Constitutional Law

Core MBE-tested Constitutional Law rules, each with a primary-source citation. Open in rapid-review mode →

• Judicial Review AuthorityFederal courts have authority to review constitutionality of legislative and executive acts under Marbury v. Madison.
• Case or Controversy RequirementFederal courts may only hear actual cases or controversies presenting real, adverse interests.
• Injury in FactStanding requires a concrete, particularized, actual or imminent injury.
• Causation & RedressabilityThe injury must be fairly traceable to the defendant and likely redressable by a favorable court decision.
• Third-Party StandingA litigant may assert third-party rights when there is a close relationship and obstacles prevent the third party from…
• Organizational StandingAn organization may sue on behalf of its members when they have standing and individual participation is unnecessary.
• RipenessA claim is unripe when it is premature for review due to insufficiently developed facts.
• MootnessA case is moot when a live controversy no longer exists unless an exception applies.
• Political Question DoctrinePolitical questions are nonjusticiable when constitutionally committed to another branch or lacking judicial standards.
• Supreme Court Review of State JudgmentsSCOTUS may review state court decisions that involve federal issues if the state court reached a final judgment.
• Adequate and Independent State GroundsSCOTUS cannot review state decisions resting on adequate and independent state grounds.

• Congressional Power: Necessary & ProperCongress may enact laws rationally related to executing its enumerated powers.
• Commerce Power: ChannelsCongress may regulate channels of interstate commerce.
• Commerce Power: InstrumentalitiesCongress may regulate instrumentalities and persons or things in interstate commerce.
• Commerce Power: Substantial EffectsCongress may regulate intrastate activities that substantially affect interstate commerce.
• Tenth Amendment LimitsCongress may not commandeer state governments to enforce federal regulatory programs.
• Spending Power ConditionsCongress may attach conditions to federal funds if related to the program and not unduly coercive.
• Taxing PowerCongress may tax if the measure raises revenue or is intended as a tax.
• Enforcement of Civil Rights (14th Amendment)Congress may enforce 14th Amendment rights through congruent and proportional legislation.

• War & Military PowersCongress may declare war and regulate military forces, and war powers expand federal authority.
• Presidential Powers: Executive AuthorityThe President executes laws, manages foreign policy, and commands the military.
• Executive AgreementsExecutive agreements are valid international agreements requiring no Senate approval.
• Treaty PowerTreaties require Senate approval and supersede conflicting state laws.
• Youngstown CategoriesPresidential power is strongest with congressional authorization and weakest when acting against congressional intent.
• Appointment PowerThe President appoints principal officers with Senate consent; Congress may vest inferior appointments in courts or…
• Removal PowerThe President may remove executive officials unless removal protections are constitutionally permissible.
• ImpeachmentOfficials may be impeached for treason, bribery, or high crimes and misdemeanors; House impeaches, Senate convicts.

• PreemptionFederal law preempts conflicting state law expressly or implicitly when Congress intends to occupy the field.
• Dormant Commerce ClauseStates may not discriminate against or unduly burden interstate commerce absent legitimate local purpose.
• Privileges & Immunities (Article IV)States cannot discriminate against nonresidents regarding fundamental economic activities without substantial…
• State Taxation of Interstate CommerceState taxes on interstate commerce must be nondiscriminatory and fairly related to services provided.

• State Action RequirementConstitutional claims require state action unless private conduct is traditionally exclusive public function or…
• Takings Clause: Regulatory TakingsRegulations that go too far in diminishing property value may constitute takings requiring just compensation.
• Exactions & MitigationExactions must have an essential nexus and rough proportionality to the development’s impacts.
• Public Use RequirementTakings are valid if rationally related to a conceivable public purpose.

• Procedural Due Process: Notice & HearingProcess requires notice and opportunity to be heard before deprivation of life, liberty, or property.
• Procedural Due Process BalancingThe adequacy of procedures is determined by balancing the private interest, risk of error, and government interest.
• Substantive Due Process: Fundamental RightsLaws burdening fundamental rights require strict scrutiny.
• Right to PrivacyPrivacy includes marriage, procreation, contraception, family relations, child-rearing, and certain bodily autonomy…
• Abortion RegulationStates may regulate abortion pre-viability if they do not impose an undue burden; post-viability bans require…
• Sexual IntimacyAdults have a liberty interest in private, consensual sexual intimacy free from criminal punishment.
• Right to TravelThe right to travel prohibits durational residency requirements burdening new residents.

• Equal Protection: Levels of ScrutinySuspect classes trigger strict scrutiny, quasi-suspect intermediate scrutiny, and all others rational basis review.
• Race-Based ClassificationsRacial classifications require strict scrutiny whether burdensome or beneficial.
• Gender-Based ClassificationsGender classifications require intermediate scrutiny with an “exceedingly persuasive justification.”
• Alienage ClassificationsAlienage classifications generally receive strict scrutiny unless related to core governmental functions.
• Nonmarital ChildrenClassifications disadvantaging nonmarital children receive intermediate scrutiny.
• Rational Basis ClassificationsAll other classifications are upheld if rationally related to a legitimate government purpose.

• Free Speech: Content-Based RestrictionsContent-based speech restrictions require strict scrutiny.
• Content-Neutral RestrictionsContent-neutral time, place, and manner restrictions require intermediate scrutiny.
• Commercial SpeechCommercial speech is protected if truthful and lawful, and restrictions must directly advance a substantial government…
• Obscenity TestMaterial is obscene if it meets the Miller test: prurient interest, patently offensive, and lacking serious value.
• Incitement StandardIncitement requires advocacy of imminent lawless action likely to produce such action.
• Fighting WordsFighting words are unprotected when they are likely to provoke immediate violence.
• Forum DoctrineSpeech regulations vary by forum type: public, designated public, limited, or nonpublic.
• Prior RestraintsPrior restraints are presumptively invalid and require strong justification.
• Freedom of AssociationLaws burdening expressive association require strict scrutiny.

• Free Exercise ClauseNeutral, generally applicable laws do not violate free exercise even when incidentally burdening religion.
• Establishment Clause TestEstablishment Clause violations are evaluated using historical practice, neutrality, or coercion analyses depending on…
• Government Speech DoctrineGovernment speech is not subject to Free Speech Clause limitations.