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22 Cards in this Set

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What are the 3 standards of review that are used in Con Law?
Rational basis
Intermediate Scrutiny
Strict Scrutiny
When applying a rational basis test, what is required for the law to be upheld?
A legitimate state objective
A minimally rational relation
--only way it will be struck down is if the govt. has acted in a completely arbitrary and irrational way
When applying a strict scrutiny test, what is required for the law to be upheld?
Compelling government objective
Necessary means/ends fit
--There must not be any less restrictive means that would accomplish the govt.'s objective just as well
When applying an intermediate scrutiny test, what is required for the law to be upheld?
Important govt. objective
Substantially related means
Who has the burden of persuasion under rational basis?
The individual who is attacking the government action.
Who has the burden of persuasion under strict scrutiny?
The government has to convince the court that the act is constitutional
Who has the burden of persuastion under intermediate scrutiny?
Somewhat unclear, but probably the government
What is the likely outcome when the rational basis standard is applied?
The government will usually win
What is the likely outcome when the strict scrutiny standard is applied?
The government will usually lose
When is the rational basis standard used?
For almost everything except race, national origin, gender,religion
When is the strict scrutiny standard used?
For suspect classes - race, national origin
When is the intermediate scrutiny standard used?
Gender, illegitimacy
There are 3 broad categories that Congress can Constitutioanally regulate commerce under:
Channels, instrumentalities, substantial relation/effect
What is meant by "channels" in terms of the commerce clause?
i.e. highways, waterways, air traffic.
Presumably, Congress can regulate even if the activity in question is completely intrastate
What is meant by "instrumentalities" interms of the commerce clause?
People, machines, and other things used in carrying out commerce
What is meant by substantial relation/effect in terms of the commerce clause?
-If the activity is arguably commercial then it doesn't seem to matter if that particular instance effects interstate commerce (Wickard - wheat quotas)
-If it's not commercial, there has to be a pretty obvious connection b/w the activity and interstate commerce
-Not enough that Congress "believed" the activity had the requisite substantial effect. (Lopez)
-Usually not allowed if the activity being regulated falls in the traditional domain of the states - unless it can be showed that a national solution is needed
10th Amendment
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People."
10th Amendment - Generally applicable law
If Congress passes a generally applicable law, the fact that the regulation affects the states has no practical significance. If the regulation would be valid if applied to a private party, it is also valid as to the state. (i.e. federal minimum wage and overtime applies to state employees as well as private - Garcia)
10th Amendment - Does prevent Congress from regulating state law-making processes
Congress may not simply "commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program." (NY v. US - toxic waste)
-Congress may not commandeer state executive branch, even if easy to do and involve no discretion. (Printz - Congress ordered local sheriffs to perform background checks on handgun permits)
President cannot make laws
All he can do is carry out the laws. (Youngstown Sheet and Tube)
Dormant Commerce Clause
The mere existence of the federal commerce power restricts the states from discriminating against or unduly burdening interstate commerce
A state regulation which affects interstate commerce must satisfy a 3-part test to avoid violating the dormant commerce clause
-The regulation must pursue a legitimate state end
-The regulation must be rationally related to that end
-The regulatory burden imposed by the state on interstate commerce must be outweighed by the state's interest