The USSC is the final judge of an act's constitutionality pursuant to Art. III, Sect. 2. 

USSC has the appellate and supervisory power to review the decisions of lower federal courts.

USSC has appellate jx over state court decisions applying federal principles. 

USSC lacks power to review state court cases decided on "adequate and independent" state law grounds.

1.  Party is only indirectly affected by some action -- standing depends on the degree to which the party is affected 

-Injury must be distinct and palpable

2.  Pty claims standing based upon status as a taxpayer or citizen

-Taxpayer standing: i) Logical nexus b/w taxpayer status and type of legislation attacked & ii) nexus b/w taxpayer's status and the nature of the constitutional infringement alleged 

- Citizen standing: Requires π allege some particular injury connected to his/her status as a citizen 

3.  State/local gov't has standing to seek relief on behalf of citizens if axn involves a sovereign interest of the state

A court will not grant relief when the controvesy ceases to exist or π otherwise achieves the result sought after the case is filed.

2 exceptions:

Recurring but evading review

Voluntary acquiescence 

Threat of constitutional violation cannot be merely hypothetical -- must be a substantial likelihood that the statute will be enforced or the prosecution will be undertaken 

Controversy must have matured to a point where parties' adverse parties are concretely fixed 

The cts will not review the wisdom of pol'y decisions entrusted by the Const. to either of the other 2 branches of gov't.

2 step analysis:

i) is there a textually demonstrable const. commitment of the issue to a coordinated political dept. of gov't? & ii) if so, what is the scope of the commitment?

Prohibits the exercise of fed. judicial power in suits a/g a state by citizens of any state or foreign country.  (i.e. NO La citizen v. MS or La citizens v. LA)

Under Ex Parte Young, a fed. ct. can enjoin state action that violates the fed. const. or fed. law under theory that unconstitutional action ceases to be a legitimate state action. 

Purely local activity is outside the reach of Congress (U.S. v. Lopez). 

CC may only regulate existing commerce; cannot create commerce that doesn't exist.

10th Amendment provides that "the powers not delegated to the US by the Const. nor prohibited by it to the States, are reserved to the States respectively, or to the people." 

I.e. Can't make state sign something or take property to something it doesn't want to own

State action or legislation is "preempted" by federal legislation if there is a "collision" between the two.  

State action can be preempted by federal legislation only when there is a clear congressional intent to do so.  If there is a "gap" in federal legislation, states will be permitted to legislate within the gaps. 

State and federal laws are inconsistent then federal law will prevail.  

Eg. environmental laws, securities law, anti-trust, trademark

Does the law facially discriminate against interstate commerce? Yes - per se unconstitutional

No -- Does the law burden interstate commerce? 

• - how substantial is the burden?
• -what is the purpose of law? (if non-economic then ok) 
• - is the purpose important enough to justify a burden? 
• -is there a less burdensome alternative?

State & local gov'ts are not restricted by the Commerce Clause when they act as a market participants rather than as market "regulators."  

However, state/local gov't cannot use participation in one market to regulate another downstream market in which it is not a direct participant. 

"The Citizens of each State shall be entitled to all the P & Is of Citizens in several States." 

Applies to this P&Is that are fundamental:

• Right to travel
• Right to own property
• Right to transact business or carry on a trade

The right to pursue one's trade is protected by the P&I clause.  If a state tax restricts a protected privilege or immunity and is discriminatory against citizens of other states, it is unconstitutional. 

*can discriminate against recreational acts alll you mo fo-in want

State laws that effect a severe change in contractual obligations will be invalided. This includes: state laws passed to undo own contractual obls. or state laws passed that retroactively effects severe change in contractual circumstances, unless necessary to solve a broad economic or social problem.

No invalidation of state law if only an indirect effect on Ks.

1.  Taking or Land Regulation?

2.  For Public Purpose? 

Yes -- Just compensation

No -- LO  may retain return of property

3.  Just compensation

• Physical occupation of property by state/condemnantion of property 
• Denial of all rts in land or substantially all use of land 
• Other regulations, if they deny the property owner substantially all uses of the property 

No, when regulation is closely related to a substantial public purpose

Yes, when not closely related to asserted public purpose 

Purpose must be closely related to the state regulation in order to support the regulation.  

A taking will be for "public use" so long as the gov't reasonably believes the taking will benefit the public.

1.  Presence of state action

2.  Adverse effect on an recognized liberty or property interest; and

- "vested" 

3.  Notice and a meaningful opportunity to be heard. 

-nature and timing of N&O will vary w/ circumstances

• Are common law safeguards adequate to protect the right, or is additional process needed?
• Is a pre-deprivation hearing necessary to provide a check against some substantial loss to the individual?
• Will the requested procedures substantially reduce tisk of an erroneous deprivation of a right?
• Has there been an hisotorical incidence of abuse of these rights?

A state is permitted to regulate the exercise of a fundamental right only if the regulation:

i) serves a compelling state interest, and 

ii) is narrowly drawn so as to accomplish the compelling state interest with as little interference as possible with the fundamental right.

E.g. marriage, procreation, abortion, family relationships, privacy

Law with severe restriction on right to vote -- subject to strict scrutiny, and invalid unless supported by a compelling state interest

" " reasonable non discriminatory restriction -- reviewed to determine whether it is sufficiently justified by an important state issue 

Statute limiting campaign contributions is subject to an "intermediate scrutiny" and must be closely drawn to match a sufficiently important state interest. 

Gov't may limit the amt that a person is permitted to contribute to another's campaign. 

Gov't may not limit the amount a person expends on his own campaign nor amt person spends to get candidate elected, as long as expenditures are independent of the candidate and are not disguised contributions.

• right to travel
• right to vote
• right to privacy
• right to speak
• right to associate
• right to freely exercise religious beliefs

1.  Classifications that are facially discriminatory 

- considered inherently suspect and will be struck down 

2.  Classifications that are discriminatory in their application or in their impact

3.  Classifications that have a discriminatory motive (2& 3 together)

Race and national origina

State and local alienage classifications 

Favored: i) plan has flexible goal; ii) whether plan is temporary; and iii) whether plan is access barring to other groups. Considering race as one factor in an individual assessment of each applicant's background and potential to achieve diversity. 

Disfavored: inflexible quotas, use of layoffs to achieve AA goals; blind numerical point system

NEW LAW: University of Texas: STATE must prove program is narrowly tailored to achieve only diversity and no other action exists to prove the same result.

Closely related to a substantial state interest to be upheld. 

Political function exception: permits states to discriminate against aliens to protect a "special public interest" such as qualifications for state elected officials and police officers

Intermediate Scrutiny Standard: substantial relation to an important gov't interest

Gender & Illegitimacy 

Must be rationally related to a legitimate state purpose

Wealth & age

Deserves the highest level of protection.  Govt may not regulate unless the regulation is narrowly tailored to serve a state interest of the highest order. 

Exception: speech advocating illegal or criminal acts, but must be possibility will come to pass. 

3 step test to determine whether protected:

i) speech must relate to a matter of "public concern"

ii) doesnt address public concern -- gov. must show its interest in efficiently delivering public services outweighs employee's rt to free speech 

iii) or gov't can justify by showing that a negative employment decision would have been reached for reasons unrelated to the employee's speech 

3 part Miller v. California test

i) work must be such that the average person applying contemporary community standards would find that, taken as a whole, it appeals to the prurient interest

ii) work depicts/describes, in a patently offensive way, sexual conduct specifically defined by state law, and

iii) work, as whole, lacks serious literary, artistic, political or scientific value

Gov't may restrict speech in public places that are not public forum or limited public forum.  The gov't may regulate speech to reserve the forum for its intended use.  Reg. will be upheld if:

a. viewpoint neutral, and 

b.  reasonably related to a legitimate gov't purpose. 

Conduct alone is not usually protected by the 1st Amendment.  May receive protected if:

a.  combined w/ protected speech, or 

b.  constitutes "symbolic speech" by itself. 

Doesnt apply to non-political associations that lack a sufficient degree of privacy or intimacy.  

But if does apply, strict scrutiny.

Generally, the gov't cannot place restraints upon the content of the printed press

Commercial contents of newspapers may be subject to regulation to same extent as commercial speech

Electronic media (TV and radio) are subject to regulation of content 

Lemon Test

i) gov't program must have a secular legislative purpose

ii) principal or primary effect of the benefit can neither advance nor inhibit religion; and 

iii) there is no "excessive gov't entanglement" with religion 

1.  Does the person have a "sincerely held" religious belief?

2.  Is that belief burdened by the state regulation?

If so, then to avoid an exception the state must show that:

3.  The requirement/regulation is necessary to an impt state goal, and 

4.  An exception would substantially hinder the fulfillment of that goal.