Con Law Rule Attack

Question 1

Standing

Constitutional and Prudential

Answer 1

1. Injury in fact
2. Causation
3. Redressability
4. Third party
5. General Grievances

Question 2

Injury examples

Answer 2

• Injury must be distinct and palpable and not abstract or conjectural or hypothetical
• Membership in a minority group is not alone sufficient to afford standing against conduct that denigrates that minority group
• Evidence of past wrongdoing is not sufficient to show that a particular plaintiff would be subject to the same injury in the future.
• Massachusetts = Special position and interest of a state sovereign
• injunction has a higher standard that you need to show future injury = will I get chokeheld from the police in the future?
• construction of a nuclear reactor in the plaintiffs’ area (exposure to radiation, thermal pollution, and fear of a major nuclear accident) allowed injury

Question 3

Causation examples

Answer 3

• Standing will usually not be found where a litigant claims that tax incentives have caused a third party to injure him, since the causation component will usually be too attenuated.
• But-for

Question 4

Redressability examples

Answer 4

• if it will strike down the law, will it go away?
• No redressability P’s could not demonstrate that appropriate housing would be constructed without the exclusionary zoning ordinances.
• even if we stop gov’t financial aid to discriminatory schools, will that stop white parents from sending them there?

Question 5

Third party exceptions

Answer 5

• The closeness of the relationship between the plaintiff and the injured third party
• The likelihood that the third party can sue on its own behalf
• Court allowed white homeowner standing to challenge racially restrictive covenant because without allowing it, the harmed people who are black would have no legal mechanism for challenging the contract
• Doctor and women on abortions allowed

Question 6

Ripeness

Answer 6

• The ripeness doctrine seeks to separate matters that are premature for review because the injury is speculative and may never occur
• in order for the case to be ripe, the plaintiff must show that review is not premature, that is, the plaintiff must demonstrate that a harm has occurred or immediately will occur

Question 7

Ripeness examples

Answer 7

• Challenge to Connecticut statutes that prohibit the use of contraceptive devices and the giving of medical advice in the use of such devices BUT the state did not enforce this law so it is not ripe
• if it is inevitable that a statute will be enforced, a time delay is irrelevant
• a credible threat of enforcement can be enough

Question 8

Mootness

Answer 8

• A plaintiff must present a live controversy at all stages of federal court litigation
• If anything occurs while a lawsuit is pending to end the plaintiffs injury, the case is to be dismissed as moot

Question 9

Mootness exceptions

Answer 9

• Wrongs capable of repetition but evading review
• Defendants voluntary cessation
• Class action suits

Question 10

Mootness exceptions examples

Answer 10

• capable of repetition, yet evading review = law requiring high bar to be put on ballot but by the time suit came, election over, so it was capable of repetition but evading review; pregnancy
• Defendants voluntary cessation = The exception states that even though the challenged activity has ceased to exist, the court can still hear the case unless there is no reasonable chance that the defendant can resume the activity. = very high bar
• Class Action = when class members continue to have “live” controversies, the fact that the named plaintiff’s case becomes moot does not make the entire class action moot.

Question 11

Political Question Doctrine

Answer 11

• PQ are those issues committed by the constitution to another branch of government; or those inherently incapable of resolution and enforcement by the judicial process

Question 12

Spending Clause

Answer 12

Congress has the power to spend for the general welfare. Art 1, Sec. 8

Question 13

Spending Clause with no conditions

Answer 13

If there are no conditions on the spending power, the purpose of the spending just needs to relate to the general welfare because Congress has broad authority to spend for the general welfare. Butler.

Question 14

Spending Clause with conditions

GC-RC-B

Elements

Answer 14

Conditions:

1. must be for the general welfare (courts will defer substantially to Congress),
2. clear and unambiguous conditions,
3. conditions on federal grants may be illegitimate if they are unrelated “to the federal interest” in particular national projects or programs,
4. cannot be too coercive, and
5. the conditional grants for federal funds cannot be independently barred by another constitutional provision

Dole.

Question 15

Necessary and Proper Clause

LS-AP-ex

Answer 15

• Ends must be legitimate, and within the scope of the constitution.
• all means which are appropriate, and plainly adapted to that end
• broader interpretation. McCullough.
• you combine the necessary and proper clause with a valid enumerated power from section 8
• Congress has the power to “make all laws which shall be necessary and proper” to “regulate Commerce … among the several States.” Article 1, Section 8

Art. 1, Sec. 8

Question 16

Rational basis review

Answer 16

• A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce. Hodel.

Question 17

Commerce Clause

Answer 17

1. the use of the channels of interstate commerce.
2. the instrumentalities of interstate commerce.
3. Congress has the power to regulate those activities having a substantial relation to interstate commerce, i.e. those activities that substantially affect interstate commerce

Gun-free School zone

Question 18

Third Category Test

Answer 18

When in the third category, the court will ask, if prima facie, whether the activity being regulated is an economic activity.

Gun-free School zone

Question 19

Economic Activity

prima facie

what do we ask / wickard

Answer 19

Does Congress have a rational basis in finding that, in the aggregate, that x substantially impacts interstate commerce.

• Congress has Commerce Clause authority to regulate purely intrastate activities that are part of a broader economic regulatory scheme. Wickard.
• Legislation is proper if, aggregating all the effects of the legislation, the regulation has a substantial economic effect on interstate commerce. EVEN PURELY INSTRASTATE.

Wickard

Question 20

Not an Economic Activity

prima facie

Answer 20

If it is not an economic actvity, then invalid use of commerce clause power UNLESS
* Jurisdictional hook
* Congress cannot rely on factual findings to establish an activity’s substantial effect in the aggregate on interstate commerce where the findings are too attenuated and come from cost of crime or decreased national productivity arguments

Gun-free School zone

Question 21

Last rule regarding Commerce Clause

Answer 21

Congress can regulate economic activity, but not inactivity.

• Ex) forced people, under commerce clause, to get health insurance. This fails.
• even with the N&P clause, because the attached provision was invalid!

ACA case

Question 22

Cases

SWRL-MGW

Answer 22

1. S = Steel case
2. W = wheat case
3. R = racist hotel, racist diner
4. L = lumber, loanshark
5. M = Marijuana
6. G = Guns near school
7. W = violence against women

Question 23

10th amendment

Anti-Commandeering

Answer 23

generally prohibits the federal government from requiring states and localities to adopt or enforce federal policies.

Constitution provides that Congress can regulate individuals, not states.

Policy
* promotes federalism and Dual Sovereignty. NY and NCAA.
* undermine government accountability. NY
* prevents shifting of cost of regulation from congress to states. NCAA.

NY v. US

Question 24

Exceptions to the Anti-Commandeering

Answer 24

1. Where congress has the authority to regulate private activity under the commerce clause, we have recognized congress’s power to offer states the choice of regulating that activity according to federal standards or having the state law preempted by fed regulation. NY.
2. also, congress may attach strings on grants to state governments and through these conditions induce state action that it can not directly compel. NY.
3. the Court has held that the doctrine “does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage. Reno.

Question 25

Anticommandeering

Form and how it plays out

NY

Answer 25

1. Given that both alternatives, alone, are impermissible, it logically follows that Congress lacks the power to offer the States a choice between the two. The Government (D) emphasizes the amount of latitude provided the States under the Act in that it allows them a number of choices in dealing with the waste problem. This line of reasoning, however, only underscores the critical alternative a State lacks: A State may not decline to administer the federal program altogether.
2. no matter how powerful the federal interest involved, the constitution simply does not give congress the authority to require states to regulate
3. it does not even matter if the states consent to this because federalism principles are to protect citizens, not states

Question 26

Anticommandeering

Form and how it plays out

Background checks by state officers

Answer 26

We adhere to that principle today, and conclude categorically, as we concluded categorically in New York: “The Federal Government may not compel the States to enact or administer a federal regulatory program.”

• The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State’s officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary

• such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

Question 27

Anticommandeering

Form and how it plays out

DMV

Answer 27

The DPPA regulates the universe of entities that participate as suppliers to the market for motor vehicle information—the States as initial suppliers of the information in interstate commerce and private resellers or redisclosers of that information in commerce.
* so applies to both states and private individuals
* downstream effects

Question 28

Anticommandeering

Form and how it plays out

NCAA

Answer 28

Because PASPA’s “anti-authorization” provision did not “confer any federal rights on private actors interested in conducting sports gambling operations” or “impose any federal restrictions on private actors,” the Court concluded that it could not be interpreted “as anything other than a direct command to the States,” which the anticommandeering doctrine forbids

• The PASPA provision at issue here—prohibiting state authorization of sports gambling—violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do.
• state legislatures are put under the direct control of Congress
• It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals
• US argued this is preemption but it has nothing to do with private individuals, it tells state legislatures what to do and not to do

Question 29

Cases

NBDN

Answer 29

1. NY
2. Background checks
3. DMV
4. NCAA

Question 30

Equal Sovereignty Doctrine

Answer 30

• It is a limitation on Congress’ power
• the equal sovereignty principle limits Congress’s ability to enact legislation that subjects different states to unequal burdens, at least without a sufficient justification

Question 31

Equal Sovereignty Doctrine

Answer 31

• a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets
• The Court observed that in the nearly 50 years since the VRA “things have changed dramatically,” pointing to increases in African American voter registration rates and turnout in covered jurisdictions.
• the Court found that current conditions did not justify applying the preclearance formula to only certain states and counties
• 9 southern states were being treated worse

Voting rights act

Question 32

Preemption

when do we have preemption

Answer 32

• it must represent the exercise of a power conferred on Congress by the Constitution; pointing to the Supremacy Clause will not do. NCAA
• since the Constitution “confers upon Congress the power to regulate individuals, not States,” the act/provision at issue must be best read as one that regulates private actors, not only the states (which invokes anticommandeering). NCAA

Question 33

Preemption

Answer 33

• Supremecy clause = provides that the constitution and the laws and treaties made pursuant to it are the supreme law of the land. Art. 6
• any state law however clearly within a states acknowledged power which interferes with or is contrary to federal law must yield.
• The supreme court has recognized in both express and implied preemption that the key is discerning congressional intent. Tobacco.
• The historic police powers of the States are not to be superseded by the Federal Act unless that is the clear and manifest purpose of Congress’ intent. Arizona.

Question 34

Express Preemption

Answer 34

• When Congress expressly preempts certain matters, those matters falling outside the express preemption are implicitly not preempted. Tobacco.

Question 35

Implied preemption

Field preemption

Answer 35

• Preemption in those cases is inferred from a framework of regulation that is so pervasive that Congress left no room for state regulation to supplement it, or when the federal interest is so dominant that the federal system is assumed to preclude enforcement of state laws on the same subject.
• Field preemption reflects a congressional decision to foreclose even complementary state regulation.
• occurs when congress enacts a scheme of federal regulation so comprehensive that it allows for no state regulation, complimentary or otherwise

Arizona

Question 36

Implied preemption

Conflict Preemption

Answer 36

• requires no explicit statement of congressional intent to superscede state law
• So long as both federal and state law can operate, both are enforceable.

Avocado

Question 37

Implied preemption

Impossibility

Answer 37

• The Supreme Court has held that federal law preempts state law when it is impossible to comply with both sets of laws. Avocado.

Question 38

Implied preemption

Obstacle

Answer 38

• A state law will be preempted if it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress; however, the Court will not interfere where there is a permissible basis for the state law. Nuclear case.
• occurs when the state law would get in the way of federal law’s ability to achieve congress’s purpose
• the focus is on whether the state law creates a serious obstacle to the federal purpose, not how the purposes line up

• differences in purpose does not auto mean no obstacle
• similar purposes does not auto means obstacle

Question 39

Cases

SANA

Answer 39

1. S = Smoking
2. A = Avocados
3. N = Nuclear power
4. A = Arizona

Question 40

Executive Power

Highest Ebb

Answer 40

• when the “President acts pursuant to an express or implied authorization of Congress,” his authority is at a maximum and gains “the widest latitude of judicial interpretation.”
• only a finding of overall unconstitutionality would result in a breach because it can be said that the legislative and executive are acting in unison

Question 41

Executive Power

Middle Ebb

Answer 41

• Second, when the president acts “in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority.”
• case by case

Question 42

Executive Power

Lowest ebb

Answer 42

• Third, “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter

Congress cannot remove executive officers

Question 43

Chevron doctrine

Answer 43

1. has congress directly spoken to the precise question at issue? if the intent of congress is clear, that is the end of the matter for the court, and the agency, must give effect to the unambiguously expressed intent of congress
2. if the statute is silent/ambiguous w.r.t the specific issue, the question for the court is = is the agency’s answer based on a permissible construction of the statute?

Question 44

W. Virginia Major questions doctrine

Answer 44

• A federal administrative agency does not have the authority to regulate a fundamental sector of the economy absent a clear authorizing statement from Congress
• If Congress intends to grant an agency with extraordinary power to act on issues of great economic or political import, it does so clearly.
• Courts should be reluctant to read such extraordinary grants from an ambiguous statute

Question 45

Native American Sovereignty

Answer 45

• Fed gov’t can regulate Indian tribes based off commerce clause
• State gov’t likely cannot
• ex) indian prosecuted on state crim charges on indian tribe land – not allowed, only indian law and fed law apply
• ex) non indian commit crime on indian land against indian – can state prosecute the non indian? Yes fed and state have concurrent jxn when non preempted by fed law