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Does the Plaintiff Have Standing?

First check CONSTITUTIONAL STANDING 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

Is the injury concrete and particularized? Is the injury actual and imminent?

Is there a personal INJURY?



Is the harm actually caused by the defendant/challenged action? Is there CAUSATION? 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?

Is there a REMEDY?

YES Const'l Standing

NO NO STANDING Plaintiff must assert own rights, not the rights of a 3rd party
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"

Is there prudential standing?

Zone of Interest: Plaintiff must allege and interest the statute was designed to protect No generalized grievances or injuries that affects all people equally

Not an advisory opinion?

Case is ripe but not moot?


Is the Issue a Political Question?

Is this a case with a textually demonstrable commitment to another branch? YES NON-JUSTICIABLE Luther: Guaranty Clause commits enforcement of "republican form of government" to other branhces Nixon: impeachment proceedings committed to Senate!


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 NON-JUSTICIABLE Luther: "republican form of government" is unclear and it should be left to legislature to dene Nixon: "trying" a case has broader meaning that "proceedings" and lacks precision to afford judicially manageable standard of review

Are there judicially discoverable/ manageable standards for resolution of this issue?



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? YES



YES Is there a need for nality or deferral to political branch decision? NO

JUSTICIABLE! Check Jurisdiction

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 unied 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: reafrmed 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 ofcials?

State ofcials 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?

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

Is the President trying to ignore a SCOTUS ruling?

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.

Discretionary and/or Political acts are not reviewable by the court

Presidental Nomination and Senate Conrmation 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 Ofcer thereof."

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 qualied 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

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 specically 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.

State's can create their own qualications for federal ofces

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

"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?
NO Activity being regulated MUST t in one of the following categories (Lopez): Channels of Interstate Commerce Instrumentalitiesof Interstate Commerce Substantial Effect on Interstate Commerce
NonEconomic Activity


Internal Limits (Text)

In general the 10th Amendment only applies for commandeering AntiComandeering 10th Amendment Doesn't Apply

External Limits (10th Amnd)

Economic Activity

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

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 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. Dene activity BROADLY: Raich (growing for at home consumption counts as production) CAN AGGREGATE COMMERCIAL ACTIVITY (Wickard) Production, distribution, consumption, black markets

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 ofcials are federal employees

Neither congressional fact nding nor state support are dispositive (although they can be helpful) Morrison - because of Marbury & Supremacy Clause

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)



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:



CONNECTED to funding

Not otherwise unconst'l


Dening "general welfare" left to Congressional discretion

Rationally connected; drinking age -> drunk drivers -> highway funds

Lose all funding = Coercive Lose future funding = Not Coercive

Separation of Powers: Executive Immunities

Presumptive Executive Privilege Immunity from Civil Liability Ofcial Actions ABSOLUTE IMMUNITY
Immunity during ofce is required for allowing the President to preform his duties without being "unduly cautious" Nixon v. Fitzgerald

Not in the Constitution, created/recognized by the Court; NOT ABSOLUTE US v. Nixon

Unofcial Actions

Balancing Test:


President's interests v. countervailing interests

Factors: condentiality, national security, military, etc

Accommodation (e.g. redacting)

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) "Intelligible principles" can be as vague as "in the public interest"

Non-Delegation Doctrine: DEAD Impossible not to delegate in age of administrative agencies Mistretta

Bicameralism & Presentment

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 Ofcer



Separation of Powers: Executive and Judicial Power

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

Art. 1 2: House has sole power to impeach; Art. 1 3 Senate holds trial; Conviction requires 2/3 of members present No consensus on denition 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 ofcial serves completely at president's pleasure "quasi-legislative/judiical" ofcers can be limited from removal at will, or at all Court has not dened "constitutional duties" nor how central those duties must be before an ofcial is removable at will.

PRESIDENT can appoint: a) ambassadors b) public ministers and consuls c) SCOTUS justices d) ofcers of the United States with advice and consent of the Senate

Ofce limited in tenure?

Subject to removal by higher exec ofcial? Empowered to perform only certain, limited duties?

Ofce limited in jurisdiction? Can remove at will only "purely executive ofcers" Humphrey's Executor


No power to remove executive ofcer outside of impeachment. Bowsher

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

F u n c t i o n a l i s t

Justice Jackson Category 1

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

Justice Jackson Category 2

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 Look to HISTORY and CONSEQUENCE

Justice Jackson Category 3

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

Constitution seems clear: read like a Code (Chada) When less clear, BALANCE THE POWERS

Theatre of War = Actions Abroad during wartime

Frankfurter: if there is a long tradition of allowing the behavior action might be OK

'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

Military Tribunals

US Citizen held without trial? Hamdi Const'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 Unconst'l DISSENT AUMF in tension with NonDetention Act and puts this in Category 3 Congress must suspend Habeaus under Art 1 9 cl 2

Const'l Unlawful Combatants (US Ctizens or otheriwse) Ex Parte Quirin

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

What is the "theatre of war" post 9/11?

US Citizens still get DUE PROCESS (whatever that is)

14th Amendment: Incorporation of the Bill of Rights

PROBABLY NOT. CLAUSE BASICALLY USELESS. Does not even protect basic human rights. Does it interfere with your rights owing from disinct relation of a US Citizen to the Federal Government? 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.

Does it violate the Privileges and Immunities Clause?


Does it violate the Due Process Clause? YES Selective Incorporation Palko
Essential to fundamental fairness?/Central to American justice (Duncan)

Deeply rooted in history and tradition? NO

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)


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 nes) [NO CASES HAVE ADDRESSED THESE YET]


The Equal Protection Clause

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"

CURRENT DOCTRINE: Parents Involved

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 reects "pluralistic society"


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

Non-Economic Right
Dene the Right: what level of abstraction should be used? ALL OTHERS Glucksberg: "careful description" (i.e. abortion) SEXUAL AUTONOMY Lawerence: broad description (i.e. reproductive freedom)

Does the law affect PAST contracts? YES Contracts Clause NO Rational Basis Test


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

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

Is the right FUNDAMENTAL? Glucksberg: DEEPLY ROOTED & Implicit in the concept of ORDERED LIBERTY Lawerence: laws and traditions of recent past show EMERGING AWARENESS that liberty gives protection to rights in question


Carolene Products n. 4: more scrutiny for laws when "political process" can't be trusted (minorities)



1. COMPELLING GOV'T INTEREST 2. NARROWLY TAILORED very strong interest in protecting the right State regulation cannot have PURPOSE OR EFFECT OF PLACING A SUBSTANTIAL OBSTACLE in path of woman seeking abortion (Casey) 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


Standing 1. Injury 2. Causation 3. Remedy Timliness 1. Mootness 2. Ripeness Advisory Opinions Nope. Political Questions 1. Textually Demonstrable Commitment 2. Judicially Manageable Standards 3. Initial Policy Determination 4. Need for nality

Congressional Powers
Spending Power 1. Limit of 'general welfare' 2. Nexus Constraint 3. Not Coercive

Necessary and Proper Clause 1. Plainly Adapted 2. Not Prohibited Elsewhere 3. Means cannot be pretext

Commerce Power 1. Channels/ Transportation 2. Instrumentalities 3. "Economic Activity"

Separation of Powers
Executive and Judicial Power 1. Appointmnet 2. Removal 3. Impeachment Emergency Powers 1. Domestic Affairs 2. Foreign Affairs 3. War Powers Executive Immunities 1. Executive Privilege 2. Civil Liability

Legislative Power 1. Intelligible Principles 2. Bicameralism & Presentment

Individual Rights
NonEconomic Equal Protection Clause Strict Scrutiny Privileges and Immunities Clause Useless. Incorporation of Bill of Rights Selective Substantive Due Process Economic

Abortion or Related

Undue Burden

Fundamental Not Fundamental Rational Basis Not Fundamental Minimum Rationality Strict Scrutiny