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Contents
Overview
Social contract Pardigms .............................................................................................................................................................4 Checklist ......................................................................................................................................................................................5

Judicial Review
Marbury Analysis .........................................................................................................................................................................7 Judicial review .............................................................................................................................................................................8 Judicial review Argument Structure .............................................................................................................................................9

Federal power
Case Overview ..........................................................................................................................................................................11 Enumerated and Implied Power ................................................................................................................................................12

Commerce Clause
Case Overview (Commerce Clause) .........................................................................................................................................14 Historical time line .....................................................................................................................................................................15 Progression: Gibbons, Lottery, Shreveport ...............................................................................................................................16 Progression: Hammer, Carter, Jones & Laughlin ......................................................................................................................17 Progression: Darby, Wickard, Heart of Atlanta ..........................................................................................................................18 Progression: Lopez, Morrison, Raich ........................................................................................................................................19 Current Test: Flow chart ............................................................................................................................................................20 Commerce Clause Sorting Argument Structure ........................................................................................................................21 Commerce Clause Test Argument Structure .............................................................................................................................22 Purposes of Federalism ............................................................................................................................................................23 Hypos (Commerce Clause) .......................................................................................................................................................24

State Immunity
Case overview (10th amendment) ............................................................................................................................................26 10 amendment theory ...............................................................................................................................................................27 10th amendment-Accountability ................................................................................................................................................28 10 amendment Accountability argument structure ....................................................................................................................29

Dormant Commerce Clause

Case Overview (DCC) ...............................................................................................................................................................31 DCC Test and Sort box .............................................................................................................................................................32 Historical arguments ..................................................................................................................................................................33 DCC Flowchart ..........................................................................................................................................................................34 DCC Arg structure Sorting .........................................................................................................................................................35 DCC Arg Structure Test .............................................................................................................................................................36 DCC Arg Structure Exceptions ..................................................................................................................................................37 Privileges and Immunities (Art IV) .............................................................................................................................................38 P/I (Art IV) Argument structure ..................................................................................................................................................39 Hypos (DCC) .............................................................................................................................................................................40

Separation of powers
Case Overview ..........................................................................................................................................................................42 Theories/Policy ..........................................................................................................................................................................43 Sorting .......................................................................................................................................................................................44 Separation of power Overview ..................................................................................................................................................45 Separation of Power Flow Chart ................................................................................................................................................46 Separation of Power Delegation Argument Structure ................................................................................................................47 Separation of powers argument structure .................................................................................................................................48

Substantive due process

Case Overview ..........................................................................................................................................................................50 P/I (14 amendment) argument structure ..................................................................................................................................51 Due Process Historical Overview ...............................................................................................................................................52 Due Process ..............................................................................................................................................................................53 Lochner Economic Substantive Due Process ............................................................................................................................54 Williams trend chart ...................................................................................................................................................................55 Privacy right ...............................................................................................................................................................................56 Privacy right argument Structure ...............................................................................................................................................57 Abortion .....................................................................................................................................................................................58 Abortion Right ............................................................................................................................................................................59

Abortion right Argument Structure .............................................................................................................................................60 Sexual righs ...............................................................................................................................................................................61

Equal Protection Clause

Case Overview ..........................................................................................................................................................................63 Suspect class ............................................................................................................................................................................64 SS Class Argument ...................................................................................................................................................................65 EP Flow for R,R,NO,E ...............................................................................................................................................................66 EP SS Arg ..................................................................................................................................................................................67 EP SS Arg ..................................................................................................................................................................................68 AA Flow SC ...............................................................................................................................................................................69 AA Flow Gender ........................................................................................................................................................................70 Aff args ......................................................................................................................................................................................71 EP Aff Action Arg .......................................................................................................................................................................72 EP Gender .................................................................................................................................................................................73 Gender arg ................................................................................................................................................................................74

Law of democracy
Courts Role ...............................................................................................................................................................................76

Overview
Social contract Pardigms .................................................................................................................................................................4 Checklist ..........................................................................................................................................................................................5

Civic Republicanism

Social contract Pardigms

Goal Natural Law Government theory (1) Create small republics comprised of citizens with equal wealth, education, etc. The Pursuit of the Common Good through participation As the Common Good shared by all, distinguishable from self interest or the Selfish Good (2) Pro-legislature and anti-factions (3) Citizens should be homogeneous to avoid hierarchies & domination by factions The rule of government is to promote the common good (Virtue) through participation Theme

Classical Liberalism

Goal

Natural Law

Government theory

Theme

Citizens are self interested, the goal is to Pro-Legislature- elected purse interests and not the common good, and thus accountable goals of each individual but liberty and (Judges act in self and essentially that protecting the individual interest) creates the goal of rights society Maximize Autonomy

Protect individual autonomy.

Skeptical Liberalism

Goal

Natural Law

Government theory Legislature sums peoples preferences into statutes, Prolegislature Ok to infringe on the rts of one if in accord w/ sum of preferences

Theme

Maximize peoples preferences

No

There is only what people want

Checklist
Congress Passes a Law

(1) Is there a power?

(2) 10th amendment?

(3)?

(4) Sep of power issue?

Enumerated?

Autonomy?

Due Process?

Implied?

Commandeering?

Unenumerated?

State Passes a Law

(1) Does it violate the C

(2) OOS commerce Discrimination?

(3 Discrim against OOS Rights?

(4) Violate Due process?

(5) Equal protection?

(6) Discrim citizenship rights of IS?

Judicial Review
Marbury Analysis .............................................................................................................................................................................7 Judicial review ..................................................................................................................................................................................8 Judicial review Argument Structure ..................................................................................................................................................9

Marbury Analysis

Judiciary act of 1789

That the Supreme Court shall have exclusive jurisdiction. . . where a state is a party. . . And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers . . . Scotus shall also have appellate jurisdiction from the circuit courts and courts of the several states in the cases hereinafter specially provided for and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principle and usages of law, to any courts appointed, or persons holding ofce under the authority of the United States

Marshall view Original Jurisdiction includes: (1)States (2) Diplomats (3) Writs of Mandamus

Correct view

Original Jurisdiction includes: (1)States (2) Diplomats

Article III Section

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction

Marshall view

Correct view

Original Jurisdiction can be: (1) states (2) Diplomats (3) Nothing else

Original Jurisdiction can be: (1) states (2) Diplomats (3) Maybe other stuff?

Judicial review

(1) Look at the statute

What does it say, what is the textual analysis, what does it include, what does it not include

(2) Look at Constitution

What does it say, what is the textual analysis, what does it include, what does it not include

(3) Constitutional supremacy

If the analysis contradicts each other, the the Constitution wins.

Judicial review Argument Structure

Judicial Review

Argument For: (1) Textual defenses: (a) the Constitution included appellate review for SCOTUS (b) Judge's oath to the Constitution (c) The Supremacy Clause (2) It was necessary for starting the system of law in the country (Natural Law?) (3) Congress should not be able to decide the scope of its own power, there needs to be something else that sets the boundaries (4) It is more democratic, people made the law, thus the social contract says that the power comes from the people, thus the judge is better then the legislature. (5) Judges are more objective beings, they are not swayed by having to worry about pay or election and have life tenure. THey view themselves as a-political (6)

Argument against: (1) Counter majoritarian Difculty: unelected judiciary making decisions that are not subject to review can strike down democratic statutes (2) Not really more democratic (3) classical liberal- Judges arent more objective, just want own bias (4) Civi Rep- Leg is better (5) Text doesn't directly allow for Jud Review

Federal power
Case Overview ...............................................................................................................................................................................11 Enumerated and Implied Power .....................................................................................................................................................12

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Case Overview
Challenge of the national bank, claiming congress could not pass the law because it was not an enumerated power. Marshall held that anything that was a means to an end of an enumerated power and was not motivated by something else is allowed. the necessary proper clause further establishes this.

Mcolloch

Curtiss Wright

Challenge of foreign affairs power. . . The court held that the unenumerated power came from the crown of England.

Perez

Challenge of a law that eliminated Voting rights for US Citizens who voted in other elections. The court held there was a foreign affair power that came from the states magically

Arg for implied power

Yes (1) Show a relation I.e. Tax to money, or broadly relates to commerce power etc (2) congress needs the power to do other enumerated actions, thus the founders must have intended it (3) Show the commerce clause expansion, this is the same type of argument it should happen (4) Civid rep. the legislature is the best place to decide No (1) Break the connection, i.e. tax is different from any cost (2) If congress wanted to give the power they would have (3) Show a different motive (4) Founders did not intend for the power

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Enumerated and Implied Power

Powers Overview

Enumerated Powers

Yes

Is the power Directly listed in the Article 3 section 8 of the constitution?

No

Implied and Unenumerated Power

Military Power:
(11) To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water (12) To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; (13) To provide and maintain a Navy; (14) To make Rules for the Government and Regulation of the land and naval Forces; (15) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; (16) To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States;

Is the power a means to an ends of a power Not a Valid law Yes Is the law really Yes Directly listed in the a pretext for according to Article 3 section 8 of the another means? Marshall constitution? No Valid law according to Marshall No

Is the it related to a foreign affairs power?

According to Curtiss-wright and Perez the Executive has an implied unenumerated power

Other government functions

(9) To constitute Tribunals inferior to the supreme Court; (8) To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; (7) To establish Post Ofces and post Roads; (18) To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Ofcer thereof.

Financial powers:
(1) To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; (2) To borrow Money on the credit of the United States (3) To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; (4) To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States (5) To coin Money, regulate the Value thereof, and of foreign Coin, and x the Standard of Weights and Measures;

Criminal Law:
(6) To provide for the Punishment of counterfeiting the Securities and current Coin of the United States (10) To dene and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; (Commerce Clause can be included)

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Commerce Clause
Case Overview (Commerce Clause) ..............................................................................................................................................14 Historical time line ..........................................................................................................................................................................15 Progression: Gibbons, Lottery, Shreveport ....................................................................................................................................16 Progression: Hammer, Carter, Jones & Laughlin ...........................................................................................................................17 Progression: Darby, Wickard, Heart of Atlanta ...............................................................................................................................18 Progression: Lopez, Morrison, Raich .............................................................................................................................................19 Current Test: Flow chart ................................................................................................................................................................20 Commerce Clause Sorting Argument Structure .............................................................................................................................21 Commerce Clause Test Argument Structure .................................................................................................................................22 Purposes of Federalism .................................................................................................................................................................23 Hypos (Commerce Clause) ............................................................................................................................................................24

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Case Overview (Commerce Clause)

Raich
(Pro- Federal government)

CSA prohibited Marijuana. Court ruled it was an economic law, and then ruled that it affected ISC In the aggregate State law challenged about a monopoly that was state sanctioned of ferry boats in NY Harbor. Court overturned state law because the fed law was ISC on its face Fed law prohibiting the transfer of Lottery tickets across state lines upheld under the commerce Clause, even thought it was not ISC in Motive. Fed law set rates of trains from LA to TX and ordered that in state rates in TX also be set, in order to protect LA. COurt held that even if a statute is not ISC In form it can be upheld if it effects ISC. Law prohibiting the selling of child-labor across state lines. Overruled Lottery (but claimed it wasn't overruling Lottery),if the motive is something besides ISC its not ok Law set up a fair commission and standard for coal miners. Supreme court overturned it because it did not have a direct effect on ISC, and was not ISC in form. Overturned Carter Coal, ruled that it had to be a substantial effect on ISC if not iSC in form. Overruled Hammer. If the motive is not ISC but the form is, its still ok. Challenged law regulation the amount of wheat production, a farmer grew wheat for his own family beyond it. The court ruled that it merely needed to have a substantial effect in the aggregate hotel challenges Civil rights act. Upheld because it has a rational basis for having an effect in the aggregate. Law requiring that a hand gun cannot be within x of a school. Differentiated between economic and noneconomic laws. Ruled that if its a traditional state function then it is not legit. Sexual violence against women act. Differentiated between economic and non-economic laws. Ruled that if its a traditional state function then it is not legit .

Gibbons
(Pro- Federal government)

Lottery
(Pro- Federal government)

Shreveport
(Pro- Federal government)

Hammer
(anti- Federal government)

Carter Coal
(anti- Federal government)

Jones and Laughlin

(Pro- Federal government)

Darby
(Pro- Federal government)

Wickard
(Pro- Federal government)

Heart of Atlanta
(Pro- Federal government)

Lopez
(Anti- Federal government)

Morrison
(Anti- Federal government)

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Historical time line

Commerce Clause Less Federal power No real consensus on the power, states viewed it extremely limited while fed much more powerful Gibbons: Dened among more broadly then before, allowed a for statutes not ISC in form if there is an effect More Federal power

1800

1900

Lottery Case: Expanded to include regulation where the form is ISC but the motive is to regulate morality Shreveport Case: Expanded to include regulation where the form is not ISC but the motive is to regulate ISC if it has and effect on ISC

Hammer: Overruled the Lottery ruling

Carter coal Case and Schecter: Not ISC in form but yes in motive: changed the test to the Direct effect test (Causation)

Jones and Laughlin: Not ISC in form but yes in motive: changed the test to the Sub effect (size)

Darby: Overrules Hammer, brings back Lottery ruling

Wicker: Neither motive or form ISC, can be regulated if there is a sub effect in the aggregate

Lopez: size now must be sup in the aggregate, separate econ and non econ.

Heart of Atlanta: expanded wicker to as long s there is a rational basis for believing that the activity has some effect on interstate commerce

2000

Morrison: Conrms and expands lopez, includes causation language Raich: for econ- Changes back to rational basis for regulating ISC in the aggregate

Commerce Power

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Progression: Gibbons, Lottery, Shreveport

Interstate commerce in motive Not Interstate commerce in motive (pretext)

Interstate Commerce in Form

Ok (Gibbons) Ok if it effects Interstate Commerce (Gibbons)

Not ok (McColloch)

Not Interstate Commerce in Form

Gibbons
Not ok (McColloch)

Interstate commerce in motive Interstate Commerce in Form

Not Interstate commerce in motive (pretext)

Ok (Gibbons) Ok if it effect Inter-state Commerce

Ok (Lottery)

Not Interstate Commerce in Form

Lottery case

Not ok (McColloch

Interstate commerce in motive

Not Interstate commerce in motive (pretext)

Interstate Commerce in Form

Ok (Gibbons) Ok if its a substantial effect on Inter-state Commerce (Shreveport)

Ok (Lottery)

Shreveport

Not Interstate Commerce in Form

Not ok (McColloch

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Progression: Hammer, Carter, Jones & Laughlin

Interstate commerce in motive Not Interstate commerce in motive (pretext)

Interstate Commerce in Form

Ok (Gibbons) (claims lottery goes here) Ok if it affects Interstate Commerce

Not ok (Hammer)

Not Interstate Commerce in Form

Hammer
Not ok

Interstate commerce in motive Interstate Commerce in Form

Not Interstate commerce in motive (pretext)

Ok (Gibbons) Ok if it Direct effect Inter-state Commerce (Carter coal)

Not ok (Hammer)

Not Interstate Commerce in Form

Carter Coal

Not ok

Interstate commerce in motive

Not Interstate commerce in motive (pretext)

Interstate Commerce in Form

Ok (Gibbons) Ok if its a Substantial Inter-state Commerce (Jones and Laughlin)

Not ok

Not Interstate Commerce in Form

Not ok

NLRB v. Jones & Laughlin

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Progression: Darby, Wickard, Heart of Atlanta

Interstate commerce in motive Not Interstate commerce in motive (pretext)

Interstate Commerce in Form

Ok (Gibbons) Ok if its a Substantial Inter-state Commerce (Jones and Laughlin)

Ok (Darby)

Not Interstate Commerce in Form

Darby
Not ok

Interstate commerce in motive

Not Interstate commerce in motive (pretext)

Interstate Commerce in Form

Ok (Gibbons)

Ok (Darby)

Not Interstate Commerce in Form

OK if substantial effect OK if substantial effect on interstate on interstate commerce, in commerce, in aggregate (Wickard) aggregate (Wickard)

Wickard

Interstate commerce in motive

Not Interstate commerce in motive (pretext)

Interstate Commerce in Form Ok (Gibbons) Not Interstate Commerce in Form Ok (Darby)

OK if rational basis for OK if rational basis for believing that the believing that the activity has some effect activity has some effect on interstate commerce on interstate commerce (Heart of Atlanta) (Heart of Atlanta)

Heart of Atlanta

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Progression: Lopez, Morrison, Raich

Interstate commerce in motive Not Interstate commerce in motive (pretext)

Interstate Commerce in Form

Ok (Gibbons)

Ok (Darby) 1) for economic statute: okay if substantial effect in aggregate on ISC

Not Interstate Commerce in Form

Lopez

OK if rational basis for believing that the activity has some effect on interstate commerce (Heart of Atlanta)

For non-econ statute: okay if concrete tie on case-by-case basis on ISC, or outside a traditional state function Some type of procedural connection to ISC Not Interstate commerce in motive (pretext)

Interstate commerce in motive

Interstate Commerce in Form

Ok (Gibbons)

Ok (Darby) 1) for economic statute: okay if substantial effect (explicit connectionin aggregate on ISC 2) for non-econ statute: okay if concrete tie on case-by-case basis on ISC, or outside a traditional state function.

Not Interstate Commerce in Form

Morrison

OK if rational basis for believing that the activity has some effect on interstate commerce (Heart of Atlanta)

Interstate commerce in motive

Not Interstate commerce in motive (pretext)

Interstate Commerce in Form

Ok (Gibbons)

Ok (Darby) Economic is ok if there is Rational basis on ISC in the aggregate Non Econ- in each case is there some kind of a tie to ISC (ex-post analysis)

Raich

Not Interstate Commerce in Form

OK if rational basis for believing that the activity has some effect on interstate commerce In the aggregate

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Current Test: Flow chart

Sorting

Sort as ISC in form

Yes

On its face is the statute discriminatory?

No

Sort as No ISC in Form

Sort as ISC in Motive

Yes

In its Motive is the statute discriminatory?

No

Sort as No ISC in Motive

Testing

ISC in form and motive

Yes

Test:

Ok

No Yes Test:

ISC in form not motive

Ok

No ISC in Motive but not form No Not ISC in form or motive but Economic No Not ISC in form or motive but not Economic Yes Test: okay if concrete tie on case-by-case basis on ISC, or outside a traditional state function Some type of procedural connection to ISC Yes Test: OK if rational basis for believing that the activity has some effect on interstate commerce In the aggregate Yes Test: OK if rational basis for believing that the activity has some effect on interstate commerce In the aggregate

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Commerce Clause Sorting Argument Structure

Argument and analysis structure Original Intent of founders: No real evidence either way Purposes of federalism (see other chart): Not often used by SCOTUS Precedent and making stuff up:

ISC on its face

Inter state On its face (1) Contains Interstate or crossing state lines in the Law (2) a law that literally deal with in between states

Not interstate on its face (1) regulates something totally within one state (2) Has no reference to ISC

(3) the language of the statute must have some type of ISC reference

ISC in Motive

Inter state in motive (1) Point to a strong ISC Motive (Shreveport train example) (2) (3) Not interstate in motive (1) point to a clear non ISC motive (health, police, protection)

Is it Economic?

Economic (1) Show that it is involved in an overarching regulatory scheme aimed at Economic regulation, even if is not necessarily only economic. (2) Show that the main purpose is economic (and ignore Health or safety concerns) (3) Raich defined it economics " encompasses anything, that involves the "production, distribution, and consumption of commodities." connect it to this language (4) Sorting in such a way causes confusion and leads to distorted result, thus for more consistency it should be economic unless clearly shown otherwise (5) compare to raich- weed isnt really economic but broadly

Non Economic (1) point to a clear non-Economic motive (health, police, protection) (2) Show that the overarching bill is to vague to be considered Economic (3) Criminal law cases- Compare to Lopez and Morrison, or use to point to other "traditional state function" which would mean that its not economic. (4) SHow how removed from economics it is, and then use a slippery slope argument to say that essentially everything can be economic, it would kill federalism

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Commerce Clause Test Argument Structure

ISC On its Face and Motive ISC On its Face/ not Motive

(1) No real argument that it can be anything but valid (2) Point to Stare Decisis, Hammer was overruled, It has been t he law of the land for 75 years

(1) No real argument that it can be anything but valid

Not ISC on its Face but ISC in Motive

Test: OK if rational basis for believing that the activity has some effect on interstate commerce In the aggregate (Heart of Atlanta)

Not Valid: (1) Use causal language, such as "direct effect", then show that the chain is broken because the basis is to far from the initial effect on ISC (2) Founders intent- cultural closer to home, localized

Valid: (1) Uses size language like rational Basis and Substantial effect, and then show how it can be a major effect on ISC (2) Use precedent and Stare Decisis: Heart of Atlanta, Wicker, Shreveport etc. consistency (3) differentiate causal from size

Not ISC on its Face or Motive but Economic Not Valid Arguments:
(1) Use causal language, such as "direct effect", then show that the chain is broken because the basis is to far from the initial effect on ISC, sometimes uses size well, substantial or large. (a) argument for Direct effect - if rational basis was the original intent then why give all the other article I powers? some become repetitive and pointless i.e. why add foreign trade and Indiana tribes since anything with them would also have a rational basis on isc in the aggregate? the separate enumeration implies no "substantial or rational basis test" (2) If its regulating in-action, distinguish based on previous cases regulating acts (3) Show how removed (4) argue the court is just scared of the Executive and Federal government and is running away.

Test: Economic is ok if there is Rational basis on ISC in the aggregate

Valid: (1) Uses size language like rational Basis and Substantial effect, and then show how it can be a major effect on ISC (Current Raich test, Rational basis for affecting ISC in the aggregate) (2) Use precedent and Stare Decisis: Heart of Atlanta, Wicker, Shreveport etc. also historically, no economic bill has been held unConstitutional under the commerce clause (3) Consistency, mabye its been relied on

Not ISC on its Face or Motive but Economic

Test: in each case is there some kind of Concrete tie to ISC (ex-post analysis) or not a traditional state function then ok

Not Valid: (1) First point out if there is no procedural element (2) If there is a procedural element- there is no case law, use a functional argument to show that if this can be allowed it simply ruins the whole procedure and in practical effects there is no difference from just flat out allowing it (3) Show that it is at traditional state function such as Criminal law, police, protecting Health etc. (4)If it is regulating in action, Valid: (1) Show a procedural element inside the bill that makes this legit on a state by state basis (then show that the specific item crossed state lines) Show a concrete tie into ISC (2) If nothing else mark invalid but give advice to congress to pass w/procedural element (3) Show that it is not a traditional state function to govern this (ala not Criminal Law etc)

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Purposes of Federalism

Purpose of Federalism (1) Culture group in a particular area different then the majority

Present day Federalism (1) Cultural differences are less then before

(2) Participation in the democratic (2) States are so much bigger it party, if it is closer to home its makes it difficult easier (3)Expertise in local problems. (4)Check on federal government (3) still kinda relevant just not known (4) People are not as suspicious of the fed

23

Hypos (Commerce Clause)

(1) Law requiring all citizens to have health insurance

(2) Congress passed driver protection action, which prevents dmvs from disclosing personal information

(3) Congress regulates strip-mining because of environmental concerns and the ability to persevere water and soil, limiting the use, and requiring if its done that it is returned to its previous form

(4) Congress passes a law that provides that garden centers in the United States cannot sell any flower or other decorative or landscaping plant that is not indigenous to that area

(5) Congress passes a law that says no one can use cell phones while driving on interstate free ways

(6) Congress passes a law granting all gun manufacturers immunity from liability for state causes of action including negligence and products liability

(7) Congress passes a law that regulates the minimum price for waste storage and process in all of the states.

(8) Congress passes a law banning child pornography in all states

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State Immunity
Case overview (10th amendment) .................................................................................................................................................26 10 amendment theory ....................................................................................................................................................................27 10th amendment-Accountability .....................................................................................................................................................28 10 amendment Accountability argument structure .........................................................................................................................29

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Case overview (10th amendment)

Wirtz

National League of Cities

Garcia

Federal energy regulatory commission

New york v.. United states

Printz

26

10 amendment theory

Substantive theory

States

The wall of the 10th amendment

The wall Article 1 of the Constitution

Residual theory States prot from the wall

Federal Government States

The wall Article 1 of the Constitution

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10th amendment-Accountability
10th amenmdnt

Accountability and commandeering the states

Yes

Is the Fed Gov telling the state Gov. what to do?

No

Is the fed regluatin the states

Is it from art I sec 6? Is The fed telling the state court what to do? Yes Not allowed (Supremacy Clause)

No

Is The fed telling the state Legislature what to do?

Yes

Is it through Yes incentives, options, or direct regulation? No

Ok

No

Congress cannot commandeer the states to directly pass legislation

Is The fed telling the state Exectutive what to do?

Yes

Is it a Policy or Executive duty?

Policy: not Ok does not allow for Accountability

Ministerial: Ok does allow for Accountability

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10 amendment Accountability argument structure

Is the ordering Ministerial or Policy making

Ministerial: (1) show how simple and procedural the action is, distinguish from policy

Policy: (1) is it purely ministerial- show some policy (3) focus on choices in time and decisions, ala background checks are policy

Should Commandeering for Ministerial duties be allowed?

No: (1) no just accountability but autonomy (2) cannot be a puppet of congress (3) They are just making up this rule, not in the C

Yes: (1) Stare decisis (2) Accountaibility-doesn't matter its not policy (3) The C may be silent but still this is good (4) Purposed of fedearlism

Should Commandeering for Policy duties be allowed?

No: (1) Accountability, blame (2) Autonomy, augment power of fed too much (3) Purpose of federalism (4) Stare deciss (5) confusion change would make accountability even worse Yes: (1) HTey are just making this up (2) FUnctioanl, if the state can be bribed, whey not?

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Dormant Commerce Clause

Case Overview (DCC) ....................................................................................................................................................................31 DCC Test and Sort box ..................................................................................................................................................................32 Historical arguments ......................................................................................................................................................................33 DCC Flowchart ...............................................................................................................................................................................34 DCC Arg structure Sorting .............................................................................................................................................................35 DCC Arg Structure Test .................................................................................................................................................................36 DCC Arg Structure Exceptions .......................................................................................................................................................37 Privileges and Immunities (Art IV) ..................................................................................................................................................38 P/I (Art IV) Argument structure .......................................................................................................................................................39 Hypos (DCC) ..................................................................................................................................................................................40

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Case Overview (DCC)

Cooley Pike Baldwin (Milk) Philadelphia Maine Carbone Hunt Cloverleaf Souther pacic Reeves South Central Timber New energy co West lynn creamer

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DCC Test and Sort box

Sorting

Test

Is the Statute Intentionally Discriminatory or Discriminatory on its face? May still have a Legitimate local interest

Per se Illegal or (Heavy) Weighted balance (1) First thing there has to be a signicant interest that is really big (2) There is no less discriminatory alternatives

Is the Statute Discriminatory in practical effects

Weighted Balance and there is no less discriminatory alternatives

Non discriminatory burden and legitimate local interest

Balancing test Is the effect on ISC clearly excessive in comparison to the local benet (Easy Balancing)

No burdon

OK

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Historical arguments

Congressional Intent Model (1) If power is given to congress then it must be taken away from the states (2) Essentially it adds "and the states may not" to the Commerce Clause (3) Congress has a non-delegable duty to enforce commerce and any act by the states is not Constitutional (4) No longer a prevalent view

Constitutional Prohibition Model (1) Congress is Supreme over the Commerce Clause, but the states can regulate it as well, when the Conflict Federal gov wins (2) Fed gov. regulates either by directly regulating or allowing a state to regulate, or remaining silent (3) this is not a founders issue, but rather a congressional intent issue. (4) In the end Congress can always allow state regulation

SCOTUS Legitimacy Issues (DCC)

(1) If SCOTUS didn't act then the protection would never have been given (2) Since Congress has the power, they would have been able to tell SCOTUS not to act, but they never have (3) The Constitution does not say that states cannot regulate Commerce (4) Functionally, if congress approves it is the will of the people

DCC Analysis DCC Flowchart

Congress is boss (However P/I may still apply)

33

Yes

Has congress spoken?

No

When congress has not said anything about the issue then SCOTUS must gure it out

Yes
The DCC regulates Commerce

Is it commerce?

No

The DCC only regulates commerce it does not regulate ohter actions

Is the Statute discriminatory on its face?

Yes

Is the State participating in the market?

Yes

Market partipent exception

No No
Is the State subsidizing?

Yes

Subsidy exception (as long as the funds are not simply in a fund from a tax on the product)

No Test: Per se Illegal or (Heavy) Weighted balance

(1) First thing there has to be a significant interest that is really big (2) There is no less discriminatory alternatives

Is the Statute discriminatory in practical effects

Yes

Is the State participating in the market?

Yes

Market partipent exception

No No
Is the State subsidizing?

Yes

Subsidy exception (as long as the funds are not simply in a fund from a tax on the product)

No Test: Weighted Balance and there is no less discriminatory alternatives

Is there no discriminatory effect?

No

Test: Balancing test Is the effect on ISC clearly excessive in comparison to the local benet (Easy Balancing)

34

DCC Arg structure Sorting

Is it intentionally or facially discriminatory?

No: (1) Show another purpose (2) Minimize the discrimination (3) Show that it discriminates against everything

Yes: (1) Singles out a state (2) Purposefully targets OOS (3) Show no other purpose (4) Show that the state is just hiding behind other reasons but really discriminates

Is it discriminatory in practical effect?

Go to x test

No: (1)

Yes: (1)

Is it non discriminatory

Yes: (1) Show a legimate local interste, safety healht, police etc (2) Show that any effect on ISC is incidental (3) Show tath its even handed same in and out

No: (1) Show an alterior motive (2) Show dsecrim falls on OOS (3) Show a large effect on ISC

35

DCC Arg Structure Test

Per se illegal Test

No: (1) Show a huge local interest (maine) (2) show no less discriminatory means

Yes: (1) Show a less descrim means Show the states interst isnt so big (3) Policy- dont want to fracure the union and commerce

Weighted Test

No: (1) Show a huge local interest (2) Show examples of

Yes: (1) SHow less discrimnatory menas (2) Show a minor Local interest (3) Stare decisis

Easy Test

No: (1) Show how little it effects isc and how much it helps the public good (2) Stare decisis (3) Show ISC is not learly excessive (4) Show majore safety or health benefits

Yes: (1) Shoo an excessive effect on ISC (2) Show its about economics

36

DCC Arg Structure Exceptions

Is it commerce?
Yes: (1) Focus on economic effect (2) show that even though there is other implications in the end it really is commerce (3) Distinguish using traditional effect that justice Robert's said (4) say that if this exception is adopted its just going to be back and forth chaos made up with no bright line rule No: (1) Focus on the other things beyond economic effect, health, safety etc (2) There is a sliding scale, modern times call for new things being not commercial (3) Use Justice Roberts opinion, Waste management Police force etc are not Commerce (4) Use WIlliams argument form

The dcc only regulates Commerce not other things

Is the State a market participant?

No: (1) Show the state is regulaitng not participaing (2) Show taht functiaonlly its the same as discrim (3) worlds well if there is a shortage or crisis, (4) show that even it its acting it has a big effec ton ISC Yes: (1) show the state is buying and selling (2) Show its all within one state and doesn't effect ISC

Is the state using subsidies?

No: (1) Show that there is a tax on the commerce that is put in spearate funds- thus discrimination (2) The arg that its needed to protect police is wrong cuts against purpose of DCC

Yes: (1) SHow its in the general fund- thus no discrim (2) Subsidies in general are ok (3) Functionally its the same either way, even if its in a special fund

37

Privileges and Immunities (Art IV)

P/I Art. IV

P/I Structure

Yes

Is there discrimination?

No

For the P/I there must be discrimination

Is the discrimination against a an out of state Party?

No

Must be an out of stater

Yes

Is the discrimination against a National right?

No

There must be a National right

Yes Congress Has not valididty over the P/I Clause

Did congress act validating the act?

38

P/I (Art IV) Argument structure

Is it a National right

Yes: (1) show it is related to ones ability to make a living (2) Rigt to posses property (3) Brennan's everything is a right argument

No: (1) Show it is recreational (2) Federalism argument (3) showt that it is not ralting to properyt or making aliving

Is there discrimination against an out of stater

Yes: (1) show evern though it is neutral on its face its practical effects is discriinatory (2) SHow that it is facially agianst OOS (3) Rule of law

No: (1) Show the same effect on IS as OOS (2) Purposes of fed

39

Hypos (DCC)
(1) Wisconsin allows UW grades to not take the bar, but requires all outside law schools to take the bar.

(2) California requires all residents to get health care from CA companies only.

(3) Washington requires all minerals taken out be processed through the states processing company

(4) Mad cow was found in Oregon, CA passes a law banning importation of outside states cattle, and a strict testing on in state cattle

(5) California bans the selling of any oranges that have a certain pesticide on them. The only state that uses the pesticide is in Florida, the direct competitor in the orange industry.

(6) Rhode island requires that all chemical waste sites charge 5 dollars a pound, There is very minimal chem. Waste in RI, in fact 95% of the industry comes from Massachusetts. RI claims it was a safety reason

(7) Indiana charges all gas companies a 100,000 fee ot work in the state. Indiana gives any palnt inside IN limits a 100,000 dollar subsidy for providing jobs. A Kentucky plant which does 30% of its work in IN challenges

40

Separation of powers
Case Overview ...............................................................................................................................................................................42 Theories/Policy ..............................................................................................................................................................................43 Sorting ...........................................................................................................................................................................................44 Separation of power Overview .......................................................................................................................................................45 Separation of Power Flow Chart ....................................................................................................................................................46 Separation of Power Delegation Argument Structure ....................................................................................................................47 Separation of powers argument structure ......................................................................................................................................48

41

Case Overview
Youngstown

Dames and more

Chada

Clinton

Clinton v. Paula Jones

US v. Nixon

Nixon V. Fitzgerald

Curtiss wright

42

Theories/Policy

Rule of law

Checks and balances

Values

Effective Government

Democracy and Impartiality through separation Stages: (1) General (2) Prospective (3) Enforced by separate impartial bodies

Inactivity through interference and Gridlock

Different branches, strengths, etc (Gov. should be good at governing) Balance strength, democracy and rule of law.

Executive

Doesn't make policy, Leader, Impartial, strives for national interest.

Not about policy, its about securing limits on the government

Active president is good, partnering with congress is good

Case Support

Youngstown, (chadha)

Chadha, Clinton

Curtis wright, Nixon

43

Sorting

Congress authorizes

Maximum executive power

Congress has done nothing (Exigency)

Takes an abstract determination

Congress has implicitly denied the power

Has the Constitution given the power to the Executive and only the Executive?

Congress has directly denied the power

44

Separation of power Overview

Legislative Executive Judicial

(1) Write and enact Laws (bicameralism) (1) Veto Laws (Presentment) (2) Enact taxes, authorize borrowing, set budget (3) Declare war (4) Investigate executive (4) Pardons (5) conrm heads of exectuvie (6) Conrm judicial (7) Raties treaties (5) Must spend money that is allocated for certain purposes (2) Wage War (3) Appoints judges and heads of executives (1) Judicial Review (2) Interprets Congress intentions of statutes (3) Has a set pay and life tenure

Specic rules

(1) Line-item veto- Congress cannot give the executive a line item veto (2) Discretionary spending- executive can chose not to use discretionary (3) Delegation- Congress can delegate to the Executive (4) Legislative veto- The legislative cannot keep a veto after delegating to the executive.

Separation of power

45

Separation of Power Flow Chart

Executive power Is this Executive or Legislative? The president has the implied power as the sole actor Line Item Veto is not allowed Legislative

Is this a foreign affairs Yes power? No

Yes

Did the legisalture give the president a Line-Item Veto

No

Is Executive immunity being applied? Yes

No

Did the legislature Did the delegation Yes Delegate policy No Must be passed by bicameral making power to Bicameralism support? the Executive? Yes No

Did the event occur while acting as president?

Legisative Veto is not allowed

Yes Has the legislature kept a legislative veto? No

Valid Immunity

No Immunity

Analyze under Separation of power policy (Probably valid) Executive power is not allowed unless The constitution gives the power to the executive and only the executive Has congress implicitly denied or actually denied Executive policy making? No Use Rule of Law Use the policy determinations to see if the President is allowed

Yes

are there individual rights? No

Yes

Is it about the issue Yes of statute making? No Is about foreign affairs, immunity, military? No Use all types of policy Yes

Use Checks and Balances

Effective Government

46

Separation of Power Delegation Argument Structure

Individual rights

Yes: (1)

No: (1)

Foreign power

Yes: (1)

No: (1)

making laws

Yes: (1)

No: (1)

47

Separation of powers argument structure

48

Substantive due process

Case Overview ...............................................................................................................................................................................50 P/I (14 amendment) argument structure .......................................................................................................................................51 Due Process Historical Overview ...................................................................................................................................................52 Due Process ..................................................................................................................................................................................53 Lochner Economic Substantive Due Process ................................................................................................................................54 Williams trend chart .......................................................................................................................................................................55 Privacy right ...................................................................................................................................................................................56 Privacy right argument Structure ...................................................................................................................................................57 Abortion .........................................................................................................................................................................................58 Abortion Right ................................................................................................................................................................................59 Abortion right Argument Structure .................................................................................................................................................60 Sexual righs ...................................................................................................................................................................................61

49

Case Overview

50

P/I (14 amendment) argument structure

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
The P/I clause of the 14th amendment does not protect anything but national citizenship, right to travel, vote in national elections, gain entry to federal property. (Slaughterhouse) Unfortunate problem with the 14th amendment it fits better then the due process clause however it has not been used, and Slaughterhouse would need to be overruled in order to do such.

Text

Specic Rules:

Durational residency requirements are not allowed unless they are a part of a good faith residency requirement.

A citizen of the a state has every right of every other citizen of that state regardless of time spent there, which included right to welfare (Saenz)

Argument and analysis structure

What type of rights are being infringed on by the state Government?

Citizenship rights:
(1) Try to Relate to the right to travel, or some other already protected right (2) Compare it to other citizenship type rights

Natural rights:
(1) Use slaughterhouse to say natural rights are not protected (2) Good faith residency is ok if it is merely a way of making sure they are citizen (3) Distinguish it from a "right to travel" or citizenship type right

Should Not be protected argument

Should be protected argument

Should Not be protected argument

Should be protected argument

(1) Try to show there is a legitimate state concern that needs protecting, Good faith requirement? (2) compare tot eh residency requirements of In state tuition (3) Functionalist argumentWhat is really the difference?

Usual winning side (1) Relate tot he argument structure in Saenz and Slaughterhouse (2) Show that even if there is another reason that it still infringes on citizens rights (or that citizens rights is still the main reason)

Usual winning side (1) Slaughterhouse precedent (stare decisis) (2) Emphasize only citizenship rights are protected, show the actual language of the text

(1) compare to Art IV P/I (2) Compare tot he due process and Equal protection clause and show the issues with each of those (3)

51

Due Process Historical Overview

(1) Get rid Arbitrairiness- Can only act by pre-existing rules, no ex-post

(2)Legislature passes laws Judicial and Executive enforce them

These three are actually Procedural so they make sense

(3) Laws that Target specific individuals are bad, must be done in a procedurally fair way

(4) Vested rights If there is a law that trenches on economic rights, its going to be overruled on the ground that its not neutral unless it can show a real reason

52

Due Process
Does the law target a specific group?

Yes (1) Show that there is no Public welfare mode but rather just congress directly targeting someone specifically (2)

No (1) Show a legitimate public welfare means (2) Show that it was not targeted at a specific group of individuals.

53

Lochner Economic Substantive Due Process

A State law Invades on Economic rights of an Individual (Vested rights

No

Is there a legitimate Public Welfare motive of the State?

Yes

You are lying or dishonest if you think there is another reason

Any law that invades on economic vested rights is not Constitutional

54

Williams trend chart

Order

Liberty

Fascism

1787

1890

1910

1990

Liberty

1787

1870

1920

1990

Tradition
Living Underline Principles

Multiple traditions

55

Privacy right
(1) Get rid Arbitrariness- Can only act by pre-existing rules, no ex-post laws

Due Process Clause Nor shall any State deprive any person of life, liberty, or property, without due process of law

(2) Legislature passes laws Judicial and Executive enforce them

These three are actually Procedural so they make sense

(3) Laws that Target specific individuals are bad, must be done in a procedurally fair way

(4) Harlan's rule: if a right is trampled on, they must show a Compelling state interest, and have no less restrictive alternatives

Is there a right implicit in the concept of ordered liberty?

No

Is there a reason? No

Yes

Rational Basis

Yes No

No rational basis

Is the right infringed upon by a state?

No violation of due process

Does the state have a compelling interest? Strict Scrutiny Yes Is there no less restrictive alternatives? Yes Supposedly valid law

No

This law will be overruled on Due process grounds

No

This law will be overruled on Due process grounds

56

Privacy right argument Structure

Is there a right Ordered Liberty

Yes
(1) show that there is a traditional trend in the United States in support of this right (If there are more then one try to show that this trend is the important one) "Living tradition" (2) There may be multiple traditions and not just one major tradition throughout history, and as long as its not definitively against the right, it means the court should come and bring in principled consistency. (3) Look to "reason" and "judgment" and use reasoned judgment to show which one is the "best" for a principled consistency. show that there is no consensus. (4) Difference between practice and principle, even if in practice there is widespread dissent, the principle may have a unifying result behind the scene (5) requirement for principled consistency is usually high (6) "at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." When there is a split there can not be regulation to mandate just one view (Anti totalitarian view) Counters: Something may should be unconstitutional and objectionable but it cannot be cuz there is no historical tradition (Dred Scott)

No
(1) show that there is a traditional trend that this is not a right in the United States in support of this right (If there are more then one try to show that this trend is the important one) (2) Only can be protected if it is "Uni-vocal" and it says the same things from the beginning to the end, and it geographically it is united. (Scalia) (3) No evidence that the framers textually wanted to protect other rights (4) Counter to principle- different judges will see different principles (5) Shouldn't read right overly broadly because its just the preferences (Skeptical liberals) Counter: (1) Judges might just do whatever they want in the other view, becuase they are given to much discretion

Does the state have an interest?

No: (1)

Yes: Gay rights: (1) When it injured someones person (classical liberal (2) or Damaging an institution that law seeks to protect

Are there less restrictive alternatives?

No: (1)

Yes: (1)

57

Abortion
Roe Standard

Abortion Does hte state infringe upon the right? Yes Is the fetus "viable" No Yes No state interest can be allowed as it would violate the due process clause of the 14th amendment Is there no less restrictive alternatives? Yes Supposedly valid Strict Scrutiny Yes The state has a compelling interest No Due process does not protect

Casey Standard Abortion Yes The state has an itnerest

Is the fetus "viable" No

Is there a substantial Obstacle No or Undue Burdon? Yes

Is the there a state interest? Yes

No

Must be at least a slight state interest

Is the there a state interest?

58

Abortion Right

Does the Constitution ban Abortion? 14th amendment rights

Is the Constitution silent?

Is the Constitution silent?

(1) Things in the Constitution that refer to "people" or Person" are related to actions that are postnatal, right to vote, run for ofce etc. (2) Abortion law in 1860 are variable

(1) The states would regulate it under the 10th amendment

Protected from coercion

Allowed to bribe

Voting rights, expression, other individual rights

DCC, 10th amendment, Abortion

59

Abortion right Argument Structure

Does the state have an interest?

No: (1) Regulating in the interest of health, means you have to (2) Classical Liberal

Yes (1) show a compelling health regulation i.e. that the health interest, in regulating abortion, is compelling and that it saves lives or saves (Has to be effective (a) is it going to be safer to have the abortion (b) are the regulations safer (2) Viability(3) Classical liberal, right run as far as it tramples on someone else's rights

Health

Pre-natal life

Abortion right

Yes (1) Women has right to terminate a pregnancy before Viability (Holding of Casey) No: (1) Stare decisis(a) try to show that the facts have changed (b) or the surrounding law has changed (c) That people have not "relied (d) Show that it not a political decision but rather that its a judicial (2) Stare Decisis (a) Doctrine of law (b) Institutional credibility- Use reasoned-judgment (a) try to show that the facts have not changed (b) or the surrounding law has not changed (c) That people have "relied (d) Show that it is a political decision that would get rid of credibility (3) Right in Substantive due process

Undue Burden "abortion exclusive" law thats purpose or effect places a substantial obstacle in the place of the women.

No: (1) Show that its a "trivial" obstacle even if the only point is to make a trivial

Yes (1) Not a balancing test, so the size of the state interest does not matter (2) SHow that it was unduly pressuring not "informing"

60

Sexual righs

61

Equal Protection Clause

Case Overview ...............................................................................................................................................................................63 Suspect class .................................................................................................................................................................................64 SS Class Argument ........................................................................................................................................................................65 EP Flow for R,R,NO,E ....................................................................................................................................................................66 EP SS Arg ......................................................................................................................................................................................67 EP SS Arg ......................................................................................................................................................................................68 AA Flow SC ....................................................................................................................................................................................69 AA Flow Gender .............................................................................................................................................................................70 Aff args ..........................................................................................................................................................................................71 EP Aff Action Arg ............................................................................................................................................................................72 EP Gender .....................................................................................................................................................................................73 Gender arg ....................................................................................................................................................................................74

62

Case Overview

Dred Scott

Koramatsu

63

Suspect class

Formula for nding suspect class

Is a group Discriminated based on immutable characteristics are bad?

(1) Symbolic politics say some people are inferior to others, because the majority wants to feel good. (2) its far more associated with the democracy and legislature

Yes

(3) The court is far less democratic and may be better.

Is the discrimination not based on merit?

Yes

Is there a history of political discrimination?

Yes

Maybe a suspect class is found

Who should decide?

64

SS Class Argument

Court

Legislature

Immutability

No:
(1)

Yes:

Merit

No: (1)

Yes: (1)

Hisotry or political incapacitiation

No: (1)

Yes: (1) open structural laws or formal banning things like voting (2) A more functional ban that includes (3) Show indirect evidence that shows a hostile situation

65

EP Flow for R,R,NO,E

Is there a suspect class Yes Is there facial SC discrimination based on animosity to the SC? No Is the statute facially neutral, but SC animosity in intent No Is there SC classication Yes based on the SC that effects the legal status? The state has a pressing public necessity (compelling interest) Yes Is there no less restrictive alternatives? (narrowly tailored) No Yes Supposedly valid Yes Yes Per Se Unconstitutional Race, religion, National Origin, ethnicity

Strict Scrutiny

No race involved

Yes

Rational basis

Any reason, doesn't matter how lame, or evidence, all, it can be a pretext, and it can be one step at a time)

Part that is not in the test

Discrimination in effect but not motive

Yes

Is there a substantial state interest? Intermediate Scrutiny

Yes

66

EP SS Arg
Is there racial animousity

No
(1) Show that it is not an issue of merit,but really an issue

Yes
(1) show that merit is completely independent from any racism or sexism (Classical liberal)

(Classical Liberal) (2) Show the people cannot control the issue because Immutability (Classical Liberal) (3) Show that it would lead to Subordination/caste (Civic Republican)

Is there Racial Classication without animosity?

No:
(1) Show the framer's intent, that separate but equal was ok (2) Show that it is all effect and not motive or classification (3) Look at legislative history and show the goal was not based on

Yes:
(1) Practice v. Principle, even though the farmers in practice were committed to practice, in principle were committed to liberalism, (2) though the violation is not the effect, the effect can show lots of evidence for intent (3) Show that

Is there racial intent even though its facially neutral

No: (1) Show that there is multiple motives that have nothing to do with race, and the other motives were sufficient in themselves to pass the statute (2) Legislative intent can be very broad and not uni-lateral (3) show there is another reasonable effect outside of simply discriminatory (4) Courts don't like to say that congress is racist (5) Functionally the legislature can just redo and make it "not racist" (6) Racial intent is a "form conscious desire" to be racist (7) the intent is assumed to be facially neutral unless they can be proved.

Yes: (1) show that there is "totality of hte circumstances" racial intent (2) Infer Discriminatory intent from discriminatory effect (only works if its the only reasonable inquiry)
(6) Racial intent is a "form conscious desire" to be racist (7)

67

EP SS Arg

Per se Unconstitutoinal

Yes
(1)

No

Does the state have an interest?

No: (1)

Yes: (1)

No less restrictive alternatives?

No: (1)

Yes:

Rational basis test

No: (1)

Yes: (1) SHow that there is a new development of new "suspect class", and that it is possibly developing. (2)

68

AA Flow SC

Is there a suspect class?

Is sorted under SC classication based on the SC that effects the legal status

compelling state interest

No Is there remedial aff action?

No Is it trying to create diversity

No compelling interest (fails strict scrutiny)

Yes

Yes No Holistic approaches are ok for higher education ( may be argued for lower education possibly)

Is there a nding Identied discrimination? (Intermediate Scrutiny says Societal)

Is it done on a strict numerical boost?

Yes

Yes

Will get struck done Did the legislature nd them to do it? Yes No Yes Did the legislature offer them to do it? Yes No Yes Did they nd that the Aff action grantor had discriminated in the past against the group? What is the grantor here? Legal privity?

Did the courts allow them to do it? Is the remedy offered to the exact same people discriminated against? Cannot have remedial AA

69

AA Flow Gender

Is there a suspect class?

Is sorted under SC classication based on the SC that effects the legal status

Important government interest (Exceedingly persuasive Justication)

No Is there remedial aff action?

No Is it trying to create diversity

No compelling interest (fails strict scrutiny)

Yes

Yes No Holistic approaches are ok for higher education ( may be argued for lower education possibly)

Is there a nding of societal discrimination?

Is it done on a strict numerical boost?

Yes

Yes

Will get struck done Did the legislature nd them to do it? Yes No Yes Did the legislature offer them to do it? Yes No Yes Did they nd that the Aff action grantor had discriminated in the past against the group? What is the grantor here? Legal privity?

Did the courts allow them to do it? Is the remedy offered to the exact same people discriminated against? Cannot have remedial AA

70

Aff args

71

EP Aff Action Arg

IS there a compelling state interest

Yes
(1)In order to grant remedial Aff Action show that there is "identified discrimination" (if it is not there try to argue that there is Societal discrimination) (2) show that a University that is trying to increase diversity in the university, that is not based on pure numbers but is really looking at the individuals (3) Use PICS to show that diversity at the high school level is what is going on, and it is a new compelling interest

No
(1) Show that there is not "identified discrimination" and show

that societal discrimination is not the standard and breaks precedent Show that there was not discrimination, thus it can't be remidial
Components (a) who can make findings (2) show that it is either not a university, of that the university is using pure numbers boost.

Is it narrowly tailored

No:
(1) Show that its vague and undiscriminated (2) Show that the categories are too board and that it really won't create the goal. (3) Show that there is classification of individuals by race.

Yes:
(1) Show that the mechanism is race conscious but does not lead to different treatment based on a classification individuals by race (2) Show that race is not the only factor, and that the other ways of classifying outside of race have filed

No: (1)

Yes: (1)

72

EP Gender
Is there a suspect class? Yes Is it classifying because of stereotypes, to create inequality, to perpetuate inequality (Sexist Laws) No Is there no sexism on its face, but the statute intended to be sexist? Yes Yes

Per se illegal

No Gender classication without Yes sexism Important government interest (Exceedingly persuasive Justication) Yes Narrowly tailored No Yes

Intermediate Scrutiny

No Sexism in the picture

Ratoinal basis

73

Gender arg

Was there intent to be sexist? or is it sexist on its face

Yes
(1)

No

Important government interest (Exceedingly persuasive Justication)

No:
(1) Show that it was not there actual motive and this excuse is really just an excuse and they must now show proxies ( is this really here or sorting?) (2) Show that it is just wild allegations, and not a real reason

Yes:
(1) show that it is remedial (show that is the actual motive) (2) slippery slope disaster arguments (3)

Narrowly tailored?

No: (1) show that there is some female somewhere that would be able to do the discriminated against act.

Yes: (1)

74

Law of democracy
Courts Role ....................................................................................................................................................................................76

75

Courts Role