Con Law One Recording One

Question 1

What articles vest power in the federal judiciary, Congress, and the President?

Answer 1

Article One - vests power in Congress
Article Two - vests power in the President
Article Three - vests power in the federal judiciary

Question 2

What are the two forms of Constitutional interpretation?

Answer 2

1. Originalism
2. Non-originalism

Question 3

For originalists, what is the only way to interpret the Constitution?

Answer 3

From its text, thus an amendment is needed to change laws

Question 4

What is judicial review?

Answer 4

The power of the federal courts to strike down an act of Congress when the court views the law as inconsistent with the Constitution.

Question 5

Where did judicial review emerge from? Is it found in the Constitution?

Answer 5

No, it is not found in the Constitution. It emerged from Marbury v. Madison and Justice Marshall’s brilliant opinion

Question 6

What are the two types of jurisdiction for the Supreme Court?

Answer 6

1. Original jurisdiction
2. Appellate jurisdiction

Question 7

What is original jurisdiction?

Answer 7

A small category of cases in which the case starts/originates with the Supreme Court. These include cases affecting ambassadors, other public ministers/consults, and cases in which a state shall be a party.

Question 8

What is appellate jurisdiction?

Answer 8

All cases and controversies for which the court has jurisdiction that do not fall within the Supreme Court’s original jurisdiction.

Question 9

What is the ‘case or controversy’ provision and where is its source?

Answer 9

Under Article III, federal courts can only hear cases or controversies.

Question 10

When a case is justiciable?

Answer 10

A case is justiciable when it can be heard before the court; the court does not have authority to hear the case.

Question 11

What are the areas of non-justiciability?

Answer 11

1. Advisory Opinions
2. Standing
3. Ripeness
4. Mootness
5. Political Questions

Question 12

Define the rule on advisory opinions.

Answer 12

Federal courts cannot issue non-binding opinions absent an actual case or controversy.

Note: Committee or President cannot ask SC for advice; however, DOJ is under executive branch so its AG may give President constitutional advice

Question 13

What is the rule on standing?

Answer 13

A federal court cannot adjudicate a case unless the plaintiff has standing.

Question 14

What are the two types of standing and which cannot be overridden?

Answer 14

Constitutional standing (Article III standing) which cannot be overridden and Prudential standing

Question 15

What are the three requirements to establish Article III / Constitutional standing?

Answer 15

To establish standing, the complaining party must establish:

1. Injury in Fact
2. Causation
3. Redressability

Question 16

What are the three elements and corresponding definitions to defining injury in fact?

Answer 16

1. Distinct Plaintiff where the injury is not shared with others
2. A concrete and particularized harm (need to see some loss)
3. Actual or imminent harm (e.g., “mere someday intentions” are not sufficient)

Question 17

Define causation.

Answer 17

Injury must be fairly traceable to Defendant’s wrongful conduct

NOTE: Use but-for test
NOTE: Only 10% of funding came from D—but-for gvmt, outcome would still have occurred/causation not met/too attenuated

Question 18

Define Redressability

Answer 18

Must be likely that a favorable court decision will redress P’s injury.

Example: If only 10% of funding came from the government agency, even if P’s request was granted, would not redress injury

NOTE: Causation and Redressability usually tied together

Question 19

What is the approach to use when analyzing Article III standing for a sovereign state?

Answer 19

Per MA v EPA, apply each standing criteria loosely

• Harm can be speculative
• Causation can be fairly traceable
• Redressability can be minimal

Question 20

When do you apply a prudential standing analysis?

Answer 20

When there is:
1. Third Party Standing
2. A Generalized (Taxpayer) Grievance

Question 21

Define prudential standing and what are the two general bars under prudential standing?

Answer 21

Under prudential standing, Constitutional standing requirements are met but the Court may believe it is not prudent to take the case. Under prudential standing, there is a general bar to third party standing and generalized grievances.

Question 22

What is the general bar against third party standing?

Answer 22

Generally, a litigant cannot rest his claim on the legal rights or interests of third parties.

Question 23

What are the two ways to satisfy an exception to the general bar against third party standing?

Answer 23

The Singleton test for individual plaintiffs and another test for association/group plaintiffs.

Question 24

What are the four factors for the Singleton test in order for individual plaintiffs to have standing despite the general bar against third party claims?

Answer 24

(1) P must satisfy standing (Article III requirements)
(2) The absent third party must satisfy standing (Article III requirements)
(3) Sufficiently close relationship between P and the absent third party
(4) Obstacle preventing absent third party from bringing the claim (e.g., must keep identity hidden)

NOTE: All elements must be satisfied.

Question 25

What is the three element test for groups to have standing despite the general bar against third party claims?

Answer 25

(1) One or more of the members of the association must have standing on their own
- Note: Do standing analysis for one member
(2) Interests association is suing about must be tied to the broader purpose of the association
- Example: PETA for animals cannot challenge military spending
(3) Neither claim nor the relief the association is asserting can require the participation of the individual members
- Note: No standing for association if P seeks different damages for each individual P

Question 26

What is the rule on the general prohibition against generalized (taxpayer) grievances?

Answer 26

Taxpayer standing prevents standing when the alleged harm is a generalized grievance shared across citizens.

• Note: If your only complaint is how your tax dollars are being spent, that is not enough to confer standing.

Question 27

What is the exception called to the general prohibition against taxpayer/generalized grievances what are the two elements? What is the only type of tax law that can be challenged?

Answer 27

Flast Double Nexus Test

Plaintiff taxpayer must show:
(1) A logical link between the taxpayer status and the law being attacked [NOTE - P can only challenge laws emerging from Congress taxing or spending power]; AND

(2) A violation of the Establishment Clause

Question 28

What is the Establishment Clause?

Answer 28

The First Amendment’s Establishment Clause prohibits the government from making any law respecting religion.

Question 29

What is another way of summarizing the Flast exception to the general bar against tax payer grievances?

Answer 29

Taxpayer must show Congress’s spending violates the Establishment Clause (is aimed at religion)
OR
You have taxpayer showing only if you can show that CONGRESS has passed an actual law that spends money on religion.

Example: Congress gives money to a religious organization under its spending power. This violates the Establishment Clause so the taxpayer has satisfied standing requirements.
NOTE: If President used tax dollars and violated Establishment Clause. Presidential standing does not violate the Establishment Clause.
NOTE: Congress giving money to executive branch for religious purposes is insufficient because Congress must be spending the funds on religion

Question 30

How do you treat tax credits where a taxpayer claims standing based on tax credits?

Answer 30

Tax credits will not work for standing b/c the Flast test only applies to Congress’ spending

Question 31

For how long must the P have standing?

Answer 31

Throughout the entire case including the appeal

NOTE: On the exam, speak to each justiciability doctrine if you have b/c they can overlap

Question 32

What is the rule on Ripeness?

Answer 32

Federal courts will not consider a claim before it has fully developed.

Question 33

What is an example of the bar against claims that are not ripe?

Answer 33

• Ps challenge statute barring use of contraception and doctors giving medical advice about contraception but no one has ever been charged; the Ps have NOT violated the law – they want court to issue a declaratory judgment prior to any convictions that the law is unconstitutional.
• Challenging a law that is unconstitutional but no one is enforcing the law so no injury/conviction/not enough threat of enforcement—non-justiciable

Question 34

What is the rule on Mootness?

Answer 34

Courts will not decide claims after they are fully developed or resolved.

Question 35

What is the test to decide if a claim is moot?

Answer 35

Is there any live harm left to resolve that the court has the power to resolve?

Question 36

What is the Collateral Consequences Doctrine?

Answer 36

A claim that otherwise would be moot, is not moot b/c P has suffered an injury (e.g., an arrest).

Question 37

What are the two exceptions where an otherwise moot claim is rendered not moot/justiciable?

Answer 37

(1) Claim is capable of repetition yet evading review
AND
(2) Defendant’s voluntary cessation of allegedly improper behavior

Question 38

Define the ‘claim is capable of repetition yet evading review’ standard for an exception to the bar against hearing moot claims

Answer 38

P shows harm could repeat to the same Plaintiff AND the duration of harm is so short; it is almost impossible to get to court in time

NOTE: Look for time sensitive fact patterns

Example: Pregnant woman challenging contraception law; women can get pregnant again and she cannot get to court before having baby

Example: P denied admission to school but school let him attend while law suit pending. By time case at SC, he is almost done with law school. Exception to mootness NOT fulfilled. The same P will not be hurt in this way again.

Question 39

Define the ‘defendant’s voluntary cessation of allegedly improper behavior’ standard as an exception to the bar against hearing moot claims

Answer 39

If D voluntarily stopped engaging in the conduct but is reasonably likely to resume the conduct to OTHER Plaintiffs, court is unlikely to declare claim as moot

Example: I told P I wouldn’t do it again but there is no settlement; no real assurance conduct will stop.

NOTE: Prior exception involves repetition of injury to same P while this exception involves repetition to other Ps

Question 40

Define the general rule of not hearing cases involving political questions and the corresponding case to list in parentheses.

Answer 40

Federal courts will not weigh in on non-justiciable, political questions. (Baker v. Carr)

Question 41

What is the mnemonic for the 6 factor Baker test for political (non justiciable) claims?

Answer 41

XXX

Question 42

What are the six factors to determine whether the case involves a political question and is thus non justiciable?

Answer 42

(1) Textually demonstrable constitutional commitment to a coordinate political department
- Example: Const.—Senate has power to try impeachment

(2) Lack of judicially discoverable and manageable standards for resolving issue
- Example: No legal guidelines to decide case

(3) Impossibility of deciding it without an initial policy determination of a kind clearly for nonjudicial discretion
- Note: Policy making is for legislative branch

(4) Impossibility of deciding it without expressing lack of the respect due coordinate branches of government

(5) Unusual need for unquestioning adherence to a political decision already made
- Example: President signed treaty, must adhere

(6) Potentiality of embarrassment from multifarious pronouncements by various departments
- Branches will not be in unison

NOTE: If ANY factor fails, claim non justiciable
NOTE: On exam, go through each factor and if no facts say so

Question 43

What is the mnemonic for the 6 factor Baker test for political (non justiciable) claims?

Answer 43

XXX

Question 43

How do you treat any gerrymandering (drawing voting lines) question and which factor is referenced?

Answer 43

Political question, not justiciable, lack of judicially and manageable standards for resolving the claim

Question 44

How do you treat foreign policy claims?

Answer 44

Political question, not justiciable

Question 45

How do you treat impeachment claims?

Answer 45

Political question, not justiciable

Question 46

What is the conclusion on the exam for a justiciability question?

Answer 46

The case is non-justiciable and the court must dismiss the case
OR
The case is justiciable and the court will hear the case

Question 47

From where is the Necessary and Proper Clause derived?

Answer 47

The Necessary and Proper Clause is derived from Article I, Section 8 of the Constitution

Question 48

What is the mnemonic for the 6 factor Baker test for political (non justiciable) claims?

Answer 48

XXX

Question 48

Define the Necessary and Proper Clause

Answer 48

“Congress shall have the power to make all Laws which shall be necessary and proper for carrying into execution the foregoing powers”

Question 49

Which part of the Constitution enumerates Congress’s powers?

Answer 49

Article I, Section 8

Question 50

What is another term for the Necessary and Proper clause powers?

Answer 50

Implied powers

Question 51

What is the three part test to decide if a power fits within the Necessary and Proper Clause and from which case is the test derived?

Answer 51

The McCulloch test provides that Congress has the implied power if:
(1) End must be legitimate (point to an enumerated power)
(2) Power appropriately adapted to that end (implied power a good fit for the enumerated power); AND
(3) Law is otherwise Constitutional

Hypo: Can Congress set qualifications for federal judges? Yes.
i. First, to execute on ‘constitute tribunals inferior to the SC’ End is legitimate
ii. Second, age qualification is directly tied and reasonable to ensuring qualified judges. Means are plainly and appropriately adapted
iii. Third, they did not say must be Christian so does not violates Constitution.

Question 52

From where is Congress’s Commerce Power derived?

Answer 52

Congress’s Commerce Power is derived from Article I, Section 8 of the Constitution

Question 53

Define the text of Congress’s Commerce Power.

Answer 53

“Congress shall have the power…to regulate commerce…among the several States”

Question 54

What is the rule on those areas which Congress can regulate?

Answer 54

Under the Commerce Power, Congress can regulate:

(1) Channels of Interstate Commerce;
(2) Instrumentalities of Interstate Commerce; AND
(3) Any Activity That has a Substantial Effect on Interstate Commerce

Question 55

What are examples of channels of interstate commerce?

Answer 55

Roadways, waterways, water port train tracks
Note: Include hotels
Example: Any interstate highway must have six lanes

Question 56

What are examples of instrumentalities of interstate commerce?

Answer 56

Truck, car, boat, bus, airplane
(These sit on top of the channels)
Example: Federal aviation laws

Question 57

What is the rule statement for any activity that has a substantial effect on interstate commerce?

Answer 57

Under the aggregation doctrine in Wickard v. Filburn, regulations will be upheld if the court can conceive of a rationale basis on which Congress could conclude that the activity IN THE AGGREGATE substantially effects interstate commerce. The aggregation doctrine applies to economic activity which is defined as any activity that relates to the production, distribution, or consumption of a commodity.

Question 58

What is the summary of Wickard v. Filburn?

Answer 58

(where the Court, in a dramatic expansion of the commerce power, upheld the Agricultural Adjustment Act regulating wheat production and introduced the aggregation doctrine when Filburn the farmer was charged with exceeding quota for growing wheat)

Question 59

What is a rationale basis?

Answer 59

Rationale basis is a fairly flexible analysis; Congress can rely on evidence procured at a public hearing or can make “formal findings” based on evidence outside of the legislative records.

Question 60

How is non-economic activity treated?

Answer 60

Congress CANNOT use the aggregation doctrine for non-economic activity (must show that in a single instance of engaging in the conduct there is substantial effect on IC). As well, the standard of review is more stringent than for economic activity

NOTE: Includes criminal activity (gun possession in school zone) and domestic violence

Question 61

What case relates to non-economic activity under Congress’ commerce power?

Answer 61

Morrison (where the Court struck down the civil remedies provision under the Violence Against Women Act as exceeding Congress’ reach under the Commerce Power)

Question 62

What is the rule on Congress’ power as it relates to regulating INactivity?

Answer 62

Congress cannot compel inactivity (see Sebelius where the Court held Congress’ attempt to mandate citizens purchase health insurance was not a valid of Congress’ commerce or taxing powers)

Question 63

What is the synopsis of Sebelius?

Answer 63

(see Sebelius where the Court held Congress’ attempt to mandate citizens purchase health insurance was not a valid of Congress’ commerce or taxing powers)

Question 64

What is an as applied challenge?

Answer 64

P alleges law may be constitutional in some cases but as applied to this set of facts (this P), Congress exceeded its power.

Question 65

What are the three levels of scrutiny which Courts apply?

Answer 65

1. Strict
2. Intermediate Scrutiny
3. Rationale Basis

NOTE: On rationale basis, is there any rationale basis to uphold the law (basis for interstate commerce issues)

Question 66

On the exam, for a commerce issue question, what is the P trying to argue? Is it economic activity or non economic or inactivity? Why? What does the government try to argue?

Answer 66

P argues non-economic activity so government cannot aggregate and must show P’s activity on its own must have a substantial effect on IC.
1. Alternatively, P tries to argue inactivity (Sebelius)
2. Government/Defendant will try to argue it is in economic activity so the court can aggregate and apply a fairly flexible rationale basis test

NOTE: The conclusion is
- Congress does not have authority under the Commerce Power; the law will be struck down

NOTE: Though authority may not exist under its commerce power, Congress may incentivize schools through a conditional (non-coercive) grant

Question 67

Name four advantages to federal regulation?

Answer 67

1. Consistent and uniform laws across states
2. Less confusion amongst citizenry
3. If majority of Congress believes in the law, the law should stand, b/c Congress is elected by the democratic process through voices of voters
4. Some issues flow out of Constitution (e.g., firearms flows out of 2nd Amendment) so should be respected as such
5. Avoids the Not in my backyard tendency of States to be OK with a regulation as long as it does not apply to them

Question 68

Name four disadvantages to federal regulation weighing in favor of more state sovereignty?

Answer 68

1. Judicial economy (federal does not have resources/docket full)
2. Promoting states in their role as “laboratories of federalism”
3. States have greater knowledge of local needs and can thus regulate accordingly
4. Waste of federal resources if the issue does not pertain to the locality

Question 69

What is the rule on Congress’ taxing power?

Answer 69

Congress has the broad power to tax.
Taxes will be upheld if:
1. Tax is related to raising revenue; AND
2. Tax does not infringe on Constitutional rights
- Example: Taxes Jews or newspaper practicing First Amendment rights

Question 70

What is the rule on Congress’s spending power?

Answer 70

Congress has the implied power to spend, a power derived from Congress’s Article I Taxing Power (the power to lay and collect taxes)

Question 71

What are the five requirements on
the conditions on federal grants to state governments?

Answer 71

For Congress’s conditional spending on state governments to be constitutional, five requirements must be met:

a. The overall SPENDING program is for the general welfare
- NOTE: On exam, do NOT talk about the condition (drinking age). Talk about overall spending program (highway funds) is for the general welfare
b. Condition is clearly defined (requirement and consequence for non-compliance)
c. Condition furthers the federal interest in the national program
d. Condition does not otherwise violate the Constitution
- Example: To get full amount of highway funds, you cannot have political bumper stickers
e. Condition cannot be unlawfully coercive on the states

NOTE: On coercion, look for the following: Are states flush with cash? Will they lose 100% of funding? 5%? Gun to head? Commandeering the states? Violating 10th amendment and importance of state sovereignty?

NOTE: On exam, state this violates the 10th amendment and the anti-commandeering principle

HYPO:
i. Congress passes law saying that any state without pregnancy classes in school will lose its federal education funding
- Federal education funding is conducive to general welfare
- Condition is unclear – what is the consequence for non compliance?
- Condition does relate to spending program objective
- Does not violate Const.
- Unclear whether unlawfully coercive

Question 72

What is the case and description on conditions on federal grants to states?

Answer 72

South Dakota v. Dole (where the Court ruled Congress did not exceed its spending powers when it conditioned federal funding for highways on the States’ adoption of a minimum drinking age)

Question 73

What is the Tenth Amendment?

Answer 73

Tenth Amendment reserves those powers not constitutionally delegated to the federal government to the states.

Question 74

What is the Anti-Commandeering principle?

Answer 74

If the Federal government wants the states to follow a federal law, the law must:
i. Plainly and explicitly state it applies to the states; AND
ii. Not commandeer state resources.

Question 75

What are the two situations in which a federal government has commandeered the states?

Answer 75

FIRST, Congress cannot make the states adopt a state law

• Example: Congress can pass a federal law but cannot tell state to pass a state minimum wage law or a law on how to manage state waste disposal
• Example: Congress can pass federal weed law but cannot force Newsom to pass one

SECOND, Congress cannot make the states use their resources to enforce a federal law

• Example: Congress can pass a federal minimum wage law but Congress cannot tell CA to use its state wage and hours inspectors to make sure state is paying federal wages. Congress but use its federal wage and hours inspectors
• Example: Congress may not pass federal gun control law telling local law enforcement officers to use their own resources to enforce a federal gun law
• Example: DEA busts you for weed; not state resources

NOTE: On exam
HERE, ___(law at issue)_____ requires ________. P would argue that this is just like Printz and NY, where Congress cannot force states to use their own resources. If Congress wants something done it should use federal resources. Congress will say this is NOT commandeering. However, P will likely be able to show that Congress does not have authority to pass _(law at issue)_____.

Question 76

In what contexts does the Dormant Commerce Clause arise?

Answer 76

Federal government has not passed the law (Congress has stayed dormant on this issue); state passed the law but question as to whether state law should be struck down as unconstitutional

Question 77

From where is the Dormant Commerce Clause derived?

Answer 77

Dormant commerce clause is not in Constitution but rather implied out of Article One Section 8.

• Idea that if Congress has enumerated power to regulate commerce, then states should be limited in what they are allowed to do in this area.

Question 78

What is the overall rule on when state laws are unconstitutional under the Dormant Commerce Clause?

Answer 78

State laws are unconstitutional if they either:
i. Discriminate against interstate commerce; OR
ii. Present an undue burden on interstate commerce.

NOTE: This is not about a federal and state law conflicting (that is preemption).

Question 79

What is the rule on when a state law is found to discriminate against interstate commerce?

Answer 79

If a state law is found to discriminate against interstate commerce (facially or otherwise), then the court will presume that the law is invalid, unless the law satisfies a specific two-pronged test.

Question 80

What are the three ways in which the law can discriminate?

Answer 80

Facially
In Intent
In Effect

Question 81

What is a discriminatory intent?

Answer 81

Economic protectionism

Question 82

What is a discriminatory effect?

Answer 82

Courts ask where the benefits fall and where the burdens fall

a. If the benefits and burdens are both in-state and out of state, the law is NON discriminatory.
i. If there are IN STATE BURDENS, non discriminatory
b. If the benefits are ALL in-state and the burdens are all out of state the law is DISCRIMINATORY.

Question 83

What is the five step approach on the Dormant Commerce Clause?

Answer 83

First, define the Dormant Commerce Clause. Under the Dormant Commerce Clause, state laws are unconstitutional if they either:
i. Discriminate against interstate commerce; OR
ii. Present an undue burden on interstate commerce.
Second, state whether the law implicates interstate commerce.
Third, if the law is discriminatory on its face, the law is presumed invalid unless it can pass a two-pronged test.
- Prong One: Legitimate purpose for law
- Definition of legitimate: Anything other than economic protectionism.
- Prong Two: No less burdensome way to achieve the legitimate purpose.
- Argue both sides. Put on creative thinking cap.
- NOTE: Provide counterargument on exam
iv. Fourth, if the law is not discriminatory on its face, is it discriminatory otherwise, in its purpose/intent or in its effect?
1. Facially? No.
2. In effect?
- Ask where on the exam– “Where are the benefits and where are the burdens?”
- If not mixed – glazed donut – discriminatory
- If mixed burdens and benefits between in and out of state – not discrim.
- NOTE: If burdens are in state, law not discriminatory and move to presumption of validity test
- In intent?
a. Fact base would need to include legislative intent or who worked to pass the law
4. If yes, presume law is invalid
5. Apply two pronged test
Fifth, if the law is not discriminatory, presume the law is valid unless the burdens on interstate commerce clearly exceed the benefits
1. Ask what on the exam – ‘What are the benefits and what are the burdens?’
a. Do not bring up where/location

Question 84

Couple hypos on Dormant Commerce Clause

Answer 84

xi. Hypo – CA worried about quality of lawyers so imposes a fee on everyone
1. Not discim on face, intent or effect b/c burden in state and benefits are in state
2. Presume law valid
3. Apply balancing test
4. What are the benefits and the burdens (don’t talk about location)
5. Do burdens clearly exceed benefits?
xii. Hypo – CA law that says no produce sold unless certain pesticide on it
1. Discrim on face? No
2. Intent? No facts
3. Effect
a. Where are the benefits? Primarily in state to CA
b. Where are the burdens? In and out of state – mixed
4. Presume valid
5. Apply balancing test
a. What are the benefits and what are the burdens
b. Do burdens clearly exceed the benefits

Question 85

What is the general rule to bring up to introduce preemption?

Answer 85

Under the Supremacy Clause, federal law is the “supreme law of the land.” (Article VI, Section 2)

Question 86

What is the rule on premption?

Answer 86

Preemption is the basic idea that if federal and state laws are in conflict, federal law trumps state law.

Question 87

What are the three types of preemption?

Answer 87

i. Express Preemption
ii. Implied Field Preemption
iii. Implied Conflict Preemption
(comprised of Impossibility Conflict Preemption and Obstacle Conflict Preemption)

Question 88

What is express preemption?

Answer 88

Federal law expressly preempts state law when the federal law explicitly prohibits state regulation in the same area.

• Example: Power to sign treaty with another country
• Example: Federal Food and Drug Act says “No state or political subdivision can establish or continue in effect any requirement’ that is different from this federal Congressional statute.

Question 89

What is implied field preemption?

Answer 89

Federal law implicitly preempts state law when Congress intended for the federal law to occupy the entire field.

Question 90

What is the three factor test to determine whether there is implied field preemption?

Answer 90

(1) Is the federal law already broadly regulated in this area?;
(2) Is this an issue where federal law typically plays a role?; AND
(3) Is there a need for uniformity in this particular area?

Question 91

What is implied conflict preemption?

Answer 91

Federal law implicitly preempts state law when there is Impossibility Conflict Preemption (it is impossible to comply with both federal and state law) OR where there is Obstacle Conflict Preemption (it is possible to comply with both federal and state law but the state law creates an obstacle to complying with the federal law)

Question 92

When any type of implied preemption arises, what is the presumption and why?

Answer 92

Presumption against finding preemption in order to protect state sovereignty

Question 93

Name two advantages in favor of federal preemption.

Answer 93

1. Drive uniformity of drug labels across the country
2. Drive consistency in rules across states

Question 94

Name three disadvantages to federal preemption.

Answer 94

1. Decrease FDA accountability given they are front line of safety
2. Lack of federal government resources
3. Improve consumer protection with second line of defense at state level

Question 95

Recap on Sebelius

Could government force citizens to purchase health care insurance under the commerce power?

Answer 95

No, commerce power does not grant congress power to compel citizens to purchase a product. As well, congress cannot do this under the necessary and proper clause.

However, congress can enforce the tax penalty under the taxing power

Question 96

Can Congress force states to comply with the new medicare provisions or else states lose all existing medicare funding?

Answer 96

ii. States must comply with new medicare criteria or lose all their existing medicare funding; classic example of conditional spending
1. Decision: Government cannot coerce states to this extent (under spending
b. Exam: If on exam there is hypo where there is a forced purchase of something, analogous to Sebellius. First, mention that it is an economic activity and analyze it that way. Second, analyze it as court saying it is an economic inactivity which means the commerce power cannot sustain it (see Sebellius)

Question 97

What are the three “Reconstruction Amendments” passed following the Civil War of 1865?

Answer 97

i. 13th Amendment
ii. 14th Amendment
iii. 15th Amendment

Question 98

What is the 13th Amendment granting Congress additional powers?

Answer 98

The 13th Amendment abolishes slavery and indentured servitude, except as punishment for a crime.

Question 99

What are the three major provisions of the the 14th Amendment granting Congress additional powers?

Answer 99

i. Granted citizenship to all those born in U.S. (including freed slaves)
ii. Provided all citizens with ‘equal protection to the law’
iii. Provides all citizens with ‘due process’ (cannot be deprived for life, liberty, or property without fair procedure)

Question 100

Define the 14th Amendment

Answer 100

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Question 101

Who can Congress enforce the 14th Am against?

Answer 101

Any government (state/local) agency or actor

Question 102

Who does the 14th Amendment not apply to?

Answer 102

Private individuals, companies, etc.

NOTE: The Fourteenth Amendment of the Constitution only prohibits state governments from discriminating on the basis of race. It does not prohibit private businesses or institutions from doing so. In this case, a private university is responsible for the alleged discrimination, so the Fourteenth Amendment is not applicable.

NOTE: 13th amendment DOES apply to private behavior (can’t have slaves) but only applies to actual slavery and involuntary servitude ( does not touch on other forms of discriminatory conduct)

Question 103

What is the 15th Amendment granting Congress additional powers?

Answer 103

No one can be denied right to vote base on race.

Question 104

What do these three ‘Reconstruction Amendments’ have in common?

Answer 104

Each amendment talks about Congress’s ability to enforce these amendments ‘through appropriate legislation’

Question 105

What case gave Congress the power to pass Voting Rights Act making state voting literacy tests illegal?

Answer 105

Katzenbach v. Morgan

• Court gives Congress broad power under Section 5 of 14th Am. (Katzenbach not really good law anymore)

Question 106

What level of scrutiny does the Court apply to Congressional actions on the freedom of religion? What case deals with this issue to narrow Congress’s power under Section 5 of the 14th Am?

Answer 106

Strictest level of scrutiny/strict scrutiny

• Boerne Case
  1. City denies church right to expand its church site. Church argues Congress Religious Freedom Act applies. City says RFRA garbage and challenges it.
  2. Court strikes down RFRA/agrees with City. Congress cannot come up with its own interpretation of 14th Am. Rather, Congress can only prevent or remedy what the COURT has ALREADY RECOGNIZED as violations of the 14th Am.

Question 107

What is the rule for whether Congress’s attempt to enforce 14th Amendment is constitutional and what case should be included in a simple parens?

Answer 107

Congress can ONLY pass laws under its §5 power that are PREVENTATIVE/ REMEDIAL and CANNOT use this power to redefine the scope of the 14th Am. To determine whether a law is preventative/remedial as opposed to redefining the scope of the 14th Am., the court asks whether whatever law Congress has passed is PROPORTIONAL/CONGRUENT to some recognized violation of the 14th Amendment. (see Boerne)

Question 108

What considerations are in play to determine whether Congress’s attempt to enforce the 14th Am with ‘appropriate legislation” is constitutional’?

Answer 108

1. Law should NOT be general in scope (like RFRA)
2. Law should have specific evidence tied to it that law hurts already recognized right in 14th Am (should be well-tailored)
   - If no evidence of the harm to be addressed, too broad/strike congress’ law down.
   - If law tailored to specific jurisdictions, weighs toward proportionate and congruent to a recognized problem/ uphold law
3. If congress trying to create new protections under 14th amendment, not allowed.

Question 109

What is the policy rationale for Boerne where Congress’s attempt to enact ‘appropriate legislation’ under the 14th Amendment may be unconstitutional?

Answer 109

Violates spirit of Marbury and power of judicial review if Congress scope is too broad. Do not want to override Constitution.

Question 110

What are the three steps to analyze the rule for the constitutionality of Congress’s attempts to enforce the 14th Amendment through ‘appropriate legislation’?

Answer 110

i. Step One: What is the “recognized violation” of the 14th Am/what is the existing harm that Congress is trying to prevent?
- Exam: Hypo tells you: “The USSC previously held that ___ violates the EPC/ DPC/ etc. of 14th Am.”]

ii. Step Two - What law did Congress pass in response to the harm?
- Exam: “Here, Congress passed Section (a) of the HYPO Law to address….”]

iii. Step Three - Is the law proportionate/congruent?
- Do step one and two fit together? Is the law in step 2 a good fit for the problem outlined in #1?
- ANALYZE both sides

Decide whether law is constitutional

HYPO
a. Stop all bullying law passed by Congress esp bullying that is racially violated to promote education. Congress passes fed law. Told in hypo that SC previously deemed it a violation of 14 Am for a state to allow racial disparities in public school. Is the federal law barring racially motivated bullying
b. Step one – state that 14th am is at issue
c. Step two – state that it is going after state actor
d. Step three – go through steps
e. Recognized violation?
i. Yes. SC has held it violates Cons. for gvmt to….
f. How did congress respond?
i. Passed law to prevent racial bullying
g. Is the law a good fit for this violation?
i. Analyze both ways, argue both sides on exam
ii. Great fit – if you are bullied in school, harder to learn, and that is gvmt permitting racial disparities
iii. Bad fit – racial bullying nothing to do w education

Question 111

What are the three steps to analyze the rule for the constitutionality of Congress’s attempts to enforce the 14th Amendment through ‘appropriate legislation’?

Answer 111

i. Step One: What is the “recognized violation” of the 14th Am/what is the existing harm that Congress is trying to prevent?
- Exam: Hypo tells you: “The USSC previously held that ___ violates the EPC/ DPC/ etc. of 14th Am.”]

ii. Step Two - What law did Congress pass in response to the harm?
- Exam: “Here, Congress passed Section (a) of the HYPO Law to address….”]

iii. Step Three - Is the law proportionate/congruent?
- Do step one and two fit together? Is the law in step 2 a good fit for the problem outlined in #1?
- ANALYZE both sides

Decide whether law is constitutional

HYPO
a. Stop all bullying law passed by Congress esp bullying that is racially violated to promote education. Congress passes fed law. Told in hypo that SC previously deemed it a violation of 14 Am for a state to allow racial disparities in public school. Is the federal law barring racially motivated bullying
b. Step one – state that 14th am is at issue
c. Step two – state that it is going after state actor
d. Step three – go through steps
e. Recognized violation?
i. Yes. SC has held it violates Cons. for gvmt to….
f. How did congress respond?
i. Passed law to prevent racial bullying
g. Is the law a good fit for this violation?
i. Analyze both ways, argue both sides on exam
ii. Great fit – if you are bullied in school, harder to learn, and that is gvmt permitting racial disparities
iii. Bad fit – racial bullying nothing to do w education

Question 112

What are the three steps to analyze the rule for the constitutionality of Congress’s attempts to enforce the 14th Amendment through ‘appropriate legislation’?

Answer 112

i. Step One: What is the “recognized violation” of the 14th Am/what is the existing harm that Congress is trying to prevent?
- Exam: Hypo tells you: “The USSC previously held that ___ violates the EPC/ DPC/ etc. of 14th Am.”]

ii. Step Two - What law did Congress pass in response to the harm?
- Exam: “Here, Congress passed Section (a) of the HYPO Law to address….”]

iii. Step Three - Is the law proportionate/congruent?
- Do step one and two fit together? Is the law in step 2 a good fit for the problem outlined in #1?
- ANALYZE both sides

Decide whether law is constitutional

HYPO
a. Stop all bullying law passed by Congress esp bullying that is racially violated to promote education. Congress passes fed law. Told in hypo that SC previously deemed it a violation of 14 Am for a state to allow racial disparities in public school. Is the federal law barring racially motivated bullying
b. Step one – state that 14th am is at issue
c. Step two – state that it is going after state actor
d. Step three – go through steps
e. Recognized violation?
i. Yes. SC has held it violates Cons. for gvmt to….
f. How did congress respond?
i. Passed law to prevent racial bullying
g. Is the law a good fit for this violation?
i. Analyze both ways, argue both sides on exam
ii. Great fit – if you are bullied in school, harder to learn, and that is gvmt permitting racial disparities
iii. Bad fit – racial bullying nothing to do w education

Question 113

What are the three steps to analyze the rule for the constitutionality of Congress’s attempts to enforce the 14th Amendment through ‘appropriate legislation’?

Answer 113

i. Step One: What is the “recognized violation” of the 14th Am/what is the existing harm that Congress is trying to prevent?
- Exam: Hypo tells you: “The USSC previously held that ___ violates the EPC/ DPC/ etc. of 14th Am.”]

ii. Step Two - What law did Congress pass in response to the harm?
- Exam: “Here, Congress passed Section (a) of the HYPO Law to address….”]

iii. Step Three - Is the law proportionate/congruent?
- Do step one and two fit together? Is the law in step 2 a good fit for the problem outlined in #1?
- ANALYZE both sides

Decide whether law is constitutional

HYPO
a. Stop all bullying law passed by Congress esp bullying that is racially violated to promote education. Congress passes fed law. Told in hypo that SC previously deemed it a violation of 14 Am for a state to allow racial disparities in public school. Is the federal law barring racially motivated bullying
b. Step one – state that 14th am is at issue
c. Step two – state that it is going after state actor
d. Step three – go through steps
e. Recognized violation?
i. Yes. SC has held it violates Cons. for gvmt to….
f. How did congress respond?
i. Passed law to prevent racial bullying
g. Is the law a good fit for this violation?
i. Analyze both ways, argue both sides on exam
ii. Great fit – if you are bullied in school, harder to learn, and that is gvmt permitting racial disparities
iii. Bad fit – racial bullying nothing to do w education

Question 114

What are the three steps to analyze the rule for the constitutionality of Congress’s attempts to enforce the 14th Amendment through ‘appropriate legislation’?

Answer 114

i. Step One: What is the “recognized violation” of the 14th Am/what is the existing harm that Congress is trying to prevent?
- Exam: Hypo tells you: “The USSC previously held that ___ violates the EPC/ DPC/ etc. of 14th Am.”]

ii. Step Two - What law did Congress pass in response to the harm?
- Exam: “Here, Congress passed Section (a) of the HYPO Law to address….”]

iii. Step Three - Is the law proportionate/congruent?
- Do step one and two fit together? Is the law in step 2 a good fit for the problem outlined in #1?
- ANALYZE both sides

Decide whether law is constitutional

HYPO
a. Stop all bullying law passed by Congress esp bullying that is racially violated to promote education. Congress passes fed law. Told in hypo that SC previously deemed it a violation of 14 Am for a state to allow racial disparities in public school. Is the federal law barring racially motivated bullying
b. Step one – state that 14th am is at issue
c. Step two – state that it is going after state actor
d. Step three – go through steps
e. Recognized violation?
i. Yes. SC has held it violates Cons. for gvmt to….
f. How did congress respond?
i. Passed law to prevent racial bullying
g. Is the law a good fit for this violation?
i. Analyze both ways, argue both sides on exam
ii. Great fit – if you are bullied in school, harder to learn, and that is gvmt permitting racial disparities
iii. Bad fit – racial bullying nothing to do w education

Question 115

What are the three steps to analyze the rule for the constitutionality of Congress’s attempts to enforce the 14th Amendment through ‘appropriate legislation’?

Answer 115

i. Step One: What is the “recognized violation” of the 14th Am/what is the existing harm that Congress is trying to prevent?
- Exam: Hypo tells you: “The USSC previously held that ___ violates the EPC/ DPC/ etc. of 14th Am.”]

ii. Step Two - What law did Congress pass in response to the harm?
- Exam: “Here, Congress passed Section (a) of the HYPO Law to address….”]

iii. Step Three - Is the law proportionate/congruent?
- Do step one and two fit together? Is the law in step 2 a good fit for the problem outlined in #1?
- ANALYZE both sides

Decide whether law is constitutional

HYPO
a. Stop all bullying law passed by Congress esp bullying that is racially violated to promote education. Congress passes fed law. Told in hypo that SC previously deemed it a violation of 14 Am for a state to allow racial disparities in public school. Is the federal law barring racially motivated bullying
b. Step one – state that 14th am is at issue
c. Step two – state that it is going after state actor
d. Step three – go through steps
e. Recognized violation?
i. Yes. SC has held it violates Cons. for gvmt to….
f. How did congress respond?
i. Passed law to prevent racial bullying
g. Is the law a good fit for this violation?
i. Analyze both ways, argue both sides on exam
ii. Great fit – if you are bullied in school, harder to learn, and that is gvmt permitting racial disparities
iii. Bad fit – racial bullying nothing to do w education

Question 116

Through which amendment can Congress authorize certain suits against State governments?

Answer 116

The 11th Amendment

Question 117

Define the 11th Amendment

Answer 117

The judicial federal power should not extend to any case with a citizen of a state or a foreign state against a state.

In other words, states cannot be sued by private individuals.

Question 118

What are the three steps to analyze the rule for the constitutionality of Congress’s attempts to enforce the 14th Amendment through ‘appropriate legislation’?

Answer 118

i. Step One: What is the “recognized violation” of the 14th Am/what is the existing harm that Congress is trying to prevent?
- Exam: Hypo tells you: “The USSC previously held that ___ violates the EPC/ DPC/ etc. of 14th Am.”]

ii. Step Two - What law did Congress pass in response to the harm?
- Exam: “Here, Congress passed Section (a) of the HYPO Law to address….”]

iii. Step Three - Is the law proportionate/congruent?
- Do step one and two fit together? Is the law in step 2 a good fit for the problem outlined in #1?
- ANALYZE both sides

Decide whether law is constitutional

HYPO
a. Stop all bullying law passed by Congress esp bullying that is racially violated to promote education. Congress passes fed law. Told in hypo that SC previously deemed it a violation of 14 Am for a state to allow racial disparities in public school. Is the federal law barring racially motivated bullying
b. Step one – state that 14th am is at issue
c. Step two – state that it is going after state actor
d. Step three – go through steps
e. Recognized violation?
i. Yes. SC has held it violates Cons. for gvmt to….
f. How did congress respond?
i. Passed law to prevent racial bullying
g. Is the law a good fit for this violation?
i. Analyze both ways, argue both sides on exam
ii. Great fit – if you are bullied in school, harder to learn, and that is gvmt permitting racial disparities
iii. Bad fit – racial bullying nothing to do w education

Question 118

What are the three exceptions to the 11th Amendment (when a citizen can sue a state in federal court)?

Answer 118

(1) P sues state actor in their official capacity
(2) State consents/waives their immunity
(3) Congress decides to abrogate (get rid of) the immunity

Question 119

Define P suing a state actor in their official capacity.

Answer 119

• P CANNOT seek monetary damages
• P must ONLY seek injunctive relief (court order)
• Example: P denied food stamps by state government. P cannot sue state and ask for money damages for feeding family. P can sue state officer who runs food stamp program in his official capacity and seek injunctive relief – a court order requiring officer to let her participate in food stamp program going forward.

Question 120

Define state consents/waives their immunity

Answer 120

• Consent must be explicit in statute or state the waiver explicitly in the answer to complaint
• No such thing as implied consent in this situation

Question 121

What are three advantages to Congress abrogating a state’s immunity?

Answer 121

• Judicial economy: deters increase in volume of lawsuits in federal court
• States are laboratories of federalism: if states should try new laws, they will be reluctant to do that if it subjects states to litigation
• State sovereignty and balance of powers

Question 122

What is the disadvantage of Congress abrogating a state’s immunity?

Answer 122

Hurts state sovereignty. Congress reaching in and ripping away an immunity that the const. gives to states.

Question 123

Exam flow for 11th Amendment question

Answer 123

First, define 11th Amendment
Second, define three exceptions in detail.
Third, state that the first two exceptions do not apply given the facts at hand.
Fourth, define whether abrogation is constitutional per the rule on abrogation
Last, conclude on constitutionality

NOTE: Mention the following:
1. State engaging in behavior that possibly violates law
2. Given title of state officer in charge of enforcing law