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Constitutional Law I
Santa Clara University School of Law
Sloss, David L.

Constitutional Law I Outline
Fall 2013 – Sloss
Congress – Courts – President – States – Private Sphere
Popular Sovereignty – power in citizens
Legislative Primacy vs. Judicial Primacy
Lex Superior – higher law wins
Lex Posterior – latest law wins
Lex Specialis – specific law takes precedent over more general laws
* Strict Scrutiny | Requires Compelling Government Interest | Narrowly Tailored (least restrictive means) → government usually loses
* Intermediate Scrutiny | Requires an Important Government Interest | Substantially Related
* Rational Basis | Requires a Legitimate Government Interest | Rationally Related → government usually wins
Sources of Constitutional Interpretation
– Textual
– Original Understanding
– Constitutional Structure
– Precedent (including both judicial precedent and ‘political branch precedent’)
– International and/or policy considerations
– Practical consequences and/or policy considerations
Article I – make-up and powers of Congress
– Section 8 – Enumerated powers of Congress
– Section 9 – Slave Trade
– Section 10 – Limits on States
Article II – powers of President
Article III – powers of Judiciary
– Madisonian Compromise – Supreme Court for federal laws
Article IV – Full Faith and Credit
Article V – Amending the Constitution
Article VI – Supremacy Clause
Article VII – Ratification with nine states
Judicial Review (Court’s review of other branches of government)
– Article VI Section 2 – Supremacy Clause
– Article III Section 2 – All cases arising under the Constitution
– Judicial Independence – Court may decide for itself what the Constitution means
– Judicial Supremacy – Court’s interpretation is binding on other branches
Marbury v. Madison (pg 26)
– ‘It is emphatically the province and duty of the judicial department to say what the law is’
– statute allows writs of mandamus → statute is unconstitutional because it expands the Court’s original jurisdiction.
– Constitution is supreme: (i) written thus important and (ii) popular sovereignty
Cooper v. Aaron (pg 35)
– Court’s interpretation is binding on other branches
Ex Parte McCardle (pg 38)
– Congress is empowered by express words to limit the Court’s appellate jurisdiction
U.S. v. Klein (pg 40)
– Congress cannot prescribe how the Court decides issues of fact
Advisory Opinions (circumstances where the Court would not make a final decision)
Hayburn’s Case (pg 46)
– Court must make the final decision (cannot be subject to review by other branches)
Flast v. Cohen (pg 46)
– Court requires a ‘case’ or ‘controversy’ for review
– Moving party must allege that Congress acted beyond the scope of a particular constitutional provision. Insufficient to allege spending beyond the powers delegated under Art. I, Section: 8 of the Constitution.
→ Mootness (too late – issue no longer present)
→ Ripeness (too early – issue not fleshed out yet)
– 3 Constitutional Requirements: i) Injury ii) Causation iii) Redressability
– 2 Prudential Requirements: i) No generalized grievances ii) No 3rd party standing
→ “injury in fact,” “concrete and particular,” “actual and imminent”
Warth v. Seldin (pg 49)
– increased requirements for standing (prudential)
— “but for” causation
— favorable decision by the Court will address the injury sustained
– minority – reasonable probability vs. substantial probability
Village of Arlington Heights v. Metro (pg 55)
– standing for individual with specific injury
Sierra Club v. Morton (pg 55)
– club does not have standing unless at least one member has specific injury
U.S. v. SCRAP (pg 55)
– Association had standing when members could show specific injury
Simon v. Eastern Kentucky Welfare (pg 56)
– Plaintiffs could not show adequate causation (substantial likelihood of desired result)
Allen v. Wright (pg 56)
– Black school children could not show adequate causation for IRS tax exemption
Associated General Contractors v. City of Jacksonville (pg 56)
– In Equal Protection cases, the injury in fact is the inability to compete on equal footing
U.S. v. Hays (pg 57)
– Plaintiffs did not suffer racial discrimination and therefore did not have individualized harm
Texas v. Lesage (pg 57)
– Race-conscious programs are under equal protection analysis
Lujan v. Defenders of Wildlife (pg 57)
– Plaintiffs do not have standing because future injury was too speculative
– FOUR FACTOR TEST – Standing:
— 1) the actual or likelihood of an injury in fact
— 2) whether the injury is sufficiently concrete and individually affects the plaintiff
— 3) whether the challenged action is the “cause in fact” of the injury
— 4) whether the Court will be able to redress the injury with its decision.
– Congress cannot expand standing in non-specific terms (possibly with explicit intent)
Mass. v. E.P.A. (pg 60)
– Mass. has standing to challenge EPA regulation as a quasi-sovereign authority
Political Question
Six factors to consider:
i) textually demonstrable Constitutional commitment of the issue to a coordinate political department
ii) lack of judicially discernible and manageable standards for resolving
iii) impossible for court to undertake independent resolution without a lack of respect
iv) unusual need for unquestioning adherence to a political decision
v) potential for embarrassment from multifarious pronouncements
vi) impossible to decide without an initial policy determination of the kind clearly for non-judicial discretion
Baker v. Carr (pg 61)
– political question is primarily a function of separation of powers
Powell v. McCormack (pg 63)
– Elected congressional representative may bring suit for being excluded from the House by a House resolution because he met the Constitutional requirements
– Congress has the power to punish its members’ behavior, and expel but it does not have the Constitutional power to exclude or deny entrance.
Nixon v. U.S. (pg 65)
– Senate can impeach through committee
– The Senate Impeachment Clause in the Constitution makes clear that “the Senate shall have sole power to try all Impeachments”
Zivotofsky v. Clinton (pg 69)
– Determination of a statute’s validity is not a political question, even if it has political implications
→ restrict President to ‘protect’ Congress
– Aggrandizement – take more power than given
– Encroachment – take power given to another branch
– Congress may delegate duties if they give “intelligible principles” (i.e., guidelines)
Clinton v. City of New York (pg 258)
→ majority – edits and repeals statutes (non-delegatable)
→ minority – discretion to apply spending
– Line Item Veto Act affects future acts (i.e., changes the default rule)
→ restrict President to ‘protect’ Congress
– While the Court acknowledged that the Constitution didn’t specifically ban a line-item veto, it argued that it should construe “constitutional silence on this profoundly important issue as equivalent to an express prohibition.”
I.N.S. v. Chadha (pg 266)
– Legislative Veto – legislature delegates power, but retains the ability to overrule a decision
– Act allows the House to

l as consular, diplomatic and foreign affairs officers to help in his decision.
Belmont and Pink (pg 233)
– Unilateral executive agreements trump state law
Dames & Moore v. Regan (pg 233)
– termination of claims in court (seizure of assets without congressional approval)
– in the ‘twilight zone’ and previous acts show Congress’ implicit approval
The Prize Cases (pg 234)
– the President has the ability to take action when attacked
Mora v. McNamara (pg 236)
– Whether or not Vietnam was an “unconstitutional” war was never decided.
– The lower courts generally ruled that the issue was nonjusticiable.
War on Terror
Hamdi v. Rumsfeld (pg 238)
– Due process demands that a citizen held in the US as an enemy combatant be given a meaningful opportunity to contest the basis for detention before a neutral decisionmaker
– Mathews test: weigh i) private interest, ii) government’s asserted interest, iii) risk of erroneous deprivation, iv) additional or substitute safeguards
– Scalia – either prosecute, suspend the writ of habeus corpus, or let him go
– Souter – AUMF does not authorize detention of people not involved in 9/11
– O’connor – authorization is implied by AUMF
– Thomas – judiciary is unequipped to review these matters
Boumediene v. Bush (pg 248)
– Guantanamo Bay is essentially American soil; therefore the Constitution and all of its protections still apply
– Kennedy
— habeus corpus is extremely important
— factual analysis of i) citizenship of detainee, ii) adequacy of process, iii) nature of site where detention took place, iv) practical obstacles to trial
— no precedent in history
– Scalia
— habeus corpus does not apply to non-citizens outside the US
— Constitution is for domestic situations only (shown by history)
Privileges and Immunities
Pre-Civil War
Calder v. Bull (pg 297)
– Justice Chase – need to protect ‘natural rights’ (i.e., unenumerated rights)
– Justice Iredell – too much judicial power in protecting ‘natural rights’
Corfield v. Coryell (pg 299)
– The Privileges and Immunities Clause guarantees to each person only those rights that are essential to citizenship
– oyster farming is not a fundamental right (enjoyed by citizens as tenants in common)
Paul v. Virginia (pg 300)
– a corporation is not a citizen within the meaning of the Privileges and Immunities Clause
– special privileges must be enjoyed at home, unless the assent of other States to their enjoyment therein be given
Incorporation Doctrine
– Some Bill of Rights amendments are incorporated under the due process clause of the 14th Amendment
— increases judicial power over the States
— increases private sphere power over the States
Barron v. Mayor of Baltimore (pg 300)
– Bill of Rights were ‘intended solely as imitations on the exercise of power’ by the federal government
Slaughter-House Cases (pg 300)