1. Are we trying to decide if the Supreme Court can hear the case?

a. Is the case Justiciable?

i. It must be a case or controversy as defined in Article III
ii. The case must not be an advisory opinion
1. If the decision can be overturned by another branch, it is an advisory opinion
2. A declaratory judgment is not an advisory opinion as long as the parties meet
standing
b. Do the parties meet the constitutional standing requirements?
i. Injury – must be a perceptible and recognized harm.
1. if seeking injunctive relief, must show the injury is ongoing (Lyons)
2. if seeking relief from future injuries, must show it is predictable you will suffer
the same injury
ii. Causation – causal link between injury and conduct of defendant: “fairly traceable”
iii. Redressability – Relief requested must be designed to alleviate the injury
c. Do the parties meet the prudential standing requirements?
i. Is the case a “general grievance”? If so, no standing.
1. Can’t sue as a taxpayer or citizen unless you feel a particular harm or are
challenging spending under separation of church and state
ii. Are you seeking standing as a third party? If so, no standing unless:
1. You are in the best position to protect the rights of an absent party
2. You have a special relationship with the third party AND the other party is unable
to bring its own claim AND you have standing on your own
d. The case must be ripe for review
i. You can’t sue if you haven’t been harmed by enforcement of a law UNLESS (Abbot
Labs test for pre-enforcement review)
1. It would be a significant hardship to not grant review before enforcement of the
law
2. The record is sufficient (facts undisputed) to make a decision as a matter of law
3. For criminal case – there must be an actual or imminent arrest (Poe)
e. The case must not be moot. It’s moot IF
i. The issue has passed (one of the elements creating proper standing disappears during the
case)
1. defendant in a criminal case dies
2. Parties settle
3. Law changes
ii. Exceptions that will allow a moot case to proceed
1. Wrongs capable of repetition to the same party but evading review (Roe v. Wade)
2. Defendant corrects behavior, but could resume at any time (Laidlaw)
3. Class action suits when the primary plaintiff’s case is mooted (Geraghty)
4. If the sentence for a criminal prosecution has been performed, but you still suffer
injuries because of the prosecution
f. The case must not be a “political question” – something that should be determined by the
other branches of the government
i. Is there a constitutional textual commitment of the power to some other branch? (Baker
v. Carr)
ii. Is it the kind of question that lacks manageable judicial standards? (policy
determinations, much data required)
iii. Does the case have the potential for judicial embarrassment? (Nixon)
iv. Ex: Guaranty clause (republican government – redistricting), foreign relations,
impeachment
2. Are we trying to decide if Congress has the power to do something?
a. Is this a valid exercise of power under the commerce clause?
i. Would it have been valid under Gibbons v. Ogden? (anything involving more than one
state, and anything from manufacture to consumption)
ii. Would it have been valid under Lochner?
1. Manufacturing isn’t commerce (EC Knight)
2. IntRAstate transaction must have direct effect (Schechter Poultry)
3. The law must not impinge on state police power under 10th amend (Hammer v.
Dagenhart)
iii. Would it have been valid under the new deal era?
1. Does the activity being regulated “substantially effect ISC”? (Jones & Laughlin
Steel)
2. You can aggregate the effects of the activity (Wickard)
3. Commerce clause is a valid excuse to regulate morals (Darby)
4. There is no 10th amendment issue – nothing reserved for states
5. Broad deference to congress as to what “substantially effects” (Darby)
iv. Is it valid today? (Lopez)
1. Is the thing being regulated a CHANNEL of interstate commerce (roads,
railroads)? OR
2. Is it an INSTRUMENTALITY of interstate commerce (people carrying goods in
ISC, machines in ISC (cars))? OR
3. Does the thing substantially effect interstate commerce?
a. No deference to congress – must provide evidence
b. Only aggregation if regulating commercial activities (Morrison)
4. Is the act a commandeering? (violation of 10th amendment)
a. Congress more concerned with protecting states sovereign power than
their police powers
b. Congress can’t force a state legislature to pass legislation
c. Congress can’t commandeer an executive branch official to carry out
federal policy
d. It’s not commandeering if the legislation is forcing state officials to
implement policy that is directly aimed at the states
b. Is this a valid exercise of power under the 13th, 14th, and 15th amendments?
i. Valid under enforcement clause of 14th amendment - does the federal legislation apply to
state acts? (Morrison)
ii. Is the congressional act “congruent and proportional” to the problem it is trying to solve?
(City of Borne v. Flores)
c. Is Congress trying to authorize a suit against a state government?
i. Is it a suit in federal court?
1. Has congress unequivocally expressed its intentions to abrogate state immunity
despite 11th amendment?
2. Has the government established a clear pattern of violations? (Garrett)
3. Is the act to be enforced in federal courts a valid exercise under the 14th
amendment (congruent and proportional – is the law too broad?)
ii. Is it a suit in state court? (Alden v. Maine)
1. Congress can authorize a damages suit against a state in a state court under the
same rationale it can authorize suit against a state in federal court
3. Are we trying to decide if the president is doing the right thing?
a. Is he acting under an inherent presidential power?
i. How do you tell if a presidential act is valid (Youngstown)
1. Majority - President must have express constitutional or congressional authority
2. Frankfurter – Pres has inherent powers unless they conflict with congress’ wishes
3. Jackson (the surviving rule)
a. If he is acting under express authority from congress or the constitution,
the president can do anything constitutional
b. If congress “expressly disapproves” of the presidents action, then it is
invalid
c. If there is not congressional approval or denial, then congress must look at
the situation, the gravity of the circumstances, and the necessity for the act
ii. (Zone of authority) The president has inherent authority when it comes to foreign affairs
(Curtis Wright)
b. Congress’ ability to expand presidential powers – line item veto
c. Has Congress validly delegated power to an administrative agency?
i. Non-delegation doctrine
1. Congress can only delegate authority to administrative agencies if they provide an
intelligible principle that defines the scope of the agency
ii. Has congress exercised some sort of legislative veto of an administrative act? They can’t
do that. (INS v. Chadha)
iii. Has congress validly hired or fired an executive official? (Morrison v. Olson)
1. Congress must ratify senior officials
2. Congress can’t do anything about lower officials (Olson test for inferior officer)
d. Was the president’s act regarding foreign policy valid?
i. Was he making a treaty? Requires 2/3 approval by the senate.
ii. Has he made an executive agreement with a foreign government? (Dames & Moore v.
Regan)
1. Not mentioned in constitution. May do so as long as there is not an express
congressional denial to make the particular agreement
iii. Was it a valid exercise under the war power?
1. Anything more than a temporary emergency action requires authorization of
congress
2. There must be an indication of acquiescence by congress
e. Checks on the president
i. When can the president be forced to participate in an investigation?
1. If he is claiming general executive privilege, the court gets to decide if he can
exercise that privilege (US v. Nixon)
2. If he is operating in the realm of foreign policy, national security, or the military,
he may have an unqualified privilege
ii. When can civil suits be brought against the president
1. Immune from suits arising from official acts committed when in office (Nixon v.
Fitzgerald)
2. Not immune from suits from things done prior to entering office (Clinton v.
Jones)
3. Not clear what would happen regarding actions committed outside scope of duties
while in office
iii. Impeachment
1. President can be impeached for “High crimes and misdemeanors”
2. House impeaches, senate tries the case
3. Not clear if court will step into an impeachment, unless the decision to impeach
appeared arbitrary
4. Is there a state regulation in question, and do we want to see if the state has
exceeded its bounds?
a. Is the state law preempted by a federal law?
i. Was there an express preemption in the text of the federal law?
ii. Was there an implied preemption?
1. Does the state law conflict with the federal law?
a. If the state law conflicts directly with the federal law – if you can’t comply
with one without breaking the other
b. Look out for federal standards which create a “floor” rather than an
absolute.
2. Did congress intend the federal law to occupy the whole field?
a. Only applies to immigration law as far as we know
3. Does the state law impede the objectives of the federal law?
a. May have to look at the intent behind the state & federal laws
b. Does the dormant commerce clause limit the states ability to act?
i. Does the state law discriminate against out of state citizens? If so, there must be a strong
state interest and no non-discriminatory alternative
1. Is the law discriminatory on its face? (specifically forbids out of state people from
doing something that effects ISC)
2. Does the law have discriminatory effects? (impose a huge burden on out of state
people)
3. Does the law have a discriminatory intent? (look at the legislative intent)
ii. If the state law is not discriminatory
1. Balance the state interest to be protected against the burden on interstate
commerce
iii. Exceptions to dormant commerce clause restrictions
1. Congress grants a state authority to violate the clause
2. If the state is a participant in the area, it may favor its own citizens
5. Are we protecting the civil rights of some people?
a. How does the bill of rights apply to the states?
i. Only the 14th amendment allows
ii. Using Privileges and Immunities clause to protect people from states
1. Privileges and immunities clause of 14th eviscerated by Slaughterhouse Cases
2. May be revived for people traveling between states by Sanz
iii. Using the due process clause of 14th to protect people from states
1. “Life, liberty, and property not to be taken without due process”
2. Clause interpreted to mean that some rights are so fundamental as to fall within
life, liberty, and property
3. Incorporation = defining a right as fundamental enough to apply to the states.
Only a few rights not incorporated:
a. 2nd amendment
b. 3rd amendment no housing of militia clause
c. 5th amendment right to be indicted by grand jury
d. 7th amendment right to a jury trial
e. 8th amendment prohibition of excessive fines
b. How does the bill of rights apply to private conduct?
i. State action doctrine = it doesn’t
ii. Exceptions to the state action doctrine
1. Is the private entity performing a “public function”?
a. Is it a function that is traditionally done exclusively by the government?
b. Elections, run cities, maybe utilities, doesn’t apply to malls
2. Is the private entity entangled with the state?
a. Did the state affirmatively authorize, facilitate, participate in, or encourage
the illegal activity?
b. Judicial and law enforcement actions are automatically entanglement
(Shelley v. Kraemer)
c. Government regulation/involvement
d. Government Subsidies
3. Is the private entity entwined with the state?
a. If the private organization is so similar in function and structure to the
public entity
6. Are we protecting someone’s economic liberties?
a. Does a law violate freedom to contract?
i. In the Lochner era
1. Freedom to contract is protected
2. Any law that appears to limit that freedom subjected to high scrutiny
a. States can only interfere with freedom to contract if there is a compelling
reason
b. The measures implemented by the state must be “necessary”
3. No deference to legislature as to what is a compelling reason
ii. Since 1937
1. A law that seeks to limit the right to contract must have a rational basis (does the
law protect a legitimate interest of the people)
2. Court will defer to congress as to whether the law was passed for a good reason
b. Is there a taking of property?
i. Was there a taking?
1. Was it a possessory taking?
a. Any permanent physical occupation of your land
b. Condemnation to build a road(actual taking)
2. Was it a regulatory taking?
a. Government must have some power to regulate use of land without having
to pay for it
b. Early rule:
i. if a regulation “goes too far” it is a taking (Pennsylvania Coal)
c. Penn Central Rule
i. Amount of decrease in value of property
ii. How much the regulation disappoints the investment backed
expectation of the person being regulated
iii. The character of the governmental action
1. If the public benefit greatly outweighs the private
detriment, maybe not a taking
2. If the state is making an unavoidable choice, maybe not a
taking
3. If there are widely distributed burdens and benefits, maybe
not a taking
iv. Was there a non-monetary compensation for the regulation (people
allowed to keep trees)
d. If the regulation takes away all economic value of land, it’s a taking unless
the regulation is regulating a common law nuisance
ii. Was it for a public use?
1. There is a high deference to congress as to what is a public use.