Constitutional Law Bar Review Outline
I. The Federal Judicial Power
A. Cases and Controversies
1. Art. III requires that federal courts may only try cases and controversies.
a. Supreme Court may not issue advisory opinions.
2. Standing
a. Injury
1) p must allege and prove that he or she has been injured or imminently will be injured.
2) Includes violations of C/L, statutory, or constitutional rights.
3) May include aesthetic or environmental injuries.
4) Economic loss is the best injury.
5) p’s may only assert injuries that they personally have suffered.
6) p’s seeking injunctive or declaratory relief must show a likelihood of future harm.
b. Causation and Redressability.
1) D caused the injury.
2) Favorable court decision will remedy the injury.
c. No 3rd Party Standing.
1) p may not assert claims of 3rd parties.
2) Three Exceptions
a) Close relationship between p and injured 3rd party.
i) Ex: Bartenders who sued on behalf of their customers.
b) Injured 3rd party unlikely to able to assert their own rights.
i) Ex: Criminal D’s may raise the rights of prospective jurors to be free from discrimination.
c) Organization has standing if its members have standing.
d. No Generalized Grievances
1) p may not sue solely as a “taxpayer” or a “citizen” interested in having the gov’t follow the law.
2) Establishment Clause Exception
a) Taxpayers may challenge gov’t spending as violating the Establishment Clause against religion.
i) Ex: If the gov’t gives $ directly to religious schools.
b) Taxpayer may not challenge a gov’t grant of land as violating the Establishment Clause (only $).
3. Ripeness
a. Generally court may not review a statute until it is has been violated.
b. Factors
1) Hardship that will be suffered w/o pre-enforcement review.
2) Fitness of the issues and record for judicial review.
c. Ex: Drug companies were allowed to challenge FDA reg that required them to add expensive labels to drugs.
4. Mootness
a. If p’s injury ends after the lawsuit is filed, the suit is dismissed as moot.
b. Exceptions
1) Wrong capable of repetition but evading review.
2) Voluntary cessation.
3) Class action suits.
5. Political Question Doctrine
a. Courts will not hear political question cases.
b. Examples automatically dismissed as political questions:
1) Republican Form of Government Clause
a) Ex: voters adopt a law by initiative, not representation.
2) Challenges to President’s foreign policy.
a) Signing of treaties.
b) Waging war.
3) Challenges to impeachment and removal process.
B. Supreme Court Review
1. Writ of Certiorari
a. Virtually all cases come to the U.S. Supreme Court by writ of certiorari.
1) All cases from State courts (discretionary review).
2) All cases from U.S. Court of Appeals (discretionary review).
3) Decisions of three-judge district courts (non-discretionary review).
4) Suits between State gov’ts (original and exclusive jurisdiction).
2. Final Judgment Rule
a. Supreme Court may only hear cases after a final judgment.
b. There is no interlocutory appeal.
3. Independent and Adequate Ground
a. To review a State court decision, there can not be an independent and adequate state law ground of decision.
b. If State decision rests on state and federal law, and reversal of the federal judgment will not change the outcome of the case, then the Supreme Court can not hear it.
1) Ex: If p wins both a state law battery claim and a federal discrimination claim and gets the same damages, it is non-appeallable.
C. Sovereign Immunity
1. Lower federal courts and state courts may not hear suits against state governments.
a. 11th Amend. bars naming a state as a D in federal court.
b. Sovereign immunity bars suing a state in state court (without the state’s consent).
2. Exceptions
a. Waived by state gov’t.
b. States may be sued pursuant to federal laws adopted under 14th Amend.
1) Ex: Civil Rights Act adopted under EPC.
2) Feds may not authorize suits under other portions of the Constitution.
c. Federal gov’t may sue state gov’ts.
d. Suits against state officers.
1) Ex: If a law is unconstitutional.
II. The Federal Legislative Power
A. Congress’ Authority to Act
1. There must be an express of implied power.
a. Congress has no federal police power.
b. Exceptions
1) Washington, D.C.
2) Indians.
3) Military.
4) Federal Land.
2. Necessary and Proper Clause
a. Congress may use any means not prohibited.
b. Ex: Bake sale to fund the military.
3. Taxing and Spending Power
a. Congress may tax and spend for the “general welfare.”
4. Commerce Clause
a. Channels of interstate commerce.
b. Instrumentalities or persons or things in interstate commerce.
c. Activities that have a substantial effect on interstate commerce.
1) Economic impact.
2) If area being regulated is non-economic, then substantial effect can not be based on cumulative impact (i.e, violence against women).
d. Ex: all forms of intercourse that go across state lines, trucks, phones, the Internet.
5. 10th Amend. Limit on Congressional Powers (1 MBE ?)
a. Congress may not compel state action.
b. Congress may induce state action by putting strings on grants that expressly state the conditions.
6. Section 5 of the 14th Amend.
a. Congress may not create new rights or expand the scope of rights.
B. Delegation of Powers
1. No limit on Congress’ power to delegate legislative power to executive or judiciary.
a. Ex: U.S. sentencing guidelines.
b. It is never a right choice if the answer says “excess of delegation.”
2. Legislative vetos and line-item vetos are always unconstitutional.
a. Must be bicameralism.
b. Must be presentment to President to sign or veto all of the bill in its entirety.
3. Congress may not delegate executive power to itself or its officers (MBE).
III. The Federal Executive Power (7 MBE ?’s)
A. Foreign Policy
1. Treaties
a. Negotiated by the Pres. and effective when ratified by the Senate.
2. Executive Agreements
a. Negotiated by the Pres. and effective when signed by the Pres. and the head of a foreign country.
b. Do not need to be ratified by the Senate.
3. President has broad powers as Commander-in-Chief to use troops in foreign countries.
Treaties and Executive Agreements
Is Senate Approval Required? / Conflicts with State Law / Conflicts with Federal Statute / Conflicts with ConstitutionTreaties / Yes / Treaty Controls / Whichever was adopted last in time controls / Constitution Controls
Executive Agreements / No / Executive Agreement Controls / Federal Statute Controls / Constitution Controls
B. Domestic Affairs
1. Appointment Power (MBE ?)
a. Pres. appoints ambassadors, federal judges, and Officers of the U.S.
b. Senate confirms.
c. Congress may vest appointment of inferior officers in Pres., the heads of Dep’ts, or lower federal courts.
1) Ex: Congress may vest appointment of independent counsel w/ federal court.
d. Congress may not give itself or its officers the appointment power.
1) Ex: Congress creates a new agency and gives some appointment power to the Speaker of the House or the President Pro Tem of the Senate (its unconstitutional).
2. Removal Power
a. Unless limited by statute, President may fire any executive branch officer.
b. Congress may limit removal to good cause when independence from the Pres. is desirable.
3. Impeachment and Removal
a. Pres., Vice-Pres., federal judges, and Officers of the U.S. can be impeached and removed from office for treason, high crimes and misdemeanors.
b. Impeachment does not remove a person from office.
c. Impeachment by the House requires a majority vote.
d. Conviction by the Senate requires a 2/3 vote.
4. Immunity
a. Pres. has absolute immunity to civil suits for $ damages for any actions while in office.
b. Immunity does not apply to actions before taking office.
5. Executive Privilege
a. Executive privilege covers presidential papers and conversations.
b. Privilege yields to other important governmental interests.
6. Pardon Power (MBE)
a. President may pardon those accused or convicted of federal crimes.
b. Crimes must be federal not state crimes.
c. President may not pardon civil liability, including civil contempt.
d. President can not pardon anyone for the crimes for which they impeached for.
IV. Federalism
A. Preemption (5 MBE ?’s)
1. Supremacy Clause states Constitution and federal laws are supreme law of the land.
2. Express Preemption
a. Federal law explicitly states that the federal law is exclusive.
3. Implied Preemption
a. If federal law and state law are mutually exclusive, state law is preempted.
1) If it is impossible to comply w/ both the State and Federal laws.
2) State may set stricter environmental standards than the Federal law, unless prohibited.
b. If state law impedes the achievement of a federal objective, federal law preempts state law.
c. If Congress evidences a clear intent (based on legislative history) to preempt state law.
4. State may not tax or regulate federal government.
a. It is unconstitutional to pay a State out of the Federal Treasury.
b. State may not regulate the Federal gov’t if it burdens Federal activity (i.e., pollution controls).
B. Dormant Commerce Clause and the Privileges & Immunities Clause of Article IV
1. Definitions (applies when State and Local Gov’t’s make laws)
a. Dormant Commerce Clause
1) State and local laws may not place an undue burden on interstate commerce.
2) Also called the negative implications of the Commerce Clause.
b. Privileges & Immunities Clause of Article IV
1) No State may deny citizens of other states privileges and immunities it affords its own citizens.
c. Privileges & Immunities Clause of 14th Amend.
1) Only protects the right to travel.
2) Otherwise, it is always a wrong answer choice.
3) Ex: CA discriminates against new in-staters re: the receipt of welfare benefits.
2. Discrimination
a. If the law does not discriminate against out-of-staters:
1) Privileges & Immunities Clause of Art. IV ≠ apply.
2) Dormant Commerce Clause is violated if law burdens interstate commerce and burdens exceed its benefits.
b. If the law discriminates against out-of-staters:
1) Privileges & Immunities Clause violated if it interferes w/ ability to earn livelihood.
a) Discrimination is regard to civil liberties or economic activities.
i) Ex: Commercial shrimp fishing but not recreational elk hunting.
b) Corporations and aliens can not claim it.
2) Dormant Commerce Clause violated unless it is necessary to achieve important government interest.
a) Ex: MA says no out-of-state bait fish b/c of fear of contamination to environment.
b) Exceptions
i) Congressional Approval.
ii) Market-Participant Exception.
(1) Ex 1: PSU (state-owned school) may charge less in tuition to residents.
Dormant Commerce Clause/Privileges & Immunities Clause of Art. IVDOES THE STATE OR LOCAL GOVERNMENT’S ACTION
DISCRIMINATE AGAINST OUT-OF-STATERS?
YES NO
Violates the Dormant Commerce Clause if it places a burden on interstate commerce unless it is necessary to achieve an important government purpose.
Two Exceptions:
(1) Congressional approval of discrimination.
(2) Market participant exception. / Violates the Privileges & Immunities Clause of Art. IV if it discriminates against individuals w/ regard to important economic activities or civil liberties unless it is necessary to achieve an important gov’t purpose. / If the gov’t is burdening interstate commerce, balance the benefit to the state vs. the burden on interstate commerce (if the benefit exceeds the burden, the law is upheld; if the burden exceeds the benefit, the law is struck down). / Privileges & Immunities Clause of Art. IV is inapplicable.
Comparison of the Dormant Commerce Clause and the
Privileges & Immunities Clause of Art. IV
Dormant Commerce Clause / Privileges & Immunities Clause of Art. IV
1) Does not require discrimination vs. out-of-
staters in order to apply.
2) Requires a burden on interstate commerce.
3) Corporations and aliens can sue under it.
4) Exceptions: Congressional approval and
Market Participant Exception. / 1) Requires discrimination vs. out-of-staters in
order to apply.
2) Requires discrimination w/ regard to civil
liberties or important economic activities.
3) Corporations and aliens can NOT sue under it.
4) No Exceptions.
V. The Structure of the Constitution’s Protections of Individual Liberties
A. Is there government action?
1. Constitution only applies to gov’t action, not private action.
2. Statutes may apply the constitutional norms to private conduct.
a. 13th Amend. applies directly to private conduct (no slavery).
b. Private racial discrimination may violate statutes adopted under the 13th Amend.
c. Commerce power can apply constitutional norms to private conduct.
d. Congress can not use section 5 of the 14th Amend. (EPC) to regulate private conduct.
3. Private Conduct Exceptions
a. Public function exception (company owned-towns, elections).
b. Entanglement exception
1) Courts may not enforce racially restricted covenants.
2) Gov’t leases premises to restaurant that racially discriminates.
3) State provides books to schools that racially discriminate.
4) No state action when gov’t subsided school fired teacher in violation of 1st Amend.
5) No state action when NCAA (all over the country) ordered coach suspended.
6) State action when private entity regulates school sports entirely w/in one state.
7) No state action when private club w/ state liquor license discriminates.
B. Application of the Bill of Rights
1. Bill of Rights directly only applies to federal government.