Does the Plaintiff Have Standing?
First check
CONSTITUTIONAL
STANDING
Is the injury concrete and
particularized?
Is there a personal INJURY?
YES
NO
Is the injury actual and
imminent?
NO
STANDING
Is the harm actually caused by
the defendant/challenged
action?
Is there CAUSATION?
YES
NO
NO
STANDING
Is there a REMEDY?
YES
Const'l
Standing
Is the defendant/challeneged
action a but for cause of the
harm?
Is the injury redressable by the
court?
Is it likely that a favorable
decision will redress it?
Lujan: no standing because they
failed to sho concrete interest (no
actual plans to visit); can't just sue as
citizen who is harmed by gov't, too
gerenalized
Mass v. EPA: standing because state
owned coastline being harmed by
global warming; probably more
lenient because its a state (states
can't vote, only citizens)
Allan v.Wright: no standing for
parents because discrimination was
caused by schools, not IRS's failure
to penalize some discriminatory
schools
Mass v. EPA: standing because EPA's
failure to regulate emissions
"contributes" to MA's injuries in a
direct way
Lujan: applying the standard globablly
wouldn't necessarily redress harm.
possible v. likely
Mass v. EPA: even though remedy
sought is a very small portion of the
total harm, still redressable;
incremental steps argument
NO
NO
STANDING
Is there prudential standing?
Plaintiff must assert
own rights, not the rights of
a 3rd party
Zone of Interest: Plaintiff
must allege and interest the
statute was designed to
protect
Not an advisory opinion?
No generalized
grievances or injuries that
affects all people equally
Case is ripe but not moot?
EXCEPTIONS:
1) injured party unable, P is adequate
representation of rights
2) special relationships (eg parents)
3) organizations if interest is related to
their purpose and a member would have
standing but is not required as a party to
the suit
Frothingham: no standing for P challenging
the funding of a federal program because
his interests are identical to all the other
millions of tax payers BUT
Mass v. EPA: state can sue for harm to all
of its citizens, perhaps states have special
treatment because of role as "quasisovereign"
STANDING IS ALL GOOD, go on to POLITICAL
QUESTION
Is the Issue a Political Question?
Is this a case with a textually
demonstrable commitment to
another branch?
NO
YES
JUSTICIABLE
Baker v. Carr: not textual commitment in Equal
Protection Clause to any one branch of gov't to
enforce, so Judiciary can step in
Are there judicially discoverable/
manageable standards for
resolution of this issue?
YES
NON-JUSTICIABLE
Luther: Guaranty Clause commits enforcement of
"republican form of government" to other
branhces
Nixon: impeachment proceedings committed to
Senate
NO
NON-JUSTICIABLE
Luther: "republican form of government" is unclear
and it should be left to legislature to define
Nixon: "trying" a case has broader meaning that
"proceedings" and lacks precision to afford
judicially manageable standard of review
JUSTICIABLE
Baker v. Carr: Judicial standards for Equal Protection
Clause are well developed (one person-one vote);
courts can make a good judgment and not just
exercise their will (Federalist 78)
Can the court decide the case
without an initial policy
determination clearly for nonjudicial discretion?
NO
NONJUSTICIABLE
YES
YES
Is there a need for finality or
deferral to political branch
decision?
JUSTICIABLE!
Check Jurisdiction
NO
Can the court decide the case without expressing
a lack of respect for the other branches?
Is there potential for embarassment from various
pronouncements on a single issue by different
departments?
Is there an unusual need for unquestioning
adherence to a political decision already made?
Separation of Powers/Structrual argument: should
respect powers of other branches
Nixon: Impeachment only check on J by L, involving J in
this would destroy that check
When the gov't has already made a decision on a
matter we should let it stand unless there is a
compelling reason not to. Importance of unified gov't;
where no previous decision has been made, perhaps
appropriate for court to make the decision
Does the Court have Jurisdiction?
Article 3:
SCOTUS has original jurisdiction for cases involving: a) ambassadors b) other public misisters/consuls c) those
in which a state is a party
SCOTUS has appellate jurisdiction for cases invovling: a) federal questions b) diverse citizens
EXCEPTIONS CLAUSE: congress has the power to remove SCOTUS jurisdiction by Act or Amendment unless the
case is pending before the court (Ex Parte McCardle)
Is this a review of a state court decision?
SCOTUS can review decisions of state courts despite
arguments of sovereignty. Martin v. Hunter's Lessee: need for uniformity
of decisions. Cohens v.VA: reaffirmed for criminal cases where state is named
party, inadequacy of state judges at federal law
Art. 4: Constitution is supreme law of the land
Is this a review of state law or actions of
state officials?
State officials and legislatures are bound by SCOTUS
decisions. Cooper v. Aarron (integrating AK schools after Brown). Marbury:
SCOTUS says what the law is, states bound by SCOTUS interpretations and
decisions. Structural argument: need for uniformity of interpreting laws
Is Congress attempting to strip
SCOTUS of its jurisdiction?
Congress may create exceptions to SCOTUS's appellate
jurisdiction, but they can't interfere with essential functions
of the court or go against any other Constitutional provision.
Ex Parte McCardle: Congress can revoke jurisdiction that it's granted by
statute. Balance of power arguments: Congress check on SCOTUS or
SCOTUS check on Congress?
Is Congress attempting to overrule a
SCOTUS decision by statute?
OR
Is Congress attempting to overrule a
SCOTUS decision by amendment?
Is the President trying to ignore a
SCOTUS ruling?
Discretionary and/or Political
acts are not reviewable by the
court
Congress trying to overrule SCOTUS by statute is unconstitutional.
(Dickerson) (holding Miranda was constitutional decision that Congress could
not overrule through legislation.)(Scalia thinks this is overstepping. Is this
overlooking public will?)
Congress overruling SCOTUS by Amendment is constitutional per
Article 5
No president has directly challenged a SCOTUS ruling.
Maybe yes? Executive bound to uphold the Constitution and SCOTUS
decisions do not become part of the Constitution itself
Maybe no? Presidential veto allows him to veto statutes (e.g. if he thinks
its unconstitutional) but not review cases.
Presidental Nomination and
Senate Confirmation are checks
on the Court
Judges can be impeached for "high
crimes and misdemeanors"
Is it within the limits of the Necessary & Proper Clause?
Necessary and Proper Clause (Art. 1 §8 cl. 18) "To make all Laws which shall be necessary and proper
for carrying into Execution the foregoing Powers vested by this constitution in the Government of the United
States, or any Department or Officer thereof."
Necessary?
Proper?
Necessary just means convenient or
expedient, does not need to be essential.
The ends must be legitimate and the means
must be appropriate.
"necessary" is
qualified by
"absolutely" in
other provisions
in section granting,
not restricting,
powers
clause is meant to
enlarge, not
circumscribe
powers of
congress
Means must be
"plainly
adapted" to the
end and not
prohibited by
the Const.
Means cannot
be pretext.
(no articulated
standard for this.)
Gives
incidental
powers, does
not create
great ones.
McCulloch v. Maryland, Sibelius
Is it within the limits of the 10th Amendment?
The 10th Amendment "The powers not delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the people"
Majority reading: The powers reserved to the states
in the 10th amendment are limited to the power
which could be reserved at the time they
were given (i.e. powers that the states had at the time
the 10th amendment was written.)
US Term Limits v.Thornton
State's can create
their own
qualifications for
federal offices
Representatives
owe primary
allegiance to the
people of the
Nation, not the
state
Might worry this
is a power federal
gov is unlikelyl to
check itself on, but
can't be checked
by the states
The 10th Amendment is a rule of
construction. Tells us not to make an inference
of the general prohibition to the states because
it's not a power specifically given to the states.
This does not make the 10th amendment a
reservoir of power to the states, simply a way to
guide our interpreation.
"It is a Constitution we are
expounding" (McCulloch v. Maryland)
Constitution meant to be an outline that grants
powers to the federal government, which in turn
maens it should be able to exercise those powers.
Is it within Congress's Commerce Power?
Does the law regulate the state itself?
YES
NO
Internal Limits (Text)
External Limits (10th Amnd)
Activity being regulated MUST fit in one of the
following categories (Lopez):
Channels of
Interstate
Commerce
Instrumentalitiesof
Interstate
Commerce
In general the 10th Amendment only applies for
commandeering
Substantial Effect
on Interstate
Commerce
Economic
Activity
AntiComandeering
NonEconomic
Activity
Federal Government CAN'T order State
Government to legislate (New York v. US)
Federal Government CAN'T require employees to
enforce federal laws (Printz)
CAN set minimum standards that state/local
governments must meet thus preempting state action.
CAN attach strings on grants to induce actions they
cannot directly compel.
BUT: TO BE PROTECTED BY ANTICOMMANDEERING IT HAS TO BE ESSENTIAL
FUNCTION OF THE STATES AND NOT
GENERALLY APPLICABLE TO THE PEOPLE/
CORPORATIONS
(Reno v. Condon)
Congress can regulate the use of channels of
interstate commerce without regards to motive.
Roads, waterways (Gibbons), airways, internet, etc.
This is a plenary power based on the Shreeveport Rate Case
Congress can regulate persons and things sent
across state lines, without regard to motive.
Can regulate and protect the instrumentalities of interstate
commerce, even though the threat may come only from
intrastate activities (e.g. labor)
Pleanary power from Darby
Can regulate purely local activities that are part of an
economic class of activities" which have a substantial
effect.
Define activity BROADLY: Raich (growing for at home consumption
counts as production)
CAN AGGREGATE COMMERCIAL ACTIVITY (Wickard)
Production, distribution, consumption, black markets
Neither
congressional fact
finding nor state
support are
dispositive (although
they can be helpful)
Morrison - because
of Marbury &
Supremacy Clause
10th Amendment
Doesn't Apply
STATE GOVERNMENTS MUST APPLY
FEDERAL LAW
(Garcia v. SA overruling League of Cities)
Court shouldn't make distinctions between "integral"
and "non-integral" state functions because it's not a
legal question
Fed Reps elected within states so states are
protected by political process
DISSENT: integral/non-integral just like any other
provision that can be decided; once elected officials
are federal employees
For Non-Economic activities the
statute must have some sort of
JURISDICTIONAL ELEMENT (e.g.
Regulation in Lopez struck down, but passed
when added "has traveled through interstate
commerce" to modify the guns being
regulated)
SCALIA DISSENT: can use N&P Clause to
regulate broader regulatory schemes
regardless of how local/non-economic hte
activity is
CAN'T USE AGGREGATION FOR
NON-ECONOMIC ACTIVITIES (Raich,
Morrison)
DEFINE THE
ACTIVITY
IS THIS
NECESSARY
AND PROPER?
Art. 1, §8, cl. 3: "To regulate commerce
with foreign nations, and among the
several states, and with the Indian
tribes"
Is it within Congress's Spending Power?
Art 1. §8 cl. 1 "The Congress shall have the power to lay and collect taxes, duties, imposts and excises, to pay the
debts and provide for the common defense and general welfare; but all duties, imposts and excises shall be uniform
throughout the United states."
The spending power
is an independent
power
Dole
Raise drinking age or lose 5% of highway funding
Sebelius
Follow ACA or lose all Medicaid funding
Congress need not
only spend in
connection with an
enumerated power
Congress can condition receipt of federal money on the states doing/not doing certain actions that they would not
otherwise be able to compel them to do, however, THE CONDITIONS MUST BE:
for GENERAL
WELFARE
CLEARLY
STATED
Defining "general welfare" left
to Congressional discretion
CONNECTED
to funding
Not otherwise
unconst'l
Rationally connected; drinking
age -> drunk drivers ->
highway funds
NOT
COERCIVE
Lose all funding = Coercive
Lose future funding = Not
Coercive
Separation of Powers: Executive Immunities
Presumptive Executive Privilege
Not in the Constitution, created/recognized by the
Court; NOT ABSOLUTE US v. Nixon
Balancing Test:
President's
interests v.
countervailing
interests
Factors:
confidentiality,
national security,
military, etc
Accommodation
(e.g. redacting)
Immunity from Civil Liability
Official Actions
Unofficial Actions
ABSOLUTE
IMMUNITY
NO IMMUNITY
Immunity during office
is required for allowing
the President to
preform his duties
without being "unduly
cautious"
Nixon v. Fitzgerald
Suits regarding private
conduct do not run the risk
of changing the President's
performance of his
constitutional duties (as far
as being "unduly cautious"
goes)
Clinton v. Jones
Separation of Powers: Legislative Powers
Delegation of Legislative
Powers
Intelligble
Principles
Congress may delegate but must
provide "intelliglble
principles" to guide the
agency exercising the delegated
power. (Clinton v. NY)
Non-Delegation Doctrine: DEAD
Impossible not to delegate in age of
administrative agencies
Mistretta
Bowsher
LEGISLATIVE
OFFICERS CANNOT
ENFORCE
LEGISLATION
"Intelligible
principles" can be as
vague as "in the
public interest"
Bicameralism &
Presentment
Clinton v. NY
LINE ITEM VETO
NOT OK
In order to enact legislation (purpose
and effect of altering legal rights,
duties, and relations of persons outside
the legislative branch), the process
must formally follow the
Constitution
INS v. Chada
LEGISLATIVE VETO
NOT OK
Removable by
Congress =
Legislative Officer
Separation of Powers: Executive and Judicial Power
Appointment Powers
PRESIDENT can appoint: a)
ambassadors b) public ministers
and consuls c) SCOTUS justices
d) officers of the United States
with advice and consent of
the Senate
CONGRESS can vest the
appointment of "inferior
officers" in a) the president alone
b) the courts of law c) heads of
executive departments.
CONGRESS CAN NOT
RESERVE POWER TO
ITSELF.
Impeachment
Art. 1 §2: House has sole power
to impeach; Art. 1 §3 Senate
holds trial; Conviction requires
2/3 of members present
INFERIOR
OFFICER?
Subject to removal by higher
exec official?
Empowered to perform only
certain, limited duties?
Office limited in tenure?
Office limited in jurisdiction?
PRESIDENT
Can remove at will only
"purely executive
officers"
Humphrey's Executor
CONGRESS
No power to remove
executive officer outside of
impeachment.
Bowsher
Removal
Powers
No consensus on definition
of "high crimes and
misdemeanors"
Clause does not require
impeachment
Do the removal restrictions
impede the president's
ability to perform his
constitutional duty?
Morrison v. Olson
Unclear whether any
executive official serves
completely at
president's pleasure
"quasi-legislative/judiical"
officers can be limited
from removal at will, or
at all
Court has not
defined
"constitutional
duties" nor how
central those duties
must be before an
official is removable
at will.
Separation of Powers: Emergency Powers
Presidential Powers in Domestic Affairs: Youngstown Framework
Justice Black
F
o
r
m
a
l
i
s
t
VERY TEXTUAL
Preseident only has
authority from ACTS
OF CONGRESS or
the
CONSTITUTION
itself
THEATRE OF WAR
exception
Only Congress can make
laws; Presidential actions
are equivalent to
Congressional law
making
Constitution seems
clear: read like a Code
(Chada) When less clear,
BALANCE THE
POWERS
F
u
n
c
t
i
o
n
a
l
i
s
t
Justice Jackson
Category 1
Justice Jackson
Category 2
Justice Jackson
Category 3
MAXIMUM
AMOUNT OF
POWER
Acts pursuant to
express or implicit
authorization of
Congress
Presumption in favor of
presidental action
INVALIDATION =
FEDERAL GOV AS
WHOLE LACKS
THE POWER
Congressional grant
of denial of power
is absent
Can only rely on his
independent power +
'zone of twighlight'
in which Congress/Pres
have concurrent
authority or distribution
is uncertain.
Congressional inertia/
indifference/quiecence
may as a practical matter
enable independent
presidential action
LEAST AMOUNT
OF POWER
May rely only on
independent power
minus
constitutional
powers of
congresss over the
matter
Scrutinized with
caution
Equilibrium of
Constitution is at stake
Theatre of War =
Actions Abroad during
wartime
Frankfurter: if there is a
long tradition of
allowing the behavior
action might be OK
Look to HISTORY
and
CONSEQUENCE
'Twilight Zone' gives
Court a lot of power
Presidential Powers in Foreign Affairs
Still use Youngstown Framework, but probably shifted slightly in favor of Presidential action
Probably more leeway for the President in foreign affairs because we are not as concrned with Federalism as states
can't act in foreign affairs.
Dames & Moore v. Reagan (Iran Hostage Crisis)
Congressional and Presidential War Powers
US Citizen held without
trial? Hamdi
Military Tribunals
Const'l
Unlawful
Combatants (US
Ctizens or
otheriwse)
Ex Parte Quirin
What is the
"theatre of war"
post 9/11?
Unconst'l
1) Outside Theatre of
War
2) Where hostilities
have ended
3) Civilian trials
unconncected to
military service
4) When civilian courts
are open
Ex Parte Milligan
CLOSER TO WAR =
MORE LIKELY
EMERGENCY POWER IS
CONSTITUTUIONAL
US Citizens still get
DUE PROCESS
(whatever that is)
Const'l
Unconst'l
PLURALITY
AUMF puts this in
Category 1
Historically have
taken POWs, don't
want to encourage
killing upon
capture out of fear
we can't detain
DISSENT
AUMF in tension
with NonDetention Act and
puts this in
Category 3
Congress must
suspend Habeaus
under Art 1 § 9 cl
2
14th Amendment: Incorporation of the Bill of Rights
Does it violate the
Privileges and
Immunities Clause?
PROBABLY NOT.
CLAUSE BASICALLY
USELESS. Does not even
protect basic human
rights.
BUT
Does it interfere with
your rights flowing from
disinct relation of a US
Citizen to the Federal
Government?
INCORPORATED
Does it violate the
Due Process Clause?
YES
Selective
Incorporation
Palko
Could actually be protected:
1. RIGHTS INHERENT
IN THE UNION
2. right to petition Congress
3. right to vote for fed gov
4. right to enter public lands
5. right to interstate travel
6. right to travel on seas
etc.
Essential to
fundamental
fairness?/Central
to American
justice (Duncan)
Deeply
rooted in
history and
tradition?
1st Amendment (free speech and religion)
2nd Amendment (bear arms McDonald v. Chicago)
4th Amendment (unreasonable search & seizure)
5th Amendment (self incrimination and takings)
6th Amendment (criminal procedure rights)
8th Amendment (cruel and unusual punishment)
NOT YET INCORPORATED
NO
3rd Amendment (quartering soldiers)
5th Amendment (right to grand jury in criminal cases)
7th Amendment (right to jury in civil cases)
8th Amendment (right against excessive fines)
[NO CASES HAVE ADDRESSED THESE YET]
The Equal Protection Clause
Does the law involve
RACIAL
DISCRIMINATION?
CURRENT
DOCTRINE:
Parents Involved
REHNQUIST PLURALITY
Prohibits ANY DISCRIMINATION on basis of race
Protects white kids
"The way to stop discrimination on the basis of race is to
stop discriminating on the basis of race"
STRICT SCRUTINY
BREYER DISSENT
COMPELLING
state interest
law is NARROWLY
TAILORED to state
interset
LEAST
DISCRIMINATORY
MEANS POSSIBLE
Brown was PRO-INTEGRATION
so should have more deferential
standard when state is trying to
integrate
Three Part Test:
1) Historical and Remedial
Element: interest in setting right
the consequences of prior
segregation
2) Educational Element: overcome
adverse educational effects of
highly segregated schools
3) Democratic Element: Produce
educational environment that
reflects "pluralistic society"
KENNEDY CONCURRENCE
Recogonized COMPELLING state interest in avoiding racial
isolation, BUT not NARROWLY TAILORED
Suggets other means to combat racial isolation: a) strategic
site selection; b) redrawing attendance zones; c) magnet
programs; d) recruiting students in targeted fashion; e)
tracking enrollments/performance/etc based on race
Carolene Products n. 4
Courts will not defer to legislature
when law affects "discrete and
insular minorities" because of
worry political process won't protect
them
Substantive Due Process
Economic Right
Non-Economic Right
NOT FUNDAMENTAL
West Coast Hotel (upheld minimum wage laws for
women)
STEP ONE
Does the law affect PAST contracts?
YES
Contracts Clause
Blaisdell: Ok to interfere
with contracts in an
emergency; pretty much
guts CC; Majority:
Constitution needs to be
interpreted in modern light
or the document doesn't
work; EXCEPTION: US
Trust v. NJ says state cannot
revoke it's OWN
obligations
NO
Rational Basis Test
RATIONAL BASIS?
Defer to legislature
Conceivable rational basis is
enough (post hoc review)
Lee Optical
Reasonable means to
legitimate end?
law doesn't have to be in
every respect logically
consistent with its aims
Lee Optical
Carolene Products n. 4: more scrutiny for laws when "political
process" can't be trusted (minorities)
Define the Right: what level of abstraction should
be used?
ALL OTHERS
Glucksberg: "careful
description" (i.e.
abortion)
OR
SEXUAL
AUTONOMY
Lawerence: broad
description (i.e.
reproductive
freedom)
STEP TWO
Is the right FUNDAMENTAL?
Glucksberg:
DEEPLY ROOTED
&
Implicit in the
concept of
ORDERED
LIBERTY
OR
Lawerence:
laws and traditions of
recent past show
EMERGING
AWARENESS that
liberty gives
protection to rights in
question
STEP THREE
APPLY THE TEST
Yes, it is a FUNDAMENTAL
RIGHT
STRICT SCRUTINY
1. COMPELLING GOV'T INTEREST
2. NARROWLY TAILORED
very strong interest in protecting the right
Yes, the RIGHT TO ABORTION
UNDUE BURDEN
State regulation cannot have PURPOSE OR
EFFECT OF PLACING A SUBSTANTIAL
OBSTACLE in path of woman seeking abortion
(Casey)
No, it's NOT A FUNDAMENTAL
RIGHT
RATIONAL BASIS
Gov't only needs to show a rational basis: any
conceivable rational relationship to any
legitimate purpose (Lee Optical) Lawerence might
complicate this re: morality as state interest
Justiciability
Standing
Timliness
Advisory
Opinions
1. Injury
2. Causation
3. Remedy
1. Mootness
2. Ripeness
Nope.
Congressional
Powers
Necessary and
Proper Clause
1. Plainly Adapted
2. Not Prohibited
Elsewhere
3. Means cannot be
pretext
Political
Questions
1. Textually Demonstrable
Commitment
2. Judicially Manageable
Standards
3. Initial Policy Determination
4. Need for finality
Spending Power
Commerce
Power
1. Limit of 'general
welfare'
2. Nexus Constraint
3. Not Coercive
1. Channels/
Transportation
2. Instrumentalities
3. "Economic Activity"
Separation of
Powers
Legislative Power
Executive and
Judicial Power
Emergency
Powers
Executive
Immunities
1. Intelligible Principles
2. Bicameralism &
Presentment
1. Appointmnet
2. Removal
3. Impeachment
1. Domestic Affairs
2. Foreign Affairs
3. War Powers
1. Executive
Privilege
2. Civil Liability
Individual Rights
Abortion
or Related
NonEconomic
Equal Protection
Clause
Privileges and
Immunities
Clause
Incorporation of
Bill of Rights
Strict
Scrutiny
Useless.
Selective
Fundamental
Not
Fundamental
Substantive Due
Process
Undue
Burden
Strict
Scrutiny
Rational
Basis
Economic
Not
Fundamental
Minimum
Rationality