Constitutional Law Essay Guide

1) Who is acting and where do they get the power to act?

a) Congress: Art. I, express or implied powers (under ecessary and !roper Clause o" Art. I #$, cl. 1$)%
&) !resident: Art. II, express and implied powers ("oreign a""airs)
c) 'tate: entity or indi(idual% compare with limits 1)
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Amendment, possi&le preemption pro&lems with
*ormant Commerce Clause
d) Indi(idual: 1+
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Amendment
,) Can the Court e(en hear this case? -atters pertaining to .usticia&ility
a) Case and Contro(ersy: Is the case in ad(ersary "orm and a context that is capa&le o" .udicial resolution?
/he "ederal courts may not issue opinions &ased on a&stract or hypothetical 0uestions. (o ad(isory
opinions.)
&) 'tanding: plainti"" must meet the elements o" in.ury1in1"act, causation, and redressa&ility.
i) 2as there &een an injury-in-fact (can &e economic or aesthetic)? Is the in.ury concrete and
particulari3ed, or actual and eminent?
(1) In.ury1in1"act cannot &e con.ectural or hypothetical.
ii) 2as plainti"" esta&lished causation &y showing that the in.ury is "airly tracea&le to the go(ernment
action &eing challenged?
iii) 2as plainti"" demonstrated a su&stantial li4elihood that the in.ury is redressable i" the courts grant
re0uest relie"?
i() Is the plainti""5s standing &ased on status as a "ederal taxpayer? I" so, taxpayer must allege that the
enactment &eing challenged is an exercise o" the tax and spending power, and that a speci"ic
limitation on the taxing and spending power has &een (iolated.
() Is the plainti""5s standing &ased on status as a state taxpayer? I" so, taxpayer must demonstrate a
direct and su&stantial expenditure o" pu&lic "unds, i.e., a good "aith poc4et&oo4 in.ury.
(i) Is the plainti""5s standing &ased on her status as a citi3en? /his is not a (alid ground "or standing.
(ii) Is the plainti"" alleging the rights o" others not &e"ore the court? /hird1party standing
(iii) Is the plainti"" an association raising the rights o" its mem&ers? Is the suit germane to the
association5s interests? Is there no need "or indi(idual participation?
c) 6ipeness: Is there a present in.ury or imminent threat o" in.ury? Is the case su""iciently concrete to &e
worthy o" ad.udication?
d) -ootness: 2a(e e(ents occurred since the "illing o" the suit that would depri(e the litigant o" an ongoing
sta4e in the contro(ersy? /here are exceptions:
i) Is the case capa&le o" repetition, yet e(ading re(iew?
ii) 2as the de"endant (oluntarily, &ut necessarily permanently, changed his conduct? 7r
iii) Are there collateral conse0uences to the de"endant5s action which, when considered, pre(ent
mootness?
e) !olitical 8uestion: has the power &een gi(en to another &ranch expressly in the Constitution? 'ix "actors
i) A constitutional commitment o" the issue to another political &ranch% lac4 o" .udicially disco(era&le
and managea&le standards% impossi&ility o" deciding the 0uestion without an initial policy
determination% impossi&ility o" a court5s underta4ing resolution without express lac4 o" respect "or
other political &ranches% an unusual need "or un0uestioning adherence to a political decision already
made% and the potential "or em&arrassment "rom multi"arious pronouncements &y (arious
departments on one 0uestion
") 11
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Amendment ('o(ereign Immunity) Is the plainti"" an indi(idual who is suing a state? 2as the state
wai(ed its so(ereign immunity? 2as Congress a&rogated the state5s right to so(ereign immunity under
the Ci(il War Amendments? *oes the suit in(ol(e retroacti(e monetary damages against the state?
+) What is the right &eing asserted? 9nder what part o" the Constitution is it protected?
a) *ue !rocess Clause (:
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or 1;
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Amendment)
i) !rocedural *ue !rocess: 2as the state acted with ade0uate or "air procedures when it depri(es a
person o" li"e, li&erty, or property?
(1) 2as there &een a ta4ing? I" yes, then exactly what procedure is the person entitled to get?
ii) 'u&stanti(e *ue !rocess: 2as the state set limits on human conduct that unreasona&ly inter"eres with
important human rights that they amount to an unconstitutional denial o" li&erty?
(1) <undamental right1 strict scrutiny test
(,) on"undamental right (economic and social1wel"are regulations)1 rational &asis test
&) Commerce Clause (Art. I, # $)
i) <ederal Commerce !ower: 2as Congress used its power to regulate commerce among the states?
*oes the act &eing regulated su&stantially a""ect commerce% and is the means chosen &y Congress
reasona&le related to Congress5 o&.ecti(e in regulating.
(1) Congress can regulate channels and instrumentalities o" interstate commerce and anything that
su&stantially a""ects interstate commerce. 6emem&er Wickard v. Filburn and the cumulati(e
e""ect.
(,) /he 1)
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Amendment pre(ents Congress "rom compelling states to enact or en"orce a "ederal
regulatory program.
(+) A generally applica&le law passed &y Congress that applies to the states in the same way it is
applied to pri(ate indi(idual does not (iolate the 1)
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Amendment.
ii) *ormant Commerce !ower: the mere existence o" the "ederal commerce power restricts the states in
their a&ility to regulate or unduly &urden interstate commerce. /he states regulation must &e
rationally related to a legitimate state end, and the regulatory &urden imposed &y the state on
interstate commerce must &e outweighed &y the state5s interest in en"orcing the regulation.
(1) -ar4et participant exception: i" the state is a mar4et participant, then the *CC doesn5t apply.
c) !ri(ileges and Immunities Clauses
i) Art. I=: pre(ents discrimination &y states against nonresidents
(1) Corporations and aliens are not citi3ens "or the purpose o" this clause.
(,) *oes not prohi&it all discrimination &y a state in "a(or o" its own citi3ens, &ut only when
"undamental rights are denied (those in(ol(ing important commercial acti(ities or ci(il li&erties.
(+) A state law discriminating against nonresidents may &e (alid i" the state has a su&stantial
.usti"ication "or the di""erent treatment. In e""ect, it must show that nonresidents either cause or
are part o" the pro&lem it is attempting to sol(e, and there are no less restricti(e means to sol(e it.
ii) 1;
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Amendment: rights concerning national citi3enship (rarely used)
(1) Corporations and aliens are not citi3ens under this clause.
(,) /his clause includes the right to tra(el includes the right o" newly arri(ed citi3ens to en.oy the
same pri(ileges and immunities as are en.oyed &y other citi3ens o" the state. (6emem&er Saenz v.
Roe)
d) >0ual !rotection (:
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or 1;
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Amendment)
i) :
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Amendment: applica&le to the "ederal go(ernment
ii) 1;
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Amendment: applica&le to state?local actions
iii) /he mere "act that legislation or go(ernment action has a discriminatory e""ect is not su""icient to
trigger strict scrutiny or intermediate scrutiny. /here must &e intent to discriminate on the part o" the
go(ernment. Intent can &e shown three ways:
(1) <acial discrimination
(,) *iscriminatory application
(+) *iscriminatory moti(e
i() Clauses impose a general restraint on the go(ernmental use o" classi"ications, not .ust classi"ications
&ased on race, &ut also those &ased on sex, alienage, illegitimacy, wealth, or any other characteristic.
(1) 'trict scrutiny: race, "undamental rights, and alienage
(,) Intermediate scrutiny: gender and illegitimacy
(+) 6ational &asis test: all other classi"ications li4e wealth, po(erty, age, economic laws and taxes
(a) 6ational &asis test with &ite: unpopular groups li4e gays and the mentally retarded.