Contents

I. Judicial Power ............................................................................................................................................................. 2

JUDICIAL REVIEW ....................................................................................................................................................2
Marbury v. Madison: ...............................................................................................................................................2
Supreme Court Hears cases based off of ...............................................................................................................2
Limits on What the Court Can Hear: .......................................................................................................................2
II. Legislative Power .......................................................................................................................................................3
First, where did the exercise of power come from? ....................................................................................................3
Exercise from one of the Express, Enumerated powers? .......................................................................................3
Exercise from an implied power? ............................................................................................................................ 3
ENUMERATED AND IMPLIED POWERS ..................................................................................................................3
1. Taxing Power: .....................................................................................................................................................3
2. Spending Power: .................................................................................................................................................3
3. Commerce Power ...............................................................................................................................................3
4. War Powers ........................................................................................................................................................4
Delegation of Legislative Power: ................................................................................................................................ 4
Congressional Veto of Executive Actions is Invalid ....................................................................................................4
III. Executive Power .......................................................................................................................................................4
Appointment: .............................................................................................................................................................. 4
Removal: ....................................................................................................................................................................4
Pardon: .......................................................................................................................................................................4
Veto: ...........................................................................................................................................................................5
Executive Orders (internal affairs): ............................................................................................................................. 5
Foreign Affairs: ...........................................................................................................................................................5
IV. Powers of the States.................................................................................................................................................5
FEDERALISM and FEDERAL SUPREMACY:............................................................................................................5
When is a states action valid? ................................................................................................................................ 5
PRIVILEGES AND IMMUNITIES:............................................................................................................................... 5
Article IV:.................................................................................................................................................................5
14th Amendment:....................................................................................................................................................6
DORMANT COMMERCE CLAUSE: ...........................................................................................................................6
SUBSTANTIVE DUE PROCESS AND THE EQUAL PROTECTION CLAUSE ..........................................................6
The 14th Amendment Due Process Clause ...................................................................................................................6
Is There a Fundamental Right Involved? ................................................................................................................6
Is the Constitutional Right Infringed? ......................................................................................................................7
Is There Sufficient Justification for the Governments Infringement of the Right? ...................................................7
Right of Privacy: From Liberty Clause .....................................................................................................................7
Individual Rights: The 14th Amendment Equal Protection Clause ......................................................................7
When is Discrimination Present? ............................................................................................................................ 7
Three Categories of Protection: .............................................................................................................................. 8
Equal Protection: Racial Classifications ..................................................................................................................8
Equal Protection: Purpose and Effect .....................................................................................................................8
Equal Protection: Affirmative Action ........................................................................................................................9
Equal Protection: Alienage ......................................................................................................................................9
Equal Protection: Gender Classifications ................................................................................................................9
Equal Protection: Sexual Orientation ......................................................................................................................9
V. FIRST AMENDMENT FREEDOMS ......................................................................................................................... 10
FREEDOM OF EXPRESSION ................................................................................................................................. 10
Government Speech: ............................................................................................................................................ 10
What is speech? ................................................................................................................................................... 10
Content-based Regulation: ................................................................................................................................... 10
Content-neutral: .................................................................................................................................................... 10
Unprotected Speech: ............................................................................................................................................ 10
Commercial Speech: ............................................................................................................................................. 11
Prior Restraints: .................................................................................................................................................... 11
FREEDOM OF ASSOCIATION: ............................................................................................................................... 11
Limits on Contributions: ........................................................................................................................................ 11
Limits on Expenditures: ......................................................................................................................................... 11
Freedom of Association/or not to: ......................................................................................................................... 11
FREE EXERCISE CLAUSE...................................................................................................................................... 11
ESTABLISHMENT CLAUSE .................................................................................................................................... 12

I. Judicial Power
Interpretation of the Constitution and all federal laws
Disputes between states, states and foreign citz, and federal diversity
JUDICIAL REVIEW
Marbury v. Madison:

Constitution = supreme law of the land, Supreme Court has duty to review
constitutionality of laws, congress cant expand article III jurisdiction

Supreme Court Hears cases based off of

Writ of Certiorari: can use discretion comes from federal issues or constitutionality
On Appeal: Supreme Court must hear, from decision by 3-panel fed court about injunctive relief
Limits on What the Court Can Hear:
1. No advisory opinions: Present case and controversy only, must be present harm or real and
immediate danger of harm
2. Political Question:
i) reserved for another branch in the constitution
ii) inherently incapable of judicial resolution
NOTE: Political (republican form of government clause challenge; congress procedures
for ratifying const amend; meeting congress requirements; foreign policy) Not
Political(Arbitrary exclusion of congressional delegate; production of presidential
papers/comm; EQ clause on gerrymandering)
3. Ripeness: No judicial review before enforcement of statute or regulation
4. Mootness: controversy must exist at all stages of review, unless capable of repetition while
evading review or class action
5. Standing:
i) Injury: plaintiff directly/personally injured by action, doesnt have to be
economic.
ii) causation: actual, definite connection between the injury and action
iii) redressability: a positive decision must be capable of giving relief
NOTE: Congress cannot grant standing to someone with no injury, but may create new
interests that can be injured
NOTE: Plaintiff has standing to enforce fed statute if within zone of protection the statute
was meant to protect
NOTE: Generally, no 3rd party standing without special relationship, but if have standing
in own right may assert the rights of 3rd party if 3rd part cant or special relationship exists
NOTE: No taxpayer standing to challenge government expenditures, except for
congressional spending in violation of establishment clause (TAXPAYER = SPENDING
CLAUSE + RELIGION)
6. Abstention:
i) Already resolved on Adequate and Independent State grounds
ii) Involves an Unsettled question of state law

iii) There are proceedings pending in state court

UNLESS harassment or bad faith prosecution
7. The Eleventh Amendment
II. Legislative Power
First, where did the exercise of power come from?
Exercise from one of the Express, Enumerated powers?
Then: Youre okay check Due Process, Freedom of Expression, Federalism, and Separation of
Powers
Exercise from an implied power?
Then: McCulloch v. Maryland
1. Were the means PLAINLY ADAPTED?
2. Was the ends LEGITIMATE?
3. Were the ends PROHIBITED?
(Necessary and Proper Clause case. Congress can make all laws N&P for executing ANY power
granted to ANY branch of the fed govt. BUT NEED UNDERLYING FEDERAL POWER TO
EXERCISE)
4. Still check Due Process, FoE, Federalism, SoP
ENUMERATED AND IMPLIED POWERS
1. Taxing Power:
i) bear reasonable relationship to revenue production
ii) or, congress has power to regulate the activity taxed
NOTE: No tax exports to foreign countries
NOTE: Tax or regulation? Look to see if purpose is to raise funds, vs punishing bad action
NOTE: Tax can apply to state/public sector if it applies to both private and public sector equally
2. Spending Power:
i) congress may spend for the common defense and general welfare
ii) any public purpose
CONDITIONAL SPENDING:
a) congress can regulate states via putting conditions on their spending,
as long as
conditions are CLEARLY STATED,
RELATED TO THE PURPOSE of the program, and
Are NOT UNDULY COERCIVE
NOTE: Congress can only tax/spend for general welfare, no police power to legislate for it, which
is reserved for the states
3. Commerce Power

Congress has the power to regulate al foreign and interstate commerce, can
regulate activity but cannot compel activity
Interstate commerce regulations must be regulating:
i) the channels of interstate commerce
ii) the instrumentalities of interstate commerce
iii) or, things that have a substantial effect (severally or in the aggregate) on interstate
commerce
NOTE: Intrastate commerce/activity: MUST HAVE JURISDICTIONAL HOOK
a) economic or commercial activity
b) rational basis that, in the aggregate,
c) would substantially effect interstate commerce
NOTE: Non-economic activity, like guns in school zones, need to show a direct substantial
economic effect on interstate commerce
4. War Powers
Congress can declare war, raise and support armies, and provide for and maintain a navy
Economic Regulation: War time eco regulation has been held to be ok, compelling interest and all
that (probably still rational basis test)
Military Courts/Tribunals: No judicial review, enemies can be tried in military courts but still need
habeas corpus review, American citizens can only be tried if court was shut down
Delegation of Legislative Power:
Delegation:
Generally, can be delegated to executive/judicial branches as long as INTELLIGIBLE
STANDARDS are set and the power wasnt CONFINED to congress (war, impeachment) (almost
everything is ok)
Congressional Veto of Executive Actions is Invalid
Legislative veto: attempt to overturn executive agency action without BICAMERALISM (passage by both
houses) and PRESENTMENT (giving the bill to prex to sign or veto). These are invalid.
III. Executive Power
Appointment:
1. Appointment by prez of MAJOR executive officials, with Senate approval
2. congress can vest appointment of INFERIOR officers in exe/judicial branch, but cannot appoint
any admin/enforcement positions themselves
Removal:
1. Removal by prez of high level, purely executive officers (cabinet) at will
2. Removal by prez of all other executive positions can be limited by congress via statute (good
cause)
3. Removal by Congress via IMPEACHMENT
Pardon:
1. Prez can pardon for all federal offenses except impeachment or civil contempt

2. Prezs power to pardon cannot be limited by Congress

Veto:
1. All legislative acts must come to present for approval or veto, veto can only be overridden by 2/3
vote of both houses
2. 10 days to act, fail to act = approval if congress in session, fail to act = veto if congress not in
session
Executive Orders (internal affairs):
MOST POWER: President acts with the express/implied authority of congress, most likely valid
NORMAL POWER: President acts where congress was silent, valid unless usurps or hinders the
power of another branch of government
LEAST POWER: President acts against the express will of congress, his action is likely invalid
(refuse to spend appropriated funds when congress mandated their expenditure)
NOTE: The TAKE CARE CLAUSE might affect the least power one, because he must take care
that the laws be faithfully executed
Foreign Affairs:
1) War: Prez has no power to declare war, but may act militarily in actual hostilities against US
without declaration of war, but can be limited by Congresss power to enact military appropriation
every two years
2) Foreign Relations:
Day to day: Prez has paramount power
Treaty: Power to enter treaties, subject to ratification by 2/3 of Senate
IV. Powers of the States
FEDERALISM and FEDERAL SUPREMACY:
When is a states action valid?
Is it pre-empted by federal law?
Federal Supremacy: Has fed law occupied the field (comprehensive regulatory scheme) or
does state law conflict/prevent achievement of federal law?
IF SO, Federal Law Trumps.
Unlike Federal Law, State law does not have to be based in some power from the constitution.
Furthermore, States have the police power to regulate for the general welfare.
NOTE: States can tax federal instrumentalities if the taxes are nondiscriminatory and only have an
indirect application to the federal, and do not unreasonably burden (state income tax)
Also, Federal Laws may be invalid if they step into the shoes of the state government or try to regulate in
areas traditionally reserved to the states.
PRIVILEGES AND IMMUNITIES:
Article IV:
prohibits discrimination by states against non-residence (not corporations and aliens)
1. Only Fundamental rights involving commercial activates and Civil liberties are protected

2. Exception if there is a SUBSTANTIAL JUSTIFICATION for the treatment, no least restrictive

means
3. Mutually reinforcing with the dormant commerce clause
14th Amendment:
states may not deny their citizens the privileges or immunities of NATIONAL citizenship, i.e., the 18th amendments(slaughterhouse cases). Corporations not protected
DORMANT COMMERCE CLAUSE:
a.
b.

Absent a grant by congress,

States may regulate interstate commerce
i. If they are not preempted/prohibited federally
And
ii. There is no:
1. FACIAL DISCRIMINATION between states,
2. Passes the RATIONAL BASIS test, and
3. Does not UNDULY BURDEN interstate commerce
a. Balancing test
EXCEPTIONS:
i. An IMPORTANT STATE INTEREST and NO REASONABLE NON-DISCRIMINATORY
alternatives (bait fish with parasites)
ii. State is a MARKET PARTICIPANT (buying/selling, subsidies)
iii. Involves TRADITIONAL GOVERNMENT FUNCTIONS (waste disposal, etc/ not likely
motivated by economic protectionism)

SUBSTANTIVE DUE PROCESS AND THE EQUAL PROTECTION CLAUSE

Due Process: Involves right of ALL persons to engage in some activity
Equal Protection: Treats a person or class of persons differently than others (states only)
The 14th Amendment Due Process Clause
NOTE: Slaughter House Case + Barron: Privileges and Immunities clause is essentially void, because first 8
amendments are incorporated onto the states via the 14th due process clause
NOTE: Lochner (baker 60 hr work week law bad) to its progeny (west coast hotel = min wage women = ok, lee
optical = non licensed opt cant make lense = ok) means that economic cases (nonfundamental rights) use
RATIONAL BASIS
Is There a Fundamental Right Involved?

Expressly ENUMERATED in the constitution?

o Via the first 8 amendments plus the fifth? (Incorporated onto the states
vis the 14th?)
o Life, Liberty, Property, 1-8th amendments
IMPLIED?
o Deeply rooted in history and tradition
o How do we find implied fundamental rights?

Originalism: What the framers meant, enumerated only

Natural Law: freedoms required for the orderly persuit of

happiness by free men

Moral Philosophy: underlying moral values?

Historical Aspect: from tradition

Common Law: law develops like common law, with majorities,

but what about run away majorities?

Is the POLITICAL PROCESS to be trusted? (run away majority)

Is the Constitutional Right Infringed?

Is the EXERCISE of the right prohibited?

Or is there direct and substantial INTERFERENCE?

Is There Sufficient Justification for the Governments Infringement of the Right?

Is the ends or government interest COMPELLING?

Are the means NECESSARY to achieve the ends?

If No Fundamental Right Involved, use RATIONAL BASIS.

Right of Privacy: From Liberty Clause
1. Marriage: high level, maybe not for inmates
2. Contraceptives: cant prohibit non-medical to adults
3. abortion, pre-viability = undue burden (substantial obstacle), post = if life not in danger
4. Obscene reading material: free to have in own home, except CP
5. Keeping Family together: zoning not ok
6. Rights of Parents: Right to make decisions abt case, custody, and control
7. intimate sexual conduct

Individual Rights: The 14th Amendment Equal Protection Clause

STATUTE/LAW/REGULATION DISCRIMINATION = EQUAL PROTECTION ISSUE

Introduction to Equal Protection: Classifications and Standards of Scrutiny
NOTE: Equal protection binds the states only, not the federal government (14th amendment)
NOTE: MAKE SURE THERE IS A STATE ACTOR

When is Discrimination Present?

Facial Discrimination:

Law is discriminatory on its face

(Ex: no blacks may own land, no descendants of slaves may own land)
Discrimination by Design or Motive:

The law is facially neutral, but has some discriminatory motive or the
law was designed to meet a discriminatory purpose

INVIDIOUS PURPOSE + DISPARATE IMPACT

o Invidious discriminatory purpose can be inferred from totality
of facts (Washington v. Davis, more blacks than whites failed
police officer test)
o Legislative history can be used to reveal discriminatory intent
o Manner of adoption can be used, if deviated from normal
procedure.

(Ex: carpenters must weigh more than 160 lbs may be a way of excluding
women from carpentry must prove that it has that effect and was part of
laws design)
Discrimination by Application

The Law is facially neutral and did not have a discriminatory design/motive,
but is applied in a discriminatory way

(Ex: a speed limit of 55 is not facially or design discriminatory, but could be

challenged via equal protection if it could be shown that police only used it to
ticket females)

Three Categories of Protection:

Categories of Classifications, the ends or the nature of the government interest, the fit
or relationship between the regulation/category and the government interest
Strict Scrutiny

Fundamental Rights (1st amendment, privacy, interstate travel) +

Suspect Classifications (Race, Alienage not immigration, National Origin)

o History of discrimination, immutable characteristics, political
minority

Regulation must be NECESSARY to protect a COMPELLING government

interest
Necessary means that the regulation must be NARROWLY TAILORED
o (burden on defendant)

Intermediate Scrutiny

Quasi Suspect Classifications (Gender, Legitimacy)

Regulation must be SUBSTANTIALLY related to the protection of an

IMPORTANT government interest

Rational Basis

The default level of scrutiny, for everything else

Regulation must be RATIONALLY related to the protection of a

LEGITIMATE government interest (must not be ARBITRARY)
o (burden on plaintiff)

Look at over inclusive and under inclusive to see causes state to not advance
interest (railway express, can ban some distracting ads w/o having to ban them
all) (New York Transit Authority, banning methadone users from NYTA jobs is
okay and not irrational) (Cleburne, irrational fear of old/feeble minded is not
legitimate interest for zoning out elderly home)

Equal Protection: Racial Classifications

DRED SCOTT:
History of slavery being const protected (3/5 clause, slave trade till 1808)
Holdings: No federal diversity jurisdiction because Scott citizen of state
(framers intent) + Scott not freed by travel in free areas b/c congress
had no power to outlaw slavery (no const power, MS comp violate 5th
amendment)
PLESSY v. FERGUSON
Racial segregation of trains ok if reasonable
BROWN v. BOARD OF EDU
Segregation is harmful to blacks b/c supports white supremacy, via social stigma,
sociology, constitution must be color blind, and the times have changed
STRAUDER:
White male only jury was implied inferiority and EP clause intend to protect freed
slaves from harm, so affirm action programs imply inferior b/c nec to remedy
harm from slavery (law discriminatory on its face)
KOREMATSU:
Racial Classification = immediately suspect, thus strict scrut, but war curfew then
exclusion of Japanese from California was upheld
Equal Protection: Purpose and Effect

YICK WO (LEE WICK):

Racially invidious purpose, laundry washing places regulation, hurt mostly Asian
places (discriminatory application)
LOVING v. VIRGINA:
Mixed couple married in different state, cohabitated in state with Statute to
prevent mixed race marriages, no legitimate purpose and supported white
supremacy
Even through it burdened races equally, court looked to effect and
purpose
Equal Protection: Affirmative Action

BAKKE v. REGENTS of CALIFORNIA:

Med school reserved 16/100 seats for minorities, invalid b/c race can be a factor,
but only in connection with other issues. Interest in diversity is legitimate, but cant
exclude non-minorities from the competition (discrim = ok if remedy past
exclusion)
GRUTTER v. BOLLINGER
Race can be a factor for admission, diversity is a compelling interest, need
critical mass for diversity to be an issue, race factor is ok, but cant be a quota
FISHER v. UT AUSTIN:
School use a part color-blind admittance, part grutter admittance
Four justices say const should be color blind, three want critical mass for
diversity, kennedy says race ok to remedy past, but no quotas
Equal Protection: Alienage
Legal Aliens: Cant discriminate against them in anything that doesnt affect political
system. Welfare = no, political office = ok
Illegal Aliens: Can discriminate because federal government has plenary authority and
delegated to states
Equal Protection: Gender Classifications

CRAIG v. BOREN:
3.2% beer age 18 women, 21 men. Intermediate scrutiny. stop drunk driving,
means not substantially related to ends (watch for private actors, like insurance
cos., discriminating on gender, because they can)
US v. VIRGINIA
Women wanted to attend all male military academy, so state made equivalent
woman only version. Seems like intermediate + standard. Ginsberg:
exceedingly persuasive justification needed and school was pale shadow of
other.
Equal Protection: Sexual Orientation

ROMER v. EVANS:
Rational basis + teeth
ACTIVE RATIONAL BASIS = government must actually prove legitimate
rational basis, must be more than debatable
Colorado ordinance to protect against orientation discrimination:
Rational basis review: lack political access + inference of animus + no
legitimate purpose = discrimination
US v. WINDSOR
Supreme court held that restricting fed interp of marriage and spouse to only
apply to hetero marriages in DOMA violates the 5th amendment due process
clause. No legitimate purpose overcomes the purpose to disparage and injure.

Might be a federalism argument, ie., the states should get to regulate marriage
HOLLINGSWORTH v. PERRY
Same day as Windsor, over Californias const amend gay marriage ban, ruled
proponents lacked federal jurisdiction to appeal
V. FIRST AMENDMENT FREEDOMS
FREEDOM OF EXPRESSION

Government Speech:

Free speech only applies to regulation private speech

Gov speech subject to EP and Establishment clause
Generally upheld if RATIONAL BASIS TEST
Funding speech must be VIEW POINT NEUTRAL (except arts)

What is speech?

To speak and not to speak

Symbolic acts
o Unless important interest, independent of speech act

Content-based Regulation:

Must Pass STRICT SCRUTINY

Content-neutral:
Generally,

INTERMEDIATE SCRUTINY (narrowly tailored)

Time, Place, Manner

Public Forum/designated public forum

o Traditionally/historically reserved for 1st amend purposes
o Streets, sidewalks, public parks
o Regulations must be

CONTENT NEUTRAL

INTERMEDIATE SCRUTINY

ALTERNATIVE CHANNELS OPEN

o Prior restraint:

Strict scrutiny if content based, intermediate if not

Limited Public Forum

o Not historically 1st amendment, opened for specific speech activity
o Can reserve the forum for its intended use

Rational basis

View point neutral

Overbroad regulation is invalid

Includes a substantial amount of protected speech

If not subst overbroad, can be enforced against non-protected conduct

Void for Vagueness

So vague that it doesnt give reasonable notice, may be void

No Unfettered Discretion

Need defined standards

Unbridled discretion = void on its face

Unprotected Speech:
NOTE: none of these can be view point related, unless like cant threaten the prez
1) incitement:

Speaker intended

Likely to incited

Imminent lawless action

2) fighting words and true threat

Cross burning with intent to intimidate

PERSONALLY ABUSIVE

Likely to INCITE PHYSICAL RETALIATION

Usually invalid bc vague/overbroad/viewpoint

3) obscenity

Taken as a whole, by the average person

o Appeals to prurient interest in sex, using community standard
o Is patently offensive, using community standards
o Lacks serious value (art, lit, pol, sci), using a national reasonable
person standard

Standard may be different for minors

o CP not ok
o Simulated/fake CP not obscenity

Targeting secondary effects of adult entertainment ok, but cant ban them
entirely

Cant ban private possession in the home, except CP

4) Defamation:

Public official/public figure/public concern

o Elements of defamation plus falsity plus intent
Commercial Speech:

First amendment protection if TRUE/not misleading/not fraudulent

Otherwise kind of a INTERMEDIATE SCRUTINY
o Substantial government interest
o Directly advances interest
o Narrowly tailored

Prior Restraints:

Must show SPECIAL SOCIETAL HARM

o Procedural:

Narrowly drawn, reasonable, definite

Injunction prompt

Prompt/final determination of validity

Government bears burden

FREEDOM OF ASSOCIATION:

Limits on Contributions:

Intermediate scrutiny
Can limit to political candidate, but not committee to support or oppose a ballot measure

Limits on Expenditures:

Cant limit expenditures

Freedom of Association/or not to:

Cant force to allow members, if allowing members would harm the message of the group

FREE EXERCISE CLAUSE

1. Cant punish beliefs

No religious oaths

No excluding clerics

No saying a religion/belief is false

UNLESS COMPELLING INTEREST (never happened)

2. General Conduct Regulations dont apply

Not specifically designed to interfere with religion

Except unemployment compensation

And right of Amish not to educate children in state school

ESTABLISHMENT CLAUSE

A law challenged under the establishment clause will be found invalid, unless
1) the law has a SECULAR PURPOSE
2) PRIMARY EFFECT neither advances nor inhibits religion
3) does not produce EXCESSIVE GOV ENTAGLEMENT WITH RELIGION
If there is discrimination between religions in the law, you dont even have to apply the lemon test:

Strict scrutiny