Commerce Clause Analysis
What is a jurisdictional Hook
Limiting the congressional act in such a way that it applies to particular activities that has a direct link Interstate Commerce
What are the three levels of Scrutiny
Strict Scrutiny
The government has to show that the law is necessary to achieve a compelling government interest
Intermediate Scrutiny
The government has to show that the law is providing a compelling government interest and that it is substantially related to achieving that interest
Rational Basis Test
A law must show that it is rationally related to a legitimate gov't purpose
What are the two ways to reach strict scrutiny?
What is the policy argument for Dormant Commerce Clause
preserves a national market for goods and services; plus protectionist legislation, discriminatory to out-of-staters, cannot be remedied by the political process.
What are some of the fundamental rights decided by the court?
(4 and a half that we have talked about)
Bonus if you can name the one taken away RIP
Right to Custody of One's Children
Right to keep one's family together
Right to Procreate & Reproductive Autonomy
Congress must prove the means chosen is _______ to regulating commerce.
rationally related
What is the Intermediate Scrutiny Test
Who has the burden of proof?
What are the classifications?
A law is upheld if it is substantially related to an important government purpose, and Must be narrowly tailored
The Government has the burden of proof
Gender and Bastardized Children (legitimacy)
What are the 2 types of preemption? What falls under them?
Express Preemption- In the text of the federal law
Implied Preemption
1) Conflict Preemption- Cannot comply with state and federal law simultaneously
2.) Field Preemption- When Congress occupies a field, the Court says there is no room left for State or local legislation.
Arguments against Dormant Commerce Clause
Separation of Powers and Federalism = the modern balancing test allows the Court to make policy decisions and judgment calls, which make them take on more of a legislative role. Plus, the “dormant commerce clause” is an exercise of judicial power where it is not expressly found in the constitution (a la Thomas)
Whether it is deeply rooted in history and tradition, and
whether it is "implicit in the concept of ordered liberty," meaning it's essential for individual dignity and freedom.Look at if the right is
⚬Under taxing and spending power - Congress may attach conditions to federal funding.
⚬Congress could set federal standards through regulation, which the state and local action would then have to meet = preemption
Strict Scrutiny Test?
Who has the burden?
What classifications fall under Strict Scrutiny?
A law is upheld if it's proven necessary to achieve a compelling government purpose, and this has to be narrowly tailored
Challenger has the burden of Proof
Classifications: Race, ethnicity/national origin, and alienage (only if its States)
What Clause does Preemption deal with
Supremacy Clause
What are the exceptions to the Dormant Commerce Clause?
What are the definitions?
1.) Congressional approval: if congress approves it
2.) Market Participant Exception: If the state is working as private company the State may favor its own citizens in dealing with gov't owned business and in receiving benefits from gov't programs
What is the framework for Fundamental Rights (Analysis)
2.) Has that right been infringed upon
3.) Is there a significant justification for the infringement
4.) Are the means sufficiently related to the purpose?
What era did the court have specific limits on government control on commerce?
Lochner Era
What is the Rational Basis Test
What is a "legitimate gov't purpose?"
Give me some classifications for Rational Basis Test
A law will be upheld if it is rationally related to a legitimate government purpose.
Legitimate Gov’t Purpose- if it advances a traditional police purpose, i.e., protecting the health, safety, or morals of the public.
Classifications: –Age, wealth, disability, alienage (fed. only), and anything else not listed in intermediate or strict scrutiny.
Can complimentary state law (even preempted) work in field preemption?
NO
What is the Pike Test? When does it apply?
Pike Test: apply to facially neutral laws that burden interstate commerce
Law is invalid if either: the state has no (or only a miniscule) legitimate interest in creating the burden. Or the state’s interest can be completely achieved by regulations that place a lesser burden on interstate commerce
When do we apply strict Scrutiny? When do we apply rational basis?
Bonus if you can tell me what each mean
If the court finds a fundamental right, then it applies strict Scrutiny.
If it is not a fundamental right or if the law is not discriminatory on its face
What is the Commerce Clause Analysis
1.) What is Congress Regulating
⚬Is it a channel?
⚬Instrumentality?
⚬Is it an activity that substantially relates/effects interstate commerce?
2.) If under "Substantial effects"- is it economic or noneconomic activity?
⚬Economic (concerning production, consumption or distribution of interstate commerce; commercial transaction) = aggregate.
⚬Non-economic (Lopez: possession not enough; Morrison: violence not enough) (too attenuated to interstate commerce alone) = look for jurisdictional hook.
3.) Is it limited by the 10th Amendment or another provision of the Constitution?
⚬Federalism
⚬Separation of powers
⚬Individual liberties
Walk me through an Equal Protection Analysis
1.) Say the Fifth Amendment- federal gov't or 14th Amendment- if its state
2.) What is the gov't classification here
3.) Is it discriminatory on its face or in purpose and effect
4.) What level of scrutiny should be applied
5.) Is the level of scrutiny satisfied
What is a 4-step Preemption Analysis?
1. Whether this is an area where the fed. gov’t has played a unique role, i.e., foreign policy.
2. Whether Congress has expressed its intent to have exclusive authority in the area.
3. Whether the state/local regulation would interfere w/ the efforts of the fed. law.
4.Whether the law serves any important, traditional state/local interest.
First we look at the law?
Is it facially discriminatory? Or is it facially neutral law?
2.) If it is facially discriminatory:
1)Laws that are discriminatory on its face or discriminatory in purpose or effect (meaning facially neutral with discriminatory purpose or facially neutral with discriminatory effect) = strong presumption against the law/reg unless:
•Furthers a legitimate local, non-economic state interest.
•No reasonable nondiscriminatory alternatives.
3.) Is the law facially Non-discriminatory: Facially neutral laws (does not discriminate against out of staters) which incidentally affect interstate commerce = presumption in favor of upholding the law unless its shown that the burdens on interstate commerce outweigh its benefits (apply Pike)
Walk me through a Fundamental Right Analysis
•Existence of a fundamental right triggers substantive and procedural due process.
•Substantive: gov’t must show the infringement of an interest in life, liberty, or property is related to an adequate justification.
•Procedural: gov’t must furnish adequate process under the circumstances.
•Is there a fundamental right?
•If yes, strict scrutiny.
•Has the right been infringed upon?
•Consider the directness and substantiality of the infringement.
•Is there a significant justification for the infringement?
•Gov’t must show a compelling and vital justification.
•Are the means sufficiently related to the purpose?
•Law must be necessary to achieve the objective and narrowly tailored. There cannot be any less restrictive means available. Over & Underinclusive.