CONSTITUTIONAL LAW OUTLINE I. JUDICIAL REVIEW a. COURT HAS THE POWER TO DECLARE LEGISLATION OR EXECUTIVE ACTS UNCONSTITUTIONAL i.

IMPLIED POWER OF THE COURT 1. INFERRED FROM WRITTEN CONSTITUTION 2. NECESSARY TO THE JUDICIAL ROLE IN INTERPRETING LAW 3. COURT MUST DECIDE WHAT THE LAW IS WHEN STATUTES AND CONSTITUTION
CONFLICT

b. SUPREME COURTS INTERPRETATION OF THE CONSTITUTION IS EXCLUSIVE i. STATES INTERPRETATION CANNOT OVERRIDE SUPREME COURT ii. EXECUTIVE HAS VERY LIMITED DISCRETION TO IGNORE THE COURTMUST EXECUTE THE LAW, AND SUPREME COURT DECISIONS ARE THE LAW iii. CONGRESS CAN, OF COURSE, LEGISLATE AFTER A LAW HAS BEEN STRUCK DOWN, BUT IT MUST DO SO IN LINE WITH THE SUPREME COURTS INTERPRETATION OF THE CONSTITUTION c. SUPREME COURT HAS THE POWER TO REVIEW FEDERAL CONSTITUTIONAL DECISIONS HANDED
DOWN BY THE STATE COURTS i. ARTICLE III GIVES SUPREME COURT APPELLATE JURISDICTION OVER ALL CASES ARISING UNDER THE CONSTITUTION ii. THERE IS NO STATE SOVEREIGNTY OVER CONSTITUTIONAL INTERPRETATION iii. INTERPRETATION OF THE CONSTITUTION MUST BE UNIFORM THROUGHOUT THE NATION COURT WILL NOT REVIEW A DECISION FROM A STATE COURT THAT RESTS ON ADEQUATE AND INDEPENDENT STATE GROUNDS i. STATE COURT DECISION MUST BE ADEQUATE ii. STATE COURT DECISION MUST BE INDEPENDENT OF FEDERAL LAW iii. STATE COURT OPINION MUST CLEARLY STATE THAT IT IS RELYING ON STATE LAW TO REACH ITS DECISION JUDICIAL REVIEW IS COUNTER-MAJORITARIAN i. CONGRESS REPRESENTS THE POLITICAL MAJORITY ii. CONGRESS IS OFTEN INTOLERANT OF THE POLITICAL MINORITY iii. SINCE THE CONSTITUTION OFTEN PROTECTS THE POLITICAL MINORITY, AND THE COURT IS POLITICALLY ISOLATED, THE COURT IS IN THE BEST POSITION TO LEVEL THE PLAYING FIELD iv. THUS, JUDICIAL REVIEW ADVANCES THE DEMOCRATIC PROCESS. JUDICIAL REVIEW IS ALSO SAID TO BE ANTI-DEMOCRATIC i. FEDERAL JUDGES ARE NOT ELECTED, THEY ARE APPOINTED. ii. THUS, JUDICIAL REVIEW IS NOT EXPRESSING THE WILL OF THE PEOPLE IN THE DEMOCRATIC SENSE BECAUSE THEY ARE NOT ELECTED BY THE PEOPLE JUDICIAL REVIEW STABILIZES THE MEANING OF THE CONSTITUTION BETWEEN THE THREE BRANCHES OF GOVERNMENT IT IS DIFFICULT TO CORRECT ANY ERRORS OF INTERPRETATION BY THE SUPREME COURT JUDICIAL REVIEW CAN BE LIMITED BY AMENDMENT, APPOINTMENT, OR IMPEACHMENT.

d.

e.

f.

g. h. i. II.

CONGRESS POWER TO LIMIT FEDERAL COURT JURISDICTION a. ARTICLE III 1 ALLOCATES THE JUDICIAL POWER OF THE UNITED STATES IN THE SUPREME COURT AND IN SUCH INFERIOR COURTS AS CONGRESS MAY FROM TIME TO TIME ESTABLISH. i. CONGRESS CAN ELIMINATE LOWER FEDERAL COURTS OR ii. LIMIT THEIR JURISDICTION b. ARTICLE III 2 CL. 2 GRANTS THE SUPREME COURT APPELLATE JURISDICTION OVER CASES ARISING
UNDER FEDERAL LAW WITH EXCEPTIONS AND UNDER REGULATIONS AS THE CONGRESS SHALL MAKE i. CONGRESS CANNOT STRIP THE SUPREME COURT OF ITS ORIGINAL JURISDICTION

ii. CONGRESS CAN ELIMINATE THE SUPREME COURTS APPELLATE JURISDICTION c. LIMITS ON CONGRESS POWER TO LIMIT JURISDICTION i. CONGRESS CANNOT LIMIT APPELLATE JURISDICTION IN A WAY THAT VIOLATES OTHER
CONSTITUTIONAL GUARANTEES

ii. CONGRESS CANNOT LIMIT APPELLATE JURISDICTION IN A WAY THAT DESTROYS THE ESSENTIAL FUNCTION OF THE SUPREME COURT 1. MAINTAIN SUPREMACY OF FEDERAL LAW AND 2. RESOLVE CONFLICTS AS TO FEDERAL LAW iii. CONGRESS CANNOT COMMAND THE FEDERAL COURTS TO DECIDE CASES A CERTAIN WAY III. JUSTICIABILITY a. ARTICLE III 2 LIMITS FEDERAL JUDICIAL POWER TO CASES OR CONTROVERSIES i. COURT CANNOT RENDER ADVISORY OPINIONS ii. CONSTITUTIONAL STANDING TO SUE IS REQUIRED 1. INJURY IN FACT a. CONCRETE AND PARTICULARIZED b. ACTUAL OR IMMINENT 2. CAUSATION a. CAUSED BY OR FAIRLY TRACEABLE TO THE S ACTIONS COMPLAINED OF b. NOT THE RESULT OF SOME THIRD PARTY NOT BEFORE THE COURT 3. REDRESSIBILITY a. RELIEF SOUGHT IS OBTAINABLE IN COURT iii. IF CONSTITUTIONAL STANDING IS MET, COURT HAS PRUDENTIAL RULES TO LIMIT CASES IN
COURT

1. NO THIRD PARTY STANDING UNLESS a. SPECIAL RELATIONSHIP BETWEEN THE AND THIRD PARTY b. CANNOT POSSIBLY ASSERT HIS OWN INTEREST c. S INTERESTS WILL BE LOST WITHOUT THE THIRD PARTY TAKING HIS PLACE iv. A LAWSUIT MUST BE RIPE FOR REVIEW. 1. ISSUES ARE FIT FOR JUDICIAL DECISIONS AND 2. PARTIES WILL SUFFER HARDSHIP IF THE COURT WITHHOLDS CONSIDERATION 3. SPECIFIC HARM MUST BE PRESENT a. ALREADY SUFFERED HARM b. IS FACED WITH SPECIFIC PRESENT OBJECTIVE HARM OR c. IS UNDER A THREAT OF SPECIFIC FUTURE HARM v. A CASE IS MOOT IF THE NO LONGER HAS A STAKE IN THE CONTROVERSY 1. THE ONLY EXCEPTION IS IF THE ISSUE IS CAPABLE OF REPETITION, YET EVADES
REVIEW

a. CONTROVERSY IS TOO SHORT TO LAST FROM COMPLAINT TO END OF

APPEALS

b. THERE IS A REASONABLE EXPECTATION THAT THE WILL HAVE THE SAME

PROBLEM AGAIN

b. THE COURT DOES NOT DECIDE POLITICAL QUESTIONS. i. NONJUSTICIABLE POLITICAL QUESTIONS ARE PRESENT IF: 1. TEXT OF THE CONSTITUTION COMMITS THE DECISION TO ANOTHER BRANCH OF 2. 3. 4. 5.
GOVERNMENT THERE ARE NO JUDICIAL STANDARDS TO GOVERN THE DECISION THE DECISION REQUIRES THE COURT TO MAKE AN INAPPROPRIATE POLICY CHOICE THE DECISION WOULD LACK RESPECT FOR THE COORDINATE BRANCHES A POLITICAL DECISION WAS ALREADY MADE

IV.

6. A JUDICIAL DECISION WOULD CREATE EMBARRASSMENT ii. ISSUES ARISING UNDER ARTICLE IV 4, THE GUARANTEE CLAUSE, ARE GENERALLY POLITICAL QUESTIONS, BUT MAY BE JUSTICIABLE ON EQUAL PROTECTION GROUNDS. iii. ISSUES ARISING UNDER ARTICLE I, 2 CL. 6, WHICH PROVIDES THAT THE SENATE SHALL HAVE THE SOLE POWER TO TRY ALL IMPEACHMENTS, ARE POLITICAL QUESTIONS, BUT THE COURT HAS TO REACH THE MERITS TO DECIDE WHAT TRIAL MEANS. THE ELEVENTH AMENDMENT a. ARTICLE III 2 CONFERS FEDERAL JUDICIAL POWER OVER CASES BETWEEN A STATE AND THE CITIZENS OF ANOTHER STATE. b. THE ELEVENTH AMENDMENT i. NO STATE MAY BE SUED IN FEDERAL COURT BY ANY PERSON OR FOREIGN GOVERNMENT UNLESS 1. THE STATE CONSENTS OR 2. CONGRESS HAS ABROGATED THIS IMMUNITY UNDER 5 OF THE 14TH AMENDMENT ii. STATE OFFICIAL IS NOT A STATE UNLESS THE STATE WOULD HAVE TO PAY DAMAGES FEDERALISM: DIVISION OF AUTHORITY AND POWER BETWEEN FEDERAL AND STATE GOVERNMENT a. NECESSARY AND PROPER CLAUSE i. ARTICLE I, 8, CL. 18 PROVIDES CONGRESS WITH THE POWER TO MAKE ALL LAWS WHICH SHALL BE NECESSARY AND PROPER FOR CARRYING INTO EXECUTION THE FOREGOING POWERS. 1. SO LONG AS CONGRESS EMPLOYS A MEAN THAT IS RATIONALLY RELATED TO AN ENUMERATED POWER, COURT WILL DEFER TO CONGRESS JUDGMENT. a. FEDERAL GOVERNMENT IS A GOVERNMENT OF ENUMERATED POWERS i. NECESSARY AND PROPER CLAUSE IS NOT AN INDEPENDENT SOURCE
OF POWER ii. CLAUSE GIVE POWER TO CONGRESS TO SELECT THE MEANS TO ACCOMPLISH ONE OF ITS ENUMERATED POWERS iii. COURT WILL NOT LOOK TO CONGRESS MOTIVE FOR CHOOSING THE MEANS b. NECESSARY DOES NOT MEAN ABSOLUTELY NECESSARYEXPANSIVE WHERE THE CONSTITUTION DOES NOT EXPRESSLY GRANT POWER TO THE FEDERAL GOVERNMENT, NOR PROHIBIT SUCH POWER TO THE STATES i. STRUCTURALA BAN ON STATE AUTHORITY IS IMPLIED BY THE STRUCTURE OF THE CONSTITUTION 1. EXPRESS AND IMPLIED OR INTENDED POWERS OF THE FEDERAL GOVERNMENT APPARENT IN THE CONSTITUTION a. EX: ENUMERATED POWER TO TAX AND SPEND SHOWS AN IMPLIED POWER TO CREATE A BANK. b. COURT SHOULD INTERPRET THE CONSTITUTION TO CORRECT IMPERFECTION IN REPRESENTATIVE GOVERNMENT ii. TEXTUALIF THE CONSTITUTION DOES NOT EXPRESSLY GRANT POWER TO THE FEDERAL GOVERNMENT, NOR EXPRESSLY PROHIBIT SUCH POWER TO THE STATES, THE STATE HAS THAT POWER 1. ARGUMENT: TENTH AMENDMENT IS A LIMITATION OF FEDERAL POWER: THE STATES PLAY AN ACTIVE ROLE IN DETERMINING THEIR POWERS 2. COUNTER: NECESSARY AND PROPER CLAUSE, SUPREMACY CLAUSE, AND STRUCTURE OF THE POLITICAL PROCESS TEND TO SHOW FEDERAL SUPREMACY a. ONLY THOSE POWERS THE STATE HAD BEFORE THE CREATION OF THE NATIONAL GOVERNMENT ARE RESERVED TO THE STATES

V.

b.

VI.

FEDERAL COMMERCE POWER a. ARTICLE I 8 CL. 3 GRANTS CONGRESS THE POWER TO REGULATE COMMERCE AMONG THE
SEVERAL STATES

b. CONGRESS HAS THE POWER TO REGULATE PRIVATE CONDUCT UNDER THE COMMERCE POWER c. CONGRESS CAN REGULATE i. CHANNELS OF INTERSTATE COMMERCE ii. INSTRUMENTALITIES OF INTERSTATE COMMERCE iii. ACTIVITIES THAT SUBSTANTIALLY AFFECT INTERSTATE COMMERCE iv. CONGRESS ACTION WILL BE UPHELD IF THE MEANS CHOSEN ARE REASONABLY ADAPTED TO THE LEGITIMATE EXERCISE OF COMMERCE POWER [RATIONAL BASIS/MINIMAL SCRUTINY] 1. HERE, CONGRESS IS REGULATING [INSERT FACTS] a. INTERSTATE, INTRASTATE, COMMERCIAL/ECONOMIC, NONCOMMERCIAL/NONECONOMIC? [LOPEZ DISTINGUISHES BETWEEN WHAT IS TRULY NATIONAL AND TRULY LOCAL ACTIVITIES] b. CHALLENGER ARGUES i. [INSERT FACTS]: INTRASTATE/LOCAL AND NONCOMMERCIAL
ACTIVITIES

c. CONGRESS ARGUES i. [INSERT FACTS]: INTERSTATE AND COMMERCE 1. AGGREGATION? 2. MEANS AFFECTING MEANS? 2. LEGISLATIVE FINDINGS a. IF FINDINGS ARE PRESENT AND ACTIVITY IS INTERSTATE AND COMMERCIAL,
COURT WILL GENERALLY DEFER

b. IF THE ACTIVITY IS INTRASTATE AND NONCOMMERCIAL COURT WILL NOT DEFEREVEN IF CONGRESS PRESENTS FINDINGS [CAUSAL CHAIN TOO ATTENUATED] 3. EVALUATE THE EFFECT THIS ACTIVITY HAS ON INTERSTATE COMMERCE 4. ARGUMENTS AND CONCLUSIONS a. EXAMPLE OF JUDICIALLY ENFORCED FEDERALISM OR b. EXAMPLE OF JUDICIAL RESTRAINT ON ENFORCING FEDERALISM VII. CONGRESS EXERCISE OF COMMERCE POWER OVER THE STATES IS LIMITED BY PRINCIPLES OF STATE AUTONOMY/FEDERALISM a. PREVIOUSLY, CONGRESS COULD NOT USE THE COMMERCE POWER TO IMPINGE UPON A STATES POLICY CHOICES IN MATTERS TRADITIONALLY REGARDED AS GOVERNMENTAL. b. THE COURT HAS ABANDONED THIS NOTION. THE COURT HAS DEVELOPED A DOCTRINE GIVING THE STATES PROCEDURAL IMMUNITY FROM FEDERAL REGULATION i. WHERE LAWS APPLY TO STATES AND PRIVATE INDIVIDUALS ALIKE 1. CONGRESS IS ONLY LIMITED BY THE NATIONAL POLITICAL PROCESS ii. IF CONGRESS REGULATES ONLY THE STATE WITH ITS COMMERCE POWER 1. CONGRESS CANNOT COMMANDEER THE LEGISLATIVE PROCESS OF A STATE BY 2. 3.
COMPELLING THE STATE TO ENACT AND ENFORCE A FEDERAL REGULATORY PROGRAM CONGRESS CANNOT FORCE STATE EXECUTIVE OFFICIALS TO ADMINISTER FEDERAL LAWS ALTERNATIVE: TENTH AMENDMENT LIMITS CONGRESS POWER OVER THE STATES

VIII.

TAXATION a. ARTICLE I, 8 GRANTS CONGRESS THE POWER TO LAY AND COLLECT TAXES, DUTIES, IMPOSTS, AND
EXCISES

i. CONGRESS MAY IMPOSE TAXES FOR ANY PURPOSE SO LONG AS THE TAX 1. PRODUCES REVENUE AND 2. THE REGULATIONS ACCOMPANYING THE TAX ARE REASONABLY RELATED TO
ENFORCEMENT OF THE TAX

3. THE TAX CANNOT BE A PENALTY 4. ENFORCEABLE BY THE IRS 5. UNIFORM APPLICATION OF THE TAX IX. SPENDING a. ARTICLE I, 8 GRANTS CONGRESS THE POWER TO PAY THE DEBTS AND PROVIDE FOR THE COMMON DEFENSE AND GENERAL WELFARE OF THE US. i. THE SPENDING MUST BE 1. PROVIDE FOR THE COMMON DEFENSE 2. TO PAY OFF DEBTS OR 3. IN PURSUIT OF THE GENERAL WELFARE a. CONGRESS CANNOT REGULATE FOR THE GENERAL WELFARE i. LOOK TO THE TEXT AND ii. THE NECESSARY AND PROPER CLAUSE ii. IF SPENDING IS CONDITIONAL, THE CONDITIONS 1. MUST BE STATED UNAMBIGUOUSLY 2. MUST BE RELATED TO NATIONAL INTERESTS 3. MUST NOT BE VIOLATIVE OF OTHER CONSTITUTIONAL PROVISIONS 4. MUST NOT BE COERCIVE: MUST BE A CARROT, NOT A STICK a. THE TENTH AMENDMENT MAY BE A LIMIT ON THE SPENDING POWER DORMANT COMMERCE CLAUSE a. ABSENT CONGRESSIONAL ACTION, THE STATES ARE FREE TO REGULATE INTERSTATE COMMERCE
SUBJECT TO JUDICIALLY IMPOSED LIMITATIONS

X.

b. REGULATIONS THAT FACIALLY DISCRIMINATE AGAINST INTERSTATE COMMERCE ARE VIRTUALLY

PER SE INVALID i. STATE MUST SHOW 1. IT HAS A LEGITIMATE OBJECTIVE AND 2. THERE ARE NO LESS DISCRIMINATORY MEANS TO ACCOMPLISH THAT OBJECTIVE REGULATIONS THAT ARE FACIALLY NEUTRAL ARE VALID PER SE i. CHALLENGER MUST SHOW 1. THE BURDENS ON INTERSTATE COMMERCE OUTWEIGH 2. THE LOCAL BENEFITS ii. THERE ARE THREE VIEWS 1. JUSTICE POWER WILL USE THE FACTS TO DETERMINE THE MEANS AND GIVE DEFERENCE TO THE STATES CHOSEN PURPOSE 2. JUSTICE BRENNAN WILL USE THE FACTS TO DETERMINE THE ACTUAL PURPOSE AND GIVE DEFERENCE TO THE STATES CHOSEN MEANS 3. JUSTICE REHNQUIST WILL ONLY ASK IF THE STATE ACTED RATIONALLY iii. UNDER [POWELL, BRENNAN, OR REHNQUIST] VIEW . . . IT APPEARS THAT THERE IS DISCRIMINATORY EFFECT, MOTIVE, OR THE REGULATION IS PROTECTIONIST i. DISCRIMINATORY EFFECT BECAUSE . . .

c.

d.

ii. DISCRIMINATORY MOTIVE BECAUSE . . . iii. PROTECTIONIST BECAUSE . . . iv. AS SUCH, DETERMINE WHETHER THE STATE COULD HAVE ACCOMPLISHED ITS OBJECTIVE BY
LESS DISCRIMINATORY MEANS

e. EVEN IF THE STATE IS DISCRIMINATING, THE STATE MAY DISCRIMINATE AGAINST INTERSTATE COMMERCE IF IT IS A MARKET PARTICIPANT. i. MARKET IS BROADLY OR NARROWLY DEFINED 1. DEFINE THE MARKET BOTH WAYS AND APPLY ii. PARTICIPATING MEANS CREATING THE MARKET RATHER THAN REGULATING THE MARKET 1. IT IS CREATING THE MARKET BECAUSE . . . 2. IT IS MERELY REGULATING, NOT CREATING, BECAUSE . . . f. THE STATE, HOWEVER, CANNOT VIOLATE THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE VI, EVEN IF THE STATE IS A MARKET PARTICIPANT. ARTICLE IV, 2 PROVIDES THAT THE CITIZENS [AND RESIDENTS] OF EACH STATE SHALL BE ENTITLED TO ALL PRIVILEGES AND
IMMUNITIES OF CITIZENS OF THE SEVERAL STATES i. PREVENTS STATES FROM DISCRIMINATING AGAINST OUTSIDERS ON MATTERS OF FUNDAMENTAL TO INTERSTATE HARMONY AND UNION UNLESS 1. THERE IS A SUBSTANTIAL REASON a. OUTSIDERS ARE A PECULIAR SOURCE OF THE PROBLEM b. DISCRIMINATORY PRACTICE IS SUBSTANTIALLY RELATED TO ITS SOLUTION

AND c. THERE ARE NO LESS DISCRIMINATORY ALTERNATIVES AVAILABLE 2. THE FUNDAMENTAL INTEREST PROTECTED IS THE PURSUIT OF LIVELIHOOD 3. CORPORATIONS ARE NOT PROTECTED, ONLY INDIVIDUALS g. ALTERNATIVELY, A CORPORATION CAN SEEK RECOURSE UNDER THE EQUAL PROTECTION CLAUSE IF A STATE IS DISCRIMINATING AGAINST OUT-OF-STATE COMMERCE i. RATIONAL BASIS REVIEW: MET LIFE V. WARD XI. PREEMPTION a. ARTICLE VI, CL. 2 MAKES VALID FEDERAL LAW SUPREME, THUS PREEMPTING CONTRARY STATE
LAW

i. WHETHER CONGRESS INTENDED TO PREEMPT THE STATES BY EXERCISING ITS ARTICLE I (ENUMERATED) POWERS 1. ASSUMPTION IS THAT CONGRESS DOES NOT INTEND TO PREEMPT THE STATES WHEN
ENACTING LAW

ii. IF SO, WHAT KIND OF PREEMPTION HAS CONGRESS CHOSEN a. THERE ARE TWO FORMS OF PREEMPTION: EXPRESS OR IMPLIED PREEMPTION. i. EXPRESS PREEMPTION 1. WHERE CONGRESS CLEARLY DECLARES ITS INTENT TO PREEMPT STATE LAW, IT
DOES SO EXPRESSLY

ii. IMPLIED PREEMPTION 1. CONFLICT PREEMPTION a. COMPLIANCE WITH BOTH FEDERAL AND STATE LAW IS LITERALLY IMPOSSIBLE OR b. STATE LAW IS AN OBSTACLE TO ACHIEVING FEDERAL OBJECTIVES 2. FIELD PREEMPTION a. CONGRESS IMPLIEDLY INTENDS TO OCCUPY THE FIELD SO FULLY IT LEAVES
NO ROOM FOR THE STATES TO SUPPLEMENT THE FIELD

XII.

STATE TAXATION OF INTERSTATE COMMERCE

6

a.

THE DORMANT COMMERCE CLAUSE ALSO LIMITS STATE POWER TO TAX INTERSTATE COMMERCE i. A STATE TAX VIOLATES THE DORMANT COMMERCE CLAUSE IF: 1. NO SUBSTANTIAL NEXUS BETWEEN ACTIVITY AND THE TAXING STATE EXISTS 2. TAX IS NOT FAIRLY APPORTIONED 3. TAX DISCRIMINATES AGAINST FOREIGN OR INTERSTATE COMMERCE OR 4. TAX IS NOT FAIRLY RELATED TO SERVICES SUPPLIED BY THE TAXING STATE

XIII.

SEPARATION OF POWERS a. EXISTS TO PREVENT TYRANNY AND ENSURE THAT THE EXECUTIVE, LEGISLATIVE, AND JUDICIAL b. c.
POWER DOES NOT FALL IN ONE HAND ESTABLISHES CHECKS AND BALANCES ON EACH BRANCH BY THE OTHER. IF MEN WERE ANGELS, NO GOVERNMENT WOULD BE NECESSARY EXECUTIVE ACTION: ARTICLE II ASSIGNS THE NATIONAL GOVERNMENTS EXECUTIVE POWER TO THE PRESIDENT i. PRESIDENT POWER STEMS ONLY FROM ACTS OF CONGRESS OR FROM THE CONSTITUTION ITSELF ii. PRESIDENTIAL POWER IS NOT FIXED 1. MAXIMUM PRESIDENTIAL POWER WHEN ACTING PURSUANT TO EXPRESS OR IMPLIED AUTHORIZATION OF CONGRESS 2. MINIMUM PRESIDENTIAL POWER WHEN ACT IS INCOMPATIBLE WITH THE EXPRESS OR IMPLIED WILL OF CONGRESS 3. ZONE OF TWILIGHTPRESIDENT ACTS IN THE ABSENCE OF CONGRESSIONAL GRANT OR DENIAL OF AUTHORITY iii. PRESIDENT MUST DO ANYTHING NECESSARY FOR THE GOOD OF THE NATION AS LONG AS THE ACT DOES NOT VIOLATE THE CONSTITUTION OR ACT OF CONGRESS

XIV. PROCEDURAL DUE PROCESS a. PRESERVE PROCEDURES SO IT IS LESS LIKELY FOR GOVERNMENT ERROR IN ACTIONS AGAINST
INDIVIDUALS

b. INCREASE INVOLVEMENT OF AFFECTED PERSONS IN THE DECISIONMAKING PROCESS c. DUE PROCESS IS TRIGGERED WHEN LIFE, LIBERTY, OR PROPERTY INTERESTS ARE AT STAKE i. LIFE ii. LIBERTY 1. CHANGE IN LEGAL STATUS iii. PROPERTY 1. STATUTORILY CREATED BENEFIT RESULTS IN A LEGITIMATE PROPERTY INTEREST 2. ONCE GOVERNMENT STATUTORILY CONFERS A BENEFIT, IT CANNOT TAKE IT AWAY
WITHOUT DUE PROCESS

d. DETERMINING WHAT PROCESS IS DUE REQUIRES A BALANCING OF i. PRIVATE INTERESTS ii. RISK OF ERROR OF CURRENT PROCEDURE AND PROBABLE VALUE OF ALTERNATIVE
PROCEDURE

iii. PUBLIC INTERESTS XV. SUBSTANTIVE DUE PROCESS a. NO STATE SHALL DEPRIVE ANY PERSON OF LIFE LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF
LAW

i. STATE ACTION REQUIRED ii. 14TH AMENDMENT APPLIES TO STATES iii. 5TH AMENDMENT APPLIES TO THE FEDERAL GOVERNMENT
7

b. IF A CLAIMED RIGHT IS FUNDAMENTAL, THE COURT WILL APPLY STRICT SCRUTINY i. GOVERNMENT MUST PROVE THAT THE INFRINGEMENT ON THE CLAIMED RIGHT WAS c.
NECESSARY TO ACHIEVE A COMPELLING STATE INTEREST FUNDAMENTAL RIGHTS: THOSE THAT ARE IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY OR DEEPLY ROOTED IN THE NATIONS TRADITION i. IMPLICIT IN THE CONCEPT OF ORDERED LIBERTY 1. ENUMERATED RIGHTS ONLY? (TOTAL INCORPORATION THEORY) OR 2. ENUMERATED AND IMPLICIT RIGHTS? (SELECTIVE INCORPORATION) a. PENUMBRA THEORY b. NINTH AMENDMENT c. ZONE OF PRIVACY EXISTS WITHIN THE NON-ENUMERATED RIGHTS ii. DEEPLY ROOTED IN THE NATIONS TRADITION 1. TRADITION CAN BE DEFINED AT ITS MOST SPECIFIC LEVEL TO DECREASE THE CHANCE OF FINDING FUNDAMENTAL RIGHTS 2. TRADITION CAN BE DEFINED AT ITS MOST GENERAL LEVEL TO INCREASE THE CHANCE OF FINDING FUNDAMENTAL RIGHTS iii. DEFINE THE FUNDAMENTAL RIGHT YOU ARE WORKING WITH iv. SUPPORT YOUR ARGUMENT WITH COMPARISONS 1. REASONS FOR FINDING CONTRACEPTION AS A FUNDAMENTAL RIGHT a. PENUMBRA b. ZONE OF PRIVACY c. NINTH AMENDMENT 2. ABORTION a. TRIMESTER FRAMEWORK b. UNDUE BURDEN 3. FAMILIAL RELATIONSHIPS a. FAMILY IS DEEPLY ROOTED IN THE NATIONS TRADITION b. EXPAND BEYOND THE MERE NUCLEAR FAMILY v. PRESENT COUNTER ARGUMENT: OF COURSE, . . . 1. ARE WE MOVING BACK TO THE LOCHNER ERA? 2. COURT FOUND NO FUNDAMENTAL RIGHT TO CONSENSUAL HOMOSEXUAL SEX BECAUSE IT DEFINED THE RIGHT NARROWLY AND IGNORED BROAD PRIVACY ISSUES vi. RESTATE WHY YOUR ARGUMENT IS BETTER vii. APPLY STRICT SCRUTINY IF THE RIGHT IS FUNDAMENTAL (MINIMAL SCRUTINY IF NOT FUNDAMENTAL) 1. GOVERNMENT INTERESTS COMPELLING? a. ADD FACTS HERE 2. INFRINGEMENT NECESSARY? a. EVALUATE OTHER WAYS TO ACHIEVE THE OBJECTIVE CONCLUDE: STRUCK DOWN OR UPHELD

d.

XVI. TAKINGS a. THE FIFTH AMENDMENT PROVIDES THAT PRIVATE PROPERTY SHALL NOT BE TAKEN FOR PUBLIC USE
WITHOUT JUST COMPENSATION i. PUBLIC USE IS SATISFIED IF THE TAKING OF PRIVATE PROPERTY IS RATIONALLY RELATED TO ANY CONCEIVABLE PUBLIC PURPOSE ii. PER SE RULES: 1. NO TAKING IF GOVERNMENT TAKES PRIVATE PROPERTY TO: a. ABATING A PUBLIC NUISANCE 2. TAKING OCCURS WHEN

a. PERMANENT PHYSICAL OCCUPATION OF PRIVATE PROPERTY b. OWNER HAS NO ECONOMICALLY VIABLE USE OF HIS PROPERTY iii. BALANCING TEST IF THE PER SE RULES DO NOT APPLY 1. BALANCE THE PUBLIC BENEFITS VERSUS PRIVATE COSTS a. HARMS IMPOSED ON THE PROPERTY OWNER ARE OUTWEIGHED BY THE iv.
PUBLIC BENEFITS PRODUCED BY THE REGULATIONS CONDITIONS ON BUILDING PERMITS 1. GOVERNMENT PROVES THE CONDITION IS SUBSTANTIALLY RELATED TO THE STATES OBJECTIVE 2. NATURE AND SCOPE OF THE CONDITION ARE ROUGHLY PROPORTIONAL TO THE IMPACT OF THE PROPOSED DEVELOPMENT IF INDIVIDUAL TAKES TITLE TO LAND THAT IS ALREADY HEAVILY REGULATED, INDIVIDUAL CAN CHALLENGE AS A TAKING IF 1. REGULATION SIGNIFICANTLY DECREASES THE VALUE OF THE PROPERTY

v.

XVII. EQUAL PROTECTION a. NO STATE SHALL DEPRIVE ANY PERSON OF EQUAL PROTECTION OF THE LAWS i. 14TH AMENDMENT APPLIES TO STATES ii. 5TH AMENDMENT APPLIES TO THE FEDERAL GOVERNMENT iii. STATE ACTION REQUIRED b. WHAT IS THE CLASSIFICATION? i. LAWS THAT SIMPLY CLASSIFY NON-SUSPECT GROUPS ARE SUBJECT TO RATIONAL
RELATIONSHIP REVIEW ii. GENDER-BASED CLASSIFICATIONS RECEIVE INTERMEDIATE SCRUTINY iii. CLASSIFICATIONS BASED ON RACE, NATIONAL ORIGIN, LAWFUL RESIDENT ALIENAGE ARE SUBJECT TO STRICT SCRUTINY iv. PICK STRICT SCRUTINY IF: IMMUTABLE TRAIT, HISTORY OF PURPOSEFUL DISCRIMINATION, OR LACK OF POLITICAL CLOUT (FAMOUS FOOTNOTE FOUR) RATIONAL RELATIONSHIP: CHALLENGER HAS THE BURDEN OF SHOWING THAT THE CLASSIFICATION IS NOT RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT PURPOSE i. ARGUMENT: GOVERNMENTAL PURPOSE CAN BE ANY CONCEIVABLE PURPOSE, WHETHER HYPOTHETICAL OR POST HOC 1. DISCUSS ANY CONCEIVABLE PURPOSE WITH FACTS 2. SUPPORT WITH DEFERENCE ARGUMENTS a. UNDER OR OVER INCLUSIVE CLASSIFICATIONS ARE RATIONAL b. GOVERNMENT CAN ADDRESS PROBLEMS ONE STEP AT A TIME c. ALLOW THE DEMOCRATIC PROCESS TO FIX ANY PROBLEMS BECAUSE d. COURT WILL NOT INQUIRE INTO THE WISDOM OF THE LEGISLATURE ii. COUNTER ARGUMENT: COURT SHOULD LOOK TO THE ACTUAL PURPOSE UNDER RATIONAL RELATIONSHIP 1. DISCUSS ACTUAL PURPOSE OF THE CLASSIFICATION WITH FACTS 2. SUPPORT WITH ARGUMENTS AGAINST DEFERENCE a. BARE DESIRES TO HARM UNFAVORABLE GROUPS ARE NEVER LEGITIMATE b. DENYING A POLITICALLY UNFAVORABLE GROUP ACCESS TO THE POLITICAL PROCESS IS NEVER LEGITIMATE c. POLITICAL PROCESS IS NOT FREE FROM DEFECTS d. COURT NEEDS TO FIND THE ACTUAL PURPOSE TO DETERMINE LEGITIMATE PURPOSE iii. APPLY RATIONAL RELATIONSHIP iv. CONCLUDE

c.

d. INTERMEDIATE SCRUTINY i. GOVERNMENT HAS THE BURDEN OF SHOWING THAT THE GENDER-BASED CLASSIFICATION
WAS SUBSTANTIALLY RELATED TO AN IMPORTANT GOVERNMENT PURPOSE 1. ARGUMENT: DISCUSS ANY CONCEIVABLE PURPOSE WITH FACTS a. BASED ON REAL DIFFERENCE BETWEEN THE GENDERS? b. NOT BASED ON OVERBROAD GENERALIZATIONS? 2. COUNTER ARGUMENT: DISCUSS THE ACTUAL PURPOSE WITH FACTS a. COURT HAS REJECTED POST HOC JUSTIFICATIONS FOR GENDER BASED CLASSIFICATIONS ii. ALTERNATIVE STANDARD: GOVERNMENT MUST DEMONSTRATE AND EXCEEDINGLY PERSUASIVE JUSTIFICATION FOR THE CLASSIFICATION 1. ARGUMENT: HEIGHTENED SCRUTINY WILL DIMINISH THE ABILITY TO OVERGENERALIZE BETWEEN THE SEXES AND DIMINISH THE OPPORTUNITY FOR THE COURT TO SHOW BIAS 2. COUNTER ARGUMENT: THIS LEVEL OF SCRUTINY WILL STRIKE DOWN MORE LAWS AS OPPOSED TO THE INTERMEDIATE SCRUTINY STANDARD, WHICH HAD A CERTAIN LEVEL OF PREDICTABILITY iii. PICK A STANDARD AND SHOW WHY IT IS THE BETTER ARGUMENT iv. APPLY THE STANDARD v. CONCLUDE STRICT SCRUTINY: GOVERNMENT HAS THE BURDEN OF SHOWING THAT THE CLASSIFICATION WAS NECESSARY TO ADVANCE A COMPELLING GOVERNMENT INTEREST i. CHALLENGER MUST SHOW PURPOSEFUL DISCRIMINATION, NOT MERE DISPROPORTIONATE IMPACT ii. WHAT IS THE ACTUAL PURPOSE OF THE LEGISLATION? 1. ACTUAL PURPOSE 2. KOREMATSU DEFERENCE? iii. AFFIRMATIVE ACTION 1. MAJORITY VIEW: STRICT SCRUTINY APPLIES a. EVEN IF THE CLASSIFICATION IS BENIGN OR REMEDIAL b. REGARDLESS OF WHICH RACE IS BURDENED OR BENEFITED c. REGARDLESS OF WHETHER THE FEDERAL OR STATE GOVERNMENT IS ACTING 2. MINORITY VIEW: LOWER LEVEL OF SCRUTINY SHOULD APPLY a. HISTORICALLY, AFRICAN AMERICANS WERE BENEFICIARIES OF THE EQUAL PROTECTION CLAUSE AND IT WAS THE INTENT OF THE FRAMERS TO KEEP IT AS SUCH b. LOWER LEVEL OF SCRUTINY IS PREFERABLE WHEN THE LEGISLATION IS REMEDIAL c. LOWER LEVEL OF SCRUTINY PREFERABLE WHEN THE NATIONAL GOVERNMENT IS EXPRESSING THE WILL OF THE NATION THROUGH LEGISLATION iv. CHANGE IN THE POLITICAL PROCESS MAKING IT IMPOSSIBLE FOR A MINORITY TO PREVAIL IS SUBJECT TO STRICT SCRUTINY v. LAWFUL RESIDENT ALIENS 1. FEDERAL GOVERNMENT HAS EXCLUSIVE POWER TO REGULATE ALIENS IN THE US 2. THE STATE WILL NOT BE SUBJECT TO STRICT SCRUTINY IF a. CLASSIFICATION IS BASED ON STATES INTEREST IN PRESERVING THE POLITICAL COMMUNITY vi. INFRINGEMENT ON A FUNDAMENTAL RIGHT IS SUBJECT TO STRICT SCRUTINY 1. IMPLIED RIGHTS NOT EXPRESSED OR ABSOLUTE IN THE CONSTITUTION

e.

10

a. b.

NOT EDUCATION BUT VOTING: ONCE RIGHT TO VOTE IS CREATED, RIGHT TO EQUAL ACCESS IS PROTECTED

XVIII. STATE ACTION a. IS THE PERSON WHO IS CHARGE WITH CAUSING HARM A GOVERNMENTAL ACTOR i. IF YES, STATE ACTION. IF NO, MOVE ON. b. DID THE STATE AUTHORIZE THE PRIVATE ACTOR? i. PUBLIC FUNCTION THEORY 1. COMPANY TOWN SATISFIES THE STATE FUNCTION REQUIREMENT MARSH V. ALABAMA a. LARGELY INAPPLICABLE IN MODERN TIMES, BUT MAY BE REVIVED b. APPLIED TO LARGE SHOPPING MALLS, BUT ABROGATED 2. POWERS TRADITIONALLY EXCLUSIVELY RESERVED TO THE STATE a. DEFINE RELEVANT GOVERNMENTAL POWER OR FUNCTION i. NARROW OR BROAD 1. PRIVATIZATION OF PRISONSMAY BE VIEWED AS
TRADITIONAL EXCLUSIVE GOVERNMENTAL FUNCTION

ii. STATE INVOLVEMENT THEORY OR NEXUS THEORY 1. SYMBIOTIC RELATIONSHIP BETWEEN GOVERNMENT AND PRIVATE PARTY MAY
CONSTITUTE STATE ACTION a. IF THE PRIVATE PARTY IS INDISPENSABLE TO FINANCIAL SUCCESS OF THE PUBLIC AGENCY BURTON V. WILMINGTON PARKING AUTHORITY b. DETERMINE THE LEVEL OF THE RELATIONSHIP i. TEST FOR SYMBIOTIC RELATIONSHIP: 1. DEPRIVATION CAUSED BY EXERCISE OF A RIGHT CREATED BY THE STATE OR STATE ACTOR 2. PARTY CHARGED WITH THE DEPRIVATION CAN FAIRLY BE REGARDED AS A STATE ACTOR BECAUSE a. PARTY IS A STATE OFFICIAL b. ACTED WITH OR SIGNIFICANTLY ASSISTED BY A STATE OFFICIAL OR c. CONDUCT IS OTHERWISE CHARGEABLE TO THE STATE PERVASIVE ENTWINEMENTBRENTWOOD V. TSSAAA a. EXTENSIVE PARTICIPATION OF STATE AND PUBLIC OFFICIALS DECIDING POLICY b. STATE DELEGATES REGULATORY AUTHORITY TO A PRIVATE COMPANY c. PRIVATE EMPLOYEES SUBJECT TO STATE BENEFITS

2.

XIX. ENFORCING CONSTITUTIONAL RIGHTS a. SECTION 5 OF THE FOURTEENTH AMENDMENT PROVIDES THAT CONGRESS HAS THE POWER TO ENFORCE THE SUBSTANTIVE TERMS OF THE AMENDMENT BY APPROPRIATE LEGISLATION. i. APPROPRIATE LEGISLATION IS CONFINED TO LEGISLATION REGARDING THE FOURTEENTH AMENDMENT (EP, DP, PI) ii. SUBSTANCE OR PROCEDURE 1. JUSTICE BRENNAN IN KATZENBACH ARGUED THAT CONGRESS ENFORCEMENT
POWER WAS VERY BROAD a. INCLUDED BOTH REMEDIAL POWERS AND b. POWERS TO DEFINE THE SUBSTANCE OF THE FOURTEENTH AMENDMENT c. REGARDLESS OF PRIOR JUDICIAL DECISIONS

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2. CONGRESS ENFORCEMENT POWER IS LIMITED TO REMEDIAL POWER (FLORES) a. MUST BE EVIDENCE OF CONSTITUTIONAL VIOLATIONS CONGRESS SEEKS TO
REMEDY

i. REMEDY MUST BE CONGRUENT WITH THE VIOLATIONS AND ii. PROPORTIONAL TO THE INJURIES REMEDIED 3. BOARD OF TRUSTEES V. GARNETTADA ACTION AGAINST THE STATE FOR EMPLOYMENT DISCRIMINATION AGAINST DISABLED PERSONS. a. COURT DECIDES WHAT AN EQUAL PROTECTION VIOLATION, AND CONGRESS DOES NOT HAVE THE POWER TO TRUMP COURT DECISIONS UNDER SECTION 5
LEGISLATION

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