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Constitutional Law I
University of Alabama School of Law
Horwitz, Paul

Constitutional Law Mini-Outline
The University of Alabama school of law
Professor Horwitz
Spring 2011
Justiciability Doctrines
Advisory Opinions
·         Is there an actual dispute between adverse litigants?
·         Is there a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect?
·         Are the constitutional requirements for standing met?
o   Is there an injury in fact?
§  Is the injury concrete and particularized?
§  Is the injury actual/imminent, not conjectural or hypothetical?
§  Lujan v. Defenders of Wildlife: The ∏s challenged the federal government policy that decreased protection of environmental protection to certain federal lands. Two members of the National Wildlife Federation submitted affidavits that they used land “in the vicinity” of that which was reclassified and that the increased mining activity would destroy the area’s natural beauty. The Supreme Court said that this allegation was too general to establish a particular injury. Therefore, the ∏s failed to meet the injury requirement of standing.
§  Massachusetts v. EPA: Massachusetts asked the EPA to regulate carbon dioxide emissions and other gases that contribute to global warming on new motor vehicles. The State argued that the EPA was required to regulate these gases under the Clean Air Act. The EPA claimed the Clean Air Act did not authorize them to regulate greenhouse gas emissions. Further, the EPA argued that even if it had the authority, it had discretion to defer a decision. The Court determined that Massachusetts had standing to sue because of the potential effects the emissions could have to the coastline and the duty the state had to protect their citizens.
o   Is the injury traceable to the defendant’s conduct?
§  The ∏ must allege that the ∆’s conduct caused the harm.
o   Would a favorable federal court decision redress the injury?
§  The ∏ must allege that a Court decision in their favor would remedy the injury.
·         Are there any issues that would lead the Court to decide that making a decision on the issue, although constitutional, would be unwise? In other words, does the ∏ meet prudential standing requirements?
o   Is the suit based on a generalized grievance?
§  Prevents individuals from suing if their only injury is as a citizen or as a taxpayer concerned with having the government follow the law. A generalized grievance is one in which the harm is shared equally by all or a large class of citizens.
o   Is the plaintiff a third party?
§  A party can only assert his/her own rights and cannot raise the claims of a third party who is not before the Court.
§  Exceptions –
·         Where the third party is unlikely to be able to sue: A person may assert the rights of a third party not before the court if there are substantial obstacles to the third party asserting his or her own rights and if there is reason to believe that the advocate will effectively represent the interests of the third party.
·         Close Relationship between the Plaintiff and Third Party: An individual can assert the rights of third parties where there is a close relationship between the advocate and the third party. Usually this is found where the individual seeking standing is part of the third party’s constitutionally protected activity.
·         The Overbreadth Doctrine: An exception to the general prohibition that a person can argue only that a statute is unconstitutional as it is applied to third parties. This doctrine permits a person to challenge a statute on the ground that it violates the 1st Amendment rights of third parties not before the Court, even though the law is constitutional as applied to that defendant. In other words, it provides that given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the Court.
·         Standing for Associations: An association or organization can sue based on injuries to itself or based on injuries to its members.
o   Is the plaintiff within the “zone of interests” protected by the statute?
§  The ∏ seeking standing must be within the zone of interests protected by the statute in question. The ∏ must allege that the interest sought to be protected by the complainant is within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.
·         This doctrine seeks to separate matters that are premature for review, because the injury is speculative and never may occur, from those cases that are appropriate for federal court actions.
·         The Court will look at two considerations to determine if a suit is ripe:
o   The hardship to the parties of withholding court consideration.
o   The fitness of the issues for judicial decisions. The case should include an actual factual record. 
·         An actual controversy must be in existence at all stages of the Court’s review.
o   Exceptions –
§  Collateral Consequences: A case will not be found to be moot, even if the primary injury does not exist throughout the trial and is resolved, when a sec

r, taking all the activity in the aggregate, it would have been rational for Congress to find a substantial effect on interstate commerce; or whether the activity is non-commercial in nature, in which case a reviewing court would examine the additional factors described in Lopez, Morrison, and Raich.
o   Channels of Interstate Commerce
o   Instrumentalities (or People/Things) in Interstate Commerce
§  Heart of Atlanta v. United States: Having observed that 75% of the Heart of Atlanta Motel's clientele came from out-of-state, and that it was strategically located near Interstates 75 and 85 as well as two major U.S. Highways, the Court found that the business clearly affected interstate commerce and, thus, was within Congress’s commerce power reach.
o   Activities that have a substantial affect on interstate commerce –
§  Economic Activities – Activities that can be aggregated, so that even if an individual instance of an activity does not affect interstate commerce, it can regulated if that type of activity in the aggregate affects interstate commerce. The Court will defer to Congress’s judgment.
§  Noneconomic Activities – Congress cannot regulate noneconomic activities based solely on that conduct’s aggregate affect on interstate commerce.
·         U.S. v. Lopez: The Court struck down a federal law that made it a crime for any individual to knowingly possess a firearm in a school zone. Since gun possession near schools is not commercial nor an activity that substantially affects interstate commerce, and since no jurisdictional nexus connecting gun possession to interstate commerce was expressed in the language of the statute, the majority held that Congress was acting beyond the limits of the Commerce Power.
·         U.S. v. Morrison: Where Congress seeks to regulate conduct that is not economic or commercial in nature, it cannot rely on the conduct’s aggregate effect on interstate commerce. In this case, the Court rejected an argument that the Violence Against Women Act could be sustained if assaults on women have an aggregate impact on interstate commerce that is substantial.