Con Law I Sequence:
Article III Questions:
Must have a case / controversy
No Advisory opinions – Can have declaratory judgments..
Created within specific jurisdiction…. All else, ….. depends.
Actual Harm… injury in fact …. Injury in Law…
Nexus… must have link to law …. Not too remote.
Question is decided
Actual harm hasn’t occurred
4. Political Question
Foreign affairs / citizenship questions… etc. – A Plenary Power
1. presumption of Constitutionality….
2. Then Sensitize issue : Characterize : … eg. Does it burden Interstate Commerce
Negative Implication : Presumption of Unconstitutionality.: is state law valid
3. If State law…. Is it constitutional (Negative Implication)
Purpose eg. Exercise of State’s Police Power
Is there a better alternative
Discriminatory … who affected… how balanced.
Privileges & Immunities ( P & I)….. (narrowly construed) 2 Steps: Subj matter & IC Analysis
When a State law discriminates against non-residents….
Only rights fundamental to National Unity…..eg. may provoke retaliation
Freedom to work ….
Source of Evil arguments…. Lottery tickets
Exception : Market participant / market regulator ( participant doesn’t ensure that they will pass P & I clause )
Π will win if discrim. does not bear substantial relationship to problem
((Note: not available to Corporations))
4. If Fed Law….
A. Necessary & Proper….
Goes to Purpose : is the end within the means of Congress
Is it a proper exercise of authority to get to the end sought.
Implied power… law that has enumerated power end
B.Interstate Commerce Clause - is it a valid exercise.
Presumption of Constitutionality
1. State lines must be crossed, or can be crossed…. Intent
2. Channels of Interstate Commerce
3. Instrumentalities of interstate commerce.
4. Substantial Relation to commerce
Is it substantial enough : gun at school / wheat off farm
pre 1937 / post 1937
1. Conflict ... impossible to obey both simultaneously.
Pervasiveness : Need for natl’l uniformity : danger of conflict
2. Federal occupation of the field
3. Consent by Congress
4. Supremacy Clause
5. If need to interpret Federal Law validity on state level intra state.
i. Facially constitutional : presumption of constitutionality
ii. Reach of federal gov’t. “as applied” to enforce the law