Does the Plaintiff Have Standing?

First check
CONSTITUTIONAL
STANDING

Is the injury concrete and

particularized?

Is there a personal INJURY?

YES

NO

Is the injury actual and

imminent?

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?

Is the injury redressable by the

court?
Is it likely that a favorable
decision will redress it?

Lujan: no standing because they

failed to sho concrete interest (no
actual plans to visit); can't just sue as
citizen who is harmed by gov't, too
gerenalized
Mass v. EPA: standing because state
owned coastline being harmed by
global warming; probably more
lenient because its a state (states
can't vote, only citizens)
Allan v.Wright: no standing for
parents because discrimination was
caused by schools, not IRS's failure
to penalize some discriminatory
schools
Mass v. EPA: standing because EPA's
failure to regulate emissions
"contributes" to MA's injuries in a
direct way
Lujan: applying the standard globablly
wouldn't necessarily redress harm.
possible v. likely
Mass v. EPA: even though remedy
sought is a very small portion of the
total harm, still redressable;
incremental steps argument

NO
NO
STANDING

Is there prudential standing?

Plaintiff must assert

own rights, not the rights of
a 3rd party

Zone of Interest: Plaintiff

must allege and interest the
statute was designed to
protect

Not an advisory opinion?

No generalized
grievances or injuries that
affects all people equally
Case is ripe but not moot?

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"

STANDING IS ALL GOOD, go on to POLITICAL

QUESTION

Is the Issue a Political Question?

Is this a case with a textually
demonstrable commitment to
another branch?

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

Are there judicially discoverable/

manageable standards for
resolution of this issue?

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)

Can the court decide the case

without an initial policy
determination clearly for nonjudicial discretion?

NO

NONJUSTICIABLE

YES
YES
Is there a need for finality or
deferral to political branch
decision?

JUSTICIABLE!
Check Jurisdiction

NO

Can the court decide the case without expressing

a lack of respect for the other branches?
Is there potential for embarassment from various
pronouncements on a single issue by different
departments?
Is there an unusual need for unquestioning
adherence to a political decision already made?

Separation of Powers/Structrual argument: should

respect powers of other branches
Nixon: Impeachment only check on J by L, involving J in
this would destroy that check
When the gov't has already made a decision on a
matter we should let it stand unless there is a
compelling reason not to. Importance of unified gov't;
where no previous decision has been made, perhaps
appropriate for court to make the decision

Does the Court have Jurisdiction?

Article 3:
SCOTUS has original jurisdiction for cases involving: a) ambassadors b) other public misisters/consuls c) those
in which a state is a party
SCOTUS has appellate jurisdiction for cases invovling: a) federal questions b) diverse citizens
EXCEPTIONS CLAUSE: congress has the power to remove SCOTUS jurisdiction by Act or Amendment unless the
case is pending before the court (Ex Parte McCardle)

Is this a review of a state court decision?

SCOTUS can review decisions of state courts despite

arguments of sovereignty. Martin v. Hunter's Lessee: need for uniformity
of decisions. Cohens v.VA: reaffirmed for criminal cases where state is named
party, inadequacy of state judges at federal law
Art. 4: Constitution is supreme law of the land

Is this a review of state law or actions of

state officials?

State officials and legislatures are bound by SCOTUS

decisions. Cooper v. Aarron (integrating AK schools after Brown). Marbury:
SCOTUS says what the law is, states bound by SCOTUS interpretations and
decisions. Structural argument: need for uniformity of interpreting laws

Is Congress attempting to strip

SCOTUS of its jurisdiction?

Congress may create exceptions to SCOTUS's appellate

jurisdiction, but they can't interfere with essential functions
of the court or go against any other Constitutional provision.
Ex Parte McCardle: Congress can revoke jurisdiction that it's granted by
statute. Balance of power arguments: Congress check on SCOTUS or
SCOTUS check on Congress?

Is Congress attempting to overrule a

SCOTUS decision by statute?
OR
Is Congress attempting to overrule a
SCOTUS decision by amendment?

Is the President trying to ignore a

SCOTUS ruling?

Discretionary and/or Political

acts are not reviewable by the
court

Congress trying to overrule SCOTUS by statute is unconstitutional.

(Dickerson) (holding Miranda was constitutional decision that Congress could
not overrule through legislation.)(Scalia thinks this is overstepping. Is this
overlooking public will?)
Congress overruling SCOTUS by Amendment is constitutional per
Article 5

No president has directly challenged a SCOTUS ruling.

Maybe yes? Executive bound to uphold the Constitution and SCOTUS
decisions do not become part of the Constitution itself
Maybe no? Presidential veto allows him to veto statutes (e.g. if he thinks
its unconstitutional) but not review cases.

Presidental Nomination and

Senate Confirmation are checks
on the Court

Judges can be impeached for "high

crimes and misdemeanors"

Is it within the limits of the Necessary & Proper Clause?

Necessary and Proper Clause (Art. 1 8 cl. 18) "To make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers vested by this constitution in the Government of the United
States, or any Department or Officer thereof."

Necessary?

Proper?

Necessary just means convenient or

expedient, does not need to be essential.

The ends must be legitimate and the means

must be appropriate.

"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.

McCulloch v. Maryland, Sibelius

Is it within the limits of the 10th Amendment?

The 10th Amendment "The powers not delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the people"

Majority reading: The powers reserved to the states

in the 10th amendment are limited to the power
which could be reserved at the time they
were given (i.e. powers that the states had at the time
the 10th amendment was written.)

US Term Limits v.Thornton

State's can create

their own
qualifications for
federal offices

Representatives
owe primary
allegiance to the
people of the
Nation, not the
state

Might worry this

is a power federal
gov is unlikelyl to
check itself on, but
can't be checked
by the states

The 10th Amendment is a rule of

construction. Tells us not to make an inference
of the general prohibition to the states because
it's not a power specifically given to the states.
This does not make the 10th amendment a
reservoir of power to the states, simply a way to
guide our interpreation.

"It is a Constitution we are

expounding" (McCulloch v. Maryland)
Constitution meant to be an outline that grants
powers to the federal government, which in turn
maens it should be able to exercise those powers.

Is it within Congress's Commerce Power?

Does the law regulate the state itself?
YES

NO

Internal Limits (Text)

External Limits (10th Amnd)

Activity being regulated MUST fit in one of the

following categories (Lopez):
Channels of
Interstate
Commerce

Instrumentalitiesof
Interstate
Commerce

In general the 10th Amendment only applies for

commandeering

Substantial Effect
on Interstate
Commerce

Economic
Activity

AntiComandeering

NonEconomic
Activity

Federal Government CAN'T order State

Government to legislate (New York v. US)
Federal Government CAN'T require employees to
enforce federal laws (Printz)
CAN set minimum standards that state/local
governments must meet thus preempting state action.
CAN attach strings on grants to induce actions they
cannot directly compel.
BUT: TO BE PROTECTED BY ANTICOMMANDEERING IT HAS TO BE ESSENTIAL
FUNCTION OF THE STATES AND NOT
GENERALLY APPLICABLE TO THE PEOPLE/
CORPORATIONS
(Reno v. Condon)

Congress can regulate the use of channels of

interstate commerce without regards to motive.
Roads, waterways (Gibbons), airways, internet, etc.
This is a plenary power based on the Shreeveport Rate Case

Congress can regulate persons and things sent

across state lines, without regard to motive.
Can regulate and protect the instrumentalities of interstate
commerce, even though the threat may come only from
intrastate activities (e.g. labor)
Pleanary power from Darby

Can regulate purely local activities that are part of an

economic class of activities" which have a substantial
effect.
Define activity BROADLY: Raich (growing for at home consumption
counts as production)
CAN AGGREGATE COMMERCIAL ACTIVITY (Wickard)
Production, distribution, consumption, black markets

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

STATE GOVERNMENTS MUST APPLY

FEDERAL LAW
(Garcia v. SA overruling League of Cities)
Court shouldn't make distinctions between "integral"
and "non-integral" state functions because it's not a
legal question
Fed Reps elected within states so states are
protected by political process
DISSENT: integral/non-integral just like any other
provision that can be decided; once elected officials
are federal employees

For Non-Economic activities the

statute must have some sort of
JURISDICTIONAL ELEMENT (e.g.
Regulation in Lopez struck down, but passed
when added "has traveled through interstate
commerce" to modify the guns being
regulated)
SCALIA DISSENT: can use N&P Clause to
regulate broader regulatory schemes
regardless of how local/non-economic hte
activity is
CAN'T USE AGGREGATION FOR
NON-ECONOMIC ACTIVITIES (Raich,
Morrison)

DEFINE THE
ACTIVITY

IS THIS
NECESSARY
AND PROPER?

Art. 1, 8, cl. 3: "To regulate commerce

with foreign nations, and among the
several states, and with the Indian
tribes"

Is it within Congress's Spending Power?

Art 1. 8 cl. 1 "The Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay the
debts and provide for the common defense and general welfare; but all duties, imposts and excises shall be uniform
throughout the United states."

The spending power

is an independent
power

Dole
Raise drinking age or lose 5% of highway funding
Sebelius
Follow ACA or lose all Medicaid funding

Congress need not

only spend in
connection with an
enumerated power

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

Defining "general welfare" left

to Congressional discretion

CONNECTED
to funding

Not otherwise
unconst'l

Rationally connected; drinking

age -> drunk drivers ->
highway funds

NOT
COERCIVE

Lose all funding = Coercive

Lose future funding = Not
Coercive

Separation of Powers: Executive Immunities

Presumptive Executive Privilege

Not in the Constitution, created/recognized by the

Court; NOT ABSOLUTE US v. Nixon

Balancing Test:

President's
interests v.
countervailing
interests

Factors:
confidentiality,
national security,
military, etc

Accommodation
(e.g. redacting)

Immunity from Civil Liability

Official Actions

Unofficial Actions

ABSOLUTE
IMMUNITY

NO IMMUNITY

Immunity during office

is required for allowing
the President to
preform his duties
without being "unduly
cautious"
Nixon v. Fitzgerald

Suits regarding private

conduct do not run the risk
of changing the President's
performance of his
constitutional duties (as far
as being "unduly cautious"
goes)
Clinton v. Jones

Separation of Powers: Legislative Powers

Delegation of Legislative
Powers

Intelligble
Principles

Congress may delegate but must

provide "intelliglble
principles" to guide the
agency exercising the delegated
power. (Clinton v. NY)

Non-Delegation Doctrine: DEAD

Impossible not to delegate in age of
administrative agencies
Mistretta

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

In order to enact legislation (purpose

and effect of altering legal rights,
duties, and relations of persons outside
the legislative branch), the process
must formally follow the
Constitution
INS v. Chada
LEGISLATIVE VETO
NOT OK

Removable by
Congress =
Legislative Officer

Separation of Powers: Executive and Judicial Power

Appointment Powers

PRESIDENT can appoint: a)

ambassadors b) public ministers
and consuls c) SCOTUS justices
d) officers of the United States
with advice and consent of
the Senate

CONGRESS can vest the

appointment of "inferior
officers" in a) the president alone
b) the courts of law c) heads of
executive departments.
CONGRESS CAN NOT
RESERVE POWER TO
ITSELF.

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?

Subject to removal by higher

exec official?
Empowered to perform only
certain, limited duties?

Office limited in tenure?

Office limited in jurisdiction?

PRESIDENT

Can remove at will only

"purely executive
officers"
Humphrey's Executor

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

Unclear whether any

executive official serves
completely at
president's pleasure
"quasi-legislative/judiical"
officers can be limited
from removal at will, or
at all

Court has not

defined
"constitutional
duties" nor how
central those duties
must be before an
official is removable
at will.

Separation of Powers: Emergency Powers

Presidential Powers in Domestic Affairs: Youngstown Framework
Justice Black
F
o
r
m
a
l
i
s
t

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

'Twilight Zone' gives

Court a lot of power

Presidential Powers in Foreign Affairs

Still use Youngstown Framework, but probably shifted slightly in favor of Presidential action
Probably more leeway for the President in foreign affairs because we are not as concrned with Federalism as states
can't act in foreign affairs.
Dames & Moore v. Reagan (Iran Hostage Crisis)

Congressional and Presidential War Powers

US Citizen held without
trial? Hamdi

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

US Citizens still get

DUE PROCESS
(whatever that is)

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

14th Amendment: Incorporation of the Bill of Rights

Does it violate the

Privileges and
Immunities Clause?

PROBABLY NOT.
CLAUSE BASICALLY
USELESS. Does not even
protect basic human
rights.

BUT

Does it interfere with

your rights flowing from
disinct relation of a US
Citizen to the Federal
Government?

INCORPORATED

Does it violate the

Due Process Clause?
YES
Selective
Incorporation
Palko

Could actually be protected:

1. RIGHTS INHERENT
IN THE UNION
2. right to petition Congress
3. right to vote for fed gov
4. right to enter public lands
5. right to interstate travel
6. right to travel on seas
etc.

Essential to
fundamental
fairness?/Central
to American
justice (Duncan)

Deeply
rooted in
history and
tradition?

1st Amendment (free speech and religion)

2nd Amendment (bear arms McDonald v. Chicago)
4th Amendment (unreasonable search & seizure)
5th Amendment (self incrimination and takings)
6th Amendment (criminal procedure rights)
8th Amendment (cruel and unusual punishment)

NOT YET INCORPORATED

NO

3rd Amendment (quartering soldiers)

5th Amendment (right to grand jury in criminal cases)
7th Amendment (right to jury in civil cases)
8th Amendment (right against excessive fines)
[NO CASES HAVE ADDRESSED THESE YET]

The Equal Protection Clause

Does the law involve
RACIAL
DISCRIMINATION?

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

Brown was PRO-INTEGRATION

so should have more deferential
standard when state is trying to
integrate
Three Part Test:
1) Historical and Remedial
Element: interest in setting right
the consequences of prior
segregation
2) Educational Element: overcome
adverse educational effects of
highly segregated schools
3) Democratic Element: Produce
educational environment that
reflects "pluralistic society"

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

Substantive Due Process

Economic Right

Non-Economic Right

NOT FUNDAMENTAL
West Coast Hotel (upheld minimum wage laws for
women)

STEP ONE

Does the law affect PAST contracts?

YES
Contracts Clause

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

Carolene Products n. 4: more scrutiny for laws when "political

process" can't be trusted (minorities)

Define the Right: what level of abstraction should

be used?
ALL OTHERS
Glucksberg: "careful
description" (i.e.
abortion)

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

1. COMPELLING GOV'T INTEREST

2. NARROWLY TAILORED
very strong interest in protecting the right

Yes, the RIGHT TO ABORTION

UNDUE BURDEN

State regulation cannot have PURPOSE OR

EFFECT OF PLACING A SUBSTANTIAL
OBSTACLE in path of woman seeking abortion
(Casey)

No, it's NOT A FUNDAMENTAL

RIGHT
RATIONAL BASIS

Gov't only needs to show a rational basis: any

conceivable rational relationship to any
legitimate purpose (Lee Optical) Lawerence might
complicate this re: morality as state interest

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