1st QUESTION: DO THE PLAINTIFFS HAVE STANDING?? Is the claim Justiciable? No advisory opinions Injury in fact, causation, & Redressability Ripeness & Mootness Political Question doctrine.
2nd QUESTION DOES THE COURT HAVE JURISDICTION??
If Appellate needs, Diversity or federal question under Article III If Supreme Court Original Jurisdiction or Review of Appellate is needed
IF THE FEDERAL GOVERNMENT IS THE ACTOR:
1) What is the source of Congressional Authority? - Spending Power, Taxing Power, Treaty Power, War & Military Affairs Power? - Necessary & Proper Clause – Are they enforcing an enumerate power of the Constitution? - Commerce Clause - Does this meet one of the three requirements? - 14th § 5 – Is there a violation by the state of the 14th Amend. Is it remedial legislation that is Proportional and congruent. - 10th Implied Limits – Does the Act exceed Congress’s power or violate states? Federal government is allowed to prohibit activity, however it can’t compel affirmative obligations, be coercive, or commandeer state officials.
2) Once authority is established, are there constitutional limitations which apply?
14th Equal Protection Clause – Does the law allow right to some, but not to others? o Rationale Basis Review: Applies to social & economic regulations (disabled, wealthy, homosexuals). No arbitrary, unreasonable, or irrational classifications o Intermediate Review: Applies to Gender, alienage, and illegitimacy claims. o Strict Scrutiny: Suspect classifications by race, national origin, or ethnicity. Discriminatory Effects. Benign Racial classifications (Affirmative Action). 5th Substantive Due Process – Does the action prohibit/interfere with an individual interest? Does it violate a fundamental right or liberty interest? o Right to Privacy – Protected primarily today by the 5th Amendment, but has also been justified by the 9th Amendment or the “zone of privacy” created by the “penumbra” of the Bill of Rights. (1st, 3rd, 4th, 5th Amendments). Also, possible justification under the Privileges & immunities doctrine if SC. Abortion: Can not place an undue burden, i.e., a substantial obstacle in the path of a women seeking an abortion pre-fetal viability. Must include Health exception to ban a procedure. STRICT SCRUTINY. Right to Engage in Consensual Sexual Practices: Heightened/Strict Scrutiny. Right to Refuse Medical Care/ No right of family to withdraw life-sustaining treatment – a right exists, but it is no fundamental. Heightened Scrutiny. Additionally look at historical rights and tradition for justification.
IF STATE GOVERNMENT IS THE ACTOR: (including municipalities)
Don’t have to show authority if it’s the state acting
1) Does law violate a provision of the Constitution? - Supremacy Clause – “Preemption” – Does a federal law preempt the state. 3 types of preemption: Express, Conflict, and Field. Dormant Commerce Clause – Is there an issue of commerce? o Does the statute facially discriminate against out-of-state interest? o Is there a disproportionate impact on out of state interest? (protectionism) o Is the statute unduly burdensome? (Pike) Alternative means? Privilege & Immunities – Does it discriminate against essential activities or basic rights? 14th Amendment Equal Protection Clause – (see above) 14th Amendment Substantive Due Process – (see above, same as 5th)
IF IT’S THE PRESIDENT
1) What is the source of Executive Authority? - Domestic Powers – Can carry out laws & act in time of national, not domestic emergency
w/out Congressional Approval. Also has the powers of pardon, veto, appointment/removal, & impoundment. Foreign Affairs Powers – Can take immediate action in the realm of international affairs. Can negotiate treaties w/congressional consent or Executive Agreement w/out. War Powers – Given power to deploy troops as Commander in Chief. See War Powers Resolution Act & Authorization of Use of Military Force. Executive Immunity Executive Privilege Impeachment