Con Law Flashcards
Principles of Judicial Review
[the role of federal courts in constitutional cases: judicial review]
- The Constitution is the supreme law of the land.
- It is the Supreme Court’s duty to interpret the Constitution.
- Federal statutes, regulations, executive orders, etc. that are inconsistent with the Constitution are invalid.
- State statutes, regulations, executive orders, constitution amendments, etc. that are inconsistent with the U.S. Constitution are invalid.
- The Supreme Court’s interpretation of the U.S. Constitution (but not state constitutions) and federal law is final and binding.
Supreme Court’s Original Jurisdiction
[the role of federal courts in constitutional cases: Supreme Court’s jurisdiction]
Definition: a case that is heard by the Supreme Court before it has been decided by any other court.
According to the Constitution, 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”
Congress cannot expand or reduce the Supreme Court’s original jurisdiction. It may, however, grant concurrent jurisdiction to lower federal courts to hear such cases.
- In suits between two or more states, the Supreme Court’s original jurisdiction is exclusive (i.e., not concurrent with lower courts)
Supreme Court’s Appellate Jurisdiction
[the role of federal courts in constitutional cases: Supreme Court’s jurisdiction]
Definition: jurisdiction to review a lower court’s decision; in other words, some tribunal (state or federal) has already ruled on this controversy.
The Supreme Court’s appellate jurisdiction is almost entirely discretionary; petitioners seek review by filing a petition for writ of certiorari, which may be granted upon the approval of four justices (i.e., the “Rule of Four”).
Congress has significant authority to reduce the Supreme Court’s appellate jurisdiction, but this authority is not unlimited.
2 forms of appellate jurisdiction
[the role of federal courts in constitutional cases: Supreme Court’s jurisdiction]
- Writ of Certiorari (Discretionary)
- The Supreme Court has complete discretion to hear cases that come to it by writ of certiorari. A case will be heard if four justices agree to hear it. The following cases may be heard by certiorari:
- Cases from the highest state courts where (i) the constitutionality of a federal statute, federal treaty, or state statute is called into question; or (ii) a state statute allegedly violates federal law and
- All cases from federal courts of appeals - Appeal (Mandatory)
- 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.
Principle behind justiciability
[the role of federal courts in constitutional cases: justiciability]
Federal Courts should avoid deciding constitutional issues needlessly.
Definition of justiciability
[the role of federal courts in constitutional cases: justiciability]
Even if a case involves an issue within the jurisdiction of federal courts, a federal court will not (or in some cases, shall not) hear the dispute unless it is in the appropriate posture. Such determinations are made at each level in federal courts.
6 justiciability doctrines
[the role of federal courts in constitutional cases: justiciability]
- Advisory Opinions
- Standing
- Ripeness
- Mootness
- Political Question Doctrine
- Adequate and Independent State Grounds Doctrine
Advisory Opinions
[the role of federal courts in constitutional cases: justiciability]
Article III limits the jurisdiction of federal courts to “cases” or “controversies.” This language has been interpreted to exclude the issuance of “advisory opinions.” There are two types of advisory opinions:
- Classic Advisory Opinions: situations in which someone, often a member of the executive or legislative branch, is seeking an opinion about the validity or constitutionality of a law or other government action before it is enacted or enforced
- Example: the president is considering selling arms to Israel. There is an old statute on the books prohibiting arms sales to “Middle-Eastern” countries. The president is unsure whether this statute applies to Israel, so he asks the Supreme Court for advice. What result?
- The president is seeking an advisory opinion, which federal courts cannot issue. - Non-Final Opinions: opinions by federal courts that may be reversed or modified by the executive or legislative branch (or, for that matter, anyone other than a higher court).
Requirements of standing
[the role of federal courts in constitutional cases: justiciability]
General Rule: Standing requires:
- Injury in fact: the P has suffered a concrete, particularized injury that has actually occurred or is imminent; ideally, the P will be able to show physical injury, property damage, or economic loss (such as lost profits)
- Causation: the injury must be “fairly traceable” to the D (i.e., the government)
- Redressability: if the court grants P’s relief, this will fix the problem
Citizen standing
[the role of federal courts in constitutional cases: justiciability]
Citizen Standing: citizenship alone is insufficient to confer standing to challenge government action or inaction
Taxpayer Standing
[the role of federal courts in constitutional cases: justiciability]
Taxpayer Standing: as a general rule, a “federal taxpayer” does not have standing to challenge a federal spending measure, unless Congress confers such standing
State taxpayers generally do not have standing in federal court to challenge state expenditures, but municipal taxpayers probably have standing in federal court to challenge municipal expenditures
Third Party Standing
[the role of federal courts in constitutional cases: justiciability]
Third Party Standing: as a general rule, a P may assert only injuries that he or she has suffered and may not assert injuries suffered by others. There are several exceptions to this rule:
- Associations (e.g., NAACP or labor unions) may assert claims on behalf of their members, as long as at least one member has Article III standing and the clam is related to association’s mission.
- Jus Tertii Standing: a P has standing to assert the injuries of a third party if there is an impediment to the real P bringing suit on his or her own behalf and there’s a nexus between the real P and the third party; examples: doctors asserting rights of patients; litigants asserting rights of jurors
- There is a special relationship between the P and the third party (e.g., parent-child)
- The P is asserting a First Amendment “facial challenge” to an overbroad law
Legislator’s Standing
[the role of federal courts in constitutional cases: justiciability]
Legislator’s Standing: legislators generally do not have standing to challenge legislation with which they disagree
Ripeness
[the role of federal courts in constitutional cases: justiciability]
Definition: the case is brought too early; the P does not yet have standing.
For standing to exist, the P must have already been harmed or there is an immediate threat of harm.
Ripeness often arises in cases where the P is challenging a criminal statue or administrative regulation before he or she has been arrested (or harmed) or there is an imminent threat of arrest (or harm).
Mootness
[the role of federal courts in constitutional cases: justiciability]
Definition: the case is brought too late; the plaintiff had standing, but lost it. Mootness may occur at any time and any level. If the D voluntary ceases whatever action is at issue, the case will be moot only if there is no reasonable expectation that the alleged violation will recur.
Exceptions to mootness
[the role of federal courts in constitutional cases: justiciability]
- Capable of repetition in this P, yet evading review: there are some issues that have such short durations that they can never receive full judicial review before they become moot. For such issues, the court will ignore mootness.
- Examples: issues involving pregnancy (e.g., abortion), ballot restriction measures in elections, but not a discrimination case against a law school in which the P was admitted to (and was scheduled to graduate from) the law school while the case was pending - Collateral consequences: a case is not moot if there are collateral consequences (e.g., damages) that have yet to be determined
- Class Actions: after a class has been certified, the case does not become moot because the named P’s claim is mooted, as long as the claims of other members of the class are still viable.
Political question definition
[the role of federal courts in constitutional cases: justiciability]
Definition: there are some issues federal courts choose not to hear.
Two types of political questions:
- Those textually committed to another branch by the Constitution
- Those for which there are no judicially manageable standards
Examples of political questions textually commited to another branch by the constitution
[the role of federal courts in constitutional cases: justiciability]
- Impeachment process
- Congress’s power to judge the age, residency, and citizenship qualifications of its members
- Congress’s power to expel a member
Examples of political questions for which there are no judicially manageable standards
[the role of federal courts in constitutional cases: justiciability]
- The constitutional amendment process
- Partisan (i.e., political) gerrymandering
- Disputes within political parties
- Guaranty clause cases (e.g., what is a “republican form of government?”)
- Administration of foreign affairs (e.g. president’s power to unilaterally terminate a treaty)
- The President’s authority to deploy military forces without a congressional declaration of war
Adequate and Independent State Grounds
[the role of federal courts in constitutional cases: justiciability]
The Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. Thus, the Supreme Court will not exercise appellate jurisdiction over a case arising out of the highest involving an issue of federal law if the state court’s decision was clearly based on an adequate and independent state ground
A state ground is “independent” if the state court expressly stated that its decision rests on state law.
The common scenario for an “adequate and independent state grounds” case is where the state constitution grants a person the same or more rights than the U.S. Constitution.
Framework for determining whether adequate and independent state grounds exist
[the role of federal courts in constitutional cases: justiciability]
To determine whether adequate and independent state grounds exist, ask: Can the U.S. Supreme Court change the result of the case by ruling on the federal question?
If yes: the U.S. Supreme Court can hear the appeal
If no, the U.S. Supreme Court cannot hear the appeal.
Areas in which Congress may regulate
[federalism: federal laws]
The federal government is a government of limited, enumerated powers. The Constitution prescribes several “enumerated” areas in which Congress may regulate, the most important of which are:
- Commerce Clause
- Spending Clause
- Taxing Clause
- War Powers
- Treaty Powers
- Post-Civil War Amendments
- Property Clause
What Congress may regulate under the Commerce Clause
[federalism: federal laws]
Interstate Commerce. Under the Commerce Clause, Congress may regulate:
- Anything that crosses state lines, physically, electronically, or otherwise
- The instrumentalities of interstate commerce (e.g., planes, trains, telephone calls, internet, etc.)
- Any “economic” or “commercial” activity that, in the aggregate, has a substantial effect on interstate commerce; under this test, Congress can regulate virtually any activity and its power is plenary
Exception to the Commerce Clause “aggregate” test
[federalism: federal laws]
The “aggregate” test applies only to activities that are “economic” or “commercial” in nature
A federal statute banning possession of guns in school zones is not “economic” in nature
A federal statute creating a civil remedy for victims of gender-motivated violence is not “economic” in nature
A federal statute criminalizing possession of marijuana is “economic” in nature
- Exception: The Commerce Clause may not be used to compel persons to purchase an unwanted product.
Meaning of the term “commerce” under the Commerce Clause
[federalism: federal laws]
For purposes of the Commerce Clause, the term “commerce” includes “every species of commercial intercourse,” including transportation and traffic.
Congress’s power to regulate foreign commerce
[federalism: federal laws]
Foreign Commerce. Congress’s power to regulate foreign commerce is exclusive; with a few minor exceptions, states have no power to regulate or interfere with foreign commerce.
Spending Clause
[federalism: federal laws]
Congress may spend for the general welfare of the nation and to pay debts (note: this is the only time Congress may rely on the “general welfare” to act) .
The spending clause is an independent source of federal power; spending is not limited to the other enumerated powers.
Limitations for conditions Congress can impose with the Spending Clause
[federalism: federal laws]
Congress’s power under the spending clause is even broader than its power under the commerce clause; in other words, the spending clause may be used to “regulate” (i.e., encourage) indirectly what Congress cannot regulate directly, subject to the following limitations:
- The conditions imposed by Congress must be “related” to the purpose of the program; and
- The federal statute must give states a “genuine choice” and not be unduly coercive (e.g., a federal law that threatens to withhold 100% of federal Medicaid funds from states refusing to expand their Medicaid programs is unduly coercive because it does not give states a “genuine choice.”)
Taxing Clause
[federalism: federal laws]
For UBE purposes, Congress may tax anything as long as the tax is reasonably related to raising revenue, regardless of any other motives Congress may have had (e.g., to tax something out of existence).
Exception: Taxes that violate the First Amendment
Congress’s War Powers
[federalism: federal laws]
In the theater of war, Congress’s powers are virtually unlimited (but are shared with President)
On the homefront, Congress has significant power both during and after war to remedy the effects of war, including the economic effects.
The Commerce Clause has probably superseded the War Powers on the homefront.
Treaty Powers
[federalism: federal laws]
Congress has the power to pass laws to enforce treaties
A treaty cannot confer on Congress authority to act in a manner inconsistent with a specific provision of the Constitution.
Congressional Power Under Post-Civil War Amendments: 14A
[federalism: federal laws]
§ 5 of the 14th Amendment authorizes Congress to prohibit discrimination by state and local governments, but may not be used to regulate private discrimination
§ 5 of the 14th Amendment is usually a wrong answer on the MBE, unless the question is testing exceptions to the 11th Amendment or the federal government is regulating purely state activities
Congressional Power Under Post-Civil War Amendments: 13A
[federalism: federal laws]
§ 2 of the 13th Amendment may be used to regulate any private discriminatory behavior if such behavior constitutes a “badge or incident” of slavery, such as refusing to rent or sell property, or contract with, or admit a child to a private school, or employ a person because of race; unlike the Commerce Clause, § 2 of the 13th Amendment does not require a showing that the discrimination has a “substantial effect” on interstate commerce
If Congress passes a law prohibiting racial discrimination by private entities, the best constitutional authority for such statute is usually the Commerce Clause; if the Commerce Clause will not work, then § 2 of the 13th Amendment is the best answer
Property Clause
[federalism: federal laws]
Authorizes Congress to pass any laws relating to the ownership, transfer, disposal, or use of federal property (real, personal, intangible)
Thus, Congress has “police” powers in the District of Columbia, and in federal parks, military bases, etc.
Constitutional provisions that do not confer authority on the federal government to regulate
[federalism: federal laws]
The following do NOT confer authority on the federal government to regulate:
- Police Power
- General Welfare (except in connection with the Spending Clause)
- Necessary & Proper Clause (standing alone)
Checks on federal power in the Constitution that apply to both the federal government and state governments
[federalism: federal laws]
There are several checks on federal power in the Constitution that apply to both the federal government and the state governments, including the:
- Due Process Clause
- Equal Protection Clause (via reverse incorporation)
- First Amendment
- Takings Clause
Constitutional checks that apply only to the federal government
[federalism: federal laws]
There are also checks that apply only to the federal government:
- 10th Amendment
- 11th Amendment
10th Amendment as a limitation on federal government
[federalism: federal laws]
General Rule: The 10th Amendment provides that state governments have all power not conferred upon the federal government (nor prohibited to the states) by the Constitution.
Today, the 10th Amendment is simply a truism (i.e., states have those powers not given to the federal government, but since federal power has been construed so broadly, there is little left for the states)
Thus, the 10th Amendment rarely limits Congress’s power, and is usually the wrong answer on the MBE
10th Amendment modern limits on Congress’s powers
[federalism: federal laws]
There are two modern limits on Congress’s powers under the 10th Amendment (or federalism generally):
- NY v. US: The 10th Amendment bars Congress from ordering state legislatures to pass or not pass laws (i.e., Congress may not “commandeer” state legislatures and may not issue “direct orders” to state legislatures, such as a federal law prohibiting state legislatures from authorizing sports gambling schemes)
- But (a) the federal government could pass the law itself (assuming it has such authority, which it often will); or (b) the federal government could encourage the state to pass (or not pass) such laws under its spending power - Printz v. US: The 10th Amendment bars Congress from compelling state executive officials (e.g., county sheriffs) to enforce federal laws
- But (a) the federal government could enforce the law itself; or (b) the federal government could encourage state officials to enforce such las under its spending power
Scope of modern 10th Amendment limitations on Congress’s powers
[federalism: federal laws]
- NY and Printz are limited to federal mandates that apply only to state governments
- In Reno, the Court upheld a law prohibiting states from selling DMV information because unlike the laws in NY and Prinz, this law (a) applied to both states and private companies; and (b) did not impose an affirmative burden on the states - State courts, unlike state legislatures and executives, are bound to enforce federal law under the Supremacy Clause
- Moreover, state courts must hear cases involving federal claims—they may not discriminate against actions brought to enforce federal law
11th Amendment as a limitation on federal government
[federalism: federal laws]
General Rule: State governments may not be sued for money damages for federal claims. Thus:
- A federal claim may not be brought against a state by (a) citizens of other states; (b) citizens of that state; or (c) foreign citizens
- The 11th Amendment (and state sovereign immunity) bars federal claims brought by these parties against a state in federal court, state court, or federal administrative tribunals (e.g., Federal Maritime Commission)
Exceptions to the 11th Amendment
[federalism: federal laws]
Times when federal claims may be brought against a “state”
- A suit for prospective injunctive relief (including an order to pay—in the future—any money needed to comply with the injunction) against a state official in his or her capacity
- Money damages may be sought from a state official personally, but not if such damages would be paid out of the state treasury
- The state expressly waives its sovereign immunity
- Suits brought by the United States or other states
- A state may sue another state for money damages in an original action in the Supreme Court - Congressional Abrogation of State Sovereign Immunity. Congress may authorize private persons to sue state governments for money damages, but only in some very limited circumstances; these suits may arise out of Congress’s power under § 5 of the 14th Amendment, and for the UBE are probably limited to suits for racial or gender discrimination or access to courts by disabled individuals. Congress must make a “clear statement” of its intent to abrogate the 11th Amendment
- Proceedings arising under federal bankruptcy law (e.g., adversary proceeding brought by bankruptcy trustee to set aside alleged preferential transfers made to state agencies was not barred by 11th Amendment)
- Counties, cities, etc. are not protected by the 11th Amendment and thus are subject to liability for federal claims
Checks that apply only to state governments
[federalism: state laws]
These checks apply only to state governments:
- Supremacy Clause
- Dormant Commerce Clause
- Privileges and Immunities Clauses
- Contracts Clause
- Ex Post Facto, Bill of Attainder, and Full Faith and Credit Clauses
Supremacy Clause (preemption)
[federalism: state laws]
Federal laws are superior to state laws:
- If a valid federal law expressly preempts state laws
- Express preemption clauses are narrowly construed, particularly in areas traditionally regulated by states - If a valid federal law impliedly preempts state laws because
- It is impossible to comply with both the state and federal laws without violating one (“Impossibility Preemption”);
- The state law is an obstacle to the objective of the federal law (“Obstacle Preemption”); or
- Congress has impliedly taken over the entire field (e.g., immigration) with a comprehensive law (“Field Preemption”)
Dormant Commerce Clause - 2 purposes
[federalism: state laws]
The Commerce Clause serves two purposes: (1) it is authority for Congress to pass laws regulating interstate commerce; and (2) it impliedly limits states’ authority to interfere with interstate commerce.
Framework for Dormant Commerce Clause issues
[federalism: state laws]
For state laws, ask the following questions:
- Does the state law discriminate in purpose or effect against interstate commerce or out-of-staters? If so, the state law is invalid.
- A state discriminates if it hoards valuable things (e.g., jobs, natural resources) or insulates itself from regional or national problems (e.g., garbage, nuclear waste, competition). - If the law is not discriminatory, the state law is valid unless it imposes an “undue burden” on interstate commerce.
Dormant Commerce Clause test
[federalism: state laws]
Test: A nondiscriminatory state law will be invalidated only if the local benefits are slight and the burden on interstate commerce is significant; under such test, a court may invalidate a state law if:
- There are alternatives that impose less burden on interstate commerce; or
- The law conflicts with the laws of other states (and thus there is no national uniformity)
Exceptions to the Dormant Commerce Clause
[federalism: state laws]
A state (or local government) may discriminate if:
- Congress has authorized states to discriminate against interstate commerce - But Congress may not authorize violations of other constitutional provisions, such as Article IV’s Privileges and Immunities Clause or the Equal Protection Clause
- The state is a “Market Participant,” as opposed to a market regulator; in such cases, a state may discriminate in favor of its own residents; these are situations in which the state itself is the seller or provider of goods or services (e.g., a state owned cement plant). However, the “market participant” exception does not authorize:
- State discrimination as to “fundamental rights” (e.g., private employment, practice of law, civil liberties) because such discrimination violates Article IV’s Privileges and Immunities Clause
- State to impose discriminatory regulations in a downstream market (e.g., Alaska could not require buyers of Alaskan timber to process the timber in Alaska) - The state favors a public entity, such as:
- A county ordinance requiring waste haulers collecting trash in that county to bring trash to a state-created waste facility
- A state income tax exemption for income derived from in-state bonds, but not out-of-state bonds
Article IV Privileges and Immunities Clause
[federalism: state laws]
This clause prevents discrimination by states against nonresidents as to “fundamental rights” relating to important commercial activities. A state law discriminating against nonresidents with regard to such a “fundamental right” will be invalidated unless the state shows a substantial justification for the discriminatory treatment and that there are no less discriminatory means to solve the problem. The Article IV Privileges and Immunities Clause has been used to invalidate:
- A state law charging nonresidents substantially more for a commercial fishing license than residents (but not a state law charging nonresidents substantially more for a recreational hunting license);
- A state law requiring state residency to be licensed to practice law in the state; and
- A state (or local) law requiring private employers to give hiring preference to state residents
14th Amendment Privileges and Immunities Clause
[federalism: state laws]
this clause prohibits states form denying their citizens the privileges and immunities of national citizenship, such as the right to interstate travel and the right to vote in federal elections. This clause protects the right of newly arrived citizens to enjoy the same privileges and immunities that are enjoyed by long-term citizens of the state.
It was used to invalidate a California law limiting new residents, for the first year they live in California, to the welfare benefits they would have received in the state of their prior residence.
Citizenship of corporations and aliens for purposes of the privileges and immunities clauses
[federalism: state laws]
Corporations and aliens are not considered “citizens” for purposes of the privileges and immunities clauses.
Contracts Clause overview
[federalism: state laws]
No state or local government shall impair the obligations of contracts
The Contracts Clause does not apply to the federal government
The Contracts Clause applies only to existing contracts, not future contracts or future profits
Contracts Clause: Private Contracts
[federalism: state laws]
If a state law impairs the obligations of a contract between two private parties, courts apply the following test: (1) Does the law “substantially” impair a party’s rights under an existing contract? (2) If so, is the law a reasonable and appropriate means of promoting a significant and legitimate public purpose? This test is similar to the Rational Basis Test; as a result, courts are highly unlikely to invalidate a state law that impairs a private contract.
Contracts Clause: Public Contracts
[federalism: state laws]
If a state law impairs a contract in which the state is a party, the law will be upheld only if it is reasonable and necessary to serve an important public purpose. This test is similar to Strict Scrutiny.
Ex Post Facto Clauses
[federalism: state laws]
Ex Post Facto Clauses (federal and state): An ex post facto law imposes criminal punishment for an act that occurred before the law became effective. The clause is also violated where the government prescribes greater punishment than was prescribed when the act was committed, reduces the evidence necessary for a conviction, increases the statute of limitations for a crime, or retroactively reduces an inmate’s “good time” or “early release” credits.
Bill of Attainder Clause (federal and state)
[federalism: state laws]
A bill of attainder is a legislative act that inflicts punishment (e.g., imprisonment, punitive confiscation of property, prohibition from employment or vocational opportunities) on named individuals or on easily identifiable members of groups.
Full Faith and Credit Clause
[federalism: state laws]
Final judgments on the merits rendered by a state court with jurisdiction must be recognized and enforced by other states as a matter of right. A second court may not retry any matter, factual or legal, properly at issue in the first proceeding. In other words, the first judgment serves as a bar to suits brought in other states. By its terms, the Full Faith and Credit Clause applies exclusively to states, but a federal statute requires recognition of judgments between state and federal courts.
State Regulation of Federal Government
[federalism: tax laws]
A state has no power to regulate the activities of the federal government, unless Congress consents.
State Taxation of Federal Government
[federalism: tax laws]
A state may not tax the federal government, including its land or instrumentalities.
Test: If the money to pay a state tax comes out of the federal treasury, the state tax is unconstitutional.
Exceptions: (1) a state may impose non-discriminatory income taxes (i.e., the tax does not discriminate against person employed by the United States) on the salaries of federal employees (paid by the employee); (2) a private contractor working for the federal government can be compelled to pay state sales tax if the contractor is working on a cost-plus basis.
Federal taxation/regulation of state activities
[federalism: tax laws]
The federal government may tax or regulate state government activities as long as the tax or regulation applies to both the private sector and public sector.
Tax Laws – State Taxation of Interstate Commerce
[federalism: tax laws]
State taxes that discriminate against interstate commerce (i.e., a higher rate for interstate commerce than for intrastate commerce) violate the Dormant Commerce Clause (and thus are unconstitutional), unless such discrimination has been approved by Congress
a. Examples: (1) if a state imposes a use tax, the rate cannot exceed the state’s sales tax and a credit must be given for the sales tax paid in the other state; (2) residents who pay taxes in another state for income earned in that state must be given a credit against state and local income taxes in their home state to avoid double taxation
Instances in which a state may tax interstate commerce and interstate businesses
[federalism: tax laws]
Nondiscriminatory Taxes: A state may tax interstate commerce and intestate businesses if:
- There is a substantial nexus between the activity or property taxed and the state (i.e., such a nexus is established when the taxpayer avails itself of the privilege of carrying on business in that jurisdiction, including a significant quantity of internet sales)
- The tax must be fairly apportioned (i.e., the tax should be based on the extent of the taxable activity or property in the state; otherwise the taxpayer would be subject to multiple taxation)
- The tax must be fairly related to the services or benefits provided by the state
Federalism Flowchart
[federalism: tax laws]
If the constitutionality of a statute is at issue, ask: Is the statute state or federal? If it is federal, ask two further questions:
- Does the Constitution authorize Congress to regulate in this area?
- If so, does this particular statute offend any constitutional check on federal power?
If it is a state statute, then ask only one question: Does this particular statute offend any constitutional check on state power?
Test for whether president has the power to legislate
[separation of powers: executive powers]
If the president is legislating (i.e., issuing executive orders affecting a private person’s legal rights), use the following test:
- If Congress has explicitly or implicitly approved the president’s action, the president has the full power of the government to make law
- If Congress has been silent on the issue, the president may be able to make law, depending on history and tradition (i.e., have prior presidents taken such actions without Congressional approval?)
- If Congress has disapproved the president’s action (e.g., by rejecting a similar statute), the president may rely only on his own constitutional power to make laws; in such cases, the president’s action is probably unconstitutional
Impoundment of Funds
[separation of powers: executive powers]
If Congress “directs” the president to spend money on a project, the president must spend the money; in other words, the President does not have authority to “impound funds Congress has ordered spent
May Congress increase the executive’s power to make law?
[separation of powers: executive powers]
Congress may delegate law-making power to the executive branch as long as it establishes some standard for such decision-making
Legislative vetoes
[separation of powers: executive powers]
A legislative veto occurs when Congress delegates law-making authority to the executive branch, but keeps the power to overrule the executive by a one-house or two-house or committee veto
Legislative vetoes are unconstitutional under the Bicameral Clause and/or the Presentment Clause
