Con Law 1 - Rule Statements

Question 1

What is Judicial Power?

Answer 1

The federal government is a government of limited powers, which means that for federal action to be legitimate, it must be authorized by the Constitution. The Constitution authorizes a federal court system in Article III, Section 1, which states “we shall have a Supreme Court, and any lower courts Congress shall deem necessary,” and Article III, Section 2 which states the Judicial power shall extend to all cases and controversies: arising under the Constitution, laws or treatises of the US; of admiralty and maritime jurisdiction; in which the US is a party; between two or more states; between a state and citizens of another state; between citizens citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state or citizens thereof and foreign states, citizens or subjects.

Question 2

Where does SCOTUS get its jurisdiction?

Answer 2

In order for the Supreme Court to act, they need Article III and Congress’s permission.

Question 3

What is Original Jurisdiction?

Answer 3

Under Article III, Section 2, the Supreme Court has original jurisdiction “in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.” This provision is self-executing: Congress may neither restrict nor enlarge the Supreme Court’s original jurisdiction, but Congress may give concurrent jurisdiction to lower federal courts and has done so regarding all cases except those between states.

Question 4

What is Appellate Jurisdiction?

Answer 4

Article III, Section 2 further provides that “in all other Cases before mentioned (arising under the Constitution, Act of Congress, or treaty), the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such Exceptions, and under such Regulations as the Congress shall make.” Under appellate jurisdiction, the Supreme Court may hear cases arising under the Constitution, Laws of the US, and treaties; admiralty; where the US is a party; cases between two citizens of the same state claiming lands under grants from diversity; and citizens of different states (diversity jurisdiction)

Question 5

When MUST the SCOTUS hear a case?

Answer 5

he Supreme Court has complete discretion to hear cases that come to it by writ of certiorari: cases from the highest state courts where the constitutionality of a federal statute, federal treaty, or state statute is called into question; or a state allegedly violates federal law; and all cases from federal courts of appeals.

The Supreme Court must hear those few cases that come to it by appeal. Appeal is available only as to decisions made by three judge federal district court panels that grant or deny injunctive relief.

Question 6

What is Judicial Review?

Answer 6

Judicial review of other branches of the federal government was established in Marbury v. Madison. It was important because it established the authority for the judiciary to review the constitutionality of legislative and executive acts. The Constitution is the “law” and it is the duty of the judiciary to declare what the law is.

Question 7

What is the Counter-Majoritarian Difficulty?

Answer 7

represents the tension between the power of judicial review and democracy, because the judiciary can strike down a law that was enacted through the democratic process. The judiciary is held in the hands of people not accountable by design. Judiciary goes up against the hands of the people when they invalidate laws made by the legislature or executive who are elected by the people. Benefits to the counter- majoritarian difficulty: provides a necessary check, prevents tyranny of the majority, justices are less susceptible to the political process. Problems to the difficulty: minority is inhibiting the will of the people, risk to interpreting the constitution based on judge’s own values and not constitutional principles, replaces tyranny of he majority with tyranny of the minority.

Question 8

What are the the two controls on the Judiciary?

Answer 8

1. Internal Controls

2. External Controls

Question 9

What are Internal Controls?

Answer 9

The internal controls on the judiciary are limits coming from within the court
from the justices and political capital as a control, which means it depends on legislature, executive, and people to respect what they do. If the Court does not want to hear a case, then they can limit themselves by saying they do not want to hear this issue.

Question 10

What are External Controls?

Answer 10

The external controls on the judiciary are the amendment process; the appointments of the justices where the President nominates with the advice and consent of the Senate; impeachment of justices; life tenure which is a structural aspect of Article III that is meant to keep the Supreme Court strong and insulated; number of seats; and the exceptions clause where Congress can take away appellate jurisdiction from the Supreme Court.

Question 11

What is Justiciability?

Answer 11

limits the federal court’s exercise of otherwise proper jurisdiction. Justiciability shrinks the role of the federal courts as to whether they should or can entertain an issue or case. The two sources of justiciability doctrines come from the constitution in Article III, section 2 which defines the federal judicial power in terms of 9 categories of “cases and controversies” and a prudential source where the court can find an exception, ignore it or Congress can force courts to entertain cases.

Question 12

What are the 5 elements of Justiciability?

Answer 12

1) Case or Controversy
2) Standing
3) Ripeness
4) Mootness
5) Political Question

Question 13

What is “Case or Controversy”?

Answer 13

The fact that the Supreme Court can only hear a case or controversy is based on the words of the Constitution. There must be a concrete dispute between adverse parties. The decision by the court will resolve a dispute, so the answer has to solve your problem.

Question 14

What is “Standing”?

Answer 14

Standing relates to the litigant’s right to be in court, which is predominantly constitutionally based, designed to enforce the Constitution to keep the federal judiciary focused on cases or controversies and to make sure they are not looking over the shoulders of the executive or legislature.

For a person to have standing to bring a suit, there must be:

(i) injury in fact, where the plaintiff must allege that she has suffered or imminently will suffer a concrete injury;
(ii) causation, where the plaintiff must allege that the injury is traceable to the defendant’s conduct; and
(iii) redressability by the Court, where the plaintiff must allege that a favorable court decision is likely to redress the injury.

Question 15

What is “Ripeness”?

Answer 15

In order for the Court to hear a case, the case must be “ripe”, which deals with the timing doctrine and when the litigation may occur. The Court does not want to make a premature ruling on an issue, so if the injury is not yet ripe, it is speculative and therefore may never occur and the Court will not hear the case. However, the Court allows you to bring suit as long as the threat of injury is imminent

Question 16

What is “Mootness”?

Answer 16

Mootness is where the case is over-matured and the case has gone away. If events subsequent to the filing of the case resolve the dispute, the case should be dismissed as moot, and the dispute between the parties no longer exists. The case becomes moot if the parties settle and there is no controversy left.

Question 17

What is a “Political Question”?

Answer 17

The Court has held that federal courts should not rule on certain allegations of unconstitutional government conduct even though all of the jurisdictional and other justiciability requirements are met. The Constitutional interpretation in these areas should be left to the politically accountable branches of government—the President and Congress. Although a Constitutional wrong is alleged, the Court will dismiss the case, leaving the Constitutional question to be resolved in the political process. According to Scalia, the “issues that are too hot to handle.” The first thing, the Court looks for is whether issue has been textually committed from the Constitution to another branch.

Question 18

What is the Necessary and Proper Power?

Answer 18

The necessary and proper clause grants Congress the power “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof.” (In Article 1 §8).

According to McCulloch v. Maryland, necessary means convenient, useful or essential. When Congress uses the Necessary and Proper power, it must be used to implement another enumerated power or to help another branch exercise one of its powers. Implied powers are the means for carrying out the express powers, which are the ends. The means must be appropriate, plainly adapted and not prohibited. The ends must be legitimate and within the scope of the Constitution. The test for necessary and proper is the Rational Basis test, where the means must be rationally related to the end. There is a deference given to Congress, because Congress decides whether there is a link between the means and the ends on a rational basis.

The Rational basis test is the minimum level of review for all governmental action. Congress may use implied powers to execute its own enumerated power or powers of the federal government (including the Executive and Legislative powers). For example, Congress has the power to charter banks since that power is appropriate to executing Congress’s enumerated powers to tax, borrow money, regulate commerce, etc. (McCulloch v. Maryland). This power is very broad and is a catch-all when Congress is acting. Congress may also use an implied power to implement an implied power to implement the express power. In McCulloch, the court determine that the motive of Congress matters with regard to the necessary and proper clause and the implied powers. It is unconstitutional for Congress to invoke an implied power based on a motive not entrusted to it.

Question 19

What is the Commerce Power?

Answer 19

In order for Congress to act and to establish that it can regulate an activity, Congress must first point to a power. Article I, Section 8, Clause 3 empowers Congress to “regulate commerce with foreign nations and among the several states, and with the Indian tribes.” Gibbons v. Ogden defined commerce as “commercial intercourse..which concerns more states than one” and included within the concept virtually every form of activity involving or affecting two or more states. Congress may regulate interstate commerce. Further, it defines “among the states” as also allowing Congress to regulate intrastate commerce if it had an impact on interstate activities.

Question 20

What are the 3 categories of the Commerce Power and what case do they stem from?

Answer 20

In United States v. Lopez, the Supreme Court evaluated the exercise of Congress’ commerce power in one of three categories. Congress may regulate any of the following under the Commerce clause:

(1) the use of the channels of interstate commerce, (2) instrumentalities of interstate commerce, or persons or things in interstate commerce, and
(3) activities that substantially affect interstate commerce, which include economic and non-economic activities.

Question 21

What are “Channels”?

Answer 21

Congress may regulate channels of interstate commerce, which include the regulation of activities that travel on the pathways of commerce, such as products crossing on interstate roads. The Supreme Court in US v. Darby, found that if they failed to comply with the hourly wages rules, they were prohibited from using the channels of commerce. In Heart of Atlanta, the Court found that it was Constitutional for Congress to regulate conduct at a local hotel, which was an impediment to the use of the channels.

Question 22

What are “Instrumentalities”?

Answer 22

Congress may regulate and protect instrumentalities of interstate commerce, which are defined as means, tools, or agents of commerce that facilitate the use of channels and it can also regulate and protect persons or things that travel in commerce. Congress may control these things even though the threat may come only from intrastate activities. Instrumentalities include trucks, aircraft, railcars, and trains.

Question 23

What are “economic” vs. “non-economic” activities?

Answer 23

Congress’ commerce power includes the power to regulate those activities having a substantial relation to interstate commerce, those activities that substantially affect interstate commerce. Two categories fall under this set of activities: economic and non-economic.

Question 24

What are “Economic” activities?

Answer 24

Where economic activity substantially affects interstate commerce, legislation regulating the activity will be sustained. Economic activities are defined in Gonzalez v. Raich, as activities involving the production, distribution, and consumption of commodities. Economic activities in this category include any intrastate activity that would have a substantial effect on interstate commerce. For example, in Perez, loan sharking activities were fueling the entire empire of organized crime and therefore this economic activity taken in the aggregate substantially effected interstate commerce. Another example is in Wickard, where the Court determined that a farmer who was growing wheat was substantially effecting interstate commerce, although the farmer alone was not, all other wheat growers like him in the aggregate would effect interstate commerce if they were all engaging in the same activity. If Congress is attempting to regulate economic activities, the Court is largely deferential to Congress. So long as the Court can see any rational basis that the act is going to affect interstate commerce, the statute will be held constitutional.

Question 25

What are “Non-Economic” activities?

Answer 25

Non-economic activity may be regulated if it is an “essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Cost of crime argument will not be upheld by the Court, as found in US v. Morrison, where the Court held that Congress may not regulate non-economic violent criminal activity, based solely on the aggregate effect of violence on commerce. If no fact-finding or jurisdictional element, regulation of non- economic activity is presumptively unconstitutional.

Question 26

Can Congress regulate inactivity?

Answer 26

No. In National Federation of Independent Business v. Sebelius, the Court determined that Congress cannot regulate inactivity.

Question 27

What are Generally Applicable Laws (GA)?

Answer 27

are laws that regulate both public and private entities passed under the Commerce Power. Federalism limits are not judicially enforceable to generally applicable laws. The court is going to stay out of it and leave it to the political process. If the Court determines the limit is left to the political process, a possible remedy would be, for example, to vote those in power out of office. For example, in Reno v. Condon, the Driver’s Privacy Protection Act prohibited states from disclosing personal information gathered by DMVs. The Court found the law a generally applicable law and not judicially enforceable because it applied to private and public individuals alike.

Question 28

What is “Federalism”?

Answer 28

Federalism is a system in which the power to govern is shared between national and provincial or state government (i.e. authority is divided vertically between sovereigns). The Supremacy Clause of the Constitution (Article IV, Section 2) ensures however, that federal law takes precedent over state law. The Court speaks of three benefits to federalism: decreasing the likelihood of tyranny, enhancing democratic rule by providing government that is nearer the people (which encourages greater participation by individuals), nad permitting states to act as laboratories for new ideas.

Question 29

What is the “Anti-Commandeering” clause?

Answer 29

The 10th Amendment says “The powers not delegated to the US by the Constitution, nor prohibited by it to the States are reserved to the States respectively or to the people.” Laws that require the states to regulate (NY v. US) or force the participation of a state’s executive officers in the actual administration of a federal program (Printz) violate the 10th Amendment. Generally, Congress cannot tell the states how to legislate or regulate in a particular way, though Congress can preempt state law and legislate on its own. Congress can also use its Spending, Taxing, and Commerce Powers to encourage the states to act in a particular manner. Commandeering interferes with the essence of state sovereignty because when congress tells the states they must do something, they can’t respond to will of their people. It wouldn’t be fair to hold states responsible for federal programs. It takes power away from the people and gives it to Congress

According to New York v. United States, Congress may:

1) Regulate on its own: Congress may legislate and preempt the states. The implication however is that the federal government, not the states will have to
pay for and enforce the regulation/ legislation.

2) Encourage the State to Regulate: to encourage the state, Congress may use its Spending power or “threaten” preemption and ask the states to do what Congress wants in the fact of possible federal regulation and subsequent preemption (which the states may dislike). The threatened regulation must be constitutionally valid.

Question 30

What is the Taxing Power?

Answer 30

In Article I, Section 8, Congress has the power to lay and collect taxes, imposts, and excises, to pay debts and provide for the common Defense and general Welfare of the United States, but all Duties, Imposts and Excises shall be uniform throughout the United States. Congress has the power to tax to raise money to spend it on the general welfare, raising revenue. Sometimes used as a form of regulation of behavior. The modern test is a tax can be either regulating or revenue generating and will be upheld unless it generates little to no revenue. However, as in Lopez, where Congress taxed someone who was in possession of a gun near a school, some regulations might be seen as an end-run around the Commerce clause, to which the court would likely object. The court would see the tax as a penalty. To determine whether a tax is penalizing or merely raising revenue, look to the amount of tax, who has to pay, who collects the payment, and a payment that is associated with conduct that Congress has also made illegal then it looks like a punishment.

An example of a valid tax was in National Federation of Independent Business v. Sebelius, where the Court upheld the Affordable Care Act individual mandate as a tax, because the IRS was collecting the payment, everyone who did not buy health insurance would be taxed, and the amount was small. On the other hand, an example of an invalid tax was in Bailey v. Drexel Furniture, where the tax applied to those who were using child labor and the payment was given to the Department of Labor. Here, the tax was payment for conduct that was otherwise illegal and the Court found that this was unconstitutional.

Question 31

What is the Spending Power?

Answer 31

In Article I, Section 8, Congress may spend to “provide for the common defense and general welfare.” Congress has broad power and may spend for any purpose, so long as it is in the general welfare. It was determined in US v. Butler to adopt Hamilton’s view that general welfare is not limited to expressly enumerated powers in Article I, §8. Congress can use their spending power, even though they cannot regulate it directly, so long as it does not violate the Constitution.

Question 32

What is “Conditional Spending”?

Answer 32

Congress can spend money for the “general welfare” but typically will attach conditions on its spending. The current test under the spending power is found in South Dakota v. Dole, where:

(i) the exercise of the spending power must be in pursuit of the general welfare, which the Court will defer to Congress;
(ii) the statute must be unambiguous so to provide notice;
(iii) the condition has to be related to the purpose of the funding program;
(iv) the condition cannot be unconstitutional; and
(v) the condition cannot be coercive—which is defined as a threat of financial loss. There can be mild encouragement (Dole), but cannot be a gun to the head (Healthcare case), where the State has no other choice.

The Court defined coercion in Steward Machine Co. v. Davis, as destroying or impairing state autonomy or surrendering powers essential to their quasi- sovereign existence. The Court defined coercion in Dole, as the financial inducement is such a hard decision to make it coercion.

An example of applying the Dole test, in South Dakota v. Dole, the federal statute withheld federal highway funds from the States that refused to raise the drinking age to 21. The Court held that this was constitutional because increasing the drinking age was for the general welfare, the condition was unambiguous, it was related to highway safety, the condition did not violate the state’s constitutional right, and there was no coercion because they were only losing 5% of highway funds.

The Court will defer to the use of the Spending power if Congress could directly regulate.

Question 33

What are Foreign Affair powers?

Answer 33

The foreign affairs power is an inherent power, and need not come from the text of the Constitution, though it is limited by the structure and words of the Constitution. The Court in US v. Curtiss-Wright Corp, stated that the President is the sole organ of foreign affairs. Although this is not literally true as Congress and the Executive share foreign affairs powers, the Court is likely to defer in situations where Congress gives the President increased power in this area. As such, the Executive possesses broad reigns in foreign affairs power.

Question 34

What is Congress’ role in the War Power?

Answer 34

Article I, Section 8 gives Congress the power to delegate war, raise and support armies, provide for and maintain a navy, make rules for the government and regulation of the armed forces, and organize arm, discipline and call up the militia. The war power of the national government is the power to wage war successfully. Several other congressional powers have direct or indirect application to military purposes: tax and spending powers, commerce power, Senate’s treaty consent power, maritime power, investigatory power.

Question 35

What is the Treaty Power?

Answer 35

The treaty power is vested in the Executive and the legislature, where the treaty is negotiated by the President with the advice and consent of the Senate. The Senate holds the power to ratify it. As long as the treaty does not conflict with a prohibition of the constitution, and as long as the treaty has a national purpose, it is proper. There are no judicially enforceable federalism based limits on the treaty power. Congress may use its necessary and proper power to effectuate a treaty, even if it has no other power to do so. The President has the power to unilaterally rescind a treaty, and the court will not entertain a case challenging his ability to do so, as it constitutes a non-justiciable political question.

Question 36

What are executive agreements?

Answer 36

An agreement between the US and a foreign country that is effective when signed by the President and a head of foreign country, no senate approval required. Executive agreements are not mentioned in the Constitution, but are long-accepted practice and an example of the President’s inherent authority. If Congress disapproves of an executive agreement, it may pass a law undermining the agreement, impeach the President or fail to use its Spending power to fund such agreements.

Question 37

What is the Supremacy Clause?

Answer 37

the federal law is the supreme law of the land. Article IV, clause 2, in considering the validity of any state law, look for any relevant and valid federal action. If a federal act clearly and explicitly conflict with the state measure, or expressly preempts state action, the state measure will not likely survive application of the supremacy clause.

Question 38

What is “Preemption”?

Answer 38

Preemption refers to the invalidation of a state law when it conflicts with a federal law. The question whether a certain state action is preempted by federal law is one of congressional intent. There is express preemption and implied preemption. Express preemption is where Congress has literally stated that the federal law preempts the state law, so the preemption is clear on its face.

Congress can also preempt state law through implied preemption. There are two types of implied preemption: field preemption and conflict preemption.

Field preemption is when Congress has the intent to occupy the field and the scheme of the regulation is so pervasive we believe that Congress intended to occupy the field and there is no room for state regulation. Field preemption was seen where Pennsylvania had a statute regarding alien registration, and the Court invalidated the statute because it said Congress has a strong federal interest in regulating immigration and naturalization and there is no room for the states to regulate.

There are two types of conflict preemption: actual physical conflict and interference with federal objectives. When there is an actual or physical conflict there are state and federal laws on the same issues and it would be impossible to comply with both simultaneously, and therefore Congress intended to preempt the state. Federal law will always prevail except when the federal law only sets forth a minimum. Implied conflict preemption can also be found when the state regulation interferes with a federal objective. In this conflict, the state law is interfering with a federal objective and Congress purposefully made the law preemptory in order to accomplish this federal objective. For example, Massachusetts had a law prohibiting any state agency from doing business with Burma. Congress had given legal discretion to the President to decide whether to lift sanctions if Burma has made advancements in treatment of people. The Massachusetts law undermined the federal government regulation because the President could lift sanctions but Burma could still be punished even if Burma has complied with federal standards.

Question 39

What is the Dormant Commerce Clause?

Answer 39

A state law could be deemed invalid if it violates the dormant commerce clause. The Commerce Clause, although a grant of power, has been implied and interpreted to have a negative or dormant property which limits state regulation of interstate commerce in some circumstances. (Article I, Section 8 Clause 3). The dormant commerce clause stops state laws that unjustifiably discriminate, or cause an undue burden on interstate commerce. The Court has created the doctrine, its not written in the Constitution, in order to protect Congress’ Commerce power even when Congress hasn’t regulated.

Question 40

What are factors to consider in the Dormant Commerce Clause?

Answer 40

o Unjustifiable Discrimination: (Federal Government will argue for this test) when it unjustifiably discriminates against interstate commerce. To determine if it is justified or unjustified, states cannot discriminate unless the means are narrowly tailored to achieve an important governmental purpose (strict scrutiny) and there is no less restrictive way to accomplish the goal. The test presumes the state law is unconstitutional. The methods of discrimination include facially discriminatory and the effects of the law. A law is facially discriminatory if the language of the regulation favors in-state residents over out-of-state residents. For example, Ohio winery would sell wine directly to people in-state, but would only sell to retail stores out-of-state, so out-of-state purchasers paid higher prices. The effects of the law looks to where lies the predominant burden of the law, even if the law appears to be facially neutral. For example, a California law said that California cantaloupes had to be packaged in California. Therefore to sell cantaloupes, one had to buy or rent space in California.

o Undue Burden: If the state measures put an undue burden on interstate commerce, then it is unconstitutional. Use the balancing test where the key is to balance the state’s interest in protecting its citizens against the effects the state regulation has on interstate commerce. This is easier for the states to pass and the presumption is that it is constitutional. Any law that looks like it is burdening commerce, even though facially neutral, is presumptively constitutional, so challenger to overcome the presumption of constitutionality. For example, SC State Highway v. Barnwell—SC roads 16 ft wide, trucks that are wider than 7 1⁄2 feet cannot travel on interstate roads because accidents. Rule impact 90% of interstate traffic. Court said the burden which is big, still did not outweigh the safety benefit for SC.

• Escape Clause: Exceptions to Dormant Commerce Clause

o There are certain instances where the dormant commerce clause does not apply.
When Congress has agreed to permit the state to act in a way that discriminates or imposes an undue burden on interstate commerce. Also, the dormant commerce clause will not apply where the state is acting as a market participant. When a state acts as a market Participant it is acting as a private party (Alaska-timber: Alaska could regulate the timber who they sold timber to, but beyond the initial point of contact, they could not regulate it anymore).

Question 41

What is the Privileges and Immunities clause?

Answer 41

The states regulation will be invalidated if the regulation violates the privileged and immunities clause. Under Art. IV, Sec. 2 “The citizens of each state shall be entitled to all Privileges and immunities of citizens in the several states.” The Supreme Court has interpreted this clause as limiting the ability of states to discriminate against citizens from out-of-state with regard to constitutional rights or important economic activities, such as earning a living. The test for Privileges and immunities is that states may not discriminate against out-of-state residents with respect to privileges and immunity, unless the discrimination is substantially related to substantial government interest (like out-of-state residents are the peculiar source of the problem and treating them differently is substantially related to a substantial government interest). Further, if the out-of-staters are a source of the problem, the level of differential treatment must be appropriate to the size of the problem. For example, South Carolina charged for licenses to engage in shrimp fishing, and charged out of staters ($2,500) and in-state citizens ($250) for the fishing license. Because it is an important economic activity, the state cannot treat outside citizens differently.

Question 42

What is Sovereign Immunity?

Answer 42

State sovereign immunity is the states’ protection from suit by a private party, without consent. States had sovereignty before the Constitution was ratified. 11th Amendment states “the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subject of any foreign state.”

The 11th Amendment means a lot more than it says: a private party may not sue a state for any claim (state or federal), in any court (state or federal) without the states consent.

Hans, Seminole Tribe, and Alden all agree that the 11th amendment is broad and that state sovereign immunity preceded the 11th amendment and that the amendment only confirmed what was inherent in the Constitution. The original rule was that states were immune from suit by citizens of another state without consent. Hans v. Louisiana added that states are immune from suit by citizens of another state without consent. Hans also added that the claim can be state or federal. Alden v. Maine told us that states are immune from suits by citizens in state or federal court. Thus, the final rule is states are immune from suit by a private party in any court on any claim without consent.

Question 43

What are the exceptions to Sovereign Immunity?

Answer 43

There are several exceptions to the general rule. Local governments and municipalities are not immune from suit. The federal government has the ability to sue a state and states can sue each other. States can sue each other as long as the state is suing to protect its own interest and not the interests of its citizens. The ex parte young exception allows suit against a state official in their official capacity for a federal claim, for prospective injunctive relief. Also a state may consent or waive sovereign immunity. The state may consent to suit by invoking jurisdiction of a court by becoming a plaintiff in an action, by accepting conditional spending, or through a gov’t attorney. If the state has consented in a clear fashion, then they may be sued. Another exception is abrogation. Congress must show an unequivocal intent to abrogate and they must have a power to do it. But it cannot be done through one of its Article I powers. Congress can use section 5 power of 14th amendment properly.

Question 44

What is the “Executive Power”?

Answer 44

Comes from Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, inherent executive authority exists but fluctuates in relation to Congress over 3 Categories.

(1) Congressional approval (implied or express), when the president acts according to an express or implied grant of power from Congress, his actions are presumptively valid and entitled to judicial deference. He is acting at the zenith of his power, which includes his independent executive powers, couple with power given to him by Congress. We saw in Dames & Moore and Curtiss-Wright. Category
(2) is Congressional silence, which is when the President acts in absence of congressional grant of denial or authority. Question then becomes whether silence means approval or disapproval, but Congress must be totally silent on the whole issues. Category
(3) is when the President acts under congressional disapproval, and the President takes a measure incompatible with the expressed or implied will of Congress and his authority is at its lowest. When the President is acting under Congressional disapproval, he must point to his own independent authority and disable Congress. He can disable Congress by arguing that the disapproval is unconstitutional, that congress is acting outside its core of enumerated powers, abusing an enumerated power or encroaching or aggrandizing another branch’s power thereby violation Separation of Powers. Court are reluctant to disable congress, and would rather let the Executive and Legislature work it out.

Question 45

What is an “Executive Agreement”?

Answer 45

It is between the US and another nation that is effective upon the signing of the President and the other countries leader. It is not a treaty but it is a law.

Question 46

What is the “Communications Privilege”?

Answer 46

the communication privilege allows the President to withhold internal confidential communications based on Separation of powers. The reason for the privilege is to promote candid advice from the President’s advisors, so the executive branch acts efficiently. The communications privilege aids national security and foreign affairs. However, the Communication privilege is limited. In Nixon, court set forth a test where there is a presumption in favor of protecting the privilege. Then the Court will balance the need for confidentiality against the need for the information. Nixon had to turn over the tapes because the fair administration of justice outweigh the interest in confidentiality.

Question 47

How is the President immune from suit?

Answer 47

The President is immune from certain suits while in office, but the Court will look at the official/unofficial conduct and the relief that the person is seeking, whether money damages or injunction.

If you are challenging the official conduct of the President and seeking money damages, he has immunity during and after. If the President was amenable to personal suit, it would affect how he does his job. His cognizance of his vulnerability to suit could “distract a President from his public duties, to the detriment not only of the President and his office, but also the Nation and the Presidency was designated to serve.”

If you are challenging the official conduct and seeking injunctive relief, then he will have immunity for a constitutional function. But if he is violating the law and you are challenging his official conduct and injunctive relief, he will not have immunity.

If you are challenging his unofficial conduct, he doesn’t have immunity for either type of damages (injunction or money damages). In Nixon—the President was entitled to absolute immunity from liability for civil damages based on his official acts. In Mississippi v. Johnson, the suit against the President to stop enforcing reconstruction laws, the Court will not enjoin the President for engaging in a constitutional function, only if the President is disobeying the law. In Clinton v. Jones, the President has no immunity for unofficial conduct, regardless of damages being sought.

Question 48

What is the executive branches relation to Foreign Affairs?

Answer 48

is shared between the executive and legislative branches. Congress has spending power, commerce power, define and punish offenses against the law of nations, immigration, declare war and raise armies/ navies. The President is the Commander in chief of the army and navy, treaty power (with advice and consent of the senate) and can receive ambassadors and appoint ambassadors.

Question 49

What is the “Treaty Power”?

Answer 49

The Executive maintains sole authority to negotiate and create treaties, but they are ratified by the Senate and are anything that deals with international relations. As long as the treaty does not conflict with a prohibition of the Constitution and as long as it has a national purpose, it is proper. There are no external federalism judicially enforceable limits on the treaty power.

A self-executing treaty becomes domestic law upon ratification by the senate without further action from Congress and is binding on both federal and state governments however a non-self executing treaty requires Congress to pass a law implementing it in order to become domestic law.

Treaties are co-equal statutes with legislation: if there is an inconsistency—the last in time will govern.

Question 50

What is the President’s role in the War Power?

Answer 50

.is an attempt by Congress to restrain/hold accountable the President by limiting his power to introduce troops to 3 situations:

(1) declaration of war
(2) specific statutory authorization or
(3) national emergency created by an attack on the US. Before introducing troops President has to consult with Congress and if no declaration of war must submit a report within 48 hours and within 60 days if Congress has not give approval then the President has to remove the troops.

ENEMY COMBATANTS: the MCA is unconstitutional because it unconstitutionally restricts the write of habeas corpus. Extends constitutional habeas to non-citizens at Guantanamo.

Question 51

What are Administrative Agencies?

Answer 51

are agencies located in the executive branch because they execute the law. They make laws through rule making; they enforce laws and adjudicate laws. Congress can maintain control over agencies they delegated to by having oversight hearings, rewrite legislation, appropriations rider, increasing or decreasing budge, change enabling statute, have sunset provisions, legislative veto etc. Legislative veto is when congress gives discretion but retained the right to veto and was declared unconstitutional in INS v. Chadha.

Question 52

What is the president’s power of Removal?

Answer 52

The President has the power to remove executive officials who perform purely executive functions as seen in Myers, but Congress may limit the removal power to “for cause” reasons if it is an officer where independence from the President would be desirable (Morrison, Humphrey’s Executor), and the judiciary may interpret the “for cause” restriction in the absence of a statutory restriction (Weiner) If someone can’t get fired without congress’ consent then they will be aggrandizing executive power. They can have a role in appointment, but not in removal of purely executive officials. They can have a hand in removal of quasi legislative/quasi judicial because of the need for independence. The test for purely executive v. quasi legislative/quasi judicial is balance the need for independence with the limit on removal may not interfere with executive functions. Congress cannot completely prohibit all removal, and add more than one layer of tenure protection between the President and the executive officer he is supervising if that person performs significant executive functions (Free Enterprise) and it cannot give the removal power to itself beyond impeachment (Bowsher, Myers).

Question 53

What is the president’s power of Appointment?

Answer 53

Congress has the power to create government offices. For principal officers, an officer that exercises significant authority pursuant to the law of the US, the president has authority with advice and consent of the Senate to appoint ambassadors, other public ministers, judges and all other officers of the United States. Inferior officers are one that does not have the power of principal and has a supervisor that is a principal officer. Inferior officers appointment may vest in the president alone, in the courts of law or in the heads of departments (the principle officers).

Question 54

What is the Separation of Powers?

Answer 54

is the division of government among the 3 branches. Our constitutional framework creates a vertical distribution of powers in which different branches of government are vested with different powers of the others in certain ways.

Question 55

How can the separation of powers be violated?

Answer 55

Violation of separation of powers can occur in 3 different ways. (1) Aggrandizement, when one branch exercises or attempts to exercise the powers of another branch (2) encroachment, when branch is doing it’s own work but the way in which it uses its power is interfering with the work of another branch or (3) Delegation, when one branch gives away its power.

Question 56

What 3 violations of Separations of Power?

Answer 56

1) Aggrandizement
2) Encroachment
3) Non-Delegation Doctrine

Question 57

What is Aggrandizement?

Answer 57

When one branch is doing the work of another branch. For example, if the President is issuing an executive order that is really policymaking, this would be aggrandizement because the President would be doing the job of Congress.

Question 58

What is Encroachment?

Answer 58

When a branch is doing its own work, but in doing it, the branch is interfering with the work of another branch. For example, if the judiciary is entertaining a claim of executive privilege, and evaluating what the executive has done, the judiciary is doing its job but it may be interfering with the executive branch.

Question 59

What is the Non-Delegation Doctrine?

Answer 59

States that congress cannot delegate its lawmaking power to another branch, but Congress may delegate anything less than that as long as it sets down an intelligible principle. Almost anything satisfies as an intelligible principle. Congress must make the big picture policy decisions, but can delegate to the Executive or agencies the task of implementing that policy with smaller rules and procedures. Generally, laws need to pass through bicameralism and presentment so congress can’t delegate law making or repeal power to shortcut that. The court has upheld the delegation of lawmaking authority so long as Congress clearly delineates the general policy the public agency with is to apply to and the boundaries of the delegated authority. Courts let Congress delegate at its own peril, at losing power to the executive. As seen in Loving v. US, the Courts deference may depend on the recipient of the delegated power. Here, Congress delegated authority to say what was aggravating and mitigating factors in capital crimes. Congress did not give standards to help the president, but the court upheld the delegation as constitutional because the President is the commander in chief and he’s familiar with what is aggravating and mitigating.

Question 60

Is the power to regulate commerce exclusive to Congress?

Answer 60

No. The power to regulate commerce is not exclusive to Congress. States also have the power to regulate commerce, however in order for the state regulation to be upheld as constitutional, it cannot violate preemption, dormant commerce clause or privileges and immunities.

Question 61

What is the Executive Privilege?

Answer 61

It is the role of the court to decide whether the President has executive privilege and if so, its scope. It is not the President’s job alone to determine the reach of this privilege and whether the privilege is absolute. The Court recognized the existence of the executive privilege. Although Article II does not expressly grant this power to the President, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges, including executive power, flow from the nature of the enumerated powers. It is an inherent Presidential power. Executive privilege is not absolute, but rather must yield when there are important countervailing interests. Neither the doctrine of separation of powers, not the need for confidentiality without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances. An absolute privilege would interfere with the ability of the judiciary to perform its constitutional function.

Question 62

What is the purpose of having “checks and balances”

Answer 62

Checks and Balances are the mechanism by which we enforce separation of powers.