Action Outline Con Law

1

Judicial Review (Pg 1)
Empowers court to examine legislation
and asses compliance with constitution
Power to Regulate Commerce (Pg 3)
Art. I 8: Congress shall have the
power
Pre-1937
o E.C. Knight Test:
Manufacturing v. Commerce
o Stream of Commerce
1937-1991
o Substantial Effect Test if
substantial effect power to
regulate
Aggregate Affects
1991 to Present
o Lopez Test:
Channels
Instrumentalities
Substantial Relation
or affect
10
th
Amendment Revival (pg 5)
o Cannot force states to enact
law can incentivize
Separation of Powers (pg 5)
President cannot make laws only suggest
and veto
Jackson Categories
o Pursuant to expressed or implied
congressional authority (highest)
o Absence of either grant or denial
(Twilight Zone)
o In contrary to expressed or implied
will (Lowest ebb)
Non-Delegation Principal
Congress cannot delegate its power to the
president (Schecter; Pannama Refining)
Preemption (Pg. 6)
Art. VI, Supremacy Clause
Type
o Express Congress says
o Implied
Field no room
Conflict impossibility
Dormant Commerce Clause (pg. 7)
State regulation unconstitutional even
without congressional action if places undue
burden on interstate commerce
o Inferred from art I 8
2 Strands
o Discrimination against out of
staters Strict Scrutiny
o Burden on Interstate Commerce
Rational Basis
Local v. national Subject matter test
(Cooley)
o States may regulate local matters
PikeBalancing Test 9 (So. Pacific RR;
Untied Haulers):
o Uphold non-facially discriminatory
unless burden on commerce
outweigh benefits
Where Facially discriminatory
o Strict scrutiny (Maine v. Taylor)
Market Participant Doctrine
o When state acting as a market
participant, it can discriminate
Privileges and Immunities (Pg. 9)
Art IV 2
Will be found when related to livlihood
Differences from Dormant Commerce
o Only applies to citizens
o Has to be facially discriminatory
o No market participant
o Congressional Action doesnt
excuse
Strict Scruitnity
Application of BOR to States (Pg. 10)
Done through 14
th
amendmentbut took
awhile
o Slaughterhouse Cases said NO
Substantive v. Procedural Due Process (Pg. 11)
Substantive
o Does govt. had adequate reason for
taking (economic liberties and
privacy)
Procedural
o Did govt. follow procedure in
taking
Economic Substantive Due Process (Pg. 11)
Rise (Lochner Era)
o Found readily an act must have
direct relation as a means to an end
to overcome
Fall (Nebbia Williamson)
o Freedom of contact and use of
property not absolute
o Rational Basis test for Govt.
o Burden on challenger
Rebirth? (Punitive Damages Cases)
o BMW v. GoreFactors
Degree of reprehensibility
Ration of punaivite to
actual
Other available sanctions
o State Farm v. Campbell: generally
anything over single digits is an
Economic Due Process vio.


2

Fundamental Rights Analysis (Pg. 13)
5
th
DPC and 14
th
EPC (and 9
th
privacy with
Griswold)
Standard of review
o Strict if fundamental right
o Rational basis if not
Analysis
o 1) Is it fundamental
Deeply rooted
o 2) Has govt. Infringed
Directness and
substantiality
o 2) Is there a justification
Compelling if strict
Legitimate if not
o 4) Is means sufficiently related to
ends
Strict- no less restrictive
Rational reasonable
Things that are fundamental rights
o Rights of parent to control
upbringing (Meyer v. NE; Troxel
v. Granville)
o Marital Privacy (Griswold)
o Non-Marital Privacy (Eisenstaedt
v. Baird; Lawrence v. Texas)
o Right to refuse care (Cruzan)
Things that are iffy
o Abortion
Trimester (Roe)
Undue burden (Casey)
Burden pre viability
(Carhart)
o Sexual Relations
Rational basis with bite
(Lawrence)
o Voting
Balancing test (Crawford
v. Marion Cnty.)
Equal Protection (Pg. 16)
5
th
Amendment for Fed. 14
th
for States
Analysis
o 1) Is govt. classification suspect
Facially
As applied (need
discriminatory purpose)
o 2) Appropriate level of Scrutiny
Strict (Race, national
origin)
Compelling state
interest
Narrowly tailored
no less restrictive
Intermediate (gender)
Substantial
relation to
Important Govt.
purpose
Rational Basis
Legitimate
interest
reasonably
related
Rational Basis w/ bite
(Orientation)
RB but harder
o 3) Has Gov. Action met Level of
Scrutiny
Under v. Overinclusive

Determining Suspect Class
o Immutable characteristic
o Ability to protect in legislature
o History of Discrimination
o Plausibility of Govt. Justification
Racial Discrimination
o If facial Strict Scrutiny
o If not need to prove discriminatory
intent
Arlington factors (pg. 18)
Affirmative Action
o Strict Scrutiny (Gutter v.
Bollinger)
o Strict in theory not fatal in fact
Gender
o Intermediate Craig v. Boren
State Action Doctrine (pg. 20)
14
th
and 15
th
Amendments Require State
Action
2 Questions
o 1) What is a state Theory of
I dentity
o 2) Is violation attributable Theory
of Attribution
RIGHT PRESENTED MATTERS (racial-
yes, PDP no)
Public Function Doctrine:
o Is action a traditional function of
the state? (Marsh v. AL)
Symbiotic Relationship Test
o Do the private and public entity
benefit from each other (Burton)
Shelly v. Kramer test
o Full coercive power of the state
o Exclusion on basis of race or color
o Restriction on enjoyment of
Property
o Where Buyer and Seller willing
and able

3

Lugar v. Edmonson Test for attribution
o See pg. 22
Affirmative Action v. Acquiescence (Blum
v. Yaretsky) for non-racial
o Affirmative action by the state is
sate action
o Acquiescence is not