Will not find on exam:

1. 6th element of standing; zone of interest rule

1. Dormant commerce clause
i. Congressionally made exceptions
i. Discriminatory in Purpose
1. Overly Broad Statute
 
Answering: IRAC
Stating the rule is good enough
 May want to state what case it came from
Application may be a good place to compare facts
 
 
Outline
1. Structural - way constitutional system is organized
 Separation of Powers - Relation of Three Branches
1. Judicial
a. Sources - Const. does not specify any powers over
a. Article III
b. What is judicial power
i. Marbury v. Madison
ii. Declare acts of Congress/Executive unconstitutional
c. Jurisdiction
i. Original
ii. Appellate
b. Limitations
a. Constitutional Interpretations
i. Ban on advisory opinions - may deal only in cases
and controversies
a. Unless there are two parties which have
enough interest and actual dispute
b. Court opinion have effect on actual dispute
b. Limiting Doctrines
i. Constitutional Standing
a. Injury –
i. concrete, imminent,
ii. personal to that party,
iii. and is legally cognizable
b. Causation/Traceable - to Government
Action
c. Redressible - injury can be compensated for
ii. Prudential Standing
a. No third party claim
 When a person is raising a claim that
someone else's const. rights are violated
  Injury stems from violation of
someone else's rights
 Singleton v. Wulff- claim was
patients Constitutional rights were being violated;
question was whether or not doctor’s were being
injured and whether or not they were allowed to
assert the claim that their patient’s rights were being
violated RESULTING IN the doctor’s injuries
b. No generalized grievances
 Tax payer lawsuit
 Sues charging that congress
is spending money unconstitutionally
 Is concrete, but not a
personalized injury
 Citizen lawsuit
 No injury when government
does not follow the law
 Effects everyone in country,
not personal
a. Narrow Exception
 Flast v. Cohen
 If a person is challenging an exercise of
Congressional taxing and spending
power and the lawsuit alleges Congress
is violating a specific prohibition in the
Const. then narrow exception
 Valley Forge Case
 Very, very narrow exception
i. Ripeness - question of whether it is yet a case for
the course to hear
a. Situations where a statute or a regulation has
been passed but has not gone into effect. Challenged by
individual/corp. being regulated.
a. Not ripe because statute has not gone into
effect
a. If the statute is going into effect, is it
permissible to determine the constitutionality
a. Regulated needs time to prepare, need to
know now
a. Analysis:
a. Certainty of Enforcement
a. Unconstitutional Choice
 Putting the corp. in a place of
following regulation it believes to be unlawful
or ignoring regulation because it believes to be
unlawful and held in violation
  Abbot Labs v. Gardener
a. Collateral Injury
 May satisfy ripeness
 Need to know because many
parties are in limbo
i. Mootness - nothing the court can do for the plaintiff
a. Was a plaintiff who had standing
a. Was ripe for adjudication
a. Something has happened so there was
nothing left for the court to do to redress the injury of the
plaintiff
a. Exceptions:
a. Capable of repetition yet evading
judicial review for that particular plaintiff
 Roe v. Wade - moot to that
pregnancy, but not to others
a. Voluntary Cessation
 Will not dismiss unless the
Defendant can show it will never revert to
illegal/unconst. conduct
a. Class Action
 A large number of plaintiffs
possess injury so if named plaintiff no longer
suffers injury the point will not be moot
i. Political Question Doctrine - assume other req.s are
met
a. Nature of the claim the plaintiff is making
court will not hear case
a. Issue that belongs to political branches
rather than judicial branch - policy
a. Baker v. Carr
a. Factors
 Constitutional reasons
a. Textual
 constitutional commitment of the
issue to one or both political
branches
b. Competence - lack of judicial
expertise/standards
 Prudential Reasons
a. Potential for Embarrassment
b. Comity
 Whether the courts would be
stepping on the toes of the other
branches
 c. Competence - other branches are more
knowledgeable
a. Goldwater v. Carter
 Embarrassment of a Branch
a. Nixon v. US
 Appropriate role of court in
deciding issues of impeachment of judges
a. Powell v. McCormick
a. Congressional Limits
i. McCartle
a. Congressional Limits on Jurisdiction
a. Narrow v. Broad Holding
i. Klien
a. Congress cannot interfere with role of
judiciary
a. Congress cannot overturn decision of U.S.
Supreme Court
a. Congress cannot interfere with powers of
President
1. Legislative
Analysis
 Is there a Power?
 Is there a Prohibition?
a. Sources of Power
a. McCulloch v. Maryland
i. Broad federal legislative power
a. Enumerated powers and what is necessary and proper to
carry out those powers
a. Commerce Clause - broad clause
i. Channels of Commerce- Broad/Plenary
a. Can do virtually anything it wants for any reason
a. Regulating transportation of goods/people across state lines
i. Protect Instrumentalities of Commerce
a. Railroad
a. Interference with interstate system
i. People and things that travel in commerce
a. to protect goods and people
i. Local Activities that substantially effect commerce
a. Bootstrap theory - regulation would have affect on
congress's authority to regulate
a. Substantially
a. Nexus to interstate commerce
1. Lopes - possession of gun in school-zone
a. Must be economic activity
a. Lopes and Morrison
a. Taxing and Spending Power
 i. Butler
a. Broad interpretation of power
i. Congress has authority to tax and spend as it sees fit
a. No constitutional prohibitions
a. Within general welfare
i. S.D. v. Dole
a. Political Responsibility Theory
a. Can withhold funding if states do not follow regulation
a. Commerce and Spending Limitations
i. 10th Amendment
i. Regulating states as states or laws of general application which
include the states within its scope
i. Not really relevant to Commerce Clause
a. Garcia v. Santa: Political Question Doctrine
a. NY Nuclear Waste, Prince: Not law of general application,
it is a congress singling out states and commandeering
states into system of federal regulation
a. Violates principles of federalism
a. Conda
a. Regulation of Driver licenses database
a. Law of general application like Garcia
a. Not regulation states as members of federal system
a. Civil War Amendments
i. Section 2 of 13th - mirror 14th
i. Section 2 of 15th - mirror 14th
i. Section 5 of 14th Amend.
a. Power to enforce Due Process and Equal Protection
a. Can be laws directed at states
a. Can be laws creating causes of action for violation of DP
and EP
a. Interpretation - Both good law
a. Katzenbach v. Morgan - Broad
1. Denied right to vote on literacy - Spanish
1. Congress prohibited literacy denial for
Spanish speaking
1. Court broadly interpreted Section 5, giving
congress discretion which problems pose EP
problem and to solve the problem
a. Morrison - Narrow - Likely To Be Applied
1. All congress can do is enforce the 14th
amend
1. Court will decide what clauses means
1. If court has not decided if clause violated,
congress does not have authority to enforce
a. Civil War Amendments Limitation
i. Who can be regulated?
 a. Congress can regulate states
i. What constitutes regulation?
a. See Katzenbach and Morrison
a. Is congress enforcing a right that has already
been protected by the Supreme Court?
a. Executive
a. Sources
i. Directly from Constitution
a. Pardon, Appoint Judges, Commander in Chief
i. Indirectly from Constitution through Congress
a. Authorizing/Requiring president to do something
a. Must be constitutional
i. Youngstown case:
a. Inherent Federal Powers - things president can do not in
constitution or by congress: NO
i. Jackson/Douglass Analysis
a. President does have the power to act if it does not interfere
with the powers of congress
a. Congress and President are acting together then the
President is almost certainly allowed to do it
a. Unless it explicitly violates the Constitution -
Prohibition
a. If congress has disapproved
1. The president will probably lose unless the
president can show he has the power in the
constitution or that the federal law is
unconstitutional
a. Middle Zone - No Guidance
1. President has the power to act in the gaps as
long as he does not interfere with power of congress
1. Steel Mill - congress has power to
spend
i. Privilege -none are absolute - balance against other interests
a. No specific power
a. National Security
a. Criminal Investigation
a. Confidential Communications
a. Presidential Communications
i. Congress and President
a. Does congress have authority to pass a law to increase the
power of the president
a. Framers decided balance - Clinton v. NY
a. Any shift in power undoes the balancing act of the
framers
a. Federalism - Relation between Federal and State governments
a. Federal Constitution as a limit on state power
a. Preemption
i. When congress and the stats pass conflicting laws
i. Under supremacy clause federal law applies
i. When they do not conflict
a. Express Preemption
a. Congress states this is the regulation and no further
regulation by states
a. Implied Preemption
a. Courts conclude even though there is no explicit
preemption it intended to
1. Courts try to figure out congressional intent
a. Field Preemption - Area that is being regulated
1. Dominant federal interest
1. Congress intended to preempt the
field
1. Existence of pervasive scheme of federal
regulation
1. Congressional regulation is so in
depth it intended it to be sole regulation
a. Conflict Preemption
1. Direct Conflict
1. Federal Statute Prevails
1. Avocado Growers
1. Frustration of Federal Purpose
1. If state statute impedes effectiveness
of Federal Statute the court will find the Federal
Legislation preempted it.
1. Pacific Gas and Electric
1. State statue was not
preempted because the Federal statute was not
an at all costs legislation
1. Alien registration act
1. Purpose of unified standard
1. Dominant federal interest -
field preemption
a. Dormant Commerce Clause
i. States are not necessarily free to regulate
i. If a state law interferes/Burdens interstate commerce
a. Is the Law Discriminatory?
a. On its face - statutory language treating out of state
different or blocking flow of good
a. In effect -
1. Hunt Apple Case
a. In purpose - not tested
a. Yes - Strict Scrutiny Dean Milk Test
1. State must show a legitimate state interest
 1. And the absence of non-discriminatory
alternatives
a. No - merely burdens - heightened scrutiny Pike
Test
1. Does the law operate evenhandedly?
1. To promote a legitimate interest?
1. Are the burdens on interstate commerce
merely incidental
1. Will uphold, unless the burdens on interstate
commerce outweigh the benefits
1. Castle v. Consolidated Freightways
i. Exceptions
a. Congress pass laws exempting it
a. Market Participant
a. If the state is participating as opposed to regulating,
then the DCC does not apply
1. White v. Mass Construction
1. Hughes v. Alexandria Scrap
1. Reaves v. State
1. South Central Timber - state is not market
participant
a. Privileges and Immunities Clause
i. Art IV Sec. 2
i. Creates individual rights, designed to protect out of state citizens
against discrimination of fundamental rights
a. Economic, jobs, business
a. Violation of Constitutional Rights
i. Is there a Fundamental Rights being Infringed?
a. No: no P&I case
a. Baldwin
a. Yes: P&I Applies
a. Toomer v. Whitsell
a. Piper v. SC of NH
a. Ends Means Test
a. Is there a substantial interest?
a. Is the regulation substantially related?
a. Is the regulation narrowly tailored?
2. Individual Liberties
a. Due Process
a. Social and Economic Legislation - Rational Basis
 Caroline Products
 Williamson v. Lee Optical
i. Is there a Legitimate State Interest?
a. Court looks for reasons to justify
ii. Is the Law rationally related to legitimate state interest?
b. Fundamental Rights - Strict Scrutiny
  Roe v. Wade
a. Is there a Compelling state Interest
a. Is the law Narrowly Tailored/Necessary towards the state interest
a. Equal Protection
 Social and Economic Legislation - Rational Basis
 Railway Express
a. Is there a Legitimate State Interest?
a. Is the Classification rationally related to legitimate state interest?
 Gender - Intermediate Scrutiny
a. Important state interest
a. Is the Classification substantially related to legitimate state
interest?
 Fundamental Rights - Strict Scrutiny
 Most often Racial discrimination
a. Is there a Compelling state interest?
a. Is the Classification necessary to the legitimate state interest?