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Flashcards in Doctrinal Tests Deck (36):

Justiciability Doctrines

  1.  Prohibition of Advisory Opinion
  2.  Ripeness
  3.  Mootness
  4.  Political Question
  5.  Standing


Prohibition of Advisory Opinions

Case or controversies that do not include a posture, where the court would simply be giving their opinion


In order for the federal courts to hear the case:
(1) Actual dispute between adverse litigants must exist,
(2) Where a Federal court decision will bring about some impact in the real world 



2 Prong Test - In order for the federal court to hear the case the court will consider the following criteria:  (You can persuasively argue for a sliding scale)

1.  Hardship to the parties by withholding consideration

  • Direct
  • Immediate
  • Likelihood


2. Fitness of the issues for judicial consideration

  • Purely legal issue, suggests ripeness and is more likely to be considere
  •  All parties agreeing to what the issue is, more likely to be considered
  • Sufficient record to make a decision from 


Political Questions

There is a group of cases the court will not adjudicate, that are left to the political process


These are cases where all requirements are met, but the supreme court will not decided because it hinges on a political question



Constitutional Requirements – Standing requires a personal injury fairly traceable to the defendant’s conduct that is likely redressable from a federal court decision

  • Injury – Cannot be abstract, hypothetical, or too speculative
    • Concrete
    • Personally experienced or likely enough to be personally experienced
      • Does not have to be exclusive, Others experiencing the same injury does not preclude relief
  • Causation / Traceability – Injury suffered must stem from the defendant’s wrongful (illegal) conduct (Fairly Traceable)
  • Redressability – The court must be able to provide relief for the actual injury, but does not have to be complete relief (Likely Redressable) 


Congressional Powers

  1. Necessary and Proper Clause
  2. Commerce Clause (Art. I, § 8, Clause 3)
  3. Taxing and Spending Clause  (Art. I, § 8, Clause 1)


Commerce Clause

Regulation of Three Categories:

1. Channels of Interstate Commerce
2. Instrumentalities of Interstate Commerce
3. Activities Effecting Interstate Commerce




Commerce Clause Aggregation Principle

Court allows the aggregation of all factors of the same economic activity to determine if there is a substantial effect on interstate commerce (Class of activity is defined by congress in the statute, i.e., Gonzales and homegrown marijuana as compared to Lopez and violence in schools which isn’t economic)  


Limits of Commerce Clause Power

  • Economic Activity vs. Noneconomic Activity (i.e., Lopez)
  • Substantial Effect (Not just an effect, but can be achieved through aggregation)
  • 10th Amendment – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 
    • Anti-Commandeering Principle (Unstable Doctrine)


Taxing and Spending Power


Taxing & Spending Power is Subject to 5 Limitations: (Deference to Congress)

1. Must be in pursuit of the general welfare
2. Must state conditions clearly and explicitly  (unambiguous)
3. Must be related to federal interests in programs / projects– Germaneness Requirement
4. Must be no other constitutional bar
5. Must comply with the 10th amendment’s anti-commandeering principle

Taxes cannot be excessive such that they constitute a penalty instead of a tax (Substance > Form)


Powers under 14th Amendment, § 5

Limited to State Action


Narrow View: Congress can only prevent and provide remedies under the 14th amendment for rights recognized by the Supreme Court.

Effect –

  1. Congress has to follow the Supreme Court’s lead and legislation must be specifically directed at the action that violates the constitution
  2. Congress cannot interpret the 14th amendment as providing rights that the Court has not yet identified as a constitutional right
  3. Enforcement is Limited to Remedial Legislation
  • Congress’s enforcement role is limited to legislation that is congruent and proportional to the judicially defined constitutional problem at issue (i.e., Calibration between the magnitude of Congress’s remedy and the magnitude of the wrong)


Issues with § 5 of the 14th Amendment 

Underlying Issues –

(1) What does “enforce” mean?

(2) What are the appropriate roles of the Court and Congress in deciding substantive content of rights?

(3) What is the proper allocation of power between the states and the federal government?


Methods of Invalidating State Law

Preemption: Congress has acted and Congress’s legislation preempts the State’s conflicting law through the Supremacy Clause (Art. 6, § 2)


Challenge: Under the Dormant Commerce Clause or Privileges & Immunities Clause



Test: Did Congress intend to preempt state law? (Statutory Construction / Interpretation Issue)


(1) Purpose of the statutory scheme,

(2) History of statutory scheme,

(3) Congressional intent


Preemption Categories

Express Preemption – Laws that contain a clause expressly preempting state and local laws

Implied Preemption – If Congress’s intent can be ascertained, state law can be displaced without an express statement

Field Preemption – Scheme of the federal regulation is so comprehensive and pervasive as to make reasonable the inference that congress has left no room for the states to supplement it.

Subject Matter Inquiry: Is the legislation so detailed of a regulatory scheme that it seems clear Congress manifested intent to be providing the entire array of laws within a particular field?

Conflict Preemption – Compliance with state and federal laws is impossible or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.

Is dual compliance feasible? (Can either be interpreted in such a way?)

Federal Objective (Obstacle) Preemption – Federal and state law are not mutually exclusive and dual compliance is possible, but the intention of state law will impede the achievement of the federal objective.

Court must therefore decide:

(1) What the federal objective is and

(2) the point at which state regulation becomes undue interference.


Dormant Commcerce Clause

Threshold Question: Does the law discriminate or regulate evenhandedly?

Facial Discrimination

Laws that favor instate business or requiring use of in-state businesses
Laws that preserve instate resources for instate use
•Laws that limit access to local markets by out-of-staters

Facially Neutral Law, Look for:

Discriminatory Purpose
Discriminatory Effect

Discriminatory Laws: Subject to Strict Scrutiny (Facially Discriminatory, Discriminatory in Purpose or Discriminatory in Effect)

  1. Legitimate local purpose (i.e., vitally important non-protectionist purpose)
  2. Local purpose could not be served by an alternative less-restrictive non-discriminatory means (i.e., states burden to show the discriminatory law was necessary to serve the state interest)

Non-Discriminatory Laws: Subject to Rational Basis Review (Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental)

  1. Legitimate local purpose
  2. Interest Balancing Test: Local purpose is served rationally related to the means used such that the burdens on interstate commerce are not clearly excessive in relation to the putative local benefits


Dormant Commerce Clause Exception

Congressional Approval: Notion of the power to regulate interstate commerce lies with congress, therefore congress may pass this power to the states, by acting and approving the states to exercise a certain regulatory control over interstate commerce.

  • Squares with Marbury: Congress can give away its own powers without affecting the separation of powers, versus congress attempting to expand the Art. III powers
  • Issue: Identifying the scope of Congressional authorization (Must be within enumerated powers and comply with the state-action requirement if applicable)

Market Participant Exception: A state may favor its own citizens in receiving benefits from government programs or in dealing with state-owned government businesses

  • Issue: Defining the actual market and what that encompasses


Privileges & Immunities Clause


Step 1: Has the state discriminated against out-of-staters with regard to Privileges and Immunities it accords to its own citizens?

  • i.e., Pursuit of Livelihood, Pursuit of a Common Calling, and other Constitutional Rights & Benefits that the Court Protects

Step 2: If Yes, Is there a substantial justification for the discrimination?

Step 3: Is there a substantial relationship between the means employed (state citizenship) and the reason for the law?

  • Do less restrictive means exist?



Facially Non-Discriminatory Laws

  • Privileges & Immunities Clause: There must be facial discrimination
    • Supreme court has never held if a discriminatory impact is sufficient, whereas Dormant Commerce Clause applies to facially neutral and evenhandedly applied regulations where the burden on interstate commerce is too great
      • Make competing arguments either way concerning facially nondiscriminatory laws

Area of Application

  • Commercial: Both Dormant Commerce Clause and Privileges & Immunities Clause Apply
    • Privileges & Immunities Clause – Citizens only (No Business Entities), if related to economic privilege and there must be facial discrimination
    • Dormant Commerce Clause – Citizens, Corporations, Aliens, etc. if related to interstate commerce, discriminatory impact is sufficient
  • Non-Commercial: Only Privileges & Immunities Clause applies when constitutional rights are at stake


  • Privileges & Immunities Clause: No Exceptions
  • Dormant Commerce Clause: (1) Congressional Approval & (2) Market Participant Exception

Level of Scrutiny:

  • Dormant Commerce Clause: Rational Basis Review & Strict Scrutiny depending on whether the law is discriminatory
  • Privileges & Immunities Clause: Substantial Reason & Substantial Relationship
    • Can make a persuasive argument against if there is a different test for nondiscriminatory laws


Federal Executive Power

Youngstown Test for Presidential Authority:

Step 1: Is there congressional authorization? (Is the authorization constitutional?)

Step 2: Apply the test corresponding to the appropriate Jacksonian Zone for the presidential authorization at issue?

Step 3: Rationalize the differences between the different approaches and results to justify one approach over the other

  • i.e., Jackson’s approach allows the court to rationalize the presidential action


Jacksonian Zones of Executive Power

In determining whether the executive has authority, there are three general circumstances:

1. When the President acts pursuant to an express or implied authorization of Congress, the President’s authority is at its greatest.

  • Task for the court is to determine whether the action is within the scope of the authorization and if the authorization is constitutional
    • Strong presumption of validity
    • Presidential Power is at its strongest

2. When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone in which he and Congress may have concurrent authority.

  • When this is the case, the test depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
    • Zone of Twilight (Concurrent Authority): Case-by-case assessment is necessary (Diverging point between Majority & Concurrence)

3. When the President takes measures incompatible with the expressed or implied will of Congress, the authority of the President is at its lowest and subject to judicial review.

  • Only if the following are true, is the authorization valid if the there is (1) presidential constitutional authority in the area and (2) congress must not have constitutional authority 


Appointment and Removal Power

The President has unfettered, exclusive power to remove his appointees without approval from the legislature. This includes both high-ranking officials who act as his “alter ego” and executive officers engaged in other normal duties. Such absolute removal power is a necessary outgrowth of Article II’s grant to the President of general administrative control of those who execute the law.

  • Absolute power unless Congress has limited the power (Congress cannot give itself the power)
    • Congress may limit removal power for offices where:
      • Independence from the presidential whim and political partisanship is desired
        • To what extent do we want the president controlling officers? (i.e., Tenure of Years and Quasi-Judicial / Quasi-Legislative Agencies exist precisely to maintain either an a-political or politically balanced delivery of services)
      • The legislation creating the office only limits removal to instances where good cause shown, but does not prohibit removal


Test for Constitutional Removal Limitations:

 Test for Constitutional Removal Limitations:

  • Does the statutory language in fact limit the president’s removal only to listed reasons?
  • If so, are those limitations constitutional?


Executive Foreign Policy & War Power

(Test for Constitutionality)

Matthews v. Eldridge Balancing Test to evaluate the government’s infringement of a constitutional right:


1.  Private Interest At Stake
2. Government Interest At Stake
3. Risk of Erroneous Deprivation of the Private Interest
4. The Probable Value of Additional Procedural Safeguards


State Action Doctrine

In order for constitutional principles to apply or for an individual to invoke the constitutional protections, there must be state action (i.e., Bill of Rights and 14th Amendment, §5)


State Action Doctrine Exceptions

  1. 13th Amendment – Private entities cannot own slaves
  2. Public Function Exception – When a private entity is performing a public function, the court may find the state action requirement satisfied
    •  Test: Whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself
      • To satisfy state action, it has to be the sort of function that is traditionally exclusively reserved to the state
  3. Entanglement Exception – When the government affirmatively authorizes, encourages, or facilitates private conduct the court may find the state action requirement satisfied
  • Issue: What degree and type of government involvement is sufficient?
  • Shelly v. Kramer - A state acts between its judicial and legislative departments therefore judicial enforcement is state action, however Post-Shelly courts have limited the influence of this holding mostly to areas involving racial discrimination


Equal Protection Clause

Three Step Analysis:

Step 1: What is the classification being challenged? (If not yet deemed suspect, apply the Cleburne Factors)

Step 2: What is the appropriate level of scrutiny?

Step 3: Does the government action meet the level of scrutiny?


Equal Protection - What is a suspect class?

A presumptively unconstitutional distinction made between individuals on the basis of race, national origin, alienage, or religious affiliation, in a statute, ordinance, regulation, or policy.

Four Factors:

(1) History of discrimination,

(2) Political Powerlessness,

(3) Immutability, and

(4) Irrelevance of the characteristic to functioning in society


Equal Protection - Facially Nuetral Laws

Discriminatory Impact & Purpose To Establish Racial Classification:

Discriminatory Impact – Mere evidentiary value to establish a purpose and absent a “stark” pattern, impact is not determinative (Sometimes a pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face, i.e., Yick Wo)

  • When applying scrutiny the operative effect as more important than purpose

Discriminatory Purpose – Implies more than intent as a violation or intent awareness of consequences, such that purpose must be in part “because of” not just “in spite of”

  • Factors To Establish Discriminatory Intent Circumstantially: (1) Historical Background and Context, (2) Procedural Irregularity, (3) Substantive Inconsistency, and (4) Legislative History
    • If the factors are satisfied the burden shifts, the government must prove the law would have been enacted despite the improper consideration of the discriminatory purpose or purpose is met and strict scrutiny applies. (Government has lost at this point by showing the impermissible purpose was the motivating factor)


Equal Protection Strict Scrutiny

(Test, Areas of Use, Burden of Proof)

Whether the government action serves a compelling state interest, and the use of the classification is necessary / narrowly tailored to achieve that compelling state interest

Areas of Use:

  • For suspect classes
  • For government actions with a discriminatory impact and discriminatory purpose (See Washington v. Davis)


  • Societal notions are insufficient for a compelling interest (Need specific evidence)
  • Must be no other alternatives (i.e., necessary) such the means are precisely calibrated to achieve the compelling interest
  • Over & under inclusiveness is almost always fatal

Burden: On the government 


Equal Protection Rational Basis Review

(Test, Areas of Use, Burden of Proof)

Whether the governmental action is rationally related to a legitimate purpose

Area of Use:

  • Default level of scrutiny for non-suspect classifications and nondiscriminatory laws (Unless national origin, gender, alienage, or legitimacy)
  • Alienage Classification Exceptions:
    • Classifications related to self-government & the democratic process
      • Test: Does the position involve discretionary decision-making or execution of policy that reflects public policy or an execution of policy in a way that impacts members of the community?
    • Congressionally approved discrimination


  • Deference to the legislature with presumption in favor of upholding the law
  • Tolerance for over & under Inclusiveness

Burden: On the challenger to establish that there is no conceivable basis for the legislation 


Equal Protection Intermediate Scrutiny

(Test, Areas of Use, Burden of Proof)

Whether the government action serves an important government objective and that the means employed are substantially related to those objectives

Area of Use: For quasi-suspect classes (i.e., Gender, Illegitimacy & Content-Neutral Free Speech)

Characteristics: Overbroad generalizations are insufficient for important government objectives

Burden: On the government 


Fundamental Rights

Step 1: Identify whether a fundamental right is in question

  • Test for Announced Rights
    1. What has been deemed as a fundamental right & how much is encompassed in that decision?
    2. How does that right compare to the right asserted in present situation?
  • Test for Unannounced Rights: (Some justices require both test, some require satisfaction of one test)
  1. Is the right comprised of ‘the traditions and collective conscience of our people’” such that it is “‘so rooted there ... as to be ranked as fundamental”? (Griswold, Meyer, Moore)
  2. Is the right essential to the orderly pursuit of happiness by free men? (Loving)

Step 2: Is the fundamental right being infringed in a direct and substantial way?

  • “Trivial and logistical” infringement does not trigger strict scrutiny

Step 3: Apply the appropriate level of scrutiny

  • Rational Basis Review: Whether the governmental action is rationally related to a legitimate purpose
    • Protection from Arbitrary & Capricious Interference: (1) Infringement of Non-Fundamental Rights or (2) Trivial & Logistical Infringement of a Fundamental Right (i.e., Economic Regulation)
  • Strict Scrutiny: Whether the government action serves a compelling state interest, and the use of the classification is narrowly tailored to achieve that compelling state interest
    • Direct & Substantial Infringement of Fundamental Rights (i.e., Privacy, Reproductive Autonomy, Family)




Undue Burden Test

Test: Undue Burden (Prior to viability)

Does the state regulation impose an undue burden (i.e., substantial obstacle in purpose or effect) on the woman’s decision to terminate a pregnancy?


Romer Rational Basis Review

Seems a little more strict type of rational basis review suggesting there are some instances where the court may use a heightened standard

 Breadth Rational: So broad such that no purpose could extend to all of the applicable contexts