Su!reacy Clause "rt #, $ec %
Does te const. make federal !ower exclusive or as Congress ex!licitly !rohi+ited state regulation?
Ex!ress Pree!tion
Did Congress occu!y the field?
Field Pree!tion Gade v Nat’l Waste Mgmt
Hierarchy of Law
Constitution
Self Executing Treaties Does state law indirectly or directly conflict wit federal law?
&ederal Law sets a floor !elow wic state law cannot go !ut does not set a ceiling.
Conflict Pree!tion Gade v Nat’l Waste Mgmt
Legislative 'eto
,NS v Chadha Congress may not veto action of te e'ecutive !ranc inconsistent wit te principles of !icameral and te presentment clause.
Non-Self Executing Treaties
Federal Law
Executive Orders
State Police Power Amend 10 10
Is it an enuerated !ower?
Federalis
State Law "neunerated Powers Look to Commerce Clause, Due Process Clause, and Necessary and Proper Clause, etc . . . for Constitutional justification
Non-delegation &octrine
Congress may not delegate legislative powers to oter !rances unless it specifies intelligi+le !rinci!les to guide suc delegation.
Standing
Is tere in/ury in fact ?
Is tere causation?
Is tere redressa+ility ?
Is it a third-!arty?
Is te (rd party una+le to assert their own rights?
No standing Is tere a s!ecial relationshi! !etween victim and (rd party?
Su!ree Court urisdiction Art 3, Sec 2
Is tere a case or controversy?
Is it a !olitical 1uestion?
2a3er v Carr *+ as te Constitution as assigned decision making to anoter !ranc? *% is te matter is inerently not one te judiciary can decide?
Does te injury adversely affect te victim)s relationsip wit te (rd party?
Is it a generali4ed in/ury?
No /urisdiction
Does te case affect a+assadors. !u+lic inister and consul s, and tose were a state is a !arty ?
Original urisdiction
Is te case an appeal of in/ective relief of a 0 /udge !anel?
&irect (!!eal
Certiorari
No standing
Standing Exists
Sovereign ,unity Amend 11
Is it for daage or e1uita+le relief ?
Not 2arred
Tieliness
,ntergovernental ,unities
Is It in federal court?
Is it a state official?
Is it state law?
&or Federal law actions a citien cannot sue their own state in its own courts witout te states consent/ owever, tey may !ring suit in another state against their own state .
" state cannot !e sued !y its own citi4ens , or citi4ens of another state , or foreign country
Not 2arred
Is tere a real in/ury or iinent threat tereof?
5i!e
Is tere a live controversy at eac stage of review?
,unities and Privileges
Is te case ca!a+le of re!etition and yet evading review?
Is it a udicial officer?
0udges ave a!solute immunity from civil lia+ility resulting from judicial acts.
Is it a Executive officer?
Clinton v ones 1e president may not !e sued for civil damages for acts performed as part of te presidents official res!onsi+ilities !ut may !e for for actions +efore they too3 office7
Is it a Legislative officer?
S!eech or &e+ate Clause Art 1, Sec 6 2em!ers of Congress are immune from civil and criinal lia!ility for statements and conduct made in the regular course of the legislative !rocess.
Tiely
Is te action +y the state?
Coandeering &octrine Printz v US & N v US Congress cannot command states to enact specific legislation or administer a federal regulatory program
6cCulloch v 6& 1e states ave no !ower to regulate or tax te federal government/ owever, tey may impose generally a!!lica+le indirect taxes so long as tey do not unreasona+ly +urden te federal government.
Is it a class action?
-as tere voluntary cessation wit a reasona+le ex!ectation of re!eata+ility?
6oot
2arred
Coerce Clause "rt +, $ec 3, Cl (
Does it regulate channels of interstate commerce?
"S v Lo!e4 4road congressional power
Taxing Power "rt +, $ec 3, Cl +
Does it regulate ,nstruentalities of interstate commerce?
S!ending Power "rt +, $ec 3, Cl +
Does it limit to willful violations?
8on4ales v 5aich "567 as long as tere is a rational +asis for concluding tat te aggregate su!stantially affects interstate commerce.
Does it su+stantially affect interstate commerce?
Is it econoic activity?
Not ,nterstate Coerce
"S v Lo!e4 *+ Congressional findings *% Link to interstate commerce *( 0urisdictional element *weter te gun ad moved in interstate commerce
Does it !roote the general welfare?
Does it impose an exceedingly heavy +urden?
Is it collected through not noral eans?
'alid Tax NFIB v Sebelius
&oes it relate to the Federal interest9
Is it una+iguous9
Penalty NFIB v Sebelius
Is it not coercive9
'alid Conditional S!ending S.D. v Dole
,nvalid
Privileges : ,unities Clause Art #,Sec 2, "l 1
Nonresident citiens are protected against discrimination wit respect to fundaental rights or essential activities unless/ *+ te non5resident is part of te pro!lem te state is attempting to solve/ and *% 1ere are no less restrictive means to solve te pro!lem
,!ort-Ex!ort Clause Art 1, Sec 10
2rown v 6& 1e states are !rohi+ited , without the consent of Congress, from imposing any ta' on imported or e'ported good.
Necessary : Pro!er Clause Art 1, Sec !, "l 1!
6cCulloch v 6& Congress can pass legislation rationally related to its enumerated powers as long as it is/ *+ a legitimate end *% witin te scope of te constitution *( !y appropriate means *8 and plainly adapted to tat end
E1ual Protections Clause Amend 1# Sec 1
Is tere a fundaental right?
S3inner v OG If a fundamental rigt is infringed upon for a class of !ersons te issue calls for strict scrutiny7
Is tere a sus!ect classification *race, national origin, religion, and alienage?
Strict Scrutiny 1e law must !e te least restrictive means to acieve a co!elling governent interest .
Is tere a 1uasi sus!ect classification *gender, and legitimacy?
,nterediate Scrutiny 1e law must !e su+stantially related to an i!ortant governent interest.
5ational 2asis 1e law must !e rationally related to a legitiate state interest .
)0th (endent +(an %n Slaver-
ones v (lfred H 6ayer Co Congress may adopt legislation rational related to +adges or incidents of slavery. 1is includes regulating !ot !rivate and governent action.
)Dth (endent +$ig*t t% .%te-
1e +;t "mendment proi!its te state and federal government from denying citiens te right to vote !ased on race, color, or previous condition of servitude
&iscriinatory ,ntent 2ust !e sown on te part of te government as eiter/ *+ &acial *% "pplied *( 2otive
Is te class in :uestion sexual orientation?
5oer v Evans Cases involving gay rights ave te additional re:uirement of @+ite,A meaning a sowing of discriinatory intent .
th (endent
1e
8riswold v CT =sed te
If a fundaental right is infringed upon for all !ersons ten it is a su+stantive due !rocess issue. If infringed upon for a class of !ersons ten it is an e1ual !rotections issue.
Privileges : ,unities Clause Amend 1#, Sec 1
Slaughterhouse Cases 1e !ill of rigts are not privileges and immunities of national citiensip witin te conte't of te +8t amendment.
Enforceent Clause Amend 1# Sec
City of 2oerne v Flores 1ere must !e a congruence and !ro!ortionality !etween te injury to !e prevented and te means adopted to acieve tat end.
Su+stantive <5atchet= Theory
&ic3erson v "S 6nce a civil right is esta!lised under te constitution Congress cannot degrade tat rigt, !ut can increase te stringency.
5eedial Theory
City of 2oerne v Flores >emedial teory, limits Congresss (end ) Sec D autority to enforcing only tose rigts recognied !y te $upreme Court.
Fundaental Li+erty ,nterests
Gee! and 2ear (rs Mc%nald v "*icag% " v eller
Contrace!tion 5isenstadt v (aird Gris/%ld v "
(+ortion $%/ v Wade
Travel S*air% v *%ms%n Saenz v $%e
Privacy Gris/%ld v "
Sexual Privacy 4a/rence v
E1ual Protection >everse Incorporated in (%lling v S*are
5ear Children r%7el v Granville
ury Trial )ncan v 4%)isiana
5elated Persons to Live Together M%%re v 5ast "leveland
6arriage and Procreation S'inner v :<
Personal li+erties tend to !e fundaental wereas econoic li+erties do not .
Non-Fundaental Li+erty ,nterests
Court (ccess (%ddie v "
Education San Ant%ni% v $%drig)ez
Pro!erty ,nterests (d9 :; $egents v $%t*
>elfare andridge v Williams
Is tere a legitiate clai of entitleent via statute, employment contract or custom?
No 'alid Pro!erty ,nterest
Freedo to Contract 4%c*ner v N
(ssisted Suicide Was*ingt%n v Gl)c's8erg Pysician assisted suicide is not a fundamental rigt under te due process clause.
'alid Pro!erty ,nterest
Executive Orders %)ngst%/n
Treaties Powers "rt %, $ec %, Cl %
-it ex!ress or i!lied authori4ation of Congress?
Highest E++ 1e action is strongly presumed to !e valid.
-en Congress has not s!o3en?
Twilight one 1e action is invalid if it interferes wit te operation or power of anoter !ranc.
-en Congress has s!o3en to the contrary?
Lowest E++ 1e action is likely invalid.
&aes : 6oore v 5egan 1e president as te autority to settle claims against foreign powers
Foreign (ffairs Powers "rt %, $ec (, Cl 8
Is it a criinal case ?
"S v Nixon Presidential communications must !e made availa!le in a criminal case if te prosecution demonstrates a need for te information
Is it a civil case?
Cheney v "S &ist7 Ct In civil cases te e'ecutive !rances decision will !e given greater deference !ecause te need for information is weigtier in criminal cases
Presentent Clause Art 1, Sec =
-ill Congress !e in session in )* days?
Clinton v City of NI 1e president cannot refuse !art of a +ill and approve te rest !ecause it violates te Presentment Clause/ owever, tey can veto the entire +ill .
"S v Curtis->right 1e nationa government as a wole and president as plenary foreign affairs powers.
Poc3et 'eto
Executive Privilege
8eneral Ty!es of (rguents
Textual (rguents -ords and Placement
Historical (rguents &ramer)s Intent, 1radition, Contemplated Balues and Natural Law
Structure of the Const7 >elationsip !etween !rances and entites
Precedent 4road vs Narrow interpretations
Policy