Jericwithers wrote:What does constitutional law consist of at Duke? Single semester course covering all articles and amendments?
Single semester course, doesn't cover everything. They leave some stuff for Criminal Procedure. Here's my high-level outline for Con Law if you're interested in what you'll see.
(formatting will undoubtedly be screwed)
• Is a STATE LAW valid? (NOTE: No hook needed due to states' plenary power. )
1. Does the state law violate a constitutional provision (Bill of Rights, EPC, DPC)?
a. Does the law violate EQUAL PROTECTION?
i. What is the classification?
□ Discrimination on face of law?
□ Facially neutral but discriminatory purpose?
® NOTE: Discriminatory impact is not enough.
ii. What is the level of scrutiny?
□ Race/national origin = strict scrutiny
® Compelling reason
® Narrow tailoring (look for over/under-inclusive), cannot be achieved by any less discriminatory means.
□ Gender = intermediate scrutiny
® Important reason
® Substantially related (over/under-inclusive not fatal)
□ All others = rational basis
® Legitimate reason
◊ Any conceivable purpose, not actual purpose.
® Rationally related (over/under-inclusive is fine)
® However, if animus, rational basis PLUS.
iii. Does the classification meet the level of scrutiny?
b. Does the state law violate SUBSTANTIVE DUE PROCESS?
i. Does it involve family autonomy, procreation, sexual activity, sexual orientation, medical care decision-making, travel, voting, or access to the courts?
□ If so, law must meet strict scrutiny (see above).
□ If not, should the right curbed by state law be a fundamental right protected by DPC?
® Factors – history/tradition, national ethos, level of abstraction available to see a tradition.
ii. Does the state law infringe upon the fundamental right?
□ Absolute ban = infringement
□ If the law just burdens a person exercising that fundamental right, consider the directness and substantiality of the interference.
® If abortion, undue burden/substantial obstacle.
□ If infringement found, strict scrutiny.
□ If no infringement, rational basis.
c. Does the state law violate the BILL OF RIGHTS (that have been incorporated)?
2. Is there PREEMPTION? Does federal law preempt state law? (Supremacy Clause)
a. Is there express preemption? Does the federal law expressly says it trumps state/local law?
§ Court must still decide the scope of the law.
b. Is there implied preemption? Three options:
§ Did Congress intend to have the federal law exclusively occupy the field? (Field preemption). Ask:
□ Is this an area where the federal gov’t traditionally plays a role?
□ Has Congress expressed an intent in the text of the law or in LH that the law should be exclusive in this area?
□ Is there an important traditional state or local interest fulfilled by the state law?
□ Would allowing state/local regulations in this area risk interfering with comprehensive fed regulatory efforts?
□ NOTE: Look for field particularly in foreign policy/immigration laws.
§ Is there conflicts preemption?
□ Conflicts- impossibility preemption – occurs if it is physically impossible to comply with both state and fed law.
□ Conflicts- impediment preemption – occurs when a person could comply with both but compliance with state law would undermine Congress’s purpose.
® BUT, what about the idea that federal law is a floor and state law is building on it?
3. Does the state law violate the DORMANT COMMERCE CLAUSE by placing an undue burden on interstate commerce?
a. Is the law discriminatory against out-of-staters?
§ Can be:
□ Discriminatory on its face,
□ Facially neutral but has a discriminatory purpose OR
□ Facially neutral but has a discriminatory effect.
§ If not discriminatory, balance burden on interstate commerce v. social benefits of the law (presumption of constitutionality here & low burden of proof on the state).
b. If discriminatory, is the law necessary to serve an important government function? (presumption of unconstitutionality here & a high burden of proof on the state).
§ Are there any other ways that state could go about achieving the goal in a less discriminatory fashion?
c. Does the law fall under an exception to the dormant commerce clause?
§ Has Congress approved the state action?
□ If so, dormant commerce clause is no longer dormant --> no issue.
§ Is the state acting as a market participant?
□ Is the state favoring its own citizens over others in administering gov’t businesses or programs?
® If so, state is exempt under market participant exception.
□ Is the state attaching conditions to a sale that burden interstate commerce?
® If so, state violates dormant commerce clause.
4. Does state law violate the PRIVILEGES AND IMMUNITIES CLAUSE?
a. Does the state law discriminate against out-of-staters in the realm of Constitutional rights or important economic activities (ability to earn livelihood)?
§ If so, apply strict scrutiny (presumption of unconstitutionality).
§ No exceptions.
5. Does the state law violate the Privileges OR Immunities Clause?
§ Does the law burden the right to travel?
□ If so, apply strict scrutiny.
• Is the FEDERAL LAW valid? (law needs a hook due to federal government's enumerated powers only)
1. Note whether the statute is being challenged ON ITS FACE or AS APPLIED?
2. Is the law a valid exercise of COMMERCE CLAUSE power?
a. Is Congress regulating channels of interstate commerce?
b. Is Congress regulating persons, instrumentalities, or things in interstate commerce?
c. Is Congress regulating activities that substantially affect interstate commerce?
§ Does the regulation involve activities that substantially affect interstate commerce when viewed in the aggregate (cumulative substantial effect)?
□ If economic activity, valid under CC.
□ If noneconomic activity, invalid under CC.
3. Is the law a valid exercise of the TAX AND SPENDING power?
a. If a tax or spending law, does the purpose of the tax/spending law benefit the general welfare?
b. If a conditional spending law . . .
§ Conditions must be imposed for the general welfare (very deferential).
§ Conditions must be clearly stated (Court likely to scrutinize here).
□ State must know what is going to happen if they fail to follow the conditions.
□ Conditions must not be coercive (no statute has ever violated).
□ Conditions must not violate other provisions of the Constitution (10th amendment, e.g.).
□ Conditions must bear some relationship to the purpose of the spending program (no statute has ever violated).
4. Is the law a valid exercise of SECTION 5 OF THE 14th AMENDMENT power?
a. Is Congress regulating state actors?
§ If not, invalid under Section 5 power.
b. Is Congress attempting to create new rights or expand the scope of rights found by the Court?
§ If so, invalid under Section 5 power.
c. Is Congress acting to prevent or remedy violation of rights that have been recognized by the Court?
§ If so, law must be proportional and congruent to the Constitutional violation sought to be curbed (properly tailored). Ask:
□ What is the Constitutional issue involved?
□ What is the Constitutional record of harms that exist (how big of problem)?
□ What is the statutory remedy provided?
5. If valid from above, does the law otherwise violate other provisions of the Constitution?
a. Is the law in violation of the 10th AMENDMENT?
i. Does the law commandeer state legislatures to pass laws and regulate on behalf of Congress?
□ If so, invalid as commandeering.
ii. Does the law commandeer state officials to enforce or administer federal law?
□ If so, invalid as commandeering.
iii. Does the law just treat the states as regulatory entities rather than surrogate regulators?
□ If so, valid, no commandeering.
b. Is the law in violation of DPC or EPC? (see state law section above)