levels of scrutiny/classes/tests

3 Levels of review:

1. Rational Basis 2. Intermediate Scrutiny 3. Strict Scrutiny

two exceptions to dormant commerce clause

1. federal govt told them to do it. 2. state is acting as a market participant.

Abortion exception to strict Scrutiny when:

Any regulation on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman's right to choose an abortion.

Suspect Class

Get strict scrutiny • Alienage (state) • Domestic travel • National origin • Race • Voting

Strict Scrutiny

Government must prove its classification is necessary to achieve a compelling government interest. No alternative means. Least restrictive alternative. Narrowly tailored. Strict scrutiny applies to classifications based on race, alienage, and national origin. Such laws will be presumptively invalid, absent a showing by the state that the measure is necessary to achieve a compelling state interest.

Intermediate Scrutiny

Government must prove its classification is substantially related to an important government interest Intermediate scrutiny applies to government discrimination regarding sex and illegitimacy.

Level of scrutiny for fundament rights

Is there a ban? strict sructiny Is it a regulation of process? Use undue burden balancing test

Facially discrimination on out of state economic actors

Must show a compelling interest and regulation is necessary to serve compelling interest.

Public function exception to alienage

Public Function Exception: states can exclude non citizens from some government jobs related to self governance (a) police officers (b) govt officials (c) public school teachers (d) does not apply to govt jobs that are purely ministerial.

Sexual orientation level of review

Rational basis

Economic regulation by state or federal must meet:

Rational basis review rationally related to any legitimate purpose

Fundamental Rights

SCAMPE Sexual orientation, contreception, abortion*, marriage, possession of obscene material, education also right to die, right to travel, right to vote

Dormant Commerce Clause

States cannot discriminate against out of state economic actors. Strict Scrutiny

If govt wants to regulate personal rights it must meet:

Strict Scrutiny (a) govt ot show its regulations serves a compelling interest (b) no alternative to achieve the compelling interest. It is necessary. It is the least restrictivie alternative. It is narrowly tailored.

Rational Basis

applies where there is disparate impact Plaintiff must prove no rational relation to any legitimate governmental interest. P usually loses Rational basis review applies to all classifications not falling under strict or intermediate scrutiny, such as classifications based on age, disability, and alienage if done by Congress.

Non Facially discrimination on out of state actors. merely incidental

must show important state interest and no excessive burden on interstate commerce in relation to the state interest.

Illegal Aliens level of review:

not a protected group. Rational basis review if treated differently. Children get intermediate scrutiny. Cannot do it if it has effects on immigration.

DCC and state taxes

state can tax out of state as long as it is not discriminatory and does not unduly burden interstate commerce.

Who gets rational basis review

• Age • Alienage (federal) • Disability • Sex orientation • Wealth • All else

Who gets intermediate scrutiny?

• Gender • Illegitimacy • Undocumented alien children Affirmative Action