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I. JUSTICIABLE CASE OR CONTROVERSY

a. Federal courts may hear based on…
i. Law-based fed jx from Constitution, federal laws and treaties, admiralty and maritime laws
ii. Party-based fed jx where U.S. gov’t is a party, State v. State, State v. other State citizen, citizens from
different states (diversity jx), foreign diplomats
b. Art. III section 2 limits fed court jx to “cases” and “controversies.” To avoid dismissal in fed ct, go up RAAAMPS:
i. Standing: Π must show “personal stake.” 1) Π’s actual or imminent injury, 2) causation, 3) redressability
1. No injury as taxpayers (unless litigating tax bill or fed taxpayer challenging the way taxes are
spent to promote religion), legislators, Constitution lovers (abstract desire to see gov’t comply)
2. Organizational standing requires 1) individual members have standing + 2) interest asserted is
germane to organization’s purpose + 3) individual member participation is not required (there is
no individualized injury, remedy would be the same to all members, or injunction would solve
everyone’s problems) (no damages b/c each member would have to show damages)
ii. Ripeness (suing too soon): Π must show harm or imminent threat of harm. Proposed law or action not yet
taken are not real cases or controversies
iii. Mootness (suing too late): A case is moot if the dispute has been resolved (i.e., there is no redressability),
unless “capable of repetition, yet evading review” (e.g., pregnancy can recur)
iv. Political Q: Fed ct will not take issues involving a matter for another branch of gov’t that the judicial
process is inherently incapable of resolving and enforcing
1. Textually demonstrable constitutional commitment to other branches (Senate’s sole power to
impeach), lack of judicial standards (partisan but not racial gerrymandering, foreign affairs)
v. Abstention: Fed ct will abstain (defer to state courts) if claim is based on an undecided issue of state law
vi. Adequate and independent state grounds: SCOTUS will not hear a case from a state high court if its
decision can be supported on state law grounds alone (even if federal Q involved), unless it was unclear
whether based on state law alone, or state follows federal constitution (treat as federal law)
vii. (No) advisory opinions: Advisory opinions lack an actual dispute b/w pts or any legally binding effect.
Matter must be a real and substantive present (or specific future) controversy capable of specific relief
c. 11th Amendment (sovereign immunity): Private pts cannot sue state gov’t for damages or injunction in fed court
i. Allow if v. state officials or local gov’t, state expressly consents, or based on 13A-15A enforcement powers
II. CONGRESSIONAL POWERS (for federal law to be constitutional, enumerated congressional powers must justify it)
a. Congress does NOT have regulatory (police) power to promote health, safety, and welfare of residents except in DC
b. Commerce clause: Broad power to regulate interstate commerce—regulate channels, instrumentalities, activities that
substantially affect interstate commerce (ISC) (even intrastate, economic activity under cumulative effect doctrine)
i. Shared with state and local gov’t through dormant commerce clause (see § IV-e for tests)
ii. Cumulative effects doctrine: To determine substantial effect, consider aggregate effect of similar actions
iii. Cannot regulate intrastate non-economic activity (e.g., guns near school) unless economic effect on ISC
1. Comprehensive scheme EXCEPTION: If Congress enacts a program that aims at interstate or
economic activity, it can sweep up isolated instances of intrastate non-economic activity if those
are necessary to make the program effective and have a substantial national economic effect
c. Taxing power: Impose and collect taxes to pay debts and spend for the general welfare w/ purpose to raise revenue
d. Spending power: Spend for any public purpose to provide for general welfare (e.g., education, roads, space program)
i. Congress cannot regulate for the general welfare except in non-state federal territories
e. Delegation power: Congress can delegate powers it possesses and create an agency with legislative power to make
rules. Intelligible guidelines for carrying out concrete objectives are required (loose standard)
f. Property power: Regulate (pass any law) and dispose of federal property, including Indian property and wild animals
g. Speech and debate clause: A member of Congress (+ aides) cannot be punished for anything said on legislative floor
h. Impeachment power: Congress can remove the president, federal judges, and federal officials through impeachment
i. Appropriations power: Congress can pass a bill to direct how the president must spend money
i. Earmarking funds: Executive branch must spend the funds, or obtain Congress approval to refuse spending
III. EXECUTIVE POWERS (partly shared with Congress)
a. Congressional authorization 3-prong test: Where the president acts with Congress’s express/implied authority, his
power is at its apex, and his action is likely valid. Where Congress is silent, the president’s action is upheld as long
as the act does not take over another branch’s powers or prevent another branch from performing its tasks. Where
the president acts against Congress’s express will, he has little authority, and his action is likely invalid
b. Chief executive domestic powers (EAR PVPs)
i. Enforcement of laws, not making them. May delegate to other executive officers. Attorney general is chief
law-enforcement official. May direct federal executive agencies (executive orders) but not private parties
outside the executive branch unless authorized by Congress. May set up presidential advisory commissions
ii. Appointment power: President can appoint officers and high-level officials with consent of Senate
iii. Removal power: President can remove high-level, purely executive officials without cause. President may
be able to remove other executive officials for good cause based on statute (e.g., corruption, incompetence)
iv. Pardon power (plenary): President may grant pardons before charge or after conviction to federal criminals

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v. Veto power: Proposed legislation becomes law unless wholly vetoed within 10 days of passing legislation
1. Line-item veto is unconstitutional. President may only approve/reject a bill in toto
2. Legislative veto (Congress changes law by majority vote after president signs) is unconstitutional
vi. Privileges: Absolute privilege to refuse to disclose national security secrets. Qualified privilege to
confidential comm’n between president and advisors (balance confidentiality vs. purpose to reveal or not)
c. Commander-in-chief (military) powers (BREW): Respond to attacks (only Congress has power to initiate war),
emergency power (broad discretion to send troops abroad w/o declaration of war, whether or not Congress is in
session), wartime power (seize private property in wartime unless Congress denies it), battlefield tactical decisions
d. International affairs: Treaty power (make agreements between countries with 2/3 Senate consent), executive
agreements with foreign nations (Congress ratification not needed)
e. Hierarchy of laws: U.S. Constitution > treaty / federal statute (last in time prevails) > executive agreement (foreign)
/ executive order > state constitution > state law
IV. FEDERALISM
a. Supremacy clause: Constitution, federal laws, and treaties are supreme law
i. Express preemption: Federal statute says federal law is exclusive in an area
ii. Implied preemption: If state law conflicts with fed law, Congress shows clear intent to occupy the field, or
state law impedes federal objectives
iii. If no conflict or no impedance of federal objectives, state law may be broader (e.g., higher minimum wage)
b. Federal function immunity: Federal instrumentalities (gov’t and agencies) are immune from…
i. State taxation where the “legal incidence” of the tax is on the U.S. without consent of Congress
1. Nondiscriminatory, indirect taxes OK if no unreasonable burden, e.g., state tax on fed employees
ii. State regulation that would interfere with fed functions (fed law would control, per supremacy clause)
c. Sovereign immunity: Fed gov’t (U.S.) cannot be sued w/o consent. U.S. or another state may sue a state w/o consent
d. 10th Amendment police power: States have broad power to regulate areas traditionally w/in power of states
(involving health, safety, welfare, morals), limited by contrary fed power (laws, tax immunity, enumerated powers,
foreign affairs, exclusive jx)
i. Anti-commandeering doctrine: Case law holds that Congress (and likely executive orders) cannot make
state legislatures pass a law or have state officials enforce federal law. However…
1. Mere prohibitions are not commandeering
2. Spending power can indirectly regulate state if condition for money is clear + not unduly coercive
e. Dormant commerce clause (DCC): State may not regulate ISC in a way that is discriminatory or unduly burdensome
i. If Congress hasn’t enacted legislation, states may regulate local transactions affecting ISC, only if the
regulation does not discriminate against out-of-stateactors to benefit local economic interests (“economic
protectionism”) + does not unduly burden interstate commerce (burden < state’s interest in the action)
1. If a state law does discriminate on its face against OOS actors, it is invalid unless it serves a
compelling state interest + it is necessary to the compelling interest (SS—usually invalid)
a. EXCEPTION: State may prefer own citizens as a market participant (buy, sell, hire, etc.)
2. If a state law is facially neutral and merely incidentally burdens ISC, use balancing test: invalid
only if burden on ISC > promotion of legitimate local interests (i.e., there is undue burden on ISC)
V. State action requirement: Constitution protects against states and fed, not private individuals (except 13A), UNLESS…
a. Significant state involvement: Private action is closely encouraged and supported by the state (state hand in private
glove); e.g., court seeks to enforce a racially restrictive covenant, or statute requires segregated public toilets
b. Public function theory: Private actor is delegated a function traditionally reserved to states (company town, not mall)
c. Mutually beneficial relation derived from unconstitutional behavior; e.g., state gets increased revenues and rents
from privately owned restaurant that discriminates
VI. Standards of scrutiny when a court reviews the legitimacy of governmental acts
a. Strict scrutiny (SS): Gov’t must prove its classification is necessary to achieve a compelling gov’t interest
i. Law must discriminate on its face or have actual motive (if facially neutral)
ii. Classification is necessary if it is the least-restrictive means (no alternative to lessen the burden) or is
narrowly tailored to serve the compelling gov’t interest (difficult test to meet—gov’t almost always loses)
b. Intermediate scrutiny (IS): Gov’t must prove its classification is substantially related to an important gov’t
interest. Law must discriminate on its face or have actual motive (if facially neutral)
c. Rational basis (RB): Plaintiff must prove classification is not rationally related to any legitimate gov’t interest
VII. DUE PROCESS CLAUSE (DPC: 5A applies to fed gov’t; 14A applies to state and local gov’t)
a. Procedural DPC protects persons against intentional deprivation of life, liberty or property w/o due process of law
i. Persons: All people including aliens and corporations, not just citizens
ii. Liberty: Bodily restraint, physical punishment Life: Gov’t wants to kill you
iii. Property: More than physical. Equal protection rights, constitutional freedom, e.g., public education, public
employment (no property interest if “at will”), benefit under state law (welfare), driver/business license
iv. What fair process is due? Adequate notice + adequate hearing (+ unbiased decision maker). Adequacy
factors: (1) importance of interest (more important  more process needed), (2) gov’t interest/burden in

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efficiency (more burdensome to get protection  less process needed), (3) procedural safeguards and risk
of error (more likely that gov’t will make a mistake without procedural protection  more process needed)
v. Due process rights may be waived if voluntary and made knowingly
b. Substantive DPC (sDPC) is a source of fundamental individual rights not spelled elsewhere in the Constitution.
Gov’t may not infringe on these fundamental rights (“CAMPERD STOVF”). Standard of review is SS unless noted:
i. Contraception (privacy): State cannot prohibit distribution of contraceptives, whether single or married
ii. Abortion (privacy): State reg is unconstitutional if it imposes undue burden on choice to abort, up to the
point fetus is viable (realistic possibility of survival outside womb—pre-viability is gray area, 1st trimester)
1. Considered undue burden: requiring spousal notice about abortion
2. Not undue burden: parental consent w/ judicial bypass, 24-hour waiting period, ban unsafe method
3. Any abortion restriction, even post-viability, must have exception to protect mother’s life or health
iii. Marriage (privacy): Right to enter into (and likely, to dissolve) marriage is deemed fundamental
iv. Parentage/Procreation (privacy): Reproductive rights, and child rearing, care, custody, control
v. Education (private): Parents have a right to privately educate children outside of the public school system
vi. Relatives (family relations)
1. Gov’t cannot prohibit members of an extended family from living in a single household
2. Gov’t can ban unrelated persons from living together in a single-family residence
vii. Death: Right to refuse medical procedures, even if life-extending. No right to suicide or assisted suicide
viii. Sexual orientation (strict RBR): Gov’t cannot criminalize same-sex sexual activity (no legitimate interest)
ix. Travel: Right to travel interstate and to set up residency in a new state, subject to reasonable restrictions
x. Obscene material: Right to possess in one’s home. No right to buy, sell, transport. No right to child porn
xi. Vote: 15A (no race discrimination in voting), 19A (no sex discrimination in voting), 24A (no poll taxes)
1. Total ban (on picking/voting for a candidate) via, e.g., redistricting primarily based on race? SS
2. Regulation of process that makes voting harder? Undue burden balancing (gov’t interest/burden)
3. Reasonable restriction (on being a candidate: age, residency, filing fee, voting districts)? RB
a. Traditional one-person one-vote principle does not apply to special, limited-purpose
voting districts, such as a water-storage district where voting is limited to landowners
xii. Free association (1st Amendment): Right to belong to political groups
c. Takings clause (provided by 5A, applicable to states via 14A)
i. Gov’t cannot take private property for public use without just compensation
1. Public use means “public purpose.” Burden on gov’t to show the action is rationally related to any
legitimate purpose (such as health, welfare, safety, aesthetic reasons)
2. “Just compensation”: loss of FMV to owner, not gain to taker (not comped if worthless property)
ii. If the action is a “taking,” just compensation is required; mere “regulation” does not require compensation
1. Examples of reg: zoning ordinance, ordering destruction of diseased trees, landmark ordinance
iii. Actual/physical taking: If gov’t takes one’s property by actual or physical appropriation, it is a taking
1. Includes permanent, physical invasion no matter how minor (e.g., running cable lines)
2. Temporary taking: Not a per se taking. Balance the circumstances (e.g., planners’ good faith,
reasonable expectations of owners, length of delay, actual economic impact) to determine whether
fairness and justice require just compensation
iv. Regulatory taking: A regulation that decreases the value of property. Per Lucas, it is not a taking unless it
deprives all economically beneficial use of land (e.g., disallowing land development).
1. Partial taking occurs when only a portion of the property owner’s land is rendered economically
useless through an intrusion or regulation. Penn Central balancing test: 1) regulation’s economic
impact on the claimant, 2) extent to which the regulation interferes with distinct investment-
backed expectations (purpose of property?), 3) character of the government action (for welfare?)
VIII. EQUAL PROTECTION CLAUSE (EPC: applicable to states via 14A and to fed via 5A DPC for gross discrimination)
a. Applies where a statute or gov’t action treats similarly situated people in a dissimilar manner or singles out one class
of persons (i.e., classifies people). Compare sDPC protection of fundamental rights of everyone
b. Race discrimination – suspect classification subject to SS
i. De jure (by law) segregation almost always unconst’l, e.g., school segregation, banning interracial marriage
ii. De facto OK (happens through private choice and social factors, e.g., different races live in different areas)
iii. Affirmative action: Overt classifications may pass SS review in affirmative action
1. Compelling interests: Remedy state’s own (not general societal) past discrimination w/ narrow
tailoring of benefits to those actually affected, or diversity in higher education (post-secondary)
c. Alienage discrimination (treating citizens & non-citizens differently) – suspect classification subject to SS
i. Public function EXCEPTION: State may require citizenship for state jobs that directly affect politics – RB
ii. Illegal (undocumented) aliens not a protected classification – RB Illegal alien children – IS
1. Fed law may adopt immigration policy (e.g., 5yr residency req for fed Medicare benefits) – RB
d. Gender discrimination – IS (gov’t must show “exceedingly persuasive justification,” closer to SS)
i. Affirmative action: Remedial (even for past, societal reasons) or benign discrimination satisfies IS
e. Illegitimacy (treating illegitimate children differently) – IS

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Rational Basis Review (RB/RBR) Intermediate Scrutiny (IS) Strict Scrutiny (SS)
Age, alienage (fed), disability, sexual Gender, illegitimacy, undocumented alien Race, alienage (state), national origin,
orientation, social, economic, all else children voting, domestic travel, most sDPC rights
IX. PRIVILEGES & IMMUNITIES CLAUSES (applies to out-of-state discrimination against citizens only)
a. Article IV comity clause (basic rights): State gov’t cannot discriminate against non-residents of the state if economic
discrimination affects “fundamental rights” or “important economic activities,” unless the discrimination is closely
related (no less discriminatory alternative could be achieved) to a substantial gov’t interest (IS)
i. Non-resident discrimination cannot affect rights including civil liberties and right to work and pursue
livelihood, e.g., higher license fees or taxes for out-of-staters, abortions or employment for locals only
b. 14th Amendment (narrow scope, rarely used): State cannot deny citizen rights of national citizenship, e.g., to travel
state lines and establish residency in a new state
c. N/A to aliens and corporations (“persons”). But can protect from discrimination via DCC, 14A DPC, or 14A EPC
X. RETROACTIVE LEGISLATION
a. Contracts clause: Prohibits state legislation from substantially impairing the obligation of existing public/private K
i. EXCEPTION: Regulation of private K is reasonably and narrowly tailored to promote important and
legitimate public interest. Regulation of public K receives stricter scrutiny
b. Ex post facto law: State/fed may not retroactively alter criminal offense or punishment that puts Δ in worse position
c. Bill of attainder: State/fed may not pass a legislative act that inflicts punitive punishment without a trial on named
individuals or an easily ascertainable group for past conduct

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XI. FIRST AMENDMENT (1A also applicable to states through 14A)
a. Free speech clause (speech = words, symbols, expressive conduct intended and reas. likely perceived as a message)
i. Restricts gov’t regulation of private speech. Does not constrain gov’t from voicing its opinions or funding
only certain private speech, subject to other constitutional limitations
ii. Facial attacks—analyze these first when expression is being regulated
1. Prior restraint: Gov’t action restricting speech before it occurs (rather than punishing after) is
disfavored. Such restriction must be narrowly drawn and show special societal harm will result
2. Overbreadth: Ordinance invalid as overbroad if it prohibits activities that may be constitutionally
forbidden and also those that may be protected under 1A (allowable under another standard)
3. Vagueness: Regulation is void as vague if ordinance is so unclear that reasonably intelligent
persons would have to guess at its meaning and would differ as to its application
4. Unfettered discretion: A regulation cannot give officials unfettered discretion over determining
speech issues (e.g., power to raise permit fee, or require review); there must be defined standards
iii. Content-based regulation: Strict scrutiny triggered if gov’t regulates content- or viewpoint-based speech.
That is, there are few restrictions on content of speech. But there are unprotected speech EXCEPTIONS:
1. Obscenity: Regulation valid only if the work 1) appeals to prurient (sexual) interests based on
local community standards, 2) depiction or description is patently offensive per local standards, 3)
as a whole lacks serious literary, artistic, political, scientific (LAPS) value to a reasonable person
2. Defamation: See Defamation in Torts Magicsheets. Additional constitutional issues apply for
public matters: falsity and fault. Public info may be protected if newsworthy and not offensive
3. Unlawful advocacy: May prohibit if the speaker (subjectively) intends to produce “imminent,
unlawful action” + speech is (objectively) likely in fact to produce “imminent, unlawful action”
Regulation likely 4. Hostile audience: Speech eliciting imminent, violent reaction from the crowd. But police must
invalid for being make reasonable efforts to protect the speaker
overbroad or vague 5. Fighting words: Likely to incite ordinary citizen to acts of immediate, violent retaliation to speaker
6. True threats: Intended to convey serious threat of bodily harm (e.g., cross burning to intimidate)
iv. Content-neutral regulation / time, place, manner (TPM) regulation: Regulation of public forums
(historically open to speech-related activities, e.g., sidewalk, park) and designated public forums (not
historically open to speech but designated for it, e.g., classroom for after-school civic activities) must be
content- and viewpoint-neutral + narrowly tailored (no total bans) to serve an important interest +
leave open alternative channels of communication (most legitimate interests meet importance standard)
1. Limited public forums (not historically linked to speech but open for a purpose, e.g., school gym
for town debate) and non-public forums (not open to public, e.g., military base, school in session)
may be TPM regulated only if viewpoint-neutral + reasonably related to a legitimate interest
v. Quasi-protected speech: Commercial speech is protected if it 1) is not false or deceptive and 2) does not
relate to unlawful activity. But gov’t can still regulate if it 1) serves a substantial gov’t interest + 2) directly
advances that interest + 3) narrowly tailored to achieve that interest (reasonable fit b/w goals and means)
b. Religion
i. Establishment clause: Prohibits gov’t from preferring one religion over another or establishing a religion
1. If regulation on its face prefers a religion over others or religion generally over non-religion  SS
a. If speech involved, can also raise viewpoint discrimination under the free speech clause
2. If law or program is facially neutral, valid under Lemon test if it 1) has a secular (nonreligious)
purpose, 2) has a primary effect that does not advance or inhibit religion, 3) does not foster
excessive gov’t entanglement with religion
a. Gov’t financial assistance to defined class of persons is valid if the class is defined w/o
reference to religion or religious criteria (even if recipients use to attend religious school)
ii. Free exercise clause: Gov’t may not prohibit the free exercise of any religion
1. Genuine belief (threshold issue)? Sincere religious beliefs are absolutely protected. The belief
must parallel orthodox religious beliefs; it cannot be a purely political or philosophical view
2. Generally applicable? Gov’t may regulate (under RB) an activity if the regulation is neutral w/r/t
religion and is of general applicability, even if it incidentally burdens religious conduct
a. EXCEPTION: If person quits job for sincere religious reason, gov’t cannot refuse
unemployment benefits
3. If law is not generally applicable and was motivated by intent to interfere with religion  SS
a. EXCEPTIONS: Sabbath observance unemployment benefits, start Amish schooling at 16

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