlington Heights - if discriminatory intent is present, burden shifts to government to prove that the discriminatory intent was not a motivating factor (law would have been passed despite the racial intent)

  • if racial discrimination was a but for cause → invidious → strict scrutiny, and say invidious discrimination is not a compelling interest so it fails

  • if NOT a but for cause → rational basis, will likely pass as long as there is some legitimate government interest involved

• Trump v. Hawaii

  • must be inexplicable by anything other than animus. Then, use rational basis to examine the relationship to the end

    • if explainable by other things → rational basis

    • not explainable → SS

Sex Discrimination

• Standard of Review: Intermediate Scrutiny

• Must satisfy “substantially related to important gov objective” AND

• Exceedingly persuasive justification (US v. Virginia)

  • justification must be genuine: must actually have been the gov’s justification when they established the policy

  • can’t rely on overbroad generalizations about the different talents, capacities or preferences of males and females

    • EPC is an individual right, if one person can do it/is asserting it, it can’t be denied on a generalization

  • Can’t create or perpetuate the legal, social, and economic inferiority of women