Attack Outline Flashcards
FEDERAL JUDICIAL POWER (A3S1) - Judicial Review: Judiciary may review [C.I.Q.]
- Constitutionality of federal law
- If state law is inconsistent with federal law
- Final state court decisions on CON/Federal questions
FEDERAL JUDICIAL POWER (A3S1) - XI Amendment: The Rule plus the 3 ways to bypass it (C.I.L)
Sovereign Immunity extends to all private un-consenting actions brought by persons in federal courts against states.
Bypassed by 1. CONSENT, 2. INJUNCTION against official 3. LOCAL govt/institutions unless “arm of the state”
FEDERAL JUDICIAL POWER (A3S1) - Justiciability - No Advisory Opinions (6 doctrines) [A.S.R.M.P.A.]
- No advisory opinions: Review must have concrete legal effect
- Standing: (I(CPA).C.R)1. Injury in Fact (Concrete, particularized, and either actual/imminent.) 2. Causation 3. Redressability
- Ripeness: (Except review of law if P will suffer from enforcement/is from the prospect)
- Mootness: P must have live controversy at all stages of review (except 1. Repeatable wrong 2. Voluntary Cessation 3. Class action)
- Political Question: If either 1. Constitutionally assigned to other branch 2. Inherently incapable of judicial resolution
- A.I.S.G.: If decision has force from state law and fed Q is irrelevant
FEDERAL JUDICIAL POWER (A3S1) - Standing (I(CPA).C.R.)
- Injury in Fact
a. Concrete,
b. particularized, and
c. either actual/imminent.) - Causation
- Redressability
FEDERAL JUDICIAL POWER (A3S1) - Federal Court Jurisdiction
S/C OG from CON, Else up to full A3 depending on LEG
Lower Court: Very existence of lower courts is subject to LEG
S/C OG: No modification by LEG:
1. Ambassadors,
2. ministers,
3. state party
S/C AP: Modification allowed but no directing rules of decision
CONGRESS: Regulation General Concepts: (Necessary and Proper) [L.S.F]
- No federal police power, only enumerated;
- LEG case = federalism
- If Necessary and Proper, Congress may do
a. ends legitimate,
b. within scope,
c. not forbidden)
CONGRESS: Commerce: [C.I.S.]
(1) Channel
(2) Instrumentality
(3) Substantial effect (Lopez)
- Aggregation principle (Wickard)
Expands from Old Standard of Commerce Clause before FDR to include manufacturing/production and indirect regulation; which previously was outside of CC authority.
CONGRESS: Taxing and Spending: Sebelius
Limited by mechanism rather than subject.
Sebelius: LEG can’t order people to do stuff but they can tax/spend to encourage behavior
CONGRESS: Taxing and Spending: DOLE TEST [G.U.G.C.N]
Conditional federal-state funds: okay if elements true
1. General welfare
2. Unambiguity
3. Germaneness; and
4. Constitutional compliance
5. No Severe Coercion (Sebelius, existing funding/substantial funds)
CONGRESS: Other Powers:
XIV-XVS5: (Due Process/Equal Protection) [R.C.S.]
- Remedial or preventative, but may not expand the right. (Boerne)
- Must be congruence between means/ends
Explanation: Legislation enacted under §5 must generally deter or prevent conduct that itself would violate the Fourteenth Amendment. - State action doctrine: Can’t use S5 powers against private individuals, only grants
power to regulate those capable of violating CON (states)
CONGRESS: Other Powers that are not XIII-XV, or Taxing/Spending: Other enumerated powers are: [R.I/C/S.L]
- Regulatory
- At individuals/corporations/states
- But with limits on the regulation of states by Congress (under Anti-Commandeering Principle)
CONGRESS: Treaties
Self executing treaties are enforceable without an act of congress
Non-self executing treaties need domestic legislation
If expands past LEG enumerated powers (valid); If shrinks individual rights (invalid);
Congress - Regulation of the States - New York
New York: FEDs may not compel states to action, but may pre-empt or incentivize
Congress - Anti-Commandeering Principle Generally
Anti-Commandeering Principle: If within the scope of enumerated power, still subject to analysis under the ACP if directed at states.
ACP: Congress has no power to command the state (or their political subdivisions) [or their officers] to take affirmative steps to govern their residents according to federal directives.
Four Limits [S.A.E.C]
1. Sovereign vs. proprietary capacities “Generally applicable legislation” (states can be objects of federal regulation)
2. Only forbids requirement of affirmative acts (Prohibitions are A-OK)
3. Can encourage states to act according to federal instructions with conditional spending (Dole test)
5. Can command state courts because of the Supremacy Clause
Relevant when:
1. Congress regulates states with an enumerated power that is not remedial XIVS5 (or other post reconstruction amdmts)
2. Limits on congressional power with regard to
a. generally applicable regulations b. in areas generally regulated by states Lopez: Schools/Crime Morrison: Torts
Congress: Anti Commandeering Principle Four Limits [S.A.E.C]
Four Limits [S.A.E.C]
1. Sovereign vs. proprietary capacities “Generally applicable legislation” (states can be objects of federal regulation)
2. Only forbids requirement of affirmative acts (Prohibitions are A-OK)
3. Can encourage states to act according to federal instructions with conditional spending (Dole test)
5. Can command state courts because of the Supremacy Clause
Congress: Two situations where ACP becomes relevant:
- Congress regulates states with an enumerated power that is not remedial XIVS5 (or other post reconstruction amdmts)
- Certain limits on congressional power with regard to
a. generally applicable regulations, in
b. areas generally regulated by states Lopez: Schools/Crime Morrison: Torts
Separation of Powers - Presidential Authority - Executive Action Test [C.T.P.]
(congress/twilight/presidential)
(a) Congress had implicitly authorized,
- (EXC supported by LEG)
(b) fell into the “zone of twilight” but was nonetheless permissible, or
- (No LEG opinion on EXC)
(c) contravened a federal statute, but was still constitutional because Congress had attempted to encroach on powers resting exclusively with the President.
- (EXC Opposed by LEG)
Separation of Powers - Recognition: Zivotofsky v. Kerry
President has the SOLE power of recognition
Separation of Powers - Appointment - Officers are appointees who meet two criteria: [C.S(d.f.f)]
(1) Continuing office authorized by law, and
- Act of Congress; Permanent; Persons in the Legislative Branch are not officers
(2) Exercise significant authority pursuant to the laws of the United States.
- Administrative Law Judges are officers as they are basically identical to Special Trial Judges in Freytag which were found to also be officers. Factors?
Separation of Powers - Appointment - Superior vs. Inferior officers
Superior: President appoints and senate approves
Inferior: Congress may vest appointment power in the President, Courts, or department heads.
Distinguishing the Two: Edmond: Whether one is an ‘inferior’ officer depends on whether he has a superior other than the President.
(Can make final, binding decisions on the executive branch)
Separation of Powers - Removal - Congress vs. President
Congress has no removal power except impeachment
Removal of executive officer’s is the President’s alone
Separation of Powers - Removal Limitations by Congress
Seilia: Removal limitations are presumptively unconstitutional unless
- Constitutional ONLY IF within Humphrey/Morrison boundary
Humphrey
- Multimember expert agencies without substantial executive power
Morrison
- Inferior officers with limited duties and NO policymaking/administrative authority
Separation of Powers - Other Principles - Nondelegation Doctrine
LEG cannot delegate lawmaking authority to executive agencies/private entities
Separation of Powers - Nondelegation Doctrine - “Intelligible Principle” test (giving LEG power to agencies) Yakus Congress must indicate: [P.A.B]
(1) a general policy
(2) the public agency which is to apply it; and
(3) the boundaries of this delegated authority
Separation of Powers - Other Principles - Line Item Veto
Line Item Veto: Unconstitutional, cannot just say that I dislike this specific part of statute, so I want to veto only that part. Must veto entire statute. Clinton
Structural Constraints on The States - The six most significant such restrictions [I.P.D.IV.XIV.F]
(1) the doctrine of federal immunity,
(2) the federal preemption of state law,
(3) the dormant Commerce Clause,
(4) the Privileges and Immunities Clause of Article IV,
(5) the Privileges or Immunities Clause of the Fourteenth Amendment, and
(6) the Full Faith and Credit Clause.
Structural Constraints on The States - (1) F. Immunity [R/T/D]
State or local governments may not either
(1) directly regulate
(2) or tax the federal government, or
(3) discriminate against the federal government.
Structural Constraints on The States - Statutory Waiver of Federal Immunity [C/U]
Must be
1. clear and
2. unambiguous
Structural Constraints on The States - (2) F. Preemption [E.I(:C{I.O}F)]:
- Express,
- Implied
(Conflict {Impossibility, Obstacle} Field)
Express: Explicit preemption in statute
Implied: No Express Statement
1. Conflict: FED/State law conflict
a. Impossible to comply with both
b. State law is an obstacle to the objective of the federal law; or
2. Regulatory scheme so comprehensive the intent to displace all state law in that field is clear
Structural Constraints on The States - (6) Full Faith and Credit Clause
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
A4S1 generally requires each state to respect state court judgments of other states.
Can apply own laws if “minimum connections”
Structural Constraints on The States - (3) The Dormant Commerce Clause
Absent express congressional authorization, states may not enact regulations or taxes that discriminate against or unduly burden interstate commerce. (NO PROTECTIONISM)
- If it discriminates against interstate commerce per se invalid (face/purpose)
Exception Only constitutional if (1) Legit non-protectionist governmental interest (2) State has no practicable, nondiscriminatory alternatives
Even if nondiscriminatory, still violates if “undue burden” PIKE 3 part test [O.E.B.]
(1) Operation (evenhanded?)
(2) Effect (incidental?)
(3) Burdens excessive v. local benefits?
Tax/Regulation of extraterritorial activities unconstitutional per se
Three circumstances where it does not apply
A. Congressional Commerce Clause express authorization
B. Discriminates in favor of the government in a traditional governmental function; and
C. Market Participant Exception: Can favor own citizens if market participant
Structural Constraints on The States - DCC Pike Undue Burden 3 Part Test [O.E.B.]
Even if nondiscriminatory, still violates if “undue burden”
(1) Operation (evenhanded?)
(2) Effect (incidental?)
(3) Burdens excessive v. local benefits?
Structural Constraints on The States - (4) AIVS2 Privileges AND Immunities + Public Policy reasons + Strict Scrutiny
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in OTHER States. (No discrimination by states against citizens of other states)
Public Policy: States cannot treat out of state residents differently from their own citizens, this would go against the principle of the Constitution as forming a “more perfect union”
Exception Saenz: STRICT SCRUTINY
1. Compelling governmental interest (for treating OOS citizens differently)
2. Law narrowly tailored to achieve that interest
Structural Constraints on The States - (5) AXIV Privileges OR Immunities:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
INDIVIDUAL RIGHTS - XIV Priveliges and Immunities Manhattan MCAC “State Actor” if the action is: [T.C.J]
XIV: No State shall make or enforce any law which shall abridge the privileges or immunities
Manhattan (MCAC) “State Actor” if the action is: [T.C.J]
(i) Traditional, exclusive public function;
1. Running elections 2. Opening a company town 3. Operating Prisons
(ii) Government compulsion; or
a. (with the purpose of undermining/evading constitutional rights)
(iii) Government acts jointly.
INDIVIDUAL RIGHTS - “Incorporation” Slaughterhouse and Timbs
Slaughterhouse: The BOR does not apply to states directly, only FEDs
Timbs: XIV Due Process incorporates to the states those constitutional protections fundamental to ordered liberty and deeply rooted in history and tradition.
1. “fundamental to our scheme of ordered liberty”; (SIGNIFICANCE); or
2. “deeply rooted in this Nation’s history or tradition.” (HISTORICAL PROTECTION)
3 Exceptions: III Troop Quartering, Vth right to grand jury indictment, VII civil trial right to jury
INDIVIDUAL RIGHTS - Takings Generally
Vth: Nor shall private property be taken for public use, without just compensation.
Analysis Framework:
1. Taking? (just compensation)
a. Per Se? [I.L.E.]
b. Regulatory Penn Central [E.I.C.]
- Public use? (private use flatly unconstitutional)
- But Private receiver for Public purpose OK
INDIVIDUAL RIGHTS - Regulatory Takings: Penn Central Test: Balancing:{E.I.C}
- Economic Impact,
- Investment backed expectations,
- Character of Govt. Actions
INDIVIDUAL RIGHTS - 3 Categorical Tests (per se takings): {I.L.E}
- Physical invasion, (regardless of size or duration) Lorretto
- loss of all economically beneficial/productive use, Lucas
- Exactions with no essential nexus to legitimate interests/proportionality Nollan
INDIVIDUAL RIGHTS - State Action Doctrine
Only the government can violate the constitution (except slavery)
INDIVIDUAL RIGHTS - Takings: Kelo
Is it for public use?: If not, flatly unconstitutional;
Kelo: Land may be given to a private owner if related to a possible public purpose.
(deferential to local govt.)
