I. Attack Sheet
Bases for upholding a federal law:
· Ennumerated powers of Congress (Art I § 8)
· Spending clause
· Commerce clause
· P&I clause of the 14th amendment
· Federal property power
Bases for overturning a federal law:
· Anti-commandeering principle
· Non-delegation principle
· Takings clause
Bases for upholding a state law – Police power (any health, safety, welfare, morals, aesthetic interest)
Bases for overturning a state law
· Supremacy clause (if there is a conflicting federal law)
· contracts clause (economic due process)
· dormant commerce clause
· P&I clause of Art. IV?
· SDP clause of the 14th amendment
· takings clause
Justiciability – First do ripeness & mootness, then standing. Standing is only an issue once ripeness and mootness have been satisfied. BUT ALWAYS ESTABLISH STANDING!
Hierarchy of laws
· Treaties and acts of Congress (tie) – If there is a conflict between a treaty and an act of Congress, the most recent prevails.
· Executive agreements and executive orders
· Executive agreements – Informal means by which the president may conduct day-to-day economic and business transactions with foreign countries. Senate consent is not required.
· Executive orders – Deal with domestic policy
· State laws
Standards of review
· Rational basis – The law is upheld if it is rationally related to a legitimate government purpose; upheld unless it can be shown that it serves no conceivable legitimate purpose or is not a reasonable way to attain the end.
· Strict scrutiny – The law will be upheld only if it is necessary to achieve a compelling government purpose. Upheld only if the government’s purpose is vital/compelling, and the law is the least restrictive way to accomplish it.
Type of Claim
Standard of review
State interest (ends)
Relationship to law (means)
substantial effects (not means/ends)
state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.
state regulation must be reasonably related to goal of persuading woman to choose childbirth over abortion
dormant commerce clause – discrimination against out-of-state interests
the only means necessary
DP – substantive economic interests
DP – substantive non-economic fundamental rights
narrowly tailored, AKA tight fit, AKA necessary
(broader than rational basis; liberty interest is balanced against state interest)
rationally related with bite (Lawrence)
DP – substantive non-economic non-fundamental rights
II. Powers of the National (Federal) Government
A. Judicial Powers
1. Judicial review and Supreme Court authority (CB 2-21, 26-29)
a) Marbury v. Madison (p. 3) – SCOTUS has the power, implied from Art. VI § 2, to review acts of Congress and if they are found repugnant to the Constitution, to declare them void.
b) Cooper v. Aaron (p. 26) – SCOTUS’s implied power extended to review acts of States
2. The “political question” doctrine (PQD) (CB 31-48)
a) concerns subject matter of dispute; there are certain questions that are political in nature and shouldn’t be decided by the court
b) 6 traditional political question issues from Baker v. Carr (p. 32, 35):
(1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department” – the Constitution has explicitly vested the question in the executive or legislative branches
(2) “a lack of judicially discoverable and manageable standards for resolving it”
(3) “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion”
(4) “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government”
(5) “an unusual need for unquestioning adherence to a political decision already made”
(6) “the potentiality of embarrassment from multifarious pronouncements by various departments on one question”
c) prudential concern – resolution of issues ought to be avoided where they are too controversial or could produce enforcement problems or other institutional difficulties
d) Categories of cases:
(1) elections & reapportionment – court has almost always held that cases dealing w/ the
(b) Exception: If the issue is capable of repetition yet evading review, the case may be brought by the same plaintiff or any member of the class (eg: Roe v. Wade)
(2) In order to be ripe, there must be a genuine, immediate threat of harm.
(a) Eg: challenge to law banning use of contraceptives that had not been enforced for 3 decades was not ripe because threat of harm was not genuine and immediate.
(b) Courts argue that unripe cases should not be tried because future events will sharpen and define the legal issues. Plaintiff argues that he will suffer serious hardship if immediate review is denied.
d) Standing (CB 51, 56-69) – must be a particular legal grievance; constitutional requirements and also prudential concerns
(1) constitutional standard – imposed by case & controversy requirement of Art. III § 2.
(2) requirements imposed by case law (Lujan v. Defenders of Wildlife, p. 56)
(a) injury in fact – injury must be “concrete and particularized,” “actual or imminent, not ‘conjectural’ or ‘hypothetical’”
(i) the party seeking review must himself be among the injured. generalized grievances not allowed because it “transfer[s] from the President to the courts the Chief Executive’s most important constitional duty, to ‘take Care that the Laws be faithfully executed.’” (Lujan, p. 60)
(ii) usually economic, but can also be aesthetic or environmental (Friends of the Earth v. Laidlaw, p. 62). Courts are usually liberal on this point.
(iii) opportunity-type harms – In affirmative action cases, courts have considered the denial of the opportunity to compete on an equal, race-neutral footing as a valid injury in fact. (Regents of Univ. of Cal. v. Bakke)
(iv) when Congresspersons have standing – see Raines v. Byrd (congressmen challenging line item veto) and Department of Commerce v. United States House of Representatives (challenge to proposal to use statistical sampling for the census) pages 67-69