Constitutional Law 4.23.

2014

● Exam - 3 hours, closed book, 5 essay questions, 12 multiple choice

● Each question will be weighted the same and 12 multiple choice will be weighed as one
essay question (30 minutes or less on each essay and 30 minutes or less on the multiple
choice)
● Six areas relevant issue formulation
● 7th area is baseline and private power - issues are repetitive from the first six
● Answers are based on relevant law - Cases; responsible for rules coming from those
cases and/or covered in class
○ Essay question answers: don’t need to know case names but should know basic
rules and how to apply them
○ Multiple choice - case names may be relevant
○ How to answer essay: IRAC form.
■ Issue - one sentence
■ Rule - one sentence
■ Application - apply rule to the facts of the hypothetical essay question;
longest particular answer section that may have 6 to 15 sentences. Short
and sweet
■ Conclusion - one sentence who wins or loses
○ It’s all about what the current law is and the approach they use. No fancy
originalist or non-originalist stuff; no theory unless the justices say that theory is
applicable.
○ If there is an exception to the rule and if that exception is applicable, then you
would state the rule and the exception
■ Then, apply the exception to the facts.
■ If the exception is not applicable, don’t worry about it and do not include
it.
■ Format should be: “The rule is… The exception is… The conclusion is…”
○ Each essay question will have one issue and it will indicate whether to rule on
procedural or substantive issues in the question.
■ Can’t get a point in the conclusion if you don’t get a ½ or 1 point in the
application
■ No partial credit except in the application
● Multiple choice: pick the one that is most correct - 2 ½ minutes per question
● Not responsible for new ruling in affirmative action (Sweatt decision)
● Tough aspect of test: identifying issue [there will be camouflage] and applying the facts
● Office hours: 4/29: 2pm to 4pm, 4/30: 2pm to 4pm, 5/5; 2pm-4pm; not available after 5/5

Con Law Rules

● Knowing the rules and when to apply them
● Constitution is one of enumerated powers. Under constitution, power is divided into 3
branches: legislative, executive, and judicial.
● Congress makes the laws, President enforces the law, and judiciary interprets the law
● Division is known as seperation of powers accompanied by limitations
● Each branch has a check on the other branches
● The executive may vetoo the legislative
● The legislative may impeach the executive
● the executive appoints the judicial
● Judicial interprets legislative
● Interpretation is limited
● Limitations is case and controversies limitation
● This limiation prevents courts: issuing advisory opinions, deciding political questions,
deciding cases where litigants do not have standing, and deciding cases that are
premature or moot
● These limitations prevent court for reaching the merits of a particular dispute
● Two aspects to standing: 1) must have an injury in fact and 2) must be a nexus
● In terms of injury in fact: injury must be distinct and not abstract, nexus - traceable to the
challenged action, relief from injury must be likely to follow from favorable decision
● All three are necessary for litigant to have standing
● In interpreting legislative branch, Marbury v. Madison violation of legal rights subject to
judicial review
● The exception is that executive branch violations of legal rights that are political in
nature, are not subject to judicial review.
● As to political questions, court determines presence of political question: 1) constitutional
commitment to coordinate political department, that department can be legislative,
executive or to the states; 2) lack of judicial standards; 3) impossible to decide without
initial policy determination; 4) court resolution will show lack of respect for another
branch of government; 5) need to adhere to a political decision already made; 6)
potential of embarassment through multiple pronouncements.
● Presence of any of these is political queestion; absence of all is no political question
● the constitution distribute enumerated powers two ways: horizontally and vertically;
horizontally between 3 branches of federal government and vertically between federal
government and state/local governments
● this seperation of powers aspect is known as federalism
● Under 10 amendment, those powers not delegated to federal reserved to states and the
people
● Under the Constitution, distribution of national powers varies from domestic and foreign
affairs.
● relatively few cases in these areas
● as to domestic affairs, in deciding disputes between congress and president, supreme
court relies 1) historical precedent and 2) constiuttional text; 3) constitutional structure;
4) informal practice
● president has certain powers over domestic affairs including seizures and privilege
● as to seizure, president authority based on 2 sources: 1) acts of congress and 2)
constitutional authority
● such authority may be express or implied
● main sources of constiutional authority for executive: 1) commander in chief power and
2) executive clause power and 3) take care clause power
● taking private property is legislative not execution - youngstown
● commander in chief power does not include private power - youngstown
● commander in chief is vastly limited in domestic
● take care clause power is limited in carrying out policies of legislative
● president may not set his or her power and then carry it out
● in establishing implied staturoty authorization: 1) no express congressional dissaproval;
2) history of acquiesence in congress; 3) implied congressional approval through related
legsialive
● congress has certain powers over domestic affairs
● in exercising this power, congress has employed several devices including veto
● in limiting congress power, supreme court determined that veto constitutes legislation
subject to requirements of Article 1 of constitution
● whether an activity constitutes legislatiion is determined by character and effect
● as to presidential privilege, seperation of powers principle does not require absolute
privilege or immunity from prosecution
● as to foreign affairs, supreme court has been less active in resolving disputes and
leaving decision to political rather than judicial resolution
● president has more authority over foreign affairs than domeestic affairs
● cases reflect judicial preference or executive power when issue is foreign affairs
● treaty must be self executed in order to be binding on domestic law
● whether treaty is self execting depends on intent as established in ratification process
● only congress may establish such intent
● the constiuttion gives congress power to regulate commerce
● that power includes three broad categories to regulate: 1) the instrumentalities of
interstate commerce including personnel; 2) commodity in the current or stream of
interestate commerce; 3) local activities having substantial impact on interestate
commerce
● three tests are applied: 1) instrumentalities of commerce - plenary power (unlimited).
Once action deemed commerce as instrument, congress may regulate; 2) movement
from one state to another that ends in transit, activities are part of current or stream or
channels of commerce and may be regulated; 3) as to local activties - substantial effects
test in terms of determinin gall similar local activity is counted together
● the court has interpreted commerce cluase as grnat of power to congress but as a
restriction to state power
● restriction is referred to as dormant commerce clause
● court applies three prong test to uphold local and state regulations: 1) legitimate public
interest; 2) effect of interestate commerce incidental; 3) burden on interstate commerce
must not be excessive
● ther eare three exceptions to constitutional protection against economic distribution
under DCC: 1) market participant doctrine; 2) alcohol; 3) congressional consent or
preemption
● as to these three: DCC is an indirect restraint on state economic regulatory powers.
Market doctrine creates an exception to such restraint when state acts as trade
participant rather than normal capacity as trade regulator
● 21st amendment creates exception for state regulation of alcohol;
● congress may exempt or preempt any locall or state regulation, thus DCC issues -
congress not court has final word
● constitution provides equality through EPc; defining equality has not been easy
● Examining whether statute abides by to EPC has been rational basis test
● cour tseems to determine whether classification and - 2 prong approach: government
purpose is legitimate (legally permissible) and whether there is any connection to
classification and legitimate purpose
● Rational basis test characterize as low level scrutiny test because court undergoes
cursory examination to the nexus of them eans and ends
● court concerned only with detemrining purpose is legitimately and classification is not
completely irrational
● That determination is not searching because they do not need to identify the exact
purpose only that some connection whatever that may be exists
● the court does look very carefully at determining the real govenrment purpose amd
whether that purpose is legitimate
● classficiation challenged under EPC are generally reviewed under rational basis
epecially when economic or commercial activity
● certain classification that involve economic or commercial have been determined to be
suspect classificaiton and test have been characterized as heightened review because
court undergoes more searching inquiry between means and ends
● two such classificaiton determine deserving heightened scrutiny even when commercial
aspects may be in effect: race and alienage
● such heighened scrutiny approach is appropriate because it involves discrete and insular
minorities therefore immediate suspect and closely scrutinized because of prejudice that
might be entailed in ordinary process
● the heighest form: strict scrutiny. in order to uphold classification subject ot strict
scrutiny: compelling overnment interest and classficiation must be narrowly tiailored to
achieve that compelling interest
● classifciation other than commercial or economic, other than race or alienage, have also
been subjected to strict scrunty analysis
● classification involving gender fall into this category
● while not suspect class, gender has received heightened scrutiny; intermediate scrutiny
ltest
● INtermediate scrutiny - must be examined to determine: 1) importnt government interest
and 2) whehter or not it is substantially related to achieving important interest
● heightened review also applied to social or economic classification that involve
fundamental right
● fundamental right basic rules: government action that discriminates fundamental right
subject to strict scrutiny under EPC
 ● in order to EP fundamental right, right must be express or by implication, guaranteed by
constitution
● controversial provisions where implied fundamental rights have been identified include
14th amendment liberty clause and EP clause
● supreme court identified some fundamental rights: voting, access to judicial process and
interestate travel
● the supreme court has determined that welfare and education while significant are not
implied fundamental rights under the EPC
● implied fndamental rights identified under DPC are referred to as substantive due
process rights
● activities covered that fall within definition of ordered or traditional forms of liberty
● areas covered: privacy, personhood and family
● wide areas of activity determined to e covered from contraception to choice of clothing
by students
● generally, the court applies strict scrutiny to alleged infringements of substantive due
process rights
● an exception for abortion, court applies undue burden test
● an exception in the right to refuse treatemtn, court applies straight balancing test
● aassisted suicide is not a fundamnetal right under substantive due process
● for homosexual activities and other family privacy issues, court applies absolute
approach, no itnereference when activity is deemed fundamnetal right
● constitution has baselines 1) state private distinction - general constitutional
requirements are directed at government not private entities
● whether a provision empowers congress to act against private depends upon how court
characterizes particular provision. court looks at text analogous and intent of the framers
● based on these factors, the 14th amendment characterized as empowering congress to
act only against state activity.
● 13th amendment and commerce clause have been identified as plenary powers
authorizing congress to act against private activity as well as state
● defined state action - 1) state party and 2) that state party caused the deprivation
● what constitutes state party: state law or action by state official
● what constitutes attribution: generally there is no affirmative duty to protect private
individuals from harm; mere acquiesence does not constitute attribution
● neither does state licensing or authorizatoin; state subsidization of private activity is
attirubtable to the state

Essay questions: let the question speak for itself, don’t let your subjective mindset look for
irrational issues
Focus on factors that are critical - rational review for example - whether or not there is some
presence of animus or the real purpose of the statute and the real purpose is an illegal purpose
the court will strike down
court will strike down if there is an invidious purpose or some kind of evil
Racial discrimination in private places can be looked at from 13th amendment and Commerce
Clause. If it is not too direct to commerce, then use 13th, but if it is directly affecting it then
commerce clause. but 13th must have some badgery of slavery.