Tests Flashcards
Standing
Case or Controversy
Personal injury, causation, redressability
Political Question
1) Textually demonstrable con commitment of issue to coordinate branch of fed govt
2) Lack of judicially discovreable and manageable standards for resolving question (SP says shitty)
3) Impossible to decide without policy determinations not left to judicial discretion
4) Impossible to resolve without expressing lack of respect to other branches
5) Unusual need to adhere to political decisions already made by another branch
6) Potential for embarassment for different departments
Separation of Power
Category 1: qui tacet constentit (Max Power)
Category 2: silence is silence (Twilight Zone)
Category 3: silence is disagreement (Lowest Ebb)
Rational basis scrutiny
War Powers
1) Declaration of War
2) Statutory authorization
3) National emergency due to attack on US
Presidential Power
Category 1: qui tacet constentit (Max Power)
Category 2: silence is silence (Twilight Zone)
Category 3: silence is disagreement (Lowest Ebb)
Federalism
5 Considerations
1) Necessary & Proper Clause
2) Enumerated Federal Powers
3) History and tradition
4) Accommodates state interest
5) Statute is narrow
Commerce Clause
1) Channels of interstate commerce
2) Instrumentalities of commerce
3) Activities having a substantial relation to interstate commerce (economic and non-economic activity but NOT inaction)
Taxing
5 Questions
1) What is it called?
2) Who’s collecting it?
3) Where is it found in the code?
4) Does it raise revenue?
5) Is there a scienter requirement?
Spending
Dole Factors
1) Purpose to serve general welfare
2) Cong made a clear statement of the funding condition
3) Whether grants are related to spending
4) Other con provisions do not provide a bar
Sebelius Factors
5) No coercion
Limits on Cong Power
Equal Footing Doctrine
Congruence and proportionality
Cannot 1) encroach on traditionally state prerogatives (low bar) and 2) cannot commandeer state officials
Dormant Commerce Clause - Facially Discriminatory
Must demonstrate it 1) serves an important purpose and 2) there is an absence of non-discriminatory alternatives
Market Participation Exemption
Dormant Commerce Clause - Facially Neutral
Pike Balancing Test: burden to interstate commerce v. social benefits
State interest at the heart of “social benefit”
Bill of Rights
Test for incorporation
1) Fundamental rights incorporated by DPC and 14th A
2) Deeply rooted in history and tradition
3) Indispensable attribute for civilized country
4) Necessary for ordered liberty
Kavanaugh’s Categories (Ramos)
1) Prior decision egregiously wrong
2) Prior decision caused significant negative real-world consequences
3) Overruling decision unduly upset reliance interests
Contracts Clause
Ex post facto applies to states and their contracts (but not government contracts)
Economic Substantive Due Process
Rational Basis Review
