3. The broadest fed power; Congress can regulate: 1. Channels of ISC, 2. Insturmentalities of ISC
-- 3. Articles moving in ISC, 4. Activities that substantially affect ISC.
Note to determine if Cong. can regulate determine that: 1, activiti is COMERCIAL, and 2) the activity substantially afects ISC; if both are true then fed/statute is Valid
WELFARE CLAUSE (WFC)
1. Applies to Fed. Govt.
2. Source of Fed. Power
3. WFC gives Congress the power to TAX & SPEND for the general welfare.
***note that Congress DOES NOT have the powe to enact any legislation that prometes the General Welfare of the nation b/c that would be a police power which congress does not have.
**Can only Tax & Spend
1. Applies to States ONLY.
2. Prohibition to States.
3. The Contracts Clause prohits states from passing any law which impairs the obligations of contracts.
Note: as a prerequisit for protection under this clause the K must have existed when the state statute was passed. Check to see if the K predates the offending statute if the K does not predate the offending statute then the K clause is irrelevant. K must pre date the statute.
Privileges and Immunities Clause (P & I) 14th Amd.
1. Applies to States.
2. Source of Limitation
3. P & I voids state enactments which clearly infinge on the privilege of National Citizenship.
Its protection is limited to the Fundamental rights shared by all citizens.
Note: on MBE do NOT rely on this as a correct answer b/c the Due Process and Eq. Protection also protect these same rights and are much stronger.
Privileges and Immunities Clause (P & I) Article IV sec 2
1. Applies to: States
2. Source of Limitation
3. This clause prevents States form discriminating against out of state citizens and residents in matters concerning "essential activities" such as owning property, medical care, court access.
Note: does NOT apply to Corporations or Aliens, (
1. Applies to Individuals.
3. 11th Amd. forbids most actions in Fed. Ct. by private citizens seeking damages from a State.
Note: 11th Does not limit or protect: Law suits against the state from the Fed. Govt. or suits by anyone against state subdivisions e.g: cities or coutnies,
The 13th Amd.
1. Applies to: Anyone (Govt. and Private individuals)
3. the 13th Amd. outlas any "badges or incidents" of Slavery. Congress has the power to prohibit virtually any discrimination against blacks, or whites.
How to Determine the Validity fo Statutes.
1. Determine if it is a Federal statute or State Statute.
2. IF Fed. Statute then it must be attacted/ rationally related to an enumerate power or necessary and proper to effectuate an enumerated power. (E.P.) such as Commerce Clause, spending and tax power, civil rights, defense, citizenship,...
3. if State Statue then in order to be valid it must pas a 3 part test:
a. The law must be enacted within the state's power (e.g. Police Power)
b. it must no violate any person's Constitutional rights; and
c. it must no unduly burdne interstate commerce.
What are the two most frequent ways in which a state can violate the Constitution?
it is Due Process & Equal Protection.
How to determine if the question is asking for Due Process or Equal Protection(EP).
if the question or Statute has a "Classifications" such as residents vs. non-residents, or men vs women; then it is an EP problem. (EP ONLY applies to STATE ACTION)
Next look to see what the classification is based on to determine the level fo scrutiny.
**Note if it is a federal statute then there is not EP problem b/c EP does not apply to the Fed Govt.**
1. Only applies to Suspect classifications (based on reace or alienage) or to Exercises of Fundamental Rights such as: freedom of association, Interstate travel, Privacy, marriage, abortion, Voting, Religion, Expression.
2. The state must prove: a Necessary and Compelling State interest (very hard to meet)
· “necessary to achieve a compelling gov purpose + NO less restrictive means”
· ct will only consider actual purpose of law
· *BoP is on gov
· law is presumptively invalid
1. Applies to "quasi-suspect classifications" such as Gender and Legitimacy.
2. State must prove the law is Substantially related to an important state interest in order to be valid.
Ø “substantially related to important gov purpose”
Ø ct will only consider actual purpose of law
Ø *BoP is on gov
1. Rational bases will be applied to everything else that is not strict or intermediate scrutiny.
· “rationally related to legitimate gov purpose”
· very deferential - ct will guess what gov purpose might be
· *BoP is on P [RB P’s lose!]
· law is presumptively valid
PROCEDURAL DUE PROCESS
1. Applies to both Frederal and State.
2. Procedural due process address the fairness of the procedure used to deprive somone of a significant interest, typically in property (can be tangible: law licence, medical licence) or life, (e.g. capital punishment) or liberty (e.g. incarceration).
** notice and hearing are necessary when a right is removed.
SUBSTANTIVE DUE PROCESS
1. Substantive due process becomes an issue when state action substantially interferes with a FUNDAMENTAL right.
--if the state statute interferes with a fundamental right it must meet STRICT SCRUTINY, but if it does not violate a fundamental right then it is only subject orational basis test.
--Only Personal rights are considered fundamentall.
--if funamental right then burden on Govt; in non-fundamental then burden on perons attacking the states action.
1. Recognized fundamental rights include the right to purchase contraceptives, the right to abortion, the right to marry, the right to procreation, and the right to family relations.If gov infringes on fundamental right it will be subject to SS
o must live in state 1 yr to get welfare -- NOT OK
o 1 yr to get medicare -- NOT OK
o 1 yr to vote -- NOT OK
o 1 yr to use library services -- NOT OK
o 50 days to vote -- OK
o 1 yr to get divorced -- OK
o 1 yr for reduced tuition to state university -- OK
o restrictions on travel to foreign country -- OK (RB only)
1. The 14th Amendment prohibits states from depriving anyone of equal protection under the law. This means that gov regulations cannot discriminate. - Similarly situated people must be treated the same.
2. When a law or reg is facially neutral it is necessary to show both discriminatory impact AND discriminatory intent in order for P to prevail.
3. SDP -- law affects everyone; EP -- law only affects a class of people