Constitutional-Law-Flowchart PDF

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Supremacy Clause Art 6, Sec 2

Does the const. make federal power exclusive or has Congress explicitly prohibited state regulation?

Express Preemption

Did Congress occupy the field?

Field Preemption Gade v Nat’l Waste Mgmt

Hierarchy of Law

Constitution

Self Executing Treaties Does state law indirectly or directly conflict with federal law?

Federal Law sets a floor below which state law cannot go but does not set a ceiling.

Conflict Preemption Gade v Nat’l Waste Mgmt

Legislative Veto

INS v Chadha Congress may not veto action of the executive branch inconsistent with the principles of bicameral and the presentment clause.

Non-Self Executing Treaties

Federal Law

Executive Orders

State Police Power Amend 10

Is it an enumerated power?

Federalism

State Law Unemunerated Powers Look to Commerce Clause, Due Process Clause, and Necessary and Proper Clause, etc . . . for Constitutional justification

Non-delegation Doctrine

Congress may not delegate legislative powers to other branches unless it specifies intelligible principles to guide such delegation.

Supremacy Clause (Preemption) / Non-Delegation Doctrine / Legislative Veto / State Police Power (Amend 10)

Standing

Is there injury in fact?

Is there causation?

Is there redressability?

Is it a third-party?

Is the 3rd party unable to assert their own rights?

No standing Is there a special relationship between victim and 3rd party?

Supreme Court Jurisdiction Art 3, Sec 2

Baker v Carr (1) has the Constitution has assigned decision making to another branch? (2) is the matter is inherently not one the judiciary can decide?

Is there a case or controversy?

Is it a political question?

No jurisdiction

Does the case affect ambassadors, public minister and consuls, and those where a state is a party?

Original Jurisdiction

Is the case an appeal of injective relief of a 3 judge panel?

Direct Appeal

Does the injury adversely affect the victim’s relationship with the 3rd party?

Is it a generalized injury?

No standing

Standing Exists

Certiorari

Standing / Jurisdiction

Sovereign Immunity Amend 11

Is it for damage or equitable relief?

Not Barred

Timeliness

Intergovernmental Immunities

Is It in federal court?

Is it a state official?

Is it state law?

For Federal law actions a citizen cannot sue their own state in its own courts without the states consent; however, they may bring suit in another state against their own state.

A state cannot be sued by its own citizens, or citizens of another state, or foreign country

Not Barred

Is there a real injury or imminent threat thereof?

Ripe

Is there a live controversy at each stage of review?

Immunities and Privileges

Is the case capable of repetition and yet evading review?

Is it a Judicial officer?

Judges have absolute immunity from civil liability resulting from judicial acts.

Is it a Executive officer?

Clinton v Jones The president may not be sued for civil damages for acts performed as part of the presidents official responsibilities but may be for for actions before they took office.

Is it a Legislative officer?

Speech or Debate Clause Art 1, Sec 6 Members of Congress are immune from civil and criminal liability for statements and conduct made in the regular course of the legislative process.

Timely

Is the action by the state?

Commandeering Doctrine Printz v US & NY v US Congress cannot command states to enact specific legislation or administer a federal regulatory program

McCulloch v MD The states have no power to regulate or tax the federal government; however, they may impose generally applicable indirect taxes so long as they do not unreasonably burden the federal government.

Is it a class action?

Was there voluntary cessation with a reasonable expectation of repeatability?

Barred

Moot

Timeliness / Immunities (Sovereign, Intergovernmental, Judicial, Executive, and Legislative)

Commerce Clause Art 1, Sec 8, Cl 3

Does it regulate channels of interstate commerce?

US v Lopez Broad congressional power

Taxing Power Art 1, Sec 8, Cl 1

Does it regulate Instrumentalities of interstate commerce?

Spending Power Art 1, Sec 8, Cl 1

Does it limit to willful violations?

Gonzales v Raich A-OK as long as there is a rational basis for concluding that the aggregate substantially affects interstate commerce.

Does it substantially affect interstate commerce?

Is it economic activity?

Not Interstate Commerce

US v Lopez (1) Congressional findings (2) Link to interstate commerce (3) Jurisdictional element (whether the gun had moved in interstate commerce)

Does it promote the general welfare?

Does it impose an exceedingly heavy burden?

Is it collected through not normal means?

Valid Tax NFIB v Sebelius

Does it relate to the Federal interest?

Is it unambiguous?

Penalty NFIB v Sebelius

Is it not coercive?

Valid Conditional Spending S.D. v Dole

Invalid

Privileges & Immunities Clause Art 4,Sec 2, Cl 1

Nonresident citizens are protected against discrimination with respect to fundamental rights or essential activities unless; (1) the non-resident is part of the problem the state is attempting to solve; and (2) There are no less restrictive means to solve the problem

Import-Export Clause Art 1, Sec 10

Brown v MD The states are prohibited, without the consent of Congress, from imposing any tax on imported or exported good.

Necessary & Proper Clause Art 1, Sec 8, Cl 18

McCulloch v MD Congress can pass legislation rationally related to its enumerated powers as long as it is; (1) a legitimate end (2) within the scope of the constitution (3) by appropriate means (4) and plainly adapted to that end

Commerce Clause / Taxing Power / Spending Power / Privileges & Immunities / Necessary & Proper / Imports-Exports Clause

Is it discriminatory (facial, applied, or motive) against out of state commerce?

Dormant Commerce Clause

Is it an undue burden on interstate commerce?

Does it regulate extraterritorial activity?

Procedural Due Process Amend 5 Amend 14 Sec 1

Invalid Regulation of Interstate Commerce

2nd Amendment

Valid Pike v Bruce Church

Substantive Due Process Amend 5 Amend 14 Sec 1

Does it infringe on a fundamental right?

Strict Scrutiny The law must be the least restrictive means to achieve a compelling government interest.

Void for Vagueness

6th Amendment

Is it an enemy combatant?

Is it a parental right?

Moore v East Cleveland Cessation of parental rights has a heightened burden of proof requiring clear and convincing cvidence

Is it a public or “for cause” employee?

Cleveland Bd. Of Educ. V Loudermill A formal hearing is not required, as long as there is a pretermination notice, an opportunity to respond, and a post-termination evidentiary hearing.

No Due Process Required

DC v. Heller & McDonald v Chicago The 2nd amendment guarantees an individual's right to possess a firearm; however, it Is not unlimited and regulations imposing condition on the sale of arms as wells as prohibitions on; (1) concealed weapons, (2) possession by felons and mentally ill, and (3) carrying in sensitive places are presumed to be legitimate.

If a fundamental right is infringed upon for all persons then it is a substantive due process issue. If infringed upon for a class of persons then it is an equal protections issue.

Abortion Roe v Wade

Rational Basis The law must be rationally related to a legitimate state interest.

US v Williams If a statute fails to provide a person of ordinary intelligence with fair notice of what is prohibited it is void for vagueness.

Is there a protected life, liberty or property interest?

Boumediene v Bush Enemy combatants are entitled to meaningful opportunities to be heard by neutral decision makers; however, the executive authority may reduce burdens brought on by military conflict.

Right to Jury trial in criminal cases.

Mathews v Eldridge In determining the amount of process due the court considers; (1) The interest of the individual (2) The risk of error through procedure (3) The cost and administrative burden of additional process

Is the fetus viable?

The state’s interest in protecting fetal life may supersede a woman’s right to choose; however, there must be an exception for the woman’s health

Planned Parenthood v Casey An undue burden exists when the purpose or effect of a state law places substantial obstacles in the way of an abortion.

Dormant Commerce Clause / Due Process (Procedural, Substantive, Vagueness, Right to Possess a Firearm [Amend 2], and Abortion) / Right to Jury Trial (Amend 6)

Equal Protections Clause Amend 14 Sec 1

Is there a fundamental right?

Skinner v OK If a fundamental right is infringed upon for a class of persons the issue calls for strict scrutiny.

Is there a suspect classification (race, national origin, religion, and alienage)?

Strict Scrutiny The law must be the least restrictive means to achieve a compelling government interest.

Is there a quasi suspect classification (gender, and legitimacy)?

Intermediate Scrutiny The law must be substantially related to an important government interest.

Rational Basis The law must be rationally related to a legitimate state interest.

13th Amendment “Ban on Slavery”

Jones v Alfred H Mayer Co Congress may adopt legislation rational related to badges or incidents of slavery. This includes regulating both private and government action.

15th Amendment “Right to Vote”

The 15th Amendment prohibits the state and federal government from denying citizens the right to vote based on race, color, or previous condition of servitude

Discriminatory Intent Must be shown on the part of the government as either; (1) Facial (2) Applied (3) Motive

Is the class in question sexual orientation?

Romer v Evans Cases involving gay rights have the additional requirement of “bite,” meaning a showing of discriminatory intent.

9th Amendment

The 9th Amendment acknowledges unenumerated rights.

Griswold v CT Used the 9th as justification for the right to privacy under the 14th amendment’s due process clause.

If a fundamental right is infringed upon for all persons then it is a substantive due process issue. If infringed upon for a class of persons then it is an equal protections issue.

Privileges & Immunities Clause Amend 14, Sec 1

Slaughterhouse Cases The bill of rights are not privileges and immunities of national citizenship within the context of the 14th amendment.

Enforcement Clause Amend 14 Sec 5

City of Boerne v Flores There must be a congruence and proportionality between the injury to be prevented and the means adopted to achieve that end.

Substantive “Ratchet” Theory

Dickerson v US Once a civil right is established under the constitution Congress cannot degrade that right, but can increase the stringency.

Remedial Theory

City of Boerne v Flores Remedial theory, limits Congress's Amend 14 Sec 5 authority to enforcing only those rights recognized by the Supreme Court.

Ban on Slavery (Amend 13) / Equal Protections (Amend 14) / Right to Vote (Amend 15) / Unenumerated Rights (Amend 9)

Fundamental Liberty Interests

Keep and Bear Arms McDonald v Chicago DC v Heller

Contraception Eisenstadt v Baird Griswold v CT

Abortion Row v Wade

Travel Shapiro v Thompson Saenz v Roe

Privacy Griswold v CT

Sexual Privacy Lawrence v TX

Equal Protection Reverse Incorporated in Bolling v Sharpe

Rear Children Troxel v Granville

Jury Trial Duncan v Louisiana

Related Persons to Live Together Moore v East Cleveland

Marriage and Procreation Skinner v OK

Personal liberties tend to be fundamental whereas economic liberties do not.

Non-Fundamental Liberty Interests

Court Access Boddie v CT

Education San Antonio v Rodriguez

Property Interests Bd. Of Regents v Roth

Welfare Dandridge v Williams

Is there a legitimate claim of entitlement via statute, employment contract or custom?

Freedom to Contract Lochner v NY

Assisted Suicide Washington v Glucksberg Physician assisted suicide is not a fundamental right under the due process clause.

Valid Property Interest

No Valid Property Interest

Fundamental Liberty Interests / Non-fundamental Liberty Interests / Property Interests

Executive Orders Youngstown

Treaties Powers Art 2, Sec 2, Cl 2

With express or implied authorization of Congress?

Highest Ebb The action is strongly presumed to be valid.

When Congress has not spoken?

Twilight Zone The action is invalid if it interferes with the operation or power of another branch.

When Congress has spoken to the contrary?

Lowest Ebb The action is likely invalid.

Dames & Moore v Regan The president has the authority to settle claims against foreign powers

Foreign Affairs Powers Art 2, Sec 3, Cl 4

Is it a criminal case?

US v Nixon Presidential communications must be made available in a criminal case if the prosecution demonstrates a need for the information

Is it a civil case?

Cheney v US Dist. Ct In civil cases the executive branches decision will be given greater deference because the need for information is weightier in criminal cases

Presentment Clause Art 1, Sec 7

Will Congress be in session in 10 days?

Clinton v City of NY The president cannot refuse part of a bill and approve the rest because it violates the Presentment Clause; however, they can veto the entire bill.

US v Curtis-Wright The nationa government as a whole and president has plenary foreign affairs powers.

Pocket Veto

Executive Privilege

General Types of Arguments

Textual Arguments Words and Placement

Historical Arguments Framer’s Intent, Tradition, Contemplated Values and Natural Law

Structure of the Const. Relationship between branches and entites

Precedent Broad vs Narrow interpretations

Policy

Executive Orders / Executive Privilege / Presentment Clause (Veto Power) / Treaty Power / Foreign Affairs Power...