|
step
|
|
test
|
|
0
|
|
Standing
|
|
1
|
|
concrete injury
|
|
2
|
|
traceable to defendant's conduct
|
|
3
|
|
court can remedy the injury
|
|
0
|
|
political question doctrine
|
|
1
|
|
is there a constitutional commitment to a different political department?
|
|
2
|
|
are there judicially manageable standards?
|
|
3
|
|
Is it impossible to decide without using policy outside of judicial discretion?
|
|
0
|
|
Categories of CC regulation
|
|
1
|
|
the use of the channels of interstate commerce
|
|
2
|
|
the instrumentalities of interstate commerce
|
|
3
|
|
activities having a substantial relation to interstate commerce
|
|
0
|
|
Economic vs. Non-economic activity
|
|
1
|
|
Determine if the activity is economic or non-economic
|
|
2
|
|
If economic, use the rational basis test
|
|
3a
|
|
If non-economic, you cannot aggregate the impact of the case
|
|
3b
|
|
see if there is a jurisprudential nexus
|
|
cases
|
|
Lopez, Morrison
|
|
0
|
|
Rational basis test for CC
|
|
1
|
|
No distinction between production/trade or direct/indirect effect
|
|
2
|
|
Aggregate effects of many cases
|
|
3
|
|
rational basis for deciding if the activity has a substantial effect on interstate commerce
|
|
4
|
|
congress can regulate non-commercial intrastate activity if the regulation is essential to interstate commerce
|
|
cases
|
|
Wickard, Katzenbach, Raich
|
|
0
|
|
Activity vs. Non-activity test
|
|
1
|
|
Even if Congress is regulating something economic, they cannot regulate inactivity
|
|
cases
|
|
Sebelius
|
|
0
|
|
Dormant Commerce Clause
|
|
1
|
|
If a state statute is facially discriminatory
|
|
1a
|
|
they must have a compelling and state specific interest to allow it
|
|
1b
|
|
presumed invalid
|
|
2
|
|
If a state statute is not facially discriminatory
|
|
2a
|
|
balancing test: weigh the local benefits with the burden on interstate commerce (Powell)
|
|
0
|
|
Separation of Powers test
|
|
created by
|
|
Jackson concurrence in Youngstown Sheet and Tube
|
|
1
|
|
When Congress has explicitly or implicitly granted authorization to POTUS = POTUS is acting at his highest powers
|
|
2
|
|
When Congress is silent on a matter = POTUS can only act on his independent powers
|
|
3
|
|
When Congress has explicitly or implicitly denied authorization to POTUS = POTUS is acting at his lowest levels of powers
|
|
0
|
|
EP Strict Scrutiny
|
|
1
|
|
suspect class (race)
|
|
2
|
|
compelling government interest
|
|
3
|
|
narrowly tailored
|
|
cases
|
|
SFFA v. Harvard, Parents Involved v. Seattle School District
|
|
0
|
|
EP Intermediate Scrutiny
|
|
1
|
|
semi-suspect class (gender)
|
|
2
|
|
important government interest
|
|
3
|
|
substantially related
|
|
cases
|
|
Craig v. Boren
|
|
0
|
|
EP Rational basis test
|
|
1
|
|
ordinary class
|
|
2
|
|
legit government interest
|
|
3
|
|
rationally related
|
|
cases
|
|
NYC Transit v. Beazer
|
|
0
|
|
EP Rational basis+
|
|
1
|
|
ordinary+ classes (disability, sexual preference)
|
|
2
|
|
legit government interest
|
|
3
|
|
reasonably related
|
|
cases
|
|
Romer v. Evans, Cleburne v. Cleburne Living Center
|
|
0
|
|
EP Fundamental Interest
|
|
1
|
|
fundamental interest at stake (voting, criminal justice process)
|
|
2
|
|
compelling government interest
|
|
3
|
|
narrowly tailored
|
|
cases
|
|
Harper v. Virginia, Kramer v. School District
|
|
0
|
|
Substantive Due Process
|
|
1
|
|
what is the liberty interest involved?
|
|
2
|
|
Is it a fundamental right? look to history and societal views
|
|
2a
|
|
compelling govt interest (Roe v. Wade, Griswold v. Connecticut)
|
|
2b
|
|
no undue burden (Casey)
|
|
2c
|
|
narrowly tailored
|
|
3
|
|
Is it an ordinary liberty interest? (economic regulations)
|
|
4
|
|
legit government interest
|
|
5
|
|
rationally related
|
|
0
|
|
Procedural Due Process
|
|
1
|
|
Is the government taking away life, liberty, or property?
|
|
2
|
|
If so, what process is due?
|
|
3
|
|
Balancing test from Matthews v. Eldridge (Powell)
|
|
3a
|
|
what private interest is impacted?
|
|
3b
|
|
What is the risk of an erroneous deprivation of the interest through the procedures used?
|
|
3c
|
|
What is the government’s interest in the function and the burden? (Most important)
|
|
0
|
|
Due Process for Prisoners
|
|
1
|
|
atypical and significant hardships
|
|
0
|
|
State Action
|
|
1
|
|
the state has delegated a traditional state function to a private entity
|
|
2a
|
|
the state has become entangled with a private entity
|
|
2b
|
|
the state has approved, encourage, or facilitated a private conduct
|
|
0
|
|
1A: Shaffer v. US
|
|
1
|
|
probable and natural tendency is to cause bad action
|
|
0
|
|
1A: Schenck v. US
|
|
1
|
|
clear and present danger of substantive evils (Holmes)
|
|
0
|
|
1A: Masses Publishing Co. v. Patten
|
|
1
|
|
incite or urge an immediate evil (Hand)
|
|
0
|
|
1A: Dennis v. US
|
|
1
|
|
Balancing test (Vinson)
|
|
1a
|
|
whether the gravity of the evil
|
|
1b
|
|
discounted by its improbability
|
|
1c
|
|
justifies an invasion of free speech as is necessary to avoid danger
|
|
0
|
|
1A: Brandenburg test
|
|
1
|
|
Must be inciting
|
|
2
|
|
and that incitement must be in the context that something violent could likely occur
|
|
0
|
|
1A: US v. O'Brien test
|
|
1
|
|
Ask if the speech is related to a government interest
|
|
2
|
|
if no, go to Brandenburg strict scrutiny
|
|
3
|
|
if yes, use an intermediate scrutiny
|
|
3a
|
|
important government interest
|
|
3b
|
|
narrowly tailored
|
|
0
|
|
1A: Public forum test
|
|
1
|
|
Is it a public forum?
|
|
2
|
|
If no, use a rational basis test
|
|
3
|
|
If yes, is the reason for stopping content neutral?
|
|
3a
|
|
If no, use Brandenburg strict scrutiny
|
|
3b
|
|
If yes, intermediate scrutiny
|
|
3b(1)
|
|
significant government interest
|
|
3b(2)
|
|
narrowly tailored
|
|
3b(3)
|
|
ample alternatives
|
|
0
|
|
1A: Determining content neutrality
|
|
1
|
|
See if it is facially neutral
|
|
2
|
|
If yes, see if there has been selective enforcement
|
