Constitutional Law

Question 1

Federal judicial power comes from. . .

Answer 1

Article III of the Constitution

Question 2

What are the limits of federal judicial power?

Answer 2

Federal judicial power extends to cases involving:

1) INTERPRETATION of the C, federal laws, treaties, and admiralty, and maritime laws; and
2) DISPUTES between states, states and foreign citizens, and citizens of diverse citizenship

Question 3

Advisory opinions are those that lack. . .

Answer 3

a) An actual dispute between adverse parties, or
b) Any legally binding effect on the parties

NOT JUSTICIABLE

Question 4

Justiciability

Answer 4

Whether a lawsuit is capable of judicial resolution as a case or controversy depends on:

a) WHAT it requests (NO ADVISORY OPINIONS),
b) WHEN it is brought [(ripe and not moot)], and
c) WHO brings it (someone with standing)

Question 5

Article III judges have tenure for. . .

Answer 5

Life

Question 6

Where does the Sup. Ct. have ORIGINAL JURISDICTION?

Answer 6

In all cases affecting ambassadors, public ministers, consuls, and those in which the state is a party, but Congress has given concurrent jurisdiction to lower federal courts in all cases EXCEPT those between states

Question 7

Where does the Sup. Ct. have APPELLATE JURISDICTION?

Answer 7

In all cases to which federal power extends, subject to congressional exceptions and regulation

Question 8

How do cases reach the Sup. Ct.? (2)

Answer 8

1) Writ of Certiorari

2) Appeal (rare cases)

Question 9

Writ of Certiorari

Answer 9

One of two ways to get a case to the Sup. Ct.

The Sup. Ct. has complete DISCRETION to hear cases that come to it by certiorari

Those cases are:
1) Cases from STATE COURTS where (i) the constitutionality of a federal statute, federal treaty, or state statute is in issue, or (ii) a state statute allegedly violates federal law [looks like diversity jurisdiction from civ. pro.]

2) All cases from FEDERAL COURTS of appeals

Most cases brought this way

Question 10

Appeal

Answer 10

One of two ways to get a case to the Sup. Ct.

The Sup. Ct. MUST hear cases that come to it by appeal

These cases are confined to decisions by THREE-judge federal district court panels that grant or deny INJUNCTIVE relief

Rare cases

Question 11

What cases can come to the Sup. Ct. on appeal?

Answer 11

Cases that were decided by a 3-JUDGE federal district court panel that grant or deny INJUNCTIVE relief

Question 12

What does it mean for a case to be “justiciable?”

Answer 12

That a federal court may address it

Question 13

What cases are justiciable?

Answer 13

Those with a “case or controversy” may be addressed by federal court, subject to other limitations

Question 14

Limitations on Federal Court Jurisdiction (4)

Answer 14

1) No advisory opinions
2) Ripeness
3) Mootness
4) Standing

Question 15

When can federal courts hear actions for DECLARATORY relief?

Answer 15

There must be:

(i) an actual dispute between parties having adverse legal interests
(ii) complainants must show they have engaged (or wish to engage) in specific conduct, and
(iii) that challenged action poses a REAL AND IMMEDIATE DANGER to their interests

Requirement of specific PRESENT HARM or threat of specific future harm

Question 16

Will federal courts determine the constitutionality of a statute that hasn’t been enforced yet and probably won’t be?

Answer 16

No, federal courts will NOT determine the constitutionality of a statute if it has NEVER been enforced and there is no REAL fear that is ever will be

Question 17

Ripeness - Generally

Answer 17

Refers to the readiness of a case for litigation

“A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”

Ripeness issues most usually arise when a plaintiff seeks anticipatory relief, such as an INJUNCTION

Question 18

What is the goal of ripeness?

Answer 18

The goal is to prevent premature adjudication

If a dispute is insufficiently developed, any potential injury or stake is too speculative to warrant judicial action

Question 19

How do federal courts determine ripeness?

Answer 19

A federal court will consider TWO main factors

(i) the FITNESS of the issues for judicial decision, and
(ii) the HARDSHIP to the parties withholding court consideration

Question 20

Fitness for Judicial Decision

Answer 20

One of two factors considered for determining ripeness

Generally, an issue is not fit for judicial decision if it relies on UNCERTAIN OR CONTINGENT FUTURE EVENTS that may not occur as anticipated

Question 21

Hardship to Parties

Answer 21

One of two factors considered for determining ripeness

A court will find that an action is ripe for review if a party would have to RISK SUBSTANTIAL HARDSHIP to provoke ENFORCEMENT of law

Question 22

Mootness Requirement

Answer 22

A real controversy must exist at ALL stages of review

If the matter has already been resolved, case dismissed as moot

Exception - controversies capable of repetition, but evading review, are not moot

Examples: Issues concerning events of a short duration (e.g.: abortion) or D who voluntarily stops the offending practice but is free to resume

Question 23

Exception to the Mootness Requirement

Answer 23

Some disputes or injuries may arise in the short-term and have the potential for recurrence, but always fail to last long enough to permit federal judicial review

In other words, controversies capable of repetition, but evading review, are NOT moot

Examples: Issues concerning events of a short duration (e.g.: abortion) or D who voluntarily stops the offending practice but is free to resume

Question 24

Examples of Exceptions to the Mootness Requirement

Answer 24

a) Conduct Capable of Repetition, Yet Evading Review [in CMR]
b) Possibility of Collateral Legal Consequences
c) Voluntary Cessation [in CMR]
d) Class Action Litigation (w/ limitations)

Question 25

What is voluntary cessation? What are its effects?

Answer 25

This is an exception to mootness

When a defendant VOLUNTARILY TERMINATES the allegedly unlawful conduct AFTER the lawsuit has been filed but RETAINS THE POWER TO RESUME the practice at any time

A federal court may deem the case NONMOOT

Question 26

What does “conduct capable of repetition, yet evading review” mean? Give an example.

Answer 26

It is an exception to mootness

Some disputes or injuries may arise in the short-term and have the POTENTIAL for recurrence, but ALWAYS FAIL to last LONG ENOUGH to permit federal judicial review.

A classic example is the landmark abortion case, Roe v. Wade

Court has held that this exception applies only in “exceptional situations,” where the plaintiff “can make a reasonable showing that he will again be subjected to the alleged illegality” (e.g.: a woman can get pregnant again)

Question 27

How do class action lawsuits relate to mootness?

Answer 27

They CAN be an exception to mootness

Class rep. may continue to pursue a class action AFTER the rep.’s controversy has become moot IF claims of OTHER class members are still viable

Question 28

Ripeness v. Mootness - Timing

Answer 28

Ripeness bars consideration of claims BEFORE they have been developed

Mootness bars their consideration AFTER they have been resolved

Question 29

Standing - Generally

Answer 29

A person must have a CONCRETE STAKE in the outcome of a case at ALL stages of litigation, including appeal

Question 30

Standing - Components (3)

Answer 30

1) Injury in Fact
2) Causation
3) Redressability

Question 31

Injury in Fact

Answer 31

Requires both:

(i) a PARTICULARIZED injury - an injury that affects P in a personal and INDIVIDUAL WAY; and
(ii) a CONCRETE injury - one that exists in fact

Injury DOES NOT have to be economic

Not enough to merely show federal statute or constitutional provision violated

Question 32

What does standing do?

Answer 32

Standing just allows P to GET INTO COURT

Successful ruling on standing issue ≠ P winning the suit, just means P gets an OPPORTUNITY to try it

Question 33

What does a successful ruling on standing mean?

Answer 33

Successful ruling on standing issue ≠ P winning the suit, just means P gets an OPPORTUNITY to try it

Question 34

Common Standing Issues (6)

Answer 34

1) Congressional Conferral of Standing
2) Standing to Enforce Govt. Statutes
3) Standing to Assert Rights of Others
4) Standings of Organizations
5) No Citizenship Standing
6) Taxpayer Standing Requisites

Question 35

Congressional Conferral of Standing

Answer 35

One of six common standing issues

Congress has NO power to eliminate the case or controversy REQUIREMENT, ∴ CANNOT grant standing to someone WITHOUT INJURY

Note - a federal statute may create new interests, injury to which MAY be sufficient for standing

Question 36

Standing to Enforce Govt. Statutes

Answer 36

One of six common standing issues

P may have standing to enforce a FEDERAL statute IF she is WITHIN THE [“ZONE OF INTERESTS”] Congress meant to protect

Question 37

Zone of Interest

Answer 37

The type of interests or concerns that a law is intended to regulate or protect.

The law can be a constitutional provision or legislative statute.

To have standing when challenging state action based on a law, the plaintiff’s injury must fall under the zone of interests protected by that law (standing to enforce govt. statutes)

Question 38

Standing to Assert the Rights of Others

Answer 38

One of six common standing issues

Generally, one CANNOT assert the constitutional rights of others to obtain standing

BUT a CLAIMANT WITH STANDING in her own right may ALSO assert the rights of a third party IF:

a) it is DIFFICULT for the third party to assert her own rights
(e. g.: an association may attack a law requiring disclosure of membership lists, because members cannot attack the law without disclosing their identities); OR

b) a SPECIAL RELATIONSHIP exists between the claimant and the third party
(e. g.: a doctor can assert a patient’s rights in challenging an abortion restriction)

Question 39

Standing of Organizations

Answer 39

One of six common standing issues

An organization has standing IF

(i) there is an INJURY IN FACT to members that gives them a right to SUE ON THEIR OWN BEHALF,
(ii) the injury is RELATED to the organization’s PURPOSE, AND
(iii) INDIVIDUAL member PARTICIPATION in the lawsuit is NOT REQUIRED

Question 40

No Citizenship Standing

Answer 40

One of six common standing issues

People have NO standing merely as “citizens” to claim govt. action violates federal law of the C

Compare -
Person MAY have standing to allege that federal action violates the 10TH AMENDMENT by interfering with powers reserved to the states, AS LONG AS the person has a REDRESSABLE INJURY IN FACT

Question 41

10th Amendment - Generally

Answer 41

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

Question 42

14th Amendment - Generally & Clauses

Answer 42

Granted citizenship to all persons born or naturalized in the United States—including former slaves—and guaranteed all citizens “equal protection of the laws” (applies to federal govt. AND STATES)

Citizenship Clause -
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”

Equal Protection Clause -
“[n]or deny to any person within its jurisdiction the equal protection of the laws” - intended to stop state govt.s from discriminating against black Americans

Due Process Clause -
Expanded the due process clause of the Fifth Amendment to apply to the states as well as the federal government, “nor shall any State deprive any person of life, liberty or property, without due process of law”

Privileges and Immunities Clause -
“[t]he citizens of each State shall be entitled to all privileges and immunities of citizens in the several States”

Additionally. . .
1) Authorized the federal government to punish states that violated or abridged their citizens’ right to vote by proportionally reducing the states’ representation in Congress

2) Mandated that anyone who “engaged in insurrection” against the United States could not hold civil, military or elected office (without the approval of two-thirds of the House and Senate)

“Congress shall have the power to enforce, by appropriate legislation, the provisions of this article” - similar to Enforcement Clause in the 13th Amendment

Question 43

Citizenship Clause

Answer 43

First sentence of the 14th Amendment to the US C

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Saenz v. Roe - protects an aspect of the right to travel

Dredd Scott Case - reversed

Question 44

Equal Protection Clause

Answer 44

14th Amendment to US C

“[n]or deny to any person within its jurisdiction the equal protection of the laws”

Extended Bill of Rights to states

Intended to stop state govt.s from discriminating against black Americans (applies to other races, nationalities, etc.)

Allows—but does NOT require—a state to provide equal educational funding to all students within the state

Question 45

Due Process Clause - 14th Amendment

Answer 45

14th Amendment to US C

Expanded the due process clause of the Fifth Amendment to apply to the states as well as the federal government, “nor shall any [STATE] deprive any person of life, liberty or property, without due process of law”

Question 46

Due Process Clause - 5th Amendment

Answer 46

5th Amendment to US C

Includes a due process clause stating that no person shall “be deprived of life, liberty, or property, without due process of law.”

The Fifth Amendment’s due process clause applies to the federal government

Two main protections:

1) PROCEDURAL due process - which requires government officials to follow fair procedures before depriving a person of life, liberty, or property; and
2) SUBSTANTIVE due process - which protects certain fundamental rights from government interference

Contains a prohibition against vague laws
Implied equal protection requirement similar to the 14th Amendment’s Equal Protection Clause

Question 47

5th Amendment v. 14th Amendment - Due Process Clause

Answer 47

The Fifth Amendment’s due process clause applies to the federal government, while the Fourteenth Amendment’s due process clause applies to state governments

Question 48

Privileges and Immunities Clause

Answer 48

14th Amendment to US C

Affects only rights of U.S. citizenship, i.e. rights which “owe their existence to the Federal government, its National character, its Constitution, or its laws”

Protects ONLY those rights guaranteed by the United States, NOT individual states

“[t]he citizens of each State shall be entitled to all privileges and immunities of citizens in the several States”

Interpreted to convey limited protection pertinent to a small minority of rights, such as the right to seek federal office

Question 49

Slaughter-House Cases

83 U.S. (16 Wall.) 36 (1873)

Answer 49

Rule: U.S. Supreme Court decision that held that the Privileges or Immunities Clause of the 14th Amendment to the U.S. Constitution ONLY protects the legal rights that are associated with FEDERAL citizenship, NOT those that pertain to STATE citizenship

Holding: Court ruled that the 14th Amendment did not forbid Louisiana’s use of its police powers to regulate butchers

Question 50

Procedural Due Process

Answer 50

One of two main protections:
Requires government officials to follow fair procedures before depriving a person of life, liberty, or property

Protects individuals from the coercive power of government by ensuring that adjudication processes, under valid laws, are fair and impartial

Examples of Protections:

(i) Required to include sufficient and timely notice on why a party is required to appear before a court or other administrative body;
(ii) The right to an impartial trier of fact and trier of law; and
(iii) The right to give testimony and present relevant evidence at hearings

Question 51

Substantive Due Process

Answer 51

One of two main protections:
Protects certain fundamental rights from government interference

3 Types of Fundamental Rights:

1) Rights enumerated in and derived from the first eight amendments to the Constitution;
2) The right to participate in the political process, such as the rights of voting, association, and free speech
3) The rights of “discrete and insular minorities”

Ct. looks to see if right “deeply rooted in American tradition”

If the right is NOT a fundamental right, the court applies a RATIONAL BASIS test: if the violation of the right can be [rationally related to a legitimate government purpose,] the law is then held valid.

If the court establishes that the right being violated IS a fundamental right, it applies STRICT SCRUTINY and asks whether the law is [necessary to achieve a compelling state interest and whether the law is narrowly tailored to address that interest.]

Question 52

Taxpayer Standing Requisites

Answer 52

One of six common standing issues

General Rule:
Taxpayer HAS STANDING to litigate her TAX BILL, but generally has NO standing to CHALLENGE GOVT. EXPENDITURES (interest too remote)

Taxpayer has NO standing to challenge TAX CREDITS

Requires the involvement CONGRESS’S SPENDING POWER (i.e.: no standing to challenge fed. govt. grants of surplus property to religious groups or expenditures of general executive branch funds)

Exception to General Rule -
Suits attacking CONGRESSIONAL spending measures on 1st Amendment ESTABLISHMENT CLAUSE grounds (e.g.: congressionally approved federal expenditures to aid parochial schools)

Question 53

Establishment Clause

Answer 53

1st Amendment

Prohibits the government from making any law “respecting an establishment of religion”

Not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another

It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion

Supreme Court has permitted religious invocations to:

(i) Open legislative session;
(ii) Public funds to be used for private religious school bussing and textbooks; and
(iii) University funds to be used to print and public student religious groups’ publications

Supreme Court has ruled AGAINST:

(i) Some overtly religious displays at courthouses;
(ii) State funding supplementing teacher salaries at religious schools; and
(iii) Some overly religious holiday decorations on public land

Question 54

Government Action Implicating Religion - Supreme Court Rulings

Answer 54

Supreme Court has permitted religious invocations to:

(i) Open legislative session;
(ii) Public funds to be used for private religious school busing and textbooks; and
(iii) University funds to be used to print and public student religious groups’ publications

Supreme Court has ruled AGAINST:

(i) Some overtly religious displays at courthouses;
(ii) State funding supplementing teacher salaries at religious schools; and
(iii) Some overly religious holiday decorations on public land

Question 55

What is the exception to the taxpayer standing requisites?

Answer 55

Taxpayer HAS STANDING in suits attacking CONGRESSIONAL spending measures on 1st Amendment ESTABLISHMENT CLAUSE grounds (e.g.: congressionally approved federal expenditures to aid parochial (church-related) schools)

General Rule:
Taxpayer HAS STANDING to litigate her TAX BILL, but generally has NO standing to CHALLENGE GOVT. EXPENDITURES (interest too remote)

Taxpayer has NO standing to challenge TAX CREDITS

Question 56

Adequate and Independent State Grounds

Answer 56

Sup. Ct. will NOT exercise jurisdiction if the state ct. judgment is based on ADEQUATE AND INDEPENDENT grounds - even if there are fed. issues involved

Adequate = FULLY DISPOSITIVE of the case
Independent = decision NOT based on federal case INTERPRETATIONS of IDENTICAL federal provisions

When state ct. ≠ clearly indicate decision rests on state law, Sup. Ct. may hear the case

Question 57

What does it mean for a case to be ‘adequate?’ Why does it matter?

Answer 57

Adequate = FULLY DISPOSITIVE of the case

Sup. Ct. will NOT exercise jurisdiction if the state ct. judgment is based on ADEQUATE AND INDEPENDENT grounds - even if there are fed. issues involved

Question 58

What does it mean for a case to ‘independent?’ Why does it matter?

Answer 58

Independent = decision NOT based on federal case INTERPRETATIONS of IDENTICAL federal provisions

Sup. Ct. will NOT exercise jurisdiction if the state ct. judgment is based on ADEQUATE AND INDEPENDENT grounds - even if there are fed. issues involved

Question 59

What are the 2 scenarios where there will be ABSTENTION by a federal court?

Answer 59

a) Unsettled Question of State Law

b) Pending State Proceedings

Question 60

Unsettled Question of State Law

Answer 60

Fed. ct. will TEMPORARILY abstain from resolving a constitutional law claim when the disposition rests on an UNSETTLED QUESTION OF STATE LAW

Question 61

Pending State Proceedings

Answer 61

Fed. ct.s will NOT enjoin pending state CRIMINAL proceedings (and in some cases pending state administrative or civil proceedings involving an important state interest)

EXCEPT when there is PROVEN HARASSMENT or prosecutions taken in BAD FAITH

Question 62

Political Questions

Answer 62

Political questions will NOT be decided

Political issues are those:

(i) constitutionally committed to another branch of govt.; or
(ii) inherently incapable of judicial resolution

Called Political Question Doctrine, Justiciability Doctrine, or Unjusticiability Doctrine

Oetjen v. Central Leather Co. (1918) -
Ct. found that the conduct of foreign relations is the sole responsibility of the Executive Branch
∴ found that cases which challenge the way in which the Executive uses that power present political questions
∴ it cannot preside over these issues.

Question 63

Examples of Political Questions (4)

Answer 63

1) Challenges based on the “Republican Form of Govt.” Clause of Article IV;
2) Challenges to congressional procedures for ratifying constitutional amendments;
3) The President’s conduct of foreign policy; and
4) Partisan legislative apportionment (gerrymandering)

are political questions

Question 64

Nonpolitical Questions (2)

Answer 64

1) Arbitrary exclusion of a congressional delegate; and
2) Production of presidential papers and communications

are NOT political questions

Question 65

11th Amendment - Limits on Federal Courts

Answer 65

Prohibits FEDERAL courts from hearing a private party’s or foreign govt.’s claims against a state govt.

Actions when a state is named a party or state will have to pay retroactive damages are BARRED

Actions against a state govt. in state ct. are BARRED (even on federal claims), unless the D state CONSENTS
(Doctrine of Sovereign Immunity)

∴ does NOT extend to:

1) Actions against LOCAL govt.s;
2) Actions by the UNITED STATES or other STATES; or
3) Proceedings in federal BANKRUPTCY ct.s

There are EXCEPTIONS

Question 66

Doctrine of Sovereign Immunity

Answer 66

A judicial doctrine that PREVENTS THE GOVT. or its political subdivisions, departments, and agencies FROM BEING SUED WITHOUT its CONSENT

Question 67

11th Amendment - Exceptions (2)

Answer 67

1) Certain Actions Against State Officers

2) Congress Removes the Immunity

Question 68

11th Amendment - Certain Actions Against State Officers

Answer 68

One of two exceptions to the 11th Amendment prohibitions

These actions can be brought against STATE OFFICERS in federal court despite the 11th Amendment:

(i) Actions to ENJOIN an officer from FUTURE conduct that VIOLATES THE CONSTITUTION or federal law, EVEN if this will require prospective PAYMENT from the state; and
(ii) Actions for DAMAGE again an officer PERSONALLY

Question 69

11th Amendment - Congress Removes the Immunity

Answer 69

One of two exceptions to the 11th Amendment prohibitions

Congress can REMOVE 11th Amendment immunity as to ACTIONS CREATED UNDER THE 14TH AMENDMENT, but it must be UNMISTAKABLY clear that Congress intended to remove the immunity

Question 70

Every exercise of federal power must be traced to the. . .

Answer 70

Constitution

Question 71

Enumerated and Implied Powers

Answer 71

Congress can exercise powers ENUMERATED in the C, plus all auxiliary powers NECESSARY AND PROPER to carry out all powers vested in the fed. govt.

Question 72

Necessary and Proper “Power”

Answer 72

Congress has the power to make all laws necessary and proper (appropriate) for executing ANY power granted to ANY branch of the fed. govt.

Enumerated/Implied Powers

Question 73

Necessary and Proper Clause

Answer 73

Enables Congress to make the laws required for the exercise of its other powers established by the Constitution

Also called the “Elastic Clause”

Standing alone ≠ support fed. law
Must work in CONJUNCTION with another FEDERAL POWER

(Answer choice that says law is supported by N&P Clause (or is valid under Congress’s power to enact legislation n&p) will be INCORRECT, UNLESS another fed. power is linked to it in that Q)

Question 74

What is the “Elastic Clause?”

Answer 74

Another term for the Necessary and Proper Clause

Question 75

Taxing Power

Answer 75

Congress has power to tax, and most taxes will be upheld if they bear some REASONABLE RELATIONSHIP TO REVENUE PRODUCTION or if Congress has the POWER TO REGULATE the activity taxed

Whether something is a TAX as opposed to a REGULATION depends on its FUNCTION, rather than on a label given by Congress
(Function - i.e.: Does it seek to bring money into federal coffers?)

16th Amendment

Enumerated/Implied Powers

Question 76

Spending Power

Answer 76

Congress may spend to “provide for the common defense and general welfare” - General Welfare Clause

Spending can be for ANY PUBLIC PURPOSE (still limited by BoR)

Enumerated/Implied Powers

Question 77

What type of regulations CANNOT be supported by the General Welfare Clause?

Answer 77

Nonspending regulations

The fed. govt. can tax and SPEND for the general welfare; it CANNOT directly legislate it

∴ NONSPENDING regulations CANNOT be supported by the General Welfare Clause

Question 78

Commerce Power

Answer 78

Congress has power to regulate ALL foreign and interstate commerce

To be within Congress’s power under the [Commerce Clause], a fed. law regulating interstate commerce must:

(i) REGULATE THE CHANNELS of interstate commerce;
(ii) REGULATE THE INSTRUMENTALITIES of interstate commerce and persons and things in interstate commerce; or
(iii) REGULATE ACTIVITIES THAT HAVE A SUBSTANTIAL EFFECT on interstate commerce

Enumerated/Implied Powers

Question 79

Commerce Clause - Intrastate Activity

Answer 79

When Congress attempts to regulate INTRASTATE activity under the third prong of the Commerce Clause (activities that have a substantial effect), the ct. will UPHOLD the regulation IF:
1) It is of ECONOMIC OR COMMERCIAL ACTIVITY (e.g.: growing wheat or medicinal marijuana even for personal consumption)

AND
2) The ct. can conceive of a RATIONAL BASIS on which Congress could conclude that the activity IN AGGREGATE substantially effects interstate commerce

If NONCOMMERCIAL and NONECONOMIC (e.g.: possessing gum in a school zone or gender-motivated violence), ct. will generally NOT aggregate the effects and the regulation will be upheld ONLY if Congress can show a DIRECT SUBSTANTIAL ECONOMIC EFFECT on interstate commerce (usually not able to do)

Question 80

Commerce Clause - Activity v. Inactivity

Answer 80

Commerce Clause gives Congress power ONLY to regulate EXISTING commercial activity

Congress CANNOT COMPEL activity

Question 81

War and Related Powers

Answer 81

C gives Congress power to DECLARE WAR, raise and support ARMIES, and provide and maintain a NAVY

Related powers:

1) Economic Regulation
2) Military Courts and Tribunals

Enumerated/Implied Powers

Question 82

War-Related Powers - Economic Regulation

Answer 82

Economic regulation during war and in the postwar period to REMEDY wartime disruptions has been UPHELD

Question 83

War-Related Powers - Military Courts and Tribunals - Regulations

Answer 83

Congress is authorized to make rules for the government and regulation of ARMED FORCES

1) Judicial Review
2) Enemy Civilians and Soldiers
3) American Soldiers
4) American Civilians

Question 84

War-Related Powers - Military Courts and Tribunals - Judicial Review

Answer 84

Regular federal (or state) ct.s have NO general power to review court-martial proceedings

Question 85

War-Related Powers - Military Courts and Tribunals - Enemy Civilians and Soldiers

Answer 85

Enemy civilians and soldiers MAY be tried by MILITARY CT.S

Congress has no power to DENY HABEAS CORPUS REVIEW to all aliens detained as enemy combatants, ABSENT a meaningful SUBSTITUTE for habeas corpus review

Question 86

War-Related Powers - Military Courts and Tribunals - American Soldiers

Answer 86

Military ct.s have jurisdiction over ALL OFFENSES committed be persons who are MEMBERS of the armed services both at the TIME OF the offense AND when CHARGED for the offense

Question 87

War-Related Powers - Military Courts and Tribunals - American Citizens

Answer 87

American civilians MAY be tried by military ct.s under martial law ONLY if ACTUAL WARFARE forces the fed. ct.s to SHUT DOWN

Question 88

Habeaus Corpus

Answer 88

A writ REQUIRING a person under arrest to be brought before a judge or into court, especially to secure the person’s release, UNLESS lawful grounds are shown for their detention

Question 89

Investigatory Power

Answer 89

Power of Congress to investigate is IMPLIED

Investigation must be expressly or impliedly AUTHORIZED by the appropriate congressional house

Question 90

Property Power

Answer 90

Congress has the power to dispose of and make rules for territories and other properties of the US

No express limit on Congress’s power to DISPOSE of property, federal TAKINGS ([Eminent Domain]) must be for the purpose of effectuating an ENUMERATED power under some other provision of the C

Enumerated/Implied Powers

Question 91

Eminent Domain

Answer 91

Refers to the power of the government to take private property and convert it into public use.

5th Amendment provides that the government may ONLY exercise this power if they provide JUST COMPENSATION to the property owners

Question 92

No Federal Police Power

Answer 92

Congress has NO general police power

BUT has police power type powers over D.C., fed. lands, military bases, and Indian reservations (based on power over the capital and its property owner)

(Answer choice attempts to support fed. action on basis of police power (e.g.: “Congress can constitutionally act under the police power” or “the action is valid under the federal police power”), see if the facts pertain to D.C. or other federal possessions. If not, its an incorrect choice)

Enumerated/Implied Powers

Question 93

Bankruptcy Powers

Answer 93

Congress’s power to establish uniform rules for bankruptcy is NONEXCLUSIVE

States may legislate AS LONG AS their laws do not conflict with federal law

Enumerated/Implied Powers

Question 94

Postal Power

Answer 94

Postal power is EXCLUSIVE

Under the postal power, Congress MAY validly classify and place reasonable restrictions on the use of the mails, but may NOT DEPRIVE any citizen, or group of citizens, of the general mail “privilege”

Enumerated/Implied Powers

Question 95

Power Over Citizenship

Answer 95

Congress may establish uniform rules of NATURALIZATION

This gives Congress plenary (unqualified/absolute) power over aliens

Enumerated/Implied Powers

Question 96

Power Over Citizenship - Exclusion of Aliens

Answer 96

Aliens have NO RIGHT TO ENTER the US and can be refused entry summarily because of their POLITICAL beliefs

RESIDENT ALIENS are entitled to NOTICE AND A HEARING before they can be deported

Question 97

Power Over Citizenship - Naturalization and Denaturalization

Answer 97

Congress has EXCLUSIVE power over naturalization and denaturalization

Congress may NOT TAKE AWAY the citizenship of ANY citizen - native-born or naturalized - WITHOUT HIS CONSENT

Question 98

Admiralty Power

Answer 98

Congress’s admiralty power is PLENARY (unqualified/absolute) and EXCLUSIVE, unless Congress leaves maritime matters to state jurisdiction

Enumerated/Implied Powers

Question 99

Power to Coin Money and Fix Weights and Measures

Answer 99

Congress has the power to COIN MONEY and FIX standards for weights and measurements

Enumerated/Implied Powers

Question 100

Patent/Copyright Power

Answer 100

Congress has the power to control the issuance of PATENTS and COPYRIGHTS

Enumerated/Implied Powers

Question 101

Speech or Debate Clause - Immunity for Federal Legislators

Answer 101

Conduct that occurs in the REGULAR COURSE of the fed. legislative process and the MOTIVATION behind that conduct are IMMUNE from prosecution

Does not cover bribes, speeches outside Congress, or replication in a press release or newsletter of a defamatory statement originally made in Congress

Question 102

Separation of Powers - Bicameralism and Presentment Requirements

Answer 102

To pass a law, Congress must use BICAMERALISM followed by presentment to the President for signature or veto

Attempts without bicameralism and presentment = INVALID

Bicameralism = passage of a bill by BOTH houses of Congress