Master of Laws (LLM) U.S. Constitutional Law Syllabus

What is the dormant (negative) Commerce Clause?

The Commerce Clause implicitly restricts states from enacting legislation that discriminates against or unduly burdens interstate commerce, even absent federal action.

State the two-tier test under the dormant Commerce Clause.

If a state law discriminates against interstate commerce (facially, in purpose, or effect), it is virtually per se invalid unless it serves a legitimate local purpose with no nondiscriminatory alternative. If it is nondiscriminatory but burdens commerce, it is upheld unless the burden is clearly excessive relative to local benefits (Pike balancing).

What is the market participant exception to the dormant Commerce Clause?

When a state acts as a buyer or seller in the market (rather than as a regulator), it may favor its own citizens without violating the dormant Commerce Clause.

What are the limits on Congress's spending power under the General Welfare Clause (South Dakota v. Dole)?

Conditional spending is valid if (1) it is for the general welfare, (2) conditions are unambiguous, (3) conditions relate to the federal interest/program, (4) no independent constitutional bar is violated, and (5) the condition is not so coercive as to amount to compulsion.

How did NFIB v. Sebelius refine the coercion limit on conditional spending?

It held that threatening to withdraw ALL existing Medicaid funds (about 10% of a state's budget) to coerce expansion was unconstitutionally coercive — 'a gun to the head' — distinguishing impermissible coercion from permissible inducement.

How is the difference between a 'tax' and a 'penalty' relevant to the taxing power (NFIB v. Sebelius)?

An exaction may be upheld under the taxing power if it functions as a tax — producing revenue, not punitively high, lacking scienter, and collected by the IRS — even if it could not be sustained under the Commerce Clause.

What sources define presidential executive authority, and what is the Youngstown framework?

Article II vests executive power. Justice Jackson's Youngstown tripartite framework: (1) acting with congressional authorization — power at maximum; (2) acting in congressional silence — 'zone of twilight'; (3) acting against Congress's expressed will — power at its 'lowest ebb.'

Distinguish a treaty from an executive agreement.

A treaty requires Senate ratification by a two-thirds vote and is the 'supreme law of the land.' An executive agreement is made by the President alone (or with simple-majority congressional approval), needs no two-thirds Senate ratification, but cannot override a prior federal statute or the Constitution.

What does Missouri v. Holland hold about the treaty power?

A valid treaty, plus implementing legislation under the Necessary and Proper Clause, can grant Congress authority to legislate on matters otherwise beyond its enumerated powers; treaties are not limited by the Tenth Amendment in the same way as ordinary legislation.

What is the scope of the presidential pardon power?

Under Article II, the President may grant reprieves and pardons for federal offenses (not state offenses), and not in cases of impeachment; the power extends to offenses before formal charges and cannot be limited by Congress.

Explain the difference between presidential removal power and appointment of officers.

The President appoints principal officers with Senate advice and consent; Congress may vest appointment of inferior officers in the President, courts, or department heads. The President generally may remove executive officers, but Congress can impose for-cause limits on removal of officials performing quasi-legislative/quasi-judicial functions, except for single-head independent agencies (Seila Law).

What is the state action doctrine and why does it matter?

Most constitutional rights (notably under the 14th Amendment) restrain only governmental, not private, conduct. A plaintiff must show 'state action' to invoke these protections against an actor.

What are the two main tests for finding state action in private conduct?

(1) The public function exception — a private entity performs a function traditionally and exclusively reserved to the state (e.g., running elections, a company town); and (2) significant state involvement / entanglement — the state affirmatively facilitates, encourages, or is entwined with the private conduct (e.g., Shelley v. Kraemer judicial enforcement).

Distinguish procedural due process from substantive due process.

Procedural due process requires fair procedures (notice and a hearing) before the government deprives a person of life, liberty, or property. Substantive due process protects certain fundamental rights from government interference regardless of the procedures used.

What is the Mathews v. Eldridge balancing test for procedural due process?

Courts weigh (1) the private interest affected, (2) the risk of erroneous deprivation under current procedures and the value of additional safeguards, and (3) the government's interest, including fiscal and administrative burdens.

What levels of scrutiny apply to substantive due process, and to which rights?

Strict scrutiny applies to fundamental rights (e.g., privacy, marriage, travel, voting) — law must be narrowly tailored to a compelling interest. Rational basis applies to non-fundamental economic/social rights — law need only be rationally related to a legitimate interest.

State the three tiers of equal protection scrutiny and their classifications.

Strict scrutiny: race, national origin, alienage (state), and fundamental rights — narrowly tailored to a compelling interest. Intermediate scrutiny: gender and illegitimacy — substantially related to an important interest. Rational basis: all other classifications (age, wealth, disability) — rationally related to a legitimate interest.

What must a plaintiff show to trigger heightened equal protection scrutiny for a facially neutral law?

Both discriminatory effect (disparate impact) and discriminatory intent/purpose; disparate impact alone (Washington v. Davis) triggers only rational basis review.

How are affirmative action / racial classifications analyzed under Equal Protection?

All government racial classifications, benign or invidious, receive strict scrutiny (Adarand). Diversity in higher education was formerly a compelling interest, but Students for Fair Admissions v. Harvard (2023) held race-conscious admissions unconstitutional.

What are the elements of a regulatory takings analysis under the Takings Clause?

The Fifth Amendment (applied to states via the 14th) bars taking private property for public use without just compensation. A permanent physical invasion (Loretto) or a regulation denying all economically viable use (Lucas) is a per se taking; otherwise courts apply the Penn Central factors.

State the Penn Central regulatory takings factors.

(1) The economic impact of the regulation on the owner, (2) the extent to which it interferes with distinct investment-backed expectations, and (3) the character of the government action (e.g., physical invasion vs. a public program adjusting benefits and burdens).

How does the Court interpret 'public use' in eminent domain (Kelo v. New London)?

'Public use' is read broadly as 'public purpose'; the government may take property and transfer it to private parties as part of a comprehensive economic development plan, so long as it serves a public benefit.

What are the unconstitutional conditions / exactions tests for development permits (Nollan/Dolan)?

A permit condition requiring dedication of property must have an 'essential nexus' (Nollan) to a legitimate state interest and 'rough proportionality' (Dolan) between the condition and the projected impact of the proposed development.

How is content-based versus content-neutral speech regulation analyzed?

Content-based restrictions (regulating subject matter or viewpoint) receive strict scrutiny — narrowly tailored to a compelling interest. Content-neutral restrictions (time, place, manner) receive intermediate scrutiny — narrowly tailored to a significant interest, leaving ample alternative channels.

List the principal categories of unprotected or less-protected speech.

Incitement to imminent lawless action (Brandenburg), true threats, fighting words, obscenity, defamation, and speech integral to criminal conduct; commercial speech receives intermediate protection.

State the Brandenburg test for incitement.

Speech advocating illegal action may be punished only if it is (1) directed to inciting or producing imminent lawless action and (2) likely to incite or produce such action.

What is the Miller test for obscenity?

Material is obscene (and unprotected) if (1) the average person, applying contemporary community standards, finds it appeals to the prurient interest; (2) it depicts sexual conduct in a patently offensive way as defined by state law; and (3) it lacks serious literary, artistic, political, or scientific value.

What is a prior restraint and what standard governs it?

A prior restraint is government action barring speech before it occurs (injunctions, licensing). It bears a 'heavy presumption against constitutional validity' (Near v. Minnesota; Pentagon Papers), and is permitted only in the most exceptional cases (e.g., direct, immediate, irreparable harm to national security).

What is the actual malice standard for defamation of public officials/figures (New York Times v. Sullivan)?

A public official or public figure suing for defamation must prove, with convincing clarity, that the defendant published a false statement with 'actual malice' — knowledge of its falsity or reckless disregard for whether it was true or false.

What is the Lemon test, and what is its current status under the Establishment Clause?

The Lemon test asked whether a law (1) had a secular purpose, (2) had a primary effect neither advancing nor inhibiting religion, and (3) avoided excessive government entanglement with religion. Kennedy v. Bremerton (2022) abandoned Lemon in favor of analysis grounded in historical practices and understandings (coercion test).

What standard applies to Free Exercise Clause claims after Employment Division v. Smith?

A neutral law of general applicability that incidentally burdens religion need only satisfy rational basis. But a law that is not neutral or not generally applicable (targets religion) triggers strict scrutiny (Church of Lukumi Babalu Aye).

What standards govern freedom of association and the right to assembly?

Freedom of association is protected as an aspect of the First Amendment; laws infringing expressive association face strict scrutiny, and the government cannot compel disclosure of membership or punish mere membership absent specific intent to further illegal aims. Public-forum assembly may be subject to content-neutral time, place, and manner regulations.