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CON LAW SHORT OUTLINE/CHECKLIST

CHECKLIST

I. Judicial Power
a. CASES and CONTROVERSIES REQUIREMENT - JUSTICIABILITY (RAMPSE)

II. Executive Power

III. Legislative Power


a. ENUMERATED POWERS
b. 10TH AMENDMENT

IV. Federalism
a. PREEMPTION
b. DORMANT COMMERCE CLAUSE
c. PRIVILEGES AND IMMUNITIES

V. State Action

VI. First Amendment Speech


a. FACIAL ATTACKS
i. PRIOR RESTRAINT, VAGUENESS, OVERBREADTH, UNFETTERED DISCRETION
b. CONTENT BASED
i. OBSCENITY, INCITEMENT, COMMERCIAL SPEECH
c. CONTENT NEUTRAL TIME/PLACE/MANNER
i. PUBLIC/DESIGNATED PUBLIC FORUMS
ii. LIMITED/NON-PUBLIC FORUMS
d. SYMBOLIC SPEECH

VII. Freedom of Association

VIII. Freedom of Religion


a. FREE EXERCISE CLAUSE
b. ESTABLISHMENT CLAUSE

IX. Equal Protection


a. CLASSIFICATION
b. LEVEL OF SCRUTINY
c. DOES IT MEET SCRUTINY

X. Substantive Due Process


a. NON-FUNDAMENTAL v. FUNDAMENTAL
b. ABORTION

XI. Procedural Due Process

XII. Economic Liberties


a. CONTRACTS CLAUSE
b. TAKINGS
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CON LAW SHORT OUTLINE/CHECKLIST
I. Judicial Power (Article III)
A. CASES and CONTROVERSIES REQUIREMENT (Justiciability) (RAMPSE)

i. STANDING: To determine whether the Π is the proper party to bring the action, there must be
(1) injury, (2) causation, and (3) redressability:
1. (1) Injury – the PL must have suffered injury, or immediately will suffer specific injury.
a. (PL’s seeking injunctive/declaratory relief must show likelihood of future harm).
2. (2) Causation – the DF’s conduct must be the cause of the injury.
3. (3) Redressability – the court must be able to remedy PL’s injury.
a. **Core of Article III is to prevent against advisory opinions – which would occur
if a decision would have no effect on a PL.

4. Third-Party Standing:
a. A plaintiff cannot assert the claims of others, or third parties, who are not
before the court. There are three exceptions as long as PL can show the 3
standing issues above:
i. (1) Close Relationship – a PL may assert a right of a third party if there is
a close relationship b/w the PL and the injured third party
(doctor/patient).
ii. (2) Inability to Assert Own Rights – a PL may assert the rights of a third
party if that party is unlikely to be able to assert his/her own rights.
iii. (3) Organizational Standing – an organization may sue for its members
if:
1. (1) the members would have individual standing to sue;
2. (2) the interests are germane to the organization’s purpose;
3. (3) individual participation by the member is not required.

5. No Generalized Grievances: A Π has no standing to sue solely as a “citizen” or a


“taxpayer” interested in having the government follow the law.
a. Exception: Taxpayers may challenge government expenditures of money
pursuant to federal (state/local) statutes as violating the Establishment Clause.

6. NOTE - Congress may create new rights which, when injured, give a Π standing.
However, Congress cannot confer/appoint standing to a group

ii. RIPENESS: Π is not entitled to pre-enforcement review of a statute or regulation if it has never
been enforced and there is no threat of enforcement. Court looks at 2 factors:
1. (1) the hardship that will be suffered without pre-enforcement review
2. (2) the fitness of the issues and the record for judicial review

iii. MOOTNESS: If a matter is resolved after the lawsuit is filed, the case will be dismissed as moot.
There must be a live controversy/injury at all stages of review, subject to 3 exceptions:
1. (1) wrong capable of repetition but evades review
2. (2) voluntary cessation but free to resume practice at any time
3. (3) class actions if named PL claims are moot as long as one person still has injury

iv. POLITICAL QUESTION DOCTRINE: The court will not decide political questions, which are
issues that (1) are constitutionally committed to another branch of government, or (2) are
inherently incapable of judicial resolution. Exception – Bad faith. Specific examples include:
1. The “Republican Form of Government” clause;

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CON LAW SHORT OUTLINE/CHECKLIST
2. Challenges to President’s foreign policy;
3. Challenges to impeachment/removal process
4. Challenges to partisan gerrymandering (political party changing district lines for seats)

v. ABSTENTION: Federal courts will not enjoin pending state court proceedings or resolve a
constitutional claim that rests on unsettled questions of state law.
1. Doesn’t apply to local (city/county) governments

vi. ELEVENTH AMENDMENT:


1. The 11th amendment bars suits against state governments in federal and state courts,
even suits resting on federal grounds.
a. Exceptions (ONLY 4):
i. (1) the state consents – must be explicit
ii. (2) suits pursuant to federal law adopted under section 5 of the 14th
amendment (congress cannot authorize suits against states)
iii. (3) federal government CAN sue state governments
iv. (4) bankruptcy proceedings
2. Federal Courts Can Hear Cases Against State Officers:
a. For injunctive relief
b. For money damages to be paid out of officer’s pocket (no suit if state treasury
will pay the harm – retroactive damages).

B. SUPREME COURT REVIEW


i. Original Jurisdiction:
1. All cases affecting ambassadors, public ministers, consuls, and those in which a state is a
party.
2. In cases where it is state v. state – court has ORIGINAL and EXCLUSIVE jurisdiction.
ii. Appellate Jurisdiction:
1. Writ of Certiorari – final judgments from (1) state’s highest court, (2) state courts where
constitutionality of federal statute, treaty, or state statute is in issue or if state statute
allegedly violates federal law, and (3) federal appellate courts.
2. Appeal – ONLY in cases decided by three-judge federal courts granting/denying
injunctive relief.
iii. Independent State Law Grounds:
1. If state court decision is based on federal and state grounds, and the state grounds is an
independent and adequate ground for the decision, court will not hear it.

II. Executive Power (Article II)


A. FOREIGN POWERS
i. Treaties - Agreements between the United States and a foreign country that are negotiated by
the President and are effective when ratified by 2/3 of the Senate.
1. Always prevail over conflicting state laws
2. If conflict with federal statute, one adopted last in time controls
3. If conflict with Constitution, treaty is invalid
ii. Executive Agreements – agreement between the United States and a foreign country that is
effective when signed by the President and the head of the foreign nation (do NOT require
Senate approval)
1. Always prevail over conflicting state laws
2. Do NOT prevail over conflicting federal laws – federal laws prevail
iii. Troops – President has broad and absolute power as “Commander-in-Chief” to control troops in
foreign countries.
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B. DOMESTIC POWERS

i. Power as Chief-Executive
1. Power over internal affairs is unsettled. There is a 3-part guide to follow:
a. (1) Highest Power – if President acts with express/implied authority of
Congress, his authority is at its maximum and actions are likely valid;
b. (2) Intermediate Power – If President acts where Congress is silent, actions are
upheld unless President usurps power of another governmental branch;
c. (3) Lowest Power – if President acts against express will of Congress, he has
little authority and actions are likely invalid.

ii. Appointment Power


1. Present has power to appoint ambassadors, federal judges, and US officers with the
advice and consent of Senate
a. Congress may vest appointment of inferior officers in the President, heads of
departments, or the lower federal courts
b. Congress CANNOT give itself or its officers appointment powers

iii. Removal Power


1. President alone can remove executive branch officers
a. Congress may limit the President’s power to remove by statute, but it must be
in an office where independence from the President is desirable
b. Congress CANNOT prohibit removal, only limit for good cause (and otherwise
only through impeachment process)

iv. Impeachment
1. The President, the Vice President, federal judges and officers of the United States can be
impeached and removed from the office for treason, bribery, or for high crimes and
misdemeanors.
a. House initiates impeachment (by majority vote), followed by a conviction by 2/3
of the Senate.

v. Pardons
1. The President has the power to pardon those accused or convicted of federal crimes
(not civil).
a. NO power to pardon for state crimes.
b. NO power to pardon for impeachment.

vi. Executive Immunity


1. President has absolute immunity from civil damages for any action while in office in
carrying out his duties as president. No immunity for actions prior to office.

vii. Executive Privilege


1. President has executive privilege to keep communications and presidential papers
confidential, unless needed for evidence in a criminal proceeding.
2. This privilege must yield to a demonstrated need for such materials as evidence in a
criminal case in which they are relevant and otherwise admissible (likely will also extend
to need in a pending legislative proceeding)

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CON LAW SHORT OUTLINE/CHECKLIST
III. Legislative Power (Article I)
A. CONGRESS’S AUTHORITY TO ACT:
i. There must be express or implied Congressional power
1. There is NO general federal police power – only M.I.L.D. police power (military, indian
reservations, federal lands/territories, and District of Columbia)

ii. ENUMERATED POWERS:


1. Necessary and Proper Clause
a. Congress can use ANY means necessary and proper to carry out its authority
under the Constitution.
2. Taxing:
a. Congress has plenary/exclusive power to raise revenue through taxes
b. Congress may tax if the taxes bear some reasonable relationship to revenue
production or if Congress has power to regulate the activity taxed.
3. Spending:
a. Congress may spend for the general welfare – for any public purpose.
4. COMMERCE CLAUSE:
a. Congress has the exclusive power to regulate all foreign and interstate
commerce (this power is PLENARY). 3 areas where Congress may regulate:
i. (1) Congress may regulate the channels of interstate commerce
(waterways, highways, internet, etc.)
ii. (2) Congress may regulate the instrumentalities of interstate commerce
and persons and things in interstate commerce. (Instrumentalities =
things that facilitate commerce; cars, trucks, internet, etc)
iii. (3) Congress may regulate economic activities that have a substantial
effect on interstate commerce.
1. Intrastate Activity may be regulated if it is of economic activity
and there is a rational basis to believe that the activity has a
cumulative effect (aggregation) of a substantial effect on
interstate commerce.
2. If NON-commercial – cumulative effect not enough – must
show factually a substantial economic effect on commerce.
5. Other Miscellaneous Enumerated Powers (not as important):
a. War (declaring), investigatory, property, bankruptcy, postal, over citizenship,
admiralty, coin money, patent/copyright.

iii. 10th AMENDMENT’S LIMIT ON CONGRESSIONAL POWERS:


1. The 10th Amendment states that all powers not granted to the United States, nor
prohibited to the states, are reserved to the states or the people.
2. Commandeering:
a. Congress cannot compel state regulatory or legislative action -
“commandeering” – cannot force states to administer a federal mandate.
b. NOTE: Congress CAN, however, induce state government action by putting
conditions on grants, as long as:
i. (1) the conditions are expressly stated;
ii. (2) they relate to the purpose of the spending program; and
iii. (3) so long as they are not unduly coercive.
c. Congress may also prohibit harmful commercial activity by state governments
rather than impose a duty on the states.

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iv. POWER UNDER SECTION 5 of the 14th AMENDMENT:
1. Congress may not create new rights or expand scope of rights. Congress may only act to
prevent or remedy violations of rights recognized by the courts – as long as the acts are
“proportionate” and “congruent” to remedying constitutional violations.

B. DELEGATION OF POWERS
i. Delegation of Legislative Powers = plenary authority.
1. There is no limit to Congress’s ability to delegate legislative power. Virtually all
delegations will be upheld.
2. Delegations will be upheld only if they include intelligible standards/instructions for the
delegate to follow. Even vague instructions will likely be upheld
3. Approach
a. Does Congress have power to regulate activity
b. Was the delegation proper (had sufficient instructions)
c. Did delegate act w/in power delegated
ii. Legislative Vetoes:
1. Legislative vetoes are UNCONSTITUTIONAL. It happens when Congress attempts to veto
a bill without bicameralism or presentment. Both must be present. Bicameralism =
passage by both House and Senate. Presentment = giving to President to sign/veto.
iii. Line-Item Vetoes:
1. Line-item vetoes are UNCONSTITUTIONAL. President may not cancel out parts of a bill
and sign the rest into law.
iv. Delegation of Executive Powers:
1. Congress may not delegate executive power to itself or its officers

IV. Federalism
A. PREEMPTION:
i. Supremacy Clause – Federal laws always prevail over conflicting state laws. However, any
power not delegated to the federal government belongs to the states.
ii. Express Preemption – If Congress has authority to act, and explicitly states that federal law is
exclusive, it preempts state law.
iii. Implied Preemption –
1. (1) If federal and state laws are mutually exclusive – federal law preempts state law
2. (2) If state law impedes the achievement of a federal objective – federal law preempts
state law
3. (3) If Congress evidences a clear intent to preempt state law – federal law preempts
state law
a. Federal law may occupy the entire field – and invalidate a state law even if the
state law does NOT conflict.
b. If field is traditionally within the power of the states, there is a presumption that
the state police powers are NOT superseded unless that was the clear and
manifest intent of Congress.
iv. States may not tax or regulate federal government activity.

B. DORMANT COMMERCE CLAUSE


i. Where Congress has not acted, state and local laws may regulate local aspects of interstate
commerce. However, such regulations are unconstitutional if they place an undue burden on
interstate commerce.
1. Discriminatory Laws: If the law discriminates against out-of-staters to protect local
interests, then the law is invalid unless state can prove law is necessary to achieve an
important state interest. EXCEPTIONS:
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a. (1) the state is a market participant
b. (2) further an important, noneconomic state interest and there are no less
discriminatory alternatives, OR
c. (3) government performing traditional government functions
d. (4) if there is Congressional approval
2. Non-Discriminatory Laws: If the law is non-discriminatory, then a balancing test is
performed, where the law is invalid if it creates an undue burden on interstate
commerce (the burden on interstate commerce outweighs the local state interest)

C. PRIVILEGES AND IMMUNITIES


i. The Privileges and Immunities Clause of the Article IV prohibits discrimination by a state against
non-residents for certain fundamental rights involving commercial activities and civil liberties.
ii. For there to be a violation, there are four requirements:
1. (1) the law must discriminate against out-of-staters (no discrimination, no violation)
2. (2) the discrimination must be with regard to civil liberties or important economic
activities (IE: earning a livelihood)
3. (3) only applies to individuals, not corporations or aliens
4. (4) such discrimination violates the clause unless state shows:
a. necessary to achieve an important/substantial government interest
b. no less discriminatory alternative.
iii. The Privileges and Immunities Clause of the 14th Amendment only comes up in questions
involving the right to travel.

D. STATE TAXATION OF INTERSTATE COMMERCE


i. Three rules to know regarding taxation of interstate commerce:
1. (1) States may not use their tax systems to help in-state businesses (no discrimination)
2. (2) A state may only tax activities if there is a substantial nexus to the state
3. (3) State taxation of interstate businesses must be fairly apportioned and have a fair
relationship to the benefits provided by statute.

E. FULL FAITH AND CREDIT


i. Courts in one state must give full faith and credit to judgments of courts in another state, so
long as:
1. (1) The court that rendered the judgment had jurisdiction over the parties and the
subject matter
2. (2) The judgment was on the merits
3. (3) The judgment is final

V. State Action
A. The Constitution applies only to government action. Private conduct need not comply with the
Constitution, unless an exception applies:
i. (1) Public Functions. The Constitution applies if a private entity is performing a task
traditionally, exclusively done by the government (IE: running a town)
ii. (2) Excessive Entanglement. The Constitution applies if the government affirmatively
authorizes, encourages, or facilitates unconstitutional activity
1. Government payments of FUNDS by itself is not enough for excessive entanglement
B. **NOTE: Congress MAY apply constitutional norms to private conduct by statute.
i. Thirteenth Amendment can be used to prohibit private race discrimination (slavery)
ii. Congress can also use commerce power to apply constitutional norms to private conduct

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VI. First Amendment
A. Intro
i. The First Amendment prohibits Congress from establishing a religion, interfering with the
exercise of religion, abridging the freedom of speech, or interfering with the right of the people
to assemble. These prohibitions are applicable to the states through the 14th Amendment.
ii. If gvt speech, the gvt is generally free to choose which messages it will or will not convey.
B. Facial Attacks
If a regulation is facially invalid, it cannot be enforced against anyone, not even against a person who is
engaging in an activity that is not constitutionally protected (inciting violence, etc)
i. PRIOR RESTRAINT
1. A prior restraint occurs when the government stops speech before it occurs. Prior
restraints are unconstitutional, unless the government shows some special societal
harm would otherwise result, and the following procedures are met:
a. (1) Standards must be narrowly drawn, reasonable, and definite;
b. (2) injunction must promptly be sought; and
c. (3) there must be prompt and final determination of the validity of restraint by
judicial review.
2. (rule applies regardless of the justification, even if national security is involved)
ii. VAGUENESS:
1. Under the vagueness doctrine, a law is unconstitutionally vague if a reasonable person
cannot tell what speech is prohibited and what is allowed.
iii. OVERBREADTH
1. Under the overbreadth doctrine, a law is unconstitutionally overbroad if it regulates
substantially more speech than the constitution allows to be regulated.
iv. UNFETTERED DISCRETION:
1. A regulation cannot give officials broad discretion over speech issues. There must be
defined standards for applying the law. If officials are given unbridled discretion, the
regulation is void on its face.

C. Content-Based v. Content Neutral Regulations


i. CONTENT REGULATIONS
1. A regulation based on content of speech is a regulation forbidding communication of
specific ideas – usually based on the subject matter or viewpoint. Any regulation on the
content of speech must meet strict scrutiny. However, there are certain categories of
unprotected or less protected speech:
2. Obscenity/Sexually Oriented Speech:
a. The government may punish obscenity if:
i. (1) the material appeals to the prurient interest – “shameful” or
“morbid” – based on a community standard
ii. (2) the material must be patently offensive – based on a community
standard, and
iii. (3) taken as a whole, the material must lack serious redeeming artistic,
literary, political or scientific value – based on a national standard.
b. Special Considerations:
i. Government may use zoning ordinances to regulate location of adult
bookstores/movie theaters
ii. Child porn can be completely banned even if not obscene
iii. Government cannot punish for possession of obscene material (unless it
is child porn)
iv. Profane/indecent speech is not obscene and is protected unless it is
over the broadcast media or in schools
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3. Fighting Words/Incitement:
a. The government may punish speech:
i. (1) if there is a substantial likelihood of imminent illegal activity and
ii. (2) if the speech is directed at causing imminent illegality.
4. Commercial Speech:
a. Advertising for illegal activity, and false and deceptive ads are not protected by
the First Amendment. Other commercial speech that is truthful may be
regulated as long as the regulation:
i. (1) serves a substantial government interest;
ii. (2) directly advances that interest; and
iii. (3) is narrowly tailored to serve that interest.
5. **If one of these tests apply but is NOT met – do a strict scrutiny analysis.

ii. CONTENT NEUTRAL REGULATIONS


1. If speech is a time/place/manner restriction then the applicable test to determine
whether any regulation is constitutional depends on where the speech takes place:
2. Public Forms and Designated Public Forums:
a. Public forums are those where the government has historically opened up for
speech (sidewalks and parks).
b. Designated public forums are government properties that the government
opens up to the public for speech (public school – after hours).
c. Any regulation in these forums must be:
i. (1) content and viewpoint neutral
ii. (2) narrowly tailored to serve an important government interest and
iii. (3) leave open alternative places for communication.
3. Limited Public Forums and Non-Public Forums:
a. Limited public forums are government properties that are limited to certain
groups or dedicated to discussion of certain subjects.
b. Non-public forums are government properties that the government can and
does close to speech (military bases).
i. NOTE-a court and its grounds are generally a limited/nonpublic forum
c. The government can regulate in these forums so long as the regulation is
(1) reasonable and (2) viewpoint neutral.

D. Symbolic Speech
i. The government can regulate conduct that communicates if it has an important interest
unrelated to suppression of the message and if the impact on communication is no greater
than necessary to achieve the government’s purpose.

E. Freedom of The Press


i. Access to Trials:
1. The First Amendment guarantees press/public the right to attend trials. However, this
right can be outweighed by an overriding interest stated in the judge’s findings.
Restrictions must be narrowly tailored to preserve a higher value. “GAG ORDERS”

VII. Freedom of Association


A. Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a
group it must be proven that the person:
i. (1) Actively affiliated with the group;
ii. (2) Knowing of its illegal activities; and
iii. (3) With the specific intent of furthering those illegal activities.
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B. Laws that require disclosure of group membership, where such disclosure would chill association, must
meet strict scrutiny.
C. Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate
association or expressive activity.

VIII. Freedom of Religion


A. Free Exercise Clause
i. The free exercise clause prevents the government from punishing a person based on his or her
sincerely held religious beliefs. The regulation must be specifically designed to interfere with
religion. Any infringement must meet strict scrutiny.
1. Religious belief if: Belief will be considered "religious" if it occupies a place in the
believer's life parallel to that occupied by orthodox religious beliefs
a. Cts are prohibited from determining the validity of a religious belief
i. (the validity of the belief/religion itself, can determine if person truly
believes it…)
2. Sincerely held belief: While a court may not assess the validity of an asserted religious
belief, a court can assess the sincerity of the person asserting the belief.
3. Exception: The free exercise clause cannot be used to challenge a neutral law of
general applicability.
ii. Approach:
1. (1) Whether the person's belief is religious
2. (2) Whether the person sincerely holds his belief
3. (3) Whether the gvt action is targeting religious conduct
B. Establishment Clause
i. The establishment clause prohibits the government from establishing a religion.
ii. Sect Preference
1. If the government action includes a preference for one religion over another, it is invalid
unless the government meets strict scrutiny.
iii. No Sect Preference – Lemon Test
1. If the government action does not involve a sect preference, it is valid if:
a. (1) there is a secular purpose for the law (IE: not faith-based)
b. (2) its primary effect does not advance or inhibit religion;
c. (3) it does not produce excessive entanglement with religion.

Equal Protection v Due Process Clause


A. If a violation of EP by the state, then the Constitutional basis is the EP clause of the 14th Amendment
a. If a violation of EP by the federal gvt, then the Constitutional basis is the Due Process Clause of the 5th
Amendment
IX. Equal Protection
A. Equal protection focuses on the whether the government’s differences in the treatment of people is
adequately justified.
B. Approach:
i. (1) What is the classification?
ii. (2) What level of scrutiny should be applied?
iii. (3) Does the law meet the level of scrutiny?

C. Suspect Classification
i. Classifications are suspect if they are based on race, national origin, or alienage, which may be
proven by:
1. (1) The classification exists on the face of the law

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2. (2) If the law is facially neutral, proving a racial classification requires demonstrating
both discriminatory impact and discriminatory intent.
a. Discriminatory intent=facial, applied in discrim manner, discrim motive for law
ii. These classifications are subject to strict scrutiny review. Thus, the government must show that
the law is necessary to achieve a compelling government interest, and there must be no less
restrictive alternative.

iii. Special considerations for classifications benefiting racial or ethnic minorities:


1. Still subject to strict scrutiny
2. But government has compelling interest in remedying past discrimination – but the
discrimination must be persistent and readily identifiable.
3. Government also has compelling interest in diversity in universities (NOT PUBLIC
SCHOOL SYSTEMS) and race can be one factor – but cannot be solely determinative.

iv. Special considerations for alienage classifications:


1. Generally still subject to strict scrutiny, UNLESS
a. (1) the alienage classifications concern self-government and the democratic
process – in which case get rational basis
i. Teachers (only universities, not grade school), cops, voting, jury service
b. (2) Congressional discrimination against aliens – get rational basis due to
Congress’s plenary power over aliens
c. (3) undocumented aliens – which get intermediate scrutiny

D. Quasi-Suspect Classifications
i. Classifications are quasi-suspect if they are based on gender or non-marital children, which may
be proven by:
1. (1) The classification exists on the face of the law
2. (2) If the law is facially neutral, proving a racial classification requires demonstrating
both discriminatory impact and discriminatory intent.
ii. These classifications are subject to intermediate scrutiny review. Thus, the government must
show that the law is substantially related to an important government purpose. The
government must show an exceedingly persuasive justification.

iii. Special considerations for classifications benefiting women:


1. Gender classifications benefitting women that are based on role stereotypes will not be
allowed.
2. Gender classifications that are designed to remedy past discrimination and differences
in opportunity will be allowed.

E. NON-Suspect or Quasi-Suspect:
i. All other non-suspect or quasi-suspect classifications fall under the third category.
ii. These classifications are subject to rational basis review. Thus, the challenger must show that
the law is rationally related to a legitimate government purpose.
iii. Examples:
1. Age
2. Wealth/Poverty
3. Disability
4. Economic
5. Sexual Orientation

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X. Substantive Due Process
A. Due Process Clause requires that government action must be reasonable. What is reasonable depends
on the circumstances. A law affecting fundamental rights will be rsbl only if it passes strict scrutiny. In
all other cases, the rational basis test applies.

B. NON-Fundamental Rights - Rational Basis Review:


i. Any deprivation of a NON-fundamental right gets rational basis. Thus, the law must be
rationally related to a legitimate government purpose. Challenger has the burden of proof.
1. Education is NOT a fundamental right.

C. Fundamental Rights - Strict Scrutiny Review:


i. Any deprivation of a fundamental right gets strict scrutiny. Thus, the law must be necessary to
achieve a compelling government interest – and be the least restrictive means. Government has
the burden.
ii. Specific rights deemed fundamental include: (CAMPER PTV)
1. Right to Purchase and Use Contraceptives
2. Right to Abortion**
3. Right to Marry
4. Right to Procreate
5. Right to Relations (Family)
a. Right to Custody of One’s Own Children
b. Right to Keep Family Together
c. Right to Control Upbringing of One’s Children
6. Right of Privacy, including right to Engage in Private Consensual Homosexual Activity
7. Right to Travel (only domestically – foreign travel is rational basis)
8. Right to Vote (but safeguards may be used to avoid fraud – IE: showing ID)

D. ABORTION:
i. Prior to viability (time the fetus may live outside the womb), states may not prohibit abortions,
but may regulate abortions so long as they do not create an undue burden on the ability to
obtain abortions.
1. Examples of NO undue burden = (1) 24 hour waiting period, (2) requiring abortions to
be performed by licensed physician, and (3) prohibition of “partial birth abortion.”
2. Examples of UNDUE BURDEN = spousal consent/notification
ii. After viability, states may prohibit abortions unless the abortion is necessary to protect the
woman’s life or health.
iii. Other Considerations:
1. No duty to Pay for Abortions: Government has no duty to subsidize abortions or
provide abortions in public hospitals
2. Parental Notice/Consent for Unmarried Minors: A state may require parental notice
and/or consent for an unmarried minor’s abortion so long as it creates an alternative
procedure before a judge who can approve the abortion by finding it would be in the
minor’s best interests or that she is mature enough to decide for herself.

E. RIGHT TO REFUSE MEDICAL TREATMENT:


i. (1) Competent adults have the right to refuse medical treatment, even life-saving medical
treatment.
ii. (2) A state may require clear and convincing evidence that a person wanted treatment
terminated before it is ended.
iii. (3) A state may prevent family members from terminating treatment for another.

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XI. Procedural Due Process
A. Procedural due process refers to the procedures the gvt must follow when they take away someone’s
“life, liberty or property.” Generally, notice and a hearing are required for deprivation of these rights.

B. FIRST: Has there been a deprivation of Life, Liberty or Property?


i. LIBERTY = The loss of a significant freedom provided by the Constitution or a statute (reputation
by itself is not enough)
ii. PROPERTY = A property interest is only deprived if there is a legitimate claim or entitlement.
1. Can include continued attended in public school, welfare benefits, and sometimes gvt
employment (look for K or policy providing for continued work)
C. SECOND: What type of Process is Required?
i. A balancing test is used to determine what type of procedures are required:
1. (1) The importance of the interest to the individual;
2. (2) The ability of additional procedural safeguards to increase the accuracy of the fact-
finding;
3. (3) The government interest (money & administrative efficiency)
D. General Considerations:
i. Conduct by Government:
1. Gvt negligence is not sufficient for a deprivation of due process. Generally, there must
be intentional government action or at least reckless action for liability to exist.
2. In emergency situations, the government is liable under due process only if its conduct
“shocks the conscience,” IE: done w/ the intent to cause harm to the victim.
3. Government has NO affirmative duty to protect people from privately inflicted harms,
UNLESS the government (1) creates the danger, or (2) victim is in the government’s
custody.
ii. If the deprivation is a result of prior convictions, then you don't need a hearing first since the
prior convictions involved hearings…you don't need one more
iii. Under a licensing scheme, a hearing prior to revocation of the license is not required, but a
hearing is required after the revocation

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CON LAW SHORT OUTLINE/CHECKLIST

XII. Economic Liberties


A. Contracts Clause
i. The Contract Clause prohibits states (NOT THE FEDERAL GOVERNMENT) from enacting laws that
retroactively impairs existing contract rights.
ii. Interference with private contracts must meet intermediate scrutiny (a little different than
traditional intermediate scrutiny)
1. (1) Does the legislation substantially impair a party’s rights under an existing contract?
2. (2) Is the law a reasonably and narrowly tailored means of promoting an important and
legitimate public interest?
iii. Interference with public/government contracts must meet strict scrutiny

B. Takings
i. Governments traditionally had the power to take private property through eminent domain
ii. The 5th Amendment, applied to the states through the 14th Amendment, limits this power and
prohibits the government from taking private property for public use unless it provides just
compensation.
Three step analysis:
iii. (1) Is there a TAKING?
1. Possessory taking – Government confiscation or physical occupation of property is
ALWAYS a taking.
2. Regulatory taking –
a. A regulation is a total taking if it deprives an owner of all economic value of the
property
b. A regulation is a partial taking if it leaves no reasonable economically viable
use of the property
i. Court considers
1. 1) Economic impact of the regulation, AND
2. 2) Whether the regulation substantially interferes with distinct,
investment-backed expectations of the plaintiff
ii. **Not a taking merely because it lowers the value of the property – it
must leave no reasonable economically viable use**
c. **Temporary takings are not takings – as long as it is reasonable**
iv. (2) Is the taking for PUBLIC USE?
1. Public use is broadly defined so that every taking likely meets this requirement. As long
as the action is rationally related to a legitimate public purpose, this is satisfied.
v. (3) Is JUST COMPENSATION paid?
1. Just compensation is measured in terms of the loss to the owner (reasonable market
value standard). The gain to the taker is irrelevant.

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CON LAW SHORT OUTLINE/CHECKLIST
XIII. Basic Outline/Tests
A. Executive Powers - How can the executive do what he is attempting to do in the Q
i. Domestic
1. Appoint high level officers w/ Senate approval
2. Pardon federal offenses
3. Veto bills
ii. External Affairs
1. Can act militarily but cannot declare war
2. Represents US in foreign relations
3. Enter into treaties w/ 2/3 Senate approval
iii. Exam Tip
1. If treaty conflicts w/ federal law, last in time prevails
2. Federal Constitution trumps everything
3. Executive agmts are signed by the president and the head of a foreign country
a. Doesn't need Senate approval
b. Federal law trumps executive agmts
B. Legislative Powers - How can Congress do what they are attempting to do in the Q
i. Taxing and Spending powers
1. Taxing - Must bear some rsbl relationship to revenue production OR be w/in Congress's
regulatory power
2. Spending - Based on the general welfare
a. Doesn't mean they can pass laws on general welfare, that's police power, they
can only spend money and tax things based on general welfare
3. A state tax on interstate commerce will impose an unfair burden unless:
a. Activity taxes has a substantial nexus to the taxing state
b. The tax is fairly apportioned, AND
c. The tax fairly relates to the services provided by the state
ii. Interstate commerce
1. Plenary power to regulate interstate AND foreign commerce
2. Can regulate intrastate commerce if:
a. Channels of interstate commerce
b. Instrumentalities of interstate commerce
c. Economic activity where there is a substantial effect on interstate commerce in
the aggregate
i. S under this, can prohibit farmers from growing food for themselves or
growing marijuana, but not prohibit possessing gun near a school b/c
that's not an economic interstate activity
iii. (Congress can burden interstate commerce if it wants to, or let the states discriminate against
out of staters if it wants to)
 Exam tip
iv. Taxing and Spending powers are limited by individual rights
o So ensure the Q isn't really testing whether the federal action is infringing on an
individual liberty
v. Unless the facts involve a DC, a US territory, or the military, any answer choice that says
Congress has legislative authority under its police powers is wrong
C. Judicial Powers
i. Ripeness
ii. Mootness
iii. Standing
iv. 11th Amendment prohibiting suit against states in federal courts
D. State Powers
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CON LAW SHORT OUTLINE/CHECKLIST
i. Dormant Commerce Clause (state can regulate if no discrimination or no undue burden)
1. Exceptions - Market participant, furthers impt non-economic interest and no feasible alt
ii. Privileges and immunities
1. Article IV - No discrimination against out of staters for economic interests
2. 14th Amend - Right to travel
E. Equal Protection
i. Prohibits unrsbl discrimination
ii. Suspect class
iii. Quasi suspect
iv. Other
F. Due Process
i. Substantive (limitation applies to everyone)
1. Fundamental rights
ii. Procedural
1. Time/sufficiency of a hearing (pre or post deprivation of the right)
G. 1st Amendment
i. Speech
1. Facial attacks (prior restraint, overbroad, vague, unfettered discretion)
2. Content based
a. Obscenity, fighting words, commercial speech
3. TPM
a. Public/Designated Public
i. Content neutral, narrowly tailored for impt gvt interest, alt channels
b. Limited/Nonpublic
i. Viewpoint neutral, rsbly related to legitimate gvt interest
ii. Religion
1. Exercise (targets religion or generally applicable)
2. Establishment - Lemon test
a. secular purpose, primary effect doesn't advance/inhibit, entanglement

XIV. Exam Tips


o Standing
 If plaintiff in a federal ct, discuss standing first
o Powers Questions
 Most Congressional delegations of power by Congress to the President are valid
o Rights Questions
 Check for state action first
o Generally Wrong MBE Answers
 General welfare clause as an answer by itself - needs to be paired w/ another source of power
 Necessary and proper clause by itself - needs to be paired w/ another source of power
 Contract clause usuaully wrong - state can usually defends w/ not impairing K only modifying it
 10th Amendment answers are usually wrong unless Congress commandeers the states
 Federal police power - virtually nonexistent except for MILD power
o ALWAYS WRONG MBE ANSWERS
 P&I Clause of the 14th Amendment
 Privilege, not a right

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