Con Law 1 Knouse Epic Outline I) Part 1: The Federal Judicial Power i) Article III, Section 1 Vests the

the judicial power in the Supreme Court and such inferior Courts as Congress may establish. ii) Article III, Section 2 Jurisdiction Limited to Cases and Controversies (1) Cases arising under the Constitution, Law or Treaties of the United States, AND (2) Cases in which the United States is a party iii) Congress has PLENARY power to both establish lower federal courts and to confer and remove jurisdiction over Article III courts iv) Article III courts may NOT give advisory opinions, although states may do so. A) The Authority for Judicial Review i) Marbury v. Madision (1) The Supreme Court may determine the constitutionality of acts or other branches of governments (2) Federal courts may also review state court decisions (3) The Central Ideas in Marbury v. Madison: (a) The Constitution is Paramount Law AND (b) The supreme Court has the FINAL say in interpreting the Constitution ii) Supreme Court Jurisdiction (1) Original (a) Extends to ALL cases affecting ambassadors, other public ministers and consuls and those in which a state shall be a party (b) Congress may neither enlarge nor restrict, but may give concurrent jurisdiction to lower federal courts (i) Cases b/w two or more states = Supreme court has exclusive jurisdiction (2) Appellate (a) Extends to all other Article III cases and controversies (b) Congress may broadly regulate, but may not preclude review of an entire class of cases. B) Limits on the Federal Judicial Power i) Interpretive Limits (1) Oraginalists Methods (a) Origanlists Methods Meaning is fixed at the time it is ratified/ drafted and the Constitution is Static (b) Intratextualism Using the constitution as its own dictionary (c) Intertextualism how a word was defined at the time the amendment was ratified (d) Original Intent Looking beyond the text, what the ratifers thought. (2) Evaluative Methods The constitutions meaning changes and evolves over time. Changes with Social Norms, the law evolves through cases.

(a) Tradition and History Fundamental Right throughout history and the tradition of the United States. ii) Congressional Limits (1) Congress has PLENARY power both to establish lower federal courts and to confer and remove APPELLATE jurisdiction over Article III courts (2) Congress cannot enlarge nor restrict ORIGINAL jurisdiction, but may give concurrent jurisdiction to lower federal courts. (3) Congress may broadly regulate appellate jurisdiction, but may not preclude review of an entire class of cases (exceptions clause) (4) Also Structural (a) Division of powers b/w each of the 3 Branches (5) Article III, Section 2 ambassadors (6) Congress can Impeach Judges (7) Presidents willingness to enforce the decisions of the supreme Corut iii) Justiciability Limits (1) No Advisory Opinions (a) Only want to resolve cases that have actual possible results (b) Federal Courts may not render advisory opinions on the basis of an abstract or hypothetical dispute (c) An actual case or controversy must exist (d) Fact Patterns involving a request for DECLARATORY judgment are likely testing advisory prohibition. (e) Need an actual dispute between two adverse parties there must be some sort of possible resolution (f) Guaranty Clause Cases will not be heard (2) Standing Requirement (a) Constitutional Article III- Standing Requirements (i) Cases and Controversies 1. Personal and Concrete Injury 2. Caused by Defendants conduct 3. Must be redressable by judicial means (b) Prudential Requirements (i) Litigant may not raise 3rd party rights 1. EXCEPTIONS a. Close Relationship b. Third party would have difficulty raising it c. Third party would be an affective advocate (ii) Court CANNOT hear generalized grievances (iii) Must be PRUDENT for the court to hear (c) Generalized Grievances (i) Tough to Differentiate (d) Taxpayer Standing Exemption (i) Must allege that your taxpayer dollars are being spent in violation of the constitution. (ii) TAX CREDIT You dont have the ability to challenge 2

(e) Article III concrete Personal Stake in the outcome is required (constitutional standard) (f) Injury-in-fact Specific, not theoretical, injury must arise from the government conduct being complained of (i) Concrete and Particularized Injury (g) The relief sought must eliminate the harm alleged (h) No citizen standing for Abstract, generalized grievances (i) A corporation has standing to challenge a federal statute where the Injury is to the organization itself (i) No Third Party Standing (i) Unless Plaintiff herself has suffered injury which adversely affects her relationship with third parties who have difficulty asserting their own rights (j) No taxpayer standing, because the interest is too remote, except a federal power has standing to make an establishment clause to challenge an expenditure which exceeds some specific limitation on the taxing and spending power (k) Can Sue based on the Taxing and Spending Clause for violating the constitution (establishment clause) (3) Ripeness Requirements (a) A case brought too early (b) A genuine immediate threat of harm must exist (c) No declaratory judgment before a law is enforced (4) Mootness (a) A case cannot be brought too late (b) An actual controversy must exist at ALL stages of review (c) Exception (i) Unless the issue is Capable of Repetition, yet evading review (d) Change in facts, then the case is moot (i) Plaintiff dies (e) Change in Law, then the case is moot (i) Statute gets repealed (f) Claim for injuries that are NO longer live, cant be brought (i) EXCEPTIONS 1. Ongoing Collateral Injuries a. After getting out of prison, they are still able to bring claim 2. Are capable of Repetition, yet evade review 3. Challenge Conduct that was voluntarily ceased, but may resume at any time. 4. Class actions Some members still retain live injuries (5) Political Questions (a) The court will not answer non-justiciable issues committed to other branches of the government

(b) A federal court will NOT rule on a matter in controversy if the matter is a political question to be resolved by one or both of the other branches of government (c) A political question not subject to review arises WHEN: (i) The constitution has assigned decision making on this subject to a different branch of the government; OR (ii) The matter is inherently not one that the judiciary can decide. II) Part 2: The Federal Legislative Power (Article I, Section 8) A) Introduction i) The government of the union is supreme within its sphere of action and its laws when made in pursuance of the constitution ii) There is nothing in the Constitution which EXCLUDES incidential or implied powers iii) If the end be legitimate, and within the scope of the constitution, all the means which are appropriate and plainly adapted to that end, and which are not prohibited, may be employed to carry into effect pursuant to the Necessary and Proper Clause (Article I, Section 8) iv) If a certain means to carry into effect of any of the powers expressly given by the Constitution to the Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its necessity is a question of legislative discretion, not of judicial review v) Congress has NO GENERAL POLICE POWER to legislate for the health, safety, welfare, or morals of citizens. The validity of a federal statute on the bar exam may not be justified based on federal police power. B) The Commerce Power i) Commerce power which regulates both domestic and foreign commerce ii) Affection Doctrine (1) Regulates any activity which has a substantial economic effect on the stream of commerce iii) The 1824 Case Gibbens v. Ogden (1) A state may not have legislation inconsistent with federal law which regulates a purely internal affair regarding trade or the police power, or is pursuant to a power to regulate interstate commerce concurrent with that of Congress (2) States do not have the power to regulate those phases of interstate commerce which, because of the need of rational uniformity, demand that their regulation, be prescribed by a single authority (3) A state does not have the power to grant an exclusive right to the use of state navigable waters inconsistent with federal law (4) The power to regulate commerce extends to every type of commercial power between the united states and foreign nations and among the states iv) The 1890s 1937 Cases (1) The provisions of the act regulating collective bargaining, the control of wages, hours, and working conditions of coal miners are NOT within the authority of Congress and are therefore unconstitutional 4

(2) The Constitution grants no general power to regulate for the promotion of general welfare. (3) The power expressly granted Congress under the Commerce Clause to regulate interstate commerce does NOT include the power to control the conditions in which coal is produced before it becomes an article of commerce (4) The effect of labor conditions in the production of coal on interstate commerce, including disputes and strikes over wages is an INDIRECT EFFECT. (5) Commerce = intercourse for the purpose of trade and includes transportation, sale and exchange of commodities. (6) Production = not commerce, but a step in preparation for commerce. v) 1937 1990s Cases (1) Congress can regulate the production of wheat intended for personal use and NOT placed in interstate commerce (2) Congress can regulate trivial, local, intrastate activities that have an aggregate effect on interstate commerce via the commerce power, even if that effect is indirect (3) The 10th Amendment got a little stronger. (a) The 10th Amendment of the United States Constitution acts to preserve the states sovereign authority and limit Congress power to compel state actions (4) State Sovereign interests are controlled by procedural safeguards within the structure of the federal system, rather than judicially created limitations (5) 14th Amendment (a) 1. No state shall deny any person equal protection of the laws (b) 2. Congress shall have the power to enforce 1 (i) TEST: Means must be congruent and proportional to state constitutional violations. (6) 4 Doctrinal Tests (a) Interstate Commerce (b) Stream of Commerce (c) Instrumentalities of Commerce (d) Substantial Effects Test vi) 1990s Present Cases (Current Law) (1) The Three broad categories that Congress may regulate under its commerce power ARE: (a) 1. The use of the channels of interstate commerce, (b) 2, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come ONLY from intrastate activities, AND (c) 3. Congress Commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce 5

(i) Those activities that substantially affect interstate Commerce (2) Congress may URGE state legislatures to regulate, but it may not commandeer them and compel regulation. (3) Congress may not commander state executives and compel them to enforce federal regulation (4) When Congress decides that a practice in aggregate threatens a national market, it has the power to regulate the entire class (5) Congress MAY REGULATE: (a) Channels of interstate Commerce (b) Instrumentalities of interstate commerce, or persons or things in interstate commerce (c) Economic activities that substantially affect interstate commerce (6) Congress must show (a) The intrastate activity itself must be an economic activity, (b) Congress must have a rational basis for concluding that the intrastate activity has a substantial effect on interstate commerce (i) Legitimate state interest and means chosen are rationally related III) Part 3: The Federal Executive Power A) Inherent Presidential Power (Youngstown v. Sawyer) i) Jacksons zones of executive power (1) Where congress has authorized presidential action and authorization is constitution, the presidents authority is at its maximum. MAX (2) Where Congress has neither authorized nor prohibited action, the Presidents authority is UNCERTAIN and depends on the situation. (3) Where Congress has prohibited presidential action and prohibition is constitutional, the presidents authority is at its lowest ebb. AT ITS LOWEST EBB ii) The President cant make the laws iii) The Supreme Court rejects any claim of absolute executive privilege (1) It is the judiciarys decision as to whether or not the executive can claim privileges (2) The claim for executive privilege for military, diplomatic, or national security secretes is given great deference by the court B) Congresss Authority to Increase Presidential Power i) If the president wants to try and receive more power in the legislative process, he should seek relief through the making of a constitutional amendment, as per Article 5. ii) Congress can increase or decrease Presidents legislative authority as long as it does not impair another branchs authority. iii) There is NO constitutional authority under Article I or Article II to assign President responsibilities directly relating to the law making process. iv) Article I is the exclusive mechanism of legislation through bicameralism and presentment. Clinton v. City of NY C) The Administrative State 6

i) Constitutional Issues Concerning Administrative Agencies (1) Non delegation doctrine Congress may not delegate its legislative power to administrative agencies (2) Legislative veto if Congress wishes to overturn an agencys action, it must do so by bicameralism and presentation of the bill to the president for signature or veto, NOT by doing something less than adopting a new law (3) Constitutional Limitations on Legislative Action (bicameralism) (a) 1. Both houses must approve (b) 2. President must approve or veto (c) 3. If president vetoes, Congress must have option to override it. ii) Checking Administrative Power (1) Control through statutes (2) Control through budges of agencies (3) Appointment Power (a) The president, not congress, is given the power to appoint federal executive officers (cabinet members) appointments clause (b) Congress has the power to appoint inferior powers (c) Congress cannot appoint members of bodies having administrative or enforcement power. (4) Removal Power (a) The power to remove federal executive officers basically rests with the president. The President may remove any executive appointee WITHOUT CAUSE (b) Exceptions (i) An officer who is appointed pursuant to a statute specifying the length of term of office, AND (ii) An officer who performs JUDICIAL or Quasi-Judicial function D) Separation of Powers and Foreign Policy i) President is granted explicit foreign policy powers (1) Commander-in-chief (a) May establish military governments in occupied territories (b) Broad emergency powers (c) Only congress, not the president can declare war (d) The Supreme Court now requires explicit proof that Congress has intended to give the president a certain war-related power; if it does not find such proof, the court is likely to hold that the president has exceeded his commander-in-chief, executive or other enumerated powers. (2) Power to Negotiate Treaties (a) Requires 2/3 of senate to approve (3) Power to appoint ambassadors and receive foreign officials ii) The President is the sole organ of the nation in its external relations iii) Executive Agreements (1) Dames and Moore (1981)

(2) Informal means by which the President can conduct day to day economic and business transactions between foreign countries without senate consent. E) War Powers i) Citizen: (1) Procedural Due Process clause required president to give Defendant a meaningful opportunity to review defendants detention before a neutral decision maker. Determination of the process given required a balancing test of the parties interests (2) Matthews Balancing Test (a) 1. A private interest that will be affected by the official action (b) 2. Governments asserted interest, including the function involved (c) 3. Burdens that government would face in providing more process. ii) Non-Citizen (1) The MCA prevented federal courts from hearing non-citizens habeas petitions. Non-citizens at Guantanamo Bay have a constitutional RIGHT to file habeas petitions. Therefore, if Congress wants to stop non-citizens from filing them, it must comply with the suspension clause by providing a habeas equivalent procedure. The MCA doesnt provide a habeas equivalent procedure, and therefore is unconstitutional. iii) Military Tribunals (1) Ex Parte Quirin Military Tribunals/commissions are NOT subject to the same provisions and limitations of US civil courts, therefore procedures dont need to be as robust as in a civil trial F) Checks on the President i) Judicial Limits on Executive Power (1) The president has ABSOLUTE AND PERMANENT IMMUNITY from civil suits based on acts committed during office in their official capacity (2) The president lacks even TEMPORARY IMMUNITY from civil suits based on acts committed prior to assuming office (3) A sitting president has never been prosecuted, but Nixon was named an unindicted conspirator. (4) A former president can Probably be prosecuted ii) Legislative Limits on Executive Power (1) Article I, Section 2 the house of representatives shall have the SOLE power of impeachment (2) Article I, Section 3 The senate shall have the SOLE power to TRY all impeachments. When the president is tried, the Chief Justice shall preside. And no person shall be convicted without the concurrence of 2/3 of the members present. (3) Article I, Section 4 The president, VP, and all civil officers of the United States shall be removed from office and impeachment for, and conviction, of treason, bribery, or other high crimes and misdemeanors. 8

IV) Part 4: Limits on State Power A) Preemption of State and Local Laws i) Preemption any state law in an area where Congress intends to occupy the field is unconstitutional (1) Express Preemption Congress, via express or explicit statutory language, states that some class of state law is preempted by that state. (2) Implied Preemption Statutes text, structure, and/or purpose require preemption, even though the law doesnt require it. (a) States can supplement federal MINIMUM standards so long as it is possible to comply with both (suppression) (b) State law CANNOT frustrate federal purpose (c) States may NOT regulate when federal government has occupied a given field ii) Article IV (1) The Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made . . . under the authority of the United States, shall be the Supreme Law of the land Supremacy iii) Clear Statement Rule (1) Courts will only PREEMPT state law if Congress has been clear in its intention to preempt state law. Protect State autonomy and federalism. Especially require a clear state of preemption in areas of traditional state law and autonomy iv) Limits on Preemption (1) Federal Law only preempts state law if the federal law is constitutional. B) Dormant Commerce Clause Article I, Section 8, Clause 3 The Congress shall have the power to regulate commerce . . . among the several states i) The Pre-1938 DCC Analysis and TEST (1) If states are trying to regulate by using their POLICE POWERS, then the regulation is valid. (2) National / Local Subject Mater TEST (a) Where the activity being regulated is of purely local concern, then state or local regulation will be upheld (3) These tests have NOT been overturned and are used somewhat by the Court as historical justifications ii) Contemporary Test (1) Where Congress has not already regulated, the states are free to regulate interstate commerce, regulation must be (a) Non-Discriminatory (i) May not favor or protect local interest (b) Not unduly burdensome (i) State interest is BALANCED against the burden on interstate commerce such that no less restrictive alternative means is available. (2) Current: Three Part Test 9

(a) 1. The regulation must pursue a legitimate state end; (b) 2. The regulation must be rationally related to that legitimate state end; AND (c) 3. The regulatory burden imposed by the State on interstate commerce must be outweighed by the states interest in enforcing its regulation. iii) For Discriminatory Laws (1) State laws must not FAVOR or PROTECT local interests. (2) Discrimination against out-of-staters if the state is promoting residents own economic interests, this will not be a legitimate state interest. So the regulation will virtually automatically violate the commerce clause (a) If it appears neutral, use the balancing test. (i) Valid, unless the burdens it imposes on interstate commerce are clearly excessive in relation to the benefit it confers on the locality (b) If it appears discriminatory, use rigorous scrutiny (i) Invalid, unless there are no less discriminatory means of achieving Legitimate local interests (c) EXCEPTIONS (i) If Congress has authorized state regulation in question (ii) The Market Participant exception 1. Where the state uses its own taxpayer funds to create the market, it may favor its own residents with subsidies and hiring preferences. 2. The state activity is the result of the state itself participating in interstate commerce. If the state is involved in a business, then the state can favor its own citizens in buying or selling those items over out of state interest (3) Health, Safety, and welfare regulations that are truly addressed (4) The states health, safety, and welfare are usually objective (5) State tax must be reasonable and non-discriminatory to satisfy the commerce clause, and a substantial nexus must exist between the state interest and the activity being taxed to satisfy the due process clause. V) Part 5: Individual Rights (Bill of Rights the First 10 Amendments) A) Privilege and Immunities Clause (14th Amendment) i) 1873 Narrow, doesnt protect any rights not already protected prior to ratification ii) 1968 - Present Most of the bill of rights applies to states via the 14th Amendments due process clause iii) 1999 Protects right to travel among states (1) Durational residency requirements are invalid for receiving state medical care or welfare benefits, but valid for reduced tuition at state

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universities, obtaining a divorce, or registering to vote in a state primary election, Foreign travel is subject to Rational Basis Scrutiny (2) Prevents a state from discriminating against non-residents, but only operates with respect to rights that are fundamental to national unity. (a) Rights fundamental in the national unity are all related to commerce (b) The right to be employed, to practice ones profession and the right to engage in business iv) ANALYSIS (1) Has the State: (a) 1. Discriminated against out-of-states regarding privileges and immunities that it provides its own citizens? AND (b) 2. Is the state classification substantially related to achieving a substantial state interest? (intermediate scrutiny) (2) EXCEPTIONS (a) Court will consider whether there were any less restrictive means available (b) If there is NO substantial reason for the states discrimination against out of states, then it is less likely that the states discrimination will be upheld B) Economic Substantive Due Process i) Economic Regulation Regulation must meet rational basis scrutiny ii) The Due process clause imposes certain procedural requirements on governments when they impair life, liberty, or property iii) 1789-1897 No SDP Due Process Clause protected procedural but not substantive economic rights iv) 1897 1936 Economic SDP The Lochner Era (1) Due process Clause protected enumerated substantive economic rights, like the right to property and contract (2) States cannot unduly burden substantive due process rights in furtherance of their police powers (a) Earning a living, entering contracts (3) States can ONLY burden substantive due process rights by laws sufficiently related to appropriate and legitimate state interests. The police power. (4) During this era, the court consistently invalidated state labor laws as burdening economic rights. This coincides with the Courts commerce clause doctrine during the same period. (5) End of Lochner Era (a) Laws burdening economic interests receive rational basis review (i) Are upheld, so long as they rationally relate to legitimate state interests (ii) Since 1937 The court has not struck down an economic regulation for violating substantive due process C) Modern Substantive Due Process 11

i) 1937 1965 (1) Legitimate state objective (a) The state must be pursuing a legitimate state objective (b) Virtually all health, safety, or general welfare goals come within the states police power and is thus legitimate (2) Minimally rationally related (a) There must be a minimum rational relation between the means chosen by the legislature and the state objective. (b) To put it another way, the court will presume that the statute is constitutional unless the legislature has acted in a completely arbitrary and irrational way ii) 1965 Present Modern SDP Due Process Clause protect the unenumerated substantive privacy/family rights, like the right to get an abortion and the right to be married (1) Modern Analysis (a) What RIGHT is burdened? (i) Consider broad v. Narrow view (b) Is the burdened right fundamental? (i) Deeply rooted in our nations history/traditions and implicit in the concept of ordered liberty (c) If so, does the law survive strict scrutiny? (i) Narrowly tailored to achieve compelling interest (d) If not, does the law survive rational basis review? (i) Rationally related to achieving legitimate interests iii) Right To Privacy / Family (1) Contraception applies to the sale and use of contraceptives by both married and unmarried persons (2) Abortion States may not prohibit abortions, but may regulate as long as they create NO undue burden on the right to obtain an abortion (3) Marriage Any restriction on the right to marry is prohibited (4) Education Rights of parents to educate their children outside of public schools (5) Relations (family) Right of related (not unrelated, not homosexual) persons to live together.

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