con law

Question 1

what is meta question 1

Answer 1

Does the government have the power to take a certain action

Question 2

Executive power constitutional anchors

Answer 2

1. to be the executive
2. to command and chief (requires the theater of war)
3. to take care and execute the laws

Question 3

example of when president could act in Jackson’s lowest eb

Answer 3

Zivitofsky - constitutional anchor to recognize other state sovereigns and this was so exclusive that it could be done contrary to the will of Congress

Question 4

Jackson’s highest eb of executive power

Answer 4

when there is a constitutional anchor and congress has legislated the authority

Question 5

Jackson’s middle eb of executive power

Answer 5

when there is a constitutional anchor but congress has been silent as to its will

Question 6

Jackson’s lowest eb

Answer 6

when there is constitutional anchor but congress has legislated contrary to the executive’s action

Question 7

Case types where the executive has deference

Answer 7

foreign affairs

Question 8

legislative powers come from…

Answer 8

enumerated powers of the constitution

Question 9

legislative enumerated powers

Answer 9

1. commerce clause
2. Taxing and spending
3. Necessary and proper clause (can only be used in support of another enumerated power)

Question 10

what is the usual standard of review for meta question 1

Answer 10

rational basis

Question 11

what is meta question 2

Answer 11

even if the government has the authority to act, has it nonetheless intruded on another constitutional interest?

Question 12

state action doctrine

Answer 12

the infringement must have come from a state actor, or a private actor whose conduct is fairly attributable to the staet

Question 13

framework for meta question 2

Answer 13

1. is there a right
2. has it been infringed
3. what is the standard of review

Question 14

where do individual rights surface in the constitution?

Answer 14

1. text (bill of rights)
2. substantive due process and equal protection (fourteenth amendment)

Question 15

when do you apply rational basis for substantive process rights?

Answer 15

rights not within footnote 4 of carolene products (not enumerated textually, not dealing with group historically oppressed, not dealing with an insular minority with limited access to the democratic process, not dealing with an attempt to corrupt the democratic process)

Question 16

equal protection framework

Answer 16

1. is there a classification?
2. is it a suspect class?
3. what is the standard of review?

Question 17

what are the signs of a suspect class?

Answer 17

the distinction is based on an immutable trait, the class belongs to an insular minority, historical oppression

Question 18

what are the doctrines of constitutional interpretation?

Answer 18

History
Text
Structure (inferences made from the balances of power)
Doctrine (prior court decisions)
Ethos (moral and political commitments)
Prudence (balances costs and benefits)

Question 19

What are the justifications for overturning stare decisis and what case do these justifications come from?

Answer 19

Dobbs v. Jackson Women’s Health Association
Nature of the court’s error (egregious error affecting selection of justices to the supreme court)
Quality of the reasoning (did not rely on precedent or history and included arbitrary rules)
workability (terms of rule are vague)
effect on other areas of law (disregarding and distorting other legal docrines)
reliance interests (court is ill equipped to determine the national pysche; reliance only refers to contractual future expectations)

Question 20

Marbury v. Madison

Answer 20

Case establishing the Supreme Court’s power of constitutional review. In this case, the court had to decide if the judiciary act comported with the constitution allowing the Supreme Court to issue a writ of mandamus

Question 21

what are the mechanisms to control the judiciary

Answer 21

jurisdiction (congress has the ability to tinker with appellate jurisdiction)
some matters are so political they belong to the political branches
informal expectation relative to the reasoning and interpretive modes available to the justices

Question 22

what article of the constitution details the executives powers

Answer 22

article II

Question 23

where do the executive powers come from

Answer 23

constitutional anchors
congressionally granted powers
possible inherent powers

Question 24

what is the ruling of Youngstown sheet & tube co. v. sawyer

Answer 24

the president does not have the authority to seize private property outside of the bounds articulated by federal statutes.

Question 25

what are the bounds of the executive power as detailed in Jackson’s concurrence in Youngstown steel

Answer 25

the highest eb - when the president’s power is rooted in a constitutional anchor and aligns with the will of congress
the middle eb - when the president’s power is allegedly rooted in the constitution but it may be an unprecedented situation and congress’ will is unclear; have to look at the circumstances and what congress may be thinking
the lowest eb - when the president’s power is allegedly rooted in a constitutional anchor but is acting contrary to congress’ wishes; subject to highest scrutiny; may be acceptable in foreign affairs situations

Question 26

what is the general rule regarding the president’s executive privilege

Answer 26

the president does not have an absolute privilege to avoid subpoena or prosecution when holding office

Question 27

what is the holding of united states v. richard nixon

Answer 27

there should be no immunity from subpoena when the limited privileges of the president come into conflict with the constitutional interests of a well-functioning criminal justice apparatus (subpoena came from congress)

Question 28

what are the limited presidential privileges with regards to subpoena and what case are they articulated in

Answer 28

United States v. Richard Nixon
when materials may be protected because they pertain to military matters, national security, foreign affairs, or sensitive information (the president would have to point out one of these considerations) (keeps the president from being burdened or inhibit his ability to make informed decisions)
when the subpoena would inhibit the free flow of information from the president’s advisors

Question 29

what was the holding of Trump v. Vance

Answer 29

(distinguished because the subpoena came from a state prosecutor)
no elevated standard despite the supremacy clause
regular constitution protections (5th amendment) are enough to protect against diversion, stigma, and harassment (but the president has to assert that one of these is present)

Question 30

what is the ruling of Trump v. Mazars USA

Answer 30

The House of Representatives has the authority to issue subpoenas for the president’s financial records under certain conditions. Congress needs a legislative purpose (can’t be used as a case study, and if the documents can be found elsewhere, they must be obtained elsewhere) the subpoena must only be broad enough to further congress’ legislative interest; congress must adequately detail its legislative purpose and explain why the president’s information will further that purpose; courts must be aware of the burdens imposed on the president by subpoenas

Question 31

What is the nature of the president’s powers in foreign relations and what cases articulate this?

Answer 31

the President has broad discretion when engaging in foreign affairs because he is in the best position to understand the needs of the nation with respect to other countries - United States v. Curtiss Wright Export Group
the President has sole recognition authority for recognizing the sovereignty of different states - Zivotofsky v. Kerry
The president has the power to compel settlement in the context of foreign conflict - dames & moore v. regan, secretary of the treasury
The president has the power to rescind treaties without congress’ approval - Goldwater v. Carter

Question 32

what is the war powers resolution

Answer 32

originates from the unofficial nature of the vietnam war and its domestic controversy
both houses of congress and the president must decide together to go to war
the president must report that he is putting forces into hostility
there is a time limit of 60 days

Question 33

what is the political question doctrine analysis and what case does it come from

Answer 33

Baker v. Carr
even when there is a constitutional question, the court will stay away from issues that are predominantly political
clear textual assignment
no standard that a court can discover (political questions)
court shies away from making policy
avoid showing disrespect to other branches of government
court will stay away from:
political branch self governance
guarantee clause (guarantee states a republican form of government)
impeachment
war powers and foreign affairs

Question 34

what are the president’s powers regarding military tribunals/commissions and what cases articulate them

Answer 34

the president can set up his own military tribunals where accused are afforded the same protections in the constitution - ex parte quirin (nazis)
the president can detain an american citizen as an enemy combatant - Hamdi v Bush
the president has the power to restrict the entry of aliens whenever he determines that entry would be detrimental to the interests of the united states - Trump v. Hawaii

Question 35

what are the different eras of the commerce clause

Answer 35

early - narrowest possible reading; only when money is actually exchanged across the borders of the states (gibbons case)
limited - robber baron court; commerce has to be an exchange for value and can’t touch production or purely local activities (identified the three areas in which the commerce clause might be deployed)
expansive - FDR and the New Deal expanding the notion of the commerce clause to combat the effects of the great depression

Question 36

what are the three instances when the commerce clause might be deployed

Answer 36

Congress may regulate:
the instrumentalities of interstate commerce
the channels of interstate commerce
those things that substantially affect interstate commerce

Question 37

what is the understanding of congress’ power under the expanded commerce clause, what judicially defined aspect of the commerce clause informs its power, and what case articulates them?

Answer 37

The commerce clause gives congress the power to regulate things which substantially affect interstate commerce including:
local manufacturing - NLRB v. Jones and Laughlin Steel Corp.
shipping - United States v. Darby
purely local activities which in the aggregate substantially affect interstate commerce (Wickard v. Filburn)

Question 38

what standard of review is afforded to commerce clause issues

Answer 38

rational basis

Question 39

under the new era of the commerce clause, what is the understanding of congress’ powers and what case articulates them

Answer 39

It doesn’t matter if congress is working towards social justice if it still has the authority to act - Heart of Atlanta Motel v. United States, Katzenbach v. McClung St. & McClung Jr.
The court now requires a jurisdictional nexus between the legislation and commercial activity: the regulation must be an economic activity, it needs to relate to interstate movement and this must be articulated within the text of the regulation, the court is no longer deferential (still rational basis but no longer blind deference; need evidence) - Lopez v. United States

Question 40

what is the understanding of the taxing and spending clause and what cases articulate this understanding

Answer 40

the taxing and spending clause is a distinct enumerated power not to be qualified by other enumerated powers - United States v. Butler
the power of the federal government to tax is as expansive as the states’ authority; just needs to raise revenue (be for a taxable purpose) - Steward and Mach Co. v. Davis
the federal government can criminalize misuse of federal funds (congress shouldn’t have to worry if its funds are being misused) - Sabri v. United States
Congress may implement conditional spending if the condition is for the general welfare, unambiguous, reasonably related between the money being spent and the national project or program promoted by the conditions, and whether the spending violates the provisions of another constitutional interest - tenth amendment - can’t be coercive - south dakota v. dole

Question 41

what is the understanding of the necessary and proper clause and what cases articulate this understanding?

Answer 41

the necessary and proper clause is the implied authority that shadows and accompanies all the enumerated powers; it does not stand alone - McCulloch v. Maryland
necessary means convenient, useful, and essential - McCulloch v. Maryland
the necessary and proper clause contains broad authority to bring congress’ enumerated powers into action; it must be a modest extension of an existing federal power; it must be a reasonable extension of the federal power; it must be accountable to the state’s interests; and it cannot be too attenuated from the article 1 power it seeks to promote - United States v. Comstock

Question 42

what are the post civil war amendments

Answer 42

13th amendment- eliminates slavery; congress has the authority to regulate private activity to enforce this provision; only relates to slavery narrowly and the badges and incidents of slavery
14th amendment - universal citizenship; cannot deprive citizens of life, liberty, or property without due process of law; congress can enact legislation to enforce this provision
15th amendment - ensures rights to all people regardless of race or previous condition; congress can enact legislation to enforce this provision

Question 43

what are congress’ powers under the 14th amendment and what cases articulate these powers

Answer 43

the 14th amendment cannot be read as allowing congress to regulate private activity - United States v. Morrison
the substance of the 14th amendment cannot be defined by congress; congress’ power under the 14 amendment is remedial; a remedial act by congress means that it is congruent and proportional to a constitutional violation
congruent - has congress passed an act that is suitable to combat the constitutional violation
proportional - balancing test - is there a disproportionate exercise of congress’ power in comparison to the violation
disproportionate - when congress is trying to rewrite a constitutional protection - city of boerne v. flores

Question 44

what is congress’ power under the 15th amendment

Answer 44

the 15th amendment allows congress to pass laws which prevent voting discrimination, but provisions which violate the fundamental principles of federalism have to be rooted in current needs (discrimination) - shelby county v. holder

Question 45

what is the tenth amendment

Answer 45

all powers not given to the federal government reside in the states

Question 46

what is the understanding of the tenth amendment and what cases articulate this

Answer 46

the tenth amendment does not provide a distinct cause of action against the federal government
the federal government can impose fair labor standards on states acting as employers; overruling national league of cities traditional functions of the government language - garcia v. san antonio metropolitan transit authority
congress cannot compel the states to legislate - New york v. united states (waste disposal case)
Congress cannot comandeer state officials to implement congress’ will “puppets of a ventriloquist congress” - Printz v. United States (gun background check case; people should know who to hold accountable for policies they don’t like)
Generally applicable laws which don’t compel state legislatures or officers don’t carry a tenth amendment violation - Reno v. Condon
congress can’t prevent states from authorizing private conduct within their police powers - Murphy v. NCAA

Question 47

tenth amendment - what is the holding of National Federation of Independent Business v. Sebelius

Answer 47

the power to regulate commerce means that the commerce had to have already existed in the first place; the mandate in the ACA forced individuals to participate in commerce rather than regulating existing commerce; can implement the minimum insurance purchase because it results in a tax and there is a longstanding practice of taxing to influence behavior; therefore not a commerce clause question but a taxing and spending question
can’t make the states expand medicaid coverage because the condition is coercive (states rely on federal medicaid funding and would lose all if didn’t expand medicaid funding)

Question 48

what are the individual rights in the body of the constitution

Answer 48

bill of rights
no ex post facto crimes
ensures writ of habeus corpus
protects contracts pre revolution

Question 49

what is the meta question question #2 framework

Answer 49

is there a right/what is the scope of the right
has the right been infringed
what is the standard of review

Question 50

what is the understanding of incorporating the bill of rights to the states and what case articulates this

Answer 50

duncan v. louisiana - incorporate rights to the states if they are fundamental to justice and basic to our jurisprudence (all of the bill of rights has been incorporated except for the third amendment no quartering and the 7th amendment right to grand jury and juries in civil cases)

Question 51

what is the threshold question in meta 2 issues

Answer 51

state action doctrine - the constitution generally doesn’t apply to private or non-state actors; except for some exceptions

Question 52

what are the exceptions to the state action doctrine

Answer 52

public function exception - private conduct may be fairly attributable to the state when the conduct engages in public functions
entanglement exception - when private conduct is so thoroughly intermingled with public conduct and public authorities that it wouldn’t make sense to fully call it private
entwinement exception - not as articulated by the supreme court/seems to be synonymous with entanglement

Question 53

what is the understanding of the public function exception and what cases articulate this

Answer 53

public function exceptions arise from actions that are traditionally and exclusively reserved to the state, and there must be a sufficient nexus between the private function and a public function - Jackson v. municipal edison co.
regulating a town is a public function - marsh v. alabama (also a traditional location for speech)
providing power is not a traditionally public function (jackson v. municipal edison co.)
working around the constitution under the label of private action is state action (Terry v. Adams state primaries)
Can’t strip a public area of its public nature simply by transferring ownership to private entities (evans v. newton)
providing a television channel is not a traditional and exclusive function of government (manhattan community access v. halleck)

Question 54

what is the understanding of the entanglement exception and what are the cases that articulate it

Answer 54

the judiciary can’t be used to enforce a discriminatory covenant - shelley v. kraemer
state actors can’t rely on private law to enforce remedy for defamation by private actors - new york times v. sullivan
the use of courts to attach property prior to a judgement requires constitutional protections (look to if the state created the rule and if the state is enforcing the rule) - Lugar v. Edmonson Oil Co.
cannot use preemptory challenges to strike black jurors; does the private actor rely on state rules and state enforcement to achieve challenged conduct - edmonson v. leesville concrete co.
if the government and the private actor have mutually beneficial interests and the private challenged conduct takes place within a government relationship then it is state conduct - burton v. wilmington parking authority
regulation needs to be necessary for the private function - moose lodge no. 107 v. irvis
doubtful that a subsidy will be enough to establish entanglement
the government cannot outsource to private individuals to avoid constitutional responsibilities ie providing financial aid to entities that practice discrimination - norwood v. harrison
membership of public entities (public schools and public officials) may establish sufficient entanglement - brentwood academy v. tennessee secondary school athletic association

Question 55

what is the understanding of economic rights and what cases articulate this understanding

Answer 55

there is a right to contract - allgeyer v. louisiana
the standard of review in economic rights cases is rational basis, but sometimes the government may still lose (bakery time case) - lochner v. New York
right to contract can’t get in the way of state’s police powers (minimum wage laws upheld) - west coast hotel co. v. parrish
economic rights are rational basis and the court will look for a legitimate purpose even if the government doesn’t articulate one - united states v. carolene products co.
state can’t infringe on production rights to establish a nationwide policy - BMW of North America v. Gore

Question 56

what is the standard for an unarticulated right to be recognized

Answer 56

it must be traditionally protected and fundamental to our notions of ordered justice

Question 57

what are the heightened rights under carolene products footnote 4

Answer 57

rights that implicate the capacity of insular minorities to engage in the democratic process - strict scrutiny
infringement on the political process - strict scrutiny
when legislation violates the constitution on its face (violates the bill of rights) - strict scrutiny

Question 58

what is the understanding of the right to marry and what cases articulate this understanding

Answer 58

there is a right to marry - zablocki v. redhail
invidious purposes are not legitimate (anti gay marriage legislation) - Windsor
obergefell - there is a right to same sex marriage (substantive due process issue because the court doesn’t want to make sexual orientation or identity a strict scrutiny issue)
rational basis + - obergefell

Question 59

what is the understanding of the right to procreate and what cases articulate this

Answer 59

there is a right to procreate and it is subject to strict scrutiny (no forced sterilization) - Skinner v. Oklahoma ex rel Williamson

Question 60

what is the understanding of the right to purchase and use contraceptives

Answer 60

there are rights hidden in other rights such as the penumbral right to privacy implicit in the first, third, fourth, fifth, and ninth amendments
the government cannot enact unnecessarily broad means which would otherwise infringe on protected freedoms - griswold v ct
this is affirmed in eisenstadt v. baird

Question 61

what is the understanding of the right to an abortion and what case articulates this

Answer 61

there is no right to abortion as it is not traditionally protected by the courts and is not fundamental to the nations notion of well ordered justice; roe is wrong about abortion right and casey is wrong about stare decisis

Question 62

right to custody of child understanding and cases

Answer 62

michael H and Gerald D - statute upheld that prevented biological father from having custody over married couple