Con Law Complete Flashcards

Dole (1987)

Facts: witheld federal highway funds because the state wouldn’t change the drinking age from 19 to 21

Holding: Legislation is constitutional even though congress itself can’t regulate a federal drinking age

Reasoning: Spending clause allows conditions to attach to federal funds if:

• In pursuit of general welfare

• conditions are clear and unambiguous

• they are closely related to the underlying funding purpose

• no other independent constitutional provisions preempt the imposition of such condition

• it is mild inducement not coercion

Dissent: difference between spending and legislating (can spend for general welfare but attempts to legislate state law supersedes powers)

Sebelius (Spending Clause)

The obama-care medicaid act had multiple sections the individual mandate and the medicaid expansion.

Individual mandate was not within commerce clause powers, but was okay under Tax & spend, not severe enough to be coercive, not limited to will and raised revenue and was collected by IRS like any other tax

The MEDICAID EXPANSION was coercive becuase Congress didn’t have the authority under the spending clause to threaten states with complete loss of funding

• essentially complete loss is taking away that chocie of whether or not to participate

New York v. United States

NY v. U.S. ( 1992): Legislation for states to take more responsibility for disposing their own radioactive waste. Take title provision— If you (a state) don’t start managing your waste by 1996, the waste is yours.

-HOLD: Congress may not compel states to enact or administer a federal regulatory program → take title provision does that; functioning like coercion.

- REASONING: Federal govt argues for balancing test, and argue that states drafted this → Ct: state sovereignty isn’t for states’ sake, it’s for citizens’ benefit

-White concurrence: want a balancing test (federal interest v. state interest) because federal interest in managing waste is much more substantial (legal realist approach)

Printz

Gun Control Act 1968 section put prohibitions on transfers of guns. CLEOs (state actors) challenged that congressional action compelling state officers to execute federal laws is unconstitutional

-HOLD: Congress may not compel state officials to participate in the administration of federal programs.

-REASONING:

-Will mess up lines of accountability, and state ends up incurring costs as well

-Federal power would be too significant → Scalia uses formalist approach based on state sovereignty

Reno v. Condon

Congressional Driver's Privacy Protection Act of 1994 prohibited SC from disclosing drivers’ personal information to third parties.  Stalking primary impetus to the Act. 

-HOLDING: Held that even though a state may need to take administrative or legislative action in order to be in compliance w/ a federal statute, such practical requirement is not an act of commandeering.

-REASONING: The law does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals. Seems like a balancing test was done

Murphy v. NCAA

-Congress passed the Professional and Amateur Sports Protection Act (PASPA) to prohibit state-sanctioned sports gambling,

-HOLDING: PASPA’s provision prohibiting state authorization of sports gambling schemes violates the anticommandeering doctrine

-no meaningful difference between directing a state legislature to enact a new law or prohibiting a state legislature from doing so, and PASPA's anti-authorization provision violated the anticommandeering principle because it specifically mandated what a state could and could not do. The Court stated that complying with the anticommandeering rule is important because it serves as one of the Constitution's structural safeguards of liberty, advances political accountability, and prevents Congress from shifting regulatory costs to the states.

Dormant Commerce Clause [what is it & why do we have it]

Judicially created doctrine that can prohibit states from doing stuff even if the Constitution says nada and Congress is silent. STATE ACTION AT ROOT OF THIS CLAIM. (authority in 10th amendment)

Why do we have it?

• representation reinforcement: people from one state are not represented by elected official in others/ cannot vote —> so its unfair when one state’s legislation effects people in another state

• Free Market: protectionism is a threat to to a free national market —> we don’t want interstate commerce dampened by competition between states

• Economic Balkanization: state competition may pose threats to integrated economy. Statutes that are simply economic protectionisms are presumptively invalid

  • we want uniformity of policy

  • we want common market policy

  • we want to avoid trade wars

3 Theories of DCC

1.Mutually exclusive regulation: Fed gov has certain set of powers, states everything else, no real encroachment between the 2

2.Concurrent regulation overlap, but states cannot violate other constitutional provisions or interfere with federal regulation (nothing dormant b/c limitations come from federal regulation)

3.Authorized concurrent regulation can regulate interstate commerce but not if inconsistent with federal statutes or with negative goals (i.e. anti-trade wars) of Commerce Clause

Gibbons v. Ogden (DCC)

HOLD: Clause to be plenary, all-encompassing, and absolute!  Marshall does acknowledge that state and fed can both regulate commerce, but if state law conflicts w/ Congressional regulation, the state must yield.

-REASONING: navigation is intercourse, w/in regulatory power of Commerce, and to assert otherwise would render the Commerce Clause of the Constitution useless.  Only type of commerce not covered by Clause is that exclusively within the state.

The Milk Cases

Laws struck down bc protectionist and shielding farmers from out of state milk producers; they didn’t violate any particular provision of Constitution or b/c they conflicted with federal law, but they conflicted with policies of trade wars among states

-Ex: Baldwin, Ct. struck down NY law barring importation of out-of-state milk that didn’t adhere to local price minima – law set a barrier similar as a customs duty (triggers trade wars, reprisals).

-Dean Milk: Under this standard, presume statute was invalid and strike it down unless the state was able to establish (1) that it has a legitimate state interest that (2) could not be served by any less discriminatory means.

Philadelphia v. NJ

-NJ bars importation of garbage from other states, citing health and environment.

-Holding: Statute struck down: method used is discriminatory b/c burden falls only on out-of-state interests, notwithstanding fact the goals may be legitimate.

-Reasoning: Outcome explained on representation-reinforcement grounds.  adversely impact out of state waste producers are not represented in NJ, but it effects their interests. No basis to distinguish between in state and out of state garbage.

-Counter argument: already adequate representation of the impacted people by the garbage companies that brought the suit in the first place.

Kassel

truck size limitations w/ exceptions in IA, claim under DCC; 55 foot v. 65 & 70 ft trucks

-HOLD: unconstitutional after balancing test because there is disproportionate burden on out-of-state businesses; and exemptions appear designed to favor in-state interests. 

-REASONING: Traditional deference to legislature for public highway safety usually works b/c burden of law usually falls equally on a state’s local economic interests as well as other states, so the local political process serves as check on burdensome regulations

-DISSENT: Should have used rational basis. Striking down law bc Consolidated voluntarily chose to use bigger trucks is compelling IA to yield to policy choices of neighboring states. Court should not strike down legislation by asserting dubious legislative motives

West Lynn Creamery

tax on dairy products, and then subsidized local dairy industry

-Hold: Stevens says it’s same effect as economic tariff and states cannot tax other statesGraham

Graham v. Heald

- Michigan and NY had laws allowing in-state wineries to directly ship alcohol to customers but restricted out-of-state wineries from doing so

• State authority to engage in such economic discrimination was not the purpose the 21st Amendment. Moreover, in modern cases, that amendment did not save state laws violating other provisions of the Constitution.

Supremacy/Preemption Clause [What it is & When It Applies]

The Power:

• Congress can enact federal statutes that override or preempt state law

• Duly authorized regulations promulgated by a federal agency may also have preemptive effect

How does preemption occur→ Congress must act

-Congress HAS ACTED (unlike DCC analysis, which is about whether a state law conflicts with policy against trade wars in DCC)

Types of Preemption (3)

Express: preemption by stipulating in a federal statute, OR include a “savings clause” that would prevent preemption (but sometimes that can immunize the state regulation from DCC attack as well)

Implied preemption:

a.Preemption by inconsistency: Without explicit preemption provision, federal statute will preempt state laws whose operation is inconsistent with that of federal statute i.e. where compliance with both would be impossible OR if state regulation is an obstacle to execution of the full purposes/objectives of Congress

b.Occupying the field: Fed. Statutes occupy the field, federal regs so pervasive as to make reasonable inference that Congress left no room for states to supplement it OR federal interest is so strong that it’s assumed to preclude state laws. this category applies EVEN IF state law isn’t in actual conflict with any federal statute

Arizona v. United States

AZ immigration statute.

-Hold: Strikes down provisions when fed. has occupied the field of alien registration; when provision undermines fed. Scheme by adding new misdemeanor for migrants working; provision of probable cause arrest violates principle that removal process is discretion of fed.

Market Participant Exception (DCC)

allows state and local governments to favor in-state interests over out-of-state interests when they act as buyers or sellers of goods/services rather than as market regulators.

Equal Protection Clause

14A, §1

Procedural Due Process

14A, §1

Substantive Due Process

14A, §1: Protects state depriving individuals of 14A "liberty...without due process of law"

Equal Protection and Due Process Enforcement Power

4A, §5

Reverse Incorporation of Equal Protection against Fed

5A + Bolling applies EP against the fed govt

Due Process against Fed

5A

ALL Congressional enumerated powers

Art. 1 §8

Commerce Clause

Art. 1 §8 Clause 3

Dormant Commerce Clause

Inferred from Art. 1 §8 Clause 3 Commerce Clause and Art. 4 Privileges and Immunities: prohibits state laws that unduly restrict interstate commerce, even when there is no congressional legislation.

Spending Power

Art. 1 §8 Clause 1

Supremacy Clause

Art. 6, Clause 2

Powers Reserved to the States / Anti-Comandeering

10A

Privileges and Immunities Clause

Art. 4, §2, Clause 1

Dormant Commerce Clause vs Article 4 Privileges and Immunities

Commerce Clause: protects interstate commerce + national market, applies even w/o discrimination, has market participant exception

Art. 4 Privileges and Immunities: protects out-of state citizens, applies only to discrimination, esp. re: important civil/economic interests like livelihood, no market participant exception.

Commerce Clause vs. Dormant Commerce Clause

Commerce Clause: empowers Congress to regulate commerce among the states

Dormant Commerce Clause: prohibits states from regulating in ways that favor in-state economic interests over out-of-state competitors.

Strict scrutiny

(1) compelling govt interest (2) narrowly tailored means

Intermediate scrutiny

(1) important govt interest (2) substantially related means

Rational basis

(1) legitimate govt purpose (2) rationally related means

Congress passes a federal law regulating private conduct

Ask what is the source of federal power: commerce clause, spending power, 14A §5 enforcement power?

If §5, ask whether there is underlying state action

Congress offers states money/federal funding to do X

Art. 1 §8 Clause 1 Spending power analysis

Congress orders a state to legislate, regulate, or enforce federal policy

Commandeering / anti-commandeering analysis (10A; NY; Printz) analysis

Congress makes a law aiming to protect equality or due process

14A, §5 Equal protection and due process enforcement power analysis

Civil penalties or a deprivation of funding in the legislation

Art. 1 §8 Clause 1 Spending power analysis

State or city passes a law favoring in-state over out-of-state businesses

Art. 1 §8 Clause 3 Dormant commerce clause analysis

Federal law and state law regulate the same subject

Art. 6, Clause 2: Preemption / Supremacy Clause analysis

STATE treats out-of-state citizens worse than its own citizens in pursuing a livelihood or other important civil/economic activity

Dormant Commerce Clause analysis

STATE law treats people differently based on ESTABLISHED suspect class (ie: race, sex, national origin, etc.)

State action satisfied for 14A EP analysis → determine if law is facially neutral or facially discriminatory → IF YES: apply correct scrutiny level based on class

FED law treats people differently based on ESTABLISHED suspect class (ie: race, sex, national origin, etc.)

5A (+ Bolling) Reverse-incorporation + 14A EP analysis → determine if law is facially neutral or facially discriminatory → IF YES: apply correct scrutiny level based on class

STATE law treats people differently based on class NOT ESTABLISHED as suspect

State action satisfied for 14A EP analysis → ARGUE NEW SUSPECT CLASS → determine if law is facially neutral or facially discriminatory → IF YES: apply intermediate or strict scrutiny level based on class

PRIVATE actor being sued, or has a govt contract, or doing a govt-like function

Evaluate whether the private party is a state actor first (Civil Rights Cases, Marsh, Burton, Shelley, Moose Lodge); IF YES → 14A EP analysis

STATE action burdens ESTABLISHED fundamental right (bear arms, travel, vote, property, privacy, procreation/sexual intimacy, marriage, childrearing, contraception)

Fundamental Rights analysis, ask: (1) Is there state action? (2) Is the law actually infringing the fundamental right? (3) Apply strict scrutiny b/c right is fundamental

STATE action burdens right to bear arms

2A Fundamental Rights analysis: govt must show the regulation is "consistent with nation's history of firearm regulation" (Rahimi; Bruen)

STATE action burdens RIGHT NOT RECOGNIZED as fundamental

Fundamental Rights Analysis: (1) Is there state action? (2) ARGUE NEW FUNDAMENTAL RIGHT (3) Apply strict scrutiny b/c right is fundamental

STATE violation of right enumerated in the BoR

Ask whether right is incorporated against the states (currently 1A, 2A, 4A, 5A, 6A, 8A are incorporated) → IF YES: Apply strict scrutiny b/c right is fundamental

FED violation of right enumerated in the BoR

Bill of rights applies directly to federal govt

Individual's benefits are terminated or they are denied a permit/license

Is there state action? IF YES → Procedural Due Process (14A, §1 if state/local, 5A if federal)

Equal Protection and Fundamental Rights threshold question: Is there state action?

If private actor, satisfy any of the following: (1) Does the actor function like the govt (Marsh - public function doctrine)? (2) Is there judicial enforcement of the discrimination (Shelley)? (3) Is state a joint participant (Burton)? (4) Is state significantly involved (significantly involved)?

Equal Protection Analysis

(1) State action? (2) Suspect class? (precedent or use Carolene to create new) (3) Facially discriminatory or facially neutral?

Equal Protection: Facially Neutral law

(1) Is there disparate impact?; IF YES → heightened scrutiny (2) IF NO INVIDIOUS INTENT → Argue Yick Wo-level disparate impact

Equal Protection: Facially Discriminatory law

Apply heightened scrutiny, strict vs intermediate depends on the class

Equal Equal Protection, Arguing a new Suspect Class

Carolene Products Footnote 4: Court should apply heightened scrutiny where: (1) Legislation violates Bill of Rights; (2) Legislation prevents majoritarian access to change/repeal laws, and (3) Legislation targets "discrete and insular minorities"

ALSO ASK: (1) Has historically been politically powerless? (Romer); (2) class is immutable and has a history of discrimination? (Frontiero); (3) history and experience support this class receiving higher scrutiny? (Cleburne - "No single talisman..")

Congress' Power to Enforce 14A §5 Analysis

(1) Is the Federal law regulating state action?(2) IF YES: Is Congress enforcing the amendment or are they interpreting it? (enforcement req. remedying a history of state-sponsored discrimination or a current problem) (3) IF YES: Is the remedy proportional?

Equal Protection: suspect classes recognized by the court receiving STRICT SCRUTINY

Race (Loving) & Immigrants w documentation vs. state

Equal Protection: suspect classes recognized by the court receiving INTERMEDIATE SCRUTINY

Sex (Craig v. Boren) & Parentage (Nguyen, Morales-Santana)

Equal Protection: suspect classes recognized by the court receiving RATIONAL BASIS

Sexuality Gender Identity (Romer); Disabilities (Cleburne); Age (Skermetti); Poverty/Wealth; Immigrants w documentation vs. federal; Immigrants w/o documentation vs. state

Fundamental Rights Analysis

(1) State action? (2) Fundamental right? (enumerated in BoR, w/i penumbras, create new) (3) Is the state action infringing on the fundamental right?

YES TO ALL → strict scrutiny; NO TO ANY → rational basis

Fundamental Rights recognized by the court

Property; freedom from unreasonable search and seizure(4A); bear arms (2A); 1A freedoms of speech, religion, press, assembly; zones of privacy (Griswold); marriage (Obergefell); procreation/sexual intimacy (Lawrence); and abortion (overruled by Dobbs)

Fundamental Rights Analysis: Arguing New fundamental right

Satisfy ANY of the following based on what fits your argument: (1) Is there state action? (2) Is the right w/i the penumbras of the Bill of Rights? (3) Is the right "implicit in the concept of ordered liberty?" (4) Is the right "fundamental to American scheme of ordered liberty" or "deeply rooted in history and tradition?" (5) Does deprivation "offend cannons of decency and fairness?"

IF YES → Strict scrutiny, IF NO → Rational basis

Commerce Clause Analysis

Choose the most appropriate test: (1) channels of commerce (2) stream of commerce (3) close and substantial relation

Commerce clause: Channels of commerce

The physical infrastructure through which interstate trade moves (think: good itself being shipped through highways, waterways, air traffic, etc.)

Commerce clause: Stream of commerce

The product is currently intrastate but either has been in the "stream" across state lines in the past or will in the future be shipped across state lines (think: product from one state processed entirely intrastate in another state or is grown + processed intrastate but will eventually be sold out of state)

Commerce clause: Close and substantial relation

Congress can regulate intrastate activities that are not themselves interstate, but have a "substantial effect" on interstate commerce

Dormant Commerce Clause Analysis

Pike Test: (1) Is the state action protectionist? Simple economic protectionism → strict scrutiny (2) If the state action advances a legitimate state objective → balance the health & safety interests against economic impact; EXCEPT when state is participating in market as a purchaser

Spending Clause Analysis

Dole Test: tax & spending power allows conditions to be placed on receipt of federal funding if: (1) in pursuit of general welfare (cts should defer to Congress as to what that is); (2) conditions provide states with a clear, unambiguous choice; (3) conditions must be relevant to spending closely related; (4) other constitutional provisions may provide an independent bar (e.g., violation of due process)

Commandeering Analysis

Congress may NOT do ANY of the following: (1) compel states to enact or administer a federal regulatory program (New York); (2) compel state officials to participate in the administration of federal programs (Printz)

Express Preemption

Congress explicitly states in a statute that federal law overrides conflicting state/local laws, unless a "savings clause" preserves state law

Conflict Preemption

Federal law preempts state law when compliance with both is impossible or state law undermines federal policy

Occupying the Field (Preemption)

Federal regulations are so pervasive or the federal interest so strong that Congress is presumed to have left no room for states to supplement (ex: immigration, FDA regs)

Due Process / Fundamental Rights / Equal Protection claims

Brought by an individual claiming infringement

14A §5 Enforcement / Commerce clause / Spending / Anti-commandeering

Used to determine if govt has the power to pass the law

United States v. Skrimetti

EPC challenge: TN wanted to uphold statute that prohibited doctors from prescribing hormone blockers to minors for the purpose of delaying puberty —> State said their government interest was for kids to embrace their gender & argued that this wasn’t a ender classification but a classification based on age & medical use

Statute upheld as valid —> RBR due to age & medical use classification

Griswold v. Connecticut

Planned parenthood doctors were arrested for providing contraceptive drugs to patients.

9th amendment suggests that there are“penumbras” or implied rights within the constitution —> inferred from “zone” created by 1st, 3rd, 4th, & 9th

Marital privacy is likely inferred in this zone given that the history & tradition of the institution of marriage existed far before the BoR

Lawrence v. Texas

Texas statute criminalized homosexual conduct” such as “deviate sexual intercourse”

Court said consenting individuals should be able to engage in activity of their choosing that is legal for everyone else within the own confines of their homes and private lives. There is no long-standing laws in American history that are directed t homosexual conduct in a distinct matter

Perceived “immorality” is not a sufficient reason for upholding a law prohibiting that practice (history & law support this; i.e. Loving and miscegenation laws)

Obergefell

Court recognized same sex marriage and held that the 14A guarantees marriage as a fundamental liberty to everyone regardless of sexual orientation.

The right to marry is a fundamental liberty because it is

(1) inherent to the concept of individual autonomy

(2) it protects the most intimate association between two people

(3) it safeguards children and families by according legal recognition to building a home and raising children

(4) it has historically been recognized as the cornerstone of society. 

Eisenstadt

unmarried people have the right to (privacy) contraception, laws cannot distinguish between married and unmarried women

2 zones of privacy created: space (search & seizure) & personal autonomy (decision-making)

Roe

established right to abortion — trimester rule; overruled by Dobbs

history on abortion was was a relatively new idea and common law didn’t even prohibit before first heartbeat (“currently vintage”)

court thought right to privacy was “broad enough to encompass” abortion

right is included in zone, but not unqualified

Casey

Established a new test for determining when abortion is allowed; got rid of trimester rule and implemented viability rule and undue burden standard (legislation can implement laws to persuade a certain choice but cannot be an obstacle in the way of a person’s ultimate choice)

Dobbs

•Constitution does not confer a fundamental right to abortion – used history and tradition test, sent it back to the states . Five factors to overrule precedent:

•Reliance on precedent is absent

•Nature of the error

•Quality of the reasoning

•Disruptive effects on other areas of the law

•Workability of the rule

Skinner

ultimately adjudicated under EPC claim, but involved an attempt to sterilize those who have committed 2 felonies.

Skinner represents the Supreme Court of the United States’ growing awareness of the right to reproductive autonomy. Unlike later cases that focus on due process and a right to privacy, the majority in Skinner holds that sterilization in the present situation violates equal protection principles.

Palko

SC rejected that double jeapordy was incorporated into 14th DP; said that only those rights which are fundamental to the concept of ordered liberty

Bruen

•2022) – NY’s gun-licensing scheme violates 2^nd Amt because violates right to bear arms – extends to public carry for self-defense

requires convince an officer or judge that a licensee is of (1) good moral character, (2) has no hisotry of mental illness, (3) no good excuse exists to deprive the license, and (4) there is a special need for it

•Bruen test – requires government to demonstrate that a regulation is part of historical tradition (but like there weren’t many places where guns were prohibited in the 18^th century)

McDonald

•2010) – 2^nd Amt applies against the states (incorporated) because the right is fundamental to our scheme of ordered liberty and deeply rooted in this Nation’s history and traditions (Duncan Formula).

Staes may regulate the right but cannot deny it categorically

Is the right within the penumbras of the bill of rights?

Privacy - Griswold

Marriage - Obergefell

Parenting rights/child-rearing - Meyer

Procreation/Sexual Intimacy - Lawrence

Contraception - Eisenstadt

Abortion - Roe, Casey; O/T by Dobbs

Rahimi

§ 922(g)(8) prevents individuals who have been found to pose credible threat to physical safety from carrying firearms. Court found that this aligned with the history and traditions test – do not need to show that firearm regulation is identical to a historical firearm regulation, merely that it is consistent with our history of firearm regulation.

Buck v. Bell

•– sterilization of institutionalized woman upheld because there was an alleged sufficient state interest in promoting public welfare which justifies the statute against a substantive due process argument 

-Argued that statute was unconstitutional b/c it intruded on bodily integrity in violation of substantive due process and applying it to only disabled people was underinclusive to violate E.P.

Washington v. Davis

DC Cop case that evaluated whether a hiring practice of the District of Columbia was racially discriminatory. The Court ruled that a disproportionate impact on minority candidates did not establish a violation of the Civil Rights Act without proof of intentional discrimination.

Insufficient numbers for Yick Wo standard of diaprate impact, therefore depended on existence of intent —> court ruled that the district had a rational basis for wanting its candidates to have a certain proficiency in reading/writing comprehension

NO EPC —> upheld, passed RBR

Palmer v. Thompson

Segregated pool case; State didn’t want to integrate their pools so they shut down 5 of the town’s pools both for all people. They said that their reasoning was that there was no way to run them safely while integrated and since it didn’t only effect one class of people so there is no disparate impact claim.

Yick Wo

Laundromat case; unequal operation of the law with such an insane level of disparate impact(out of 200 Chinese applicants only 1 was given approval) —> supported by empirical evidence

Feeney

Veteran Hiring Policy Case; Feeney (honorably discharged veteran) was ranked below other honorably discharged veterans who scored lower than her for preference in civil service positions —> court said veteran status is not uniquely male & some women did benefit from the scheme so no disparate impact enough be Yick Wo level & absence of invidious intent = RBR approach

Gomillion

28-sided gerrymandering case; ousted all but 4 black Americans from inclusion in the district effectively taking way their voting power = Yick Wo level impact showing evil intent & received HS

Arlington Heights

town created ordinances that required 2 acres of land per lot, effectively ousting MFH & low-income housing plans; requires 4 considerations

(1) is there a history of discriminatory actions toward class at issue

(2) Is there a specific, suspicious chain of events leading up to the decision?

(3) Did the decision-maker break from normal procedures?

(4) Did the decision depart from typical, rational, or substantive considerations?

STRUCK

Bolling v. Sharpe

DC school segregation case, reverse incorporated the 14th amendment's equal protection clause into the Due Process Clause of the 5th Amendment because it did not make sense for equal protection to apply to states and not the federal government.