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30 Cards in this Set

  • Front
  • Back
Commerce Clause
Gibbons v. Ogden
New Deal Era
Modern Court
New Deal Era Cases
Jones and Laughlin Steel
Wickard - wheat
Darby FLAS
Modern Commerce Clause Test
(1) instrumentalities
(2) Channels
(3) Substantially affect interestate commerce
Exception to Modern Commerce Clause Test
Can't regulate non commercial local activities

Can't regulate non commercial unless:
Part of a larger regulatory scheme that would be underminded by not regulating it
Dormant Commerce Clause Test
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)
Commerce Clause important points
*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
Functional Approach
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
Functional Approach Cases
Morrison v. Olson
Formalistic Approach
When Congress is trying to give itself more power
-such as 1 house veto
worried about tyranny from Congress
Formalistic Approach Cases
INS v. Chadha
Equal Protection: Race
Strict Scrutiny When:
<and cases>
(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
Rational Basis for RAce when:

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>
Arlington Heights Factors
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
Equal Protection: Affirmative Action
-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
Equal Protection: Alienage
Generally SS unless it falls under the Political Function Exception and then it gets rational basis
Political Function Exception
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
Rational Basis
Burden on challenger to show that the law is not rationally related to a legitimate government interest.
Active Rational Basis
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.
Intermediate Scrutiny
Burden on the state to show that the means are substantially related to an important state interest.
Strict Scrutiny
Burden on the state to show law is necessary to achieve a compelling state interest.
Equal Protection: Fundamental rights
Strict scrutiny

1. vote
2. travel
3. Access to court
Equal Protection: Gender
intermediate scrutiny

with VMI there's a shift to "exceedingly persuasice justification"
3 Criteria to become suspect class
1. Immutable characteristice
2. History of Discrimination
3. Political powerlessness
Equal Protection: Shift to Categorical Balancing
-Plyler v. Doe
-If the classification is based on irrational prejudice, court applies ARB. (See this in gay cases)
Due Process
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
Modern Test
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
What are three cases that show the court's illegitmacy?
Brown, Lawrence, and Korematsu
Why Brown
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.
Lawrence is bad?
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.