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This document provides an outline guide for a constitutional law essay. It lists the key issues and questions to address, including:
1) Identifying who is acting and the source of their authority
2) Analyzing justiciability and standing requirements
3) Determining the constitutional right being asserted and applying the appropriate level of scrutiny
This document provides an outline guide for a constitutional law essay. It lists the key issues and questions to address, including:
1) Identifying who is acting and the source of their authority
2) Analyzing justiciability and standing requirements
3) Determining the constitutional right being asserted and applying the appropriate level of scrutiny
This document provides an outline guide for a constitutional law essay. It lists the key issues and questions to address, including:
1) Identifying who is acting and the source of their authority
2) Analyzing justiciability and standing requirements
3) Determining the constitutional right being asserted and applying the appropriate level of scrutiny
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) th Amendment, possi&le preemption pro&lems with *ormant Commerce Clause d) Indi(idual: 1+ th 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 th 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 (: th or 1; th 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) th 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) th 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; th 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 (: th or 1; th Amendment) i) : th Amendment: applica&le to the "ederal go(ernment ii) 1; th 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.