Does the Plaintiff Have Standing?

First check
CONSTITUTIONAL Lujan: no standing because they
STANDING failed to sho concrete interest (no
Is the injury concrete and actual plans to visit); can't just sue as
particularized? citizen who is harmed by gov't, too
gerenalized
Is there a personal INJURY?
Mass v. EPA: standing because state
Is the injury actual and owned coastline being harmed by
imminent? global warming; probably more
YES NO lenient because its a state (states
can't vote, only citizens)
NO
STANDING
Allan v.Wright: no standing for
Is the harm actually caused by parents because discrimination was
the defendant/challenged caused by schools, not IRS's failure
action? to penalize some discriminatory
Is there CAUSATION? schools
Is the defendant/challeneged Mass v. EPA: standing because EPA's
action a but for cause of the failure to regulate emissions
harm? "contributes" to MA's injuries in a
YES NO
direct way

NO
STANDING Lujan: applying the standard globablly
Is the injury redressable by the wouldn't necessarily redress harm.
court? possible v. likely
Mass v. EPA: even though remedy
Is there a REMEDY? sought is a very small portion of the
Is it likely that a favorable
decision will redress it? total harm, still redressable;
incremental steps argument
YES NO

Plaintiff must assert
Const'l NO
own rights, not the rights of
Standing STANDING
a 3rd party
Zone of Interest: Plaintiff
Is there prudential standing?
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?
STANDING IS ALL GOOD, go on to POLITICAL
QUESTION
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 "quasi-
sovereign"
 Is the Issue a Political Question?
NON-JUSTICIABLE
Luther: Guaranty Clause commits enforcement of
Is this a case with a textually "republican form of government" to other
YES
demonstrable commitment to branhces
another branch? Nixon: impeachment proceedings committed to
Senate

JUSTICIABLE
Baker v. Carr: not textual commitment in Equal
NO 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
Are there judicially discoverable/
NO and it should be left to legislature to define
manageable standards for
Nixon: "trying" a case has broader meaning that
resolution of this issue?
"proceedings" and lacks precision to afford
judicially manageable standard of review

JUSTICIABLE
Baker v. Carr: Judicial standards for Equal Protection
YES 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 NO NON-
determination clearly for non- JUSTICIABLE
judicial discretion?

YES
YES JUSTICIABLE!
Is there a need for finality or Check Jurisdiction
deferral to political branch NO
decision?

Separation of Powers/Structrual argument: should

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?
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)

SCOTUS can review decisions of state courts despite

arguments of sovereignty. Martin v. Hunter's Lessee: need for uniformity
Is this a review of a state court decision? 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

State officials and legislatures are bound by SCOTUS

Is this a review of state law or actions of decisions. Cooper v. Aarron (integrating AK schools after Brown). Marbury:
state officials? SCOTUS says what the law is, states bound by SCOTUS interpretations and
decisions. Structural argument: need for uniformity of interpreting laws

Congress may create exceptions to SCOTUS's appellate

Is Congress attempting to strip
SCOTUS of its jurisdiction?
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

No president has directly challenged a SCOTUS ruling.

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

Discretionary and/or Political Presidental Nomination and

Judges can be impeached for "high
acts are not reviewable by the Senate Confirmation are checks
crimes and misdemeanors"
court on the Court
 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 The ends must be legitimate and the means
expedient, does not need to be essential. must be appropriate.

Means must be
clause is meant to Gives
"necessary" is "plainly Means cannot
in section granting, enlarge, not incidental
qualified by adapted" to the be pretext.
not restricting, circumscribe powers, does
"absolutely" in end and not (no articulated
powers powers of not create
other provisions prohibited by standard for this.)
congress great ones.
the Const.

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

The 10th Amendment is a rule of
in the 10th amendment are limited to the power
construction. Tells us not to make an inference
which could be reserved at the time they
of the general prohibition to the states because
were given (i.e. powers that the states had at the time
it's not a power specifically given to the states.
the 10th amendment was written.)
This does not make the 10th amendment a
reservoir of power to the states, simply a way to
guide our interpreation.
US Term Limits v.Thornton

"It is a Constitution we are

Representatives Might worry this
State's can create owe primary is a power federal expounding" (McCulloch v. Maryland)
their own allegiance to the gov is unlikelyl to Constitution meant to be an outline that grants
qualifications for people of the check itself on, but powers to the federal government, which in turn
federal offices Nation, not the can't be checked
state by the states maens it should be able to exercise those powers.
 Is it within Congress's Commerce Power?
Does the law regulate the state itself?
NO YES

Internal Limits (Text) External Limits (10th Amnd)

Activity being regulated MUST fit in one of the In general the 10th Amendment only applies for
following categories (Lopez): commandeering

Channels of Instrumentalitiesof Substantial Effect

Anti- 10th Amendment
Interstate Interstate on Interstate
Comandeering Doesn't Apply
Commerce Commerce Commerce

Non- Federal Government CAN'T order State

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
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
Economic Government to legislate (New York v. US)
Activity 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 ANTI-
COMMANDEERING IT HAS TO BE ESSENTIAL
FUNCTION OF THE STATES AND NOT
GENERALLY APPLICABLE TO THE PEOPLE/
CORPORATIONS
(Reno v. Condon)
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. IS THIS
Neither Regulation in Lopez struck down, but passed DEFINE THE
when added "has traveled through interstate NECESSARY
congressional fact ACTIVITY
commerce" to modify the guns being AND PROPER?
finding nor state regulated)
support are SCALIA DISSENT: can use N&P Clause to
dispositive (although regulate broader regulatory schemes
they can be helpful) regardless of how local/non-economic hte
activity is Art. 1, 8, cl. 3: "To regulate commerce
Morrison - because CAN'T USE AGGREGATION FOR with foreign nations, and among the
of Marbury & NON-ECONOMIC ACTIVITIES (Raich, several states, and with the Indian
Supremacy Clause Morrison) 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."

Dole Congress need not

The spending power Raise drinking age or lose 5% of highway funding only spend in
is an independent connection with an
power
Sebelius enumerated power
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 CLEARLY CONNECTED Not otherwise NOT

WELFARE STATED to funding unconst'l COERCIVE

Rationally connected; drinking Lose all funding = Coercive

Defining "general welfare" left
age -> drunk drivers -> Lose future funding = Not
to Congressional discretion
highway funds Coercive

Separation of Powers: Executive Immunities

Presumptive Executive Privilege Immunity from Civil Liability

Not in the Constitution, created/recognized by the Official Actions Unofficial Actions

Court; NOT ABSOLUTE US v. Nixon

ABSOLUTE
IMMUNITY NO IMMUNITY
Balancing Test:

Immunity during office Suits regarding private

is required for allowing conduct do not run the risk
the President to of changing the President's
President's Factors: performance of his
preform his duties constitutional duties (as far
interests v. confidentiality, Accommodation
countervailing national security, (e.g. redacting) without being "unduly as being "unduly cautious"
interests military, etc cautious" goes)
Nixon v. Fitzgerald Clinton v. Jones
 Separation of Powers: Legislative Powers
Delegation of Legislative
Powers

Intelligble Bicameralism &

Principles Presentment
Non-Delegation Doctrine: DEAD
Impossible not to delegate in age of
administrative agencies
Mistretta In order to enact legislation (purpose
Congress may delegate but must and effect of altering legal rights,
provide "intelliglble duties, and relations of persons outside
principles" to guide the the legislative branch), the process
agency exercising the delegated must formally follow the
power. (Clinton v. NY) Constitution
Bowsher
"Intelligible LEGISLATIVE Clinton v. NY INS v. Chada Removable by
principles" can be as OFFICERS CANNOT LINE ITEM VETO LEGISLATIVE VETO Congress =
vague as "in the ENFORCE NOT OK NOT OK Legislative Officer
public interest" LEGISLATION

Separation of Powers: Executive and Judicial Power

CONGRESS can vest the
Appointment Powers appointment of "inferior Impeachment
officers" in a) the president alone
b) the courts of law c) heads of
executive departments. Art. 1 2: House has sole power
PRESIDENT can appoint: a) CONGRESS CAN NOT to impeach; Art. 1 3 Senate
ambassadors b) public ministers RESERVE POWER TO holds trial; Conviction requires
and consuls c) SCOTUS justices ITSELF. 2/3 of members present
d) officers of the United States
with advice and consent of
the Senate INFERIOR No consensus on definition
OFFICER? of "high crimes and
misdemeanors"
Clause does not require
Subject to removal by higher impeachment
Office limited in tenure?
exec official?

Do the removal restrictions

Empowered to perform only impede the president's
Office limited in jurisdiction?
certain, limited duties? ability to perform his
constitutional duty?
Morrison v. Olson
Can remove at will only
"purely executive
PRESIDENT officers" Unclear whether any
executive official serves Court has not
Humphrey's Executor defined
completely at
Removal president's pleasure "constitutional
Powers duties" nor how
central those duties
No power to remove "quasi-legislative/judiical" must be before an
executive officer outside of officers can be limited
CONGRESS impeachment.
official is removable
from removal at will, or at will.
Bowsher at all
 Separation of Powers: Emergency Powers
Presidential Powers in Domestic Affairs: Youngstown Framework
Justice Jackson Justice Jackson Justice Jackson
Justice Black F Category 1 Category 2 Category 3
u Congressional grant
VERY TEXTUAL
F Preseident only has n MAXIMUM of denial of power LEAST AMOUNT
o authority from ACTS c AMOUNT OF is absent OF POWER
POWER Can only rely on his May rely only on
r OF CONGRESS or t
the Acts pursuant to independent power + independent power
m i express or implicit 'zone of twighlight' minus
CONSTITUTION
a itself o authorization of in which Congress/Pres constitutional
l THEATRE OF WAR n Congress have concurrent powers of
exception Presumption in favor of authority or distribution congresss over the
i a presidental action is uncertain. matter
Only Congress can make
s l INVALIDATION = Congressional inertia/ Scrutinized with
laws; Presidential actions
t are equivalent to i FEDERAL GOV AS indifference/quiecence caution
Congressional law s WHOLE LACKS may as a practical matter Equilibrium of
making THE POWER enable independent Constitution is at stake
t presidential action

Constitution seems Frankfurter: if there is a

clear: read like a Code Theatre of War = Look to HISTORY
long tradition of 'Twilight Zone' gives
(Chada) When less clear, Actions Abroad during and
allowing the behavior Court a lot of power
BALANCE THE wartime CONSEQUENCE
action might be OK
POWERS

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
Military Tribunals
trial? Hamdi

CLOSER TO WAR =
Const'l Unconst'l MORE LIKELY Const'l Unconst'l
EMERGENCY POWER IS
CONSTITUTUIONAL PLURALITY DISSENT
1) Outside Theatre of
Unlawful War AUMF puts this in AUMF in tension
Combatants (US 2) Where hostilities Category 1 with Non-
Ctizens or have ended Historically have
3) Civilian trials Detention Act and
otheriwse) unconncected to taken POWs, don't puts this in
Ex Parte Quirin military service want to encourage Category 3
4) When civilian courts US Citizens still get killing upon Congress must
are open capture out of fear
DUE PROCESS suspend Habeaus
Ex Parte Milligan
What is the (whatever that is) we can't detain under Art 1 9 cl
"theatre of war" 2
post 9/11?
 14th Amendment: Incorporation of the Bill of Rights
PROBABLY NOT.
Does it violate the CLAUSE BASICALLY
Privileges and USELESS. Does not even
Immunities Clause? protect basic human
rights.
Does it interfere with
BUT your rights flowing 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.

INCORPORATED
Does it violate the 1st Amendment (free speech and religion)
Due Process Clause? 2nd Amendment (bear arms McDonald v. Chicago)
4th Amendment (unreasonable search & seizure)
YES 5th Amendment (self incrimination and takings)
6th Amendment (criminal procedure rights)
Essential to Deeply 8th Amendment (cruel and unusual punishment)
Selective fundamental rooted in
Incorporation fairness?/Central
to American history and
Palko
justice (Duncan) tradition? NOT YET INCORPORATED
3rd Amendment (quartering soldiers)
NO 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

REHNQUIST PLURALITY
RACIAL CURRENT Prohibits ANY DISCRIMINATION on basis of race
DISCRIMINATION? DOCTRINE: Protects white kids
Parents Involved "The way to stop discrimination on the basis of race is to
stop discriminating on the basis of race"

STRICT SCRUTINY
KENNEDY CONCURRENCE
BREYER DISSENT Recogonized COMPELLING state interest in avoiding racial
Brown was PRO-INTEGRATION isolation, BUT not NARROWLY TAILORED
COMPELLING so should have more deferential Suggets other means to combat racial isolation: a) strategic
standard when state is trying to site selection; b) redrawing attendance zones; c) magnet
state interest integrate programs; d) recruiting students in targeted fashion; e)
Three Part Test: tracking enrollments/performance/etc based on race
1) Historical and Remedial
law is NARROWLY Element: interest in setting right
TAILORED to state the consequences of prior
segregation Carolene Products n. 4
interset 2) Educational Element: overcome Courts will not defer to legislature
adverse educational effects of when law affects "discrete and
LEAST highly segregated schools
3) Democratic Element: Produce insular minorities" because of
DISCRIMINATORY
educational environment that worry political process won't protect
MEANS POSSIBLE reflects "pluralistic society" them
 Substantive Due Process
Economic Right Non-Economic Right

NOT FUNDAMENTAL STEP ONE

West Coast Hotel (upheld minimum wage laws for
women) Define the Right: what level of abstraction should
be used?

Does the law affect PAST contracts? SEXUAL

ALL OTHERS AUTONOMY
YES NO Glucksberg: "careful OR Lawerence: broad
description" (i.e. description (i.e.
abortion) reproductive
Contracts Clause Rational Basis Test freedom)

Blaisdell: Ok to interfere
RATIONAL BASIS? STEP TWO
Defer to legislature
with contracts in an Conceivable rational basis is
emergency; pretty much enough (post hoc review)
guts CC; Majority: Is the right FUNDAMENTAL?
Lee Optical
Constitution needs to be
interpreted in modern light
Reasonable means to Lawerence:
or the document doesn't Glucksberg:
legitimate end?
work; EXCEPTION: US laws and traditions of
law doesn't have to be in DEEPLY ROOTED
Trust v. NJ says state cannot
every respect logically & recent past show
revoke it's OWN
consistent with its aims EMERGING
obligations Implicit in the OR
Lee Optical
concept of AWARENESS that
ORDERED liberty gives
LIBERTY protection to rights in
question
Carolene Products n. 4: more scrutiny for laws when "political
process" can't be trusted (minorities)
STEP THREE

APPLY THE TEST

Yes, it is a FUNDAMENTAL 1. COMPELLING GOV'T INTEREST

RIGHT 2. NARROWLY TAILORED
STRICT SCRUTINY very strong interest in protecting the right

State regulation cannot have PURPOSE OR

Yes, the RIGHT TO ABORTION EFFECT OF PLACING A SUBSTANTIAL
UNDUE BURDEN OBSTACLE in path of woman seeking abortion
(Casey)

No, it's NOT A FUNDAMENTAL Gov't only needs to show a rational basis: any
conceivable rational relationship to any
RIGHT legitimate purpose (Lee Optical) Lawerence might
RATIONAL BASIS complicate this re: morality as state interest
 Justiciability

Advisory Political
Standing Timliness
Opinions Questions

1. Injury 1. Mootness 1. Textually Demonstrable

Nope.
2. Causation 2. Ripeness Commitment
3. Remedy 2. Judicially Manageable
Congressional Standards
3. Initial Policy Determination
Powers 4. Need for finality

Necessary and Commerce

Spending Power
Proper Clause Power

1. Plainly Adapted 1. Limit of 'general 1. Channels/

2. Not Prohibited welfare' Transportation
Elsewhere 2. Nexus Constraint 2. Instrumentalities
3. Means cannot be 3. Not Coercive 3. "Economic Activity"
pretext
Separation of
Powers

Executive and Emergency Executive

Legislative Power
Judicial Power Powers Immunities

1. Intelligible Principles 1. Appointmnet 1. Domestic Affairs 1. Executive

2. Bicameralism & 2. Removal 2. Foreign Affairs Privilege
Presentment 3. Impeachment 3. War Powers 2. Civil Liability

Individual Rights Abortion Undue

or Related Burden

Non- Fundamental
Economic
Strict
Not Scrutiny
Privileges and Fundamental
Equal Protection Incorporation of Substantive Due
Immunities
Clause Bill of Rights Process Rational
Clause Basis
Strict
Useless. Selective Not
Scrutiny Economic Fundamental
Minimum
Rationality