CONSTITUTIONAL LAW – ATTACK CHART – RAHIMAH FAIQ

CASE NAME & FACT
SUMMARY
Loving v. Virginia:
Virginia statute forbade
marriages between whites
and non-whites; court
decided a law that turns on a
racial classification is
unconstitutional
CHALLENGE & TEST APPLICATION OF PRECEDENT SOURCES
TRIGGER TEST
EQUAL PROTECTION CASES
Challenge: 14th Strict Scrutiny Identify Gov’t Interest: Korematsu v. U.S. Original Meaning: Clear and
Amendment, Preserve the racial central purpose of 14th Am. To
Equal integrity of its citizens; eliminate state sources of racial
Protection Prevent a mongrel breed discrimination
Clause of citizens
Structure: Carolene Products
Trigger: Facial Assess Means-End-Fit: Footnote 4 “discrete and
Race No purpose except insular”
Classification invidious racial
discrimination Tradition: Strong negative
tradition of unfair treatment
Over-Inclusive/ Under- against blacks, slavery
Inclusive:
Not a legitimate basis to
discriminate because the
racial classification was
under-inclusive since it is
only geared towards
preserving white “purity”

Korematsu v. U.S.: Challenge: 14th Strict Scrutiny Identify Gov’t Interest:

Japanese man convicted of Amendment, (first strict Preventing sabotage,
violating internment curfew Equal scrutiny case) disruption of war effort
law Protection
Clause Means: intern anyone of
Japanese ancestry
Trigger: Facial
Race Assess Means-End-Fit:
Classification Defers to judgment of
Congress in military
Trigger 2: matters, Court does not
Deference to actually apply strict
military scrutiny
authorities in

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 the time of war
Palmore v. Sidoti: Challenge: 14th Strict Scrutiny Identify Gov’t Interest:
A judge removed a child Amendment, protecting the “best
from the custody of her Equal interests of the child;”
(white) mother when she Protection protecting child against
married a black man Clause social stigma and abuse

Trigger: Facial Assess Means-End-Fit:

Race “indisputably a
Classification substantial government
interest”
 Reformulates
government interest to
protection against social
stigmatization and it fails
as it is illegitimate and
subject to private biases

Yick Wo v. Hopkins: Challenge: 14th Strict Scrutiny

San Francisco adopted an Amendment,
ordinance that stated that a Equal
laundry could not operate in Protection
a building made of wood Clause
without consent of the Board
of Supervisors. There were Trigger:
about 310 laundries in SF in Neutral Law
wooden building at the time. but
All of the approximately 200 Discriminatory
Chinese who applied for in Effect
permits had been denied. All
but one of the 80 or so permit
applications of non-Chinese
were accepted.

Gomillion v. Lightfoot: Challenge: 14th Strict Scrutiny

100% of whites in city limits, Amendment,
less than 1% black residents. Equal

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 CONSTITUTIONAL LAW – ATTACK CHART – RAHIMAH FAIQ

Black residents outside city Protection

limits did not receive public Clause
utilities.
Trigger:
Legislating for
a race-based
reason 


Washington v. Davis: Challenge: 14th Discriminatory Griggs: Structure: standard in Griggs

Applicants for the D.C. Amendment, Intent Once there is a would leave too many
police department sued, Equal disparate impact, decisions to court and not
alleging that the Protection burden shifts to enough to legislature
department’s hiring practices Clause government to show
were racially discriminatory necessity
because they included a Trigger: No  Griggs should not
written personnel test, “Test Race be the constitutional
21,” that operated to exclude Classification standard
a disproportionate number of because no
African-American applicants. Clear Showing
(upheld, no evidence of of a Racially
invidious discrimination) Discriminatory
Purpose
Arlington Heights v. Metro. Discriminatory Factors to Infer
Housing Devel.: Intent Discriminatory Intent
Developer sought a judicial 1. I
review of the city’s m
unwillingness to rezone land p
for multi-family development a
c
Bakke v. University of Challenge: 14th Strict scrutiny Identify Gov’t Interest:
California Board of Amendment, 1. Race balancing –
Regents: Equal not compelling
UC-Davis Med School Protection 2. Counter effects of
reserved 16 places in its class Clause “social
for minority group members. discrimination” –
A rejected white applicant Trigger: Facial hinges on
sued. The policy was struck Race identifying

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down but for varying reasons Classification perpetrators and
– no consensus on the victims (judicial
constitutional issue. model of
discrimination)
3. Increase the number
of minority
physicians – not
compelling (race
balancing)
4. Attain a diverse
student body –
could be
compelling
(exercise of
academic freedom)

Assess Means-End-Fit:
May not use set-asides /
quotas because they are
not narrowly tailored

Grutter v. Bollinger: Challenge: 14th Strict Scrutiny Identify Gov’t Interest:

Law School admissions Amendment, Attainment of a diverse
focused on academic ability Equal student body –
coupled with a flexible Protection compelling (2dary trigger
assessment of applicants’ Clause giving deference to the
talents, experiences, and university on determining
potential “to contribute to the Trigger: Facial substance of education)
learning of those around Race
them.” Classification Assess Means-End-Fit:
OK – individualized
holistic approach, no
rigid quotas

Frontiero v. Richardson: Challenge: 14th Strict Scrutiny Identify Gov’t Interest: Bradwell Text: 19th amendment synthetic
A serviceman could claim his Amendment, Only administrative argument (applies only to
wife as a dependent without Equal convenience Reed v. Reed: voting but alters the way we

4

regard to whether she was in
fact dependent upon him for
any part of her support. A
servicewoman, on the other
hand, could not claim her
husband as a dependent
under these programs unless
he was in fact dependent
upon her for over one-half of
his support. The Supreme
Court reversed.
Craig v. Boren:
An Oklahoma statute
prohibited the sale of 3.2%
beer to males under the age
of 21 and to females under
the age of 18; it did not
prohibit the possession or
consumption of such beer by
males aged 18-20
CONSTITUTIONAL LAW – ATTACK CHART – RAHIMAH FAIQ
Protection State law preferred look at the 14 amendment
Clause Assess Gov’t Interest: male executors over  Requires ignoring 14 §2 that
“not without some female ones (tie- mentions “male citizens”
Trigger: Facial importance” – not breaker); Court found
Sex compelling it an arbitrary Original Meaning: refute
Classification preference, likely original meaning argument
Assess Means-End-Fit: rooted in some with changed conditions
No “concrete evidence” stereotypical notion of  Levels of Abstraction: Ban
of savings suitability, in violation discrimination/ subjugation on
of the 14th Amdt. even race/race like categories
though the Court used (requires analogy to race)
only rational-basis
review (maybe “with Structure: court states not a
teeth”) discrete and insular minority
Tradition: Domestic Sphere.
Overcome – with negative
tradition argument based on a
history of domestic subjugation
and exploitation
 Trend Argument – what
happens if there is a trend away
from the old tradition? Does
the trend allow for heightened
scrutiny?
 Congress: Equal Pay Act of
1963, Civil Rights Act of 1964
Challenge: 14th Intermediate Identify Gov’t Interest:
Amendment, Scrutiny (first Reducing drunk driving
Equal intermediate
Protection scrutiny case) Assess Gov’t Interest:
Clause Important
Trigger: Facial Assess Means-End-Fit:
Sex Not substantially related
Classification  Over-inclusive: many
young men don’t drink
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 and drive
 Under-inclusive:
Many young women do
drink and drive

United States v. VMI: Challenge: 14th Intermediate Identify Gov’t Interest

VMI didn’t admit women; Amendment, Scrutiny #1:
courts told Virginia it could Equal Achieve educational
set-up a female-only school, Protection benefits flowing from
but it established a watered- Clause single-sex education
down version
 (note: not the actual
Trigger: Facial purpose  retroactively
Sex engineered justification)
Classification
Assess Means-End-Fit
#1:
History of sex
discrimination in
education, no female
alternative

Identify Gov’t Interest

#2:
Preserve benefits of
adversative system

Assess Means-End-Fit
#2:
Excluding women from
VMI is over-inclusive
Some women prefer
and would benefit from
the system

Geduldig v. Aiello: Challenge: 14th

State insurance scheme Amendment,
didn’t cover pregnancy; Equal

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 CONSTITUTIONAL LAW – ATTACK CHART – RAHIMAH FAIQ

Court found this pregnancy- Protection

based discrimination, subject Clause
to rational-basis review, not
sex-based discrimination Trigger:
Pregnancy
**no longer factored into sex Based
discrimination** Classification

Trigger 2:
Deference to
Congress in
military matters

Cleburne v. Cleburne Living
Center:
The Petitioner, City of
Cleburne (Petitioner), denied
a special use permit to the
Respondent, Cleburne Living
Center (Respondent), for the
establishment of a group
home for the mentally
retarded in the community.
The Court of Appeals of the
Fifth Circuit determined that
this group is a “quasi-
suspect” class and that the
ordinance violated the Equal
Protection Clause of the
United States Constitution
(Constitution).
Challenge: 14th Rational Basis Assess Gov’t Interest: Palmore v. Sidoti Why not Suspect Class?
Amendment, Assuage fear of 1. Real Differences – Reduced
Equal neighbors – like in ability to cope with and
Protection Palmore v. Sidoti – is function in the every day world
Clause illegitimate (consensus)
2. Original Meaning – No
Trigger: Assess Gov’t Interest #2: argument in the opinion but at
Mentally Protect residents from the time of drafting the14th
challenged not harassment Am.
a suspect or - is legit 3. Structure – Protected in
quasi-suspect - But is under-inclusive political process because there
classification (30 mentally challenged is already legislation in place to
students attended the protect
local school).
- Also over-inclusive
because not all mentally
challenged people are
especially vulnerable

Skinner v. Oklahoma: Challenge: 14th

OK law required sterilization Amendment,
of a person convicted of Equal
more than 3 felonies of moral Protection
turpitude (embezzlement was Clause

Faiq 7
exempted, but larceny was
included) Trigger: basic
civil right of
man – marriage
and procreation
(“marriage and
procreation are
fundamental to
the very . . . “ –
natural law)

SUBSTANTIVE DUE PROCESS CASES

Griswold v. Conneticut: Challenge: Strict Scrutiny Identify Gov’t Interest:
Ban on contraceptive use for Substantive Prevent extra-marital sex
married couples Due Process
(life, liberty Assess Gov’t Interest:
property) Sufficient

Trigger: Statute Assess Means-Ends-Fit:

Infringes on Over-inclusive: Applies
Privacy to married couples.
Under-inclusive: Doesn’t
apply to disease
prevention.

Eisentsadt v. Baird: Challenge: Rational Basis Identify Gov’t Interest: Griswold v.

State law prohibiting the Substantive with Bite Prevent non-marital sex Connecticut
distribution of contraceptives Due Process
to unmarried persons. (life, liberty Assess Means-Ends-Fit: Skinner v. Oklahoma
property) Is there a rational
relationship between the
Trigger #1: classification based on
None – Court marital status and the
claims to apply government’s objective is
rational basis preventing non-marital
sex?
Trigger #2:

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 CONSTITUTIONAL LAW – ATTACK CHART – RAHIMAH FAIQ

Matters so
fundamentally
affecting a
person as the
decision
whether to bear
or beget a child

Michael H. v. Gregory: Challenge: Deeply rooted Identify Gov’t Interest:

CA statute – child born while Substantive in traditions of Is there a tradition of
mother married presumed to Due Process American protecting the interest of
be child of marriage (life, liberty people  father and child
Fundamental
Procedural or Substantive? property) Right  Strict
relationship outside of
Plurality reject procedural Scrutiny marital family unit?
claim. About substantive Trigger:
process – conclusive relationship Assess Gov’t Interest:
presumption is simply a state between No
on how something will be persons in
treated situation of
Michael and
Victoria (father
and child, father
outside of
marital family
unit)

Roe v. Wade:
Challenged Texas criminal
abortion statute. Court found
that there wasn’t a history of
criminalizing abortions –
instead it has been recent in
last 100 years.
Challenge: Strict Scrutiny Identify Gov’t Interest Skinner v. Oklahoma Where does the right of
Substantive #1: privacy, personal choice and
Due Process Protect fetal “person” Eisentsadt v. Baird right to terminate a pregnancy
(life, liberty come from?
property) Assess Gov’t Interest #1:
Blackmun – if you Original Meaning: abortion
Trigger: right recognize fetus as a was criminalized during 19th
of privacy, right person claim is over and century. Counter with negative
of personal the pregnant woman has tradition women’s rights
choice, right to no right – no such thing argument
terminate a as a “fetal person”

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Casey v. Planned
Parenthood:
Challenged Pa. statute that
put various restrictions on
abortions – informed
consent, providing info 24
hours before, spousal
notification, parental consent
pregnancy
Assess Means-Ends-Fit:
No evidence to accept
assertion – burden of
proof on TX to show
fetus is a person. Interest
does not become
compelling until viability
Identify Gov’t Interest
#2:
Protecting the mother’s
health
Assess Gov’t Interest #2:
Compelling until the end
of the first trimester, after
first trimester mortality
rates are equal
Challenge: Undue Burden Identify Gov’t Interest
Substantive #1:
Due Process Spousal notification –
(life, liberty Protecting the integrity of
property) marriage
 Undue burden even
Trigger: right though it affects < 1%
of the woman to
choose to have Identify Gov’t Interest
an abortion #2:
before viability 24 Hr. waiting period –
ensure decisions are
carefully made
 Only affects small
percentage of women –
doesn’t apply to all like
the spousal notification
Structure: why not leave it up
to political process?
 Theory: male legislators
cannot properly advocate for
women (proof – heightened
scrutiny for sex classification)
Tradition: Common Law
Consequences: Socioeconomic
Eisenstadt – importance of
interest argument
Skinner – didn’t have to talk
in detail because it was a man’s
right at stake
Original Meaning: No new
info from Roe v. Wade
Tradition: Not limited to
specific traditions, like that
women are primarily mothers,
shifts to more equality focused
Structure: Spousal notification
is domestic sphere argument
Precedent: Stare Decisis:
When to Overturn?
• Has the rule become
unworkable? 

• Have substantial
reliance interests built
up? 

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Cruzan v. Director, Missouri
Dept of Health:
MS law that allows for
termination of medical care
only if there is clear and
convincing evidence that
patient would not want
outcome
Washington v. Glucksberg:
P -- along with four other
physicians, three terminally
ill patients who have since
died, and a nonprofit
organization that counsels
individuals contemplating
physician assisted-suicide --
brought this suit challenging
the state of Washington's ban
**Use Glucksberg to make
tradition arguments**
CONSTITUTIONAL LAW – ATTACK CHART – RAHIMAH FAIQ
• Have other legal
developments made
the rule obsolete? 

• Have facts changed to
discredit the rule? 

Challenge: Strict Scrutiny Identify Gov’t Interest:
Substantive Protection and
Due Process preservation of human
(life, liberty life
property)
Assess Means-Ends-Fit:
Trigger: Analysis does not look
implied like strict scrutiny
fundamental
right to make
healthcare
decisions
Challenge: Rational Basis Identify Gov’t Interest: Text: Broad, abstract  text is
Substantive Preservation of human incredibly broad on these
Due Process life, prevention of suicide provisions, framer’s left it up to
(life, liberty future generations to determine
property) Assess Means-Ends-Fit: meaning and application.
People depressed or
Trigger: right to impaired when making Tradition: Rights “which are
commit suicide these decisions – much objectively, deeply rooted in
which itself more nuanced analysis the nation’s history and
includes a right than would typically be tradition”
to assistance in done in rational basis 1. States outlawing suicide:
doing so 1960  32, 1980 20,
19902, Today  0
2. But assisted suicide laws
have no declined
3. Importance of framing of
the right – no way you
can say there is a deeply
Faiq 11
 rooted tradition in a right
to assisted suicide
a. What is the best
way to frame
trigger? Specific v.
Abstract
i. Specific: prevent
slippery slope
ii. Abstract  end
up with no
principles,
arbitrary
specificity

Bowers v. Hardwick: Trigger: Rational Basis Identify Gov’t Interest:

Challenge to Georgia statute Fundamental Prevent immoral conduct
that criminalized sodomy right of
homosexuals to Assess Means-Ends-Fit:
engage in Perfect fit prohibits
sodomy immoral activity
(counter 
right to privacy)

Lawrence v. Texas: Trigger: Rational Basis Identify Gov’t Interest: Precedent: Overturning of
Similar to Bowers, except the “Personal with Bite Prevent immoral activity. Bowers
Texas statute only applied to relationship,”  Unworkable  not
homosexual conduct. sexual conduct Assess Gov’t Interest; really
Overturned Bowers on SDP that can be but O’Connor rejects at this  Reliance  no
grounds (Casey factors). one element in phase – can’t prohibit
 Derelict  Romer
a personal bond because you proclaim is
marks a clear change
 Majority – deals with immoral – need
 Obsolete b/c facts
tradition by making trigger something external.
abstract, no clear tradition of have changed 
criminalizing same-sex repeal/enforcement of
sodomy (most were centered most laws
on children and vulnerable  Obsolete b/c facts are
people) now seen differently

12

 Burden on challenger to
present an affirmative
tradition in support of the
rights
Romer v. Evans:
Colorado amended its state
constitution to prohibit any
state or local government
body from outlawing
discrimination based on
“homosexual, lesbian, or
bisexual orientation.” (What
court is actually bothered by:
under the amendment
heterosexuals can still bring
discrimination claims)
CONSTITUTIONAL LAW – ATTACK CHART – RAHIMAH FAIQ
Trigger #1: Rational Basis Identify Gov’t Interest
Amendment with Bite #1: Protect freedom of
defies the association of those who
conventional object to homosexuality,
inquiry eg., employers and
landlords
Trigger #2:
Imposes a Assess Gov’t Interest #1:
broad disability No comment, but surely
on a single legitimate
named group
Assess Means-Ends-Fit
#1: “Its sheer breadth is
so discontinuous with the
reasons offered for it that
[it] seems inexplicable by
anything but animus.”
(Grossly over-inclusive.)
Identify Gov’t Interest
#2: Conserve resources to
fight discrimination
against other groups.
Assess Gov’t Interest #2:
No comment, but surely
legitimate
Assess Means-Ends-Fit
#2: “Its sheer breadth is
so discontinuous with the
 same as above
Moreno Sexual Orientation as a
Suspect or Quasi-Suspect
Class?
Tradition: (look for neg.
tradition) – exists without a
doubt
Structure: discrete and insular?
 See Watkins –prejudice and
disapproval forcing politicians
and potential activists into the
closet
Natural Law: immutability v.
chosen characteristics
Lawrence – liberty interest
in having a same-sex
relationship
Notion of forcing you to
change characteristics in
violation of substantive due
process
Precedent: analogous to race
Particular Precedent –
Cleburne
 Only O’Connor has
used EP w/ rational
basis with bite
Original Meaning- ratification
of 14th amendment facts
suggest homosexuality was not
even a concept
Faiq 13
 reasons offered for it that
[it] seems inexplicable by
anything but animus.”
(Grossly over-inclusive.)

U.S. v. Windsor: Trigger: Rational Basis Identify Gov’t Interest

The Defense of Marriage Act Too #1: Protect “traditional
(DOMA), enacted in 1996, complicated. moral teaching reflected
states that, for the purposes in heterosexual only
of federal law, the words Trigger #2: marriage laws”
"marriage" and "spouse" Substantive
refer to legal unions between Due Process/ Assess Gov’t Interest #1:
one man and one woman. Implied Rejected because of
Since that time, some states Fundamental circular nature of
have authorized same-sex Rights morality and the
marriage. In other cases  Like Romer: discriminatory nature of
regarding the DOMA, federal “unusual the law.
courts have ruled it discrimination”
unconstitutional under the because (1) Identify Gov’t Interest
Fifth Amendment, but the taking decision #2: Ensure “uniformity
courts have disagreed on the made at state and stability” in federal
rationale. level and treatment of marriage
making it at
On November 9, 2010 federal level, Assess Gov’t Interest #2:
Windsor filed suit in district (2) very broad – Legitimate. Majority
court seeking a declaration across the board ignores this interest
that the Defense of Marriage alteration that instead stating that the
Act was unconstitutional. At affects all types federal statute
the time the suit was filed, of marriage – undermines federalism
the government's position contributes to and is likely not for its
was that DOMA must be the court’s stated interests.
defended. On February 23, reasoning that it
2011, the President and the was based in
Attorney General announced pure hostility
that they would not defend
DOMA.

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 CONSTITUTIONAL LAW – ATTACK CHART – RAHIMAH FAIQ

Constitutional Arguments:
1. Text: Interpretation of the duties and obligations of Congress
Implied v. Express Powers: congress can have powers the are not explicitly spelt out in the Constitution, but are required as a means to the end of
enumerated powers
2. Original Meaning: What did the framers/drafters/ratifiers intend the section/clause to mean? Belief of meaning at the time of drafting
Key Times: Drafting of Constitution/Bill of Rights: late 1700s; Reconstruction Amendments: 1870s; Switch in Time that Saved Nine (Overturn of
Lochner): 1934
How to Counter an Original Meaning Argument:
Change Level of Abstraction – what is the underlying principle?
Changed Conditions
Facts have changed
Understanding of facts has changed
3. Structure: Carolene Products Footnote 4 (start at a presumption of Constitutionality) – Does the statute or practice at issue..
a. Violate a specific prohibition of the Constitution?
b. Restrict the political process?
c. Affect a discrete and insular minority? (typically religious, national, or racial receive the highest scrutiny)
4. Precedent: Judicial Precedent on the Constitutional Issue
5. Tradition: Is the statute/practice traditionally practiced and accepted overtime?
Can be refuted with a negative tradition or trend argument.
6. Consensus
7. Natural Law
Reasoning from “the nature of things” or ethical concepts like fairness or justice.
This is where in equal protection cases you can make arguments on immutability/real differences.
Consequences: Policy Concerns
Constitutional Tests: Levels of Scrutiny
1. Rational Basis – rational relation to a legitimate government interest; to trigger must show discrimination a) facial, b) discriminatory
application, or c) discriminatory motive
**usually for non-suspect classes like: age, poverty, and sexual orientation based classifications**
 Burden of Proof: laws presumed valid, so burden of proof is on challenger to show the law is arbitrary and irrational
2. Intermediate Scrutiny – substantial relation to an important government interest; to trigger must show discrimination a) facial, b)
discriminatory application, or c) discriminatory motive
**usually for quasi-suspect classes like: gender and affirmative action (aka “benign discrimination”)**
 Burden of Proof: burden is usually on government and the government must defend the interests it stated when the law was
enacted
3. Strict Scrutiny – narrowly tailored to meet a compelling government interest
**usually for suspect classes like: race, ethnicity and national origin**
Burden of Proof: burden is on government to prove that the law is necessary

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Modern Commerce Clause Cases
U.S. v. Lopez (1995): Lopez (12th grade) carried a concealed gun to his high school in violation of the Gun-Free Schools Act of 1990 – brought a claim that the
Act was beyond the scope of Congressional Power under the Commerce Clause
Issue: Is the Gun-Free Schools Act of 1990 within Congress’s enumerated power to regulate interstate commerce? NO
Principle: In order for Congress to act under the Commerce Clause there must be direct economic activity
Commerce Clause Analysis:
Step 1: Define type of regulation – Criminal
1. Neither channel or instrumentality of commerce
2. No jurisdictional limit
3. Substantial Relationship to Commerce  Fails under rational basis review – Rehnquist argues that the relation between the school and economic
activity and interstate commerce is too far removed to grant Congress authority – consequential argument – to extend authority here would allow for
Congress to acquire a police power akin to that of the states
Slippery Slope Stoppers: Channels/not; Instrumentalities/not; Economic/Not (where Lopez adds to the law)
Federal v. National problem: (structural argument)
Is this a problem that the states theoretically cannot handle alone?
It may happen in every state, but each state might still be able to deal with it.
Dissenters say leave it to the political process. The people chose congress that made the laws.

U.S. v. Morrison (2000): VAWA created a tort action for gender motivated violent crimes.
Economic or Not: Regulated activity was not economic in nature and placed a price on sexual assault.
Commerce Clause Analysis:
1. Neither channel or instrumentality of commerce
2. No jurisdictional element – though there were some legislative findings; it could lead to the federalization of criminal law
3. May not find commerce clause power based on the principal of aggregation of such non-economic activity

Gonzales v. Raich (2005): Federal DEA agents sought to destroy marijuana farm, CA had legalized medical marijuana
Economic or Not: CA law for HEALTH purposes, under the police power
Specify Regulated Activity: Home growth and consumption of marijuana for medical purposes as authorized by state law
Test: Court applies Wickard analysis – Raich’s home growth of marijuana was not completely closed off from market. Note: both Wickard and Raich
deal with fungible commodities.
Function Considerations:
National Problem – unfair competition between states
Efficiency: different options (i.e. differences in state gun laws)

U.S. v. Comstock (2010): Law allowed civil commitment of former federal prisoners if no state wanted them because they needed to solve collective issue
Upheld under Necessary and Proper extension of the commerce clause

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 CONSTITUTIONAL LAW – ATTACK CHART – RAHIMAH FAIQ

Implied Economic Rights Analysis

**MODERN VIEW: If the objective being pursued by the legislature in an economic regulation falls within the state’s police power (health, safety, general
welfare) all that is required is a minimally rational relation between the means and the end. **

Faiq 17
Post – Lopez Commerce Clause Analysis
Step 1: Is the statute a regulation of…
1. Channels of Commerce?  Darby applies
2. Instrumentalities of Commerce?
3. Neither?  Step 2
Step 2: Does the statute have a jurisdictional requirement (a provision in the statute limiting the reach of the statute to things having some relation to
commerce (Lopez: guns must have moved in interstate commerce to apply))
 No?  Step 3
Step 3: Specify Regulated Activity
Step 4: Is regulated activity economic or commercial in nature?
1. Do not rely on the effects of the activity.
2. Consider:
a. Focus on Regulated Activity:
i. Is a commercial activity involved?
ii. Is there a market for services/ products involved?
iii. Are participants motivated by economic gain?
b. Focus on Regulation Itself:
i. Is regulation part of a comprehensive scheme of market regulation?
Step 5: Determine whether there is sufficient showing of substantial effects on interstate commerce
1. If the answer to #4 is yes  Apply Wickard/McClung Test (aggregation allowed; rational basis) no law ever overturned
2. If the answer to #4 is no  Apply Lopez slippery slope test no law ever upheld
Step 6: At some point in the analysis consider the function considerations
 National Problem
 Federalism Values
o States are more competent public policy makers  have the resources to discern sentiments of the people
o States as experimental labs – test areas of public policy
o Traditional state matter  then Congress’s power to regulate is more suspicious
o A presumption of sovereignty should lie with the states
 Accountability

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 CONSTITUTIONAL LAW – ATTACK CHART – RAHIMAH FAIQ

Evolution of Channels of Commerce Analysis

Channels of Commerce:
regulation of interstate shipment;
the movement.
Test: Objects of Regulation
Relevance of purpose
Federal Problem
Tenth Amendment
Hammer v. Dagenhart: Involved child labor
restrictions and the court held that the shipments of
articles themselves be inherently dangerous
Regulate only inherently harmful articles of
commerce
Relevant that Congress aimed to regulate local labor
conditions
Congress has no power to prevent “unfair
competition among states”
“Carefully reserved” local police power to states
United States v. Darby: Overruled
Hammer; Fair Labor Standards Act of
1938 prohibited interstate shipment of
goods that were not made under
prescribed minimum wage and maximum
hour standards
Regulate interstate shipment of any goods
Motive for regulating channels of
commerce is irrelevant
Congress may prohibit what it views as
“injurious” competition
10th Amendment “states but a truism”

Evolution of the Commerce Clause Analysis

Non-Commerce Pre-1937 – Carter Coal 1942- Wickard (economic) 1995 – Lopez (non-economic)

Test Regulated activity has “direct” relation to “substantial effect on commerce” Distinguish Wickard as only applying to
its effect on commerce. “economic” regulations
Matters of Degree “The matter of degree has no bearing” “necessarily one of degree” Only where “economic” or
“commercial” activity involved
Aggregation of Effects No. It’s about classification not quantity Yes. Only in regard to economic activities
Method Formalist: focus on abstract concept Realist: focus on actual effects Only is regulated activity is economic

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Tax or Penalty Test: Sebelius Test
Step 1: As long as it produces a revenue it IS a tax – reasonable people may choose to pay tax
 if it does then it is constitutionally a tax if… (proceed to Step 2)
Step 2:
1. It doesn’t impose an exceedingly heavy burden (is it coercive)
2. It doesn’t have a scienter requirement (a guilty state of mind requirement)
3. It is collected solely by the IRS
4. It doesn’t brand someone who doesn’t pay the tax as a law breaker or criminal

10th Amendment State Autonomy Analysis

1. Does the Commerce Clause or other power apply?
 if yes & power is not violated, go to next step.
2. Does the regulation apply to states as states?
 if yes, go to next step.
 if no, no 10th Amendment issue.
3. Is the regulation a “generally applicable law” that applies equally to private parties and the states?
 if yes, then apply Garcia v. San Antonio (1985)
 If a law is to be struck down it must be struck down for possible failures of the national political process
 No challenger wins under this test
 if no, then apply Printz v. U.S. and N.Y. v. U.S.
 Federal law cannot commandeer the state government
o Printz (1997): Congress cannot commandeer state legislature; Congress can commandeer judges
o N.Y. (1992): Congress cannot force states to legislate; Congress can regulate or directly pre-empt

Dormant Commerce Clause Analysis

What is it? Striking down a state law under the commerce clause even though congress did not assert this clause…
State law may be unconstitutional under “Dormant Commerce Clause” power if it:
1. Expressly discriminates against interstate commerce, OR
2. Discriminates against interstate commerce in purpose or effect, OR
3. Imposes burdens on interstate commerce that are “clearly excessive” in relation to the local benefits (if not 1 OR 2)

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Separation of Powers Analysis

1) Separation of Powers: Formalist Analysis
a. Classify the exercise of power that is at issue (What?)
b. Determine which branch is exercising the power (Who?)
c. If there is a mismatch (executive branch exercising legislative power or something), it is presumptively invalid
d. Bolster the need for formalist line drawing with a FEAR argument
e. Only do a tradition argument if you have the facts to deal with it
2) Separation of Powers: Functional Analysis
a. Reject Formalist Analysis
b. Make arguments about practical threats to Constitutional values
c. If appropriate bolster with a TRUST or FEAR argument
3) Jackson’s 3 Zones of Executive Power
a. (the executive branch has) MAX Power – Congress authorizes federal action
b. TWILIGHT ZONE (the outcome depends on practical considerations) – Congress has not authorized or prohibited action
c. (the executive branch has) MIN Power – Congress prohibits president’s action

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Equal Protection: Race Analysis
1) Analytic Framework:
a. What is the classification? (TRIGGER)
i. Is it a facial classification or facially neutral?
ii. If neutral – do neutral classification analysis (Yick-Wo, Washington v. Davis, Gomillion, Arlington Heights)
b. What is the appropriate level of scrutiny? (In order to get to heightened scrutiny you need to analogize to race: immutable characteristic
and inability to access the political process) (TEST)
i. Race or National Origin  Strict Scrutiny
Necessary to achieve a compelling government interest
ii. Gender  intermediate scrutiny
Substantial relationship to an important government interest
iii. Other classifications (including mental capacity, age, etc)  rational basis
Rationally related to a legitimate government purpose
c. Does the government action meet the level of scrutiny? (APPLICATION)
i. Strict Scrutiny 
1. Overinclusive? If it applies to those who need not be included in order for the government to achieve its purpose
2. Underinclusive? If it does not apply to individuals who are similarly situated to those to whom the law applies
3. Less Restrictive Alternative? If you are going to be protective of persons, you must protect them against all relevant
harms. Cannot just protect some and not others.

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 CONSTITUTIONAL LAW – ATTACK CHART – RAHIMAH FAIQ

Equal Protection: Gay Rights Analysis

Factors to Inform Standard of Review (on Classifications Based on Sexual Orientation): From AG Holder’s memo during the DOMA era.
1. Whether the group in question has suffered a history of discrimination
2. Whether individuals exhibit obvious, immutable or distinguishable characteristics that define them as a discrete group
3. Whether the group is a minority or politically powerless
4. Whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s ability to perform or contribute to
society

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Substantive Due Process Analysis
1) Procedural or Substantive Due Process? Distinction is controversial and important – Lochner remains a negative precedent (One of the theories of
what is wrong with it is the application of substantive due process) Dred Scott was the first substantive due process case
a. Right to cross-examine witnesses – Procedural
b. Right of Free Speech – Substantive
c. Right of parents to shape their children’s education – Substantive
d. Right to smoke marijuana for medical purposes – Substantive
e. Right to notice and hearing – Procedural
f. Right to fire workers for joining a union – Substantive
2) Analytical Framework:
So rooted in the traditions and conscience of our people as to be ranked as fundamental
a. Is there a fundamental right? (TRIGGER)
i. What level of abstraction?
1. Originalists only look to fundamental rights that are enumerated by the Constitution or intended to be covered by the constitution
(See Scalia Opinion in Glucksberg)  “deeply rooted in this Nation’s history and tradition”
2. Non-originalism (liberal view): OK for the court to protect fundamental rights not specifically included in the Constitution
(slippery slope, at some level of abstraction any right can be protected)
b. Is the Constitutional right infringed? (TRIGGER)
i. Look to the “directness and substantiality of the interference”
c. Is there a sufficient justification for the Government’s infringement of a right? (ASSESS INTEREST)
i. If the right is fundamental, there must be a compelling government interest.
ii. If the right is deemed not fundamental, there needs only be a legitimate purpose.
d. Is the means sufficiently related to the purpose? (MEANS-END FIT)
i. Strict scrutiny: less restrictive means? Under/over-inclusive?
ii. Rational Basis: reasonable way to achieve the goal? (NO REQUIREMENT TO USE LEAST RESTRICTIVE ALT.)

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 CONSTITUTIONAL LAW – ATTACK CHART – RAHIMAH FAIQ

1st Amendment Freedom of Speech Analysis

“Congress shall make no law… abridging the freedom of speech”
 Sedition Act of 1798: made it a crime to bring into “disrepute” high government officials
o Supporters of the Act: 1st Am. only applies to prior restraints
 Prior Restraints: censorship to newspaper before publication
o Challengers of the Act: 1st Am. makes Act unconstitutional because it says “no law”
 “No Law”: criminalizes after publication

Different Tests for 1st Amendment Analysis

BAD TENDENCY TEST: CONTENT BASED TEST: TIME/ PLACE/ MANNER TEST:

Schenck: Whether the speech had a
tendency to produce illegal activity. Old
form of clear and present danger.
CLEAR & PRESENT DANGER
TEST:
(Is a particular instance of strict
scrutiny)
Brandenburg: The new formulation
retained the requirement that the danger
be clear and present and added the
elements of imminency and incitement
to harm
**Tends to favor the rights of the
individual rather the government.**
A. If Focus is on Restriction  Content Based Analysis, if YES then go to B; if NO (Is a particular instance of intermediate
then use time/place/manner test scrutiny)
- if content based restriction and the speech is not low value then strict scrutiny 1. The regulation must be content
- content based includes viewpoint restriction neutral.
2. It must be narrowly tailored to serve
B. If Focus on Speech  What level of value is the speech… go to C a significant governmental interest.
3. It must leave open ample alternative
C. Levels of Speech channels for communicating the
High Value: Strict Scrutiny speaker’s message.
[political elections, politics generally, artistic, scientific and literary]
 Government’s restriction is constitutional only if [1] it serves a compelling Examples:
governmental interest and [2] the means used is narrowly tailored to achieve that interest.  imposing limits on the noise
level of speech,
Low Value: Intermediate Scrutiny  capping the number of
[commercial speech] protesters who may occupy a
 Commercial speech is protected if it is [1] not advertising illegal activities; and [2] not given forum,
false, misleading or deceptive. If [1] or [2] is not met, then the government must prove  barring early-morning or late-
there is a [1] substantial governmental interest, [2] where the means directly and evening demonstrations, and
materially advances that interest and [3] is not more extensive than is necessary to serve  restricting the size or placement
that interest [need not be least restrictive means]. [Central Hudson] of signs on government
property.
Unprotected Speech
[obscenity, fighting words]

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