CON LAW OUTLINE GENERAL 1. Structure and Text of Constitution a. Art I Legislative b. Art II Executive c.

c. Art III Judicial d. Art IV States e. Art V Amendment Process f. Art VI Supremacy g. Art VII Ratification 2. Constitutional Interpretation Steps a. Text of the Constitution b. Structure of statute/document/organization c. Framers Intent/Constitutional Convention notes POWERS OF THE FEDERAL GOVERNMENT 1. Judicial Power a. Source i. The Constitution provides for one Supreme Court and such inferior courts as Congress may establish b. Scope i. Jurisdiction of federal courts is generally limited to cases: 1. Involving the Constitution, acts of Congress, or federal treaties 2. In which the US is a party 3. Between a state and citizens of another state, OR 4. Between citizens of different states ii. RULE (MARBURY v. MADISON) 1. Court has the sole authority to interpret the Constitution a. it is emphatically the province and duty of the judicial department to say what the law is c. Jurisdiction of the Supreme Court i. Original Jurisdiction 1. The Supreme Courts original (trial) jurisdiction is derived from Art. III, 2 and is limited mainly to controversies between two or more states ii. Appellate Jurisdiction [found in Art. III, 2] 1. Power of Judicial Review a. To hold acts of other branches of government unconstitutional b. To hold state statutes and executive action unconstitutional c. To review state court judgments iii. RULE (MARBURY v. MADISON) 1. Congress may neither restrict nor enlarge the Supreme Courts original jurisdiction, but Congress CAN restrict or enlarge their appellate jurisdiction a. Think diversity and minimum amount necessary d. Limitations on Jurisdiction of Federal Courts i. Case or Controversy 1. There must be a real dispute affecting rights of parties with adverse interests 2. Action must be RIPE and pose a real and immediate danger to complainants interest a. Ripeness

i. The Court will not decide constitutional questions before it is necessary to do so 3. The Court will not render a. Advisory opinions b. Opinions in Moot Cases (issue resolved) ii. Standing 1. To have Standing, claimant must show: a. Direct and Immediate Injury (Injury in Fact) i. The claimant must show a direct and immediate personal injury due to the challenged action. ii. The harm must have occurred or be imminent and definable on an individual level b. Causation (Nexus Requirement) i. The injury must be traced to the challenged action and one that will be redressed by the remedy sought c. Redressability (Nexus Requirement) i. The injury will be redressed by the remedy sought 2. Ripeness a. A Plaintiff is generally not entitled to review of a law before it is enforced b. Ripeness bars consideration of claims before they have been developed or realized 3. Mootness a. A real, live controversy must exist at all stages of review, not merely when the complaint is filed 4. Note, re: Standing a. Court generally will not uphold broad grants of standing to all persons b. Congress cannot eliminate injury in fact requirement by statute c. Court, however, will generally respect grant of standing if Congress limits standing to a specific class iii. Political Question 1. Those questions which are committed to, or more appropriately decided by, a political branch, not the judiciary 2. The Court will not decide a case that presents a political question rather than a justiciable controversy. The basic criteria for determining whether a question is political are: a. A textually demonstrable constitutional commitment of an issue to a coordinate political department b. A lack of judicially discoverable and manageable standards for resolving it c. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion d. A courts inability to resolve an issue without expressing disrespect for a coordinate branch e. An unusual need to defer to a prior political decision f. A situation where government must speak in one voice 3. AKA, whether it is clear from the Constitution that some branch of government is responsible for those acts, OR if there is a lack of judicial standards that the court can use to determine whether the action was legal or not a. Distinguish between whether a policy decision was wise and whether it was legal 4. Political Questions often involve the following issues: a. Separation of powers b. Conduct of foreign policy

c. War powers (and whether a war is constitutional) d. Procedures to impeach by the Senate 5. Distinction between determining whether a certain policy decision was wise and determining whether a certain policy decision presented a legal issue the former being a political question 2. Legislative Power a. Power of Congress i. Power of Congress to make laws as well as do other things necessary and proper to enactment of legislation b. Scope i. 10th Amendment 1. Powers that are not delegated to the federal government and that are not prohibited are reserved to the states ii. Enumerated Powers 1. Those expressly delegated by the Constitution iii. Necessary and Proper Clause 1. Certain broad federal powers may be implied from the Necessary and Proper Clause a. Appropriate Means i. Congress may use any appropriate means to achieve the ends expressed in the enumerated powers b. Inherent Powers i. The theory that the government has inherent powers, independent of the Constitution 1. Given effect only over external or foreign affairs 2. Rational Basis Test a. Whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power i. Very deferential 3. STEPS to follow on exam with N&P clause a. Scope: Find out what the statute does, figure out its subject regulated and state its scope b. Look at plausible interpretations that do not involve constitutional issues c. Identify a particular power that would allow Congress to take that action, AND d. Assuming the above are okay, are there any limits elsewhere in the Constitution? iv. Preemption 1. Derived from the Supremacy Clause a. The Constitution and laws made pursuant to it is the Supreme law of the land b. Renders conflicting state law unconstitutional 2. States do not need to look to specific place in Constitution to exercise a particular power a. See 10th Amendment (States are reserved powers that arent taken by Fed) 3. Types of Preemption a. Express Preemption i. The law itself contains a clause that states that fed law preempts state law b. Implied Preemption i. Conflict Preemption

1. Physical impossibility it is impossible to comply with

both state and fed law at the same time

2. Frustrating the purpose of fed law state law undermines

the purpose of federal law ii. Field Preemption 1. Federal government intends law to completely occupy a particular field 4. First need to determine if the fed law is constitutional (i.e., whether its within Congresss commerce clause power), THEN you determine whether the state law is preempted or not c. Commerce Clause i. Art. I, 8, cl. 3 1. to regulate commerce with foreign nations, and among the several states ii. Scope 1. Congress has the power to regulate commerceamong the several states when the legislation either regulates: a. The channels of interstate commerce b. The instrumentalities of interstate commerce, OR c. Activities that have a substantial economic effect on interstate commerce 2. Channels or Instrumentalities of Interstate Commerce a. Congress has Plenary power to regulate the channels and instrumentalities of interstate commerce. This includes the authority to exclude from shipment or travel in the channels of interstate commerce any goods, persons, or activities found by Congress to be harmful to the public health, safety, welfare, or morals. b. Includes the power to regulate even after interstate commerce has ended 3. Substantial Economic Effect a. Congress has the power to regulate activities that have a substantial economic effect on interstate commerce; including intrastate activities having such a close and substantial relationship to interstate commerce that control is necessary to prevent burdens on interstate commerce. i. Volume of commerce affected 1. Congress may regulate any business or individual, no matter how small the impact on interstate commerce, as long as there is an aggregate effect on other states by the class of activities regulated ii. Congress only needs a rational basis for their decision to regulate, but the Court will not allow Congress to obliterate the distinction between national and local. b. Considerations for determining if an activity Substantially Affects Interstate Commerce i. Whether the regulated activity is commercial in nature (Economic Activity) 1. Highly relevant to determination, but not dispositive on its own 2. If it doesnt concern economic activity, then it doesnt affect interstate commerce (e.g., wheat for personal consumption in the aggregate yes. But firearms in school zone no, it concerns criminality) ii. Whether the congressional statute contains a jurisdictional element (Jurisdictional Element)

iii. Whether Congress reasonably found that the regulated activity

substantially affects interstate commerce (Congressional Findings) 1. This is required, but it is not enough just on its own 2. Deferential, but cant be too attenuated iv. Whether the link between the regulated activity and interstate commerce is too attenuated (Attenuated Link) 1. Dont want to give Congress carte blanche to regulate everything 2. Also, there are areas that are traditionally local iii. Congress has two main methods to regulate (both are OK) 1. Police Power a. Using moral, non-commerce related reasons to regulate. Nevertheless, the activity regulated must somehow be related to interstate commerce. 2. Economic Purpose a. This allows Congress to control intrastate things because economically, it MAY affect interstate commerce 3. These are the two main distinctions between all the casesthe difference between morals (like lottery tickets) and economic impact (like homegrown wheat) iv. Congress can regulate as long as there is a minimal nexus between the conduct being regulated and interstate commerce, even if the interstate commerce actions occurred before the later regulated acts 1. Congresss power doesnt stop when the interstate travel stops v. Congress Directly Regulating States (GARCIA) 1. The Constitution imposes no judicially enforceable immunities for states from generally applicable federal laws if the state is being treated in the same manner as a private entity 2. A general regulation that happens to affect the states as well as others who engage in a certain activity, thus affording broad representation in the political process to those similarly affected, does not violate the Tenth Amendment 3. Congress must clearly indicate in statute that it intends to regulate States as well vi. Congress limiting states or state agencies by forcing them to regulate (PRINTZ) 1. Congress may not explicitly force states to regulate to meet policy goal of Congress; Congress can only exclusively regulate individuals 2. Valid ways Congress can regulate states a. States must regulate themselves or they wont get fed funding b. State must regulate or get preempted by fed law 3. Its okay to give states a choice, but those choices must be Constitutional d. Taxing and Spending Powers i. Art. I, 8, cl. 1 1. Congress has the power to tax, pay debts, and provide for the common defense and general welfare ii. Taxation with purpose or effect of regulation 1. Where Congress has the power to regulate, a tax is valid as a necessary and proper exercise of its regulatory power. Where there is no regulatory power, the tax will be upheld if its dominant intent is to raise revenue (i.e., fiscal rather than penal) 2. Congress cant tax as a penalty 3. States may not directly tax federal instrumentalities (recall Maryland Bank case) iii. Spending with purpose or effect of regulation 1. If Congress may directly regulate the target activity, the spending program is valid as a necessary and proper exercise of the regulatory power. 2. Congresss power to spend must be exercised for the general welfare and it may not violate an independent constitutional right

3. 4 Prong Test a. Money has to be for the general welfare i. Very broad, like police power b. The condition (which Congress imposes) must be unambiguous i. Designed to provide for a transparent political process, so states know options when they decide to accept money c. The spending needs to be related to the federal interest (i.e., the particular program or project) i. Need some relationship between object regulated and federal interest (drunk/dangerous driving across state lines) ii. Okay even if it takes a couple of links d. There must be no independent bar in other parts of the Constitution i. Congress cannot spend money to induce states or individuals to do something that is unconstitutional e. Treaty Power i. The President can make treaties with the advice and consent of 2/3 of the Senate 1. Congress must ratify ALL treaties. BUT, Congress has to create legislation to enforce (make it law) non self-executing treaties ii. A treaty is the supreme law of the land and supersedes state law. The Supremacy Clause places self-executing treaties on an equal footing with acts of Congress. Where there is a conflict between a treaty and an act of Congress, the last expression of the sovereign will stand. iii. Types of Treaties 1. Self-Executing a. Becomes law without further actions by Congress 2. Non Self-Executing a. Requires Congress to pass legislation before the treaty becomes law b. Most treaties are non self executing iv. Congress cannot use treaties to get around expressly denied enactments of laws 1. i.e., cant use a treaty to get around freedom of speech v. Executive Agreements 1. The President may enter into agreements with other countries 2. This is independent of the treaty power and does not require Senate consent 3. Have status similar to treaties and prevail over any inconsistent state law a. Unclear whether they also prevail over inconsistent congressional acts 3. Executive Power a. Source i. Art. II 1. Take care that laws be faithfully executed ii. President may delegate and appoint members of the executive branch, but all executive power remains with the office of the presidency b. General i. 3 Levels of Presidential Powers 1. President is acting with express or implied authorization of power (greatest) 2. President acts and Congress is/has been silent on the actions (middle) 3. President acts are incompatible with congressional intent (least) a. Acts will be ruled invalid unless the power comes from Constitution ii. Gloss 1. A systematic, unbroken executive practice, long pursued to the knowledge of the Congress and never before questioned c. Scope of Powers i. Appointment Powers

1. The President has the sole authority to appoint, with the advice and consent of the

Senate, officers of the United States a. E.g., ambassadors 2. Appointment of inferior officers may be vested in other departments a. E.g., special prosecutors appointed by courts b. Congress may vest the appointments of inferior officers in i. The President alone ii. In the courts, OR iii. In the heads of departments 3. Congressional Appointees a. Although Congress may appoint officials for investigative purposes, it may not appoint agency members with administrative powers 4. Principle vs. Inferior Officers a. Principle Officers i. May only be appointed by the President ii. Someone executing significant authority 1. i.e., heads of departments b. Inferior Officers i. May be vested in other departments ii. Someone subject to removal by a higher executive official (not president) iii. Lacks policy making or significant administrative authority ii. Removal Power 1. Although the Constitution is silent on the Presidents power to remove most of his appointees (exception: he cannot remove federal judges), the Court has held that he can remove some purely executive appointees even though the appointment required congressional approval (e.g., postmaster) a. Appointed pursuant to act of Congress i. Officers of administrative bodies created by Congress may be removed by the President only for causes specified in the statute b. Central to the Executive Function i. If the presidents need to control the exercise of the discretion is so central to the functioning of the executive branch, then the president can remove at-will 2. For quasi-legislative or quasi-judicial officers, Congress is allowed to place a forcause limit on their removal 3. Congress cannot reserve for itself removal authority for someone who is purely executive, except by impeachment a. But, they may still be able to limit Presidents removal authority b. Congress may not grant purely executive powers to governmental employees who are subject to removal by Congress 4. Quintessential executive functions include investigative and prosecutorial 5. TEST a. To determine whether the removal restrictions are constitutional, determine whether the removal restrictions are of such a nature that they impede the presidents ability to perform his constitutional duty iii. Legislative Power 1. Congress may delegate legislative power subject to the separation of powers doctrine a. Three Categories (p. 88) i. When Congress authorizes the Pres to act

1. Whatever authority Pres has in his own right and what authority Congress grants ii. Twilight Zone 1. Concurrent authority or in which its distribution is uncertain 2. Congressional inertia, indifference, or quiescence may enable measures on independent presidential responsibility 3. Courts dont like to place anything in this category, because then they wouldnt know what to do with it iii. When Pres takes measures incompatible with Congresss will, express or implied 1. Courts will always overrule when this is the case 2. Rulemaking a. Congress may delegate rulemaking authority to executive agencies as long as the act includes an intelligible principle i. Intelligible Principle (aka, Clear Standard) 1. Congress must set out some boundaries on the rules the agency will make 2. The Court has upheld vary broad parameters a. i.e., public interest, convenience, or necessity b. Rules and regulations created by agencies are subject to at least some judicial review, but allow a lot of discretion and deference to agencies and their rule making c. If Congress has explicitly left a gap for the agency to fill, the agencys interpretations of its governing statute are valid unless they are procedurally arbitrary, capricious, or manifestly contrary to the statute d. If Congresss delegation to the agency is implicit, the agencys interpretation is valid if reasonable e. If Congresss delegation to the agency is neither explicit nor implicit, considerable weight should be accorded to an executive departments construction of a statutory scheme it is entrusted to administer 3. Veto Power a. The Presidents veto power applies to ALL legislative actions unless expressly excepted by the Constitution. An act must be vetoed in its entirety (no line-item veto). If vetoed, Congress can repass legislation by 2/3 vote of each House. Decisions of the executive branch and its agencies may NOT be vetoed by Congress. b. If an act is legislative in character and effect, the action taken by Congress must be bicameral and be signed by President i. An act is legislative in character if it alters or affects the legal rights or status of persons c. Congress may not grant authority to the executive branch (i.e., administrative agency) and retain a legislative veto power over the decisions made by the agency without passing a law that meets the bicameralism + presidential signature requirements d. President cannot line-item veto after the act has been signed into law iv. Executive Privilege 1. Scope a. The claim of executive privilege for military, diplomatic, or national security is given great deference by the courts. b. Other Presidential communications are only presumptively privileged 2. Qualified vs. Absolute Privilege

a. Qualified Immunity i. Permits liability only for violations of clearly established rights of which a reasonable person would have known ii. The norm. Even high presidential aides only have qualified immunity b. Absolute Immunity i. The need of the president to faithfully execute the law and the need for confidentiality justifies the president ot have presumptive pricilege, however, he does not have absolute pricilege from the judicial process under all circumstances 3. Civil Damages a. Damages are not allowed for private suits based on any presidential acts within the outer perimeters of presidential constitutional authority. i. Immunity does not extend to aides b. Immunity does not extend to private, as opposed to official, acts 4. Balancing Test a. Used to determine whether presidential communications are protected by a qualified immunity b. Weigh the presidents interest with other interests (i.e., public, criminal, etc) i. Presidents interest is very high in cases dealing with national security, diplomacy, etc. ii. Public interest is very high when president is accused of criminal activity v. War Powers & Foreign Affairs 1. Declares that President is Commander in Chief 2. Cant use war authority to do anything he wants just because the war is going on a. i.e., take over the steel industry 3. Congress declares war, President is commander in chief a. President can respond to immediate attack or threat 4. President is sole representative with foreign nations 5. Federalism not implicated if issue concerns foreign relations 4. Separation of Powers a. Doctrine essentially saying that no branch of government shall be able to invade another branches constitutionally delineated province b. No branch of government should be able to exercise the constitutional responsibilities of any other branch c. Considered integral to prevent tyranny POWERS OF THE STATES TO REGULATE 1. Interstate Commerce a. The federal power over interstate commerce is potentially all pervasive, but it is not exclusive. Whether a state may regulate interstate commerce turns significantly on whether there is relevant federal legislation or, if there is no relevant federal legislation, whether the state law unduly burdens or discriminates against interstate commerce; this latter principle is known as the Dormant (or Negative) Commerce Clause. b. Where Congress Expressly Authorizes or Prohibits State Regulation i. The Commerce Clause gives Congress COMPLETE power to permit or prohibit state regulation of commerce that is within Congresss regulatory power, but Congress cannot authorize states to violate the Equal Protection Clause c. Where No Express Congressional Authorization or Prohibition of State Law

i. If there is relevant federal legislation, but no express authorization or prohibition of state law, the Court determines whether Congress INTENDED to authorize or prohibit it. If the state regulation is found to be PREEMPTED by federal law, it will be held invalid under the Supremacy Clause. In determining congressional intent, the Court will look to: 1. Whether there is an interest in uniform, national regulation 2. Historical or traditional classifications of the subject matter as federal or local 3. Completeness of the federal regulatory scheme, AND 4. The coincidence between federal and state statutes d. Power of States to Regulate Where Congress Has Not Acted i. If Congress has not enacted legislation regarding the subject matter, states may regulate local transactions even though they affect interstate commerce subject to certain limitations (i.e., does it discriminate or unduly burden interstate commerce?) 1. Discriminatory a. State regulations that discriminate against interstate commerce are ALMOST ALWAYS INVALID (examined under strict scrutiny) as an invasion of the federal commerce power. However, even discriminatory regulations may be upheld: i. Where a state is favoring a local government entity ii. To protect health and safety interests if there are no reasonable alternatives, AND 1. i.e., a state may prohibit importation of live baitfish from other state where they pose a health threat to the states fragile fisheries iii. Where the state acts as a Market Participant 1. When a state acts as a market participant, it may limit its purchase (or sales) to local residents or businesses. 2. However, when a state funds public construction projects, regulations or expenditures that discriminate against out-ofstaters are subject to review under the Interstate Privileges and Immunities Clause 3. Limit a. The market participant state cannot impose conditions that have regulatory effect outside of that particular market 4. One way to distinguish between government and private actions by the state is found by looking at where the money came from a. i.e., Is the activity supported with general tax funds, or whether it is financed by the revenues it (the activity) generates? b. Burden of proof is on the state 2. Non-Discriminatory Regulation that affects interstate commerce a. State regulations that do not discriminate against interstate commerce are giver greater deference by the Court b. Burden of proof is on the attacker c. Balancing Test (PIKE) i. The BURDEN ON INTERSTATE COMMERCE imposed by the regulation is weighed against the STRENGTH OF THE STATE INTEREST in the regulation, with the Court deciding whether the regulation imposes an UNREASONABLE BURDEN on interstate commerce.

ii. The Court gives greater weight to statutes that further local health, safety, or social welfare interests than to statutes that seek to protect local economic interests iii. Judicial Role 1. The Court makes its own determination as to the PURPOSES of the state regulation and is not bound by recitals of purpose by the enacting legislature. However, the Court generally will defer to state legislative determinations of DISPUTED FACTUAL QUESTIONS on whether the states purpose is served by the regulation or on the cost of compliance. iv. Economic Regulations 1. The fact that a nondiscriminatory state regulation is designed to protect local economic interests does not automatically invalidate it under the Commerce Clause. 2. The regulations upheld involve minimum prices paid to local producers, even when applied to goods sold in interstate commerce. v. Reciprocity Agreements 1. Reciprocity agreements between sates respecting sale of products do not automatically violate the Commerce Clause 2. BUT a MANDATORY reciprocity requirement forbidding sale of products from another state unless that state reciprocates is invalid absent a substantial state interest that cannot be obtained by alternative means ii. Political Process Rationale 1. Theory that states that a statute that discriminates against local interests as well as out-of-staters (i.e., there are local losers as well) should be held valid because the local losers can vindicate the out-of-state interests through the political process 2. State Taxation a. States cannot impose taxes that target ONLY interstate commerce b. State taxes that target both interstate and local commerce will usually be upheld c. Direct subsidies are often OK under commerce clause attack, but discriminatory taxes on out-ofstate manufacturers often fail under a commerce clause challenge d. Direct subsidies in conjunction with discriminatory taxes are unconstitutional 3. Transportation Regulation a. States cannot substantially impede the free flow of commerce b. States cannot regulate in a way that will undermine the need for national uniformity c. Use Pike Balancing Test???? 4. Privileges and Immunities Clause a. Art. IV, 2 b. Prohibits state or local government discrimination against citizens of other states in respect to essential activities or basic rights unless the discrimination is CLOSELY or SUBSTANTIALLY RELATED to a SUBSTANTIAL STATE PURPOSE. The clause also extends to actions of local government units that discriminate against residents of other cities. c. Fundamental Right i. Earning a living (but no right to direct government employment) ii. Medical services iii. Not to recreational activities (i.e. elk hunting) d. Does not apply to corporations. Only citizens. e. TEST state has burden of showing: i. There is a substantial reason for the difference in treatment, AND

ii. The discrimination against nonresidents bears a substantial relationship to the states objective f. Plaintiff needs to show that there is a real difference between the treatment of in-state citizens and out-of-state citizens