SUMMARY OUTLINE: CONSTITUTIONAL LAW

I. Judicial Power
A. Source and scope
1. SourceArticle III
2. Scope
Limited to cases and controversies, and
Has the power to review
o Another branchs act and declare it unconstitutional, and
o State actions under the Supremacy Clause to ensure conformity with the
Constitution
3. Eleventh Amendment Limitation
Jurisdictional bar prohibiting citizens from suing their own state (not local government)
in federal court that immunizes state from suits for money damages or equitable relief
Bars suits against state officials for violating state law
Exceptions to application of 11
th
Amend.
o Consent
o Injunctive or declaratory relief
o Damages paid by state officer
o Congressional enforcement of 14th Amend. rights
B. Supreme Court jurisdiction
1. Original jurisdiction over
All cases affecting ambassadors
Other public ministers/consuls
When state is a party
2. Appellate jurisdiction over other cases through certiorari and direct appeal
Final state-court judgment resting upon adequate/independent state grounds not
reviewable by Supreme Court
C. Judicial review
1. Standing
General rule Plaintiff must establish
o Injury-in-factConcrete and particularized - Injury need not be physical/economic
and future injury must be actual and imminent
o CausationInjury caused by Ds conduct
o RedressabilityRelief requested is likely to prevent/redress the injury
o Prudential standingEstablished by federal judiciary, requires that P is property
party to invoke judicial resolution of dispute
Taxpayer status Generally no standing to challenge government allocation of funds
However, taxpayer has standing to
o Litigate how much owed on tax bill, and
o Challenge government expenditures as violating the Establishment Clause
3
rd
party standing Generally no standing to bring lawsuit based on 3
rd
party claims
However, exceptions include
o When 3rd party unable to assert his own rights
o If there is a special relationship between P and 3rd party, or
o Ps injury adversely affects the Ps relationship with 3
rd
party
Organizational standingOrganization can sue on its own behalf or on behalf of its
members if
o Member has standing to sue in his own right, and
o Interest at stake germane to organizations purpose
2. Timeliness
RipenessP must have experienced a real injury (action brought too soon is unripe)
Mootness - Must be a live controversy at each stage of review (action brought too late
is moot) But case not moot if:
o Controversy is capable of repetition but is evading review, i.e. will not last long
enough to work through judicial system
o Defendant voluntarily ceases its illegal/wrongful action upon commencement of
litigation until court is assured wrong will not be repeated
o Named Ps claim in class action suit is resolved
3. Justiciability
Advisory opinions No advisory opinion unless an actual case or controversy exists
Declaratory judgments Challenged action must be real and immediate danger to
partys interests
Political question matters (to be resolved by another branch of government) not
subject to judicial review
4. Abstention
Federal court may abstain from ruling on unsettled issues of state law
II. Powers of Congress
A. Commerce
1. Interstate commerce - Power to regulate
Channels and
Instrumentalities of interstate commerce, and
Any activity that substantially affects it
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2. Substantial economic effect - Power to regulate any activity or combination
thereof that has substantial economic effect on interstate commerce
AggregationEven if an intrastate activity has no direct economic impact, as long as
there is
o Rational basis for concluding
o That total incidence of activity in the aggregate
o Substantially affects interstate commerce
o Then Congress can regulate
3. Non-economic activity
If regulation involves a non-economic activity of traditional state concern, Congress
must establish connection between the activity and substantial economic effect in order
to regulate it
B. Taxation and Spending
1. Taxing
Tax upheld if it has reasonable relationship to revenue production or if Congress has
power to regulate the activity being taxed
o Congress has plenary power to impose taxes to raise revenue (or for any public
purpose) through General Welfare Clause
2. Spending
Power to spend for the general welfare (any public purpose), including conditional
federal funding
C. War and defense powers
1. Power to declare war
2. Raise and support armies/navy
3. Govern land/naval forces, and
4. Organize militia
Whatever action necessary to provide for national defense
D. Property power
1. No express limit on power to dispose of US property, however
2. Congress may only take private property for public use with just compensation and to
effectuate an enumerated power
E. Power over aliens and citizenship
1. Plenary power over aliens
Subject to due process clause
2. Exclusive authority over naturalization
F. Necessary and Proper Clause
Power to enact any legislation necessary/proper to execute federal government
authority
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o But clause not independent source of power so must carry into effect other
enumerated powers
G. Enabling Clause of 14
th
Amendment
Enables Congress to enforce equal protection and due process rights
o As defined by Supreme Court
o Enforcement must have congruence and proportionality between injury to be
prevented and means adopted to achieve that end
III. Powers of the President
A. Domestic power
1. Power to pardon federal offenses
2. Veto power
3. Appoint officers of US with advice/consent of the Senate, and remove executive appointees
without cause or Senate approval
Presidential authorityvaries with degree of congressional authorization
B. Foreign affairs
1. President can take military action against actual hostilities against US
But only Congress can declare war
2. Exclusive power to negotiate treaties
Ratified by Senate
3. Power to enter into executive agreements with foreign nations
Without Senate approval
IV. Federal Interbranch Relationships
A. Congressional limits on executive
1. If Congress explicitly mandates expenditure of funds, President cannot impound funds
2. Unconstitutional for Congress to attempt legislative veto of executive action
B. Delegation of legislative power
Delegation to executive branch constitutional if Congress specifies intelligible principle
to guide delegate
C. Judicial limitation of congressional power
Congress cannot reinstate right to bring legal action rejected by Supreme Court
D. Immunities and privileges
1. Judicial
Absolute immunity from civil liability for damages from judicial acts
2. Legislative
No civil/criminal liability for statements and conduct made in regular course of
legislative process
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3. Executive
No civil liability for performance of official responsibilities
Executive privilege regarding non-disclosure of confidential information
V. State Regulation and Taxation of Commerce
A. Dormant Commerce Clause
1. General ruleIf Congress has not, States can regulate interstate commerce so
long as regulation does not
Discriminate against out-of-state commerce
Unduly burden interstate commerce
Regulate wholly out-of-state activity
2. Discrimination against out-of-state commerce (protecting local economic
interests at the expense of out-of-state competitors)
State or local discriminatory regulation may be upheld if
o Important government interestNot allowed unless important local interest being
served and no other nondiscriminatory means available to achieve that purpose
o Market participantState can favor local commerce or discriminate against
nonresident commerce like a private business
o Traditional government functionRegulation can favor state/local government
entities if entities are performing traditional government function
o Congressionally permitted discriminationMust be unmistakably clear that Congress
allows impermissible state regulation
3. Undue burden on interstate commerce
Balancing test pose of state law against burden on interstate commerce and evaluate
whether there are less restrictive alternatives
o If benefits are grossly outweighed, even nondiscriminatory regulation may be struck
down
B. State Taxation of Commerce
1. Interstate commerce
General rulePermitted only if Congress has not already regulated a particular activity
and tax does not discriminate against or unduly burden interstate commerce
Four-part test
o Substantial nexus between activity being taxed and taxing state
o Fair tax apportionment such that interstate commerce doesnt pay tax in more than
one state
o No local direct commercial advantage over interstate competitors (even if neutral on
its face), and
o Tax must be fairly related to services provided by taxing state
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2. Foreign commerceStates must have congressional consent to impose
import/export taxes
VI. Preemption
A. Express preemption
When Constitution makes federal power exclusive or Congress enacted legislation
explicitly prohibiting state regulation in same area
o Must be narrowly construed
B. Implied preemption
1. Congress intended for federal law to occupy the field
2. State law directly conflicts with federal law, or
3. State law indirectly conflicts with federal law by creating obstacle to laws purpose
C. Absence of preemption
State law can set more stringent standards or recognize greater individual rights than
federal law if no preemption
VII. Relations Among States
A. Full Faith and Credit
Out-of-state judgments must be given in-state effect if
o Court rendering judgment had jurisdiction over the parties/subject matter
o Judgment was on the merits, and
o Final judgment
VIII. State Action (Prerequisite to triggering constitutional protections)
A. Traditional governmental function
Private person carries on activities traditionally performed exclusively by the state
B. Significant state involvement
Sufficient mutual contacts between conduct of a private party and government, and
State must act affirmatively to facilitate, encourage, or authorize the activity (licensing
or regulation of private party not enough)
C. Insignificant state involvement
Business that government substantially regulates to which it grants a monopoly (e.g.
utility company)
Nursing homes that accept Medicaid
Schools receiving government funds but operated by private corporation
IX. Procedural Due ProcessFifth Amendment (federal government) and Fourteenth (states)
A. Due Process Generally
Necessary procedures before depriving individuals and other persons, e.g.,
corporations, of life, liberty, or property
14
th
Amend. - Most provisions of the Bill of Rights applicable against states
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Both Due Process Clauses Substantive component guarantees fundamental rights
to all persons catchall
B. Procedural Due Process Applied
1. Fundamental Fairness Includes right to be notified of charges and opportunity
to be heard
Threatened interest a protected one?
If so, what process due?
o Neutral decision maker
o Intentional governmental act
2. Protected Interests
Liberty
o Significant governmental restraint on ones physical freedom, fundamental rights, or
freedom of choice or action
Property
o Legitimate claim of entitlement
3. Notice and hearingamount of process due determined by three factors
Private interest affected
Value of additional safeguards, and
Burden (cost) of additional process
4. Court access
Court fees waived for indigent person if fees will deny fundamental right
X. Substantive Due Process
A. Standard of review in substantive due process cases
1. Strict scrutiny (burden of proof on government) if government action infringes
fundamental right
Law must be least restrictive means to achieve compelling government interest
o Least restrictive - Cannot be a less restrictive way to achieve interest and law should
not be over/under-inclusive
o Compelling interestnecessary or crucial
2. Rational basis (burden of proof on challenger) in cases when strict or
intermediate scrutiny not applicable
Law must be rationally related to legitimate state interest (minimal scrutiny)
In practice, applied to laws related to lifestyle, taxation, zoning, and punitive damages
B. Fundamental Rights
1. Travel
From state-to-state or become permanent resident
2. Voting and Ballot Access
More significant the government restriction, the greater the degree of scrutiny
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3. Privacy
Marriage, contraception, intimate sexual behavior, abortion (undue burden test),
parental rights, family relations, obscene material, right to refuse medical treatment,
and right to avoid disclosure of personal medical information
4. Second Amendment
Right to possess a firearm
XI. Equal Protection
A. General considerations
1. Constitutional basis: 14th Amend. Equal Protection Clause for states and 5th Amend.
Due Process Clause for federal government
2. Standards of review (depends on classification of persons or type of right)
Strict scrutiny (least restrictive means to achieve a compelling governmental interest)
applies if fundamental rights or suspect classification involved
Intermediate scrutiny (substantially related to important governmental interest)
applies if gender or legitimacy involved
o Gender cases require exceedingly persuasive justification for the classification
Rational basis (rationally related to legitimate state interest)applies when higher
standards do not apply
o Applies to laws distinguishing people based on age, wealth, weight, and distinctions
drawn for business reasons
3. Discriminatory intent on governments part necessary to trigger strict or intermediate
scrutiny
Discriminatory on its facelaw that creates distinctions between classes of persons by
its very language
Discriminatory applicationneutral on its face, but applied in discriminatory fashion
Discriminatory motivedisparate impact coupled with proof of discriminatory
motive/intent
B. Suspect classifications (strict scrutiny law must be least restrictive means to
compelling government interest)
1. Race, ethnicity, national origin
De jure (intentional) segregation violates Equal Protection clause
Programs favoring racial or ethnic minorities (affirmative action) subject to strict
scrutiny
2. Alienage (in some cases depends on level of government and nature of
classification)
Federal classifications valid unless arbitrary and unreasonable, and
Strict scrutiny applied to state laws that discriminate against aliens
o Exception for state restrictions on resident aliens participation in government
functions rational basis standard applied
C. Quasi-suspect classifications (intermediate scrutiny substantially related to
important government interest)
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1. Gender
Need discriminatory intent by government (not just disparate impact)
Government must show exceedingly persuasive justification exists for gender
distinction, and separate facilities must be substantially equivalent, and
Benign discrimination (affirmative action) okay under intermediate scrutiny as remedy
for past gender-based discrimination
2. Legitimacy
Legislation designed to punish nonmarital children will not be upheld
D. Non-suspect classifications (rational basis - rationally related to legitimate state
interest)
1. Age
2. Poverty
3. Sexual orientation
E. Fundamental rights unique to equal protection (i.e., no overlap with substantive
due process)
One person, one vote
Gerrymandering (based on racial or political discrimination) unconstitutional
XII. Privileges & Immunities Clauses
A. Comity Clause
1. Applies only to citizens (not corporations or aliens)
2. Prohibits one state from discriminating against citizens of another state with respect to
fundamental rights or essential activities
Examples include pursuit of employment, transfer of property, access to state courts
3. Substantial justification exception
Applies if nonresidents are cause or part of problem state trying to solve, and
No less-restrictive means
B. 14th Amend. National Citizenship
1. Applies only to citizens (not corporations or aliens)
2. Protects against infringement on privileges and immunities of national citizenship
Right to travel interstate, vote for national offices, enter public lands, and peaceably
assemble
Provision is seldom successfully invoked, rights are redundant to rights protected
elsewhere in constitution, and in practice applies only to right to travel
XIII. Takings Clause (a check on the power of eminent domain)
A. Challenger to a taking must have property interest
Includes real property and tangible/intangible personal property
Interests include fee simple, easement, leasehold, lien, rights of property owner
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B. Types of takings
1. Seizure of, destruction of, or damage to property
2. Re-characterization of private property as public
3. Regulatory taking, and
4. Exaction of promises from developer
Do not violate the Takings Clause if there is
o Essential nexus between legitimate state interests and conditions imposed on the
property owner, and
o Rough proportionality between burden imposed on property owner and impact of
proposed development
C. Just compensation
Fair market value at time of taking measured in terms of loss to the owner (not benefit
to government)
XIV. Prohibited legislation
A. Bills of attainder
B. Ex post facto laws
C. Impairment of contracts
Applies only to state legislation
That retroactively impairs contractual rights
XV. Freedom of Religion
A. Establishment
1. Standard of review (Lemon test) Governmental action benefitting religion may be valid if
Secular purpose
Primary effect neither advances nor prohibits religion, and
Does not result in excessive government entanglement with religion
2. Financial aid to religiously affiliated institutions (Lemon test)
Indirect aid to schoolchildrenvalid if widely available to class of persons (not defined
by religion)
Direct aid to colleges/hospitalsupheld if aid used only for nonreligious purposes, and
Tax exemptionsvalid if equivalent to exemptions to other charitable institutions not
advancing/inhibiting religion (i.e. cant be available only to religious organizations)
3. Held invalid as clearly promoting religion at school
Prayer/Bible reading
Period of silence for meditation/voluntary prayer
Nondenominational prayer by cleric at graduation
Posting of Ten Commandments
Prohibiting teaching of Darwinism
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4. Religious displays
Ten Commandments on public property not allowed if it has predominantly religious
purpose
Government holiday displays okay unless reasonable observers conclusion is that they
endorse religion
B. Free Exercise
1. Religious belief
Absolutely protected and cannot be restricted by law, and
Government cannot deny benefits or impose burdens based on religious belief
o Court may determine sincerity of person asserting belief, but may not determine
reasonableness of belief
2. Religious conduct
Not absolutely protected
State laws that intentionally target religious conduct subject to strict scrutiny
Neutral state laws of general applicability that have an impact on religious conduct only
subject to rational basis test
XVI. Freedom of Expression/Association
A. Regulation of Speech
1. Expressive conduct (symbolic speech)Regulation upheld if
It is within the governments power to enact
It furthers an important government interest
Interest is unrelated to suppression of ideas, and
Burden on speech no greater than necessary
2. Overbreadth
Void if burdens substantially more speech than necessary to protect a compelling
government interest
A few possible impermissible applications of statute not sufficient to make it overbroad
Overbroad statutes may be challenged as facially invalid to prevent chilling effect on
protected speech
3. Vagueness
Statute void for vagueness if it fails to provide a person of ordinary intelligence with
fair notice of what is prohibited
4. Prior restraints (regulation of speech in advance of its expression)
Invalid unless there is particular harm to be avoided and certain procedural
safeguards are provided to the speaker, for example
o Narrowly drawn/reasonable/definite standards
o Promptly sought injunction
o Prompt/final decision on validity of restraint
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Burden on government to prove censored material not protected speech
5. Unfettered discretion
Statute giving officials unfettered discretion void on its face; speakers need not apply
for permit and may not be punished for violation
Statute must provide definite standards to officials on how to apply the law to restrict
speech
Statute must be related to important governmental interest and contain
aforementioned procedural safeguards
6. Freedom not to speak
Cannot be forced to speak
Cannot be forced to fund political speech by a group one is compelled to join with
respect to ones employment
7. Government speech
Need not be viewpoint-neutral, but is subject to the Establishment Clause
8. Campaign related speech
Statutes limiting campaign contributions subject to intermediate scrutiny, and
Restrictions on campaign expenditures on communications during election campaign
regarding a candidate subject to strict scrutiny
B. Time/place/manner of expression
1. Public forum
Traditionalhistorically associated with expression (e.g. sidewalks, streets or parks)
Designated (limited)not historically used for speech-related activities but which
government has opened for such use (e.g. civic auditoriums, publicly owned theaters,
or school classroom off-hours)
Restrictions must be
o Content-neutral as to subject matter and viewpoint
o Narrowly tailored to serve a significant government interest, and
o Leave open ample alternative channels for communication
Subject to strict scrutiny if not content-neutral
Injunction in public forum
o Content-neutralMust not burden more speech than is necessary to achieve an
important governmental interest, and
o Content-basedMust be necessary for the government to achieve a compelling
governmental interest
2. Nonpublic forum
DefinitionAll public property that is not a traditional or designated forum
RegulationMust be viewpoint-neutral and reasonably related to a legitimate
governmental interest
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o Viewpoint-neutralGovernment may prohibit speech on certain issues altogether
but cant allow only one side of issue to be presented
o ReasonableRestriction only needs to satisfy rational basis test
Personal propertyregulations rarely upheld
C. Regulation of Content (strict scrutiny) except
1. Obscenity and child pornography not protected by 1
st
Amend.
Obscenity testAverage person, applying contemporary community standards, must
find that material taken as a whole
o Appeals to the prurient interest
o Depicts sexual conduct in patently offensive way, and
o Lacks serious literary, artistic, political, or scientific value (national standards)
2. Incitement to violenceState may forbid speech advocating use of force or
unlawful action if:
Speech is directed to inciting or producing imminent lawless action, and
It is likely to incite or produce such action (a clear and present danger)
3. Fighting wordsWords that by their very nature are likely to incite an
immediate breach of the peace
Annoying/offensive words not enough
Must be genuine likelihood of imminent violence by hostile audience
4. Defamation
If P is public figure, or statement involves matter of public concern, P must prove fault
and falsity in addition to prima facie case
o Public figureif P known to general public or voluntarily injects herself into public
eye, must prove D acted with actual malice
o Public concernif P is private figure but statement is matter of public concern, need
only prove negligence with respect to falsity
5. Commercial speechRestrictions subject to four-part test
Commercial speech must concern lawful activity and be neither false nor misleading
Asserted governmental interest must be substantial
Regulation must directly advance asserted interest
Regulation must be narrowly tailored to serve interest (reasonable fit between
governments ends and means chosen to accomplish them)
D. Regulation of Media
1. General considerations
Regulation of right to publish matters of public concern subject to strict scrutiny
o Gag ordersSubject to prior restraint analysis and rarely upheld
o Attending trialsRight to attend may be outweighed by overriding interest that
cant be accommodated by less restrictive means, and
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o Illegally obtained private infoOkay to publish if 3rd party (unknown to publisher)
obtained info and involves matter of public concern
o No constitutional right to protect source
2. Broadcast
Greater responsibility to public so more closely regulated than print and other media
3. Cable television
Content-based regulations subject to strict scrutiny
4. Internet
Any regulation of content subject to strict scrutiny
E. Regulation of Association
1. Freedom of association protects right to form or participate in any group, gathering, club,
or organization without restriction, but right not absolute
Infringement may be justified by compelling state interest
Deprivation of public employment based on political association is allowed if
o Person is active member of subversive organization
o Has knowledge of groups illegal activity, and
o Has specific intent to further those illegal objectives



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