Constitutional Law Exam Checklist

Start every fact pattern by identifying the actor and the injured party. Ask: who is acting (Congress, the President, an agency, a state legislature, a city, a private entity acting under state authority), and who is complaining? That single question routes you into one of two branches. If a government is acting and someone says "you had no authority to do that," you are in a power/structure question. If someone says "you had authority but you may not use it against me this way," you are in a rights question. Many exams give you both: Congress passes a statute (federal power) that burdens speech (rights).

Then run the branches in order. Justiciability first, because a court that cannot hear the case never reaches the merits. Then, for federal action, find an enumerated power. Then check external limits (Bill of Rights, Fourteenth Amendment, Article I § 9). For state action, remember states have general police power, so skip the "find a power" step and go straight to limits: dormant Commerce Clause, preemption, Article IV Privileges and Immunities, and individual rights.

Keep the checklist to roughly two pages. If it is longer, you will not use it under time pressure. Under each doctrine write the test verbatim, the burden of proof and who carries it, and two or three fact triggers that tell you the issue is live.

Run standing element by element and attach a fact to each: injury in fact (concrete, particularized, actual or imminent), causation, and redressability, per Lujan v. Defenders of Wildlife. Note the prudential add-ons: no third-party standing absent a close relationship and obstacle to the right-holder's suit, no generalized grievances, and the taxpayer-standing bar with the Flast v. Cohen Establishment Clause exception. Organizational standing requires that a member would have standing individually and that the claim not require individual member participation.

Then check ripeness (has the harm occurred or is enforcement imminent), mootness (with exceptions for voluntary cessation and injuries capable of repetition yet evading review), the political question doctrine under the Baker v. Carr factors, and the Eleventh Amendment sovereign-immunity bar with the Ex parte Young workaround for prospective relief against state officers. Also flag the adequate and independent state ground doctrine if the question involves Supreme Court review of a state judgment.

For any federal statute, name the power first, then apply its test. Commerce Clause: Congress may regulate channels, instrumentalities and persons or things in interstate commerce, and activities substantially affecting interstate commerce. For the third category, ask whether the regulated activity is economic — if so, aggregate it under Wickard v. Filburn and Gonzales v. Raich; if it is noneconomic, United States v. Lopez and United States v. Morrison say no aggregation and the statute likely fails, especially without a jurisdictional element or findings. NFIB v. Sebelius adds that Congress cannot compel entry into commerce.

Taxing and spending: a tax is valid if it raises revenue and is not so punitive as to be a penalty (NFIB). Conditional spending is valid under South Dakota v. Dole if the condition is for the general welfare, unambiguous, related to the federal interest, does not induce unconstitutional action, and is not coercive — NFIB's Medicaid holding is the coercion example.

Section 5 of the Fourteenth Amendment lets Congress remedy or deter violations of rights the Court has recognized, but the remedy must be congruent and proportional to the documented violation (City of Boerne v. Flores). Congress cannot redefine the right. Finally, the Tenth Amendment anticommandeering rule: Congress may not order states to legislate (New York v. United States), may not conscript state officers to administer federal law (Printz v. United States), and may not prohibit states from legislating (Murphy v. NCAA). Generally applicable laws that regulate states along with private parties are fine.

Dormant Commerce Clause: first ask whether the law discriminates against out-of-state commerce facially, in purpose, or in effect. If yes, apply near-fatal scrutiny — the state must show a legitimate local purpose and no reasonable nondiscriminatory alternative (City of Philadelphia v. New Jersey). If the law is evenhanded, apply Pike balancing: invalid only if the burden on interstate commerce is clearly excessive relative to local benefits, a standard states usually win under (see National Pork Producers Council v. Ross). Two exceptions: congressional authorization, and the market-participant doctrine.

Article IV Privileges and Immunities applies only to citizens (not corporations or aliens) and only to fundamental rights, chiefly the right to pursue a livelihood; the state needs a substantial reason and a close means-end fit. Add preemption: express, field, conflict (impossibility or obstacle). Do not forget the Contracts Clause for state laws impairing existing contracts, and the Article I § 10 bills of attainder and ex post facto bars.

For executive action, use the Youngstown Sheet & Tube v. Sawyer framework from Justice Jackson's concurrence: acting with congressional authorization (maximum power), in congressional silence (twilight zone), or against congressional will (lowest ebb). Say which category and why. For legislative encroachment, INS v. Chadha bars the legislative veto and Clinton v. City of New York bars the line-item veto — both require bicameralism and presentment.

For appointments and removal, distinguish principal officers (presidential nomination plus Senate confirmation) from inferior officers (Congress may vest appointment in the President, courts, or department heads). On removal, the baseline is at-will presidential removal, with the narrowing exceptions of Humphrey's Executor and Morrison v. Olson; Seila Law LLC v. CFPB held that a single-director agency head with substantial executive power cannot be insulated by for-cause protection. Add nondelegation and the major questions doctrine (West Virginia v. EPA) for agency overreach, and note that Loper Bright Enterprises v. Raimondo ended Chevron deference.

State action first. Private conduct is unreachable unless it involves a traditional and exclusive public function, or entwinement and significant government encouragement (Brentwood Academy v. Tennessee Secondary School Athletic Ass'n; contrast Manhattan Community Access Corp. v. Halleck). Then ask which clause applies and identify the tier.

Substantive due process: for fundamental rights, Washington v. Glucksberg asks whether the right is deeply rooted in history and tradition and implicit in ordered liberty, and Dobbs v. Jackson Women's Health Organization applies that test aggressively. Fundamental rights get strict scrutiny (compelling interest, narrowly tailored, government bears the burden); everything else gets rational basis, which the challenger almost always loses. Procedural due process: identify a protected life, liberty, or property interest, then apply the Mathews v. Eldridge three-factor balance.

Equal protection: classify, then scrutinize. Race, national origin, and alienage (state laws, with a political-function exception) draw strict scrutiny; sex and legitimacy draw intermediate scrutiny, and United States v. Virginia requires an exceedingly persuasive justification; everything else, including age, disability, wealth, and sexual orientation as formally treated, draws rational basis — though City of Cleburne and Romer v. Evans show rational basis with bite. If the law is facially neutral, the challenger must prove discriminatory purpose plus effect (Washington v. Davis; Village of Arlington Heights). For race-conscious admissions, Students for Fair Admissions v. Harvard is the current rule.

Keep a short takings branch: per se physical occupation (Loretto; Cedar Point Nursery v. Hassid), total economic wipeout (Lucas), otherwise Penn Central's three factors, and Nollan/Dolan nexus and rough proportionality for exactions.

Speech starts with one question: is the regulation content-based or content-neutral? Content-based — including viewpoint- and subject-matter-based rules — triggers strict scrutiny (Reed v. Town of Gilbert). Content-neutral time, place, and manner rules in a public forum must be narrowly tailored to a significant interest and leave open ample alternative channels (Ward v. Rock Against Racism). Identify the forum: traditional, designated, limited, or nonpublic (reasonable and viewpoint-neutral). Before running scrutiny, check whether the speech falls in an unprotected category: incitement under Brandenburg v. Ohio, true threats, fighting words, obscenity under Miller v. California, defamation subject to New York Times Co. v. Sullivan, and fraud. Commercial speech gets Central Hudson intermediate review.

Add the cross-cutting doctrines: overbreadth, vagueness, prior restraint, unconstitutional conditions, compelled speech (West Virginia State Board of Education v. Barnette; 303 Creative LLC v. Elenis), and government speech, which is not subject to free speech challenge at all. For religion, Free Exercise turns on neutrality and general applicability under Employment Division v. Smith, with strict scrutiny if the law is not neutral or not generally applicable (Church of the Lukumi Babalu Aye v. City of Hialeah). Establishment Clause analysis now turns on history and tradition after Kennedy v. Bremerton School District, and the funding cases (Trinity Lutheran, Espinoza, Carson v. Makin) hold that excluding religious institutions from generally available benefits is itself a free exercise violation.