Specific Tests

Question 1

Necessary and Proper Clause Test

Answer 1

McCullough v Maryland set out rational means-end analysis.

“convenient, useful or essential”

Question 2

Central Hudson
(Commercial Speech Test)
IFSIDAX

Answer 2

1) Does the speech advertise illegal activity or is is false and deceptive advertising
2) Does the gov. have a substantial interest in regulating the speech
3) Does the regulation directly advance the gov interest
4) Is the regulation no more extensive than necessary to achieve gov. interest

Question 3

Symbolic Speech “Obrien Test”

IISUPPNN

Answer 3

Does the government have an important interest unrelated to the suppression of speech and does the regulation prohibit the communication no more than necessary?

Question 4

Executive Order Test

Answer 4

1) Is the Order legislative in character? (Does it alter the rights, duties, or relations of persons? Chadha-)
2) Has Congress spoken?
3) Under what Presidential authority is this act under?
4) Twilight Zone? Read the tea leaves of history, has Congress acquiesced in similar situations in the past?

Question 5

Dormant Commerce Clause Test

Answer 5

1) Impact on Interstate Commerce? (Balance between that and the State’s Interest)
2) Is it Protectionist?
3) Is there a less restrictive alternative?
4) Need for national uniformity?

Question 6

Privileges and Immunities Classic Test

Art 4, Sec 2

Answer 6

1) Is the right denied “basic to the maintenance and well-being of the union”
2) Is there a substantial reason for the difference in treatment?
3) Does the discrimination practiced against the nonresidents bear a substantial relationship to the State’s objective?

Question 7

Brandenburg Test

Answer 7

To determine whether the speech is const. protected or whether the speech qualifies as advocacy of illegal action.
“Not directed to inciting or producing imminent lawless action, and is the advocate LIKELY to incite or produce that imminent lawless action

Question 8

Substantial Effects Test

3rd Theory CC

Answer 8

1. Did Congress have a rational basis for concluding that the regulated activity substantially effects interstate commerce?
2. If Congress had such a basis then were the means used to accomplish the objective “reasonably related to a legitimate government objective”

(Include in analysis overinclusiveness and underinclusiveness)

Question 9

Whether a subsidy with a condition on speech is constitutional

Answer 9

1) Is condition content-based?
2) What is the government’s purpose in conditioning the subsidy
3) Is the condition related to the government’s purpose
4) Condition must not be intended to punish unpopular speech

Question 10

3 Part Obscenity Test derived from Miller v California

PPV

Answer 10

1) Prurient Interest (Morbid and unhealthy interest in sex)
2) Depict any sexual acts in a Patently offensive way
3) The work taken as a whole lacks any serious literary, artistic, scientific or socially redeeming value.