Basics

Question 1

What are three powers?

Answer 1

Federal judicial power (power of courts)
Federal legislative power (power of Congress)
Federal executive power (power of President)

Question 2

What is federalism?

Answer 2

concept that there have to be limits on state and local govt power because there is a federal govt

Question 3

What is the federal judicial power?

Answer 3

• defined by Art III of Const.
• justiciabilty requirement for cases and controversies: Fed Cts must decide actual cases and controversies and not render advisory opinions

Question 4

What is required for case to be justiciable?

Answer 4

1) Standing: issue of whether P is proper party to bring matter to court
2) Ripeness: question of whether a fed ct may grant pre-enforcement review of statute or regulation (look to hardship that will be suffered without pre-enforcement review and fitness of issues and record for judicial review)
3) Mootness: if events after filing end P’s injury, case must be dismissed as moot–P must present a live controversy (but nonfrivolous money damages claim keeps case alive)
4) Political question doctrine: constitutional violations that fed ct will not adjudicate

In order for SCOTUS to hear a case, all justiciability requirements must be met

Question 5

What is required for P to have standing?

Answer 5

1) injury: P must prove that he or she has been or will imminently be injured
- not established with mere ideological objection, P must have personally suffered injury, Ps seeking injunctive or declaratory relief must show likelihood of future harm
2) causation and redressability: P must prove that D caused injury so that favorable court decision is likely to remedy harm (if a ruling would have no effect, it would be an advisory opinion)
3) No third party standing: P cannot assert claims of third parties who are not before the court because P must present personally suffered injuries
4) no generalized grievances: P must not be suing solely as citizen or taxpayer

Question 6

What are exceptions to no third party standing requirement?

Answer 6

1) it is allowed if there is a close relationship between P and injured third party so that P adequately represents 3P’s interests (e.g. Dr-Patient; but NOT non-custodial parent)
2) it is allowed if injured 3P is unlikely to assert their own rights
3) an org may sue for its members if a) members would have standing to sue and b) interests are germane to org’s purpose and c) neither claim nor relief requires participation of individual members

Question 7

What are exceptions to no generalized grievances requirement?

Answer 7

1) taxpayers have standing to challenge government expenditures pursuant to federal statutes as violating the establishment clause (BUT no standing to challenge law granting tax credits to persons who contribute to orgs that provide scholarships to students who attend private schools–no transfer of govt funds so doesn’t fall under Establishment Clause exception)
2) person has standing as citizen to allege that federal action violates 10th A by interfering with powers reserved to states as long as person can show injury in fact and redressability

Question 8

What are exceptions to mootness?

Answer 8

1) wrong is capable of repetition but evades review because of its inherently limited time duration [eg abortion]
2) voluntary cessation [D could start X up again]
3) class action suits [as long as one P is left, not moot]

Question 9

What kinds of cases are dismissed as non-justiciable political questions?

Answer 9

1) if a case challenges the republican form of govt (Art IV, Sec 4)
2) challenges to President’s conduct of foreign policy
3) challenges to impeachment and removal process
4) challenges to partisan gerrymandering

Question 10

How do cases get to SCOTUS?

Answer 10

virtually all come by writ of certiorari (all from state cts, all from US app. ct.)

• appeals exist for decisions of three-judge federal district courts
• SCOTUS has original and exclusive jx for suits between state govts

Question 11

When can SCOTUS hear case?

Answer 11

generally only after there has been a final judgment of highest state ct or US ct app., or 3 judge fed district ct [the final judgment rule]

Question 12

What must there not be for SC to review state court decision?

Answer 12

there must not be independent and adequate state law ground

Question 13

Lower federal court review?

Answer 13

a) fed cts and state cts may not hear suits against state govts (no immunity for local govts though) –> principle of sovereign immunity: 11th A bars suits against states in fed cts so state govts cannot generally be named as Ds in fed ct cases; sov imm bars suits against states in state cts or federal agencies and even on federal law claims
b) suits against state officers are allowed even if state cannot be named as D (officers can be sued for injunctive relief, money damages paid out of their pocket) but cannot be sued if state treasury will pay damages
c) fed cts may not enjoin pending state ct proceedings

Question 14

Exceptions to immunity for state govts? when can states by sued?

Answer 14

1) when state waives immunity (expressly consents to be sued)
2) pursuant to federal laws adopted under 14th A Sec 5
3) fed govt may sue state govt

Note: 11th A sov imm protection doesn’t apply to US Bankruptcy Cts

Question 15

What are Congress’ three big powers?

Answer 15

1) taxing
2) spending
3) commerce

Question 16

How does Congress get power?

Answer 16

• it must be express or implied for Congress to be abled to do something
• police power (MILD)
• Art 1 Sec 8: Congress can adopt all laws that are necessary and proper to exercise its authority under MILD powers

Question 17

What are the exceptions where Congress has a police power?

Answer 17

Military
Indian reservations
Lands (federal lands)
District of Columbia

Question 18

What can Congress do under taxing and spending power?

Answer 18

• tax and spend for the general welfare

- determine what is a tax but looking to function not name

Question 19

What can Congress do under commerce power?

Answer 19

• can regulate commerce with foreign nations, Indian tribes, and among the states; includes: channels of interstate commerce (highways, waterways, Internet), instrumentalities of interstate commerce and persons or things in interstate commerce, economic activities that have substantial effect (if non-economic, cannot be based on cumulative impact)
• Congress can regulate existing commercial activity but cannot compel it

Question 20

What can Congress do under 10th A?

Answer 20

-all powers not granted to feds nor prohibited to states are reserved t ostate
SO
-Congress cannot compel state regulatory or legislative action…BUT Congress can induce state govt action by putting strings on grants so long as conditions are expressly stated and relate to purpose of spending program
-Congress may prohibit harmful commercial activity by state govts

Question 21

What are Congress’s delegation powers?

Answer 21

• no limits exist on Congress’s ability to delegate legislative power
• legislative vetoes and line-item vetoes are unconstitutional
• For Congress to act, there must always be bicameralism (passage in both House and Senate) AND presentment (giving bill to President to veto or sign). Pres must sign or veto bill in its entirety; a line-item veto is unconstitutional.
• Congress may not delegate executive power to itself or its officers.
• Congress can giveaway power but can’t take power.

Question 22

What is federal executive power in foreign policy realm?

Answer 22

-foreign policy:
treaties–agreements between US and foreign country that are negotiated by president and effective when ratified by Senate. State laws that conflict with treaties are invalid. If a treaty conflicts with a federal statute, the one adopted last in time controls…earlier gives way. If a treaty conflicts with US Const, that treaty is invalid.

• executive agreements: an agreement between US and foreign country that is effective when signed by president and head of foreign nation. Executive agreements can be used for any purpose and they prevail over conflicting state laws, but never over conflicting federal laws or Constitution.
• Pres has broad powers as commander-in-chief to use American troops for any reason in foreign countries

Question 23

What is federal exec power in appointment and removal in domestic affairs?

Answer 23

• appointment power: pres appoints ambassadors, federal judges, officers of US, although Senate must approve the nomination. Congress may vest appointment of inferior officers in President or heads of depts or lower federal courts
• removal power: unless removal is limited by statute, Pres may fire any exec branch official. Congress may, by statute, limit removal, but only if: 1) for Congress to limit removal, it must be an office where independence from Pres is desirable; AND 2) Congress cannot prohibit removal–it can limit removal to where there is good cause shown.

Question 24

What is federal exec power in impeachment and removal in domestic affairs?

Answer 24

Pres, VP, and all US officers can be impeached and removed from office for treason, bribery, or high crimes and misdemeanors.

Impeachment doesn’t remove person from office.
Impeachment by house requires majority; conviction in Senate requires 2/3rds vote.

Question 25

What immunity does Pres have from civil suits?

Answer 25

• absolute in suits for money damages for actions while in office.
• no immunity for actions that occurred prior to taking office

Question 26

What privilege does Pres have for presidential papers and conversations?

Answer 26

executive privilege, but privilege yields to other impt govt interests

Question 27

what is pres’s pardon power?

Answer 27

power to pardon anyone accused or convicted of federal, not state, crimes, except where person has been impeached by House–that person can bever be pardoned for underlying crimes that led to impeachment.

-power doesn’t apply to civil liabilities

Question 28

How does preemption work wrt federal law?

Answer 28

Art VI of Const contains Supremacy Clause: Const and laws and treaties made pursuant to it are supreme law of land –> federal law overrides or preempts inconsistent state law

Question 29

How can preemption be found?

Answer 29

1) expressly: when Congress has authority to act, it can state that its power is exclusive in a field –> if exclusive, state and local laws are preempted
2) impliedly: even if fed law is silent about preemption, it can be implied if: 1) it is not possible to simultaneously comply with federal and state laws, OR 2) if state law impedes achievement of federal objective, OR 3) if Congress evidences clear intent to preempt, OR 3) if state law charges state tax to be paid out of fed treasury for fed govt activity, fed law preempts (aka inter-governmental immunity)

Question 30

What is dormant commerce clause?

Answer 30

aka negative implications of commerce clause

principal that state or local laws are unconstitutional if they place an undue burden on interstate commerce

Question 31

What is privileges and immunities clause in Art IV?

Answer 31

in Art IV

no state or municipality may deny citizens of other states the privileges and immunities it affords its own citizens without substantial justification