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Constitutional Law I
Rutgers University, Newark School of Law
Bell, Bernard W.

Constitutional law Bell Spring 2011
Constitutional Law Checklist

Justiciability: Limitations on Federal Jurisdiction
A.            Mootness:
1.             Real controversy must exist at all stages of review, not just when filed.  Ordinarily moot case are dismissed, HOWEVER;
a.             Note:  Supreme Court will hear cases, although it has become moot, if the injury is capable of repetition, yet evades review.  Something about the facts will not last long enough for final adjudication. (Example, women challenges restriction of abortion)
B.            Ripeness:
1.             Case must involve a specific harm or immediate threat of harm.   There must be a live dispute, no remote possibility of a future dispute. 
C.            Case & Controversy:
1.             Art III requires that the Federal Courts not render advisory opinions.  It requires a genuine case or controversy.
2.             The case must not be hypothetical or academic.  Must be definite and concrete dispute between genuinely adverse parties.
D.            Standing:
2.             Requirements:
a.             Concrete injury (not hypothetical)
b.             Causation: Injury is fairly traceable to the gov action being challenged.
c.             Redressability: Focus on the relationship betw the injury and the remedy, separation of powers problem?
3. Prudential principles      
Third Party Rights:
a.             Generally, no standing to assert the rights of a third party.
b.             Exception: Court allows the rights of third parties to be raised when there is significant relationship between the plaintiff and the 3rd party.  Examples, vendor/vendee or doctor/patient.
Craig v. Boren:   Alcohol vendor.  When there is a link between the right of one party and the interest of the absent 3rd party, a party may raise suit to protect their own right and the absent 3rd party. 
Griswold v. CT: Doctor/Patient
c.             Must meet the other standing requirements.
4.             Federal Legislation:
a.             Citizen-Suits: (Congress gives citizens the rights to bring an action v. Govt.)
(1)     A generalized grievance that some injury might occur in the future is too remote.
b.             Tax-Payer Suits:
(1)           Generally, each taxpayer has too small an interest in any particular expenditure to assert standing.  
(2)           Exception: (Suit against Establishment Clause, which specifically prohibits the expenditure of tax money) 
(3)           Double link text of taxpayer standing:
(a)           Challenged enactment is an exercise of the taxing and spending power
(b)           Challenged enactment offends a specific limitation on the taxing and spending power.
E.            Political Question:
Baker v. Carr Test                              
1)       A “textually demonstrable” constitutional commitment of the issue to the political branches;
2)       Lack of manageable standards for judicial resolution;
3)       Impossibility of a court's undertaking resolution without expressing lack of the respect due coordinate branches of government;
4)       Difficulty or impossibility of devising effective judicial remedies.
5)       An unusual need for unquestioning adherence to a political decision already made.
6)       Potentiality of embarrassment for multifarious pronouncements by various depts on 1 question.

F.             Exceptions and Regulations Clause
Art. III Sec. 2 Clause 2 – Congress has the power to regulate and limit the appellate jurisdiction of    
1.             Ex Parte McCardle – Congress has power to limit SC’s appellate jurisdiction.  Subject to three loopholes:
a.             Congress may not eliminate ALL avenues for SC review.
b.             Congress may eliminate SC power to review certain cases, but jurisdiction must remain in some lower fed ct.
c.             If Congress denied all SC review of an alleged violation of con rights, this violates DP.
d.             US v. Klein
G.            The 11th Amendment
1.             Sovereign immunity provision (withdraws jurisdiction where a state is named a party)
H.            Prudential Grounds
1.             SC has great discretion, besides those with original jurisdiction, there are really no cases the SC must hear. – reviews by writ of certiorari or certification from a court of appeals
I.             Political Question: (Issue should be left to the other branches)
Only applies when there is a dispute between judiciary and another branch of government (not judiciary and state).
1.             Textually Demonstrable Commitment:
Constitution delegates certain powers to the three branches of government.  Examine whether issue is specifically found in Constitution.
(a)           Powell v. Mc Cormick: House refused to seat plaintiff.  Article 1 §5 sets out qualifications.  Court held Constitution defines membership, House doesn’t have power to add to list in Constitution. 
(b)           Nixon v. United States: Court held that the Senate is the only arbiter in impeachments and if they decide to start with a committee procedure then that is their power.
2.             Lack of Judicially Manageable Standards:
Things that are outside of the expertise of the courts.
3.             Prudential Concerns: 
Risk of confusion/embarrassment re: separation of powers.  Afraid to have multiple pronouncements on an issue that might embarrass the government of the U.S.
4. Need for finality in the action
5. Difficulty or impossibility to devising effective judicial remedies.
6. An unusual need for unquestioning adherence to a political decision made.

Taxing & Spending Power
A.                  Art. I Sec. 8 – Congress has power to tax, pay debts & provide for common defense and gen. welfare.
4 part test
1.             Spending and taxing functions must be in pursuit of general welfare.
2.             If Congress wants to condition states to do something before receiving fed $, must do so unambiguously and openly.
3.             Must be relevant to a federal interest.
4.             There must be no independent constitutional bar to the conditions of the grant.

Page 6    Commerce Clause (testing the validity of a federal statute)
A.            Theories of CC
1)       Gatekeeping/Commerce Prohibiting – attaching power to some movement (dynamic)
1.       Federal “Police Power”- plenary power includes power to exclude from shipment or travel in channels of interstate commerce
2.       Goods harmful to IC itself (harmful to public health, safety, welfare or morals (ie diseased animals)
3.       Commercial Items (lottery tix or goods produced under substandard conditions, mis-branded prods)
4.       Non-commercial Items (items that constitute an illegal activity- stolen goods, persons fleeing prosecution or persons kidnapping others)
5.       Regulation after IC “ends”- broad enough to allow regulation even after IC ended
2)       Affect on Commerce – may reach anything that affects commerce (static)
1.       Congressional findings- If Congress made findings that activity in question affects more than one state, Ct gives great deference
2.       Volume of commerce affected- Congress may regulate any business or individual, no matter how small impact on IC, as long as there is aggregate effect on other states by class of activities regulated.
3.       LIMITS- Congress may not regulate activities that (1) are completely internal to a single state or (2) so remotely affect other states that to uphold congressional regulation would obliterate federalism.
4 Factors: Morrison
1.       Congress regulating something demonstrably economic
2.       Jurisdictional requirement – is there an explicit connection to IC
3.       Leg. findings subject to review by Ct.
4.       substantial link between activity and IC

B.                  Modern Commerce Power
1.             Standard of Review         a. Rational basis:
(If the court can find or even hypothesize a legislative purpose, then it will be upheld as a rational regulation on interstate commerce.)
2.             If the activity has a substantial effect on interstate commerce, whether direct or indirect, it can be reached by Congress. 
a.             Aggregation of trivial amounts can = substantial effect.  Wickard
(1)           Heart of Atlanta Motel v. United States: (Defendant refused to serve black patrons) Effect is judged on the aggregate all people in same situation.
(2)           Katzenback v. McClung: (Ollies Barbeque refused to serve blacks.)  Aggregate theory: if we allow defendant to discriminate, everyone will discriminate, and this will effect interstate commerce.  (Even if defendant’s business would be hurt, if the court can find a rational basis for a regulation, our investigation is at an end).

Dormant Co

                             Substantive Due Process – used to protect the fundamental rights of all persons, not just citizens like P&I.
1.                   Socio-economic regulation
a.       Standard of Review – Old View – legislation unreasonably interfered w/ “liberty” (right to K) and “property” interests protected by DP clause
(1)           Lochner – active judicial review 
(2)           Modern / Post  Lochner –  Rational basis
Statute must have a reasonable relationship to the public goal and must not be arbitrary or discriminatory.    Defers to legislative judgments in re: economic/ social regs unless they are demonstrably arbitrary or irrational
(3)           Carolene Products – introduces different standards of review depending on different issues the statue addresses.  
.               Contract Impairment Clause (Art 1, Sec 10)
a.       “No state shall pass any law impairing obligation of K’s”
b.       Direct means of achieving what they did in Lochner. 
c.        MODERN TREND:  If a state substantially impairs a contractual relationship, must have significant and legit purpose.
d.       Standard of Review – Heightened Scrutiny
e.        Only applies to K’s already entered into.

Takings Clause (5th amendment)
a.               Pvt property is not to be taken by fed gov w/o just compensation.
b.             Dolan – Gov needs 1) legitimate public purpose, 2) a connection between the regulation and the furthering of the goal, 3) rough proportionality – there must be a roughly equal relationship between the governmental  imposition and the private interest. 

Fundamental Rights (New Substantive DP) – Personal Liberties
a.             “Implicit in concepts of ordered liberty.” & “is the right implicit in the tradition, norms, or consciences of the people?”
(a)           Examine Judicial decisions, Legislative Acts, & Public Opinion.
b.             Standard of Review – Strict Scrutiny (Carolene Products) – invalid unless found to be necessary to a compelling government interest
(1)           Is there a compelling governmental interest?
(2)           Is the statute narrowly tailored to serve that  interest?

Right of Privacy: 1 Marriage/Family; 2 Procreation; 3 Contraception; 4 Abortion; 5 Rt to refuse medical treatment
c.             Abortion:
(1)           Griswold v. Connecticut: (State banned the use of contraceptives.  Pla is doctor who dispensed contraceptives to patients.)  Established fundamental right to privacy found in 3rd, 4th, & 5th Amendments & 14th Amendments creates a zone or penumbra of rights that are implicit in the Constitution.
(2)           Roe v. Wade: (State statute banned abortions.)  Court established fundamental right to control body.  Compelling governmental interest is mother right and potential life.  Regulation is not narrowly draw, complete ban on abortion.  Viability is the ultimate litmus test.  Adopted trimester framework.
d.             Standard of Review – Intermediate Scrutiny
(1)           Undue Burden (Casey) – should be no undue burden on woman; Does                                                                                                 the regulation pose a Substantial Obstacle
e.             Undue Burden/Abortion:  
(1)           Planned Parenthood v. Casey: (State passed regulations requiring 24 hr. Waiting period, informed consent, and spousal notfication) Court announces undue burden standard, if the regulation poses a substantial obstacle to an abortion, then it will be struck down.  Upheld waiting period and informed consent, struck down spousal notification.