Answering Any Con Law Question (Revised)

8/3/2019 Answering Any Con Law Question (Revised)

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I. Are we trying to decide if the Supreme Court can hear the case?1. Is the case Justiciable?

a) It must be a case or controversy as defined in Article IIIb) The case must not be an advisory opinion

i. If the decision can be overturned by another branch, it isan advisory opinion

ii. A declaratory judgment is not an advisory opinion as long

as the parties meet standing2. Do the parties meet the constitutional standing

requirements?a) Injury must be a perceptible and recognized harm.

i. if seeking injunctive relief, must show the injury isongoing (Lyons)

ii. if seeking relief from future injuries, must show it ispredictable you will suffer the same injury

b) Causation causal link between injury and conduct ofdefendant: fairly traceable

c) Redressability Relief requested must be designed to

alleviate the injury3. Do the parties meet the prudential standing requirements?

a) Is the case a general grievance? If so, no standing.i. Cant sue as a taxpayer or citizen unless you feel a

particular harm or are challenging spending underseparation of church and state

b) Are you seeking standing as a third party? If so, no standingunless:i. You are in the best position to protect the rights of an

absent partyii. You have a special relationship with the third party AND

the other party is unable to bring its own claim AND youhave standing on your own

4. The case must be ripe for reviewa) You cant sue if you havent been harmed by enforcement of a

law UNLESS (Abbot Labs test for pre-enforcement review)i. It would be a significant hardship to not grant review

before enforcement of the lawii. The record is sufficient (facts undisputed) to make a

decision as a matter of lawiii. For criminal case there must be an actual or imminent

arrest (Poe)

5. The case must not be moot. Its moot IFa) The issue has passed (one of the elements creating proper

standing disappears during the case)i. defendant in a criminal case diesii. Parties settleiii. Law changes

b) Exceptions that will allow a moot case to proceedi. Wrongs capable of repetition to the same party but

evading review (Roe v. Wade)


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ii. Defendant corrects behavior, but could resume at anytime (Laidlaw)

iii. Class action suits when the primary plaintiffs case ismooted (Geraghty)

iv. If the sentence for a criminal prosecution has beenperformed, but you still suffer injuries because of theprosecution

6. The case must not be a political question something thatshould be determined by the other branches of thegovernment

a) Is there a constitutional textual commitment of the power tosome other branch? (Baker v. Carr)

b) Is it the kind of question that lacks manageable judicialstandards? (policy determinations, much data required)

c) Does the case have the potential for judicial embarrassment?(Nixon)

d) Ex: Guaranty clause (republican government redistricting),foreign relations, impeachment


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II. Are we trying to decide if Congress has the power to dosomething?

1. Is this a valid exercise of power under the commerce clause?a) Would it have been valid under Gibbons v. Ogden? (anything

involving more than one state, and anything frommanufacture to consumption)

b) Would it have been valid under Lochner?

i. Manufacturing isnt commerce (EC Knight)ii. IntRAstate transaction must have direct effect (Schechter

Poultry)iii. The law must not impinge on state police power under

10th amend (Hammer v. Dagenhart)c) Would it have been valid under the new deal era?

i. Does the activity being regulated substantially effectISC? (Jones & Laughlin Steel)

ii. You can aggregate the effects of the activity (Wickard)iii. Commerce clause is a valid excuse to regulate morals

(Darby)

iv. There is no 10th

amendment issue nothing reserved forstates

v. Broad deference to congress as to what substantiallyeffects (Darby)

d) Is it valid today? (Lopez)i. Is the thing being regulated a CHANNEL of interstate

commerce (roads, railroads)? ORii. Is it an INSTRUMENTALITY of interstate commerce (people

carrying goods in ISC, machines in ISC (cars))? ORiii. Does the thing substantially effect interstate commerce?

a. No deference to congress must provide evidence

b. Only aggregation if regulating commercial activities(Morrison)

iv. Is the act a commandeering? (violation of 10th

amendment)a. Congress more concerned with protecting states

sovereign power than their police powersb. Congress cant force a state legislature to pass

legislationc. Congress cant commandeer an executive branch

official to carry out federal policyd. Its not commandeering if the legislation is forcing

state officials to implement policy that is directlyaimed at the states

2. Is this a valid exercise of power under the 13th, 14th, and 15th

amendments?a) Valid under enforcement clause of 14th amendment - does the

federal legislation apply to state acts? (Morrison)b) Is the congressional act congruent and proportional to the

problem it is trying to solve? (City of Borne v. Flores)3. Is Congress trying to authorize a suit against a state

government?


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a) Is it a suit in federal court?i. Has congress unequivocally expressed its intentions to

abrogate state immunity despite 11th amendment?ii. Has the government established a clear pattern of

violations? (Garrett)iii. Is the act to be enforced in federal courts a valid exercise

under the 14th amendment (congruent and proportional

is the law too broad?)b) Is it a suit in state court? (Alden v. Maine)

i. Congress can authorize a damages suit against a state ina state court under the same rationale it can authorizesuit against a state in federal court


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III. Are we trying to decide if the president is doing the right thing?1. Is he acting under an inherent presidential power?

a) How do you tell if a presidential act is valid (Youngstown)i. Majority - President must have express constitutional or

congressional authorityii. Frankfurter Pres has inherent powers unless they

conflict with congress wishes

iii. Jackson (the surviving rule)a. If he is acting under express authority from

congress or the constitution, the president can doanything constitutional

b. If congress expressly disapproves of thepresidents action, then it is invalid

c. If there is not congressional approval or denial,then congress must look at the situation, thegravity of the circumstances, and the necessity forthe act

b) (Zone of authority) The president has inherent authority when

it comes to foreign affairs (Curtis Wright)2. Congress ability to expand presidential powers line item veto3. Has Congress validly delegated power to an administrative

agency?a) Non-delegation doctrine

i. Congress can only delegate authority to administrativeagencies if they provide an intelligible principle thatdefines the scope of the agency

b) Has congress exercised some sort of legislative veto of anadministrative act? They cant do that. (INS v. Chadha)

c) Has congress validly hired or fired an executive official?

(Morrison v. Olson)i. Congress must ratify senior officialsii. Congress cant do anything about lower officials (Olson

test for inferior officer)4. Was the presidents act regarding foreign policy valid?

a) Was he making a treaty? Requires 2/3 approval by thesenate.

b) Has he made an executive agreement with a foreigngovernment? (Dames & Moore v. Regan)i. Not mentioned in constitution. May do so as long as

there is not an express congressional denial to make the

particular agreementc) Was it a valid exercise under the war power?

i. Anything more than a temporary emergency actionrequires authorization of congress

ii. There must be an indication of acquiescence by congress5. Checks on the president

a) When can the president be forced to participate in aninvestigation?


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i. If he is claiming general executive privilege, the courtgets to decide if he can exercise that privilege (US v.Nixon)

ii. If he is operating in the realm of foreign policy, nationalsecurity, or the military, he may have an unqualifiedprivilege

b) When can civil suits be brought against the president

i. Immune from suits arising from official acts committedwhen in office (Nixon v. Fitzgerald)

ii. Not immune from suits from things done prior to enteringoffice (Clinton v. Jones)

iii. Not clear what would happen regarding actionscommitted outside scope of duties while in office

c) Impeachmenti. President can be impeached for High crimes and

misdemeanorsii. House impeaches, senate tries the caseiii. Not clear if court will step into an impeachment, unless

the decision to impeach appeared arbitrary


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IV. Is there a state regulation in question, and do we want to see ifthe state hasexceeded its bounds?

1. Is the state law preempted by a federal law?a) Was there an express preemption in the text of the federal

law?b) Was there an implied preemption?

i. Does the state law conflict with the federal law?

a. If the state law conflicts directly with the federallaw if you cant comply with one without breakingthe other

b. Look out for federal standards which create afloor rather than an absolute.

ii. Did congress intend the federal law to occupy the wholefield?

a. Only applies to immigration law as far as we knowiii. Does the state law impede the objectives of the federal

law?a. May have to look at the intent behind the state &

federal laws2. Does the dormant commerce clause limit the states ability to

act?a) Does the state law discriminate against out of state citizens?

If so, there must be a strong state interest and no non-discriminatory alternativei. Is the law discriminatory on its face? (specifically forbids

out of state people from doing something that effectsISC)

ii. Does the law have discriminatory effects? (impose a hugeburden on out of state people)

iii. Does the law have a discriminatory intent? (look at thelegislative intent)

b) If the state law is not discriminatoryi. Balance the state interest to be protected against the

burden on interstate commercec) Exceptions to dormant commerce clause restrictions

i. Congress grants a state authority to violate the clauseii. If the state is a participant in the area, it may favor its

own citizensV. Are we protecting the civil rights of some people?

1. How does the bill of rights apply to the states?

a) Only the 14th amendment allowsb) Using Privileges and Immunities clause to protect people from

statesi. Privileges and immunities clause of 14th eviscerated by

Slaughterhouse Casesii. May be revived for people traveling between states by

Sanzc) Using the due process clause of 14th to protect people from

states


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i. Life, liberty, and property not to be taken without dueprocess

ii. Clause interpreted to mean that some rights are sofundamental as to fall within life, liberty, and property

iii. Incorporation = defining a right as fundamental enoughto apply to the states. Only a few rights not incorporated:

a. 2nd amendment

b. 3rd

amendment no housing of militia clausec. 5th amendment right to be indicted by grand juryd. 7th amendment right to a jury triale. 8th amendment prohibition of excessive fines

2. How does the bill of rights apply to private conduct?a) State action doctrine = it doesntb) Exceptions to the state action doctrine

i. Is the private entity performing a public function?a. Is it a function that is traditionally done exclusively

by the government?b. Elections, run cities, maybe utilities, doesnt apply

to mallsii. Is the private entity entangled with the state?

a. Did the state affirmatively authorize, facilitate,participate in, or encourage the illegal activity?

b. Judicial and law enforcement actions areautomatically entanglement (Shelley v. Kraemer)

c. Government regulation/involvementd. Government Subsidies

iii. Is the private entity entwined with the state?a. If the private organization is so similar in function

and structure to the public entity

VI. Are we protecting someones economic liberties?1. Does a law violate freedom to contract?

a) In the Lochner erai. Freedom to contract is protectedii. Any law that appears to limit that freedom subjected to

high scrutinya. States can only interfere with freedom to contract if

there is a compelling reasonb. The measures implemented by the state must be

necessaryiii. No deference to legislature as to what is a compelling

reasonb) Since 1937

i. A law that seeks to limit the right to contract must have arational basis (does the law protect a legitimate interestof the people)

ii. Court will defer to congress as to whether the law waspassed for a good reason

2. Is there a taking of property?a) Was there a taking?

i. Was it a possessory taking?


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a. Any permanent physical occupation of your landb. Condemnation to build a road(actual taking)

ii. Was it a regulatory taking?a. Government must have some power to regulate use

of land without having to pay for itb. Early rule:

i. if a regulation goes too far it is a taking

(Pennsylvania Coal)c. Penn Central Rule

i. Amount of decrease in value of propertyii. How much the regulation disappoints the

investment backed expectation of the personbeing regulated

iii. The character of the governmental action1. If the public benefit greatly outweighs

the private detriment, maybe not ataking

2. If the state is making an unavoidable

choice, maybe not a taking3. If there are widely distributed burdens

and benefits, maybe not a takingiv. Was there a non-monetary compensation for

the regulation (people allowed to keep trees)d. If the regulation takes away all economic value of

land, its a taking unless the regulation is regulatinga common law nuisance

b) Was it for a public use?i. There is a high deference to congress as to what is a

public use.

Answering Any Con Law Question (Revised)

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