Con law checklists Forum

[Mickey Quicknumbers]

I created a little cheat sheet for con law, for some of the major tests, i'm done with my final now so I figured I'd post it just in case anyone else could possibly use it. It's probably not the best thing ever, but just in case anyone is struggling to figure these out, I don't think it's a terrible guideline.



Commerce clause
The Commerce Clause, Art. I, 1§ 8, cl. 3, gives Congress the power “to regulate commerce . . . among the several States.” Although the Court has generally interpreted this delegation of power to Congress very broadly (e.g. Gibbons v. Ogden; Wickard v. Filburn), more recently the Court has recognized some limits to what Congress may do under its power to regulate interstate commerce (Lopez; Morrison).

In Lopez, the Court recognized three categories of activity that Congress may regulate under its CC power: Instrumentalities; channels, and activity that has a substantial effect on IC.
Make an argument that it was a channel or instrumentality based on hearts of Atlanta motel
-Because it affects the movement of people in interstate commerce- it’s an channel
-In this case the court would give deference, because it historically has

If, however, the regulation is viewed as falling under the third category – regulation of activity that has a substantial effect on interstate commerce – then the question of Congress’s power to enact these provisions under the CC is much closer. In Lopez and Morrison, the Court signaled a new approach to this issue which is much less deferential to Congress and which takes much more seriously the idea of preserving a realm of state authority vis a vis the federal government

Weigh in all the factors
-Is it in and of itself an economic activity- Morrison wasn’t
-Are there congressional findings?- they can be helpful, but not dispositive “piling on inference”
-Is there a jurisdictional hook? If the statute explicitly discusses jurisdictions, very helpful
-Is there a strained link to interstate commerce?- Morrison there was, doesn’t help
Can it, in the aggregate, have a substantial effect on interstate commerce- Raich did and this was determinative

Is there a 10th amendment violation here?
-Congress cannot force states to carry out its laws- Printz
-If it is forcing states as well as private actors to do it, then it can be valid – Garcia




Spending clause

Congress could have power to act under the spending clause because: (congress is limiting spending in this way)
Congress’s power under the Spending Clause is broader than under its other delegated powers in the sense that Congress may use its leverage under the Spending Clause to enact regulations that it would not otherwise have power to do (e.g. under the CC) (U.S. v. Butler, cited in SD v. Dole). Therefore, even if the statute is not a permissible exercise of Congress’s CC power, it might still be permissible under the Spending Clause. Furthermore, the Court thus far has not extended the “federalism revolution” into the Spending Clause area.

According to SD v. Dole, though the Spending power is broad, it is not unlimited. In Dole, the Court articulated and applied four limitations on the Spending power: (1) the Congressional exercise must be in pursuit of the general welfare; (2) the spending condition must be unambiguous; (3) there must be a nexus between the federal interest and the spending condition; and (4) the condition may not violate another provision of the Constitution (i.e. no independent constitutional bar).

Now explain how it fulfills or doesn’t fulfill the four factors

The fourth limitation will probably hinge on some other part of the course (due process or EP)

Equal protection clause

Discuss whether or not there is a suspect classification: refer to Cheat sheet
-Minorities and how types of discrimination are treated, gender, AA, fundamental right
Discuss by analogy to cases which level of scrutiny it gets based on which suspect class it is
-Strict scrutiny, intermediate (heightened) scrutiny, rational basis, hybrid
Discuss whether or not the state meets the requirements for that level of scrutiny
-Narrow tailored, legitimate purpose etc.

Due process clause

Discuss whether or not there is a fundamental right at issue- reference case
Economic, right to privacy, abortion, family, marriage, interest of parents, sexuality, right to die (right over own body)
Discuss which level of scrutiny that case analogy leads to
-Undue burden, rational basis, strict scrutiny
Discuss whether or not the state meets the requirements for that level of scrutiny
-Narrow tailored, legitimate purpose, substantial obstacle etc.




Dormant commerce clause

Is the law discriminatory with respect to interstate commerce? (aka, the issue)
Does the law discriminate against out of staters on its face? (is the discrimination within the text)
-If it is apparent on its face, it will go to straight to strict scrutiny – Granholm v. Heald
-If it goes to strict scrutiny it will be presumed as invalid UNLESS exception applies
--Is there a strong state interest in the discrimination?
--Are there viable alternatives?
--Is this interest narrowly tailored
If it does not discriminate on its face: is there a burdening effect on interstate commerce?
-If there is a burdening effect on out of state commerce?
-If there is, then apply the rational basis review- Kassel
--Weigh the state’s interest with that of the burden on the commerce
--The law will be presumptively valid unless no state interest or heavy burden
If it is a burden on its face OR does it incidentally burden commerce- does it meet an exception?
-Preemption: congress has the right to regulate- has it been granted to state?
--congress regulates commerce, so it if it approves then law is constitutional- Wunnicke
-Market participant: is the state a participant in the market rather than a regulator?
--If the state, or state owned business was the participant and NOT a regulator, excepted
--BUT if there is regulation that oversteps bounds as participant (descrimination downstream), is not a valid exception (wunnicke)
Related to dormant commerce: state privileges and immunities
Under the state Privileges and Immunities Clause, Art. IV, § 2, a state may not discriminate against out-of-staters with respect to a constitutional right or the ability to earn a livelihood unless such discrimination is necessary to achieve a substantial governmental interest (i.e. discrimination will be subject to intermediate scrutiny).
Does the law discriminate against out of staters with regard to constitutional right or earning of livelihood?
-If it does, then it must pass through the test of intermediate scrutiny- analogize to Camden
-No per se invalidity, but not rational basis of review
--Is there a sufficient state interest for the discrimination?
--Does it bear a substantial relationship to its objectives?
-Market exception does not apply to privileges and immunities

(just remember, your professor may have gone over cases or left off cases that go into some of these factors, so make sure to go over this with strict scrutiny) yes, that joke was in fact terrible

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You ROCK!