Constitutional Law

Front 1

Commerce Clause

Back 1

Gibbons v. Ogden
New Deal Era
Modern Court

Front 2

New Deal Era Cases

Back 2

Jones and Laughlin Steel
Wickard - wheat
Darby FLAS

Front 3

Modern Commerce Clause Test

Back 3

(1) instrumentalities
(2) Channels
(3) Substantially affect interestate commerce

Front 4

Exception to Modern Commerce Clause Test

Back 4

Can't regulate non commercial local activities

Morrison
Lopez

Front 5

Can't regulate non commercial unless:

Back 5

Part of a larger regulatory scheme that would be underminded by not regulating it
Raich

Front 6

Dormant Commerce Clause Test

Back 6

1. Is the law discriminatory on its face or does it only burden interestate commerce?
(a) If it discriminates on face - then use the per se rule of invalidity
(b) if it only burdens - court employs a balancing test (pike decision)

Front 7

Commerce Clause important points

Back 7

*applies to federal laws and to state laws
*Federal Goverment can't require states to legislate in a particular way (NY v.US) - because of the 10th Amendment

Front 8

Functional Approach

Back 8

Marshall's view in McCulloch

Allows Congress to delegate law making to agencies:
-as long as Congress provides guiding principles
- allow Congress to insulate agencies from the President
- Can even give away legislative and judicials's power
-shell game

Front 9

Functional Approach Cases

Back 9

Morrison v. Olson

Front 10

Formalistic Approach

Back 10

When Congress is trying to give itself more power
-such as 1 house veto
worried about tyranny from Congress

Front 11

Formalistic Approach Cases

Back 11

INS v. Chadha

Front 12

Equal Protection: Race
Strict Scrutiny When:
<and cases>

Back 12

(1) Discriminates on face
(2) Uses Race to classify <loving v. va>
(3) applied in Racially discriminatory way <Yek Wo>
(4) Purpose is to Discriminate

Front 13

Rational Basis for RAce when:

<cases>

Back 13

it is the impact that is uneven.
The challenger has the burden of proving that the nuetral law was adopted with the purpose of discriminating in order to move to Strict Scrutiny

But - might be able to get back to RB if prove that would have adopted the law anyway.

<McClesky, Washington v. Davis>

Front 14

Arlington Heights Factors

Back 14

1. Impact of Official Action
2. Historical Background
3. Specific Sequence of Events
4. Procedural history
5. Substantive departure from usual factors
6. Legislative or Administrative history

Front 15

Equal Protection: Affirmative Action

Back 15

-should be strict scrutiny but they relax the "necessary" test
- two compelling state interests the court allows:

(1) Diversity in education
Grutter v. Bolinger
(2) Remedy Past Effects of Discrimination
Richmond v. Croson

Front 16

Equal Protection: Alienage

Back 16

Generally SS unless it falls under the Political Function Exception and then it gets rational basis

Front 17

Political Function Exception

Back 17

Rational Basis if

(1) Specificiy is examined to see if it is too under or over inclusive.

(2) Even if suffieciently tailored, only applies to

a. Elected state positions
b. positions that participate in broad public policy

Front 18

Rational Basis

Back 18

Burden on challenger to show that the law is not rationally related to a legitimate government interest.

Front 19

Active Rational Basis

Back 19

Burden on the state to prove that the law is rationally related. Here the court won't make up a rational reason for the state.

Front 20

Intermediate Scrutiny

Back 20

Burden on the state to show that the means are substantially related to an important state interest.

Front 21

Strict Scrutiny

Back 21

Burden on the state to show law is necessary to achieve a compelling state interest.

Front 22

Equal Protection: Fundamental rights

Back 22

Strict scrutiny

1. vote
2. travel
3. Access to court

Front 23

Equal Protection: Gender

Back 23

intermediate scrutiny

with VMI there's a shift to "exceedingly persuasice justification"

Front 24

3 Criteria to become suspect class

Back 24

1. Immutable characteristice
2. History of Discrimination
3. Political powerlessness

Front 25

Equal Protection: Shift to Categorical Balancing

Back 25

-Cleburne
-Plyler v. Doe
-If the classification is based on irrational prejudice, court applies ARB. (See this in gay cases)

Front 26

Due Process

Back 26

Dred Scott

Lochner Era - Laissez Faire economics - Lochner and Adkins

End of Lochner - West Coast Hotel, Carolene Products, Williamson v. Lee optical - era of deference

Front 27

Modern Test

Back 27

1. Supported by history and tradition then its a fundamental right and you get strict scrutiny - Glucksberg, Roe to an extent

2. Casey mystery passage, autonomy, creation of teh self - get heightened scrutiny, Casey and Lawrence

Front 28

What are three cases that show the court's illegitmacy?

Back 28

Brown, Lawrence, and Korematsu

Front 29

Why Brown

Back 29

Brown because its not rooted in law, the decision starts out by saying that the Constitution is inconclusive as to the issue.

There are three ways that the Brown court could have legitimized themselves: (1) law is inconclusive so job for the legislature (2) Purpose was to discriminate so gets strict scrutiny or (3) 14th Amendment allows separate as long as they are equal - so insist on equality.

Front 30

Lawrence is bad?

Back 30

Lawrence is bad because it completely ignores precedent of Romer v. Evans and Glucksberg - doesn't acknowledge that there is a history and tradition against homosexuality. Should hae done one of two things - (1) Constiution is silent so rational basis and (2) Not deeply rooted in history and tradition so rational basis and law stands.