Con Law

Question 1

Congressional Conferral of Standing

Answer 1

Congress cannot eliminate the case or controversy requirement and, thus, cannot grant standing to someone who doesn’t have an injury.

But a federal statute may create new interests, injury to which may be sufficient for standing.

Question 2

Standing to Enforce Government Statutes

Answer 2

P may have standing to enforce a federal statute if P is within the “zone of interests” Congress meant to protect (i.e., a court is likely to find standing if it concludes that Congress intended the statute to protect such persons and also intended to allow private persons to bring federal court actions to enforce the statute).

Question 3

Sovereign Immunity & the 11A

Answer 3

The doctrine of sovereign immunity reflected in the 11A bars a private suit against a state in federal and state courts and agencies.

Exceptions:

1) Where states have consented to suit through waiver
2) Actions against local governments
3) Actions by the United States or other states
4) Proceedings in federal bankruptcy courts
5) Actions to enjoin a state officer from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state (the state cannot be made to pay retroactive damages)
6) Actions for damages against an officer personally
7) Congress removes a state’s immunity for actions created under the 14A power to prevent discrimination (Congress’ intentions must be unmistakably clear)

Question 4

Abstention - Unsettled Question of State Law

Answer 4

A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law.

Question 5

Abstention - Pending State Proceedings

Answer 5

Federal courts will not enjoin pending state criminal proceedings (and in some cases pending state administrative or civil proceedings involving an important state interest), except in cases of proven harassment or prosecutions taken in bad faith.

Question 6

Political Questions

Answer 6

A federal court will not decide political questions, issues that are (1) constitutionally committed to another branch of government or (2) inherently incapable of judicial resolution.

Examples: challenges based on the “Republican Form of Government” Clause of Article IV; challenges to congressional procedures for ratifying constitutional amendments; the President’s conduct of foreign policy; and partisan legislative apportionment (political gerrymandering)

Political Qs do not include: arbitrary exclusion of a congressional delegate and production of presidential papers and communications

Question 7

Supreme Court Original JX

Answer 7

SCOTUS has original jx to hear all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party.

Lower federal courts have concurrent jx in all cases except those between states.

Question 8

How Cases Come to SCOTUS

Answer 8

1) SCOTUS has complete discretion to review cases that come by writ of certiorari (most cases), which are (1) cases from the highest court capable of providing a decision where (a) the constitutionality of a federal statute, federal treaty, or state statute is in issue, or (b) a state statute allegedly violates federal law; and (2) all cases from federal courts of appeal.
2) SCOTUS must hear cases that come to it on appeal (rare). These cases are confined to decisions by three-judge federal district court panels that grant or deny injunctions.

Question 9

Supreme Court Appellate JX

Answer 9

SCOTUS has appellate jx to hear all cases under Art. III, subject to congressional exceptions and regulation.

SCOTUS can review the constitutionality of acts of other branches of the fed gov, and the power to review state acts under the Supremacy Clause.

SCOTUS generally will hear cases only after a final judgment by the lower court.

Question 10

Adequate and Independent State Grounds

Answer 10

SCOTUS will not exercise jx if the state court judgment is based on adequate and independent state law grounds (even if federal issues are involved). In other words: if a state court decision rests on 2 grounds (state law and federal law), and if SCOTUS’s reversal of the federal law ground will not change the result, then SCOTUS cannot hear the case.

State law grounds are adequate if they are fully dispositive of the case, meaning that they settle the issue.

State law grounds are independent if the decision is not based on federal case interpretations of identical federal provisions.

If the state court has not clearly indicated that its decision rests on state law, SCOTUS may hear the case.

Question 11

Enumerated & Implied Legislative Powers

Answer 11

Congress can exercise the powers enumerated in the Constitution (under Art. I, Section 8), plus any powers necessary and proper to carry out any of its enumerated powers.

Question 12

Is there a federal police power?

Answer 12

No, Congress has no general policy power (i.e., no general power to legislate for the health, safety, and welfare of the nation).

But Congress has police type powers over D.C., federal lands, military bases, and Indian reservations (based on its power over the capital and its property power).

Question 13

Necessary & Proper Clause

Answer 13

Congress has the power to make all laws necessary and proper (appropriate or rational) to carry out any of the legislative powers enumerated in Art. I, as long as that law does not violate another provision of the Constitution.

Question 14

Taxing & Spending Power

Answer 14

Congress has the power to tax and spend to provide for the general welfare. Taxing and spending may be for any public purpose not prohibited by the Constitution.

Remember: while Congress can TAX and SPEND for the general welfare, it cannot directly legislate for it (no federal police power).

Question 15

Spending Power Conditions

Answer 15

Congress can impose conditions on the grant of money to state or local governments (so-called “strings” attached).

Such conditions are valid if they (1) are clearly stated, (2) relate to the purpose of the program, (3) are not unduly coercive, and (4) do not otherwise violate the Constitution.

Permissible: conditioning grants of federal money to schools on the schools achieving certain educational standards, conditioning grants of highway funds on states having a drinking age floor of 21

Impermissible: threatening to withhold current Medicaid funding to states if the states refused to participate in a Medicaid expansion program (unduly coercive)

Question 16

Taxation Powers

Answer 16

Most fed taxes will be upheld if they bear some reasonable relationship to revenue production or to promoting the general welfare.

Taxes are okay; penalties that seek to compel rather than simply influence behavior are not.

Question 17

What is the Commerce Power?

Answer 17

Congress has the power to regulate all foreign and interstate commerce, as well as commerce with Indian tribes.

Scope of the Commerce Clause:

1) regulation of the channels of interstate commerce (e.g., highways, waterways, telephone lines, the internet)
2) regulation of the instrumentalities of interstate commerce (e.g., planes, trains, cars) and persons and things in interstate commerce
3) regulation of activities that have a substantial effect on interstate commerce

Question 18

Commerce Power - Regulation of Intrastate Activity

Answer 18

Congress may regulate intrastate (local) activity where it has a rational basis on which to conclude that the activity in the aggregate substantially affects interstate commerce.

But Congress cannot, consistent with the 10A, regulate noneconomic intrastate activity in areas traditionally regulated by state or local governments (e.g., can’t regulate intrastate violence against women although such violence in the aggregate does substantially affect interstate commerce).

Question 19

Commerce Power - Activity v. Inactivity

Answer 19

Under the Commerce Clause, Congress can regulate only existing commercial activity; it cannot compel activity (Sebelius).

Question 20

Commerce Clause - Power to Prohibit Private Discrimination

Answer 20

Under the Commerce Clause, Congress may prohibit private discrimination in activities that might have a substantial effect on interstate commerce.

Question 21

Legislative War Powers

Answer 21

Congress has the power to declare war, raise and support armies, provide for and maintain a navy, regulate the economy during war and in the postwar period to remedy wartime disruptions, and make rules for the government and regulation of armed forces.

Question 22

Legislative Investigatory Power

Answer 22

Congress has a broad implied power to investigate to secure info for potential legislation or other official action (e.g., for gathering info relating to impeachment). Such investigation must be expressly or impliedly authorized by the appropriate congressional house.

Congress can subpoena POTUS’s personal info, but the subpoena must advance a legit legislative purpose (the Court will balance Congress’ interests in obtaining the info against the burdens on POTUS).

Question 23

Legislative Property Power

Answer 23

Congress can dispose of and make rules for territories and the properties of the United States. Although there is no express limitation on the disposal of federal property, federal takings of private property (eminent domain) must be pursuant to an enumerated power under some other provision of the Constitution.

Question 24

Legislative Bankruptcy Power

Answer 24

Congress has a nonexclusive power (shared with the states) to establish uniform rules for bankruptcy. States may legislate in the field as long as their laws do not conflict with federal law.

Question 25

Legislative Postal Power

Answer 25

Congress has an exclusive postal power under which it can classify and place reasonable restrictions on use of the mails. It cannot, however, deprive any citizen or group of citizens of the general mail “privilege.”

Question 26

Legislative Power over Citizenship

Answer 26

Congress has exclusive power over naturalization and denaturalization, and it may establish uniform rules of naturalization. However, Congress cannot take away the citizenship of any citizen (native-born or naturalized) without their consent.

Congress has plenary power over aliens, who have no right to enter the U.S. and can be refused entry because of their political beliefs. Before resident aliens are deported, they must get notice and a hearing.

Question 27

Legislative Admiralty Power

Answer 27

Congress has exclusive and plenary admiralty power unless Congress leaves maritime matters to state jx.

Question 28

Legislative Power to Coin Money & Fix Weights and Measures

Answer 28

Congress has the power to coin money and fix standards for weights and measures.

Question 29

Legislative Patent/Copyright Power

Answer 29

Congress has the power to control the issuance of patents and copyrights.

Question 30

Delegation of Legislative Power

Answer 30

Delegation of legislative power to the executive and judicial branches is generally constitutional as long as there is an intelligible principle and the power is not uniquely confined to Congress (e.g., power to declare war, power to impeach)

Question 31

Bicameralism & Presentment

Answer 31

To pass a law, Congress must use bicameralism (passage of a bill by both houses of Congress) followed by presentment to POTUS for signature or veto. Congress can’t legislate around this constitutional requirement.

Question 32

Line Item Vetoes

Answer 32

Congress cannot delegate to POTUS the power of the line item veto (i.e., POTUS cannot cancel some parts of a bill and approve others–POTUS must approve or reject a bill as a whole).

Question 33

Legislative Vetoes

Answer 33

Congress cannot use a legislative veto (i.e., it cannot give itself the authority to amend or repeal an existing law without undergoing bicameralism and presentment).

Question 34

Speech or Debate Clause

Answer 34

Under the Speech or Debate Clause, conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution.

Immunity does not cover bribes, speeches outside Congress, or the republication in a press release or newsletter of a defamatory statement made in Congress.

Question 35

Executive Domestic Powers

Answer 35

POTUS has express and implied powers over internal affairs.

Express: POTUS has the express power and duty to faithfully execute the laws under Art. II, Section 3, Clause 4 (Take Care Clause);

Implied:

Question 36

Executive Power over External Affairs

Answer 36

Includes:

1) Power, as commander in chief, to act militarily in actual hostilities against the U.S. without a congressional declaration of war to protect American lives and property (subject to Congress’ power to enact military appropriation)
2) Power to represent the U.S. in day-to-day foreign relations
3) Power to enter into treaties with the consent of 2/3 of the Senate
4) Power to sign executive agreements without the consent of the Senate

Does not include:

1) Power to declare war (only Congress can)

Question 37

Hierarchy of U.S. Law

Answer 37

U.S. Constitution > Treaties & Fed Statutes (in a conflict between these 2, the last in time prevails) > Executive Agreements > State Law

Treaties are the “supreme law of the land” if they are self-executing (i.e., effective without any implementation by Congress). State laws that conflict with a self-executing treaty are invalid, and POTUS generally does not have independent power to issue a memo ordering compliance with a treaty that isn’t self-executing.

Executive Agreements are signed by POTUS and the head of a foreign country, and they can be used for any purpose for which a treaty can be used.

Question 38

Executive Privileges

Answer 38

POTUS has an executive privilege to keep certain presidential communications secret so that POTUS can receive candid advice and protect national security (nationals security interest given great deference by courts).

Privilege does not extend to:

1) In criminal proceedings, presidential communiques will be available to the prosecution where a need for such info is demonstrated.
2) POTUS’s personal records, which are subject to state criminal subpoenas.

Question 39

Executive Immunity

Answer 39

POTUS has absolute immunity from civil damages based on any action taken while exercising official responsibilities, but there is no immunity for acts that allegedly occurred before taking office.

Presidential aides can share in this immunity for suits brought concerning a sensitive area where they have exercised discretionary authority in that area.

Question 40

Impeachment

Answer 40

POTUS, VP, and all civil officers of the U.S. are subject to impeachment (the bringing of charges) for treason, bribery, and high crimes and misdemeanors.

Majority vote in the House necessary to impeach, and 2/3 vote in the Senate necessary for conviction and removal from office.

Question 41

Exclusive Federal Powers

Answer 41

Certain federal powers are exclusive for one of two reasons:

1) because the power of the states is expressly limited (e.g., treaty power, coinage of money)
2) because the powers are inherently federal (e.g., declaration of war, federal citizenship)

Under the 10A, all powers not granted to the federal government or prohibited to the states (these are expansive) are reserved to the states or the people (these are few).

Question 42

States General Police Powers

Answer 42

States have general police powers (i.e., they can regulate the health, safety, and welfare of their people).

These regulations are upheld if they are rational, unless they burden a fundamental right of involve a suspect or quasi-suspect classification.

Question 43

Federal Taxation & Regulation of State or Local Governments

Answer 43

Congress can subject state and local government activities to regulation or taxation if the law or tax applies to both the public sector and the private sector (e.g., minimum wage laws).

However, Congress cannot compel (“commandeer”) the states to enact state laws or to enforce federal laws (the anti-commandeering principle).

For example, Congress could not require states to enact environmental regulations, require local law enforcement to conduct background checks for a federal handgun law, or ban states from legalizing sports gambling.

But: Congress can attach non-coercive spending conditions to grants of money to states (this does not violate the anti-commandeering principle), and Congress may restrict states from discriminating in violation of the EPC or DPC under its 14A enforcement powers.

Question 44

State Taxation & Regulation of Federal Government

Answer 44

A state may not directly tax federal instrumentalities without the consent of Congress. However, nondiscriminatory indirect taxes are permissible if they do not unreasonably burden the federal government (e.g., state income tax on federal employee).

States cannot regulate the federal government or its agents while performing their federal functions (e.g., a state cannot require a member of the military to have a driver’s license to drive military equipment in the state).

Question 45

Concurrent Federal & State Power - Effect of the Supremacy Clause

Answer 45

Because of the Supremacy Clause, a federal law may supersede or preempt state (or local) laws.

Express preemption: where a federal law expressly says that the states may not adopt laws concerning the subject matter of the federal law; narrowly construed

Implied preemption where:

1) state law conflicts with federal law
2) state or local law prevents achievement of a federal objective (even if the state law was enacted for some valid purpose and not to frustrate the federal law)
3) valid federal law “occupies” the entire field, thus barring any state or local law even if the state or local law is nonconflicting (“field preemption”) (to determine whether field preemption exists, courts will look at Congress’ intent to preempt the field - e.g., looks at the comprehensiveness of a regulatory scheme or whether Congress created an agency to oversee the area)

Presumption against preemption:

Courts will presume that the historic state police powers (e.g., regulations of health, safety, or welfare) are not be superseded unless that was the clear and manifest purpose of Congress.

Question 46

Interstate Compact Clause

Answer 46

Concerns agreements between states. Congressional approval required where the agreement increases the states’ power at the expense of federal power.

Question 47

Article IV Privileges and Immunities Clause

Answer 47

Prohibits discrimination by a state against nonresidents when such discrimination (1) is intentionally protectionist in nature and (2) concerns either important commercial activities (e.g., the pursuit of a livelihood) or fundamental rights.

The discrimination will be invalid unless it is necessary to achieve an important government purpose and there are no less restrictive means available (i.e., the state would have to show that nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the problem).

Does not protect corporations and aliens.

Question 48

14A Privileges and Immunities Clause

Answer 48

States cannot deny their own citizens the privileges or immunities of national citizenship (e.g., the right to petition Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel).

Does not protect corporations.

Question 49

Dormant Commerce Clause (AKA Negative Commerce Clause)

Answer 49

If Congress has not enacted laws regarding the subject, a state or local government may regulate local aspects of interstate commerce, but, consistent with the Commerce Clause, they cannot (1) discriminate against or (2) unduly burden interstate commerce.

(1) Discriminatory laws –> apply test: law valid (a) necessary to achieve an important, noneconomic state interest and (b) there are no reasonable nondiscriminatory alternatives available (state or local laws that discriminate against interstate commerce to protect local ECONOMIC interests are almost always invalid).
(2) Nondiscriminatory laws that burden –> apply test: law valid unless the burden outweighs the promotion of a legit local interest
(3) Laws adopted by the state of incorporation regulating the internal governance of a corporation –> different standard (not mentioned, but state will likely win)

Exceptions:

1) Congressional approval of state laws that would otherwise violate the Dormant Commerce Clause
2) Where state is a market participant, the state may prefer its own citizens in receiving benefits from government programs or in dealing with government-owned businesses (e.g., when hiring labor, buying or selling products or giving subsidies). But once a state sells state-owned resources, it cannot control what happens to the resources after that.
3) Where the law favors government action that involves the performance of a traditional government function (e.g., waste disposal)