CONSTITUTIONAL LAW
ARTICLE III: FEDERAL JUDICIAL POWER
Requirements for Cases and Controversies:
1. (1) Standing: whether P is proper party to bring matter
to court
a. (a) Injury – P injured or imminently will be
injured
i. Must have personally suffered injury
ii. Injunctive declaratory relief =
likelihood of future harm
b. (b) Causation/Redressability – show D caused
injury and crt. decision will remedy it
c. (c) No 3rd Party Standing. Exceptions:
i. (i) close relationship (parent/doctor)
ii. (ii) injured unlikely to assert rights
iii. (iii) organization on behalf of members ARTICLE I: FEDERAL LEGISLATIVE POWER
if (1) members would have standing
(2) interests are germane to
organization’s purpose; (3) claim/relief
don’t require member participation
d. (d) no generalized grievances (tax
payer/citizen)
i. Except gov’t expenditures violating
Establishment Clause
2. (2) Ripeness: pre-enforcement review? (Declaratory
relief) 2 criteria considered:
a. (a) hardship suffered w/o pre-enforcement
review
b. (b) fitness of issues/record for judicial review
3. (3) Mootness: events after filing of lawsuit end P’s
injury, case dismissed as moot
a. Exceptions
i. (a) wrong capable of repetition but
evading review (ex. pregnancies)
ii. (b) voluntary cessation = if D
voluntarily halts offending content but
free to resume it at any time
iii. (c) class actions won’t be dismissed if
named P’s claim becomes moot (and 1
member still has injury)
4. (4) Political Question Doctrine: some con law
violations crts. won’t hear.
a. The republican form of gov’t clause
b. Challenges to President’s conduct of foreign
policy
c. Challenges to impeachment/removal process
d. Challenges to partisan gerrymandering
Supreme Court Review
1. Writ of certiorari
a. State Crts.- in reviewing state crt. decision,
must not be adequate + independent state law
ground for decision. If reversal on fed. ground
wouldn’t change outcome, S.Crt. can’t hear it.
b. Crt. of Appeals
c. Three judge federal district courts
2. Original J on suits between state governments
3. Must be final judgment
Lower Court Review
1. Sovereign Immunity: fed crts can’t hear suits against st.
gov’ts
a. 11th Amendment
b. Except: waiver, federal laws adopted under 14th
A., fed may sues st. gov’ts, bankruptcy
proceedings
2. Suits against state officers allowed
1. Congress’s power must be express/implied
a. No general federal police power except MILD:
i. M-Military
ii. I-Indian Reservations
iii. L-Federal Lands
iv. D-District of Columbia
b. Necessary and Proper Clause
i. Congress use any means, not prohib.
by Const., to carry out its powers
2. (1) Taxing/Spending Power
a. Congress can tax/spend for general welfare
b. 10th Amendment: all power not granted to US
nor prohibited to states reserved to states or
people = Congress cannot compel state
regulatory/legislative action. BUT, can induce
st. acts by putting strings on grants as long as
i. (1) expressly stated
ii. (2) relate to spending program
iii. (3) not unduly coercive.
3. (2) Commerce Power
a. (a) channels of interstate commerce
i. Places where IC occurs (ex. highways)
b. (b) instrumentalities of interstate commerce
i. Trucks, planes, telephones, internet,
electricity
c. (c) economic activities that have a substantial
effect on interstate commerce
i. Cannot regulate inactivity
ii. Noneconomic activity can’t be based
on cumulative impact
4. (3) Delegation of Powers
a. No limit
b. Legislative vetoes and line-item vetoes
unconstitutional
i. Must have bicameralism +
presentment
ii. President must sign/veto in entirety
 c. Congress can’t delegate exec. power to itself or 2. RULE: If Congress has not enacted laws regarding a
officers subject, a state may regulate local aspects of interstate
commerce if the regulation: (i) does not discriminate
ARTICLE II: FEDERAL EXECUTIVE POWER against out-of-state competition to benefit local
1. Foreign Policy economic interests; and (ii) is not unduly burdensome
a. Treaties
i. prevail over state laws 3. The Dormant Commerce Clause
ii. if conflict w/ fed statute, more recent a. Negative implications of Commerce Clause
controls b. State/local laws unconstitutional if place undue
b. Executive Agreements burden on/discriminate against interstate
i. Effective when signed commerce UNLESS necessary to achieve an
ii. Prevail only over state laws important gov’t purpose
c. Broad discretion in determining whether to c. Market Participant Exception
admit people into U.S. d. Court balances state interest vs. burden and
d. Broad Commander-in-Chief powers considers if less restrictive means available
e. Does apply to Corps and aliens
2. Domestic Affairs f. NOTE: states can regulate local aspects of
a. Appointment Power interstate commerce, just can’t unduly burden
i. Pres. appoints ambassadors, fed.
judges and officers of U.S. (senate 4. Privileges AND Immunities Clause (Article IV)
confirms) a. No state can discriminate against out-of-staters
ii. Congress can vest appointment of w/ regard to privileges and it affords its own
inferior officers (inferior can be fired citizens unless it is necessary to achieve an
by officer) important government purpose. Violation if:
iii. Congress can’t give itself/its officers i. (1) Law discriminates against out-of-
the appt. power staters
1. Can’t make agency and ii. (2) Discrimination concerns
appoint members of it fundamental right or important econ
iv. Pres can’t make recess appts during activity (ability to earn a livelihood)
recesses <10days b. Does NOT apply to Corps or aliens
b. Removal Power
i. Unless limited by statute, Pres can fire 5. Privileges OR Immunities Clause (14th Amendment)
any exec branch officer a. NOTE: always wrong answer unless involves
ii. To limit removal, must be officer right to travel
where independ desirable + can only
be limited to firing for good cause. 6. State Taxation of Interstate Commerce
c. Impeachment/Removal a. (1) Can’t use taxes to help instate businesses
i. Treason, bribery, high crimes + b. (2) Can only tax activities w/ substantial nexus
misdemeanors to state
d. Immunity from civil suits for money for actions c. (3) Taxation of interstate business must be
while in office fairly apportioned
e. Executive privilege for presidential papers and INDIVIDUAL LIBERTIES – GENERALLY
conversations
f. Power to pardon for fed crimes 1. Gov’t Action
a. Constit only applies to gov’t conduct
FEDERALISM b. Exceptions:
1. Preemption (The Supremacy Clause) c. (1) Public Function – Private entity performing
a. Express Preemption task traditionally done exclusively by gov’t
b. Implied Preemption d. (2) Entanglement – gov’t affirmatively
i. (a) Conflict Preemption – laws authorizes, encourages, or facilitates
mutually exclusive unconstitutional activity.
ii. (b) Federal Objective – state law i. Entanglement = enforcement of
impedes federal objective racially restrictive covenants, leasing
iii. (c) Occupy the Field Preemption – premises to racially discriminatory
intent to be exclusive in field ii. Entanglement =/= gov’t subsidy (even
c. States can’t tax/regulate fed gov’t 99%) or providing liquor license
 iii. RULE: if issue implicates race, crt 3. (2) Required Procedure (Eldridge Test - Balance):
more willing to apply exception a. (a) Importance of the interest to the individual
b. (b) Ability of additional procedures to increase
LEVELS OF SCRUTINY accuracy of fact-finding
2. (1) Rational Basis – law must be rationally related to a c. (c) Government interests
legitimate gov’t purpose (burden on challenger) d. Examples:
a. Doesn’t have to be actual purpose i. Notice and hearing BEFORE terminate
b. Applies to (among others): welfare benefits
c. (a) Alienage (if fed or related to self-gov’t) ii. Post-termination hearing AFTER
d. (b) Age, Disability, Wealth terminate SSD benefits
e. (e) Rights not fundamental = practice iii. Notice and opportunity to explain
trade/profession, right to die, education BEFORE disciplining student
iv. Notice and hearing BEFORE
3. (2) Intermediate Scrutiny – law must be substantially terminating right to child custody
related to an important gov’t purpose (burden on gov’t) v. Grossly excessive Punitive damages
a. Actual purpose only violate PDP
b. Applies to:
c. (a) Gender 4. (3) Economic Liberties
d. (b) Legitimacy a. Only Rational Basis Applies
e. (c) Undocumented Alien Children b. Ex. due process challenge to employment/trade
f. (d) State/local interference w/ private contracts reg or consumer protections laws
g. (e) content neutral speech restrictions
5. (4) Takings Clause
4. (3) Strict Scrutiny – law must be narrowly tailored to a. 5th A (applied to states through 14th A: Gov’t
further a compelling gov’t interest (burden on gov’t) can take private property for public use if
a. Actual purpose only provides just compensation
b. (a) Equal Protection b. (a) Taking? Two Kinds:
i. (i) Alienage (if by st + not b/c i. (i) Possessory Taking: physical
democracy) occupation/confiscation
ii. (ii) Race ii. (ii) Regulatory Taking: affects value or
iii. (iii) National Origin use:  prop owner can bring inverse
c. (b) Fundamental Rights condemnation action if reg leaves no
i. Right to marry, procreate, reasonable economically viable use of
custody/raising children, birth control, property (decreasing value not enough)
family unity, travel, vote, speech, c. (b) For Public Use?
association, free exer religion i. Broad: just reasonable belief taking
d. (c) Contracts Clause will benefit public
i. State/local inter. w/ gov’t contracts d. (c) Just Compensation?
e. (d) First Amendment i. Real market valu
i. Content-based Restrictions 6. (5) Contracts Clause
ii. Prior Restraints a. Applies only to state/local interference w/
f. (e) Freedom of Association existing contracts
b. Interference w/ private contracts = intermediate
PROCEDURAL DUE PROCESS scrutiny
c. Interference w/ gov’t contracts = strict scrutiny
1. Has the gov’t followed adequate procedure when taking
d. NOTE: ex post facto clause only applies in
away person’s life, liberty or property? Elements:
criminal cases
2. (1) Deprivation SUBSTANTIVE DUE PROCESS
a. (a) Liberty – loss of significant freedom
provided by Const. or statute 1. Does gov’t have adequate justification when taking away
b. (b) Property – entitlement that is not fulfilled person’s life, liberty, or property?
i. Entitlement = reasonable expectation 2. Strict Scrutiny (Privacy):
of continued receipt of a benefit a. Right to marry
c. NOTE: gov’t must act intentionally/recklessly b. Right to procreate
and failure to protect from private harms c. Right to custody of children
doesn’t count i. Irrebuttable presumption that husband
is father is permitted
 d. Right to keep family together d. Intermediate Scrutiny for undocumented alien
e. Right to raise children children
f. Right to contraceptives
3. Strict Scrutiny (Other): 7. (4) Non-Marital Children
a. Right to travel domestically a. Intermediate Scrutiny
i. International = rational basis b. Laws that deny benefit to non-marital children
b. Right to vote but grant to marital children = unconstitutional
i. One person-one vote = districts must
be approx. same population 8. (5) Rational Basis for EVERYTHING ELSE
4. Right to Abortion a. Age, Disability, Wealth, Economic Regs,
a. Prior to viability = Undue burden test Sexual Orientation
b. After viability = can be prohibited unless
necessary to protect woman’s life/health FIRST AMENDMENT
5. NOT Fundamental Rights: 1. Content Based vs. Content Neutral Restrictions
a. Education a. Content Based = Strict Scrutiny
b. Trade/Profession i. Subject Matter Restrictions
c. Physician-Assisted Death ii. Viewpoint Restrictions – NEVER
EQUAL PROTECTION permissible
b. Content Neutral = Intermediate Scrutiny
1. Is gov’t’s different treatment of people is adequately 2. Prior Restraints
justified? Analysis: a. Strict Scrutiny for court orders suppressing
a. Classification based on? speech
b. Level of Scrutiny? 3. Vagueness and Overbreadth
c. Is Level of Scrutiny satisfied? a. Vagueness = unconstitutionally vague if
2. State/Local Gov’t = 14th Amendment reasonable person cannot tell what speech is
3. Federal Government = 5th Amendment prohibited and what is allowed
b. Overbreadth = unconstitutionally broad if law
4. (1) Race and National Origin regulates substantially more speech than
a. Strict Scrutiny constitution allows
b. Law discriminates if: c. NOTE: fighting words laws often
i. (1) classification exists on face vague/overbroad
ii. (2) law facially neutral but BOTH (1) 4. Symbolic Speech
discriminatory impact; AND (2) a. RULE: gov’t can regulate conduct that
discriminatory intent communicates if it has an important interest
c. Affirmative Action = Strict Scrutiny unrelated to suppression of message and if
i. No quotas impact on communication no greater than
ii. Universities - Race can be a factor in necessary to achieve gov’t’s purpose
admissions (not high school) b. Protected conduct: flag burning, burning a
iii. Cannot use race as a factor in cross, expenditures in election campaigns
assigning students in public school c. Unprotected conduct: draft card burning, nude
systems unless strict scrutiny met dancing, cross burning w/ intent to threaten,
contributions to election campaigns
5. (2) Gender Classification
a. Intermediate Scrutiny 5. Forums
b. Gender classifications benefitting women based a. (1) Public Forum = public property historically
on role stereotypes NOT permitted open to speech-related activity (ex. sidewalks,
c. Gender classifications designed to remedy past public parks). Reqs:
discrimination in opportunity IS permitted i. (a) regulation must be content neutral
ii. (b) must be narrowly tailored to serve
6. (3) Alienage Classification an important gov’t interest; AND
a. Generally, Strict Scrutiny applies to state/local iii. (c) must leave open alternative
action methods of communication
b. Rational Basis IF concerns self-gov’t and iv. NOTES:
democratic process 1. Can still be invalid if
i. Includes serving on jury, being police overbroad/vague.
officer, teacher, probation officer 2. Public school activities =/=
c. Rational Basis IF congressional action public forums
 3. Regulation need not be least
restrictive alternative
b. (2) Designated Public Forum = public property
usually not used for speech-related activity, but
gov’t has opened for such activity at particular
times
i. Same as Public Forum
c. (3) Limited Public Forum = public property that
is usually not used for speech-related activity,
but gov’t has opened for such activity for
particular purpose (school gym for political
debate). Requirements:
i. (a) viewpoint neutral
ii. (b) rationally related to a legitimate
gov’t purpose
iii. NOTE: content-based restriction OK
rationally related to legit gov’t purpose
d. (4) Nonpublic Forum = public property not
open for speech-related activity
i. (a) viewpoint neutral
ii. (b) rationally related to a legitimate
gov’t purpose
iii. Examples:
1. (1) military bases
2. (2) areas outside prisons/jails
3. (3) Sidewalk on Post-Office
Prop.
4. (4) Airports
5. (5) Inside Polling Places
6. Unprotected/Less Protected Speech
a. (a) Incitement of Illegal Activity
i. (i) directed to producing/inciting
imminent lawless action; AND
ii. (ii) is likely to produce such action
b. (b) Fighting Words
i. Fighting words = words/epithets that,
when addressed to an ordinary citizen,
are inherently likely to incite
immediate physical retaliation
(includes true threats –
statements/conduct meant to place
person in fear of bodily harm)
ii. Can’t limit sanctions to statements
meant to provoke based on race,
religion, etc., b/c = viewpt.
discrimination
iii. Often struck down for
vagueness/overbreadth
c. (c) Obscenity
i. TEST:
ii. (1) material must appeal to the prurient
interest (local standard)
iii. (2) material must be patently offensive
under the law prohibiting obscenity
(law has to clearly state what material
is patently offensive AND speech has
to fit that)
iv. (3) taken as a whole, the material must
lack serious redeeming artistic,
literary, political, or scientific value
(national standard)
v. NOTES:
vi. Adult businesses can be regulated
through land use ordinances (zoning)
to reduce secondary effects as long as
not completely prohibited in
community
vii. Child pornography can be completely
banned but actual children must be
used
viii. Gov’t cannot punish private possession
of obscene materials
ix. Profane/Indecent speech generally
protected. Exceptions:
1. (1) broadcast media
2. (2) schools
d. (d) Commercial Speech
i. Unprotected:
1. (1) ads for illegal activity
2. (2) false/deceptive ads\
3. (3) commercial speech that
inherently risks deception (ex.
in-person solicitation by
attorneys for profit)
ii. Other Commercial Speech =
Intermediate Scrutiny
1. Narrowly tailored BUT does
not need to be least restrictive
alternative
e. (e) Defamation/IIED
i. (i) Public Official
1. P recovers only if shows (1)
falsity and (2) actual malice
(D knew statement was false
or acted with reckless
disregard for its truth)
ii. (ii) Public Figure
1. P recovers only if shows (1)
falsity and (2) actual malice
iii. (iii) Private Figure + Matter of Public
Concern
1. P recovers by proving (1)
falsity and (2) negligence
(punitive damages only w/
actual malice)
iv. (iv) Private Figure + Not MoPC
 1. P can recover 4. Laws prohibiting a group from discriminating are
presumed/punitive damages constitutional unless interfere w/ intimate association
w/o actual malice and expressive activity.
2. Compensatory damages
standard unclear FREEDOM OF RELIGION

1. The Free Exercise Clause

f. (f) Privacy
i. Gov’t can’t create liability for truthful
reporting of info lawfully obtained
from gov’t (public records)
ii. Liability not allowed for media
broadcasts if illegally obtained info if
didn’t participate in illegality and
matter of public importance
a. Cannot be used to challenge a neutral law of
general applicability
b. Gov’t cannot deny benefits to people who quit
jobs for religious reasons
c. Gov’t cannot hold religious institution liable for
choices as to who can be its ministers
d. Denial of benefits to religious school that are
granted to secular private school must meet SS

g. (g) Speech by Gov’t Employees 2. The Establishment Clause

i. RULE: speech by gov’t employees on a. TEST (SEX): action invalid UNLESS:
the job in performance of their duties i. S – has a Secular Purpose
is NOT protected by 1st A. ii. E – primary Effect must be neither to
advance nor inhibit religion; AND
7. General Notes iii. X – No Excessive Entanglement w/
a. Compelled Speech violates 1st A. Religion
b. Anonymous Speech protected b. TEST 2 (use if law is discriminating among
c. Speech by gov’t can’t be challenged as religions) = compelling gov’t interest test
violating 1st A. c. Gov’t cannot discriminate against religious
FREEDOM OF ASSOCIATION speech/among religious speech unless SS met
d. Gov’t sponsored religious activity in PUBLIC
1. Strict Scrutiny Applies schools unconstitutional
2. To punish someone for membership in group, MUST: i. BUT, religious groups can have same
a. (1) Be actively affiliated w/ group access to school facilities as other
b. (2) knowing its illegal activities; AND groups
c. (3) have specific intent to further those illegal ii. School Prayer NOT allowed
activities e. Gov’t may give assistance to parochial schools
3. Laws requiring disclosure of group membership = SS as long as NOT used for religious instructio