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CON LAW THE BASICS For every argument consider Formalism

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					                                                  CON LAW

                                                THE BASICS

For every argument consider:                               Formalism: strict categories provided in C.
1. Text of Constitution                                    Functionalism - practical effects of something
2. History
3. Structure - separation of powers/federalism
4. Precedent
5. Prudential/other values - natural law

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                                        Sup. Ct. cannot review
executive acts                                             Merely discretionary acts
legislative acts                                                   Cannot issue advisory opinions
state court decisions                                      Political question cases
state court law                                                    If there is no standing, ripeness or
actions of state officials                                 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
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.                               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

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
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
2. Whether there is a jurisdictional element, meaning some additional nexus requiring a connection with
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.

                                  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

                  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

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.


Remember: Congress may only act under the guise of an express or implied grant of power from the

                                         Federalism Generally

Definition - federalism gives an independent power to states. States have an independent claim on
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 -
    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

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.

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
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

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)
               Even if it discriminates against in state citizens a regulation may be per unconstitutional
                  if it also discriminates against out of state interests (Carbone)

   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


The Dormant Commerce Clause dictates that state laws are unconstitutional if they place an undue burden on
interstate commerce. Nowhere in the Commerce Clause is there express mention of this authority.
However, the court has consistently read the Commerce Clause to include a negative element making certain state or
local actions in violation of the constitution, regardless of whether Congress has acted in the area

Reasons for this interpretation include a desire for political unity among the states and a desire to reduce intra state
   rivalries and promote national harmony. The Dormant Clause also prohibits economic balkanization and cost
   exporting from one state to another

                                         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
   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.


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.

            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                                Adarand)
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 -
   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


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.


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