JUSTICABLE CASE OR CONTROVERSY REQUIREMENT

UNDER ARTICLE III OF THE CONSTITUTION

STANDING

Individual Standing:

Standing requires a showing of (a) injury in fact, (b) causation, and (c) redressability.
 Re (a) In order to show that the P has suffered an injury in fact, the P must
prove an existing or imminent injury and that the P personally has a stake in
the outcome of the intended litigation
o 3rd Party Standing:
 Generally standing is not met if the P is suing on behalf of a
third party; however, if the P is asserting standing on behalf a
3rd party, the P must show either that there is a special
relationship between the P and the third party or that the third
party would have difficulty asserting their own rights
o Taxpayer Standing:
 Standing as a taxpayer is generally insufficient to meet the
requirements under Article III of the Constitution; however, the
P will have standing as a taxpayer if the P is challenging an
expenditure based Congress’ taxing or spending power as a
violation of the Establishment Clause of the 1st A
 Re (b) In order for the P to establish causation for the harm suffered, the P
must prove that because of the government/state conduct, the P has suffered
harm
 Re (c) In order for the P to prove redressability, the P must establish that a
decision in the P’s favor will eliminate the harm suffered

Organizational Standing

An organization may bring standing on behalf of its members if (a) its members
would have individual standing to sue, (b) the lawsuit is germane to the
organization’s purpose, and (c) neither the claim nor the relief requires participation
of individual members.

RIPENESS

A case is Ripe when there is no genuine, immediate threat of harm and, thus, the
lawsuit is being brought too soon. If a challenge to a law arises where the law is not
yet being enforced, the court will weigh hardship suffered without pre-enforcement
review with fitness of the issues for judicial review in order to determine if the court
has all it needs to decide the issue or if it must wait for an actual violation to occur.
 MOOTNESS
Article III requires there to be a real live controversy at all stages of review.
Therefore if a matter has already been resolved, it will be dismissed as moot unless
one of the following exceptions are met: (i) same complaining party subjected to
same violation, (ii) the wrong inflicted is capable of repetition yet evading review, or
(iii) the case involves a class action where a member of the class still has a live suit.

11TH AMENDMENT: SOVEREIGN IMMUNITY

The 11th A prohibits federal courts from hearing a private party’s or foreign
government’s claims against a state government. The 11th A prohibition extends to
actions in which the state is named as a party or in which the state will be required to
pay retroactive damages. Additionally, the 11th A has also been held to bar suits
against a state government in state court, even on federal claims, unless the
defendant state consents to the suit.

The 11th A prohibitions do not extend to actions against local governments, including
both city and county governments. Additionally, the 11th A allows suits by the United
States or other states against a state government and proceedings in federal
bankruptcy courts.

Actions Against State Officers

The 11th A allows the following actions to be brought against state officers in federal
court:
 Actions to enjoin an officer from future unconstitutional or unlawful conduct
(even if the action will require prospective payment from the state if the
action is successful)
 Actions for damages against an officer personally

Congress Removes the 11th A Immunity

Congress may remove the 11th A immunity as to actions created under the 14th A but
congressional intent to remove the immunity must be unmistakably clear.

POLITICAL QUESTION

Political questions will not be decided by the courts. An issue will constitute a
political question if (i) the issue is constitutionally committed to another branch of
the government or (ii) is inherently incapable of judicial resolution.
 CONGRESSIONAL COMMERCE POWER

Under Congress’s Commerce Power, Congress may regulate (1) channels of interstate
commerce, (2) instrumentalities of interstate commerce, (3) activities moving in
interstate commerce that cross state lines, and (4) economic activities that have a
substantial effect on interstate commerce.

If Congress is regulating a non-economic/ non-commercial activity under its

Commerce power, then Congress must factually show a economic effect on
interstate commerce for the use of their commerce power to be valid.

CONGRESSIONAL CIVIL RIGHTS POWER

Where Congress is acting under their civil rights power granted by Section 5 of the
14th A, Congress may not create new rights or expand the scope of rights under the
Section 5 of the 14th A but may provide additional remedies for rights recognized by
the courts as long as those remedies are proportionate and congruent to the
recognized right.

PREEMPTION

Federal law will prevail and preempt state or local law and thereby invalidate the
state or local law. Preemption can be express or implied. Express preemption occurs
where a valid federal statute or regulation expressly states that the federal law
wholly occupies the entire field of regulation at issue.

Federal preemption is implied and the federal law will prevail in 3 situations: (1)
where federal and state laws are mutually exclusive and in conflict, (2) a state or local
law prevents achievement of a federal objective, or (3) where Congress evinces a
clear intent to preempt state law and occupy the field of regulation at issue. In
determining whether Congress has shown an intent to occupy an entire field of
regulation, the court will look at the following factors: (i) whether a comprehensive
federal scheme exists, (ii) whether a federal agency was created to administer laws,
(iii) whether historically the subject matter has been federally regulated, and (iv)
whether the need for uniform national regulation exists.
 10TH AMENDMENT LIMITATIONS ON CONGRESSIONAL POWER

Under the 10th A, all powers not granted to the federal government, nor prohibited to
the states, are reserved to the states or the people. Thus, under the 10th A, Congress
can’t tax or regulate the states or commandeer state officials to act a certain way.
However, Congress may regulate states or induce states to act if the tax or regulation
at issue (1) applies equally to both the private and public sectors, (2) is intended to
prohibit harmful commercial activity by state governments, (3) is attached to federal
funding where the conditions of the federal grant are expressly stated and related to
the purpose of the federal spending program, or (4) where Congress is acting
pursuant to their power under the 14th or 15th Amendments.
 DORMANT COMMERCE CLAUSE

Non-Discriminatory State Legislation

Under the Dormant Commerce Clause doctrine, if Congress has not enacted a law in a
particular are of interstate commerce, states and local governments may regulate
the area as long as (a) the law does not discriminate against out of state entities to
protect local economic interests and (2) the law does not place an undue burden on
interstate commerce. In determining whether the law places an undue burden on
interstate commerce, the courts will conduct a balancing test and weight the benefit
to local interests against the burden on interstate commerce.

Discriminatory State Legislation

If the regulation is facially discriminatory against out of state entities, it will only be
upheld if it meets one of the following exceptions: (1) the state regulation furthers an
important, non-economic state interest and there are no reasonable non-
discriminatory alternative means of accomplishing the state interest available, or (2)
the state is acting as a market participant. Additionally, a more lenient standard is
imposed where the state regulation favors a government action that involves the
performance of a traditional government function.

ARTICLE IV PRIVILEGES AND IMMUNITES CLAUSE

The P & I Clause of the 4th A prohibits discrimination by a state against citizens or
residents of another state regarding economic activities or constitutionally protected
rights. A state law that discriminates against non-residents will only be upheld if the
substantial justification exception is met by the state showing that the discrimination
against non-residents is necessary to serve an important government purpose and
that there are no less restrictive means to accomplish the government interest.

EXAM TIP:
 ARTICLE IV P & I CLAUSE AND DORMANT COMMERCE CLAUSE (DCC)
REINFORCE EACHOTHER – SO ANALYZE BOTH!!!!!
o DCC is broader
 If discrimination  use both to challenge the law
 If no discrimination  use only DCC
o Corporations and Aliens are not Citizens under the P & I Clause \
 If Corporation or Alien at issue  use DCC
 STATE TAXATION OF INTERSTATE COMMERCE

Congress has complete power to authorize or forbid state taxation that affects
interstate commerce. State taxation on interstate commerce is valid only if it is (a)
reasonable, (b) non-discriminatory, and (c) there is a substantial nexus between the
state interest and the activity being taxed. Additionally, the tax will only be upheld if
it is fairly apportioned according to a rational formula.

State Taxation of Goods Transported Via Interstate Commerce

States cannot tax good in the course of interstate commerce. States can, however,
tax goods at the beginning of transport, at the end of transport, or at a break in the
transport of the goods.

State Taxation on Instrumentalities in Interstate Commerce

States may tax instrumentalities of interstate commerce, such as trucks or ships used
to transport goods, as long as the instrumentality (a) has a taxable situs in the taxing
state where the instrumentality receives benefits or protections from the state and
(b) the tax imposed is properly apportioned according to the amount of contacts
within the taxing state such that the tax amount fairly approximates the average
physical presence of the instrumentality in the taxing state.

STATE ACTION

State action is a threshold requirement of governmental conduct that must be

satisfied before reaching the issue of whether an action violates the individual rights
protections afforded by the Constitution. State action is satisfied where a federal,
state, or local stature or regulation is at issue.

Private Individual or Entity

However, if a private individual or entity is engaged in conduct that infringes upon
the individual rights afforded under the Constitution, state action can be found in the
following situations: (1) where the conduct of the private individual or entity is being
challenged under the 13th A alleging racial discrimination, (2) where the private
individual or entity is performing an activity that is traditionally the exclusive
prerogative of the state, or (3) where the private individual or entity is excessively
entangled with the state.
 PROCEDURAL DUE PROCESS

The Due Process Clause of the 14th A provides that no state shall deprive a person of
life, liberty, or property without due process of law. In order to show a violation of
an individual’s due process rights under the 14th A, the P must show (a) an
entitlement or property interest, (b) a deprivation of the interest at issue by the
government, and (c) that the appropriate process was not afforded to the plaintiff.

Entitlement/ Property Interest

In determining whether the plaintiff has alleged a legitimate claim to the entitlement/
interest in issue, the court will look to whether the P had a reasonable expectation of
continued receipt of the benefit.

Deprivation
In order for a deprivation to occur, the P must prove that there was intentional
government action or a reckless disregard by the government with regard to the
benefit/ interest at issue. Mere negligence on the part of the government is
insufficient to prove that a deprivation has occurred.

Process Due
In order to determine what procedures are required by the Due Process Clause, the
court will conduct a balancing test using 3 factors – (i) the importance of the
individual interest, (ii) the value of the specific procedural safeguards to that interest,
and (iii) the government’s interest in fiscal/ administrative efficiency.

SUBSTANTIVE DUE PROCESS

The Due Process Clause of the 14th A prohibits states and local governments from
infringing upon an individual’s substantive rights. Similarly, the Due Process Clause of
the 5th A prohibits the federal government from infringing upon the substantive
rights of individuals. Substantive due process looks at whether the state has an
adequate reason for the deprivation as opposed to whether the proper procedures
were afforded to the individual.

The level of scrutiny applied to the deprivation at issue depends on whether the right
at stake is fundamental or not. If the right at stake is fundamental, the court will
apply strict scrutiny and the government’s action restricting the fundamental right
will be only be upheld as constitutional if serves a compelling government interest
and the means chosen are necessary to that compelling government interest. If the
right at issue is not considered fundamental, the government action restricting the
right will be upheld if it serves a legitimate government interest and the means
chosen are rationally related to that interest.

TAKINGS CLAUSE

The Takings Clause of the 5th A prohibits the government from taking private
property for public use without just compensation.

Taking
In order for the government action to constitute a taking, the government action can
either physically confiscate the property or may be satisfied if the government action
imposes a regulatory scheme which denies the owner of all reasonable economically
viable use of the property.

Public Use
Public use is broadly defined under the Takings Clause jurisprudence and can be
satisfied even if the property is being sold to a private entity for the purpose of
economic revitalization.

Just Compensation
Just compensation is determined based on the loss suffered by the previous owner
and is calculated according to reasonable market value.
 EQUAL PROTECTION CLAUSE

The EPC of the 14th A prohibits states from denying any person within its jurisdiction
equal protection of the law. The EPC also applies to actions by the federal
government through the 5th A due process clause. In order to determine whether
the government action at issue violates the EPC, the court will first determine what
classification is at issue and then determine whether the government action is
constitutional under the applicable level of scrutiny.

Facially Neutral, Discriminatory Application

In determining what classification is at issue, the court will not only evaluate the
classification made on the face of the statute but will also look at the application of
the law to determine if a discriminatory application of the law exists.

Facially Neutral, Disproportionate Impact

Even if a law is both facially and applicably neutral, the court will consider whether
the law has a disproportionate impact on a specific class of individuals. In order for
the classification to be based on the those individuals disproportionately impacts by
the government conduct, the plaintiff must prove both (a) a discriminatory impact
and (b) discriminatory intent.

STRICT SCRUTINY APPLIES INTERMEDIATE SCRUTINY RATIONAL BASIS

TO: APPLIES TO: APPLIES TO:

 Race  Gender  Alienage

 National origin  Legitimacy classifications
 Alienage (generally)  Undocumented alien related to self-
 Travel (but not children government & the
foreign travel) democratic process
 Voting  Congressional
regulation of aliens
 Age
 Disability
 Wealth
 All other
classifications
Strict Scrutiny
Strict scrutiny requires that the government action be necessary to achieve a
compelling government interest.

Intermediate Scrutiny
Intermediate scrutiny requires that the government action be substantially related to
an important government purpose.

Rational Basis
Rational basis only requires that a government action be reasonably related to
achieve a legitimate government interest.

FREEDOM OF RELIGION

Establishment Clause
The Establishment Clause of the 1st A prohibits Congress from making any law
respecting the establishment of religion and comes into issue where a regulation or
government action prefers one religious sect over another. In order to determine
whether a regulation or government action violates the Establishment Clause, the
court will apply the Lemon Test. The Lemon test requires (a) there must be a secular
purpose for the law, (b) the effect of the law must neither advance nor inhibit
religion, and (c) there must not be excessive entanglement with religion. If the
aforementioned elements are met, then the law or regulation at issue will be upheld
under the Establishment Clause if it is rationally related to a legitimate government
interest. If the Lemon test elements are not met, then the law or regulation at issue
is deemed to prefer one religious sect over another and, therefore, is presumptively
unconstitutional unless the government can prove that the law or regulation at issue
is necessary to achieve a compelling government interest.

Free Exercise Clause

The Free Exercise Clause of the 1st A prohibits the government from making any laws
that prohibit the free exercise of one’s religious beliefs. Although a person’s religious
beliefs are constitutionally protected, the government may regulate conduct
associated with the free exercise of religion. In order to determine what level of
scrutiny is applied to a law that regulates a person’s conduct associated with the
person’s religious belief, the court will first determine whether the regulation is
purposefully designed to interfere with a particular religion. If the court finds
purposeful interference, the law will only be upheld if the law is necessary to achieve
a compelling government interest. If no purposeful interference is found, the law will
be upheld if it is reasonably related to a legitimate government interest.
 FREE SPEECH

FACIAL ATTACKS ON RESTRICTIONS OF SPEECH

Vagueness
A law is unconstitutionally vague if a reasonable person can’t tell when certain
speech is prohibited because the law fails to give clear notice of what speech is or is
not protected.

Overbreadth
A law is unconstitutionally overbroad if it regulates more speech than necessary.

Unfettered Discretion
A law is unconstitutional if the regulation gives officials broad discretion absent
defined standards for applying the law over speech issues.

PRIOR RESTRAINTS
Government action that stops speech before it occurs is presumptively invalid unless
the prior restraint is necessary to prevent a compelling and actual societal harm. If a
prior restraint is imposed, the party challenging the regulation must comply with the
prior restraint until it is vacated or overturned. A person violates the court order at
issue, they are barred from challenging it.
 CONTENT-BASED REGULATIONS
Regulations forbidding communication of specific ideas are presumptively
unconstitutional and will only be upheld if the restriction on the content of the
speech is necessary to serve a compelling state interest and narrowly drawn to
achieve that end.

Regulating the following categories of speech have been held to meet strict scrutiny
and are unprotected under the 1st A
 Speech which incites imminent illegal activity
 Fighting words and threats
 Obscenity
o Obscene speech is not protected under the 1st A. Speech is obscene if
the following requirements are met: (a) the material must appeal to
the prurient interest according to the community standard, (b) the
material is patently offensive under the community standard, and (c)
taken as a whole, the material lacks serious redeeming artistic, literary,
political, or scientific value according to the national standard.
 Defamation
o 1st A considerations arise where defamatory language involves a public
official or a matter of public concern. In order to prove defamation,
the plaintiff must prove the following elements: (a) a defamatory
statement was made by the ∆ which adversely affects P’s reputation,
(b) the defamatory statement must be reasonably understood to
concern the P, (c) the defamatory statement was published to a third
party, (d) the defamatory statement was harmful to the P’s reputation.
Additionally, if the defamatory statement involves a matter of public
concern or a public figure or official, the constitution requires that the
P also prove (e) falsity of the statement and (f) that the ∆ was at fault.

If the defamatory statement concerns a public official or public figure,

the P is required to prove ∆’s fault under the actual malice standard
which requires that the ∆ either had knowledge of the statement’s
falsity or recklessly disregarded whether the statement was false or
not.

If the defamatory statement concerns a private figure and a matter of

public concern, the P must prove ∆’s fault according to a negligence
standard.
 COMMERCIAL SPEECH
Lawful commercial speech that is not fraudulent or misleading has limited protection
under the 1st A. A law regulating commercial speech must (a) serve a substantial
government interest, (b) directly advance that interest, and (c) be narrowly tailored
to meet that interest.

CONTENT-NEUTRAL REGLUATIONS: TIME, PLACE, AND MANNER RESTRICTIONS

The government may reasonably regulate speech-related conduct through time,

place, and manner regulations that are content-neutral both facially and as applied.
The type of test applied to determine whether the time, place, and manner
restriction is constitutional under the 1st A depends on whether the forum in which
the regulation is made is a public forum, a limited public forum, or a non-public
forum.

Public Forums
A public forum is a government property that the government is constitutionally
required to make available for speech. In order for a time, place, or manner
regulation of a public forum to be constitutional under the 1st A, the regulation must
(a) be subject-matter and viewpoint neutral both facially and as applied to the speech
being regulated, (b) be narrowly tailored to serve a significant government interest,
and (c) leave open adequate alternative channels for communication. Government
regulations of public forums, however, are not required to use the least restrictive
alternative.

Limited Public Forum

A limited public forum is a government property that can be opened by the
government for speech at certain times but is not designated as a public forum at all
times. Government regulations of limited public forums are subject to the same
standard applicable to public forums when the forum is open to the public.

Non-Public Forum
Non-public forums are government properties that the government constitutionally
can and does close to speech such as military bases and areas outside of prisons or
jails. In order for a time, place, and manner regulation of a non-public forum to be
constitutional under the 1st A, the regulation must be (a) viewpoint neutral and (b)
reasonably related to the intended purpose of the non-public forum.
 FREEDOM OF ASSOCIATION
The freedom of association is a right implied in the protections guaranteed by the 1st
A and regulations affecting a person’s right to freely associate are generally
adjudicated under strict scrutiny where the regulation must be necessary to achieve a
compelling government interest.

Regulations That Punish Group Membership

In order for a regulation that punishes membership in a specific group to be
constitutional, the government must prove that the individual is (a)actively affiliated
with the group, (b) knows of its illegal activities, and (c) has the specific intent to
further the illegal/unlawful purpose of the group.

Loyalty Oaths
Loyalty oaths are constitutionally valid is they are not overbroad or vague.