CONSTITUTIONAL LAW OUTLINE
About this outline: This is an outline from a Constitutional Law course at a top law
school. Use this Outline as a study aid for a law school course or as a guide to learning
Federal Judicial Powers
Justiciability= federal courts are limited to cases & controversies
o Standing= Injury (must be or imminently will be injured), Causation (∆ caused
or will cause injury), Redressibility (favorable decision will remedy the injury).
Federal court cannot issue advisory opinions.
o 3rd Party Standing: General Rule=not allowed. Exceptions (1) close relationship
(i.e. doctor-patient); (2) Injured 3rd Party unable to assert own rights (i.e.
peremptory challenges); (3) Organization (members must have standing; interests
relevant to Org’s purpose.)
o No Generalized Grievances: π cannot sue solely as a citizen or a taxpayer;
Exception= challenging government expenditures under the Establishment Clause
($ only; not property)
o Ripeness: pre-enforcement review. If hardship will be suffered without pre-
enforcement review & court has everything it needs to decide.
o Mootness: π must present a live controversy, if injury ends, so does case;
Exceptions: (1) capable of repetition but evading review (Roe); (2) ∆ voluntarily
ceases but can resume anytime; (3) Class Action suits (if named π’s claim
becomes moot, action can continue)
o Political Question: Constitutional violations Fed Courts won’t adjudicate; 4
Types: (1) “republican form of govt”; (2) Challenges against Prez’s foreign
policy; (3) Challenges to impeachment and removal; (4) challenges to partisan
gerrymandering (drawing legislative seats)
Supreme Court Review- virtually all cases come before court by writ of certiorari
o Writ of Certiorari: (1) 4 SC justices vote to hear case; (2) all cases of US Ct of
Appeals (discretionary); (3) appeals from 3-Judge Federal District Courts
(Mandatory); (4) Suits between States.
o Final Judgment Rule: must be a final judgment of the highest state court; US
Appellate Court; or of a 3-Judge Federal District Court.
o Adequate & Independent State Grounds: if state court decision rests on two
grounds; one state law and one federal law; if the SC’s reversal of the federal law
ground will not change the result in the case, the SC cannot hear it.
Lower Federal Court Review: Justiciability requirements must be met.
o Rule: may not hear suits against state governments; 11th Amendment (bars suits
against states in Federal Courts) & Sovereign Immunity (bars suits against states
in state courts). Exceptions: (1) Waiver (explicit); (2) Due Process; (3) Federal
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government may sue states. (4) States may sue states. Suits against state officers
o Abstention: Federal courts may not enjoin pending state court proceedings.
Federal Legislative Powers
Congress’ Authority to Act:
o Express or Implied Congress Power: all Congress’ powers come from
No express Police Power. Exceptions: (1) Military; (2) Indian
Reservations; (3) Federal Lands & Territories; (4) Washington DC.
o Necessary & Proper Clause: Congress has the power to use any means
necessary to carry out its specifically granted powers.
o Taxing/Spending Powers: Congress can tax & spend for the General Welfare
(create any tax it and spend it how it sees fit).
o Commerce Clause: Congress can regulate (1) channels of interstate commerce
(i.e. highways, waterways, internet); (2) instrumentalities of Interstate
Commerce (i.e. trucks, planes, internet); (3) activities that have a substantial
effect on interstate commerce.
o 10th Amendment: Reserve Powers: all powers not granted to the US, nor
prohibited by the states, are reserved to the states or the people.
Congress cannot compel state regulatory or legislative action (i.e Brady
Congress may prohibit harmful commercial activity by state governments.
(ie Fed Law can prohibit state DMV from releasing personal info)
o Section 5 of 14th Amendment: gives Congress power to adopt laws to protect
14th Amendment; cannot create new rights, only laws that protect preexisting
rights, as long as they are Proportionate & Congruent to protecting the rights or
o No limit on Congress’ right to delegate legislative powers
o Legislative vetoes and Line-Item vetoes= unconstitutional. Must be bicameralism
and presentment (president must sign bill in its entirety).
o Congress cannot delegate executive powers to itself or itself offices. “congress
can give but congress can’t take”
Federal Executive Powers
o Treaties= agreements between US and foreign country. Must be ratified by
Senate. Rules: (1) prevail over existing state law; (2) if conflicts with federal
statute; last in time wins; (3) If treaty conflicts with Constitution, treaty is
o Executive Agreements= agreements between US and head of foreign country,
effective when signed. Need not be ratified. (1) can be used for any purpose;
(2) prevail over conflicting state laws; (2) do NOT prevail over federal statutes or
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