Con Law Essay Tips Studicata

Article III: The judicial Power

o Marbury v. Madison and the nature of Judicial Review
o Marbury v. Madison, 5 U.S. 137 (1803) is widely considered to be one of the
most important Constitutional Law cases in U.S. history. It solidifies the
following key principles:
 The structure and function of U.S. Government must be based upon
the rule of law. In Marbury, the Supreme Court adheres to the rule of law
in the U.S. Constitution even when it is potentially detrimental to the
Supreme Court's own power.
 The U.S. Constitution is the supreme law of the land. In Marbury, the
Supreme Court holds that Congress cannot pass law that is in conflict or
inconsistent with the U.S. Constitution.
 The judiciary has the power of judicial review. Marbury  establishes
that the Supreme Court has the power to review law passed by Congress to
determine whether the law complies with the U.S. Constitution — i.e.,
whether the law is constitutional.
o Marbury v Mad
 1800 pres election: dem republican t.j defeats federalist pres J.A
 In the final weeks of federalist control, congress passes an act allowing
press j.a to appoint 42 justices
 In his final days as potus, J.A appoints the federalists to these newly
created judicial positions (including Marbury)
 Sec of state, J.M is given commissions of Marbury and others in the
closing hours of J.A’s presidency
 Upon becoming potus, tj orders the remaining commissions (including
Marbury’s) not be delivered
 Pursuant to sec.13 of the judiciary act of 1789, Marbury seeks a writ of
man. Directing tj’s sos, J/M, to deliver his comm.
 Even though marbury may have a strong case on the merits.. there
is a problem with his claim
o Sections 13 of the judiciary act of 1789 is in conflict with
article III section 2 of the us constitution
o The doctrine of justiciability and the “case or controversy” requirement
o Article III, Section 2 of the U.S. Constitution states:
 "The judicial power shall extend to all cases, in law and equity, arising
under this Constitution, the laws of the United States, and treaties made, or
which shall be made, under their authority;—to all cases affecting
ambassadors, other public ministers and consuls;—to all cases of
admiralty and maritime jurisdiction;—to controversies to which the
United States shall be a party;—to controversies between two or more
states;--between a state and citizens of another state;—between citizens of
different states;—between citizens of the same state claiming lands under
grants of different states, and between a state, or the citizens thereof, and
foreign states, citizens or subjects."
o Thus, in order for a federal court to have the power to hear and decide an action
before it, the action must meet the "case or controversy" requirement under
Article III, Section 2 of the U.S. Constitution. In short, this requires that an actual
dispute that can be resolved by a court exists between adverse parties.
 Case & Controversy: Real dispute between adverse parties
o Advisory Opinions
 Federal courts may NOT render advisory opinions on the basis of an
abstract or hypothetical dispute. An actual case or controversy must exist.
However, federal courts may issue declaratory judgments (i.e.,
judgments that determine the legal effect of proposed conduct without
awarding damages or injunctive relief) so long as the action in question
poses a real and imminent danger to a party’s interests.
 Fed courts cant issue non binding opinions w/o an actual case or
controversy
 Under the fdja, fed courts may declare present rights on est. facts
arising out of a c or c suff. Immediacy and reality
 Hypothetical cases: fed courts cannot adjudicate a collusive lawsuit
arranged by non-adverse parties
o Constitutional Standing Requirements
 A federal court cannot decide a case unless the plaintiff
has standing (i.e., a concrete stake in the outcome of the action). To have
standing, a plaintiff bears the burden of establishing three elements:
 (1) Injury in Fact. The injury must be concrete and particularized.
While the threat of future injury can suffice, it cannot be merely
hypothetical or conjectural, it must be actual and imminent.
o (Lujan v defenders of wildlife)
o Threats of future injury must be actual and imminent
 (2) Causation. The injury must be fairly traceable to the
challenged action (i.e., the defendant’s conduct caused the injury).
o (plaintiff v irs)
o Ex: Donations  deduct those donations from federal tax
return
o Irs decreases the incentive so guy at law school cant get his
book so he fails school definitely has injury in fact
o But hard to prove causation
 (3) Redressability. It must be likely that a favorable court decision
will redress an injury suffered by the plaintiff.
o (linda r.s. v Richard v)
o Child support linda wants injuction to send man to jail for
being behind on payments
o Even if we say Richard goes to jail it wont redress her
economic loss
o Prudential Standing Requirements
  Third Party Standing. Generally, one cannot assert the constitutional
rights of others to obtain standing, but a claimant with standing in her own
right may also assert the rights of a third party if:
 (1)The third party would experience difficulty or is unable to assert
their own rights(naacp v alabama);
 (2) There is a special relationship between the plaintiff and
the third party(singleton v wulff); OR 
 (3) The plaintiff’s injury adversely affects the plaintiff’s
relationship with the third party. (craig v boren)
 Organizational Standing.  An organization may bring an action when it
has suffered an injury. In addition, an organization may bring an action on
behalf of its members (even if the organization itself has not suffered an
injury) if:
 (1) Its members would have standing to sue in their own
right; AND 
 (2) The interests at stake are germane to the organization’s
purpose.
 Taxpayer Standing. Generally, a taxpayer does NOT have standing to
file a federal lawsuit simply because the taxpayer believes that the
government has allocated funds in an improper way. However, a taxpayer
does have standing to litigate whether, or how much, she owes on her tax
bill. In addition, a taxpayer has standing when the taxpayer challenges
governmental expenditures as violating the Establishment Clause (e.g.,
federal government allocating grant money to catholic schools).
o Justiciabiity Timing Issues
 Ripeness. A federal court CANNOT consider a claim before it has fully
developed. For a case to be ripe for litigation, the plaintiff must have
experienced a real injury or imminent threat thereof.
 Mootness. A case has become moot if further legal proceedings would
have no effect (i.e., there is no longer a controversy). A live controversy
must exist at each stage of review (not merely when the complaint is
filed). There are three exceptions:
 Capable of Repetition, Yet Evading Review. A case will not be
dismissed as moot if the controversy is a type that may often recur,
but that will not last long enough to work its way through the
judicial system (e.g., abortion challenges once the woman is no
longer pregnant).
 Voluntary Cessation. A case will not be dismissed as moot if the
defendant voluntarily ceases the wrongful action once litigation
has commenced. The court must be assured that there is no
reasonable expectation that the wrong will be repeated.
 Class Actions. An entire class action will not be dismissed as moot
solely because the named party’s claim in the class is resolved and
becomes moot.
o Nonjusticiable Political Questions
  A federal court CANNOT rule on a matter in controversy if the matter is a
political question to be resolved by one or both of the other two branches
of government. A political question not subject to judicial review arises
when:
 The Constitution has assigned decision making on the matter to a
different branch of government; OR
 The matter is inherently not one that the judiciary can decide.
Article 1 the legislative power
 Article I section 8 easy to identify on a fact pattern
 Any time congress is passing a law  u have art I sec 8 powers of congress issue
 Any time that congress wants to pass a law they have to be able to point to a power they
have to pass that law
 You have to establish what power congress has vested to them in the us constitution that
lets them do this
 Congress will start with an objective  all us citizens to have healthcare, what they want
to accomplish  but cant force or compel people to purchase things its not vested in the
const, still have this objective, can they be clever and use article I section 8 enumerated
power to accomplish this objective in some other way
 Powers of congress
 Taxing Power  congress has the power to tax. Most taxes will be upheld if they bear
some reasonable relationship to revenue production
o National federation of independent business v. sebelius (2012) limits? Grossean
v American press co
 Congress thinks it a good idea for all americans to buy and have health
insurance
 But we don’t have this vested, we cant directly require or compel citizens
to buy something they may not want
 But they do see taxing power
 Lets not require or compel but lets use tax power to say you have the
option to buy or not buy but if you don’t at the end of the year you may
have to pay some additional taxes
 Congress says we aren’t compelling or requiring anyone to purchase we
are just saying you have to pay taxes this is a tax law and supreme court
upholds because of tax bill
o Primary purpose of tax need not be to raise revenue
o Limitations  cant tax people in a way that’s going to infringe on their
constitutional rights, like if that’s their objective
 Tax law that will tax certain newspapers at a higher rate
 Paper was saying bad things about the governor so they paid them more
 First amendment violation, cant silence a newspaper for being critical of
the government
 14th amendment violations
 Religious freedom vi
 Equal protection vi
 Free speech vi
 Individual rights
 Spending Power  congress has the power to spend to “provide for the common
defense + general welfare” (for any public purpose-not just to pursue its other
enumerated powers). Congress CAN condition federal funding to INDIRECTLY regulate
(South Dakota v Dole)
o congress does not have any general police power
 yes this law will be upheld bc it provides for the general welfare
 no wrong answer SPEND has to be tied to FEDERAL FUNDNG
o Very tied to taxing power same idea
o What do they mean by general welfare? Conflicting views
 Today we know general welfare includes any public purpose not just to
pursue enumerated powers
o South dak v dole
 Cong passes law that conditions federal funding for highways on drinking
age in states
 Cut 5%
 Upheld
 Objective : we want minimum drinking age to be 21
 How do we accomplish? Have to tie that into one of our enumerated
powers, we have power to spend for the general welfare
 Where we spend our money to indirectly regulate
 Commerce Power: congress has the power to regulate: interstate means  buying
selling moving of products services or money across state borders
o (1) the CHANNELS of interstate commerce (eg, roadways, airways, waterways,
etc)
o (2) the INSTRUMENTALITIES of interstate commerce (eg, trucks, airplanes,
boats etc) AND/OR
o (3) any activity that has a SUBSTANTIAL EFFECT on interstate commerce (eg
interstate production, shipment, or distribution, etc)
 Can intra-state activity (eg. Growing crops for personal consumption)
have a substantial effect on interstate commerce?
 Under the aggregation doctrine in wickard v. filburn, regulations
will be upheld if the court can conceive of a rational basis on
which congress could conclude that the activity IN AGGREGATE
substantially affects interstate commerce (not going to look at this
one isolated activity consider on a large scale in the aggregate if
everyone was doing this then what is the result)
 Filburn farmer growing crops in ohio for own personal
consumption can this substantially effect ic
 Aggregation doctrine  yes even something that localized we can
show it does have substantial effect on interstate commerce
 Cong passes law to regulate production of wheat (part of new neal)
 Farmers have max yield of wheat
 Passed in effort to control production of wheat as there is a surplus
 Filburn produces more openly breaks law
  He says yes I did do this I did this for my own personal
consumption so this doesn’t go interstate there is no effect its not
going across state lines
 Agragation doctrrine  ur activity in and of itself in your little
local area doesn’t have a sub effect on interstate com however in
aggregate if all the farmers in ohio did what you are doing we are
going to have that surplus of wheat and this will travel across
borders
 Still commercial cuz hes still producing a good and he was still
taking some to the local market and selling it
 However if the regulated intra state activity is noncommercial +
noneconomic the court generally will not aggregate the effects of the
activity  the regulation will only be upheld if congress can show that the
activity has a DIRECT SUBSTANTIAL ECONOMIC EFFECT on
interstate comer (e.g, regulating possession of a gun in school zones  US
v Lopez
 Possession of gun in school zones
 Sup court says look ag doc works when we are dealing with
commercial or economic activity but we are not going to allow
congress to allow the ag doctrine to cover purely noncommercial
or noneconomic activity
 Cong wants to restrict possession of guns in school zones so they
pass the law and are relying on commerce power to do this
 (1) no
 (2) no
 (3) cong tries to use ag doctrine to prove this  sup court says this
is non commercial this is non economic so we cant allow you to
apply the agrigate effect of the action
o One person does not cause a substantial effect on ic in this
instance
o If they wanted this to be enforced couldn’t they use a
different way? Yes  spending power, hey if you don’t
post signs about pos of guns in school being prohibited we
will withhold funds
 Com power analysis  Iss the activity being regulated commercial if not
cant use commerce clause
 Activity vs inactivity: generally, congress cannot compel activity under
the commerce clause
 Can regulate existing activity that’s already going on
 But cant compel new activity in the same way
 If you own health ins ok they can reg but cant compel a person
under commerce power to go out and buy the insurance
 Necessary and Proper clause : congress has the power to “to make all law which shall
be necessary and proper for carrying into execution the foregoing powers” and all other
powers vested in the federal government
 o has to be tied to enumerated power
o doesn’t expand congs power under art I section 8 more of a clarification
o help in executing
o taxing power  cong has power to tax, doesn’t say anywhere explicitly congress
has the power to enforce payment by holding citizens criminally liable, but we do
have laws for tax fraud with no enforcement why pay taxes very severe
penalties
o tax evasion tax fraud criminal stuff is necessary and proper clause
o the entire criminal code comes from the n & p clause
o congress can never rely in and of itself to pass a law
o has to be used in conjunction with a different power to carry that power out
o means of enforcement
o postal office power, end enforcement n&P
 Exam Note: If you encounter a fact pattern where Congress passes a new law —
you MUST discuss which enumerated power(s) (most are contained in Article I, Section
8 of the U.S. Constitution) gives Congress the authority to pass that law (e.g., taxing
power, spending power, commerce power, etc.).
 Under Article I, Section 8 of the U.S. Constitution, Congress has the power:
o To lay and collect taxes, duties, imposts and excises, to pay the debts and provide
for the common defense and general welfare of the United States; but all duties,
imposts and excises shall be uniform throughout the United States;
o To borrow money on the credit of the United States;
o To regulate commerce with foreign nations, and among the several states, and
with the Indian tribes;
o To establish a uniform rule of naturalization, and uniform laws on the subject of
bankruptcies throughout the United States;
o To coin money, regulate the value thereof, and of foreign coin, and fix the
standard of weights and measures;
o To provide for the punishment of counterfeiting the securities and current coin of
the United States;
o To establish post offices and post roads;
o 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;
o To constitute tribunals inferior to the Supreme Court;
o To define and punish piracies and felonies committed on the high seas, and
offenses against the law of nations;
o To declare war, grant letters of marque and reprisal, and make rules concerning
captures on land and water;
o To raise and support armies, but no appropriation of money to that use shall be for
a longer term than two years;
o To provide and maintain a navy;
o To make rules for the government and regulation of the land and naval forces;
o To provide for calling forth the militia to execute the laws of the union, suppress
insurrections and repel invasions;
 o 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,
reserving to the states respectively, the appointment of the officers, and the
authority of training the militia according to the discipline prescribed by
Congress;
o To exercise exclusive legislation in all cases whatsoever, over such District (not
exceeding ten miles square) as may, by cession of particular states, and the
acceptance of Congress, become the seat of the government of the United States,
and to exercise like authority over all places purchased by the consent of the
legislature of the state in which the same shall be, for the erection of forts,
magazines, arsenals, dockyards, and other needful buildings;—And
o 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 officer thereof.

 Taxing Power
o Congress has the power to tax, and most taxes will be upheld if:


The tax bears some reasonable relationship to revenue production (as
opposed to an attempt to regulate an activity); OR
 Generally, whether a law passed by Congress is a tax or a
regulation depends on its function.
o If the law bears some reasonable relationship to revenue
production, it is considered a tax.
o If the law is more of a penalty merely labeled as a tax,
it was  considered to be a regulation.
 However, after National Federation of Independent
Business v. Sebelius, 567 U.S. 519 (2012) (The
Supreme Court held that the Affordable Care Act
was constitutional because the “penalty” it imposed
for failing to carry health insurance actually
constituted a tax) — the distinction between a tax
and regulation is somewhat unclear. Ultimately, the
main takeaway is that the taxing power is very
broad.
o Congress has the power to regulate the activity taxed.

o While the taxing power is broad, it may not be exercised in violation of

constitutional rights (In Grosjean v. American Press Co., 297 U.S. 233 (1936), the
Supreme Court struck down a separate sales tax on certain newspapers, because
the tax was exercised in violation of free speech under the 1st Amendment.).
 Spending Power
o Congress may spend to “provide for the common defense and general welfare.”
Spending may be for any public purpose (do not confuse this with a general police
power — Congress has NO general police power). In making the determination as
 to whether an expenditure promotes the general welfare, the Supreme Court
concluded that "courts should defer substantially to the judgment of
Congress." South Dakota v. Dole, 483 U.S. 203, 207 (1987).

 "Commandeering" Limitation on Taxing and Spending Powers

o Congress cannot "commandeer" state legislatures by forcing or directly
compelling them to enact specific legislation. However Congress can use the
taxing and spending powers to encourage state action it may not otherwise be
able to compel (In South Dakota v. Dole, 483 U.S. 203 (1987), the Supreme Court
upheld law passed by Congress which withheld 5% of federal highway funding
from states that did not maintain a minimum legal drinking age of 21 — this law
effectively encouraged states to maintain a minimum legal drinking age of 21.).
Notably, Congressional encouragement may not exceed the point at which
"pressure turns into compulsion." Steward Machine Company v. Davis, 301 U.S.
548 (1937).

 Commerce Power
o Congress has the power to regulate all foreign and interstate commerce. To be
within Congress’s power under the Commerce Clause, a federal law regulating
interstate commerce must either regulate the:

 Channels of interstate commerce;

 Instrumentalities of interstate commerce and persons and things in
interstate commerce; OR 
 Activities that have a substantial effect on interstate commerce.

o When Congress attempts to regulate intrastate activity under the third prong, the
Court will uphold the regulation if:

 (1) The regulation is of economic or commercial activity (e.g., growing

wheat or medicinal marijuana even for personal consumption); AND 
 (2) The court can conceive of a rational basis on which Congress could
conclude that the activity in aggregate substantially affects interstate
commerce.

o However, if the regulated intrastate activity is noneconomic and noncommercial

(e.g., possessing a gun in a school zone), the Court generally will not aggregate
the effects and the regulation will be upheld only if Congress can show a direct
substantial economic effect on interstate commerce (which it usually will not be
able to do).

 13th, 14th, and 15th Amendment Enforcement Power

o Each of the 13th, 14th, and 15th Amendments (ban on slavery, equal protection
and due process, and voting rights) contain a provision that authorizes Congress
to pass “appropriate legislation” to enforce the civil rights guaranteed by those
 Amendments.

 Necessary and Proper Clause

o Congress can exercise those powers enumerated in the Constitution plus all
auxiliary powers necessary and proper to carry out all powers vested in the federal
government.  Thus, Congress has the power to make all laws necessary and
proper for executing any power granted to any branch of the federal government.
The Necessary and Proper Clause standing alone cannot support federal law —
it MUST work in conjunction with another federal power.
o For example, the following congressional powers have been deemed "necessary
and proper" for carrying into execution other powers vested in the federal
government — the power to:

 To pass laws to carry out treaties;

 To organize a department of government;
 To collect revenue;
 To acquire property by eminent domain;
 To make treasury notes legal tender;
 To create corporations;
 To exclude and deport aliens;
 To pass banking laws;
 To determine marine law;
 To regulate the civil service;
 To address foreign affairs;
 To build the Capitol and White House;
 To protect voters from intimidation;
 To enact the Federal Criminal Code.

o See John B. Attanasio, Joel K. Goldstein, Understanding Constitutional Law §

3.03 (4th ed. 2012).
o While Congress does not have the express power to investigate, the Necessary
and Proper Clause allows Congress broad authority to conduct investigations that
are necessary and proper to carry out its power of legislation. McGrain v.
Daugherty, 273 U.S. 135 (1927). Notably, the Speech and Debate Clause under
Article I, Section 6 prevents members of Congress from being questioned in
regard to speech and debate that took place during a session in either House of
Congress (or in the discussion relating to the business of the session before the
session took place).

 Delegation of Legislative Power

o Legislative power may generally be delegated to the executive or judicial branch
provided that:

o (1) Intelligible standards are set to guide the delegation; AND 

 "Applying this 'intelligible principle' test to congressional delegations, our
jurisprudence has been driven by a practical understanding that in our
 increasingly complex society, replete with ever changing and more
technical problems, Congress simply cannot do its job absent an ability to
delegate power under broad general directives. Accordingly, this Court
has deemed it "constitutionally sufficient" if Congress clearly delineates
the general policy, the public agency which is to apply it, and the
boundaries of this delegated authority." Mistretta v. United States, 488
U.S. 361 (1989).
o (2) The power is NOT uniquely confined to Congress (e.g., power to declare
war).

o For example, Congress is allowed to delegate their power to collect taxes under

Article I, Section 8 to the IRS using the intelligible standards set out in the
Internal Revenue Code. 

Dormant commerce clause

Fact pattern: state or local law being passed to reg IC
 Dormant commerce clause : the scotus has long held that the constitutions grant to
congress of the power to regulate interstate commerce also limits, by implication, the
right of the states to adopt laws that regulate IC
 Step 1 : Does the state/local law (Regulating IC) conflict with federal law?
o Y: See prior lesson
o N: Go to step 2
 Step 2: is the state/local law facially discriminatory against IC or otherwise operating as a
trade barrier against out of state interests?
o Y: law is subject to strict review and is virtually Per Se Unconstitutional (but see
Maine v Tayler)
 What does it mean to be fac discrim against interstate com
 Example: think in terms of equal protect
 If state passes a law that says only men can be police officers 
this would be facial discrimination against women
 If the state leg changes law to say any person who is 6ft or taller
can be a police officer  facially non discriminatory  still going
to end up with more men as police officers so disparate impact on
women
 Ex. Texas has an issue w tourism in state of Texas, steep decline in
tourism cost them mil dollars in revenue end up discovering its bc the
quality of texas’ bbq restaurants is diminishing
 As a response tx says we need to get quality back up these
restaurants are importing their sauces from ny rather than using
locally manufactured in tx that would be higher quality
 No longer going to allow imported bbq sauce from new York have
to use bbq sauce produced in state of tx
 If law was passed a manufacturer of bbq in new York can no
longer sell and is losing money and sues that it violated dcc
o 1) does the state or loc law conflict with fed  no
 o 2) facially discriminatory against interstate com or acting as
trade barrier against out of state interests?  yes facially
discriminatory also a trade barrier against out of state
interests, if you see isolation like that its going to be
o Yes then  Strict review unconstitutional least restrictive
means possible to achieve a compelling gov interest
o Would fall in tour be a compel gov int  arguable but
probs not we are thinking of public health national secutity
and there are other non restrictive means
 We have something very clearly facially discrim or a barrier is there any
way a law could pass the strict scrutiny test? Maine v taylor
 State of maine passing law that bans importation of certain fish
being used as bait
 This bait fish has a parasite that is catastrophic to maines system
 This is challenged und dcc and scotus says this is the least
restrictive mean even though it is facially discrim it Is justified if
this parasite gets into their water system this can be catastrophic
o N: Go to step 3
 Step 3: Does the nondiscriminatory state/local law impose an “incidental” burden on IC?
o Y: apply Pike Balancing Test
 Pike balancing test: A nondiscriminatory S/L Law that imposes an
incidental burden on IC is unconstitutional if:
 (a) the law fails to effectuate a legitimate local public interest ; OR
 (b) the burden imposed on ic is clearly excessive in relation to the
punative local benefits
 Ex. Texas tourism dropped need better bbq sauce but rather than say we
are banning importation of bbq sauce we are saying all bbq sauce used in
bbq restaurants in the state of Texas has to have these ingredients and
these ingredients can be naturally sourced at areally low price in the south
and most Texas rest are already using them or most southern state rests are
too but in ny these ingredients are extremely pricey to get
 So bbq sauce manufacturer in ny says we cant sell our bbq sauce in Texas
cuz we cant afford the ingredients so they challenge the law as violation of
dormant com clause
 1) does it conflict with fed law  no no federal law here its silent
 2) is the Texas law facially discrim or operating as a trade barrier?  not
facially discrim, not even saying you have to get these in Texas they just
happen to be more plentiful in the southern states their neighbors could
still be trading the bbq sauce with ease Louisiana alabama etc
 Ok answer here is no so step 3
 3) does this law impose an incidental burden on ic commerce? Yes
 Much more difficult for the state of new York bbq high cost and
cant do business due to 2 mil cost
 Yes
 So pike balancing test on incidental burden unconst if
 o A ) Fails to effectuate a legitimate local public interest
 Yes So long as tex can show qual of bbq has
dropped so dramatically that ppl r not coming to
Texas costing us mil
o B) burden imposed on ic clearly excessive in relation to the
putative local benefits?
 Very fact specific what is the burden? Here  at
least one comp losing 2 mil dollars
 Is that burden clearly excessive in relation to
benefits? Tx has said 100mil dollars in additional
revenue if this happens and so this law would be
upheld as constitutional cuz that’s clearly not
excessive compared to the benefit of 100 mil
 Usually laws upheld when we get to pike cuz it’s a
high threshold
 Usually laws upheld when we get to pike cuz it’s a high threshold
o N: Law is likely constitutional
 Exceptions
 Market Participant Exception: generally, if a state acts as an MP not as a Regulator the
dcc does not apply (state may favor its own citz)
o Ex  ut at Austin (state run facility) opens bbq restaurant only buys local bbq
sauce not a violation of dorm com clause cuz they are acting as mark part no
regulating with a law
 Traditional government function exception: the scotus applies a more lenient standard
when a state law favors local government entities performing traditional government
functions (united haulers association v Oneida Herkimer )
o Local ord required waste transportation entitities dispose at public facility scotus
said motivation is government function not economic protectionism

 Dormant Commerce Clause

 The Dormant Commerce Clause is a constitutional principle inferred from the
Commerce Clause (not specifically enumerated). If Congress has not enacted legislation
in a particular area of interstate commerce, then the states are free to regulate, so long as
the state or local action does NOT:
o Discriminate against out-of-state commerce;
o Regulate wholly out-of-state activity; OR
o Unduly burden interstate commerce.
 A state law that discriminates against interstate commerce in a way that
operates as a tariff or trade barrier against out-of-state interests is subject
to strict scrutiny and is virtually per se unconstitutional.
 A nondiscriminatory state law (i.e., the law applies equally to in-state and
out-of-state participants) that imposes an incidental burden on interstate
commerce will be unconstitutional if the burden it imposes is clearly
excessive in relation to the putative local benefits.
  Legislation that violates any of the above requirements is generally deemed
unconstitutional UNLESS:
o The state is acting as a market participant rather than a market regulator;
o The legislation favors state or local government entities that are performing a
traditional government function; OR 
o Congress explicitly permits the legislation.
Individual rights
 State Action Requirement
o Generally, the Constitution protects against wrongful conduct by the
government, not private parties (there is an exception for the prohibition of
slavery, which applies to the government and private parties). Thus, state action is
required to trigger an individual’s constitutional protections. State action may
exist in cases of private parties when:
 private person carries on activities that are traditionally performed
exclusively by the state; OR 
 There are sufficient mutual contacts between the conduct of a private party
and the government (this is a question of the degree of state involvement).
 Procedural Due Process
o The Due Process Clause of the 14th and 5th Amendments guarantees that no
person shall be denied life, liberty, or property without due process of law. Thus,
a fair process (e.g., notice and hearing) is required for a government agency to
individually take a person’s life, liberty, or property. Only intentional (not
negligent) deprivation of these rights violates the Due Process Clause.
o The term “liberty” includes more than just freedom from bodily restraints (e.g., it
includes the right to contract and to engage in gainful employment). A deprivation
of liberty occurs if a person:
 Loses significant freedom of action; OR
 Is denied a freedom provided by the Constitution or a statute.
o The term “property” includes more than personal belongings and realty. A
deprivation of property occurs if a person has a legitimate claim or entitlement
that is not fulfilled (e.g., continued attendance at public school, welfare benefits,
etc.).
o The type and extent of procedural due process that is required is determined by a
three-part balancing test that weighs:
 The importance of the individual’s interest that is being affected; AND 
 The value of specific procedural safeguards to that interest; AGAINST 
 The government interest in fiscal and administrative efficiency.
 Substantive Due Process
o Analysis. A governmental regulation that infringes upon a fundamental right is
subject to the strict scrutiny standard of review, while a governmental regulation
that does NOT infringe upon a fundamental right is subject to
the rational basis standard of review.
o Strict Scrutiny. The government must prove that the regulation is the least
restrictive means to achieve a compelling government interest (very difficult to
prove).
 o Rational Basis. The challenger must prove that the regulation is NOT rationally
related to any legitimate government interest (very difficult to prove).
o Fundamental Rights. Some rights are so deeply rooted in our nation’s tradition
and history that they are considered fundamental. These rights include:
 The right to interstate travel;
 The right to vote; AND 
 The right to privacy, including:
 The right to marry;
 The right of married persons to use contraceptives;
 The right of adults to engage in non-commercial, consensual sex;
 The right of parents to make decisions regarding the care, custody, and
control of their children (including the right to privately educate a child
outside the public school system); AND 
 The right of related persons to live together in a single household.
o Abortion. The right to privacy also includes the right of a woman to have an
abortion without interference from the state under certain circumstances.
However, normal strict scrutiny cannot be applied because the state has two
compelling interests that compete: the woman’s health and protecting the fetus
that may become a child.
o The Supreme Court has adopted two basic rules:
 Pre-Viability Rule. Before viability (a realistic possibility that the fetus
could survive outside the womb), a state may adopt a regulation protecting
the mother’s health and the life of the fetus if the regulation does not place
an undue burden on the woman’s right to obtain an abortion.
 Post-Viability Rule. Once the fetus is viable, the state’s interest in the
fetus’s life can override the woman’s right to obtain an abortion, but the
state cannot prohibit the woman from obtaining an abortion if it is
necessary for her health.
o The government has NO obligation to pay for abortions.
 Equal Protection
o The Equal Protection Clause of the 14th Amendment prohibits the government
from denying citizens equal protection of the laws. When the government makes
laws that classify people into groups, the constitutionality of the law will be
evaluated according to the type of classification made (i.e., whether the group is a
suspect classification, quasi-suspect classification, or other classification).
o If a suspect classification is involved, the strict scrutiny standard applies.
Classifications are suspect if they are based on race, ethnicity, national
origin, or alienage (alienage is only suspect if the classification is made by state
law). Under the strict scrutiny standard, the government must prove that the
regulation is the least restrictive means to achieve a compelling government
interest.
o If a quasi-suspect classification is involved, the intermediate scrutiny standard
applies. Classifications are quasi-suspect if they are based
on gender or legitimacy (non-marital children). Under intermediate scrutiny, the
government must show that the classification is substantially related to an
important government interest.
 o Governmental Intent. For strict or intermediate scrutiny to be applied,
there MUST be intent on the part of the government to discriminate. A
discriminatory effect or disparate impact toward a group of people alone
is NOT enough to show governmental intent. Governmental intent may be shown
by:
 A law that is discriminatory on its face;
 A discriminatory application of a facially neutral law; OR
 A discriminatory motive behind a facially neutral law.
o For all other classifications (e.g., age, disability, and wealth classifications), the
rational basis standard applies. Under rational basis, the challenger must prove
that the regulation is NOT rationally related to any legitimate government
interest.
o Exam Tip. If a law limits liberty of ALL persons to engage in some activity, it is
usually a due process issue. If a law treats a person or class of persons differently
from others, it is usually an equal protection issue.
 Affirmative Action
o States may implement regulations to remedy past discrimination if the class has
actually suffered persistent and readily identifiable past discrimination. A race-
based plan cannot be used to remedy general past “societal discrimination.” The
level of scrutiny applied to the regulation depends on the classification.
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