Does the const.

make
federal power
Supremacy Clause exclusive or has
Express Preemption Hierarchy of Law
Art 6, Sec 2 Congress explicitly
prohibited state
regulation?

Constitution
Did Congress occupy Field Preemption
the field? Gade v Nat’l Waste Mgmt

Self Executing Treaties

Does state law
indirectly or directly Conflict Preemption
conflict with federal Gade v Nat’l Waste Mgmt
law?

INS v Chadha Non-Self Executing

Congress may not veto Federal Law
Federal Law sets a floor Treaties
action of the executive
below which state law
Legislative Veto branch inconsistent with
cannot go but does not
the principles of
set a ceiling.
bicameral and the
presentment clause.

Executive Orders

State Police Power Is it an enumerated

Federalism
Amend 10 power?

State Law

Unemunerated Powers
Look to Commerce
Clause, Due Process
Clause, and Necessary
and Proper Clause, etc . . .
for Constitutional
justification
Congress may not
delegate legislative
Non-delegation powers to other branches
Doctrine unless it specifies
intelligible principles to
guide such delegation.

Supremacy Clause (Preemption) / Non-Delegation Doctrine / Legislative Veto / State Police Power (Amend 10)
 Is the 3rd party unable
Standing Is there injury in fact? Is there causation? Is there redressability? Is it a third-party? to assert their own
rights?

No standing
Is there a special
relationship between
victim and 3rd party?

Baker v Carr
(1) has the Constitution
Does the injury
has assigned decision
Supreme Court adversely affect the
Is there a case or Is it a political making to another
Jurisdiction victim’s relationship
controversy? question? branch?
Art 3, Sec 2 with the 3rd party?
(2) is the matter is
inherently not one the
judiciary can decide?

Is it a generalized
No standing
injury?
Does the case affect
ambassadors, public
No jurisdiction minister and consuls, Original Jurisdiction
and those where a Standing Exists
state is a party?

Is the case an appeal of

injective relief of a 3 Direct Appeal
judge panel?

Certiorari

Standing / Jurisdiction
 Sovereign Immunity Is it for damage or
Is It in federal court? Is it a state official? Is it state law? Barred
Amend 11 equitable relief?

For Federal law actions a citizen

A state cannot be sued by
cannot sue their own state in its own
its own citizens, or
courts without the states consent; Not Barred
Not Barred citizens of another state,
however, they may bring suit in
or foreign country
another state against their own state.

Judges have absolute

Is there a real injury or Is there a live
Immunities and immunity from civil
Timeliness imminent threat controversy at each Is it a Judicial officer?
Privileges liability resulting from
thereof? stage of review?
judicial acts.

Clinton v Jones
The president may not be
Is the case capable of sued for civil damages for
Intergovernmental repetition and yet acts performed as part of
Ripe Is it a Executive officer?
Immunities evading review? the presidents official
responsibilities but may
be for for actions before
Timely they took office.
McCulloch v MD
The states have no power to
regulate or tax the federal
Is the action by the government; however, they may
Is it a class action?
state? impose generally applicable Speech or Debate Clause
indirect taxes so long as they do Art 1, Sec 6
not unreasonably burden the Members of Congress are
federal government. immune from civil and
Is it a Legislative
criminal liability for
officer?
statements and conduct
made in the regular
Was there voluntary course of the legislative
Commandeering Doctrine cessation with a process.
Printz v US & NY v US reasonable expectation
Congress cannot command of repeatability?
states to enact specific
legislation or administer a
federal regulatory program

Moot

Timeliness / Immunities (Sovereign, Intergovernmental, Judicial, Executive, and Legislative)

 Does it regulate US v Lopez Does it impose an
Commerce Clause Taxing Power
channels of interstate Broad congressional exceedingly heavy
Art 1, Sec 8, Cl 3 Art 1, Sec 8, Cl 1
commerce? power burden?

Does it regulate
Does it limit to willful Penalty
Instrumentalities of
violations? NFIB v Sebelius
interstate commerce?

Gonzales v Raich
A-OK as long as there is a
Does it substantially rational basis for
Is it economic Is it collected through
affect interstate concluding that the
activity? not normal means?
commerce? aggregate substantially
affects interstate
commerce.

US v Lopez
(1) Congressional findings
Not Interstate Valid Tax
(2) Link to interstate commerce
Commerce NFIB v Sebelius
(3) Jurisdictional element (whether the
gun had moved in interstate commerce)

Spending Power Does it promote the Does it relate to the Valid Conditional Spending
Is it unambiguous? Is it not coercive?
Art 1, Sec 8, Cl 1 general welfare? Federal interest? S.D. v Dole

Invalid

Nonresident citizens are protected McCulloch v MD

against discrimination with respect Congress can pass legislation
Brown v MD
to fundamental rights or essential rationally related to its enumerated
The states are prohibited,
Privileges & activities unless; powers as long as it is;
Import-Export Clause without the consent of Necessary & Proper Clause
Immunities Clause (1) the non-resident is part of the (1) a legitimate end
Art 1, Sec 10 Congress, from imposing Art 1, Sec 8, Cl 18
Art 4,Sec 2, Cl 1 problem the state is attempting to (2) within the scope of the
any tax on imported or
solve; and constitution
exported good.
(2) There are no less restrictive (3) by appropriate means
means to solve the problem (4) and plainly adapted to that end

Commerce Clause / Taxing Power / Spending Power / Privileges & Immunities / Necessary & Proper / Imports-Exports Clause
 Boumediene v Bush
Is it discriminatory Enemy combatants are
Dormant Commerce (facial, applied, or entitled to meaningful
Clause motive) against out of Procedural Due Process Is there a protected opportunities to be heard
Is it an enemy
state commerce? Amend 5 life, liberty or property by neutral decision
combatant?
Amend 14 Sec 1 interest? makers; however, the
executive authority may
reduce burdens brought
on by military conflict.

Is it an undue burden
Invalid Regulation of
on interstate Moore v East Cleveland
Interstate Commerce
commerce? No Due Process Required Cessation of parental rights has
Is it a parental right? a heightened burden of proof
requiring
clear and convincing cvidence

DC v. Heller & McDonald v Chicago

The 2nd amendment guarantees an
Does it regulate individual's right to possess a firearm;
Cleveland Bd. Of Educ. V
extraterritorial however, it Is not unlimited and regulations
Loudermill
activity? imposing condition on the sale of arms as
2nd Amendment A formal hearing is not required,
wells as prohibitions on;
Is it a public or “for as long as there is a pre-
(1) concealed weapons,
cause” employee? termination notice, an
(2) possession by felons and mentally ill, and
opportunity to respond, and a
(3) carrying in sensitive places are presumed
post-termination evidentiary
Valid to be legitimate.
hearing.
Pike v Bruce Church

Mathews v Eldridge
In determining the amount of process
If a fundamental right is due the court considers;
Strict Scrutiny
infringed upon for all persons (1) The interest of the individual
Substantive Due Process The law must be the least
Does it infringe on a then it is a substantive due (2) The risk of error through procedure
Amend 5 restrictive means to
fundamental right? process issue. If infringed upon (3) The cost and administrative burden
Amend 14 Sec 1 achieve a compelling
for a class of persons then it is of additional process
government interest.
an equal protections issue.

The state’s interest in

protecting fetal life may
supersede a woman’s
Abortion
Rational Basis Is the fetus viable? right to choose; however,
Roe v Wade
The law must be there must be an
rationally related to a exception for the
legitimate state interest. woman’s health

US v Williams Planned Parenthood v Casey

If a statute fails to provide An undue burden exists when
a person of ordinary the purpose or effect of a state
Right to Jury trial in
Void for Vagueness intelligence with fair 6th Amendment law places substantial obstacles
criminal cases.
notice of what is in the way of an abortion.
prohibited it is void for
vagueness.

Dormant Commerce Clause / Due Process (Procedural, Substantive, Vagueness, Right to Possess a Firearm [Amend 2], and Abortion) / Right to Jury Trial (Amend 6)

Equal Protections Clause Is there a fundamental
Amend 14 Sec 1 right?
Is there a suspect
classification (race,
national origin, religion,
and alienage)?
Is there a quasi suspect
classification (gender,
and legitimacy)?
Rational Basis
The law must be
rationally related to a
legitimate state interest.
Jones v Alfred H Mayer Co
Congress may adopt
legislation rational related to
13th Amendment
badges or incidents of
“Ban on Slavery”
slavery. This includes
regulating both private and
government action.
The 15th Amendment
prohibits the state and
federal government from
15th Amendment
denying citizens the right
“Right to Vote”
to vote based on race,
color, or previous
condition of servitude
Ban on Slavery (Amend 13) / Equal Protections (Amend 14) / Right to Vote (Amend 15) / Unenumerated Rights (Amend 9)
Skinner v OK
If a fundamental right is
infringed upon for a class
of persons the issue calls
for strict scrutiny.
If a fundamental right is
Discriminatory Intent
infringed upon for all
Strict Scrutiny Must be shown on the
persons then it is a
The law must be the least part of the government as
substantive due process
restrictive means to either;
issue. If infringed upon for
achieve a compelling (1) Facial
a class of persons then it
government interest. (2) Applied
is an equal protections
(3) Motive
issue.
Slaughterhouse Cases
Intermediate Scrutiny
The bill of rights are not
The law must be Privileges &
privileges and immunities
substantially related to Immunities Clause
of national citizenship
an important government Amend 14, Sec 1
within the context of the
interest.
14th amendment.
Romer v Evans City of Boerne v Flores
Cases involving gay rights There must be a
Is the class in question have the additional congruence and
Enforcement Clause
sexual orientation? requirement of “bite,” proportionality between
Amend 14 Sec 5
meaning a showing of the injury to be prevented
discriminatory intent. and the means adopted
to achieve that end.
Dickerson v US
The 9th Amendment Once a civil right is established
Substantive
9th Amendment acknowledges under the constitution Congress
“Ratchet” Theory
unenumerated rights. cannot degrade that right, but can
increase the stringency.
Griswold v CT
City of Boerne v Flores
Used the 9th as
Remedial theory, limits Congress's
justification for the right
Remedial Theory Amend 14 Sec 5 authority to
to privacy under the 14th
enforcing only those rights
amendment’s due
recognized by the Supreme Court.
process clause.
 Fundamental Liberty Interests

Keep and Bear Arms Travel Equal Protection

Privacy Jury Trial
McDonald v Chicago Shapiro v Thompson Reverse Incorporated in
Griswold v CT Duncan v Louisiana
DC v Heller Saenz v Roe Bolling v Sharpe

Contraception Related Persons to Live

Abortion Sexual Privacy Rear Children Marriage and Procreation
Eisenstadt v Baird Together
Row v Wade Lawrence v TX Troxel v Granville Skinner v OK
Griswold v CT Moore v East Cleveland

Personal liberties tend to be

fundamental whereas
economic liberties do not.

Non-Fundamental Liberty Interests

Assisted Suicide
Court Access Education Welfare Freedom to Contract Washington v Glucksberg
Boddie v CT San Antonio v Rodriguez Dandridge v Williams Lochner v NY Physician assisted suicide
is not a fundamental right
under the due process
clause.

Is there a legitimate
claim of entitlement
Property Interests
via statute, Valid Property Interest
Bd. Of Regents v Roth
employment contract
or custom?

No Valid Property Interest

Fundamental Liberty Interests / Non-fundamental Liberty Interests / Property Interests

 US v Nixon
With express or Highest Ebb Presidential
Executive Orders communications must be
implied authorization The action is strongly
Youngstown made available in a
of Congress? presumed to be valid. Executive Privilege Is it a criminal case?
criminal case if the
prosecution demonstrates
a need for the
information

Twilight Zone Cheney v US Dist. Ct

The action is invalid if it In civil cases the executive
When Congress has not branches decision will be
interferes with the
spoken? Is it a civil case? given greater deference
operation or power of
another branch. because the need for
information is weightier in
criminal cases

Clinton v City of NY
The president cannot
When Congress has refuse part of a bill and
Lowest Ebb
spoken to the Presentment Clause Will Congress be in approve the rest because
The action is likely invalid.
contrary? Art 1, Sec 7 session in 10 days? it violates the
Presentment Clause;
however, they can veto
the entire bill.

Treaties Powers
Art 2, Sec 2, Cl 2
US v Curtis-Wright
Dames & Moore v Regan
The nationa government
The president has the Foreign Affairs Powers
as a whole and president Pocket Veto
authority to settle claims Art 2, Sec 3, Cl 4
has plenary foreign affairs
against foreign powers
powers.

General Types of Arguments

Textual Arguments
Words and Placement
Historical Arguments
Structure of the Const. Precedent
Framer’s Intent, Tradition,
Relationship between Broad vs Narrow Policy
Contemplated Values and
branches and entites interpretations
Natural Law

Executive Orders / Executive Privilege / Presentment Clause (Veto Power) / Treaty Power / Foreign Affairs Power