This page will be used to post selected questions that I receive from students during the study and exam period and my answers to those questions. The questions will be posted anonymously and may be edited so that they are of general interest to the class.

I will add new questions and answers as they are submitted. Below are 13 questions posed in prior years and answers to those questions. They may be helpful to the extent that you are uncertain about similar aspects of the course.

Question One:

Is there any difference between a "class of activities" (that can be fully regulated by Congress) and a "congressional regulatory scheme"?

Answer:

Yes there is a difference. A "congressional regulatory scheme" refers to any regulatory law that Congress enacts. It's no different than if I said "federal law." The term congressional regulatory scheme is not a term of art and just refers to the method of regulation in a general sense. It could be a very narrow scheme and regulate only one specific aspect of an activity or it could be a very broad scheme and regulate every aspect of many activities or anything in between.

The term "class of activities" is a term used by the Supreme Court to describe a statute that regulates broadly including a regulation of an entire class of activities (all fruits instead of just oranges, for example). The term is relevant to Commerce Clause analysis because the Court is willing to judge the constitutionality of a law based on the entire class of activities (for example, whether the class of activities can be classified as economic activity under Lopez) and not just the part of the class that is the basis for the constitutional challenge - all wheat farmers vs. wheat farmers who grow wheat for home consumption or all users of marijuana vs. users of marijuana for medicinal purposes. This concept encourages Congress to regulate broadly in cases where some of the activities within a class that Congress wants to regulate are constitutionally problematic and others are not.

Question Two:

Do we have to have all the powers that the states retain memorized? The obvious "police power" exercise is easy, but what about other powers? If we are unsure on an exam question is it okay to say "it may be that the state has sole regulatory power over ______ " ? Or is there a list of state regulatory powers somewhere that I missed?

Answer

There is no list. You just need to know in a general way that states have police power and it's an umbrella power to allow them to regulate for the welfare of their citizens. It covers things like health, safety, education, etc. The specifics of what powers states have are contained in state constitutions (just like the specifics of what the federal government can do is contained in the federal constitution). This will really not be relevant on an exam since the questions will never ask you to analyze whether the state has the "power" to do what it has done (unlike when the federal government acts and you can be asked whether it has the power under the U.S. Constitution). Instead you will be asked whether the state has done something that violates the federal constitution because of limits that document imposes on state power. You should simply assume that the state has the power under state law to do what it has done and focus on whether by its actions it has violated one of the limits on state power contained in the federal constitution. That constitutional analysis probably will include an analysis of the objective or purpose of the state law, but that is different than the source of power for the state action and information about the purpose likely will be provided in the question.

Question Three:

Are there any resources I can look at in order to help me to construct less restrictive means in heightened scrutiny analysis? And if you there aren't any, do you have any advice on this matter?

Answer

The question you ask is a good one, but unfortunately there isn't anything specifically available to teach you how to construct such means. I've often thought about this issue, but have been unable to come up with much of value. Because of this I tend to be pretty liberal in grading the exam in terms of allocating points to this issue. There are usually only a few points allocated to the issue and offering almost any alternative gets you at least half of them. Having said this, I still have two suggestions: (1) when you examine the means employed in a fact pattern and you're looking for alternatives, try and see whether you could do the same thing, but narrow it in some way so that it has less impact on those it regulates such as by shortening or lengthening a time period, narrowing a location, applying it to fewer people, limiting the type of transactions it applies to and other things that would use the same regulatory technique but narrow its scope; and (2) if it's a requirement of some kind, try and see whether you could convince people to do the same thing on a voluntary basis such as by educating them or giving them incentives rather than requiring them to behave in a particular way.

If you wanted to practice this skill, you could try and think of alternatives each time you're reviewing a case or looking at an exam question even if it doesn't involve the least restrictive means standard. The statute in Lopez, for example, which barred firearms in a school zone could be narrowed by barring only loaded firearms rather than all firearms or by narrowing the definition of a school zone. In the statute, "school zone" is defined as "in, or on the grounds of, a public, parochial or private school" or "within a distance of 1,000 feet from the grounds of a public, parochial or private school." §921(a)(25). It would be narrower if it was, for example, 500 feet or less rather than 1000 feet.

Question Four:

Under equal protection analysis if a challenger can say that she is a member of a discriminated against class that deserves intermediate scrutiny review because five of the characteristics of a suspect class or most of the characteristics apply to her, what will the government argue in response? I understand that the government will want rational basis review to apply. In reaching that result, do we ignore the plaintiff's arguments about the five characteristics or should we try to debate whether each one is true? Would it be smartest for the government to focus on real differences between the two classes and explain that that is why rational basis review should be applied?

Answer:

In answering your question, I'll assume the following: (1) the trait that is the basis of the classification has not been characterized by the Supreme Court as suspect (like race), semi-suspect (like gender) or nonsuspect (like age) and (2) the challenger can argue that the class that is discriminated against should be treated as something more than nonsuspect because the class, in the challenger's view, satisfies all or almost all of the characteristics used to identify a suspect class (history of discrimination, unrelated to ability, immutable, used to stigmatize, and politically powerless minority). Based on this analysis, the challenger will argue that discrimination against the class should be scrutinized using rigorous review (strict or intermediate) and should then apply that test to the facts and show that the test is not satisfied. In the alternative, the challenger should argue, if such an argument is possible, that the law is unconstitutional even under rational basis review (objective is illegitimate or there is no rational connection between the use of the classification and the government's objective).

In response, the government will argue, if it can, that the class does not satisfy all of the characteristics of a suspect class. The argument for the government should focus on the characteristics that are arguably not satisfied. For example, if the trait is immutable like eye color, don't try and argue that it is not an immutable characteristic because you can get tinted contact lenses and change your eye color. On the other hand, you could argue that the trait is not used to stigmatize because no particular eye color has any negative stereotypes associated with it. Based on the argument that the class is nonsuspect, the government will argue that the use of the classification can satisfy the rational basis standard. In the alternative, however, the government will try and argue that the use of the classification is constitutional even under more a more rigorous standard of review and should demonstrate this by applying intermediate (or strict) scrutiny to the use of the classification to show that the government's justification is important (or compelling) and there is a substantial relationship between the use of the classification and the objective (or the use of the classification is necessary).

Question Five:

How are legislative findings weighed when reviewing a state law under the dormant Commerce Clause? Congressional findings get deference under the active Commerce Clause analysis, but I'm unsure whether to defer to legislative findings regarding state/municipal laws.

Answer:

Congressional findings get deference under the Commerce Clause (although not always as you can tell by the Morrison decision) because the commerce power is broadly interpreted and there is deference given to a Congressional judgment that a local activity affects interstate commerce. State legislative determinations are not given the same deference under the dormant Commerce Clause. If the law discriminates against interstate commerce, the Court does not defer to the state, but instead shifts the burden to the state to prove that it could not have accomplished the same thing in the absence of discrimination against interstate commerce. On the other hand, the balancing test applies if the law doesn't discriminate. This test involves some deference to the state because the test incorporates a presumption of constitutionality. However, that presumption does not protect state or local legislative findings. The presumption of constitutionality can be lost if a court determines that a law's real objective is economic protectionism even if the state legislature has made findings showing a legitimate purpose and not economic protectionism (an illegitimate purpose under the dormant Commerce Clause) or even if the law incorporates any level of favoritism to state or local business activities as in Kassel. Moreover, the presumption can be overcome as in Bibb by the challenger showing a significant burden on interstate commerce without offsetting benefits. Under this analysis, state or local benefits will be independently examined by the court with legislative findings providing one piece of evidence for the state, but the challenger permitted to introduce evidence to disprove the conclusions reached in the legislative record.

Question Six:

I understand, that the state, acting as a market participant, may not regulate activities downstream. What I am not sure of is if being a monopoly, without trying to regulate downstream activities, is a basis for the state to lose the benefit of the market participation exception. What if the state is operating a low level radioactive waste disposal facility and it is the only such facility in the state? Does that make them not a "participant" but a "regulator" of that industry?

Answer:

The Supreme Court has not said whether the market participant exception applies in such a case. The argument that it shouldn't apply is based on the fact that when the state is the only participant in the market, its ability to control its own actions has the effect of controlling or regulating the entire market. Therefore, the exception shouldn't apply in that circumstance even if the state is regulating the market in which it participates and not downstream activities. The argument that it should apply is that the government is only controlling its own actions and isn't imposing restrictions on any private entities, should any enter the market. Therefore, it is not a regulation. This uncertainty makes it arguable whether the exception applies and gives each side something to argue.

Question Seven:

On a previous exam, Spring 2007, there was a question involving a challenge to a state regulation of horsemeat and the question also had facts about the existence of a federal law that regulated horsemeat. On the answer sheet, the main issues were preemption and dormant Commerce Clause. You did allocate 4 points, however, to whether the federal law was valid. How much were we supposed to say on that issue? What if a student stated that through the Commerce Power the federal government had authority to regulate the interstate shipment of horsemeat? Would it be enough to briefly state that the federal law is based on Congress's power to regulate goods directly moving in interstate commerce and that Congress's commerce power in this area is complete/plenary and then move on to the preemption and dormant Commerce Clause issues or would you want a more in depth analysis of the Commerce Clause with counter arguments?

Answer:

In a preemption case no one is challenging the federal law directly. The validity of the law arises because preemption is only possible if the federal law is valid. Therefore the Commerce Clause issue is part of the preemption analysis and not a separate issue. If the federal law that may preempt state law has an obvious source of power in the Commerce Clause you just have to briefly say, on behalf of the challenger of the state law, what that source of power is - e.g., regulation of interstate commercial activity itself which falls within Congress's plenary power to regulate interstate commerce (as compared to its more limited power to regulate local activities that affect interstate commerce). In that case, the state wouldn't be able to argue (with a straight face) that the federal law is invalid and you don't need to make a ridiculous argument just to present the other side. On the other hand, in some other question the source of federal power might be more debatable. If so, you should spend more time on the issue and present the other side's argument. In specific reference to the question on the Spring, 2007, what you propose saying about the validity of the federal law would be sufficient to receive the points allocated to that issue.

Question Eight:

I was wondering if you could clarify the usage of undue burden for me? In the outline and in my notes I have that undue burden is a threshold question when the infringement on the right is not completely barred (like a state instituting a 2 week waiting period for an abortion). Yet I also have that if the right is fundamental that strict scrutiny should be used-period. I am little confused as to how this works. If there is a question, for example, where there is a 2 week abortion waiting period, do I apply the undue burden test first as a threshold, or do I use both strict scrutiny and undue burden (as long as the right is fundamental)?

Answer:

If you want a short answer to this question, just skip to the last paragraph of the answer. If you want a longer, more rambling answer then read the entire answer.

Part of the reason for your confusion is that the Supreme Court has not made clear when the undue burden test should be used. While the obligation to use the undue burden test is clear in the abortion cases decided by the Supreme Court, the confusion arises over whether to use the test in other fundamental right privacy cases. In other cases, where the law imposes a restriction on a right that is arguably within the fundamental right of privacy and the law imposes a less than total prohibition on the exercise of the right, there may be some uncertainty about what test to apply. This uncertainty is created by the fact that the Court has applied the undue burden test to some fundamental privacy rights, such as abortion and marriage, but not to others, such as the right to use contraception or the right of a family to live together. Therefore, you can argue in the alternative. You can argue the case applying the strict scrutiny test and, in the alternative, you can argue the case applying the undue burden test. The undue burden test would be preferred by the government because laws that don't impose an undue burden would only have to have a rational basis to be constitutional. The challenger, by contrast is going to respond by arguing that the law imposes an undue burden and therefore is unconstitutional unless it can satisfy strict scrutiny, which the challenger will argue it can't. Since you have nothing to lose by applying the undue burden test as an alternative test, time permitting, when in doubt apply it to the facts.

In abortion cases, like a 2 week waiting period, the uncertainty over what test to apply is eliminated because the Court has said that the critical issue is whether the regulation amounts to an undue burden. If it isn't an undue burden, the regulation will be upheld as reasonable; if it is, it will be struck down as an unconstitutional interference with the exercise of a fundamental right (if it applies to pregnancy prior to viability). In that analysis, it seems like the Court is ignoring the strict scrutiny test (if it is an undue burden) and the rational basis test (if it isn't an undue burden). However, I don't think that is really the case. It appears to be collapsing the two steps in the analysis into one and assuming that the law is reasonable if it doesn't impose an undue burden and assuming that it isn't a narrowly tailored (least restrictive) means that furthers a compelling interest if it does impose an undue burden. It is reaching these bottom line conclusions based on precedent and therefore isn't as careful to explain why the law either passes or fails the appropriate test. In waiting period cases, for example, it has upheld 24 hour waiting periods as constitutional so it doesn't have to explain why the same time period is reasonable under the rational basis test. By contrast in other cases, like a parental consent statute without a judicial bypass option, the Court has already explained why this kind of law, which does impose an undue burden, does not satisfy the strict scrutiny test.

The undue burden test seems different than conventional standards of review (like strict, intermediate, and rational basis) because it only analyzes the burden on the challenger and does not analyze the state's interest that justifies the regulation and does not seem to analyze the means chosen by the state to protect that interest. Since all standards of review analyze the means and the ends, the undue burden test seems like something other than a conventional standard. That is why I suggested it could be viewed as a threshold inquiry or a routing device. You could, however, as another way of looking at it, say that in focusing on the burden on the challenger the Court is examining the means employed and the issue of whether the means are narrowly tailored or not. They aren't narrowly tailored if they impose an undue burden and they are if they impose a lesser burden. The Court doesn't discuss the compelling interest prong of the test because the Court has already classified several interests as compelling in the abortion context and as long as the abortion law has one of those as its objective there is no need to discuss that issue further (health of the mother and potential life of the fetus). Saying that the law imposes an undue burden could, therefore, be viewed as the same thing as saying that the means are not narrowly tailored because of the impact the law has on women who seek to exercise their fundamental right. On the other hand, since the analysis of means doesn't consider whether the means chosen are the least restrictive means available, you could also interpret the undue burden test as an analysis of the means that more closely replicates intermediate scrutiny as compared to strict scrutiny.

This is more info that you need in response, however. The short answer to your question is that if you aren't sure whether to use the undue burden test in the context of a right that is arguably fundamental and a law that is less than a total prohibition on the exercise of the right, use it as an alternative argument that the government will assert to reduce the level of scrutiny and that the challenger will need to respond to in order to preserve the applicability of strict scrutiny.

Question Nine:

Is there a standard of review for preemption questions like the other standards that are used (strict, intermediate, rational, balancing, undue burden, etc)?

Answer:

Preemption is an exercise in statutory interpretation by the Court rather than an exercise in reviewing the constitutionality of government action in any conventional sense. In these cases there isn't the standard kind of defect in the state law - it doesn't intrude on a fundamental right, it isn't too broad or unfair or discriminatory - that triggers an evaluation using a standard of review. Instead, it all turns on what Congress intended when it legislated. The Court evaluates Congressional intent by the several methods we discussed - express words in the statute, by implication from an actual conflict between the state and federal law, by implication from the fact that the state law undermines the federal purpose, and by implication from the fact that Congress has fully occupied the field.

Question Ten:

When analyzing a federal statute that regulates local activities under the Commerce Power is it better for the challanger to argue that the activity is not economic, or is better to argue that the activity has no substantial effect on interstate commerce?

Answer:

I don't see this as a choice. Assuming the federal law regulates a local activity, the test to be used varies with whether the local activity is economic or not. If it is an economic activity (better for the government), the question is whether Congress could have rationally concluded that the local activity in the aggregate has a substantial economic effect on interstate commerce. If it is a noneconomic activity (better for the challenger), you have to apply the rest of the Lopez factors. These are alternative arguments so the challenger is going to argue that the activity is noneconomic and that the law is unconstitutional applying the Lopez factors. However, the challenger may also be able to argue (depending on the facts) that, even if the law is a regulation of a local economic activity, Congress could not rationally conclude that the local activity has a substantial economic effect on interstate commerce. The government argues in the reverse, it's economic and Congress could rationally conclude, etc. However, even if it's noneconomic, the federal law is still constitutional applying the Lopez factors to the facts given.

Question Eleven:

I had a question about the typical format for an answer on your exam. Should I (1) lay out all the constitutional claims such as Commerce Clause, Privileges and Imuntities, etc., (2) choose the most significant and generally discuss it; for example, in the case of the commerce power, discuss all the aspects of the clause (channels, instrumentalities, local economic vs. local noneconomic, and the standards to be applied), (3) apply the standards to the challenger and the federal or state government, and (4) follow these steps with each additional constitutional claim. I just wanted to make sure this is a method you would accept on your exam or if there is something more concise that you prefer.

Answer:

The format you suggest sounds fine, and if you're comfortable with it then use it. However, it isn't necessary to lay out all of the claims in an opening paragraph. I'll really only start awarding points to an issue once you actually start to discuss it so you could skip that step. On the other hand, if it helps you to remember all of the issues you need to discuss you could leave it in. On the rest of the analysis, I'd add a few words of caution on not including too much abstract discussion of the law. In a Commerce Clause question, if the federal law clearly is a regulation of a local activity (category 3 in Lopez terms) and not even arguably a regulation falling within category 1 or 2, you don't have to spend more than a sentence talking about what the statute isn't. You could just say the federal statute doesn't regulate interstate commerce itself, but is instead a regulation of a local activity that Congress claims has a substantial economic effect on interstate commerce and then go on to lay out the tests used in that circumstance and apply them as required by the question to the parties. In other words, don't waste a lot of time telling me about standards that clearly aren't applicable, but focus your answer on standards that are or might be applicable and apply them. On the other hand, if there is a genuine issue as to whether it might fall into category 1 or 2 then obviously those categories need to be discussed more extensively because the government will argue that the law falls within category 1 or 2 and the challenger will have to refute that argument.

I'm only mentioning this because I want you to spend the most time where you'll get the most points. There is nothing wrong with giving me more than you need to. It just isn't always possible in a time pressured exam. I hope the model exam answer gave you the sense of how quickly I got down to the main point instead of dwelling on abstractions. In fact, rereading the beginning of Question I, I see I don't even set out the entire Privileges and Immunities Clause test first. Instead I set it out in parts and apply it immediately to the facts. That saves time because I'm only describing each aspect of the test once and that once is right before I apply it to the facts of the problem.

Question Twelve:

I'm studying my outline, and throughout my notes I have all these different terms for due process and equal protection standards of review. Are there actually only 3: Strict, Intermediate, and Minimum? For example, does Minimum Scrutiny mean the same thing as: Minimum Rationality Review, Rational Basis Review, Deferential Review and Mere Rationality Review. Are they all the same category with different names? Next: Does Intermediate Scrutiny also mean: Heightened Scrutiny and Semi-Suspect?

Answer:

Minimum scrutiny is the same thing as minimum rationality review, rational basis review and mere rationality review. Deferential review is not a description of a single standard, but is an umbrella term to refer to all standards of review that presume that a law is constitutional and defer to the judgment of the political branches. Rationality review is the most common form of deferential review, but not the only form.

There are only three basic standards, but several forms of intermediate scrutiny. For example, the version under the Privileges and Immunities Clause is different than the version under equal protection so be careful not to oversimplify the standards.

Intermediate scrutiny is one of the forms of heightened or rigorous scrutiny, but so is strict scrutiny since heightened scrutiny is a more general category describing all standards other than deferential forms of review.

Intermediate scrutiny is not the same thing as semi-suspect. Semi-suspect is not a standard of review. It is a description of a classification that isn't suspect like race, but shares some of the same traits as race and is therefore semi-suspect. An example is the treatment of gender classifications. Intermediate scrutiny is the standard of review used to analyze government action that employs a semi-suspect classification, like a law that discriminates based on gender, so the two are related, but are not the same thing.

Question Thirteen:

I have a question about the Equal Protection analysis you would be expecting for an exam. If the trait is one that has already been analyzed by the courts and the review applied is arguably well-settled law (i.e. race = strict scrutiny, gender = intermediate review) do you still want us to go through the five factors that determine whether a particular group is suspect, quasi-suspect or non-suspect?

Answer:

No I don't. Only apply the 5 factors if the status of the trait has not been resolved by the Supreme Court in the cases we read. If you are not sure whether or not it has been fully resolved then you should apply the 5 factors.