CON LAW QUESTION
1. Is there a STATE ACTION ?
a. ACTIONS BY LOCAL, STATE OR FED. GOVT.
b. REQ. BEFORE CONSTITUTIONAL PROTECTIONS CAN BE
INVOKED
2. Are there cases and controversies (Article 3 – limitation on
judicial power)
a. FED CT may only interpret law in the context of a real case
or controversy
i. RIPENESS (1) hardship absent review (2) fitness of
issues (3) record for judicial review
1. Always an issue when seeking declaratory
relief
2. Not entitled to review of law before enforced
3. Court will not hear case before P harmed or no
immediate threat of harm
ii. ABSTENTION
1. Deference to State Ct or lower court
iii. MOOTNESS
1. Dispute ended, grievance resolved
a. Capable of being repeated?
b. Voluntary cessation by D
c. Class action (ongoing injury in class)
iv. POLITICAL QUESTION DOCTRINE
1. Politically charged disputes – separation of
powers
v. STANDING
1. INJURY IN FACT
a. Has been injured or injury immenent
i. Violation of rights, common law or
constitutional or statutory.
Environmental or economic injuries
ii. Must be suffered personally; except
1. Special relationship exists
a. Dr/Patient
b. Seller/Buyer
2. 3rd party unlikely to challenge
govt. action
a. Crim defendant
challenging jury
discrimination
iii. Organization may sue for members
1. Members could sue
2. Injury related to membership
3. Individual participation not
necessary
2. CAUSATION
a. Injury traceable to challenged conduct
3. REDRESSABILITY
a. Favorable ruling would eliminate or
remedy harm
3. DOES GOVT. HAVE POWER TO ACT
a. If Government lawmakers trying to regulate another level
of government or activities with legislative powers.
i. FEDERAL LAW LIMITED BY ENUMERATED POWERS
1. COMMERCE CLAUSE
a. Congress may regulate commerce with
foreign nations, Indian tribes and among
the states.
i. Regulate channels of interstate
commerce
ii. Instrumentalities of IC
iii. All activities that have a substantial
effect on the US economy
b. Interest rates (y) drinking age (n)
2. TAXING AND SPENDING CLAUSE (ART 1)
a. MAY TAX AND SPEND FOR GENERAL
WELFARE
b. CAN IMPOSE CONDITIONS ON USE OF
FUNDS
3. NECESSARY & PROPER CLAUSE
a. May enact laws all laws necessary and
proper to carry out its authority
4. 10th Amendment – Powers not granted to US
nor prohibited to the states reserved for the
states
a. Can induce by putting conditions on
grants
b. Can prohibit harmful commercial activity
ii. STATES PROTECTED BY
1. GENERAL POLICE POWER
2. ANTI-COMANDEERING STATUTE
iii. STATES LIMITED BY FEDERALISM
1. Supremacy Clause Article 4
a. Federal law prevails and preempts
conflicting state law
i. Express preemption – specifically
stated
ii. Implied preemption – impossible to
comply with both laws
simultaneously
1. Environmental exception if
state law stricter
2. DORMANT COMMERCE CLAUSE
a. State law unconstitutional if it places an
undue burden on interstate commerce
b. If law affects IC but does not discriminate,
balancing test used
i. Burden on IC vs. benefit to state
c. If law burdens and discriminates against
out-of-state citizens, violates DCC
i. Strike down unless important govt.
purpose (HEAVY burden)
3. PRIVILEGES & IMMUNITIES CLAUSE (IV)
a. No state may deny citizens of other states
p&i it accords it’s own citizens
b. May not discriminate against nonresidents
c. Must be a citizen to challenge – not a corp
d. To defend govt must show cannot achieve
objective through non-discriminatory
means
4. PRESIDENT ACTING
a. Domestic, international & military powers
b. Executive powers shared with Congress
i. Express or implied auth of congress
– authority strong
ii. Absence of congressional grant or
prohibition – zone of twilight
1. Depends on events,
circumstances, contemporary
theory of law
iii. Against will of congress – power at
lowest
4. DOES GOVERNMENT ACTION AFFECT AN INDIVIDUAL RIGHT?
a. Levels of Scrutiny
i. RATIONAL BASIS TEST – rationally related to legit
govt interest
1. Used to review laws affecting economic rights
(min wage, trade regs, consumer protection
laws)
2. Age, Disability, Wealth, Sexual orientation,
Economic classification
ii. INTERMEDIATE SCRUTINY – substantially related
(narrowly tailored to achieve objective) to an
important govt interest
1. GOVT ACTION THAT IMPAIRS PRIVATE
PARTIES RIGHTS UNDER AN EXISTING K
2. Discrimination against undocumented alien
children
3. Gender classifications
4. Legitimacy classifications – children of
unmarried parents
5. Laws applying to speech
iii. STRICT SCRUTINY
1. Compelling State Interest – must use least
restrictive means possible
2. State law interfering with Govt. K’s
3. Right to Privacy – Marriage, Procreation, Child
Custody, Raising Children, Contraceptives?
4. Race, National Origins, Alienage
5. Laws affecting right to travel
6. Laws affecting right to vote
5. IS ONE CLASS OF PERSONS SINGLED OUT?
a. EQUAL PROTECTION CLAUSE 14 STATES 5 DPC
APPLIED TO FEDERAL
i. See classifications for discrimination above
6. INFRINGEMENT UPON A FUNDAMENTAL RIGHT
a. DEPRIVING LIFE, LIBERTY OR PROPERTY? THEN MUST
PROVIDE PROCEDURAL DUE PROCESS, Balance the:
i. Private interest involved
ii. Risk of error in existing procedures
iii. Governmental interests
b. BROADLY AFFECTING EVERYONE’S RIGHT?
SUBSTANTIVE DUE PROCESS