General Approach to Con Law:
1. Every question involves a challenge to governmental
action grounded in the Constitution….that is, someone
will be arguing that some government action violates the
Constitution.
2. Powers & Limits two simple questions:
i. Did the Government have the power to act?
(essentially relevant only to the federal government)
ii. If yes, did they exercise it properly?
(acted in a way that violates defined Constitutional
limits on that actor…eg, dormant commerce clause,
equal protection, Art. IV, etc)
3. Key Issue Trigger: Is the actor (the one responsible for
the challenged law or act) the federal government or
state? distinct issues/ challenges arise for each
Five Big Issue Areas
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i. Federal Judicial Authority
a. Jurisdictional & Justiciability Limits
b. Congressional Control
ii. Separation of Powers & Executive Actions
a. Conflicts with Congress & Jackson Trilogy (ultra vires)
b. Privilege for Confidential Communications
c. Immunity
iii. Federal Legislative Authority
a. Commerce Clause
b. Spending
c. Enforcement of Civil War Amendments
d. Miscellaneous Powers
iv. Limits on State Authority
a. Dormant Commerce Clause
b. Article IV Privileges & Immunities
v. Individual Rights
a. State Action
b. Equal Protection – intentional discrimination
c. Substantive Due Process & Fundamental Rights
Part One-- Federal Judicial Power & It’s Limits
• Article III Background for understanding judicial power
– Judges with “lifetime” tenure (good behavior)
– Jurisdictional “ceiling”: federal questions (arising under
Constitution, Federal Legislation & Regulations, Treaties) ,
diversity cases, miscellaneous (states, ambassadors)
– Cases & Controversies (Justiciability limits below)
– Supreme Court appellate & original jurisdiction
• Judicial Review: Judicially Declared
– Final Authority on Interpretation of Constitution
– & Power to Declare Acts of Federal & State Governments
Unconstitutional (includes state legislation & constitutions)
– Power to interpret & apply “ordinary” federal law but Congressional
intent controls (Congress may overrule by altering law)
– NB: No authority over interpretation of State Law!
Limits on Federal Judicial Power
• Congressional Control Over Jurisdiction
– Jurisdiction Defined & Limited By Congress
• not required to authorize full extent of jurisdiction;
• can define limits and make “exceptions” even if motive is to
avoid review
• But Congress can’t reverse or dictate outcome of cases
(separation of powers) nor overrule Constitutional
Interpretations
• Impeachment
• Doctrines of Self-Restraint (narrowest grounds possible;
avoid Constitutional questions; adequate & independent State
grounds; deference to legislature)
• Justiciability suitability for judicial review
– Limits derived from “case & controversy” language in
Art. III, judicial self-restraint
Justiciability
Key Black Letter Rules to Memorize, Understand
and Apply:
Standing (definitions of Constitutional requirements of injury,
causation & redressability);
& Prudential Standing Limits & Rules (generalized
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Mootness Exceptions;
Political Question Factors (committed to political
grievances; 3rd party standing)
branches, lack of manageable judicial standards, etc)
Only address justiciability if there is a colorable issue
that the defendant would raise…
Standing
• General Definition: requirement that litigant have
adequate “personal stake” in outcome
• Requires (Plaintiff’s burden):
– Injury: real, actual or imminent not hypothetical or merely
possible
– Causation: injury is “fairly traceable” to challenged action by
defendant
– Redressibility: Court order likely to resolve P’s injury
• Prudential Limits:
– generalized grievances &
– third party rights (standing) and its exception
P has own standing but wants to rely on claim/injury of non-party key factors:
only allowed if close relationship (especially interconnected interests),
likely to advocate well and other faces obstacles
FEDERAL EXECUTIVE POWER
Need to know essential executive responsibility
and powers
Common issue: Separation of powers: division of
authority w/in federal government…
Trigger: typically contest between executive and
legislature….claim that President exceeded his
authority
leading to application of Jackson triology know
your ebbs…id subject and discuss executive vs
legislative power over it….(req’s discussion of
competing powers)
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Basic Premises for Challenge to Federal Power
Every action must be traced back to…justified by…an
enumerated power
Implied powers are only justified as means to accomplish
the enumerated powers (most important example being
CC power to reach intrastate activities)
No power to pursue the “general welfare”
You can not determine scope of federal power by
reference to state power…no specific powers are strictly
“reserved” for the states (10th A debate)
• THUS When Federal Government acts, locate
the likely relevant power(s), apply appropriate
legal standard/rule/test that evaluates its limits
– Then consider whether other challenges exist such as
individual rights violations
The Big Three
18 clauses in Article I with many important
powers immigration, armed forces, money,
intellectual property, bankruptcy…review & have
general familiarity with categories/ subjects listed
BUT 3 Most Commonly Invoked & Litigated Powers require
detailed knowledge of limits & tests that define those
limits
• Tax & Spend
• Regulate Interstate & Foreign Commerce
• Civil War Amendments (enforce 13, 14 & 15th A
rights against states)
Power to Tax & Spend
S.Ct. not limited like other powers…Congress can tax
& spend for any purpose involving “general welfare” of
United States
Key Distinction: spending not “regulating”…can spend
money on issues that it can not directly control
important factual distinction b/w spending vs regulating
Incidental Power to “protect” spending under
necessary & proper clause…can justify statutes
regulating behavior (such as the Sabri case)
Note connection to 10th A “autonomy of states”
issues…congress can induce state compliance via
spending which can be on any subject whatsoever…but
with some limits (some relationship to the spending;
clear condition; not coercive to point of elimin. choice)
Defining Modern Federal Commerce Power
Categories of Activities/ Subjects Within Federal Power:
Plenary authority to control, protect and regulate
1. Channels
2. Instrumentalities
look for links in the statute to IC…crime if D uses mails, internet, etc…if
so, statute only applies if Channel or Instrumentality is involved thus,
Congress is “protecting” that part of IC
3. Intrastate Activities if:
Congress has a rational (reasonable, factual) basis for finding
substantial, aggregate effect
on Interstate Commerce or its Congress’ regulation of it
(comprehensive legislative scheme such as in Gonzalez)
+“clarifications” of Lopez: generally activity must of commercial nature
and type of evidence Congress can rely upon (must show direct
rather than indirect or tenuous relationship to commerce)
Judicial Retrenchment?
Cases are not the focus but provide helpful guideposts for
analysis
Lopez & Guns in Schools 1st federal statute under CC
struck down since 1937
Morrison & Gender Based Violence
– Deference & Evidence Congress relied upon?
– Commercial activity distinction …general but not
“categorical” requirement
Gonzalez & Medical Marijuana
– Commercial activity to “use” “grow” for personal
medical treatment?
– Nexus to market
– Protection of regulatory scheme
Framework & Triggers? always consider CC justification
for federal actions
10th Amendment?
• No significance analytically for CC issues
• Significance lies in general federalism
concerns:
– Preserving autonomy of independent state
governments
• Prevents Commandeering of state legislative or
executive functions for federal purposes
• BUT Congress can spend & withhold $,
• and can force states to comply with federal
law…like everyone else….to follow/ comply vs to
create or enforce
Enforcing the Civil War Amendments
Constrain States (“no state shall…”) thus can only
be relied upon to regulate state actions not
private
(in contrast to CC which can regulate both state and
private action…limited only by political processes under
Garcia)
“enabling clauses” Congress shall “enforce”
through appropriate legislation
– significant shift toward federal power (now can control
individual rights, and state interferences
– S.Ct. “enforce” also means “protect” “remedy”
“prevent” and “deter”…broad power
– Includes power to authorizes private suits against
State Governments in federal courts…abrogating 11th
A immunity (again contrast with CC & Art.I powers)
Key Q: Limits of 14th A Enforcement Power…has Congress exceeded
the power (precisely same Q as under CC but answered differently)
• City of Boerne enforce does not mean “redefine” rights
• Rights are defined in terms of the standard of review used by
courts to evaluate them…e.g., right against age discrimination is
a RB right (weakly protected)
• Congress can provide a remedy broader than the right as strictly
defined can prohibit more state conduct than would, strictly
speaking, violate the right…including abrogation of state 11th A
immunity…BUT IF IT DOES
• Remedy must be Congruent & Proportionate in light of State
Violations: 3 parts to discussion, 2 central arguments
– Compare the statutory remedy with the constitutional right being protected
– Assess evidence of state violations
– NB: the higher level the right the more likely violations become…and vice versa
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Does the statute so significantly change the standard of protection that Congress has impermissibly
“redefined” the right thereby exceeding its power to “enforce”?
Is the remedy as a whole (especially abrogation of immunity) proportionate…appropriate in light of the
problem being addressed ….state government violations of the rights in question?
11th Limits
• 11th A  forbids suits by individuals (NA to
federal gov.) for $ (not injunctions) against
state government (not local) in federal
court
• relevant when and if Congress attempts to
authorize suits against the state in federal
courts by individuals Can abrogate state
immunity to enforce 14th A rights
• But this remedy must be C & P (more
later)
Limits on state authority…state actor trigger
When state law is challenged:
• No question regarding authority to act since states,
unlike feds, have power to pursue the general welfare
(powers not given by US Constitution)
• Rather: did the state’s action violate some limit imposed
by the Constitution 3 primary possibilities in this class
(not generally!!)
• Commerce clause (implied limits called “dormant CC”)
• Article IV Privileges & Immunities
• Individual Rights (EP, SDP, etc)
ANALYSIS/ FRAMEWORK (TEST) for Art. IV P& I claim
(1) discrim. based on residency (implicit) what is “residency”? who is a “citizen”? (not
aliens or corp)
(2) covered right burdens interest protected by P&I what interests are protected?
 important to national unity
Key interest: economic, livelihood
Other protected interests?
(3) Apply TEST/STANDARD OF REVIEW
significant/substantial reasons(state interest)
 means substantially related
Ie…discrimination must bear "close relationship" to reasons for it
--Non-citizen as "peculiar source of evil" being addressed
often phrased: means “substantially related” to the state’s “significant interests”
Analytical Framework for DCC
DCC Trigger State regulation with effect on IC (and P)
1.Federal law? if yes, analyze preemption
2. Discrimination (facial, effect, purpose)
 if yes,
dcc strict scrutiny: (least restrictive alternative test)
state burdenlegit (important) interest
least restrictive altern.
3. if not discrimRB = valid unless burden
“greatly exceeds” benefits to state’s interests
4. exceptions apply?
– Market Participant
– Congressional approval
Individual Rights & Standards of Review
• Rights are not “absolutes”
• Individual interests must be balanced
against public/ majorities’ legitimate needs
• “Standards of Review” are the means by
which courts strike this balance…the
measuring stick
• LEARN THEM…BY ISSUE
– THE STANDARD FOR FEDERAL POWER,
FOR STATE INTERFERENCE WITH
COMMERCE, WITH…ETC
Application of standards of review
Essentially always a Mean and Ends test
Means?  government’s specific action (eg, if
discrimination… then the precise way in which the law
being challenged discriminates…if interference with
commerce then precisely what the state law requires)
Ends? public purpose…if not given think of
some reasonable ones (actual vs
possible?...note different approach for gender)
Connection required:
strict = necessary to achieve;
intermediate = substantially achieves ends;
RB = not arbitrary…achieve in some fashion
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Levels of Scrutiny – Intentional As To….
“Suspect Classifications”
RACE (black, white, etc)
OR ALIENAGE (non-citizen)
OR NATIONAL ORIGIN (family originating from Spain,
Germany, etc)
OR
Interference with “Fundamental Rights”
– Privacy, Family, Procreation, Refusal of Medical
Treatment, Contraception, Abortion (note
special rules apply), Etc.,
Results in application of the “STRICT SCRUTINY”
TEST
– Government must show that its distinctions are
necessary to achieve a compelling governmental
objective (goal or interest)
Semi-suspect Classifications
• Intentional government discrimination based
upon:
• “Semi-Suspect Classifications”
– Gender (sex)
– or Illegitimacy (child of unmarried parents)
• results in the application of the “Intermediate
Scrutiny” test
– Government must prove that its distinction was
substantially related to an important governmental
objective
Rational Basis
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Government Discrimination Based
On neither a Suspect Classification,
Nor Semi-Suspect Classification,
Nor Substantially Interfering With a Fundamental Right
Results in application of the “Rational Basis” Test
– Challenger (not the Government) must prove that the
Government’s distinction is arbitrary and without rational
basis
• (Thus, the challenger must prove that the discrimination does not
achieve and is unrelated to the government’s objectives. If the
government’s objectives are legitimate and the means chosen
reasonably relate to that objective, the regulation will be upheld).
REMEMBER: FOR ALL CLASSIFICATIONS
CRITICAL ROLE OF PURPOSE/INTENTIONAL DISCRIMINATION –
“a purpose”; disparate impact + other evidence; “because of”…rather
than, “despite”
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SDP & Implicit Liberties
IMPLICIT LIBERTIES PROTECTED BY SUBSTANTIVE
DUE PROCESS
Marriage
Procreation
Contraception
Education of Children
Abortion
Privacy
Refuse Medical Treatment
Travel….
what about private, consensual sexual conduct?
Education? Work? Same Sex Marriage? Gay Adoption?
Divorce?  CRITICAL ISSUES INVOLVING
CHARACTERIZATION OF RIGHTS, DISTINCTIONS FROM PRIOR
CASES…APPLICATION OF CRITERIA FOR IMPLICIT RIGHTS
Procedural Due Process
• Deprivation (affirmative Gov. action; perhaps
also reckless indifference)
• Life, Liberty or Property (legal entitlement
provided by law or contract w/ gov)
• Without Due Process balance of
individual’s interest
Gov. interests
risk of error
…determines the process due (type and timing of
notice and hearing, other protections like counsel,
etc)