Dylan Dreher-Kinloch
Separation of Powers Outline
Congressional Power: (Article I)
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Reconstruction Amendments
o 13th Am. S. 2
o 14th Am. S. 5
o 15th Am. S. 2
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Tax and Spend Clause (Article 1 Section 8)
o Not limited to fulfilling other Article 1 S. 8 powers (Butler)
o Requirements: (Dole)
1. For general welfare (likely satisfied, courts are deferential)
2. Unambiguous
3. Related to a Federal interest / program (Dole- only has to be loosely related)
4. CANNOT violate any other Constitutional provision
5. CANNOT be so coercive to induce compulsion (Sebelius… Medicaid expansion)
6. NOTE: “In the nature of a Contract”
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Commerce Clause (Article 1 Section 8)
o Congress can regulate 3 categories:
1. Channels of interstate commerce (roads, railway, waterways)
2. Instrumentalities of commerce, things or persons in interstate commerce (shipping,
cargo, human trafficking)
3. Anything that “substantially affects interstate commerce” (VERY BROAD)
a. The economic ACTIVITY being regulated must be economic or commercial in
nature
b. Ex: Gun Free School Zone Act = Exceeds Commerce Clause authority (Lopez
and Morrisson)
Ex: Act combatting use and sale of marijuana = Within Commerce authority
(Raich)
c. CANT regulate inactivity (Sebelius)
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Dormant Commerce Clause
o If there is a burden on interstate commerce:
1. Is law discriminatory to out-of-staters?
YES
Upheld only if necessary to achieve
important gov. purpose
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NO
Struck down only if burden is clearly
excessive
Necessary and Proper Clause (Article 1 Section 8)
o So long as ends are proper, we have a deferential review of means… NOT limited to
“indispensable” measures; Congress has discretion (McCulloch v Maryland)
o Money is fungible, broad scope of N&P Clause (Sabri)
Executive Power: (Article II)
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Youngstown Majority = need explicit authority!
Youngstown Jackson Concurrence = sliding scale of when presidential authority is granted
o Express or implied Congressional authorization = MAX
o Implied powers because Congress has not acted = MEDIUM
o President’s actions are inconsistent with express or implied will of Congress (Con. Pres.
Powers MINUS Con. Congr. Powers) = MIN
City & County of SF v Trump = modern application of Jackson Concurrence
o President actions were inconsistent with expressed or implied will of Congress here
Administrative State and Limits of Congressional Delegations:
o Nondelegation Doctrine = broad standardless delegation to an agency not allowed (Not
used in modern world, so unlikely to succeed)
o Major Questions Doctrine = Is it a vast economic or social importance under a broad
Congressional delegation? If so, agency action will only be upheld if there is “clear
Congressional authorization”
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Judicial Power: (Article III)
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Article III Justiciability Doctrines
1. Prohibition on Advisory Opinions = must be actual controversy before the court in order to
administer an opinion
2. Standing = Person bringing suit must have
a. Injury
b. Traceable to D
c. Redressability for injury
3. Ripeness = is issue too early to decide on? Consider:
a. Hardship to litigants if court does not hear case
b. Is there enough of a record to evaluate issue properly?
4. Mootness = too late to deicide! (NOTE: Exceptions exist)
5. Political Question Doctrine = Is this an issue to be left to political branches to decide?
a. Consider text of Constitution, stepping on toes of other branches, etc
Separation of Powers:
1.
2.
3.
4.
Article III Justiciability = courts policing themselves
Non-delegation Doctrine = policing Congress
Major Questions Doctrine =
Youngstown = division of power between president and Congress
Federalism:
1. 10th Amendment
a. Anti-Commandeering Doctrine = Congress CANT commandeer state legislature or
executive (NY , Printz)
i. Can incentivize though!
ii. CAN regulate states though (Reno) … example – regulating states activity of
selling driver info
b. No Longer Good Law Today =
i. Congress regulating in traditional areas of state concern
ii. Congress cant regulate traditional Government functions
2. Limits on Congressional Authority = designed to enforce federalism values
a. Commerce Clause (Lopez , Morrisson)
b. Spending Clause (Dole , Sebelius)
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Federal Supremacy:
1. Supremacy Clause
2. Dormant Commerce Clause
3. McCulloch v Maryland = Federal gov. generally immune from state and local regulation
Bill of Rights Outline:
Incorporation:
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Basis of Incorporation = 14th Amendment Due Process Clause (Substantive Due Process)
o Initially, no incorporation (Barron v. Baltimore)
Now, Bill of Rights incorporated if it is a “fundamental to our scheme of ordered liberty” OR
“deeply rooted in nations history of tradition” (McDonald v City of Chicago)
o Today, almost ALL of the provisions of Bill of Rights are incorporated to the States
State Action Doctrine:
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Bill of Rights only applies to government actors!
o EXCEPTION: 13th Am. Against slavery and servitude, Public Functions (private prisons), or
Entanglement Provision (when gov is entangled with private entities)
1st Amendment:
Freedom of Speech:
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Triggered by:
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Civil liability, preventing comp. for speech, compelling speech, conditioning a benefit for
foregoing speech, pressuring to speak or not speak
Default Rules:
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If restriction is content or viewpoint based, STRICT SCRUTINY
o TEST = Gov. must prove that the restriction (1) furthers a compelling state interest, and
(2) is narrowly tailored to achieve that interest
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If restriction is content or viewpoint neutral, INTERMEDIATE SCRUTINY
o TEST = sustained if (1) restriction advances important gov. interest (2) unrelated to the
suppression of free speech + (3) does not unnecessarily burden other forms of speech
unrelated to the interest
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Less-Protected Speech = non obscene low value sexual speech, commercial speech, expressive
conduct
Unprotected Speech (no 1st Am Protections) = fighting words, obscenity, incitement of imminent
illegal activity, child pornography
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Vagueness Challenge = law fails to provide a person of ordinary intelligence fair notice of what
is prohibited, OR it is so standardless that it risks seriously discriminatory enforcement
Overbreadth Challenge = a law that regulates substantially more speech than the 1st
Amendment allows…
o If so it is Unconstitutional and is struck down in entirety
4 Types of Forums: Speech taking place on GOVERNEMNT PROPERTY
o (1) Public Forums = sidewalks, parks, etc
o (2) Designated Public Forums = not traditional, but gov choses to open to all
 Subject to:
 “Time Place and Manner” restrictions : Generally ok if it serves a
significant gov interest, open ample alternate channels, and without
reference to the content of speech

“licensing and permitting restrictions” : allowed when it leaves almost
no discretion to officials, promptly issued, and provide for adequate
procedural safeguards
o
(3) Limited Public Forum = only open to select people
 Content based restrictions allowed, but NOT viewpoint (think universities)
 Other types of regulations must be “reasonable”
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(4) Non-Public Forum
 Generally ok to ban speech, BUT: still must be viewpoint neutral and
“reasonable”
Free Exercise of Religion:
Smith gives us the test: (BUT NOTE: Smith is likely to be overruled soon…)
If “neutral law of general applicability” -- Rational Basis Review
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Rational Basis Review = law must be rationally related to a legitimate state interest
If NOT  Strict Scrutiny
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Strict Scrutiny Test = Must be a compelling state interest that is narrowly tailored
Law is not neutral if its objective is to burden a religious practice (Hialeh)
Law is not one of general applicability if it virtually exclusively applies to religious practices, OR if
there is a system of discretionary exceptions (Fulton)
Establishment Clause:
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Prohibits Gov from establishing a religion
o Can be either a DEFENSE or AFFIRMATIVE CLAIM
Test = Gov action must be interpreted “by references to historical practices and understandings”
(Kennedy v Bremerton)
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Case by case assessment of history BUT Bremerton holds that:
o Coercion , establishment of church, and favoring some religion over others as a violation
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Lemon Test and Endorsement Test no longer good law
2nd Amendment
Right to Bear Arms:
Two-Step Test: (N.Y. State Rifle v Bruen)
1. Does the text of the 2nd Amendment cover the conduct? If yes, presumptively protected…
2. If no, gov must demonstrate that the regulation in question is consistent with historical tradition
of firearm regulation
a. Gov must rely on analogies
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b. Laws from around 1787 and 1866 most relevant to look at when searching for analogies
Equal Protection Outline:
Reconstruction Amendments
13th Amendment = ends slavery
14th Amendment = Equal Protection Clause (applied to states and local)
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5th Amend applies to Federal Govt
15th Amendment = right to vote base on race is prohibited!
Three Step Analysis for Equal Protection Issues:
1. What is the basis of discrimination? What group is targeted?
a. Identify ALL possible discriminatory bases

Facial Classification = no further factual inquiry required

Discriminatroy Purpose = Proof that discriminatory purpose was a motivating factor in the
decision… Factors to consider (Arlington Heights)
o Historical background context
o Specific sequence of events leading up to challenged decision
o Deviations from usual procedures or substance
o Legislative / administrative history
o Impact on a particular group (not sufficient by itself though)
Feeney held that P must prove that the legislature adopted a law “BECAUSE OF its adverse
effects towards the protected group” , not merely “in spite of its group based impacts”
NOTE: most courts have declined to find Discrim. Purpose… only one successful case
NOTE: This is a FACTUAL question, not a legal question
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
Disparate Treatment = Would the outcome had been different but for the group affected?
o MAY be enough, depends…

Disparate Impact = The outcome would not have been different if the group affected was
different
o Disparate impact alone is not enough, must ALSO show discriminatory purpose
(Washington v Davis)
2. What level of Scrutiny do we apply?
a. Strict Scrutiny Test = upheld if it is narrowly tailored to achieve a compelling
government purpose
i. Suspect Classifications = race, national origin, alienage, fundamental rights,
b. Intermediate Scrutiny Test = upheld if it is substantially related to an important
government interest
i. Quasi-Suspect Classes = sex (Craig v Boren & US v Virginia) nonmarital children,
LGBTQ?? (Grimm)
ii. Sex Discrimination:
1. Standard sometimes raised for sex discrim: “exceedingly persuasive
justification” (VMI case)
2. NOT pregnancy discrimination (Geduldig) (Dobbs)
3. LGBTQ Discrim MAY be deemed sex discrimination (Bostock)
Test for Suspect / Quasi Suspect Status
1.
2.
3.
4.
History of discrimination
Immutable / distinguishing characteristics
Political Powerlessness
Relationship to legitimate policy objectives or ability to contribute
c. Rational Basis Review Test = upheld if rationally related to a legitimate government
interest
i. Default Level
ii. Age and disability automatically placed in RBR…
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iii. Highly deferential!! (Beach Communications) (Beazer)
1. Gov action has heavy presumption of validity, and P bears burden of
proof
2. Real reason for action is not required
3. Rational speculation even when demonstrated by erroneous evidence is
acceptable
4. Over and under inclusion is not a basis for invalidating
iv. NOTE : Courts have begun shifting to more “Meaningful R.B.R.”
1. Court declines to apply the (4) ultra deferential approaches above
2. Animus or group based-bias leaves courts more likely to use…
3. Cleburne v Cleburne Living Center, Romer v Evans, Stanton v Stanton,
Olech
3. Does government action at issue meet this level of scrutiny?
LGBTQ Discrimination:
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Level of scrutiny to apply remains unsettled
Arguments for heightened scrutiny
o Sex discrimination (intermediate scrutiny)
o Lesbian, gay, bisexual, and trans ought to be deemed suspect or quasi-suspect class
when applying the Suspect Test
Even if only RBR, probably “Meaningful RBR” (Romer) (Windsor)
Affirmative Action:
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Standard of Review = Same as it would be for invidious group-based action
What are “Compelling State Interests”?
o Diversity in higher ed (Grutter)
o Trying to remediate a violation of the Constitution
 BUT must be a “Strong basis in evidence” to believe that such a violation
occurred (Croson)
What are NOT “Compelling Interests”?
o Proportional representation
o General societal discrimination (Croson)
PROBABLY NOT “Compelling Interests”
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Role models (Wygant)
Substantive Due Process Outline
3 Step Analysis
1. Does a fundamental right exist?
- Look at prior case law or “history and tradition”
Examples:
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Right to contract (Lochner v State of NY)
Right to contraceptives (Griswold)
Right to marry (Loving v Virginia)
Right to privacy in intimacy (Lawrence v Texas)
Right to marry same sex (Obergefell v Hodges)
2. Is the right infringed?
3. Does the governments justification meet the appropriate test?
a. Fundamental right = Strict Scrutiny
i. Upheld if narrowly tailored to achieve a compelling government purpose
b. NOT fundamental right = Rational Basis Review
i. Upheld if rationally related to a legitimate government purpose
Dylan Dreher-Kinloch