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REMEMBER COUNTERARGUMENTS AND CONCLUSIONS

Tactic: If the law denies the right to everyoneDP analysis


If the law denies the right to some, while allowing it to othersEP analysis
Equal Protection and Strict Scrutiny
I.
Question presented
II.
Key Facts
III.
Analysis
a. ID THE PROPER CONSTITUTIONAL PROVISION
i. State law: 14th Amendment (since Brown)
ii. Federal law: 5th Amendment
1. Courts read EP into the 5th Am Due Process Clause.
According to Bolling v. Sharpe, some discrimination may
be so unjustifiable as to be violative of due process.
b. ID the issues/classifications (who does the law protect/effect)
i. Why is this important? B/c it will trigger SS or RR
c. Show discriminatory intent/effect
i. Define: Discriminatory intent can be shown when the law is
discriminatory on its face or may be inferred when the law is
applied to only one group, the effect of the law has a disparate
impact on one group, or circumstantial evidence illustrates
discriminatory intent (Arlington).
ii. Why you need to show: According to Washington v. Davis, you
need to show discriminatory intent behind the law in order to
make an EP claim. Need to show this b/c EP clause is
concerned with stopping discriminatory acts, not about bringing
about equal results. Lots of laws might have some
discriminatory impact given the differences btwn groups that
exist.
1. If the law is discriminatory on its face, this obviously
shows discriminatory intent
a. Strauder v. West Virginiablack jurors excluded
from juries
b. Palmore v. Sidotimother denied custody b/c of
interracial marriage
c. Plessy v. Fergusonseparate RR cars
2. If law is facially neutral, must show discriminatory impact
and intent (Washington)must look to totality of the
circumstances
a. If the impact of the law affects a particular group
so disproportionately, intent can be inferred.
i. Yick Wo v. Hopkinsapplication of laundry
permits (doesnt invalidate law)
ii. Gomillionredistricting of Tuskegee to
exclude black voters (invalidate law)

b. If not, look at these factors (Arlington)


i. Impact
ii. Historical background of decision
1. the historical background of the
decision is one evidentiatry source,
particularly if it reveals a series of
official actions taken for invidious
purposes (Arlington)
2. Hunter v. Underwood or Rogers v.
Lodge
iii. Specific sequence of events leading up to
challenged action
1. The specific sequence of events
leading up to the challenged decision
also may shed some light on the
decisionmakers purposes
(Arlington)
iv. Departures from normal procedural
sequence of how things are usually done
v. Legislative or administrative history
1. The legislative or administrative
history may be highly relevant,
especially where there are
contemporary statements by
members of the decisionmaking
body, minutes of its meetings, or
reports. (Arlington)
c. Once discriminatory intent is shown, burden shifts
to gov to show same decision wouldve resulted
even if impermissible purpose had not been
considered (Arlington)
d. Effect has to be shown too but this likely will be no
problem (Palmerswimming pool case suggests
that intent alone not enough, must also show
effect)
iii. If discriminatory intent is shown, go to level of scrutiny
iv. If none, no claim under EP
d. Level of Scrutiny
i. Based on race or national originstrict scrutiny (Carolene)
1. Affirmative action plans qualify as well (only by govnot
pvt actors)
ii. Based on sexintermediate (see next set-up)
iii. Based on something else (age, disability, wealth, sexual
orientation)rational basis review
e. Strict Scrutiny

i. Prejudice against discrete and insular minorities may be a


special condition[and] may call for a correspondingly more
searching inquiry. (US v. Carolene Products)
ii. Because [something] is an immutable characteristic, it is unfair
to discriminate against people for a characteristic they are born
with and cannot change (Fronterio v. Richardson). Also race
classifications cause stigma to those that are racially classified
(Brown)
iii. All racial classifications must meet strict scrutiny (Adarand,
Croson, Korematsu)
iv. Need to apply strict scrutiny to smoke out illegitimate uses of
race (Croson)
v. Requires that the law be narrowly tailored in order to serve a
compelling government interest (Korematsu). There is a
presumption of unconstitutionality.
1. Compelling interest
a. Something necessary, a pressing public interest
like national security or public safety
b. Cant be too generalized or amorphous (Croson)
i. National security (Korematsu)
ii. Prison safety (Johnson)
iii. Diversity (Grutter)
iv. Remedying specific discrimination (Swann,
Parents Involved)
1. This is a compelling interest b/c it
is addressing a past
constitutional violation
v. Compliance with federal law (Miller and
Bush v. Veracompliance with Voting
Rights Act)
vi. Distribute opportunities more widely
(Parents Involved Kennedy concurrence)
vii. NOT
1. Possibility of injury (Palmore
custody)
2. Minority models (Wygant)
3. Remedying general societal
discrimination (Croson and Adarand)
c. Is there a special constitutional niche?
i. An agency that is better equipped with
specialized knowledge to determine
needs of the group should be given
more deference (Grutter)
1. Counter: Court doesnt want to
broaden scope of constitutional
niche (Parents Involved, VMI)

2. Not expert agency


2. Narrowly tailored
a. A law that only furthers the particular interest
b. Test:
i. Not over-inclusive
ii. Not under-inclusive
iii. Is the law the least restrictive means for
achieving the interest or is there a raceneutral alternative? (Wygant)
c. Good
i. Using holistic approach with individualized
interpretations (eg: race as one factor)
(Grutter)
d. Bad
i. Quotas (Bakke, Croson, Adarand, Gratz)
ii. Cant just generally benefit all minorities
(Croson)
3. Presumption of unconstitutionality
4. BOP on gov
f. For affirmative action cases
i. STRICT SCRUTINY TRIGGERED: All racial classifications,
imposed by whatever federal, state or local governmental
actor, must be analyzed by reviewing court under strict
scrutiny. (Adarand v. Pena) (reaffirmed in Grutter and Gratz)
ii. Today, for the first time, a majority of the Court has adopted
strict scrutiny as its standard of Equal Protection Clause
review of race-conscious remedial measures (Richmond v.
Croson)
iii. Why? No way of determining benign discrimination without
applying SSneed to smoke out the motive. And
classifications still stigmatizing (Croson)
1. Compelling interests
a. Diversity (Grutter)
b. Remedying specific discrimination (Swann and
Parents Involved)
c. Not
i. Minority role models (Wygant)
ii. Remedying general discrimination
(Croson and Parents Involved)
1. This Court never has held that
societal discrimination alone is
sufficient to justify a racial
classification. (Wygant)
iii. Enhancing Services Provided to Minority
Communities (Bakke)

iv. Cant be amorphousAn amorphous


claim that there has been past
discrimination in a particular industry
cannot justify the use of an unyielding
racial quota. (Croson)
d. Is there a special constitutional niche?
i. An agency that is better equipped with
specialized knowledge to determine
needs of the group should be given
more deference (Grutter)
1. Counter: Court doesnt want to
broaden scope of constitutional
niche (Parents Involved, VMI)
2. Not expert agency
2. Means
a. Holistic approach (Grutter)
i. Using race as one factorbut cannot
have numerical set-asides or points or
quotas
b. Quotas (Bakke, Gratz, Croson, Adarand)
3. Constitutional Niche? (Grutter)
g. For electoral redistricting
i. Using race to draw election districts must meet SS (Shaw
and Miller)
1. Dissenters in the cases say that b/c one person gets
a vote and every vote is equal, affirmative action is
different in a voting contextno one disadvantaged
(Souter in Shaw)
ii. TO TRIGGER SS: Is race being used to draw district lines?
1. Shawbizarre redistricting
2. Miller test to show race is predominant factor
motivating legislatures districting scheme
a. No requirement for bizarre shape
b. To show that race was predominant factor, you
can show that legislature subordinated other
traditional race-neutral districting principles
like:
i. Compactnessdrawing districts as
small as you can
ii. Contiguityusing standard shapes
iii. Respect for political subdivisions
iv. Communities defined by actual shared
interest
v. Incumbent protection
3. Why do we care? Stigma even though white voters
are not really being denied anything

iii. If SS applies, what survives?


1. Compelling interest
a. Compliance with fed lawVoting Rights Act
which requires the DOJ approve changes in
election systems in states with past
discrimination re: voting (Bush)
2. Narrowly tailored means
a. Districting must actually be necessary to
ameliorate effects of past discrimination (Bush)
IV.

Rational Basis Review (the default level of scrutiny under Carolene)


a. Court will defer to government economic and social regulations
unless they infringe on a fundamental right or discriminate against a
group that warrants special judicial protection (Carolene)
b. Who gets rational review?
i. Economic regs (Slaughterhouse with deference to Lochner
with little deference to now with deference again)
ii. Age
1. Mass. Board of Retirement v. Murgiapolice officers
iii. Wealth
iv. Disability
1. Cleburne
v. Sexual Orientation
1. Bowers
2. Romer
c. The means must rationally or reasonably further the underlying
governmental ends and the governmental ends must be legitimate
(Railway Express v. New York)
d. Why use? So that all person similarly circumstanced will be treated
alike (Royster Guano v. Virginia). Also, courts want to defer to the
legislature in order to respect and further the democratic process
and all laws have some exclusionary effect.
e. Test (Railway Express)
i. Start with presumption of constitutionality of the law
1. BOP on challenger
ii. Are the ends legitimate
1. Purpose will be legitimate if it advances a traditional
police power: protecting safety, public health or public
morals
2. Any conceivable legit purpose, even if not the govs
actual purposeas long as the govs lawyer can
identify a conceivable legit purpose, this will work
a. Where, as here, there are plausible reasons
for Congress action, our inquiry is at an end. It
is constitutionally irrelevant whether this
reasoning in fact underlies the legislative

decision because this Court never has insisted


that a legislative body articulate its reasons for
enacting a statute. (US Railroad Retirement
Board v. Fritz)

V.

3. YES
a. Public/traffic safety (Railway Express)
b. Public morals (NYC Transit Authority v. Beazer
methadone) (Bowers)
4. NOT
a. When purpose is a bare desire to harm
i. US Dept of Agriculture v. Morenofood
stamps harms hippies
ii. Romer v. Evansharm to homosexuals
by refusing to protect
iii. Cleburnementally disabled home
5. Protects class of one
a. Village of Willowbrook v. Olechretaliatory
easement
iii. Are the means rationally related to the legit ends (very
deferential std)
1. Anything that is not arbitrary and unreasonable
2. Underinclusiveness ok (Railway Express)
3. Overinclusiveness ok (New York Transit Authority
methadone)
4. Under- and over- inclusiveness ok (NYTA)
5. Piecemeal process ok (Railway Express)
6. NOT
a. Arbitrary and unreasonable
i. Alleghany Pittsburgh Coalproperty tax
based on recent sale
1. See Nordlinger for counter
(difference is that Nordlinger a
challenge to the tax law,
Allegheny a challenge to the
administrative practice)
b. Too broad to imply anything but bare desire to
harm (Romer)
7. Protects class of one
a. Village of Willowbrook v. Olecheasement
arbitrary
Conclusion

EP and Intermediate Scrutiny


I.
II.
III.

Question presented
Key Facts
Analysis
a. ID THE PROPER CONSTITUTIONAL PROVISION
i. State law: 14th Amendment (since Brown)
ii. Federal law: 5th Amendment (Adarandsame doctrine applies
to 5th as 14th)
1. Courts read EP into the 5th Am Due Process Clause.
According to Bolling v. Sharpe, some discrimination may
be so unjustifiable as to be violative of due process.
b. EP violation? Show discriminatory intent:
i. On face of statute
1. Craig v. Borennear beer sold to women 18+ but to
men 21+ b/c of traffic safety
2. US v. VMIprohibiting women from attending VMI
ii. Facially neutral; must show
1. Discriminatory impact
a. Look at same things above
2. Discriminatory purpose behind law
a. Look at same things above (apply Washington)
b. NOT Discrimination:
i. Geduldig v. Aiellopregnant v. nonpregnant people was not discriminatory
c. Standard of Review
i. Intermediate Scrutiny (Craig v. Borennear beer case): To
withstand constitutional challenge, previous cases establish
that classifications by gender must serve important
governmental objectives and must be substantially related to
those objectives.
ii. Why Intermediate? Compromise btwn
1. Strict scrutinyhistory of discrimination, sex is an
immutable characteristic, legislation moving in the
direction of ending gender discrimination (Brennan in
Fronterio)
2. Rational Basis14th Am meant only to apply to race
discrimination (Strauder v. W. Va.), biological
differences, original intent, not a discrete and insular
minority (John Ely)
iii. Important governmental ends (VMI says law requires an
exceedingly persuasive justificationmust not rely on
overbroad generalizations about the different talents,
capacities, or references of males and females)
1. YES

a. Remedying past discrimination


b. All the ones above
c. Can be based on real biological differences
(protecting children and preventing teenage
pregnancy)
i. Parham v. Hughesmother can sue for
wrongful deathmen could sue too if
established paternity (groups were men
with paternity and men without)
ii. Michael M. v. Superior Court of Sonoma
Countymen criminally liable for
statutory rape as a deterrent; women
already have a biological deterrent
iii. Nguyen v. INSautomatic citizenship to
kids born out of wedlock to American
mothers b/c maternity of child known
2. NOT
a. Administrative convenience (Fronterio v.
Richardson)
b. Actual ends that motivate action must be
considered
i. Mississippi University for Women v.
Hoganinvalidated same sex policy at
nursing schoolnot remedying past
discrimination b/c women not
discriminated against in nursing
c. Actual purpose based on gender stereotypes
US v. VMIdiversity not really the motive and
teaching style arg based on stereotypes
i. Miss. U v. Hoganstereotypes about
gender and nursing
ii. Counter: was upheld under Rostker
3. Special constitutional niche?
a. Not in VMIno deference (more recent) (might
say really an educational case) (counter:
military education)
b. Maybe some in Rostker
iv. Substantially furthered by the means
1. Not going to accept arbitrary or unreasonable
2. No clear standard articluated
v. Burden on government: parties who seek to defend genderbased government action must demonstrate an exceedingly
persuasive justification for that actionThe burden of
justification is demanding and it rests entirely on the State.
(VMI)

1. Tension here with Rostker v. Goldberg b/c Court says


it wont substitute its judgment for Congressional
decisionssome deference to the military
VI.

Conclusion

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Due Process
I.
Question Presented: Does ________ violate the Due Process Clause
of _________?
II.
Key Facts
III.
ID the Right/Frame the Right
a. Level of Generality2 ways to determine (DO BOTH)
i. Glucksbergcareful description of the right, phrased
narrowly
ii. Lawrence or Caseyhigh level of generality
b. Why is defining the right important? Because it will trigger SS or RR
IV.
Is the right fundamental?
a. Enumerated Right in C?
i. If State case, incorporated?
b. Incorporating Selective Incorporation Plus (Harlan/Frankfurter in
Adamson standard)liberty and due process is open-ended which
courts must interpret the meaning of.
i. Cardozo in Palko Fundamental Fairness Test
1. Liberty and justice depend on protecting the right
2. Implicit in the concept of ordered liberty
3. So rooted in the tradition and conscience of our
people as to be ranked as fundmamental
ii. Harlan in Griswold says fundamental rights test is a rational
continuum. Must look to:
1. Precedent
a. Privacy
i. Meyer v. Nebraskaright to raise
children as you wish
ii. Pierce v. Society of Sistersright to
raise kids
iii. Skinner v. Oklahomaright to procreate
(sterilization)
iv. Lovingright to marry
v. Griswold v. CTright to privacy in
marital relationship
vi. Eisenstadt v. Bairdprivacy right
extended to individuals seeking
contraception
vii. Roe v. Waderight to control
body/choose an abortion
1. Privacy is an essential
component of liberty
b. Right to refuse medical treatmentCruzan v.
Director, MO Dept. of Health
i. But must be an informed, voluntary
choice a person makes for him/herself

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V.

c. No right to determine time and manner of your


own deathWashington v. Glucksberg
d. Not fundamental but right to personal
relationships, the home, spatial and
transcendent dimensions (personal relations
essentially)Lawrence v. Texas
2. Outstanding human practices (previously protected)
3. State laws offering protection
4. Absence of state laws
5. International law
6. Consequences of not recognizing the right
7. Limit: Does the government still place limitations on
the right?
8. Limit: If the issue is hotly contested, should leave to
political process (Glucksberg)
Standard of review
a. Deference to the legislature unless there is an infringement of a
fundamental rightthen heightened scrutiny (Carolene)
i. Griswold, Zablocki, and Loving all triggered SS
ii. Lawrence was RR
iii. For abortion cases, undue burden
b. SS
i. Requires that the law be narrowly tailored in order to serve a
compelling government interest (Korematsu). There is a
presumption of unconstitutionality.
ii. Why use? Some rights are so fundamental that they belong
to a person just by virtue of them being human OR liberty
and justice depend on protecting a fundamental right
(Cardozo in Palko)
iii. Compelling Interest
1. Marriage (Turner v. Safelyprisoners right to marry
says upholding the institution of marriage is a
compelling governmental interest; Griswold too)
2. Protecting children (Zablocki)
3. Counters would be alternative laws or decriminalization of certain things show that not such a
compelling interest anymore
iv. Narrowly tailored
1. A law that only furthers the particular interest
2. Test:
a. Over-inclusive
b. Under-inclusive
i. Lovingpreserving the integrity of only
one race
c. Is the law the least restrictive means for
achieving the interest ?

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v. Presumption of unconstitutionality
vi. BOP on gov
c. RR (the default level of scrutiny under Carolene)
i. Court will defer to government economic and social
regulations unless they infringe on a fundamental right or
discriminate against a group that warrants special judicial
protection (Carolene)
ii. The means must rationally or reasonably further the
underlying governmental ends and the governmental ends
must be legitimate (Railway Express v. New York)
iii. Why use? Governments must have the power to curtail
rights in order to operate
iv. Test (Railway Express)
1. Start with presumption of constitutionality of the law
a. BOP on challenger
2. Are the ends legitimate
a. Purpose will be legitimate if it advances a
traditional police power: protecting safety,
public health or public morals
b. Any conceivable legit purpose, even if not the
govs actual purposeas long as the govs
lawyer can identify a conceivable legit purpose,
this will work
i. Where, as here, there are plausible
reasons for Congress action, our inquiry
is at an end. It is constitutionally
irrelevant whether this reasoning in fact
underlies the legislative decision
because this Court never has insisted
that a legislative body articulate its
reasons for enacting a statute. (US
Railroad Retirement Board v. Fritz)
c. NOT
i. When purpose is a bare desire to harm
1. Lawrencemoral disapproval not
enough
d. Protects class of one
i. Village of Willowbrook v. Olech
retaliatory easement
3. Are the means rationally related to the legit ends (very
deferential std)
a. Anything that is not arbitrary and unreasonable
b. Underinclusiveness ok (Railway Express)
c. Overinclusiveness ok (New York Transit
Authoritymethadone)
d. Under- and over- inclusiveness ok (NYTA)

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e. Piecemeal process ok (Railway Express)


f. NOT
i. Arbitrary and unreasonable
g. Protects class of one
i. Village of Willowbrook v. Olech
easement arbitrary
d. For abortion cases: UNDUE BURDEN TEST
i. Prior: define the rightcan you get out of this test?
ii. Define: A law is an undue burden if its purpose or effect is to
place a substantial obstacle in the path of a woman seeking
an abortion before the fetus attains viability (Casey).
iii. Why use: This is the standard adopted in abortion cases
under Casey
iv. Pre-viability: Undue burden test
1. Undue burden
a. Spousal consent
b. No exception for preservation of mother
(Sternberg, Casey)
2. Not
a. Incidental burdens okaythose that dont
strike at the heart of the right but may affect the
right
b. Waiting period
c. Informed consent
d. Fetal viability tests
e. Parental consent for minors
v. Post-viability: State can ban abortion

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Commerce Clause
I.
II.
III.
IV.
V.
VI.

Question Presented: Does the _________ exceed Congress power


under the Commerce Clause?
Key Facts:
Authority for Commerce Power: Article I, 8 of the C gives Congress
the power to regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes
ID the standard
a. Does Congress have a rational basis for determining that the
activity has a substantial effect on interstate commerce? (Raich)
ID the regulated activity
a. Broadly
b. Narrowly
Lopez test
a. Channels and instrumentalities
i. Define: Things that facilitate movement or move in interstate
commerce
1. Heart of Atlantachannel
2. Shreveport Rateinstrumentalities
ii. Apply
iii. Counter
iv. Conclude
b. Substantial Effect
i. Define: Activities that have a substantial relation to or
substantially affect interstate commerce; factors of the test
are whether or not the activity is economic, if there is a
jurisdictional hook (Lopez)
ii. Economic Activty
1. Define: if the activity itself is inherently commercial or
economic, not its effect on the economy (Lopez)
a. Apply
b. Counter
2. Part of a comprehensive scheme?
a. Define: where the government is trying to
control a national market (Wickard), then the
activity is likely economic even though it may
not have any commercial value on its own
(Raich)
i. RaichCSA part of a bigger plan to
control drug trade nationally
3. If economic, then it can be aggregated to show
substantial effect
a. Wickardsubstitution effect and if everyone
did this

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b. Raichmakes it harder to regulate nonhomegrown potno labels


4. Counter: cant pile inference upon inference to get to
economic activity
a. Counter: The relationship is more direct to
interstate commerce; have to make an
inference but it is more direct (McClung)
5. Counter: Necessary and Proper clause (Mculloch)if
the ends are legitimate, defer to Congress as to the
meansthis is Congress power under the Necessary
and Proper clause of the C
6. Conclusion
iii. Jurisdictional hook
1. Define: Whether the law has some jurisdictional
element written into the legislation that ties activity to
interstate commerce
2. Why necessary? Provides a roadmap for the Court
3. Not a requirement
4. Apply
5. Counter
6. Conclusion
iv. Congressional Findings
1. Define: Statistics or other evidence to support the
claim that the activity has a substantial effect on
interstate commerce
2. Not a requirment
3. Why? Gives a strong presumption that Congress
actions effect interstate commerce (Lopez)want to
make sure that the law is not just pretext and
Congress is regulating interstate commerce instead of
trying to make the world a better place
a. Want to show there is a backbone to the law
4. Apply
5. Counter
6. Conclusion
v. 4th Factor
1. Is activity traditionally regulated by State or local
authority? If so, Court will not find a legitimate
regulation of interstate commerce
2. Never mentioned in Lopez but inferred
3. Why does this matter? State autonomy should be
preserved to enable ppl in a state to exercise electoral
accountability. People can vote out lawmakers they
dont like. Its more difficult to exercise that power over
federal law (Kennedy in Lopez)

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VII.

VIII.

a. States are labs of democracytest out at state


level and then take them to feds
b. Counter: maybe there are things that you dont
want the State messing with
c. Counter: Any federal involvement possible?
4. Conclusion
c. Overall Conclusion for substantial effects test
If asked how to fix the law
a. Specify with clarity the regulated activity
b. Juris hok?
c. Congressional findings?
d. Define long history of feds regulating activity
e. Apply law to broader population
f. Conclusion
Overall Conclusion

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SEPARATION OF POWER
I.
II.
III.

IV.

V.

Question Presented: Does the _________ exceed the Presidents


power?
Key Facts:
Authority for Presidential Power: Article II of the C says that The
executive Power shall be vested in the President...The president shall
be Commander in Chief of the Army He shall take Care that the
Laws be faithfully executed.
a. Implies that the President has implicit powers. But it is unclear how
broad his power are under this provision.
ID the regulated activity
a. Why does this matter? Defining the power is important because
some Presidential power is inherent and has few limitations in its
applications but some power has many limitations and will be
harder to exercise. (Youngstown)
Scope of Presidential Power according to Youngstown
a. MODEL 1: Truman says that President has unlimited power to act
in time of emergency and the only limits are those imposed by the
people by voting or impeachment or Congressional intervention.
b. MODEL 2: Black says that President needs explicit authorization.
Can get this authorization by
i. An act of Congress (statute)
ii. The Constitution
iii. But president cant be the enforcer and the lawmaker
iv. Activities that are too far removed from within the theater of
war President is not empowered to act
c. MODEL 3: Frankfurter says that a systematic, unbroken, executive
practice, long pursued to the knowledge of Congress and never
before questioned, engaged in by Presidents who have been sworn
to uphold the C, making as it were such exercise of power part of
the structure of the government may be treated as a gloss on
executive Power vested in the President. Look to history and
tradition.
d. MODEL 4: Jackson says that Presidential power turns on
Congress actions. The Presidents actions are not looked at in
isolation.
i. Model applied
1. Zone 1: Congressional Support
a. Statute enacted by Congress; approval given
for an action
b. POWER: full presidential power
c. Rational basis review
d. Judicial review is minimal
e. Limits
i. BoR

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ii. If Congress doesnt have the power to


grant to the president (ultra vires
acting beyond the scope of its power)
2. Zone 2: Twilight Zone
a. Congressional silence or Congressional
indifference
b. POWER: Has some authority, but unclear
i. To determine power
1. History of executive action in the
area
2. Trend in legislationwhat is
Congressional view of power in
this area?
c. Judicial review more assertive
d. Never really falls into this category
3. Zone 3: Congressional Disapproval
a. President can only rely on his explicit
presidential power
b. Strict Scrutiny
c. Power is at its lowest ebb
d. Limits: Any vested grant of power in the
President (pardons) doesnt require
Congressional approval

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