Con Law (Judicial System, Separation of Powers, Executive Powers, Federalism)

Question 1

The Supreme Court has what two types of jurisdiction?

Answer 1

1. Original jurisdiction; and
2. Appellate jurisdiction

Question 2

Over what type of cases does the Supreme Court have original jurisdiction?

From where is this power derived?

Answer 2

The Supreme Court has original jurisdiction over cases…

1. Involving ambassadors, other public ministers and consuls; and
2. Those in which a state is a party

The source of the power: Article III, section 2

Question 3

What are the 2 ways for Supreme Court to hear an appellate case?

Answer 3

1. Writ of Certiorari (discretionary review): Court will grant review if at least 4 justices vote to accept
2. Mandatory appeal: appeals for injunctive decisions issued by three-judge district court panels

Question 4

What does the 11^th Amendment prohibit?

Answer 4

An individual suing any state in federal court without that state’s consent.

Question 5

What are the exceptions to the 11th Amendment?

Answer 5

Lawsuits against states are allowed if:

1. State has consented;
2. Suit is for prospective relief (injunctive) against a state officer;
3. United States or another State is the plaintiff;
4. Suit involves enforcement of laws under ​the violations of 13^th, 14^th, and 15^th Amendments and Congress has expressly removed immunity

Question 7

Does the 11th Amendment prohibit claims against a state official personally for money damages?

Answer 7

No

Question 8

Does the 11^th Amendment prohibit lawsuits against local governments?

Answer 8

No, only against states

Question 9

Requirements for a case to be justiciable (i.e. can be heard by the federal courts)

Answer 9

1. Standing;
2. Ripeness;
3. Mootness; and
4. Not a political question

Question 10

Elements required for standing

​

Answer 10

1. Injury-in-fact: P must show a concrete and particularized injury, actual or imminent, caused by alleged action;
2. Causation: D’s conduct must have caused the claimant’s injury;
3. Redressibility: Harm must be one the Court can remedy through their resolution of the case;

Question 11

When may a litigant have standing to assert the rights of a third party not before the court?

Answer 11

A third party may have standing to assert the rights of the aggrieved party if the Court finds…

1. There is a special relationship between P and the injured party (e.g. doctor-patient, lawyer-client, parent-child), and the injured party finds it difficult to bring suit themselves; or
2. Associational standing: an association may have standing to bring suit if any one of its members would have standing, and the issue is germane to the association’s purpose.
3. First Amendment overbreath: third party may bring a facial challenge, as long as Article III standing still exists.

Question 12

Do organizations have standing to sue?

Answer 12

Only if:

1. At least one member of the organization would have standing to sue;
2. Interest asserted is germaine to purpose of the organization; and
3. Neither claim nor relief requires individual participation of members

Question 13

What are the exceptions to the mootness requirement?

Answer 13

1. Capable of repetition yet evading review: although P’s particular injury will likely become moot before litigation is complete, it is highly likely injury will be repeated in the future (ex. Roe v. Wade and abortions);
2. Voluntary cessation: D voluntarily ceases behavior once litigation starts, but could resume at any time; or
3. Class action: As long as one member of class has a ripe claim, resolution of one P’s injury will not defeat mootness

Question 14

Examples of non-justiciable political questions?

Answer 14

1. Impeachment procedure;
2. Gerrymandering;
3. Foreign policy & war;
4. Guaranty clause;
5. Amendment ratification procedure.

Question 15

What are the sources of Congressional power in the Constitution?

Answer 15

1. Enumerated powers (Article I, Section 8)
2. Implied Powers
   
   • Necessary and Proper Clause (Article I, Section 8)
   • Taxing and Spending Power (Article I, Section 8, Clause 1)
   • Commerce Clause (Article I, Section 8, Clause 3)

Question 16

What does the Commerce Clause give Congress the authority to regulate?

Answer 16

Two broad categories:

1. Interstate commerce:
   
   • Channels (highways, waterways);
   • People and Instrumentalities (cars, ships, trucks, airplanes);
   • Activities that substantially affect interstate commerce
2. Intrastate commerce:
   
   • Economic activities: must substantially affect commercial activity in the aggregate
   • Non-economic activities: must substantially and directly affect commercial activity (higher burden)

Question 17

What is Congress’s tax power?

Answer 17

General Welfare Clause gives Congress the power to “lay and collect taxes” for any public purpose (Article I, Section 8).

Government has no burden to show compelling purpose for the tax. Only requirement is it must raise revenue.

Question 18

Can Congress regulate via its taxing power?

Answer 18

Yes, a tax can be used to achieve a regulatory purpose as long as the tax is reasonably related to raising revenue (low burden).

Question 19

What is required for an indirect federal tax to be valid?

Answer 19

must be geographically uniform in every state in which it exists

⚠️ Remember: Tax does not need to exist in every state to be uniform, but must be uniform in every state in which it does exist

Indirect Tax = paid by a consumer to a business or intermediary, who then pays the tax to the government (e.g. import duties, sales tax, cigarette tax)

Question 20

What is required for a direct federal tax to be valid?

Answer 20

Must be evenly apportioned among the states according to population

Question 21

Export Taxation Clause

Answer 21

Prohibits Congress from taxing goods exported to foreign countries

Question 22

What is Congress’s spending power under Article I, Section 8?

Answer 22

Power to “pay the debts and provide for the common defense and general welfare of the United States”

Question 23

Can Congress regulate via its spending power (i.e. place conditions on funding)?

Answer 23

Yes, but the conditions:

1. Must be related to the general welfare;
2. Expressly stated; and
3. Not going to coerce the states into unconstitutional behavior

Question 24

Can Congress increase tarrifs on imports?

Answer 24

Yes, via its power to regulate international commerce in Article I, Section 8

Question 25

What are Congress’s war and defense powers?

Answer 25

1. Declare war;
2. Raise and maintain armies, navy, and a militia; and
3. Establish military courts and rules governing military

⭐️ Extremely broad power: allows Congress to take whatever action is necessary to provide for the national defense

Question 26

What is Congress’s plenary power over aliens?

Answer 26

Power to admit or exclude aliens for any reason from entering the country

⭐️ Since this is a sovereign power, federal alienage classifications will likely be upheld as long as they aren’t arbitrary

Question 27

Can Congress take away a citizen’s citizenship without their consent?

Answer 27

No, unless citizen either:

• Obtained citizenship through fraud;
• Refused to testify before Congress; or
• Was a member of a subversive organization within five years of becoming a citizen

Question 28

What does the 13^th Amendment ban and how can Congress enforce it?

Answer 28

Slavery.

Congress can enact legislation to prohibit discrimination by either the government or private actors that has “badges or incidents of slavery”

⭐️ This is one of only two amendments that apply to behavior by private individuals (the other is that private indivudals also may not restrict freedom of movement among the states)

Question 29

What is the 14^th Amendment?

Answer 29

Prohibits the states from violating the Due Process Clause and Equal Protection Clause

Question 30

How can Congress enforce the 14^th Amendment?

Answer 30

Congress has the power to override 11^th Amendment state immunity and pass laws enforcing due process and equal protection as long as:

1. Congress shows historical and widespread discrimination by the state; and
2. Law is “congruent and proportional” to remedying discrimination

Question 31

What is the 15^th Amendment?

Answer 31

Prohibits states and the federal government from denying voting rights based on “race, color, or previous condition of servitude”

Question 32

What is the 10^th Amendment?

Answer 32

Holds that powers not delegated to the federal government, nor prohibited to the states, are reserved to the states.

Prohibits Congress from forcing states to enact federal regulatory programs (Anti-Comandeering Doctrine)

Question 33

Anti-commandeering doctrine

Answer 33

Prohibits the federal government from “commandeering” state and local governments to enact and enforce federal regulatory programs (e.g. cannot require local officers to perform background checks for guns, see Printz v. U.S.)

Question 34

Can Congress delegate its powers to other branches?

Answer 34

Yes, Congress has broad authority to delegate regulatory powers to the executive branch or private agencies as long as Congress specifies an “intelligible principle” on which to base regulations. Very low bar, almost always upheld.

⚠️ Note: Congress cannot delegate its war or impeachment powers

Question 35

What are the main powers of the President?

Answer 35

1. Enforcement of laws;
2. Commander in chief;
3. Appointment powers;
4. Removal powers;
5. Pardon power; and
6. Veto powers

Article II, Section 1

Question 36

What are inferior officers and how can they be appointed?

Answer 36

Officers whose work is supervised by superiors that were appointed by the President and confirmed by the Senate (i.e. through standard appointment process).

Congress can delegate power to appoint inferior officers to:

1. The President (can appoint without approval of Senate);
2. The courts; or
3. Heads of executive departments

Question 37

Can Congress directly appoint federal executive officers?

Answer 37

No, cannot appoint officers of the United States (i.e. officers with enforcement or administrative powers)

Question 38

What are the President’s removal powers?

Answer 38

Can remove high-level executive appointees without cause

⚠️ Exception: must show cause to remove:

1. Officer performing a judicial or quasi-judicial role; or
2. Officer appointed for a statutorily specified duration

Question 39

What are the President’s veto powers?

Answer 39

Power to veto any law passed by both houses within 10 days of receiving it (if no veto, bill automatically becomes law)

Question 40

What are the President’s pardon powers?

Answer 40

• Power to pardon or commute sentences for criminal, federal crimes
• Cannot pardon those who have been convicted and impeached

Question 41

executive privilege

Answer 41

Qualified privilege that protects the President from having to disclose confidential communications related to his/her Presidential duties (e.g. national security, military or diplomatic secrets)

Question 42

What is the President’s treaty power?

Answer 42

Power to make treaties with foreign governments, must be ratified by 2/3 of the Senate

Question 43

Executive agreement

Answer 43

Agreement made with a foreign nation that does not require 2/3 Senate approval

Question 44

What is the President’s authority as Commander in Chief?

Answer 44

• Can only take military action to defend a sudden, hostile attack
• Cannot declare war (only Congress)

⚠️ The extent of the President’s military authority is much contested and unclear. For more info, see Commander in Chief Powers

Question 45

What is the impeachment process?

Answer 45

Step 1: House of Representatives votes to impeach (majority vote); then

Step 2: Senate conducts a trial and votes to convict and remove from office (2/3 vote)

Question 46

When does federal law impliedly preempt state law?

Answer 46

Courts will infer federal intention to preempt if:

1. State law hinders purpose of the federal law;
2. State law makes compliance with federal law impossible (i.e. impossible to comply with both at the same time); or
3. Congress intended for federal government to occupy the entire field (“field preemption”)

Question 47

What is the Dormant Commerce Clause?

Answer 47

Since Congress has exclusive power to regulate interstate commerce, states are prohibited from discriminating against or unduly burdening interstate commerce even if Congress has not regulated the activity.

Question 48

When does a state regulation violate the Dormant Commerce Clause?

Answer 48

If regulation:

1. Discriminates against out-of-state commerce;
2. Unduly burdens interstate commerce; or
3. Regulates wholly out-of-state activity

Question 49

When does a regulation discriminate against out-of-state competition?

Answer 49

When it promotes the economic interests of its own residents at the expense of out-of-staters (e.g. imposing requirements on out-of-state companies but not in-state companies)

Question 50

Under the Dormant Commerce clause, when are regulations that facially discriminate against out-of-state actors valid?

Answer 50

If:

1. Regulation is necessary to achieve important government interest and no reasonable, non-discriminatory alternatives are available (strict scrutiny);
2. State is a market participant (i.e. acts like a business or consumer); or
3. Regulation involves traditional government function (e.g. trash collection), or
4. Congress has expressly authorized regulation (e.g. Congress explicitly states that regulation violates Dormant Commerce, but will allow it anyways)

Question 51

What is the test for whether a regulation unduly burdens interstate commerce?

Answer 51

1) the burden on interstate commerce,
2) is clearly excessive to the putative benefits to the state/local govt.

Question 52

In general, can states tax interstate commerce?

Answer 52

Yes, as long as tax does not discriminate or unduly burden interstate commerce.

Question 53

What is the 4-part test to decide whether a state tax on interstate commerce is valid?

Answer 53

Tax must satisfy the Complete Auto test:

1. Tax must have substantial nexus to taxing state (i.e. activity being taxed must have significant relationship with the state);
2. Tax must be fairly apportioned;
3. Tax cannot discriminate against interstate commerce; and
4. Tax must be fairly related to the services provided by the state

Question 54

What are the requirements for a state tax on foreign commerce to be valid?

Answer 54

Tax must:

1. Satisfy the Complete Auto Test;
   * *AND refrain from either:**
2. Creating a substantial risk of international multiple taxation; or
3. Preventing the federal government from “speaking with one voice” regarding international trade or foreign affairs issues

Question 55

Can states tax the federal government?

Answer 55

No, unless taxes are incidental (e.g. taxes on federal employees) and do not burden the federal government

Can the federal government tax the states?

Yes

Question 56

What is the Privileges and Immunities Clause under Article IV?

(also called the “Comity Clause”)

Answer 56

Mandates that states cannot discriminate against the fundamental rights or esssential activities of out-of-state residents

⚠️ Note: Privileges and Immunities does not apply to corporations. If you see discrimination against an out-of-state corporation, think Dormant Commerce Clause

Question 57

What is considered a fundamental right or essential activity in regards to Privileges and Immunities?

Answer 57

Includes:

• Commercial rights (pursuit of employment, right to engage in business);
• Right to live;
• Right to travel;
• Right to participate in judicial and political process

⚠️ Note: This is not an exhaustive list

Question 58

When is discrimination against out-of-state residents valid under Privileges and Immunities?

Answer 58

If:

1. There is a substantial justification for the discrimination (e.g. protectionism or residents are the “peculiar source of evil” law was intended to fix:); and
2. No less-discriminatory alternatives are available

Question 59

Distinguish Privileges and Immunities under Article IV vs. the 14^th Amendment

Answer 59

Article IV: Prevents states from discriminating against non-residents

14^th Amendment: prevents states from denying citizens the right to interstate travel (narrowly construed)

Question 60

Does Privileges and Immunities protect recreational rights?

Answer 60

No, only fundamental rights

Ex. a restriction on hunting licenses for non-residents is valid