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Law Outlines Constitutional Law Outline

Constitutional Law Condensed Outline

Updated Constitutional Law Condensed Notes

Constitutional Law Outline

Constitutional Law Outline

Approximately 19 pages

Potentially the greatest 1L Constitutional Law outline ever created. 15 pages and covers every major point of the 1L Con Law course - this outline is gold if you like to make your own outlines but need the black-letter-law guidance....

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CONSTITUTIONAL LAW OUTLINE

University of Virginia School of Law

Schauer, Spring 2014

Contents

Congress’s Power to Act 2

Implied Powers 2

Necessary and Proper Clause 2

Commerce Power 3

Taxing and Spending Power 4

Article 5 of the 14th Amendment 4

Separation of Powers Issues 4

10th Amendment Restrictions 4

Presidential Power 5

State’s Power to Legislate 6

Dormant Commerce Clause 6

Substantive Due Process 7

Equal Protection 9

Takings 12

Health Care 12

WAR POWERS 13

LIBYA HYPO 14

Congress’s Power to Act

If Congress is going to legislate, it must do so within its power to (what we focused on):

  • Historical Practice, i.e. Congress has successfully done it before

  • Implied Powers, i.e. those not specifically delegated in Art 1 Sec.9

  • Make laws which are necessary and proper for carrying out its enumerated powers [NECESSARY AND PROPER CLAUSE], OR

  • Regulate Interstate Commerce or Commerce With Foreign Nations, OR

  • Taxing and Spending Power

  • Article 5 of the 14th Amendment

Implied Powers

Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority [McCulloch v. Maryland]

Necessary and Proper Clause

Necessary & Proper Clause grants Congress the legislative authority to enact federal statutes that constitute a means that is rationally related to the implementation of a constitutionally enumerated power [Comstock]

Commerce Power

Congress is allowed to regulate intrastate if it has an impact on interstate activities [Gibbons v. Ogden]

  • Congress can also PROHIBIT things from being in interstate commerce [Champion]

  • As long as something is moving in between states, congress does NOT need a commercial motivation to regulate [Champion] (did it for morality)

    • However, if regulating solely intrastate activity, thumb on the scale if regulating non-econ activity [Morrison]

  • Congress may regulate the instrumentalities of interstate commerce [planes, trains, trucks, ships] or persons or things in interstate commerce, even though the threat may come only from intrastate activities [Shreveport RR]

Solely intrastate production was once seen as outside the scope of Congress’ commerce power [Dagenhart] (overruled by Darby)

  • However if a business itself is an interstate “enterprise”, its activities, although mostly intrastate when separately considered, necessarily usually have a close and substantial relation on interstate commerce (NLRB)

Then (before Lopez), even solely intrastate production (any intrastate activity) became within Congress’ power if they have a rational basis in believing the activity has a substantial effect on interstate commerce [Darby]

  • Even if the local effect on interstate commerce is small, if the aggregate or cumulative effect of such could in fact has a substantial relation on interstate commerce, Congress can regulate [Wickard]

    • Key to this argument is that such a good must be fungible and easily aggregated [Wickard]

      • Court has never allowed the aggregation of a non-economic activity [Morrison]

  • Congress can regulate non-problem causing members of a problem-causing class [Perez]

  • Congress can regulate the “channels of interstate commerce or activity within the channels” [HoA]

    • Can also legislate morality in the interest of commerce [HoA]

Before Lopez, Court deferred to Congress, even in obscure chains of inferences (lowest level of scrutiny, no evidence needed) [Katzenbach]

Lopez (cited in Morrison) Framework: (draws on the above principles)

Congress can regulate:

1. The use of the Channels of Interstate Commerce (HoA, Darby)

2. And protect the instrumentalities of interstate commerce, or persons/things in interstate commerce (Shreveport)

3. Activities that substantially affect interstate commerce (NLRB, Darby)

  • If intrastate non-economic activity, esp. if usually left to states, thumb on the scale against it (Mor. / Lopez)

  • Have never upheld an aggregation of a non-economic activity (Morrison)

  • Congress must have more than just a “rational basis” in believing activity sub. eff. int commerce and an extended chain of inferences will be looked unfavorably upon, even with congress. findings (Morrison)

When Drafting a Statute

  1. Make sure you are regulating an economic activity if aimed at intrastate (Lopez, Morrison)

  2. Put in an express jurisdictional element (Lopez)

  3. Provide detailed congressional findings showing interstate commerce effect (Lopez, Morrison)

    1. Less deference is going to be given to congress’ rational basis for affecting interstate commerce, make sure there is evidence that the link is close (prob no extended inferences)

Gonzalez v. Raich: Where a class of activities is within federal power to be regulated, congress can regulate intrastate instances of that activity in furtherance of the broader regulatory scheme. Congress can control the interstate drug trade and local cultivation affects supply and demand of interstate trade, resulting in a substantial effect on interstate commerce

Sebelius: Congress has the power to regulate existing commerce, not compel the creation of commerce

Taxing and Spending Power

The General Idea is Congress is free to tax and spend for the general welfare (U.S. v. Butler), but the line between encouragement and coercion matters (Dole, Sebelius) – congress cannot tax and [conditionally] spend to coerce behavior into essentially regulating something that they otherwise do not have the power to regulate [Bailey, Sebelius]

Any conditions on spending must be reasonably related to the program for which the money is given [Dole]

Article 5 of the 14th Amendment

Gives Congress the power to enforce the Equal Protection and Due Process Clauses by appropriate legislation (power beyond its enumerated powers

  • Civil Rights Cases held this power could only be used on state action, not private action

  • “any municipal golf course found to discriminate on the basis of race is fined $100 – permissible under § 5

Separation of Powers Issues

...

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