Con Law FALL 2025

Federal Judicial Power

Federal judicial power comes from Article 3 of the US constitution. Judicial power of the United States shall be vested in one Supreme Court and such inferior courts as Congress may establish

“Cases” and “Controversies”

Federal judicial power extends to certain “cases” and “controversies”:  “Arising under Constitution, federal law, treaties  Cases affecting ambassadors, public ministers, consuls  Cases involving admiralty, maritime Controversies involving U>S. as a party, between 2 or more states, between state and citizens of another state  Controversies between citizens of different state  Controversies between state of its citizens and foreign states or citizens or subjects

Judicial Review

Supreme Court decisions have established the federal judicial power to review constitutionality of other branches of federal government (Marbury) and to review constitutionality of state high courts decisions (Martin, Cooper)

Judicial- Congressional Limits

Article 3 authorizes Congress to make “exceptions” and “regulations” to Court’s appellate jurisdiction (fed ? or diversity)   Ex Parte McCardle (allowed habeus corpus to be “stripped” by Congress because other avenues)

Judicial Standing

Injury in fact: is an injury that is personally distinct and concrete to the person bringing the suit Causation of P’s injury is fairly traceable to D’s conduct Redressability likely via court order  Prudential Standing:  No standing to raise claims of a third party No generalized grievances, no citizen or taxpayer standing (unless Congress authorizes)  MA v. EPA (MA regulate car emissions); Uzeuegbunam (religion on campus)  Duke (nuclear, but-for)

Judicial Ripeness

No premature review before enforcement, unless there is an immediate threat of harm. A court determines ripeness based off of hether the fitness of the issue for judicial decision and hardship to parties to withhold review.

Judicial Mootness

Plaintiff must present a “live” controversy at all stages of federal court litigation. If a dispute is resolved then it dismissed as moot unless: (1) the controversy is capable of repetition but yet evade review; (2) if voluntary cessation by the Defendant but could be resumed, (3) if claim of named Plaintiff in class action is mooted

Judicial Political Question Doctrine

The Court will not hear a constitutional designate issue of another political branch or if the issue is inappropriate for judicial review.  Baker (racial gerrymandering- can hear)  Goldwater (Carter rescind treaty- cannot hear)

Prudential Judicial Review

Avoidance: The Court will generally avoid Constitutional issues if it is possible to rule upon other grounds  Abstention: Federal courts abstain from deciding constitutional issues based on unsettled state laws  Adequate and Independent State Grounds: federal courts don’t review final state court decisions that rest on “adequate and independent state grounds” (become advisory opinion)

Where Federal Legislative Power Comes From

Congress gets its federal legislative power from Art. 1 of the Constitution.

Extent of Federal Legislative Power

Congress may only act if it has express or implied authority from the Constitution. Congress only needs one basis of authority to legislate: (1) the necessary and proper clause, (2) commerce clause, (3) taxing and spending clause, (4) enforcement clauses.

Necessary and Proper Clause + Rational Basis

The necessary and proper clause cannot stand on its own, it is used to supplement one of Congress’s other powers. For Congress to have authority under this clause, the ends must be legitimate and the means must be appropriate and not prohibited.  McCulloch v. Maryland → bank case

Commerce Clause Power

Art. 1 §8 Clause 3 gives Congress the power “to regulate commerce with foreign nations, among states, and with the Indian tribes.” If any activity affects interstate commerce, Congress only needs a rational basis to enact legislation. Congress can regulate private actors through the commerce clause.  Congress may regulate three categories under its Commerce Clause Power: 1) channels, 2) goods/instrumentalities, and 3) activities substantially affecting interstate commerce.

Commerce Clause Power- Cases

Perez → loan shark case (this is where the three things that can be regulated come from) 

Channels (things used to move goods in interstate commerce) → RB 

Instrumentalities (persons or things moving across state lines) → RB 

3rd category 

• Econ → RB 

• Non econ → Lopez/Morrison factors

Commerce Clause – Inactivity

Congress does not have the authority through its commerce clause to regulate “inactivity.”

Sebelius  → insurance case.

Commerce Clause – Rule for if the activity is economic in nature

If the activity is economic in nature, the Court relies on a deferential test that allows them to aggregate the activity and relies on Congress’s congressional findings to determine whether there was a rational basis for determining that the activity has a substantial effect on interstate commerce. The Court should rely on the findings of congress, and not substitute their own judgment.

Commerce Clause – Rule for if the activity is non-economic in nature

If this it is determined to be a non-economic activity, then the Court relies on their own judgment, and uses the Lopez/Morrison factors: (1) whether the activity is an essential part of the larger market, (2) whether a jurisdictional hook was included in the act itself, (3) Congressional findings, (4) whether the link between the findings and the activity is too attenuated, and (5) whether the enactment of the act itself will violate federalism.  The activity cannot be aggregated unless it is found to be economic under the first factor.  Under this test, federalism gets two bites of the apple: (1) no general police power and (2) no commandeering under the 10th AM.  Lopez → gun case Morrison → gender violence

Commerce Clause – Aggregate

Congress has the authority to regulate certain in-state activities that, in the aggregate, have a substantial effect on the national economy through aggregation.  Wickard → wheat case

Commerce Clause – Racial Discrimination

Congress has the authority to prohibit racial discrimination in places of public accommodation through aggregation.  Heart of Atlanta Motel v. US Katzenbach

Taxing and Spending

Congress has the broad plenary power to tax (raise revenue) and to spend if it is rationally related to serving the general welfare. (Sabri)

Condition on Spending

For Congress to be able to impose a spending condition on the states it must be examined under the Dole test: (1) pursues the general welfare, (2) unambiguously states condition, (3) conditions are rationally related or germane to federal/national interest in the spending program, (4) does not violate other constitutional provisions, especially 10th AM federalism or equal protection. South Dakota v. Dole Sebelius → addressed that the condition on spending was too coercive.

Congress’s Power to Enforce the Bill of Rights – Takings Clause

The takings clause only applies to the federal government. The Bill of Rights also only applies to the federal government, and not state and local governments.  Barron → pier case

13th Am

The court limits the 13th AM to “prohibiting the badges and incidents of slavery.” Applies to both private and government actors.  Stanley → denying public accommodations based on race

Section 5 of the 14th Amendment

Authorizes Congress to prohibit state (government) action that violates the 14th equal protection clause (discrimination) or due process protection of life, liberty or property.  Slaughterhouse → Court says the 13th is only about slavery, and the 14th privileges and immunities clause protects only the privileges and immunities guaranteed by the US and not those guaranteed by the individual states. Morrison → “state action does not refer only to states as states, but also to government actions. VAWA is directed at individual perpetrators, NOT at state action. So, the remedy must be provided by Virginia, not the federal government.

14th AM and private sector

This can be used to reach the private sector if one of two exceptions is met: (1) the private entity is performing tasks traditionally/exclusively done by the government (public function exception) or (2) the government has authorized, encouraged, or facilitated the entity’s conduct (entanglement exception).  Stanley → denying public accommodations based on race

Scope of Congress’s Power to enforce §5 of the 14th AM – Broad Test

Congress can use any means appropriate/rationally related to the ends (enforcement of the 14th amendment). Court should defer and not substitute its judgment.

Katzenbach → Ollie BBQ

Scope of Congress’s Power to enforce §5 of the 14th AM – Narrow Test

Congress can remedy actual violations of the law or deter likely constitutional violations via congruent and proportional means.  Boerne → church problem. Too large of a remedy for too small a problem.

Limit on Congress’s Authority – 10th AM

The 10th amendment states that what is not given to the federal government is reserved for the states.

Limit on Congress’s Authority – 10th AM – Commandeering  and Market Participants

Congress or the executive may not commandeer state legislative functions by requiring states to enact federal policy, and Congress may not commandeer state executive functions by requiring states to administer or enforce federal policy. However, Congress may regulate states as market participants so long as it does not regulate states “as states” in their governing or “sovereign capacity.” New York v. US → congress may not commandeer the states legislative power. Printz v. US → Congress may not commandeer the states executive power. Reno → States are not acting like states here, like private actors participating in the market.  Murphy v NCAA → It is equally commandeering for Congress to prohibit a state from doing something as it is to command a state to do something.

11th Amendment – Sovereign Immunity

The 11th amendment does not allow for the suing of non-consenting states. The text bars suits by citizens of other states and was extended to bar suits by its own citizens. This is also extended to suits involving federal questions.

Exceptions to State Sovereign Immunity

There is no immunity for states if one of the following exceptions applies: (1) if state expressly consents or waives, (2) if against state official for injunctive relief, (3) if Congress clearly abrogates state immunity pursuant to valid enforcement of Section 5 of the 14th AM.

Executive Power- Textual

Executive power comes from Article 2 of the Constitution which states “the executive power should be vested in the President.” This power is not just limited to “herein granted.”  Executive also has the power through the Take Care Clause that provides the President “shall take care that laws be faithfully executed.”  Executive also has the power as the Commander in Chief over the armed forces.

Executive Power- Shared w/ Congress

Appointments, removal, treaties, and war

Executive Power Scope

Inherent Power:  The President is acting with express or implied authorization by Congress. This power is at its greatest and the Court will give it lowest level of judicial review.  Congress is silent and the President is acting alone. The President’s power will be dependent on the events and contemporaneous circumstances.   The President is acting contrary to express or implied will of Congress. This power is solely derived from the Constitution directly. The Court will give its highest level of judicial review.  Youngstown Sheet→ prez ordered secretary of treasury to control all steel

Executive Privilege

President is allowed to keep conversations private as long as the confidentiality is balanced against criminal justice.

US v. Nixon (watergate)

Cheney v. US

Congress Not Alter Specific Textual Grants of Power- No Line Item Veto

If the Constitution grants a specific power, such as the power to veto, Congress may not alter the textual grant of power.  Clinton v. NY: cannot give the president line item veto power

Check on Administrative State- Minimal Non-Delegation Doctrine

Statutory delegation is constitutional as long as Congress lays down by legislative act an “intelligible principle” to which the person or body is directed to conform to.  ALA Poultry: not delegate to president unfettered discretion Gundy (sex offender): gave to AG with “intelligible principles”

Check on Administrative State- Major Questions Doctrine

Agency may act on a major question of economic or political significance only if there is clear direction from Congress. An agency must point to clear congressional authorization for the power it claims.  WV v. EPA: Congress not grant EPA power to set emission caps  Biden v. Nebraska: Congress not pass Hero’s Act with such power, Biden saying no loans, in mind

Check on Administrative State- Legislative Veto

If any congressional action alters legal right or duties then bicameralism and presentment are required.  Chada (deportation)

Check on Administrative State- Limits on Appointment

The Article II appointment clause states that the President shall nominate and advise and, with the consent of the Senate, appoint Ambassadors/ public ministers and consuls, Supreme Court Judges, and other US Officers. The President alone can appoint inferior officers as they think proper (courts of law/ heads of departments).  The Constitution divides officers by: (1) principal and (2) inferior.  Principal: President with advice and consent of the Senate can appoint.  Inferior: Congress may allow appointment by the President alone.  Factors: removable by Attorney General, certain limited duties, limited in jurisdiction, limited in tenure  Congress may not give appointment power to itself or own officers.  Alexia Morrison v. Olson: gave us the categories + inferior factors

Check on Administrative State– Limits on Removal

There is no constitutional authority for removal but the President may remove unless removal is limited by statute. Congress by statute may limit removal if office is independent from president is desirable OR law limits removal to good cause.  Seila:  Congress may grant for-cause removal protection to multi-member body of experts who are balanced along partisan lines, perform quasi legislative/judicial functions, not exercising executive power.  Congress may grant for-cause removal protection to inferior officer, independent counsel, who have limited duties and no policymaking or administrative authority.  Humphrey’s (FTC commissioner): designed to be independent from executive, Congress supporting goals of commission Weiner: President does not have power to remove members of independent quasi-judicial bodies without cause

Executive- Foreign Policy

The President has exclusive and plenary power over foreign affairs to be the sole voice representing the US in foreign affairs. The President holds the sole power to recognize foreign governments.  The President can negotiate treaties and they are effective when ratified by ⅔ of Senante.  The President is allowed to create an executive agreement and becomes effective when signed by the President and this agreement prevails over state law/policy.  Curtis-Wright (ban selling arms) Missouri v. Mcholand (migratory birds) Dames & Moore (hostages, arbitrate)

Executive- War Power

President can only use military in specific circumstances and ensure Congress’s involvement.

Executive Power- War on Terrorism

May detain a detainee if there is Congressional authority and the detention is used for necessary and proper use. They may only detain for the duration of relevant conflict. 

• Matthew v. Eldridge Factors: 

1. Nature and degree of private interest 

2. Risk of error under current procedure compared to value of additional safeguards 

3. Nature and degree of government interest- how much process give without a mistake

Hamdi (US citizen detain for alleged involvement in 9/11)

Executive Power- Immigration

The President has broad power when implementing actions affecting immigration. The Court will ask if there is a rational basis for that action.   Trump v. Hawaii (muslim ban)

Executive- Checks

An informal check on the president is through pressure of public opinion and any constitutionally valid checks by Congress.  A formal check on the president is filing a lawsuit; impeachment; or prosecution.   Impeachment powers are granted through Article 2 Section 4. Congress may impeach a president for treason, bribery, “high crimes and misdemeanor.”

Executive Immunity

A president is granted absolute immunity for civil actions against them in which they were acting in their official capacity.  A president is granted no immunity for any prior acts done before they took office.  A president is granted absolute immunity for their core or exclusive powers when facing criminal actions. An action done by the president that is exterior of core or exclusive powers, such as speaking with the VP, then it is given a presumption of immunity. An unofficial act is given no immunity. Cannot use evidence of an official act to prove criminality of an unofficial act. Furthermore, mere illegality is insufficient.  Nixon v. Fitzgerald (F lost job): absolute immunity Clinton v. Jones (governor of AK): no immunity Trump v. US (rigging election): core and exclusive

Executive- Subpoena

The president must produce evidence for criminal proceeding when being prosecuted by the state. Furthermore, there is no need for a president to have a heightened standard.  When another political branch is subpoenaing information they must show the following four factors: (1) Could Congress get the information from another source, (2) was the subpoena broader than necessary, (3) has congress identified a valid legislative purpose, (4) what is the burden on the president  Trump v. Vance (state crim): public has right to every man’s evidence Trump v. Mazars (House subpoena): limits for Congress to subpoena

Emoluments Clause

Federal officials may not accept emolument or title from any foreign government or from state or federal governments.

Preemption

The Supremacy Clause allows the federal law to preempt the state and local law. The Court looks to see if Congress intended to preempt state law. 

Express preemption

occurs when there is language in the statute. 

Riegel (medical device)

Lorillard Tobacco (MA regulate sale of cigs)

Implied preemption based on conflicts

he courts look to see if federal law should preempt state law because an actor cannot comply with both state and federal laws. 

FL Lime & Avocado Growers (CA 8% oil, federal no oil)

Implied preemption based on a state law impeding achievement of a federal objective

the courts look to see if the federal objective is frustrated by state law. If the federal objective is frustrated then federal law preempts state law. 

PGE v. State ERC (nuclear power)

Implied preemption based on the federal law occupying the field

the court looks to see if there is clear congressional intent to have federal law occupy a particular area of law.

Arizona v. US (immigration state law)

Dormant Commerce Clause

State and local laws are unconstitutional if they place an undue burden on interstate commerce, even if Congress has not acted. 

If a state or local law is protectionist, directly discriminates against interstate commerce preventing free flow of goods or services, in nature it is per se invalid. 

If a law discriminates on its face, in its purpose or in its effects the burden is on the state to demonstrate that the law serves a legitimate local or state interest and there is no less restrictive alternative available. 

If a law is non-discriminatory it can be scrutinized under the DCC if it imposes significant burdens on interstate commerce, in which the state or local must prove the benefits outweigh the burdens. 

Dormant Commerce Clause Cases

Protectionist: 

Creamery v. MA (fluid milk): protectionist = invalid

Face: 

City of Philly v. NJ (solid waste): invalid

Purpose or Effects: 

WA Apple (NC said no grade but US std.): invalid

Exxon v. MD (gas stations): valid

Nondiscriminatory:

State of MN v. Clover (ban plastic milk jugs)

Dean Milk v. Madison (survey milk 5 w/in 5 miles): invalid

Pike (cantoloupes): invalid

National Pork (humane pork): valid

Dormant Commerce Clause Exceptions

If Congress has explicitly authorized the state’s action through their power to regulate through Commerce clause then DCC not apply.  If a state or local law favors their own interest when acting as a market participant, not a regulator, then DCC not apply.  Western Life Insurance (CA code taxing out of state insurance doing business in CA): valid state law Reeves (SD cement): valid, market participant  South Central Timber v. AK (sell timber + req manufacture within AK): invalid downstream effects

Privileges & Immunities Clause

The Privileges & Immunities Clause of Article IV Section 2 protects US citizens from discrimination by states against out-of-residents, particularly in regard to fundamental rights or important economic opportunities.  States may discriminate against out of staters if there is a substantial reason for the discrimination and the means used are substantially related to achieving a legitimate state objective. (Piper- NH bar admissions, law invalid)  Toomer (SC shrimping, higher fee for out-of-staters): invalid Camden v. Mayor (hire % of Camden workers): applies to cities Baldwin v. MT (elk license): valid b/c recreational

Equal Protection – Incorporation Doctrine

If state or local governments are doing something, then the claim can be brought under the 14th amendment. If the federal government is doing something, the claim must be brought under the 5th amendment due process clause, which reverse incorporates the Equal Protection Clause from the 14th amendment.

State Action Doctrine

This only applies to government action except when (1) it is a public function (e.g. private company running a govt prison) or (2) entanglement.  ex) Lockheed Martin running private prisons

Suspect Class/Classification Factors

To determine the appropriate level of scrutiny, the court will examine (1) the history of discrimination against the group, (2) relative political powerlessness of the group (3) the immutability of the trait, (4) and the irrelevance of the trait to individual ability.  Frontiero (female servicemen claim spouse as dependent)

Strict Scrutiny

Under strict scrutiny, the ends must be actually compelling and the fit of the means to the ends must be necessary/narrowly tailored. Here, the government has the burden of proof.  For race, the compelling ends must be to either remedy past discrimination or prevent prison race riots.  **race Loving v. Virginia → interracial marriage Korematsu → japanese internment camps Brown v. Board of Education Students for Fair Admissions v. Harvard

Intermediate Scrutiny

Under intermediate scrutiny, the ends must be actually important, and the fit of the means to the ends must be substantially related. Here, the government has the burden of proof.  **sex VMI (school for boys not admit girls)

Rational basis

Under rational basis, the ends must be legitimate, and the fit of the means to the ends must be rationally related.  WA v. Davis (PO test) McClesky v. Kemp (death penalty more likely on POC kill white person) Palmer (pools)

Facial Racial/Intentional/Express

If the language of the law is discriminatory on its face or intent, then it is subject to strict scrutiny. The government has the burden of proving that there were compelling ends that were necessary or narrowly tailored means.

Disparate Impact

If merely disparate impact of any type of discrimination, the court will use rational basis, unless the plaintiff also proves intentional using the evidence types listed in Arlington Heights: (1) disparate impact, (2) otherwise unexplainable pattern, (3) historical background, (4) sequence of events, (5) procedural or substantive departures, (6) legislative and administrative record. If the plaintiff successfully proves discrimination was intentional, then use level of scrutiny for facial/intentional of that type.  Challenger has the burden of proving disparate impact.  Feeny (VA preference): intent standard

What can universities committed to diversity do? – Before Admissions

Before the admissions decision process, universities may still articulate their mission to achieve diversity.

SFFA

What can universities committed to diversity do? – During Admissions

During the admissions decisions process, universities should refine their practices for holistic review of each individual’s experiences, values, character etc. Although applicants cannot be required to reveal their race, applicants may choose to reveal their race provided it is tied to how it impacted their lives.  SFFA

What can universities committed to diversity do? – After admissions

After admissions, universities may provide programs to support diversity, equity, inclusion, although these students should be open to all students. Teaching and learning about race is still allowed.  SFFA

Footnote 4

If the discrimination is against a discrete or insolar group, then strict scrutiny applies.

Remedy for racial discrimination

There is no remedy for generalized discrimination. The remedy must target specific discrimination, like past discrimination by the government, or preventing prison race riots.  SFFA

Remedy for sex discrimination

Unlike race, sex discrimination can be remedied generally.  VMI  Califano v. Webster (women remove lowest paying job for benefits): directly compensate women for past economic discrimination

Discrimination Based on Citizenship

EPC says “no person shall be denied equal protection of the laws.” There is no mention of the word “citizen”, the word person extends to lawfully admitted resident aliens as well as citizens. Graham  Classifications based on alienage, nationality or race, are inherently suspect thus given close judicial scrutiny. Graham  Graham (state preventing welfare based on citizenship)

Discrimination Based on Citizenship- Government Actor Split

If a state is discriminating based on citizenship then the Supreme Court will apply strict scrutiny. Graham  If there is a federal agency that does not have the authority nor is it related to immigration but is imposing a discriminatory law based on citizenship then the Supreme Court will apply strict scrutiny. Hampton v. Wong If there is a federal agency whose purpose is related to immigration, ICE or Department of Homeland, then the Supreme Court will apply rational basis.  If Congress passes legislation, under their authority from Article 1, then the Supreme Court will apply rational basis. Diaz  If the President is enforcing or directing an agency to implement a law regarding immigration then the Supreme Court will apply rational basis. Trump v. Hawaii

Discrimination Based on Children

If there is discrimination based on a child being undocumented then the Supreme Court was not clear which level of scrutiny but it can be implied that intermediate scrutiny were to be given.   Plyer v. Doe (state law denying using state funds for undocumented children) If there is discrimination based on a non martial child then the Supreme Court will apply intermediate scrutiny on a case by case basis.

Discrimination Based on Age

If there is discrimination based on age then the Supreme Court will apply rational basis.  MA Board of Retirement v. Murgia (force 50 y/o retire as PO) Vance (fed law retirement for FSRS at 60)      both upheld

Discrimination Based on Disability

If there is discrimination based on disability then the Supreme Court will apply rational basis.  City v. Cleburne (required additional permitting for mentally disabled house)

Discrimination Based on Wealth/Poverty

If there is discrimination based on poverty or wealth then the Supreme Court will apply rational basis.  San Antonio School District v. Rodriguez → poverty is not a suspect class US Dept of Ag v. Moreno (denied food stamps to any household with nonrelatives)

Discrimination Based on Sexual Orientation

The Supreme Court has avoided and refused to address what level of scrutiny should be applied when there is discrimination based on sexual orientation. The only case that touched upon the level of scrutiny is Romer v. Evans, where the court held that Colorado failed the rational basis test.  Romer v. Evans (CO Amd 2 struck down local antidiscrimination laws based on sexual orientation)

Congressional Authority to Enforce EP

If Congress notices governmental violation of the Fourteenth Amendment EPC (or other violations of Liberty protected under 14A DPC which incorporates all BOR but 3,5,7) then Congress may use Section 5 of 14A power to remedy or deter such governmental violations.