Constitutional Law I Mentor Outline

Disclaimer: This outline does not contain every issue in the class. The rules and
application are from my understanding. If the rules or the application is inconsistent with
your professor or your notes, go with the professor’s application of the law.

Justiciability
 
Standing
A person has standing where there is 1) direct and personal injury suffered 2) the D
caused the harm and 3) a favorable court decision is likely to remedy the harm.
 
Exceptions to third party bringing claim:
 
A third party may bring about the claim out of necessity where the real party cannot
litigate on own behalf.
 
A third party may bring about the claim where a closer relationship or "close
nexus" between claimant and third party.
 
Organizations may bring about a claim on behalf of members if 1) members would
have standing on their own to sue, 2) interests are related to the organization's
purpose, and 3) court can grant relief without individual members present.
 
Ripeness
A claim must be ripe for review. A claim is ripe where the P would suffer harm if review
was denied. An exception to ripeness is where P would suffer a sufficient hardship
without pre-enforcement and the issue has been sufficiently developed and defined so
that it is ready for resolution. (Issue- would it be fair to have P wait versus forcing D to
defend action before harm.)
 
Mootness
A case that is adjudicated where there is a live injury that is ongoing throughout the
litigation. If the P no longer has an injury the case is moot. An exception is where the
wrongs are capable and likely to evade review often because the harm dissipates
before full adjudication is complete.
 
Political Question
Court will not entertain questions that text of the Constitution provide that the
determination properly resides only in a separate branch of government (ex: ratifying
Constitutional amendments, impeachment, executive branch determination on foreign
policy.

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 Executive Powers

Power as Chief Executive/ Executive Order

Under the Take Care Clause, the President shall take care that the laws be faithfully
executed. However, the limits on presidential power are unsettled. The validity of
presidential action depends on congressional support.

Essay analysis:

If President acts with express or implied Congressional authority, his authority is

at its maximum and his actions are likely valid.
If President acts where Congress silent, his action will be upheld UNLESS
usurps power of another governmental branch or prevents another branch from
carrying out its tasks.
If President acts against express Congressional will, he has little authority and
action is likely invalid.

Appointment
President, with advice and consent of Senate, can appoint ambassadors, public
ministers and consuls, Supreme Court Justices, and federal judge. Congress must vest
appointment of inferior offices in the President alone, the courts, or the heads of
departments. Congress may not itself appoint members of a body within administration
or enforcement powers. Inferior officers are those usually working under presidentially
appointed officers and can be fired by the appointment officer (i.e. special prosecutor)

Removal
President – can remove high level, purely executive officer (i.e. cabinet member)
without interference by Congress, however, Congress may provide statutory limitations
(i.e. removal only for good cause) on the President’s power to remove.
Congress – may remove executive officers only through impeachment process.

Powers of Congress
 
Commerce Clause
Congress shall have the power to regulate commerce with foreign nations, among
states, and with Indian tribes. Congress can regulate (1) interstate commerce itself, (2)
instrumentalities of commerce, (3) channels of commerce and (4) any matter that
substantially effects commerce.
 
Interstate commerce itself are goods and commodities that are part of stream of
commerce.
Instrumentalities of commerce are activities that threaten interstate commerce and
persons and things in interstate commerce (i.e. railroads, cars, boats, internet?)
Channels of commerce are fixed things that accommodate interstate commerce
(i.e. rail lines, highways, storage, stockyards, hotels).

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 Substantial effect on commerce is any matter that substantially affects interstate
commerce.
 
Purely local matters - education, family matters, non-economic social matters.
Traditionally local - land use, manufacturing, mining, farming, roads, highway,
policing, health and safety.
Federal matters - coinage, immigration, military, war, foreign diplomacy, national
parks, Indian reservation.
 
Taxing Power
Congress has power to tax for common defense and general welfare of U.S. In order to
exercise Taxing Power validly, it must 1) be in pursuit of general welfare, 2) have some
regulatory effect to raise revenue, and 3) may not be used for purpose of destroying
legitimate activity.
 
Spending Power
Congress has power to spend money to provide for common defense and general
welfare. Federal government may spend money was incentive for state to comply with
requirements regarding matters generally outside the Congressional authority by
attaching conditions for money incentives if 1) the condition has some relationship to the
purpose of the spending program, 2) state has clear and unambiguous option, and 3)
the incentive is not too coercive.
 
Commandeering
Congress may not simply commandeer the legislative process by directing compelling
states to enact and enforce regulatory programs.

Invalidating State Laws

(Use these when the state or city has a law and you want to invalidate or test the
constitutionality of the law)
 
Preemption
Under the Supremacy Clause, a federal law is the supreme law of the land and thus
may preempt state law. Preemption may be expressed or implied.
 
Preemption is expressed where the federal law contains a provision or clause that
removes power from state on the matter making the federal law exclusive.
 
Implied preemption occurs when there is no express language, and it is implied by
either Congress' intention or by nature of the federal law. There are three types of
implied preemption: (1) where compliance of federal and state law is impossible -
frustrating the purpose, (2) where there is clear intent to occupy the field by Congress,
and (3) where state law creates a significant obstacle to accomplish federal intent.
 

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 Factors to consider for occupying the field: degree of overlap, historical
classification on the matter, local interest v. national uniformity, state and federal
interests.
 
Privileges and Immunities
The Privileges and Immunities Clause of Article IV prohibit states from discriminating
and depriving out-of-staters from economic activities or civil liberties. Only citizens are
protected. Corporations and aliens are not protected, only citizens.
 
Exam: Is the government discriminating a fundament right, civil right or economic
activity or merely a recreational activity?
  
Dormant Commerce Clause
States have concurrent power with Congress, through the 10th amendment, to regulate
in ways that have an effect on interstate commerce, however, the state and local laws
may be unconstitutional if they place an undue burden on interstate commerce. An
exception to the DCC is congressional approval and market participant. State laws may
be discriminatory or non-discriminatory.
 
Discriminatory
A state law is discriminatory when it treats in-state and out-of-staters engaged in
interstate commerce differently. Where a state law discriminates against out-of-
staters, there is a presumption that the regulation does burden interstate
commerce and a heighten level of judicial scrutiny is applied to determine if the
state law is constitutional. If the state action is to be validated, the state has the
burden to prove 1) there is a legitimate purpose and 2) that there are no other
alternative means to accomplish that are less discriminatory or burdensome. There
is an exception when congress has approved the regulation or where the state is
acting as a market participant.
 
Non-discriminatory
A state law is non-discriminatory where it treats both in-state and out-of-staters the
same. Where the state law is non-discriminatory, the court will apply a balancing
test where they will balance the state interest in maintaining the law versus the
burden on interstate commerce.
 
Individual Rights
 
Imminent Domain (Taking)
A government may take property through the power of Imminent Domain if it is for a
public purpose and there is just compensation.
A taking can be possessory or regulatory. A regulatory taking is where a government
regulates the use of all or some of the property thereby depriving the owner of economic
value. There is no just compensation for a regulatory taking unless all practical purpose
of land use is nonexistence.
 

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 Substantive Due Process
Substantive due process protects individual rights and freedoms from government
infringement.
 
If the government infringes upon a fundamental right, the action must pass strict
scrutiny. Under strict scrutiny, the regulation must be necessary to achieve a compelling
government interest.
 
Where no fundamental right is involved, the regulation must meet a rational basis test
which shows that the regulation is rationally related to a legitimate government purpose.
 
 
Fundament Rights Non-fundamental Rights
Privacy Economic or commercial rights
 Right to protect family autonomy Freedom from taxation
 Contraceptives Education
 Private family choice Financial benefit
 Procreation Privileges such as driving
 Sexual activity and orientation Recreational privileges
 Private/ personal matters "behind closed Right to contract
doors"
Travel (movement)
Voting
Access to courts
Speech
Religion
5th Amendment: self-incrimination/ double jeopardy
 
 
 
Procedural Due Process
Procedural due process refers to the procedure that the government must follow when
depriving a person of life, liberty, or property. Procedural Due Process concerns the
type of notice and what type of hearing the government must provide when it takes such
action. The deprivation must be intentional or reckless.
Once a deprivation has occurred, the next approach would be to determine the nature
of the notice of deprivation. The court will balance factors to determine the nature of the
adequate notice. Courts will balance out 1) the private interest of the individual, 2) the
risk of erroneous deprivation and 3) governments interest, including fiscal (cost) and
administrative burdens
Equal Protection
Equal Protection under the 14th Amendment prohibits government from denying a
person of equal protection of the law. To successfully assert a claim for a violation of

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 equal protection, the plaintiff must show that he is a member of a class that is being
treated differently or discriminated against than others who are similarly situated.
 
Discrimination may appear on the face of the law or that the law has discriminatory
impact. To show discriminatory impact, the plaintiff must show that there is both
discriminatory purpose and discriminatory intent for the law.
 
Once classified, the level of scrutiny will depend on the classification.
 
Ordinary Class - Rational Basis Quasi-suspect Class - Suspect Class - Strict Scrutiny
Scrutiny Intermediate Scrutiny
 Age  Sex-gender  Race
 Disability  Non-marital  Alienage (doesn’t apply to
 Wealth  Based on legitimacy undocumented aliens)
 Education  Children of  National origin
 Unrelated People undocumented aliens  Classifications that involve
 Classification dealing with   fundamental rights
economics  Any classification where a
and taxation. fundamental right is also
 Classification based on a substantially infringed on - ex:
geography right to vote, speech, travel, raise a
family
privacy (contraceptives, abortion,
marriage, procreation, right to
refuse medical treatment)
 
Rational Basis
Where the law does not affect a suspect class or a fundamental right, the law only
needs to meet a rational basis. Under this view, the challenger has the burden to
demonstrate that the law is no rationally related to a legitimate government interest. The
interest or the purpose must not be hostile animus.
 
Intermediate Scrutiny
Under intermediate scrutiny, the law will be upheld if it is substantially related to a
government purpose. The burden is on the government to show the importance of the
purpose.
 
Strict Scrutiny Test
Where the government infringes upon a fundamental right, the courts will apply a strict
scrutiny test. Under the strict scrutiny test, the government has the burden to show that
there is 1) a compelling government purpose, 2) that action is narrowly tailor to achieve
that compelling purpose, and 3) there no less intrusive means to accomplish that
purpose.
 
 
 

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