tests

Question 0

Dormant Commerce Clause - not facially discriminatory

Regulation Incidentally Burdens Interstate Commerce

Answer 0

1. Serves an Important State Interest

2. burden Not excessive

Question 1

Dormant Commerce Clause -

Facially Discriminatory Regulation

Answer 1

1. Compelling State Interest
2. Narrowly tailored to serve that interest

*Exceptions
Market Participant
Express Congressional authorization

Question 2

Non-Discriminatory State Tax that Incidentally Burdens Interstate Commerce - General Rule and factors condisdered

Answer 2

Permissible if non discriminatory nor unduly burdensome.
Factors Considered:
1. Substantial Nexus between activity taxed and taxing state.
a. taxpayer has sufficient contacts or presence in state more than ‘minimum contacts’ under due process analysis.
2. Tax fairly apportioned (taxpayer has BoP)
3. Tax must not discriminate against interstate commerce (A4S2 USC)
4. fairly related to the services provided by taxing state.

Question 3

Procedural Due Process - What Type of Process Required

Factors Considered

Answer 3

1. What private interest will be affected by the official action
2. Risk of erroneous depravation by this procedure and the probable value of additional or substitute procedures.
3. Governments interest in streamlined process and the fiscal and administrative burdens substitute procedures would entail.

Question 4

Substantive Due Process - Economic Regulation Test

Answer 4

Challenger has the burden to prove that the regulation is not
Rationally Related
Legitimate Government Interest

Rational Basis

Question 5

Substantive Due Process - Fundamental Rights - Marriage

Answer 5

Regulation affecting fundamental rights receive strict scrutiny.
Right to marry is deemed fundamental.
Any substantial interference with that right must be necessary to further a COMPELLING state interest.

Question 6

Substantive Due Process - Fundamental Rights - Abortion

Answer 6

Woman has a protected privacy interest in abortion pre-viability.
Government may not place UNDUE BURDEN on woman’s right to choose (first 2 trimesters)
May regulate and proscribe abortion in the 3rd trimester except where necessary for the preservation and health of the mother.

Question 7

Substantive Due Process - Constitutional Basis

Answer 7

14th Amendment - no state shall deny to any person within its jurisdiction the equal protection of the laws. USSC held that the protection applies to the federal government under the due process clause of the 5th Amendment.

Question 8

Substantive Due Process Guarantees vs Equal Protection

Answer 8

SDP Assures that a law will be fair and reasonable and not arbitrary.

Equal Protection is triggered when persons similarly situated are treated differently.

Question 9

Substantive Due Process - Strict Scrutiny Standard

Answer 9

1. BoP is on the government
2. To prove the regulation is NECESSARY
3. To further a COMPELLING interest.

Necessary means there are no less restrictive alternatives and a close fit between means and the end.

RACE, ALIENAGE, NATIONAL ORIGIN trigger strict scrutiny.

Question 10

Equal Protection - Intermediate Scrutiny Review

Answer 10

1. BoP Government
2. measure is SUBSTANTIALLY RELATED to the achievement of
3. an IMPORTANT government interest.

Substantially related requires an exceedingly persuasive justification be shown.

Applies to Quasi-Suspect Classifications of
GENDER and ILLEGITIMACY

Question 11

Equal Protection - Rational Basis Review

Answer 11

1. BoP is on Plaintiff to prove
2. measure challenged serves no legitimate government interest or
3. is not rationally related to a legitimate government interest.

minimal requirement - law is not arbitrary or unreasonable.

Applies to all classifications not falling under strict or intermediate scrutiny. Includes age, poverty, wealth, disability, and need for necessities of life.

Question 12

Substantive Due Process - Law facially neutral but has disproportionate effect - What standard of review applies

Answer 12

Strict or Intermediate Scrutiny will apply where the court finds a discriminatory purpose exists. The fact that different classes of people score differently will not prove per se discriminatory purpose and strict scrutiny will not apply.

Where facially neutral law is applied in a discriminatory manner and the challenger will can show a discriminatory purpose, the law will be invalidated.

Question 13

Government Function Test

Answer 13

States may discriminate against aliens in activities where participation in the functioning of government is involved.

May deny positions as public school teachers as they influence students views toward government and the political process.

Question 14

Congresses Right to Regulate INTRASTATE commerce

Answer 14

1. Activity must be economic in nature and

2. The Activity in the aggregate must have substantial impact on interstate commerce

Question 15

State law in a commerce clause challenge is valid unless

Answer 15

1. The law conflicts with a valid federal law
2. The law discriminates against interstate or foreign commerce
3. The law imposes an undue burden on interstate or foreign commerce

Question 16

Facially discriminatory Regulation of commercial activity vs recreational activity

Answer 16

May distinguish between commercial and recreational activity that discriminates against out of state actors.

Recreational activity-within state police powers

Commercial activity triggers dormant commerce clause analysis

Question 17

To sustain a commerce clause challenge the tax must be (4)

Answer 17

1. applied to activities that have a substantial nexus with taxing state
2. fairly apportioned.
3. does not discriminate against interstate commerce
4. fairly related to the services provided by the state

Question 18

Brandenburg Test for Incitement

Answer 18

Speech

1. Intended to produce lawbreaking
2. that is imminent
3. and likely