Constitutional Law Flashcards

Front 1

What are the 3 standards of review that are used in Con Law?

Back 1

Rational basis
Intermediate Scrutiny
Strict Scrutiny

Front 2

When applying a rational basis test, what is required for the law to be upheld?

Back 2

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

Front 3

When applying a strict scrutiny test, what is required for the law to be upheld?

Back 3

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

Front 4

When applying an intermediate scrutiny test, what is required for the law to be upheld?

Back 4

Important govt. objective
Substantially related means

Front 5

Who has the burden of persuasion under rational basis?

Back 5

The individual who is attacking the government action.

Front 6

Who has the burden of persuasion under strict scrutiny?

Back 6

The government has to convince the court that the act is constitutional

Front 7

Who has the burden of persuastion under intermediate scrutiny?

Back 7

Somewhat unclear, but probably the government

Front 8

What is the likely outcome when the rational basis standard is applied?

Back 8

The government will usually win

Front 9

What is the likely outcome when the strict scrutiny standard is applied?

Back 9

The government will usually lose

Front 10

When is the rational basis standard used?

Back 10

For almost everything except race, national origin, gender,religion

Front 11

When is the strict scrutiny standard used?

Back 11

For suspect classes - race, national origin

Front 12

When is the intermediate scrutiny standard used?

Back 12

Gender, illegitimacy

Front 13

There are 3 broad categories that Congress can Constitutioanally regulate commerce under:

Back 13

Channels, instrumentalities, substantial relation/effect

Front 14

What is meant by "channels" in terms of the commerce clause?

Back 14

i.e. highways, waterways, air traffic.
Presumably, Congress can regulate even if the activity in question is completely intrastate

Front 15

What is meant by "instrumentalities" interms of the commerce clause?

Back 15

People, machines, and other things used in carrying out commerce

Front 16

What is meant by substantial relation/effect in terms of the commerce clause?

Back 16

-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

Front 17

10th Amendment

Back 17

"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."

Front 18

10th Amendment - Generally applicable law

Back 18

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)

Front 19

10th Amendment - Does prevent Congress from regulating state law-making processes

Back 19

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)

Front 20

President cannot make laws

Back 20

All he can do is carry out the laws. (Youngstown Sheet and Tube)

Front 21

Dormant Commerce Clause

Back 21

The mere existence of the federal commerce power restricts the states from discriminating against or unduly burdening interstate commerce

Front 22

A state regulation which affects interstate commerce must satisfy a 3-part test to avoid violating the dormant commerce clause

Back 22

-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