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Constitutional Law I
Santa Clara University School of Law
Epperson, Lia

Epperson Con Law I – Final Outline
·         Basic format reminder: (1) issue heading, (2) rule, (3) analysis, (4) counter, (5) conclusion.
Std of Review
·         In a strict scrutiny review, the burden of proof is on the gov. to show that the challenged action is necessary to advance a compelling gov. interest and is the least restrictive means of achieving that interest.
·         In an intermediate scrutiny review, the burden of proof on gov. to show that the challenged action is substantially related to an important gov. interest that outweighs the interest infringed.
·         In a rational basis review, the burden of proof is on the challenger to show that the challenged action is not rationally related to any government interest.
*Threshold Issues
The justiciability doctrines determine which matters federal courts can hear and decide and which must be dismissed. Specifically, justiciability includes the prohibition against advisory opinions, standing, ripeness, mootness, and the political question doctrine. Here, no…question as stated in facts, the issue is … Article III, Section 2 defines the federal judicial power in terms of “cases” and “controversies.” The constitution requirement requires injury in fact (real and imminent), causation, and redressability. Here, …appears to be… since the injury is …, the injury …fairly traced to the statute, and is …likely to be redressed by a favorable decision. Therefore, the …standing.
Although the Constitution permits federal court adjudication, the court has decided that in certain instances wise policy militates against judicial review. Congress by statute, may override prudential, but not constitutional restrictions. Prudence requires no third-party standing, no generalized grievance, and the plaintiff must be within zone of interest. Here, …
·         Prohibition Against Advisory Opinions:There must be an actual dispute between adverse litigants and a substantial likelihood that a fed. ct. decision in favor of a claimant will bring about some change or have some effect.
·         Political Question:In Baker v. Carr, the court stated in detail when a case is a political question. The court CANNOT hear cases: (1) where there is a textually or structurally demonstrable constitutional commitment of that issue to another branch of government, (2) where there is a lack of judicially manageable standards, or (3) for prudential reasons where a resolution of the issue is disrespect, too controversial, embarrass, the court don’t want to get into. i.e. foreign relations, election apportionment, political office holder, ratifying amendment, impeachment.
·         Standing: [reciprocal, last P, each provision] In order for a ct to hear a claim, P must have standing to sue. This includes: injury, causation, and redress.
o        P must have actual or imminent injury. [An organization may assert injury in fact if (1) one of its member can claim injury in fact, (2) the claim is germane to the organization’s purpose, and (3) neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit.] [A state can assert a constitutionally protected injury of sovereignty.] o        P must show causation: P must show that the challenged action was a “but for” cause for injury in the sense that the injury would not have occurred unless the challenged action had taken place.
o        P must show redressability: In order to satisfy redressability, cts. are split on whether a favorable result will “probably” remove the harm is sufficient or whether there must be a virtual certainty of redressability.
o        P must also satisfy prudential requirements
§         No third-party standing: A court is reluctant to grant standing to those who are not a direct party to a dispute; on the other hand, if the person is convicted of prescribing, selling, or giving away contraceptives, in the defense to that action, he may raise the 3rd party rights of the recipients. Eisenstadt v. Baird.
§         No generalized grievance. Generalized grievances are handled by Congress. The purpose of standing is to protect minority interests.
§         No zone of interest: P must be in the zone of interest the applicable statute was meant to protect. If P is not, then no standing to sue. i.e. a man bringing suit under Violence Against Women Act.
·         Mootness: In order for a case to NOT be moot, there must be a live controversy at all times of the ct. proceedings. Exceptions: (1) Wrongs Capable of Repetition Yet Evading Review; (2) Voluntary Cessation
(1) Some injuries occur and are over so quickly that they always will be moot before the federal court litigation process is completed. When such injuries are likely to recur, the federal court may continue to exercise jurisdiction over the plaintiff’s claim notwithstanding the fact that it has become moot such as Roe v. Wade.
(2) A case is not to be dismissed as moot if the defendant voluntarily ceases the allegedly improper behavior but is free to return to it at any time. Only if there is no reasonable chance that the defendant could resume the offending behavior is a case deemed moot on the basis of voluntary cessation.
o        Collateral consequence: a continuing collateral consequence to the original injury can maintain a live controversy.
o        Capable of Repetition: If the controversy is capable of repetition yet evading review, a case which is ostensibly moot will nonetheless be heard. The case must satisfy two elements: (1) the challenged conduct is “too short to be fully litigated prior to its cessation or expiration” and (2) the parties reasonably expect that the “same controversy will recur involving the same complaining party.”
·         Ripeness: A case will be regarded as not yet ripe (and therefore not yet justiciable) if it has not yet become sufficiently concrete to be worthy of adjudication. In order to evaluate this a court will analyze whether there is an imminent harm, whether the claim is mature, and whether law at issue is enforced or implemented.
Other Judicial Powers
·         SC Review of State Ct. The SC can review the constitutionality of a decision by a state’s highest ct (civil or criminal) and cannot adjudicate state ct. decisions on state law — unless it pertains to the constitutionality.
·         Political restraints on federal courts: [Congress against Cts.] o        Article 2, Section 2, Clause 2: Approval of judges: requires the advice and consent of the senate.
o        Article 5: Con

nforcing or implementing federal law (Printz). This is a 10th Amendment question since the statute directly regulate the conduct of state and local governments. First, this is not generally applicable legislation such as in Garcia, that the court excepted from its commandeering analysis in NY and Printz. The state applies to state and local governments alone, and does not regulate the conduct of persons in the private sector. Second, the statute appears to direct states to administer and enforce a federal regulatory program. This is a command; it affords the states and their officers no choice. Thus, it very much looks like an impermissible commandeering.
Counter argument: however, different from NY and Printz, where the states were forced to take actions against third parties according to specific federal instructions. Here, the states are being directed to forward certain information they already have to the federal government. Therefore, it might be distinguishable from both NY and Printz.
·         *Legislative Power over State Actors: Section 5 of the 14th Amendment: Another potential source of legislative power that might justify the statute is Section 5 of the 14th Amendment. Section 5 of the 14th Amendment grants Congress the authority to enact appropriate legislation to enforce the prohibitions of 14th Amendment Section 1. 14th Amendment only applies to government action and therefore cannot be used by Congress to regulate private behavior. Individual invasion of individual rights is not the subject matter of the amendment.
*Tied to individual rights in 14th Amendment, substantive due process
However, there is some evidence here, that the states may have been violating the Due Process Clause. First, the conduct of state could create “undue burden”. Second, the states’ involvement in these threats could amount to an undue burden, or it could create a possible entanglement that would make the private activity essentially government activity for purposes of the state action doctrine. These would potentially create a basis for justifying the statute as Section 5 legislation. However, the Court in Morrison held, a legislation directed at the actions of the private individuals rather than the constitutional violators was not congruent and proportional and thus could not be justified as Section 5 legislation.
[below Jason’s] Where a state actor violates [or omits?] constitutional protections, Congress may apply either (1) remedial legislation [such as damages] or (2) preventative legislation that is both congruent and proportional between the injury to be prevented or remedied