Professional Documents
Culture Documents
Con Law Flowcharts
Con Law Flowcharts
First check
CONSTITUTIONAL
STANDING
YES
NO
NO
STANDING
Is the harm actually caused by
the defendant/challenged
action?
Is there CAUSATION?
YES
NO
NO
STANDING
Is there a REMEDY?
YES
Const'l
Standing
Is the defendant/challeneged
action a but for cause of the
harm?
NO
NO
STANDING
EXCEPTIONS:
1) injured party unable, P is adequate
representation of rights
2) special relationships (eg parents)
3) organizations if interest is related to
their purpose and a member would have
standing but is not required as a party to
the suit
Frothingham: no standing for P challenging
the funding of a federal program because
his interests are identical to all the other
millions of tax payers BUT
Mass v. EPA: state can sue for harm to all
of its citizens, perhaps states have special
treatment because of role as "quasisovereign"
NO
YES
JUSTICIABLE
Baker v. Carr: not textual commitment in Equal
Protection Clause to any one branch of gov't to
enforce, so Judiciary can step in
YES
NON-JUSTICIABLE
Luther: Guaranty Clause commits enforcement of
"republican form of government" to other
branhces
Nixon: impeachment proceedings committed to
Senate
NO
NON-JUSTICIABLE
Luther: "republican form of government" is unclear
and it should be left to legislature to define
Nixon: "trying" a case has broader meaning that
"proceedings" and lacks precision to afford
judicially manageable standard of review
JUSTICIABLE
Baker v. Carr: Judicial standards for Equal Protection
Clause are well developed (one person-one vote);
courts can make a good judgment and not just
exercise their will (Federalist 78)
NO
NONJUSTICIABLE
YES
YES
Is there a need for finality or
deferral to political branch
decision?
JUSTICIABLE!
Check Jurisdiction
NO
Necessary?
Proper?
"necessary" is
qualified by
"absolutely" in
other provisions
in section granting,
not restricting,
powers
clause is meant to
enlarge, not
circumscribe
powers of
congress
Means must be
"plainly
adapted" to the
end and not
prohibited by
the Const.
Means cannot
be pretext.
(no articulated
standard for this.)
Gives
incidental
powers, does
not create
great ones.
Representatives
owe primary
allegiance to the
people of the
Nation, not the
state
NO
Instrumentalitiesof
Interstate
Commerce
Substantial Effect
on Interstate
Commerce
Economic
Activity
AntiComandeering
NonEconomic
Activity
Neither
congressional fact
finding nor state
support are
dispositive (although
they can be helpful)
Morrison - because
of Marbury &
Supremacy Clause
10th Amendment
Doesn't Apply
DEFINE THE
ACTIVITY
IS THIS
NECESSARY
AND PROPER?
Dole
Raise drinking age or lose 5% of highway funding
Sebelius
Follow ACA or lose all Medicaid funding
Congress can condition receipt of federal money on the states doing/not doing certain actions that they would not
otherwise be able to compel them to do, however, THE CONDITIONS MUST BE:
for GENERAL
WELFARE
CLEARLY
STATED
CONNECTED
to funding
Not otherwise
unconst'l
NOT
COERCIVE
Balancing Test:
President's
interests v.
countervailing
interests
Factors:
confidentiality,
national security,
military, etc
Accommodation
(e.g. redacting)
Unofficial Actions
ABSOLUTE
IMMUNITY
NO IMMUNITY
Intelligble
Principles
Bowsher
LEGISLATIVE
OFFICERS CANNOT
ENFORCE
LEGISLATION
"Intelligible
principles" can be as
vague as "in the
public interest"
Bicameralism &
Presentment
Clinton v. NY
LINE ITEM VETO
NOT OK
Removable by
Congress =
Legislative Officer
Impeachment
Art. 1 2: House has sole power
to impeach; Art. 1 3 Senate
holds trial; Conviction requires
2/3 of members present
INFERIOR
OFFICER?
PRESIDENT
CONGRESS
No power to remove
executive officer outside of
impeachment.
Bowsher
Removal
Powers
No consensus on definition
of "high crimes and
misdemeanors"
Clause does not require
impeachment
Do the removal restrictions
impede the president's
ability to perform his
constitutional duty?
Morrison v. Olson
VERY TEXTUAL
Preseident only has
authority from ACTS
OF CONGRESS or
the
CONSTITUTION
itself
THEATRE OF WAR
exception
Only Congress can make
laws; Presidential actions
are equivalent to
Congressional law
making
Constitution seems
clear: read like a Code
(Chada) When less clear,
BALANCE THE
POWERS
F
u
n
c
t
i
o
n
a
l
i
s
t
Justice Jackson
Category 1
Justice Jackson
Category 2
Justice Jackson
Category 3
MAXIMUM
AMOUNT OF
POWER
Acts pursuant to
express or implicit
authorization of
Congress
Presumption in favor of
presidental action
INVALIDATION =
FEDERAL GOV AS
WHOLE LACKS
THE POWER
Congressional grant
of denial of power
is absent
Can only rely on his
independent power +
'zone of twighlight'
in which Congress/Pres
have concurrent
authority or distribution
is uncertain.
Congressional inertia/
indifference/quiecence
may as a practical matter
enable independent
presidential action
LEAST AMOUNT
OF POWER
May rely only on
independent power
minus
constitutional
powers of
congresss over the
matter
Scrutinized with
caution
Equilibrium of
Constitution is at stake
Theatre of War =
Actions Abroad during
wartime
Frankfurter: if there is a
long tradition of
allowing the behavior
action might be OK
Look to HISTORY
and
CONSEQUENCE
Military Tribunals
Const'l
Unlawful
Combatants (US
Ctizens or
otheriwse)
Ex Parte Quirin
What is the
"theatre of war"
post 9/11?
Unconst'l
1) Outside Theatre of
War
2) Where hostilities
have ended
3) Civilian trials
unconncected to
military service
4) When civilian courts
are open
Ex Parte Milligan
CLOSER TO WAR =
MORE LIKELY
EMERGENCY POWER IS
CONSTITUTUIONAL
Const'l
Unconst'l
PLURALITY
AUMF puts this in
Category 1
Historically have
taken POWs, don't
want to encourage
killing upon
capture out of fear
we can't detain
DISSENT
AUMF in tension
with NonDetention Act and
puts this in
Category 3
Congress must
suspend Habeaus
under Art 1 9 cl
2
PROBABLY NOT.
CLAUSE BASICALLY
USELESS. Does not even
protect basic human
rights.
BUT
INCORPORATED
Essential to
fundamental
fairness?/Central
to American
justice (Duncan)
Deeply
rooted in
history and
tradition?
CURRENT
DOCTRINE:
Parents Involved
REHNQUIST PLURALITY
Prohibits ANY DISCRIMINATION on basis of race
Protects white kids
"The way to stop discrimination on the basis of race is to
stop discriminating on the basis of race"
STRICT SCRUTINY
BREYER DISSENT
COMPELLING
state interest
law is NARROWLY
TAILORED to state
interset
LEAST
DISCRIMINATORY
MEANS POSSIBLE
KENNEDY CONCURRENCE
Recogonized COMPELLING state interest in avoiding racial
isolation, BUT not NARROWLY TAILORED
Suggets other means to combat racial isolation: a) strategic
site selection; b) redrawing attendance zones; c) magnet
programs; d) recruiting students in targeted fashion; e)
tracking enrollments/performance/etc based on race
Carolene Products n. 4
Courts will not defer to legislature
when law affects "discrete and
insular minorities" because of
worry political process won't protect
them
Non-Economic Right
NOT FUNDAMENTAL
West Coast Hotel (upheld minimum wage laws for
women)
STEP ONE
Blaisdell: Ok to interfere
with contracts in an
emergency; pretty much
guts CC; Majority:
Constitution needs to be
interpreted in modern light
or the document doesn't
work; EXCEPTION: US
Trust v. NJ says state cannot
revoke it's OWN
obligations
NO
Rational Basis Test
RATIONAL BASIS?
Defer to legislature
Conceivable rational basis is
enough (post hoc review)
Lee Optical
Reasonable means to
legitimate end?
law doesn't have to be in
every respect logically
consistent with its aims
Lee Optical
OR
SEXUAL
AUTONOMY
Lawerence: broad
description (i.e.
reproductive
freedom)
STEP TWO
Is the right FUNDAMENTAL?
Glucksberg:
DEEPLY ROOTED
&
Implicit in the
concept of
ORDERED
LIBERTY
OR
Lawerence:
laws and traditions of
recent past show
EMERGING
AWARENESS that
liberty gives
protection to rights in
question
STEP THREE
APPLY THE TEST
Yes, it is a FUNDAMENTAL
RIGHT
STRICT SCRUTINY
Justiciability
Standing
Timliness
Advisory
Opinions
1. Injury
2. Causation
3. Remedy
1. Mootness
2. Ripeness
Nope.
Congressional
Powers
Necessary and
Proper Clause
1. Plainly Adapted
2. Not Prohibited
Elsewhere
3. Means cannot be
pretext
Political
Questions
1. Textually Demonstrable
Commitment
2. Judicially Manageable
Standards
3. Initial Policy Determination
4. Need for finality
Spending Power
Commerce
Power
1. Limit of 'general
welfare'
2. Nexus Constraint
3. Not Coercive
1. Channels/
Transportation
2. Instrumentalities
3. "Economic Activity"
Separation of
Powers
Legislative Power
Executive and
Judicial Power
Emergency
Powers
Executive
Immunities
1. Intelligible Principles
2. Bicameralism &
Presentment
1. Appointmnet
2. Removal
3. Impeachment
1. Domestic Affairs
2. Foreign Affairs
3. War Powers
1. Executive
Privilege
2. Civil Liability
Individual Rights
Abortion
or Related
NonEconomic
Equal Protection
Clause
Privileges and
Immunities
Clause
Incorporation of
Bill of Rights
Strict
Scrutiny
Useless.
Selective
Fundamental
Not
Fundamental
Substantive Due
Process
Undue
Burden
Strict
Scrutiny
Rational
Basis
Economic
Not
Fundamental
Minimum
Rationality