Doctrinal Tests & Rules Flashcards

Question

Dormant Commerce Clause | (Goal, Test, Exceptions)

Answer 1

Goal - Preventing undue burdens on interstate commerce without a benefit in safety Threshold Question: Does the law discriminate or regulate evenhandedly? * Facial Discrimination * Laws that favor instate business or requiring use of in-state businesses * Laws that preserve instate resources for instate use * Laws that limit access to local markets by out-of-staters * Facially Neutral Law, Look for: * Discriminatory Purpose, Or * Discriminatory Effect Apply the appropriate level of scrutiny: Facial Discrimination, Discriminatory Purpose, or Discriminatory Effect: * Hightened Scrutiny - * Does the state have legitimate non-protectionist local purpose for the regulation? * Local purpose could not be served by an alternative less-restrictive non-discriminatory means Non-Discriminatory Laws * Rational Basis Balancing Test (To ensure no undue burdens are placed on interstate commerce) * Legitimate local purpose * Interest Balancing Test: Local purpose is served _rationally related to the means used_ such that the burdens on interstate commerce are not _clearly excessive_ in relation to the putative local benefits Exceptions - Trigger Rational Basis Balancing Test 1. Market Participant: A state may favor its own citizens in receiving benefits from government programs or in dealing with state-owned government businesses * Issue: Defining the actual market and what that encompasses * Sough What You Reap Rational (Reeves, Inc.): Allowing in-state citizens to have preferential access for the taxes they pay, is a constitutional preference 2. Congressional Approval: Notion of the power to regulate interstate commerce lies with congress, therefore congress may pass this power to the states, by acting and approving the states to exercise a certain regulatory control over interstate commerce. * Issue: Identifying the scope of Congressional authorization (Must be within enumerated powers and comply with the state-action requirement if applicable)

Answer 2

Goal – Interstate Equality (Harmonizing the several states into a single national entity) * For a Nation composed of individual states are some distinctions are permitted when they do not hinder the formation, the purpose, or the development of a single Union of those states (i.e., Baldwin - hunting is not a P&I) Who is protected? – Citizens are only U.S. Citizens (Not Aliens) Areas of Application (“Contours of the Clause are not well-developed”) * When constitutional rights are at stake * When important economic issues are at stake _Analysis:_ Step 1: Has the state discriminated against out-of-staters with regard to Privileges and Immunities it accords to its own citizens? * i.e., Pursuit of Livelihood, Pursuit of a Common Calling, and other Constitutional Rights & Benefits that the Court Protects for the purpose national uniformity Step 2: If Yes, Is there a substantial justification for the discrimination? Step 3: Is there a substantial relationship between the means employed (state citizenship) and the reason for the law? * Do less restrictive means exist?

Answer 3

_Facially Non-Discriminatory Laws_ Privileges & Immunities Clause: There must be facial discrimination (DCC permits challengeds based on impact or purpose) * Supreme court has never held if a discriminatory impact is sufficient, whereas Dormant Commerce Clause applies to facially neutral and evenhandedly applied regulations where the burden on interstate commerce is too great * Make competing arguments either way concerning facially nondiscriminatory laws _Area of Application_ Commercial: Both Dormant Commerce Clause and Privileges & Immunities Clause Apply * Privileges & Immunities Clause – Citizens only (No Business Entities), if related to economic privilege and there must be facial discrimination * Dormant Commerce Clause – Citizens, Corporations, Aliens, etc. if related to interstate commerce, discriminatory impact is sufficient Non-Commercial: Only Privileges & Immunities Clause applies when constitutional rights are at stake _Exceptions_ Privileges & Immunities Clause: No Exceptions Dormant Commerce Clause: (1) Congressional Approval & (2) Market Participant Exception _Level of Scrutiny_ Dormant Commerce Clause: Rational Basis Review & Strict Scrutiny depending on whether the law is discriminatory Privileges & Immunities Clause: Substantial Reason & Substantial Relationship * Can make a persuasive argument against if there is a different test for nondiscriminatory laws

Answer 4

Step 1: Is there congressional authorization? (Is the authorization constitutional?) * Black’s Majority Opinion: Authorization must be express * Jackson’s Concurring Opinion: Authorization may be express or implied Step 2: Apply the test corresponding to the appropriate Jacksonian Zone for the presidential authorization at issue? * In determining whether the executive has authority, there are three general circumstances: * When the President acts pursuant to an express or implied authorization of Congress, the President’s authority is at its greatest. * Task for the court is to determine whether the action is within the scope of the authorization and if the authorization is constitutional * Strong presumption of validity * Presidential Power is at its strongest * When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and Congress may have concurrent authority. o When this is the case, the test depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law. * Zone of Twilight (Concurrent Authority): Case-by-case assessment is necessary (Diverging point between Majority & Concurrence) * When the President takes measures incompatible with the expressed or implied will of Congress, the authority of the President is at its lowest and subject to judicial review. * Only if the following are true, is the authorization valid if the there is * (1) presidential constitutional authority in the area and * (2) congress must not have constitutional authority Step 3: Rationalize the differences between the different approaches and results to justify one approach over the other * i.e., Jackson’s approach allows the court to rationalize the presidential action

Answer 5

Separation of Powers Issue 1. Line Item Veto Act 2. Signing Statements

Answer 6

Appointment Power – Art. II, §2, Clause 2: The Constitution empowers the President to appoint federal officers with the Senate’s advice and consent. _Limits:_ Congress can create offices and define their qualifications it cannot appoint persons to hold offices of the United States. Congress can vest the appointment of “inferior officers” in the President, the courts of law or heads of department, other branches of government, but cannot vest the power in themselves. * _Test for Inferior Officers:_ Whether someone is an inferior officer may turn on whether he/she is subject to removal or supervision by a superior, or the nature of his/her duties, jurisdiction and tenure. (Morrison v. Olson) Removal Power: The Constitution does not explicitly grant the President power to remove executive officers but the power is inherent in executive power, at least with respect to certain officers. (Myers v. United States) The President has unfettered, exclusive power to remove his appointees without approval from the legislature. * This includes both high-ranking officials who act as his “alter ego” and executive officers engaged in other normal duties. _Limits:_ Absolute power unless Congress has limited the power (Congress cannot give itself the power) * Congress may limit removal power for offices where: * Independence from the presidential whim and political partisanship is desired * _Test:_ To what extent do we want the president controlling officers? (i.e., Tenure of Years and Quasi-Judicial / Quasi-Legislative Agencies exist precisely to maintain either an a-political or politically balanced delivery of services) * The legislation creating the office only limits removal to instances where good cause shown, but does not prohibit removal * _Test:_ 1. Does the statutory language in fact limit the president’s removal only to listed reasons? 2. If so, are those limitations constitutional?

Answer 7

Treaties and Executive Agreements Issue: No ratification is required for executive agreements and therefore there is a lack of political accountability and a separation of powers issue War Powers Issue: When can the president command troops without congressional approval? Separation of Powers and Political Accountability Issues **_What is the right balance between security and liberty?_** _Matthews v. Eldridge_ Balancing Test to evaluate the government’s infringement of a constitutional right: Factors: 1. Private Interest At Stake 2. Government Interest At Stake 3. Risk of Erroneous Deprivation of the Private Interest 4. The Probable Value of Additional Procedural Safeguards

Answer 8

_Test:_ Is the right among those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions? _Other Tests:_ Whether it is basic right in our system of jurisprudence? Whether it is a fundamental right that is essential to a fair trial?

Answer 9

In order for constitutional principles to apply or for an individual to invoke the constitutional protections, there must be state action 13th Amendment – Private entities cannot own slaves Public Function Exception – When a private entity is performing a public function, the court may find the state action requirement satisfied * Test: Whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself * To satisfy state action, it has to be the sort of function that is traditionally exclusively reserved to the state Entanglement Exception – When the government affirmatively authorizes, encourages, or facilitates private conduct the court may find the state action requirement satisfied * Issue: What degree and type of government involvement is sufficient? * i.e., Shelly - But courts have limited judicial enforcement as state action to areas involving racial discrimination

Answer 10

Equal Protection Clause –14th Amendment, § 1: “Nor shall any State… deny to any person within its jurisdiction the equal protection of the laws.” _Three Step Analysis:_ _Step 1_: What is the classification being challenged? (If not yet deemed suspect, apply the Cleburne Factors) _Step 2_: What is the appropriate level of scrutiny? _Step 3_: Does the government action meet the level of scrutiny? _Suspect Class Factors:_ 1. History of discrimination 2. Political Powerlessness 3. Immutability 4. Irrelevance of the characteristic to functioning in society _Levels of Scrutiny:_ _Rational Basis Review:_ Whether the governmental action is rationally related to a legitimate purpose Area of Use: * Default level of scrutiny for non-suspect classifications and nondiscriminatory laws (Unless national origin, gender, alienage, or legitimacy) * Alienage Classification Exceptions: * Classifications related to self-government & the democratic process * Test: Does the position involve discretionary decision-making or execution of policy that reflects public policy or an execution of policy in a way that impacts members of the community? * Congressionally approved discrimination Characteristics: * Deference to the legislature with presumption in favor of upholding the law * Tolerance for over & under inclusiveness Burden: On the challenger to establish that there is no conceivable basis for the legislation _Strict Scrutiny Review:_ Whether the government action serves a compelling state interest, and the use of the classification is necessary / narrowly tailored to achieve that compelling state interest Areas of Use: * For suspect classes * For government actions with a discriminatory impact and discriminatory purpose (See Washington v. Davis) Characteristics: * Societal notions are insufficient for a compelling interest (Need specific evidence) * Must be no other alternatives (i.e., necessary) such the means are precisely calibrated to achieve the compelling interest * Over & under inclusiveness is almost always fatal Burden: On the government _Intermediate Scrutiny Review:_ Whether the government action serves an important government objective and that the means employed are substantially related to those objectives Area of Use: For quasi-suspect classes (i.e., Gender, Illegitimacy & Content-Neutral Free Speech) Characteristics: Overbroad generalizations are insufficient for important government objectives Burden: On the government

Answer 11

Establishing a Racial Classification: NEED _DISCRIMINATORY PURPOSE_ Discriminatory Impact – Mere evidentiary value to establish a purpose and absent a “stark” pattern, impact is not determinative (Sometimes a pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face, i.e., Yick Wo) * When applying scrutiny the operative effect as more important than purpose Discriminatory Purpose – Implies more than intent as a violation or intent awareness of consequences, such that purpose must be in part “because of” not just “in spite of” _Factors To Establish Discriminatory Purpose Circumstantially:_ (1) Historical Background and Context, (2) Procedural Irregularity, (3) Substantive Inconsistency, and (4) Legislative History * If the factors are satisfied the burden shifts, the government must prove the law would have been enacted despite the improper consideration of the discriminatory purpose or purpose is met and strict scrutiny applies. (Government has lost at this point by showing the impermissible purpose was the motivating factor)

Answer 12

1. Classifications related to self-government & the democratic process * _Test:_ Does the position involve discretionary decision-making or execution of policy that reflects public policy or an execution of policy in a way that impacts members of the community? 2. Congressionally approved discrimination

Answer 13

Romer Rational Basis Review: Seems a little more strict type of rational basis review suggesting there are some instances where the court may use a heightened standard Breadth Rational: So broad such that no purpose could extend to all of the applicable contexts

Answer 14

_Arguments For:_ * Racial classifications are suspect, that means simple legislative assurance of good intention cannot suffice * Race conscious government action is inherently suspect & has lasting effects * Discrete & Insular Minority (U.S. v. Carolene Products Company, Footnote 4) _Arguments Against:_ * Political Process Argument: The dominate racial group is burdening themselves to help a historically disadvantage minority through its own devices & before the court gets involved

Answer 15

_Procedural Due Process:_ The principle that the government must respect all of the legal rights those are owed to an individual according to the law and must follow procedural requirements before depriving an individual of life, liberty, or property. _Substantive Due Process:_ The concept that there are certain rights so fundamental to our traditions of justice that, no matter what procedural guarantees government affords, government cannot abridge those rights unless there is a compelling justification. (i.e., infringement of fundamental rights is subject to strict scrutiny) * The traditions and collective conscience of our people so rooted there... as to be ranked as fundamental. * Constitutionally supported by the broad reading of “Liberty” to include substantive elements _Origins:_ Lochner Era: Emphasis on the fundamental right of the “Freedom to Contract” and economic liberties such that the government could not interfere with these rights through valid exercises of the police power Post-Lochner Era – “Switch In Time That Saved Nine”: The “Freedom to Contract” when illuminated by the realities of the Great Depression is no longer seen as important in order to protect the working class. * New era of deference to the legislature’s judgment and that the proper role of the courts is decide whether the legislative decision was arbitrary or capricious. _Three Step Analysis:_ _Step 1:_ Identify whether a fundamental right is in question * Test for Announced Rights: 1. What has been deemed as a fundamental right & **how much is encompassed in that decision**? 2. How does that right compare to the right asserted in present situation? * Test for Unannounced Rights: (Some justices require both test, some require satisfaction of one test) 1. Is the right comprised of ‘the traditions and collective conscience of our people’” such that it is “‘so rooted there ... as to be ranked as fundamental”? (Griswold, Meyer, Moore) 2. Is the right essential to the orderly pursuit of happiness by free men? (Loving) _Step 2:_ Is the fundamental right being infringed in a direct and substantial way? * “Trivial and logistical” infringement does not trigger strict scrutiny _Step 3:_ Apply the appropriate level of scrutiny _Rational Basis Review:_ Whether the governmental action is rationally related to a legitimate purpose * Protection from Arbitrary & Capricious Interference: (1) Infringement of Non-Fundamental Rights or (2) Trivial & Logistical Infringement of a Fundamental Right (i.e., Economic Regulation) _Strict Scrutiny:_ Whether the government action serves a compelling state interest, and the use of the classification is narrowly tailored to achieve that compelling state interest * Direct & Substantial Infringement of Fundamental Rights (i.e., Privacy, Reproductive Autonomy, Family)

Answer 16

_Right to Privacy:_ The 1st Amendment Right of Association, the 4th Amendment protection against unreasonable searches, the 5th Amendment protection against self-incrimination, and the 9th Amendment combine to create a “zone of privacy” impenetrable by government. (See Griswold) _Right to Reproductive Autonomy_ Right to Reproduce: Procreation is a fundamental right & sterilization infringes (See Skinner) Right to Choose Whether To Bear a Child: This right to privacy is similar to a right to make decisions pertaining one’s own definition of human existence including family and the physical and emotional consequences of pregnancy Right to Purchase & Use Contraceptives (See Griswold) Right to Terminate a Pregnancy (See Roe & Casey) * Not an Absolute Right: Can be subject to regulation before the point of viability for the purpose of furthering a thoughtful and informed decision as long as there is not an outright prohibition. After the point of viability the state has a compelling interest in protecting the life of the unborn and can prohibit abortions unless it is necessary to protect the health of the mother * Test: Undue Burden (Prior to viability) * Does the state regulation impose an undue burden (i.e., substantial obstacle in purpose or effect) on the woman’s decision to terminate a pregnancy? * Test for Viability – Functional Assessment: Can the fetus live outside the womb? _Right to Marriage and Family Decision-Making_ Right of the Parent to Decide Child’s Education (See Meyer and Pierce) Right of the Family to Stay Together (See Moore: Issue of how the family is defined) Right to Marry Whomever You Want (See Loving: Issue of marriage including the same sex) Right to Private Sexual Activity (See Lawrence)

Answer 17

Right to Reproductive Autonomy Right to Reproduce: Procreation is a fundamental right & sterilization infringes (See Skinner) Right to Choose Whether To Bear a Child: This right to privacy is similar to a right to make decisions pertaining one’s own definition of human existence including family and the physical and emotional consequences of pregnancy Right to Purchase & Use Contraceptives (See Griswold) Right to Terminate a Pregnancy (See Roe & Casey) * _Not an Absolute Right_: Can be subject to regulation before the point of viability for the purpose of furthering a thoughtful and informed decision as long as there is not an outright prohibition. After the point of viability the state has a compelling interest in protecting the life of the unborn and can prohibit abortions unless it is necessary to protect the health of the mother * Test: Undue Burden (Prior to viability) * Does the state regulation impose an undue burden (i.e., substantial obstacle in purpose or effect) on the woman’s decision to terminate a pregnancy? * Test for Viability – Functional Assessment: Can the fetus live outside the womb?

Answer 18

1. Right of the Parent to Decide Child’s Education (See Meyer and Pierce) 2. Right of the Family to Stay Together (See Moore: Issue of how the family is defined) 3. Right to Marry Whomever You Want (See Loving: Issue of marriage including the same sex) 4. Right to Private Sexual Activity (See Lawrence