CON LAW THE BASICS For every argument consider: 1. Text of Constitution 2. History 3. Structure - separation of powers/federalism 4.

Precedent 5. Prudential/other values - natural law Formalism: strict categories provided in C. Functionalism - practical effects of something

Limitations of Judicial Review 1. Limited SMJ of federal courts. 2. Need statutory right and constitutional right to go before federal court 3. Courts may only review constitutionality of executive and legislative acts. a. Courts may NOT review uses of political discretionary authority 4. Congress cannot increase the Supreme Court=s original jurisdiction. Sup. Ct. can review executive acts legislative acts state court decisions state court law actions of state officials Sup. Ct. cannot review Merely discretionary acts Cannot issue advisory opinions Political question cases If there is no standing, ripeness or Mootness

For every single statute consider: Federal - first look at whether Congress had the authority to act (either expressly or impliedly), then ask whether the act violates any other provision of the Constitution. State - ask if legislation is constitutional. Separation of Powers versus check and balances Separation of powers - preserves idea of independent branches of government - none are subservient to the other branches. Check and Balances - allows branches to serve as a check or limitation on the other branches. Goals of SOP/Checks and balances 1. Efficiency - someone needed to be in control. 2. Preventing tyranny - equality before the law, no arbitrariness. Separation takes power from those who make the law and enforce the law. The law applies to the legislators. Justiciability Doctrine - Limitations on jurisdiction of federal courts

Prohibition against advisory opinions 1. Federal courts are forbidden from issuing advisory opinions on the constitutionality of legislative or executive acts that do not arise out of a case or controversy. Such a power would enable executive and legislative officials to obtain authoritative jmts on constitutional issues before relevant actions are taken. 2. Requirements - (1) must be an actual dispute between adverse litigants and (2) there must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect. Requirement of Standing - (Lujan factors) 1. must have suffered some injury in fact which is concrete and particularized and actual or imminent, not conjectural or hypothetical 2. There must be a causal connection between the injury and the conduct - cannot be independent action of some third party 3. It must be likely that the injury will be redressed by a favorable decision. 4. Need to have proper plaintiff. 5. Alternative - merits based standing 1. Standing depends on whether the particular legal provision at issue gives a right to this plaintiff. Look at whether the legislature intended to give an enforceable right to this plaintiff. Gives more power to Congress because Congress creates laws and determines who can sue. Lujan v. Defenders of Wildlife 1. Emphasized the need to find the proper plaintiff. 2. Enunciated standing requirements Other principles of standing 1. A party generally may only assert his own rights and cannot raise claims of third parties. 2. A party may not sue solely on the basis of being a taxpayer. 3. A party must raise a claim within the zone of interests protected by the statute in question. Prohibition against political questions 1. Political questions are those issues which the court deems inappropriate for judicial review and should be left to each branch to decide. 2. Applies even in situations when individuals allege that specific constitutional provisions have been violated and they have suffered a concrete injury. 3. Areas considered to be political questions: republican form of government clause and the electoral process; foreign affairs; Congress=s ability to regulate its internal processes; the process for ratifying constitutional amendments; and the impeachment process.

4. Factors which might make a case a political question 1. Jurisdictional - the text of the C might dictate that the final decision on a particular matter is to be made not by the courts but by another branch of government. 2. Merits based - law provides no legal right to plaintiff 3. Prudential/deferential - strong need to defer to another branch of government. Baker v. Carr 1. Reapportionment issues are always justiciable when raised under the equal protection clause. 2. Merely because a case seeks protection of a political right does not mean it presents a political question. Ripeness and Mootness 1. Ripeness bars the court from deciding cases which are premature. 2. Mootness prevents the court from hearing cases which are brought too late.

CONGRESSIONAL COMMERCE POWER Express grant of congressional authority Defining Commerce 1. Commerce is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. It includes all phases of business. (Gibbons v. Ogden) Rule - Congress has the power to regulate through its commerce power only those activities that have a substantial effect upon interstate commerce. (Lopez) What Congress may regulate 1. Use of channels of interstate commerce (civil rights cases) 2. Instrumentalities of interstate commerce - including the power to regulate persons and things in interstate commerce (protective function) (prohibitions of intestate transportation of a commodity in ISC) 3. Activities having a substantial effect upon interstate commerce Substantial effect Test There are several factors a court considers when determining whether an activity has a substantial effect upon ISC. 1. Whether the activity is commercial transaction or economic in nature (can be part of a larger economic activity) 2. Whether there is a jurisdictional element, meaning some additional nexus requiring a connection with ISC 3. Legislative findings/history 4. Area of traditional state concern (education, crime) 5. Need for national necessity - public welfare 6. Coordination problem When looking at commerce clause cases stop and consider whether the 10th amendment imposes any other limits. Civil Rights Cases - burdening channels of interstate commerce by discriminating and thereby preventing interstate travel. (Heart of Atlanta and Katzenbach v. McClung) Aggregation - even if one party=s activity is local and though it may not be regarded as commerce, it may still be reached by Congress if it exerts a substantial effect on interstate commerce. (Wickard v. Filburn)

CONDITIONAL SPENDING POWER Express grant of congressional authority Principle - 16th Amendment allows Congress to levy a national income tax which takes away state funds. Congress then gives a portion of funds back to the states based on certain conditions. Rule - Congress may place certain limits on such grants to the states, so long as the conditions are expressly stated and have some relationship to the purpose of the spending program. Test for constitutionality of conditional spending (South Dakota v Dole) 1. Condition must be for the general welfare 2. Must be an unambiguous condition 3. The condition must be related to the spending 4. There must be no independent constitutional barrier. 5. Must not be coercive to the states - federal government cannot coerce the states to violate the Constitution

CONGRESSIONAL POWER TO ENFORCE RECONSTRUCTION AMENDMENTS Express grant of authority under 14th Amendment Enabling Clause Rule - Congress is not allowed to independently interpret the Constitution. It may only exercise remedial powers under the Enabling Clause. A federal statute enacted pursuant to the Enabling Clause of the 14th Amendment supersedes any state constitutional or statutory provision which is in conflict with federal law. (Katzenbach v. Morgan) Congress may only exercise remedial powers and not substantive powers under the Enabling Clause. Two Categories of Remedial powers (Boerne) 1. Complex Remedies - Congress takes the Constitution as established by the Supreme Court. There must be a prior constitutional violation which Congress is trying to remedy. Trying to make sure targets of discrimination are protected now and in the future. But, complex remedies can go too far. 2. Preventive Remedies - Preventing a future unconstitutional act. Don=t care about the past, in the present there=s a danger that if there=s discriminatory intent look at what=s unconstitutional and relationship to conduct regulated by the statute. Limitation on remedial powers - there must be congruence and proportionality between what the Court has declared unconstitutional and the conduct the statute covers. Substantive remedies are never allowed. Such remedies requires independent constitutional fact finding by Congress. 10TH AMENDMENT AND FEDERALISM BASED LIMITS ON CONGRESSIONAL POWER Remember: Congress may only act under the guise of an express or implied grant of power from the Constitution. Federalism Generally Definition - federalism gives an independent power to states. States have an independent claim on authority Decentralized system - the central authority creates administrative units and allows them, with more or less freedom, to pursue their own goals. When we favor federalism approaches 1. Efficiency - local solutions to local problems 2. Choice - people have a choice of moving to where they like the law 3. Experimentation - using states as laboratories 4. Participatory Democracy - people typically can=t participate in federal government. By allowing decisions to be made at the local level, people can more directly participate 5. Prevention of tyranny - limit ability of federal government to become tyrannical. When we disfavor federalism approaches 1. Coordination problem - sometimes we need national solutions to national problems. People may consider their own self interests over the greater good. 2. National citizenship 6

3. Human guinea pigs 4. Need to guarantee democracy - states may oppress the democracy 5. Allowing local tyranny The 10th Amendment ensures the dual sovereignty structure of the US and acts as a limit on federal power. Federalism protection of state interests Something of a conflict between Garcia and New York v. US - distinguished on the ground that Garcia applies to the states and individuals while New York applies to the states as states. Garcia 1. The Supreme Court will not use federalism to oppress the states. Congress should enforce limits of federalism because the states are represented through the legislature. New York v. US 1. It is unconstitutional for Congress to compel state legislatures to adopt state laws or state agencies to adopt regulations. 1. Congress may set standards that state and local governments must meet and thereby preempt state and local actions. 2. Congress may also attach strings on grants to state and local governments and through these conditions induce state and local actions that it cannot directly compel. 2. Look for a commandeering of state governments and undermining government accountability. The federal government may not compel the states to enact or administer a federal regulatory program. 3. State officials also cannot consent to the enlargement of the powers of Congress by those enumerated in the Constitution. Congress may not compel a state to enact or enforce a particular law or type of law nor compel state or local officials to perform federally-specified administrative tasks.

THE DORMANT COMMERCE CLAUSE Implied limit on state authority Basic Principle - State and local laws are unconstitutional if they place an undue burden on interstate commerce. Even if Congress has not acted or nor preemption is found, the state or local law can be challenged on the ground that it excessively burdens commerce among the states. What can states do when Congress hasn=t spoken at all? Threshold Issue - Key question is whether the state or local law discriminates against out-of-staters or whether it treats in-staters and out-of-staters alike. Exam Approach - find a way to argue both 1. First, look to see whether the statute facially discriminates against out of staters (that is, it mentions geography). 2. If the court concludes that a state is discriminating against out-of-staters, there is a strong presumption against the law, and it will be upheld only if there is a rigorous showing of no alternative. (quarantines). (Carbone) 1. Market Participant Exception - When states are participating in the market, they may attempt to keep the benefit of their state expenditure in state. Look for difference between regulating the market and actually participating in it. The state must be spending its own dollars. (Wunnicke) 3. If the court concludes that the law is non-discriminatory, then the presumption in favor of upholding the law, and it will be invalidated only if it is shown that the law=s burden on interstate commerce outweighs its local benefits. (Philadelphia v. New Jersey) 1. However, a facially neutral law can be found discriminatory if there is proof of a discriminatory impact. (Carbone) 4. Background theories: states cannot legislate in a way that threatens national unity or when states are trying to keep benefits but make other states bear the cost. Weighing Benefits and Burdens 1. A state safety regulation will be unconstitutional if its asserted safety purpose is outweighed by its degree of interference with interstate commerce. (Kassel) Local benefits to think about 1. Public safety 2. Public health 3. Look to see if there are any less burdensome alternatives

EXECUTIVE AUTHORITY Determining the boundaries of presidential authority (Youngstown - Steel Seizure Case) 1. Jackson=s zones 1. When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum. It includes all that he possesses in his own right, plus all that Congress can delegate. The president=s acts are presumptively valid. 2. When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. It is impossible to formulate rules as to the constitutionality of actions in this area; rather, constitutionally it is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 3. When the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb. Because the president is disobeying a federal law, such presidential actions will be allowed only if the law enacted by Congress is unconstitutional. 2. Black=s approach - no inherent power (majority) 1. President=s power must stem from either an act of Congress or from the Constitution itself. 2. Premised on the belief that inherent authority is inconsistent with a written Constitution establishing a government of limited powers. Foreign Policy Foreign and domestic executive powers are different. The statement that the president can exercise no powers except those specifically enumerated in the Constitution is true only with respect to domestic affairs. The president=s authority to conduct foreign policy matters is intrinsic to nationality and does not stem from the Constitution. (Curtiss-Wright) Executive Agreements When the president acts pursuant to specific congressional authorization, those actions are supported by the strongest of presumptions and the widest latitude of judicial interpretation. Other actions taken by the president, on which Congress has not spoken, are okay if supported by history. Read narrowly. (Dames & Moore). Follows Jackson=s approach, rather than Black=s majority approach. Presidential Immunity 1. President enjoys immunity for official conduct. Cannot be sued for misuse of presidential office. Official conduct is immune forever. (Nixon v. Fitzgerald) 2. The president can be sued while in office for private conduct which occurred prior to the commencement of his term in office. (Clinton v Jones). 3. It remains unsettled whether a president can be criminally prosecuted while in office or whether the sole remedy is impeachment and removal. LEGISLATIVE AUTHORITY: DELEGATION, LEGISLATIVE VETO, APPOINTMENT AND REMOVAL

Power of administrative agencies 1. Necessary for Congress to delegate some duties. 2. Congress must give great discretion to the executive branch. Initially courts were concerned about Congress delegating too much power. Said Congress needs to delegate with specificity to prevent other bodies from legislating. Lately courts have not enforced the delegation doctrine. If Congress doesn=t like what an agency does it can pass a statute. 3. Administrative agencies possess rule making power and these rules have the force of law. However, administrative agencies also possess executive power to enforce the regulations that they have promulgated and the judicial power to adjudicate violations of their rules. Congressional Checks on administrative agencies 1. Congress can overturn agency decisions so long as there is bicameralism and presentment. 2. Congress control the purse strings of administrative agencies and there undoubtedly are informal political checks, such as through oversight committees. The Legislative Veto Definition - Congress created the legislative veto as a check on the actions of administrative agencies. Congress put in statutes provisions authorizing Congress or one of its houses or committees to overturn an agency=s action by doing something less than adopting a new law. 1. A typical form of the legislative veto provision authorized Congress to overturn an agency=s decision by a resolution of one house. Legislative Veto is Unconstitutional (Chadha) 1. Legislative veto was unconstitutional because it took away duties from other branches. 2. When someone in Congress acts it=s presumptively legislative. Substitutes for legislation. 3. Bicameralism (passed by both houses) and presentment required (present to president)- Congress may only legislate if there is bicameralism and presentment. Legislative veto was creating legislation with these two things. Formalist versus Functionalist Approach 1. Formalism involves the notions of bicameralism and presentment, and emphasizes the formal structure prescribed in the Constitution for adopting laws. 2. Functionalism involves the notion that the legislative veto is essential to check administrative power. Congressional Removal authority- (Bowsher) 1. Congress may not give itself the power to remove executive officials. When Congress elects to exercise its legislative power, it may not authorize a lesser representative of the legislative branch to act on its behalf. 2. Congress may not delegate executive duties to legislative officials. Congress ends up retaining control over the executive branch because only it has the power to remove the legislative officer. Not every action taken by either House is subject to bicameralism. The test is whether they are regarded as essential to the legislature. Exam Approach - when Congress delegates authority 1. First, determine whether the officer is legislative/executive (principal/inferior). Congress may only delegate legislative duties, not executive. Be careful, if legislative, because Congress can delegate to itself,

but acts which are essentially legislative are subject to bicameralism and presentment. 2. Watch how delegation power and removal power interact - who has the power to remove this person? 1. Morrison allows for some Ainterbranch@ appointments, but not ones solely by the legislature. (IC appointed by Congress removed by attorney general okay) 3. If executive power, there is a problem if the officer is legislative. 4. If legislative power might violate bicameralism and presentment. Appointment Power 1. The President along appoints ambassadors, Supreme Court justices and officers of the US, but Congress can vest the appointment of inferior officers in the president, or the federal courts, or the heads of departments. Congress itself may not make appointments. Morrison - IC statute 1. Court found constitutional the IC statute which permitted Congress to appoint an inferior officer, IC, which was subject to removal by the Attorney General.

INDIVIDUAL RIGHTS - SUBSTANTIVE DUE PROCESS Limits on government authority - there are some things government just can=t do Exam Approach - always do both rational basis and strict scrutiny 1. Look to see if a fundamental right is being protected. 2. If so, must be strict scrutiny - narrowly tailored to advance a compelling governmental interest. 3. If not, then rational basis test. On exam do both tests. 4. Abortion cases get undue burden test. Unconstitutional if statute has as its purpose of effect to place a substantial obstacle in the path of a woman seeking to get an abortion. (Casey) Test for determining fundamental right 1. Text of Constitution - Court has said that the text implies some other fundamental rights besides life, liberty and property. Right to privacy. 2. Tradition /history/stare decisis Fundamental Rights 1. Right to privacy (Griswold, Roe) - including marriage, decisions concerning procreation, right to control reproduction (Eisenstadt), autonomy of the individual. 2. Protecting family and reproductive autonomy are fundamental rights that are protected even though they are not part of the tradition. 3. No constitutional protection for sexual orientation or sexual activity - (Bowers) 4. Cruzan - in dictat court said there might a right to refuse unwanted medical treatments. - Right to bodily integrity. 5. Court of Appeals found right to assisted suicide - right to bodily integrity (Glucksberg) Compelling Governmental Interests 1. Morality 2. Public health 3. Argument to leave decisions regarding morality to the states. Narrow tailoring 1. Look at the means used to achieve the end Rational Basis - rationally related to legitimate government interest - presumptively valid 1. Overinclusiveness/underinclusiveness/political process

EQUAL PROTECTION Limits on government authority Analysis under the 14th Amendment/5th Amendment same test 1. Rational Basis - rationally related to a legitimate government interest 2. Due Process - fundamental right, then strict scrutiny, otherwise rational basis. 3. Equal protection - suspect classes get heightened scrutiny (strict scrutiny if based on race, or else intermediate scrutiny if based on gender). Otherwise rational basis test. Rational Basis Test - minimum level of scrutiny that all government actions challenged under equal protection get. Test - must be rationally related to a legitimate government purpose 1. There is a strong presumption in favor of laws under the rational basis test. Analysis - a law will be upheld so long as the government=s lawyer can identify some conceivable legitimate purpose, regardless of whether that was the government=s actual motivation. Where there are plausible reasons for the legislature=s action the analysis is complete. It is constitutionally irrelevant whether such reasoning in fact underlies the legislative decision for enacting a statute. (Fritz). Note - Brennan argue that we should look at the actual purpose. Legitimate Government Purpose 1. Police power 2. Protecting public safety 3. Public health 4. Public morals Rationally related 1. Underinclusiveness - law does not regulate all who are similarly situated. Court should look to see if the government has enacted a law which targets a particular politically powerless group or that exempts those with political clout. 1. Williamson v. Lee Optical exception - legislature may take one step at a time to remedy a problem. 2. Overinclusiveness - a law is overinclusive if it regulates individuals who are not similarly situated covers more people than it needs to accomplish a particular purpose. Look at what means are achieved to meet the end. Overinclusive laws will be tolerated (Beazer). 3. Political process problem - Court will not find constitutional laws which are overinclusive or underinclusive such that parties which this affects are not able to represent themselves in the political process. (Cleburne) Rational Basis with Teeth 1. Cleburne/Romer - rational basis with teeth - court seems to be applying something more than rational basis, but it hasn=t been clear about the doctrine. Seems to apply to mentally disabled and homosexual discrimination.

Heightened Scrutiny When to apply 1. All racial classifications, whether benefitting or burdening minorities, get strict scrutiny. 2. If statutes are non-race specific then look to see if there is a discriminatory purpose. If so, then apply strict scrutiny. If there is a mere disparate impact, then apply rational basis. (Washington v Davis) 1. Proof of discriminatory purpose - disparate impact can be shown as evidence of purpose to discriminate, but is but one factor. Three ways statutes may be discriminatory 1. Facially discriminatory always get strict scrutiny (Adarand) 2. Racial classifications that are facially neutral because treating whites and minorities the same s.s. 3. Facially neutral, then look to see if discriminatory purpose (strict scrutiny) or mere disparate impact (rational basis). Proving discriminatory purpose 1. Need more than general discriminatory impact - needs to have proof that he was discriminated against specifically. (McClesky). 2. Need more than awareness. Try to prove that legislator selected a particular course of action at least, in part, because of, not merely in spite of, its adverse effects upon the indentifiable group. Test - must be narrowly tailored to advance a compelling government interest Compelling government interests 1. Diversity (not really sure about this one) 2. History/stigma/caste/political process 3. Providing role models 4. Enhancing services provided to minorities 5. Remedying past discriminatory behavior 1. Numerical set asides (Bakke) - allowed, if at all, only if needed to remedy clearly proven past discriminatory behavior 2. Using race as a Aplus@ (Bakke) - okay to use race as a Aplus@ - race can be used as one factor to help minorities. Okay under Metro Broadcasting, but not okay under Hopwood (race could not be used as one factor to enhance diversity) 3. The mere repeal or modification of desegregation or anti-discrimination laws, without more, never has been viewed as embodying a presumptively invalid racial classification. (Crawford). Same body that passed something takes it back. 4. Restructuring the political process (changing level of political authority) has never been constitutional because it removes authority to address racial issues. (Seattle School District) Purpose for strict scrutiny and racial classifications 1. History - 14th Amendment created to protect recently emancipated slaves 2. Stigma/Caste - classifications based on identifiable and immutable characteristics create a stigma and give rise to a caste system. 3. Political Process - discrete and insular minorities are subject to prejudice that causes the traditional democratic process to malfunction. Certain groups can=t protect themselves in the political process.

Narrow tailoring 1. Means/end - not merely arbitrary, but reasonable 2. Did they consider a non-discriminatory alternative ALWAYS FIND A WAY TO APPLY BOTH STRICT SCRUTINY AND RATIONAL BASIS Intermediate Scrutiny (gender only) Substantially related to important government interest (VMI Case) State must show that classification serves important government objectives and that the discriminatory means employed are substantially related to the achievement of those goals. The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females.