Constitutional Law I

Terms/concepts from Higginbotham's Spring2025 Con Law I Course

Separation of Powers

The division of government responsibilities into 3 distinct branches to prevent any one branch from exerting too much power.

Separation of Power External Limitations

Executive branch can veto legislative

Legislative can impeach the executive

Executive appoints the judiciary

Judiciary interprets the legislative

Separation of Powers

The division of government responsibilities into 3 distinct branches to prevent any one branch from exerting too much power.

Separation of Power External Limitations

Executive branch can veto legislative

Legislative can impeach the executive

Executive appoints the judiciary

Judiciary interprets the legislative

Separation of Power Internal Limitations

Supreme Court needs 5+ votes

Legislative needs a majority/super majority if a veto

Judicial Review

Article III gives the Supreme Court:

• original jurisdiction in cases between 2 or more states, ambassadors & public ministers

• appellate jurisdiction over cases with a federal question, the US is a party to, treaties, and admiralty

Writ of Mandamus

Order by the court to a government official requiring official to do a certain thing

Marbury v Madison Rule

Establishes judicial review

Violations of legal rights are subject to judicial review, but legal rights political in nature are not subject to judicial review

Political Question Doctrine

Political acts by their nature cannot violate law/Constitution

Political Question Test/Considerations (6)

• Is there a constitutional commitment to another branch?

• Is there a lack of judicial standards?

• Is it impossible to decide without an initial policy determination?

• Will the court resolution show a lack of respect for another branch?

• Is there a need to adhere to a political decision already made?

• Is there a potential embarrassment from multiple pronouncements?

Nixon v US Rule

Impeachment is a political question

Hunter Lessee Rule

Establishes appellate review

Supreme Court is the single & final interpreter of federal law & constitution

Ex Parte Mccardle Rule

Limits appellate jurisdiction

Appellate jurisdiction is conferred by the constitution and congress may make certain exceptions

3 Sources of Constitutional Interpretation

Textual/Structural

Reinforcement/Improvement of Democratic Process

Natural Law/Natural Rights

Textual/Structural Constitutional Interpretation

Focuses on the written historical document & the context it was written

Textualists = look to the specific words of the Constitution and consider what those words meant at the time they were written

Structuralists = look at the context of the provision at issue and how it can be interpreted in a rational way today

Reinforcement/Improvement of Democratic Process Constitutional Interpretation

strengthens America’s institutions through decisions that protect the foundation of representative government

Natural Law/Natural Rights

Not expressly used in Constitutional interpretation, but holds the notion that government power should be limited by universal natural rights

Article III Case or Controversy Requirement

Limits the federal court jurisdiction to cases and controversies

4 Limitations to Judicial Authority

Cannot

• Issue advisory opinions  

• Decide Political Questions

• Decide cases where the litigants do not have standing 

• Decide cases that are premature or moot  

Standing Requirements

2 aspects: 

• Injury in fact  

• Nexus between harm and defendant’s action (safeguard against advisory opinions)

3 required components:

• Injury must be distinct and concrete and not abstract. 

• Injury must be traceable to a challenged action by the defendant.  

• Relief from injury must not be merely speculative but likely to follow from a favorable decision. 

Federalism

The distribution of national powers

How does the constitution distribute the national or enumerated powers? (2)

Horizontally = between the 3 federal branches

Vertically = between the federal government + state/local governments

Source of Presidential Authority

Statutory = congressional/act of congress

Constitutional = per Article II of the constitution

[Presidential] Statutory Authority Rule

Statutory authority can be express or implied.

If implied statutory authority, the court applies a three-factor sliding scale test to determine if there is:  

1. No express congressional disapproval 

2. A history of congressional acquiescence, and  

3. Implied congressional approval from similar pieces of legislation

[Presidential] Constitutional Authority Rule

Constitutional authority stems from three key clauses: 

1. Commander-in-Chief = all power in the “theater of war” [limited domestically]  

2. Executive power = the president may only enforce the laws 

3. Take care = limited to carrying out the policies of Congress 

Separation of Powers Supreme Court considerations

• Historical precedent 

• Constitutional structure  

• Analogous textual provisions 

Presidential Treaty Power

Article II gives the president the power to negotiate and enter into international treaties with the advice and the consent of the Senate

Medellin v Texas Rule

Treaty must be self-executing in order to be binding on domestic law

Self-executing treaty = the intent for its provisions to become domestic law is obvious from the language in the treaty (think: express congressional assent)

Dames & Moore Rule

The president cannot unilaterally create domestic law through the treaty without authorization from Congress

Missouri v Holland Rule

The 10th amendment does not place limitations on the President’s treaty power because such power is specifically delegated by the Constitution

Presidential Privilege

The separation of powers principle allows for a qualified privilege concerning official actions and conduct

Presidential Privilege Test

Straight balancing between presidential need for candor and secrecy within the administration of justice

Presidential Privilege Criminal Prosecution Test

Official or unofficial conduct?

• Unofficial = no immunity

• Official = does authority come from the constitution, and is the authority exclusive or preclusive

  • Official and preclusive & exclusive = absolute immunity

  • Official and not preclusive & exclusive = employ straight balancing test of need for candor + secrecy in administration of justice

Presidential Seizure Power

Presidential seizure authority comes from two sources and may be express or implied:

• Acts of congress

• The constitutional provisions themselves

Constitutional Provisions that authorize presidential seizure power

1. The Commander in Chief Power 

   1. Does not include taking private property as that is not executing or enforcing the law, it is legislation. 

   2. Is vastly limited particularly in the domestic arena. 

2. The Executive Clause Power 

3. The Take Care Clause Power 

   1. Is limited to carrying out the policies of congress

   2. Does not give the president the power to set her own policies

   3. Must be a congressional law that the president is taking care of.  

(3) Factors the court considers in establishing implied congressional authority for privilege/seizure

• No express congressional disapproval  

• A history of congressional acquiescence  

• Implied congressional approval through related legislation 

What is congressional delegation of power?

When congress delegates some of its constitutional power to another branch

Congressional non-delegation doctrine

• May not delegate power to private entities.  

• Must provide adequate standards for use of the power.  

• Problems arise when Congress delegates power but attempts to maintain control. 

Congress’s delegation of power rule

Congress can delegate law making authority to administrative agencies giving them the power to make certain laws

Limitations to Congress’s delegation power

• Congress cannot delegate to private groups

• If Congress delegates, it must provide adequate standards for guidance, otherwise delegation is prohibited

Legislative Veto Power

Allows Congress to delegate power to the executive branch on the condition that Congress can control executive decisions without having to pass another law [veto provisions]

• if no veto by congress, executive branch can “make law” without congressional involvement

Legislative Veto Power Limit Rule

Congress may not exercise its one-house legislative veto power over actions that are legislative in character and effect, such as those that alter the legal rights, duties, and relations of people. Such actions require bicameral presentation and the opportunity for presidential veto

Appointment

President has the power to appoint (with Senate approval) primary officers who exercise significant authority pursuant to the laws of the United States 

Commerce Clause

Article I gives Congress the ability to regulate both foreign and domestic commerce, plenary & limited power

Plenary Power

Enumerated power only limited by other Constitutional provisions

Gibbons v Ogden Rule

Congress has the power to regulate interstate commerce under Article I of the Constitution. If Congress and a state both pass conflicting laws regulating commerce, the federal law trumps

2 judicial approaches to commerce clause evaluation

• Formalist: Court examines that statute and the regulated activity to determine whether certain objective criteria are satisfied

• Realist: Court determines the actual economic impact of the regulation or the action motivating Congress

Congress has the power to regulate commerce through these 3 categories

1. Instrumentalities of interstate commerce including all personnel connected to those instruments

2. Commodities in the current of commerce = the current of commerce means from one state to another

3. Local activities having a substantial impact on interstate commerce

Instrumentalities of interstate commerce test

Once an action is deemed to be commerce (as an instrument of commerce, or a person involved with that instrument) congress may regulate it under its enumerated commerce clause power

Commodities in the current of commerce test

When the commodity is in transit, the activities are viewed as a part of the current/channels of commerce and congress may regulate them

Local activities commerce clause test

Substantial Effects Test: Congress can regulate completely local activities if the aggregate impact of all similarly situated activities will have a substantial effect on interstate commerce, even if an individual contribution alone is trivial

Local activities commerce clause limitation

US v Lopez = must be economic in nature

Dormant Commerce Clause

Where Congress is silent on a particular area of interstate commerce, states may enact regulations. Permits states to address local concerns where not preempted by congress

Dormant Commerce Clause test (4)

• the state must have a legitimate local public interest that is non-discriminatory; 

• the effect on interstate commerce must be incidental; 

• the burden on interstate commerce must not be excessive; and 

• there must be no non-discriminatory alternative

Exceptions to Dormant Commerce Clause

• The Market Participant Doctrine 

• Alcohol   

• Congressional Consent or Preemption  

Market Participant Doctrine 

A state can prefer its own citizens if the state acts as a trade participant (buying, selling, hiring, etc.)  in the market rather than in its normal capacity as a trade regulator of the market 

(2) Types of Preemption

• Express

• Implied

Implied Preemption

Court looks at the language, purpose or structure of regulation and evaluates the need for uniformity, danger of conflict between administering the federal and state regulations; 2 types

(2) Types of Implied Preemption

• Field = the regulation covers an entire subject or area - Congress left no room for the State to supplement it (does the state law interfere with the purpose/ objectives of congress)

• Conflict = Compliance with both regulations is impossible, or the state is creating a barrier for the execution and accomplishment of Congress’s goals

Scope of Congresses Power

• Taxing

• Spending

• 10th Amendment

Taxing Power Rule

Congress cannot use its taxation power to impose penalties for the purpose of regulating outside the scope of its Commerce Clause powers

• revenue raising = permitted

• penalty imposing/regulation = prohibited

Spending Power Rule

Congress has the power to tax for the purpose of proving funds of payment to the nation’s debts and making provisions for the general welfare. This power cannot be used to compel state action. To determine if legislation is valid under the spending clause, the court employs a 4-factor test:  

1. Spending power must be in pursuit of the general welfare.  

2. Any condition on the state receipt of funds must be done unambiguously.  

3. Any conditions must be related to the federal interest in the particular national program.  

4. No other constitutional clause can impose an independent bar to the program 

10th Amendment Rule

Powers not delegated to the federal gov by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people

Supremacy Clause

federal law exercised within its constitutional limits is the supreme law of the land

Anti-Commandeering Rule under the 10th amendment

Congress may not commandeer regulatory action by the states

Limits on Congressional regulatory power (4)

• Congress can use its Commerce Clause Power to incentivize state actions but cannot coerce them.  

• Congress may not simply commandeer the legislative processes of the state by directly compelling them to enact and enforce a federal regulatory program.  

• If the federal government wants the states to do something, it must enact the program at the national level so it can be held accountable by the electorate for the decision.  

• They cannot force the states to pass legislation for which the state government is answerable if the people of the state do not want such legislation.  

Traditional Zones Test Rule [National League of Cities]

Congress cannot regulate in areas of traditional government functions. The commerce clause power was limited by the 10^th amendment reservation to the states

Standard of Review

The level of scrutiny applied by courts when evaluating laws or policies based on the classifications they present.

5th Amendment Due Process Clause

encompasses a due process clause that requires the federal government to uphold the equal protection clause [applies to federal law]

• “no person shall “be deprived of life, liberty, or property without due process of law.”

14th Amendment Equal Protection Clause

applies to state/local governments requiring them to not discriminate based on race

• “government may not “deny any person within its jurisdiction the equal protection of the law.”

Equal Protection Analysis

• How has the government defined the group being benefited or burdened? [the question of “means”]

• What is the goal the government is pursuing? [the question of “ends”]

• Is there a sufficient connection between the means the government is using and the ends it is pursuing? [the question of “fit” or “nexus”]

Levels of Scrutiny (3)

rationality review, intermediate review, strict scrutiny

Rationality Review Test

1. Is there a legitimate government interest? 

2. Is the classification rationally related to this legitimate government interest?

Intermediate Review Test

1. Is there an important government interest? 

2. Is the classification substantially related to achieving that important interest? 

Strict Scrutiny Test

1. Is there a compelling government interest? 

2. Is the legislation narrowly tailored to achieve that compelling interest? 

Equal Protection Clause

Part of the 14th Amendment that requires states to provide equal protection under the law to all persons.

How does a law discriminate?

• on its face = by its express terms, the law classifies persons for different treatment.  

• in its application = a neutral law is being administered with different degrees of severity for different groups of persons

• in its effects = a neutral law imposes different burdens on different persons based on impact

Rationality Review

Basic approach characterized as a low-level scrutiny test and the court seeks to determine whether there is a rational basis between the classification and the purpose of the statute

The Court’s considerations under Rationality Review

1. What is the real government purpose? 

2. Is that purpose legitimate? 

3. Is the classification being made rational? 

Classifications that require Intermediate Review

Gender

Classifications that require Strict/Heightened Scrutiny

• Race

• National Origin

• Legal Immigrants

Caroline Products Famous Footnote 4

Discrete and insular minorities may not be adequately protected under the normal political process and therefore may require extra judicial protection 

Court’s analysis for cases involving discrimination against minorities

1. Is there a compelling government interest?

   • Pressing public necessity + close connection 

2. Is legislation narrowly tailored to achieve that interest? 

3. Is this the least restrictive means to achieving that interest? 

Who bears the burden of proof when there is an express racial classification?

Government

What categories do heightened review apply to? (2)

1. Race specific classifications that expressly disadvantage racial minorities [express on its face] 

2. Facially neutral categories that disadvantage racial minorities by impact

   1. If a statute is facially neutral, it will receive the rationality review unless plaintiff can prove there was an intent to racially discriminate 

How to prove an implied intent to discriminate? [for facially neutral statutes that disadvantage minorities by impact?

To show implied intent to discriminate, look for: 

1. A clear pattern, unexplained on grounds other than race; [if this is absent (rare), look to: 

   • Radical departures in substance or procedure from the normal approach [historical background] 

   • Legislative history  

   • Statistics  

Who bears the burden of proof when there is a facially neutral statute?

Plaintiff

Original Jurisdiction

The authority of a court to hear a case for the first time, as opposed to appellate jurisdiction.

Advisory Opinions

Legal opinions issued by courts that do not resolve an actual legal dispute and are therefore generally not permissible.

Legislative Veto

A provision that allows Congress to nullify decisions made by the executive branch without presidential approval.