Con Law Rules

Standing Test

Injury in fact (of a sufficient type and of a sufficient likelihood), traceability or causation, redressability.

Political Question Doctrine, Not Justiciable If…

Textually demonstrable commitment to a coordinate brand of the federal government AND the lack of judicially discoverable and manageable standards for resolving the issue.

Youngstown Three Zones of Presidential Power

Zone 1: President acts pursant to an explicit authorization of Congress

Zone 2 (Zone of Twilight): Congress hasn’t said one thing or another; Congress has not taken up a position on the issue that the President would like to act on another

Zone 3: Congress has spoken to the issue and tells the President not to do what the President is doing

Enforcement Power—Congruence and Proportionality Test

1. Identify the nature and scope of the right that Congress is seeking to enforce

2. Evaluate the evidence before Congress to ascertain the extent of past violations of the right by state and local governments.

3. Determine whether the remedial or preventative measures in the Congressional statute under review are congruent and proportional considering the evidence of past government violations.

Preemption Test

Whether the matter on which the State asserts the right to act is in any way regulated by the Federal Act

Pike Balancing Test

1. Whether the state regulated even handedly to effectuate a legitimate local public interest and its effects on Interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits

2. Extent of the burden that will be tolerated will, of course, depend on the nature of the local interest involved, and on whether it could be promoted as well with the lesser impact on Interstate activities

3. Benefit vs. Burden

Substantive Due Process: Strict Scrutiny Test

Government may regulate a fundamental right only if it has a compelling purpose in doing so, and the regulatory means chosen are necessary/narrowly tailored to achieve the government’s objective.

Substantive Due Process: Rational Basis Review Test

When a fundamental right is not involved, the challenged regulation only must serve a legitimate government interest, and the means selected only need to be rationally related to achieving that interest.

Equal Protection Clause: Strict Scrutiny Test

Serves a compelling purpose and is narrowly tailored to that purpose.

Equal Protection Clause: Intermediate Scutiny Test

The statue must be substantially related to an important government interest.

Equal Protection Clause: Rational Basis Review

The statue is rationally related to a legitimate government interest.

Federal Spending Power: Dole Test

1. Spending must promote the general welfare.

2. Conditions have to be clear and unambiguous (clarity requirement)

3. Any conditions places on federal spending have to be reasonably related to the purpose or the federal interest that the funds are being given for (must be related)

4. Congress can’t use federal money to induce states to do something unconstitutional.

5. Unconscionable (some compulsions to act a certain way are so stringent that they are unconscionable)

Establishment Clause/Lemon Test

1. The statute must have a secular legislative purpose

2. Its principal/primary effect must be one that neither advances nor inhibits religion AND

3. The statue must not foster an excessive entanglement with religion

Lemon test + government endorsement of religion + neutrality + coercion

Smith Rule

The Free Exercise Clause of the First Amendment does not relieve individuals from complying with neutral, generally applicable laws, even if those laws incidentally burden religious practices.

Procedural Due Process Steps of Analysis

1. What life, liberty, or property interests are protected?

2. Has the interest been deprived by government action?

3. What procedural safeguards are required?

Dobbs Test for Identifying a Fundamental Right

1. Deeply rooted in the nation’s history AND essential to the nation’s scheme of ordered liberty OR

2. An integral part of a broader entrenched right supported by other precedents

Presidental Immunity Decided in Trump v. United States

1. For acts within the executive’s “conclusive” and “preclusive” authority, the president has absolute immunity.

2. For presidental official conduct, concerning a power shared with Congress, there is at least a presumptive immunity.

3. For the president’s unofficial acts there is no immunity

Balancing Test for Congressional Subpoenas

Must perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interest of Congress and the unique position of the president, while accounting for several special considerations.

Nixon v. Fitzgerald Rule

The President has absolute immunity from civil suits within the outer boundaries of presidential duties.

Intelligible Principal Doctorine

Legislative power can be delegated from Congress to non-legislative actors, as long as the delegation is accompanied by an intelligible principle for the exercise of those legislative authorities.

Types of Preemption

Impossibility (Conflict Preemption), Obstacle (Conflict Preemption), Field, Express

Congress’ Commerce Clause Power

1. The use of the channels of interstate commerce

2. the instrumentalities of, or person, or things in, interstate commerce

3. Those activities that have a substantial effect on interstate commerce.

Time, Place, and Manner Test

1. Content neutral

2. Leaves open ample alternative channels for communication; and

3. Narrowly tailored to serve a substantial government interest.

Stevens Test for Nonprotected Speech

The classification

1. must be supported by a longstanding historical tradition OR

2. Must be identified as a sub-set of a pre-existing unprotected category

Procedural Due Process: What Process is Due? Balancing Test from Matthews

1. The private interest that will be affected by the official action

2. The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and

3. The government’s interest, including the function involved and the fiscal and adminstrative burdens that the additional or substitute procedural requirement would entail