1. Is the claim Justiciable?
  1. Is it a Political Question? Internal Limit; Page 3 on
  2. Textual Commitment
  3. Lack of Standards (for the judiciary to decide the question)
  4. Policy Determination
  5. Respect (disrespectful to President or Congress)
  6. Unquestioning Adherence (unusual circumstance requiring another branch to decide the issue)
  7. Avoid Embarrassment (one voice rationale)
  8. Is there an Actual Case or Controversy? External Limit (Constitution).
  9. Is it an Advisory Opinion?
  10. Is the Timing Right?
  11. Is the claim Moot? External Limit.
  12. 3 exceptions.
  13. Is the claim Ripe? External Limit.
  14. Is there Standing? External Limit, Internal Limit.
  15. Constitutional Requirements:
  16. Injury in Fact
  17. Causation
  18. Redressability
  19. Prudential Requirements (Exceptions)
  20. Own Rights
  21. No Public Grievances
  22. Zone of Interest
  1. Is the Allocation of Power Federal or State?

1. What is the Federal Source of the Power?

  1. Commerce Power
  2. Is the allocation of power within one of three categories? Lopez.
  3. Channels of interstate commerce – okay to regulate
  4. Instrumentalities of interstate commerce – okay to regulate
  5. Activities having a substantial relation to interstate commerce (substantially affects/relates to IC)
  6. Test: Use substantial effects test and aggregation IF economic activity. First step, then, is to ask whether the activity is economic or non-economic.
  7. Aggregation

  1. Taxing Power
  2. Is the tax regulatory in nature?
  3. If it is a penalty the tax is unconstitutional.
  4. If it has a genuine purpose of revenue-raising then it is okay.
  5. Is it in an area where Congress has an enumerated?
  6. If so, it’s okay. Examples: commerce, war, bankruptcy.
  7. If not, then it’s unconstitutional.
  1. Spending Power
  2. Is the spending power for the general welfare or is it for a regulatory end? Cannot be a regulation (like tax).
  3. Does it comply with the 5-part SD v. Dole spending power test?
  4. It is for the general welfare
  5. Unambiguous choice
  6. Relationship between the funding and the condition
  7. No independent constitutional barriers
  8. It must not be coercive

2. Is there a State Autonomy Limit on the Federal Allocation of Power?

  1. Is there a violation of the Tenth Amendment?
  2. Colby’s interpretation: Look to see if the power is granted to the federal government if it is then it cannot be retained by the states.
  3. Does the Federal power commandeer the state government (legislative or executive)?
  1. Is there a violation of the Eleventh Amendment?
  1. Is there a Federal statute on point?
  2. There is a Federal statute on point.
  3. Is there Preemption? Limit the federal limit to what is reasonable (safety not nuclear)
  4. Express
  5. Field (Implied)
  6. Conflict (Implied)
  7. There is no Federal statute on point.
  8. Does the State Statute violate the Dormant Commerce Clause (corporations bring)?
  9. Facially discriminatory
  10. Strict Scrutiny
  11. Intent/Effect Discriminatory
  12. Strict Scrutiny
  13. Neutral (on face and intent but not in effect)
  14. Balancing Test
  15. Is there an Exception to the Dormant Commerce Clause that is applicable?
  16. Market Participant

oMust define the market narrowly

  • Congressional Consent
  1. Is it instead a state statute?
  2. Does the it violate the Privileges and Immunities (individuals bring)?
  3. Does the statute discriminate against non-citizens in a fundamental right?
  4. Are out of state citizens part of the problem?
  5. Is there an alternative that will allow not to discriminate and still achieve the same result?
  6. Does the activity serve an important role in our nation and therefore states cannot discriminate?
  1. Does it violate the Separation of Powers?
  1. Is it an Executive Encroachment on Legislative Power?
  2. Nondelegation
  3. No line-item veto
  4. Has Congress violated prescribed Constitutional procedures?
  5. Bicameralism and PresentmentClauses?
  6. Must apply if effecting legal rights, duties and responsibilities on individuals
  7. No legislative veto
  8. Is Congress Impermissibly Controlling Executive Officers?
  9. Are they appointing executive officers
  10. Are they impermissibly removing executive officers?
  11. Cannot remove if the person’s job is essential to the execution of executive power to serve the President
  12. Is Congress limiting the executive removal power?
  13. Is there an invasion of Executive Privilege or Immunity?
  14. Is it Privilege?
  15. Is it Immunity?
  16. Absolute or temporary

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