1. 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

2. Five Big Issue Areas 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

3. 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!

4. 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

5. Justiciability Key Black Letter Rules to Memorize, Understand and Apply: Standing (definitions of Constitutional requirements of injury, causation & redressability); & Prudential Standing Limits & Rules (generalized grievances; 3 rd party standing) ; Mootness Exceptions; Political Question Factors (committed to political branches, lack of manageable judicial standards, etc) Only address justiciability if there is a colorable issue that the defendant would raise…

6. 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

7. 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)

8. 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 –T–T–T–Then consider whether other challenges exist such as individual rights violations

9. 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 & SpendTax & Spend Regulate Interstate & Foreign CommerceRegulate Interstate & Foreign Commerce Civil War Amendments (enforce 13, 14 & 15th A rights against states)Civil War Amendments (enforce 13, 14 & 15th A rights against states)

10. 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 10 th 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)

11. 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)

12. Judicial Retrenchment? Cases are not the focus but provide helpful guideposts for analysis Lopez & Guns in Schools  1 st 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

13. 10 th 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

14. 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 11 th A immunity (again contrast with CC & Art.I powers)

15. Key Q: Limits of 14 th 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 11 th 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 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?

16. 11 th Limits 11 th 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 14 th A rights But this remedy must be C & P (more later)

17. 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)

18. 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”

19. Analytical Framework for DCC DCCTrigger  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

20. 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

21. 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

22. 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)

23. 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

24. Rational Basis 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”

25. 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

26. 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)