Constitutional Law: Federalism & Separation of Powers

Question 1

Federal Court Jurisdiction

Answer 1

Article III of the Constitution grants federal courts jurisdiction to hear:

• cases raising a federal question (constitution, law, regulation)
• diversity of state citizenship
• foreign gov’t reps (ambassadors)
• US as a party or state v. state

Question 2

Supreme Court Jurisdiction

Answer 2

The Supreme Court has original (trial) jurisdiction over cases in which a state sues another state.

The Court has discretionary jurisdiction over appeals from the federal courts of appeals, final judgment from highest state courts (where the decision does NOT rest on adequate grounds independent of federal questions), and direct appeals from three-judge federal district courts if provided by statute.

Question 3

Live Case or Controversy Requirement

Answer 3

Article III requires a live case or controversy, which means that parties must have standing, the claims must be ripe for review, and not moot.

Question 4

Standing

Answer 4

Standing requires that plaintiff has or will suffer an actual or imminent injury that is personal, concrete, and particularized, and is redressable by court.

• a generalized interest in having gov’t obey the law is insufficient.
• being a taxpayer does not give one standing against government
• exceptions: parents and associations may sue on behalf of others.

Question 5

Ripeness

Answer 5

Ripeness doctrine limits premature adjudication of abstract disagreements.

Consider whether the plans of both the plaintiff and defendant are finalized enough so that the case is not too speculative or uncertain:

• will pff actually be affected by the law; and
• has def finished deciding what action it will take.

Question 6

Mootness

Answer 6

For federal courts to exercise jurisdiction, there must be a LIVE controversy through every stage of appeal.

Question 7

Mootness: Exceptions

Answer 7

Three situations where court will hear moot cases:

• harm is capable of repetition, but will evade review. Cases where challenged gov’t action is of too short a duration to last through the years of trial and appeal. ex: pregnant women unable to obtain an abortion.
• where there are collateral consequences to judicial decision. Ex: criminal def whose sentence ends before appeal is done. court will hear case because of the future collateral consequences of the conviction.
• prevent government from returning to challenged activity. Where court believes that government cessation of illegal activity is merely a ruse to end the litigation and that the gov’t will return to activity when case is over.

Question 8

Political Questions

Answer 8

The Supreme Court generally will decline to hear cases posing political questions, which should be decided by one of the political branches of government.

Factors for determining whether a political question:

• whether constitution commits the issue to congress or the president.
• whether there is a lack of “judicially manageable standards” for resolving the dispute
• whether the court’s resolution would show a lack of respect for the other branches of gov’t
• whether there is the potential of embarrassment, especially in foreign policy, if court disagrees with congress or president.

Definite political questions: impeachment; procedure to amend constitution; election of congress members; foreign policy and military affairs; guaranty clause.

Question 9

The Powers of Congress

Answer 9

Congress has limited lawmaking authority and must draw power to pass every statute from an express or implied constitutional provision.

• Congress has no general police power to regulate to promote the general welfare.
• Most important powers-regulating interstate commerce; taxing; spending; war and defense; control of federal property and D.C.; enforcement of the Reconstruction Amendments; and conducting investigations.

Question 10

Necessary and Proper Clause

Answer 10

Congress’ enumerated powers are expanded by the NPC, which permits Congress to regulate as necessary to carry out its enumerated powers.

Question 11

The Commerce Clause

Answer 11

The Constitution grants to Congress power to regulate the channels, instrumentalities, and activities which affect interstate commerce.

Question 12

Commerce: Channels of Interstate Commerce

Answer 12

The channels of interstate commerce refers to actual exchanges that cross state lines.

*ex: the lottery case. SC held that statute making it a crime to transport lottery tickets across state lines.

Question 13

Commerce: Instrumentalities of Interstate Commerce

Answer 13

The instrumentalities of interstate commerce are methods of interstate transportation: railroads, buses, etc.

Question 14

Commerce: Substantial Impact on Interstate Commerce

Answer 14

Congress may regulate even local activity in a single state if the activity has a substantial impact on interstate commerce.

*Court has upheld: environmental regulation of a coal mine; criminalization of local loansharking; ban on racial discrimination by hotels and restaurants who use substantial resources that traveled interstate.

Question 15

Commerce: Aggregation Principle

Answer 15

Even where activity is local and has little commerce effect in isolation, Congress may regulate the activity, if in the aggregate, it has a substantial affect on interstate commerce.

*MBE uses the term “inseverable aggregates” to refer to this concept.

Question 16

Limits to the Commerce Power

Answer 16

Local, non-economic, criminal activity is beyond the power of Congress.

*ex: Lopez–simple possession of guns does not substantially impact interstate commerce.

Question 17

Congress’ Tax Power

Answer 17

The Constitution gives Congress broad powers to impose taxes so long as A purpose is to raise revenue and not SOLELY to regulate.

Question 18

Direct v. Indirect Taxes

Answer 18

The Constitution divides taxes into two categories: direct & indirect. Income taxes are direct taxes, and almost all others are indirect.

Equal apportionment of direct taxes among the states is NOT required per the Sixteenth Amendment.

Indirect taxes must be uniform (i.e., the tax must apply to every state in the same basic way. In order to meet the uniformity requirement, (1) the tax must be defined in non-geographic terms, and (2) there must be no motive to harm a particular region of the country.

Question 19

Congress’s Spending Power

Answer 19

The Constitution grants Congress power to spend for the general welfare, although Congress may NOT regulate for the general welfare.

Question 20

Conditional Spending

Answer 20

Congress may condition its spending on the recipients’ (states’) agreement to perform some act. The condition must be (1) unambiguous; and (2) related to the federal interest in the funded program.

Question 21

Enforcement of Reconstruction Amendments: Thirteenth Amendment

Answer 21

The Thirteenth Amendment’s prohibition on slavery extends to private actors; thus, Congress may prohibit private and government actors from engaging in slavery or involuntary servitude.

*ex: Congress can make it a crime for one individual to compel another to work off a debt.

Question 22

Enforcement of Reconstruction Amendments: Fourteenth Amendment

Answer 22

The Fourteenth Amendment permits Congress to enforce the due process and equal protection requirements for state actors. Congress has only the power to remedy violations, not to create new rights. To prove that a law is a remedy, Congress must show (1) a significant history and pattern of unconstitutional action; and (2) the remedy is limited to preventing the proven unconstitutional actions.

*Fourteenth Amendment allows Congress to override the Eleventh Amendment to allow citizens to sue states for money damages.

Question 23

Enforcement of Reconstruction Amendments: Fifteenth Amendment

Answer 23

The Fifteenth Amendment permits Congress to legislate to prevent voting discrimination, both intentional and in effect.

Question 24

Lawmaking: Bicameralism & Presentment

Answer 24

The Constitution requires that both the Senate and the House pass the same bill by majority vote. The bill must then be presented to the President, who may either sign or veto the ENTIRE bill (i.e., no line item veto).

• these requirements only apply to laws, acts with the purpose and effect of altering the legal rights, duties, and relations of persons.
• Congress cannot delegate legislative power to a subset of congress or a committee.

Question 25

Congress’s “War Power”

Answer 25

Congress can declare war, raise and support the armed forces, and establish military courts.

Question 26

Congressional Immunity

Answer 26

The Speech and Debate Clause protects legislators and their aides from liability for anything said on the floor of Congress or in any duties related to lawmaking (committee reports, hearings, etc.)

• does not apply outside of congressional duties (i.e., press conferences, speeches to constituents).
• bars defamation suits
• does NOT bar bribery actions.

Question 27

Presidential Power

Answer 27

Article II of the Constitution governs the authority of the President. The President is the Chief Executive, the Commander in Chief, and the National Spokesperson.

Question 28

Presidential Power: Hiring & Appointing

Answer 28

The President has authority to hire and appoint judges, ambassadors, and principal officers, subject to approval by the Senate.

Question 29

Presidential Power: Principal v. Inferior Officer

Answer 29

Only the President can hire and appoint principal officers, subject to approval by the Senate. A principal officer is one that has no other supervisor than the President, such as cabinet officers.

Congress can grant power to appoint inferior officers to the President alone, the heads of various Departments, or federal judges. Congress itself CANNOT appoint inferior officers. An inferior officer is one who’s work is directed and supervised by some officer beneath the President.

Question 30

Presidential Power: Firing and Removal

Answer 30

The President can fire any officer he appoints for any reason, except Article III judges, who must be impeached.

• Congress can require that the President have due cause to fire officials whose duties are not central to the functioning of the Executive Branch (ex: independent counsel as in Morrison v. Olson)
• Congress itself cannot remove Executive Branch personnel from office except by impeachment

Question 31

Legislative Veto

Answer 31

Congress does not have the power to veto an executive agency’s regulation (all agencies are executive); rather, it must pass a new law reversing the regulation through bicameralism and presentment.

Question 32

Presidential Power: Pardon

Answer 32

The President can unilaterally pardon federal offenders either by a full pardon or a reduced sentence.

Question 33

Commander-in-Chief

Answer 33

The President leads the military in a time of war and can convene and conduct courts-martial.

Question 34

Presidential Power: Foreign Affairs

Answer 34

When the President makes rules that directly affect the relationship between the United States and foreign countries, there is a strong presumption in favor of the constitutionality of such rules.

Question 35

Presidential Power: Treaties

Answer 35

The President has power to make treaties with foreign countries, which become binding when approved by a vote of two-thirds of the Senate.

*both treaties and executive agreements are binding and preempt conflicting state law.

Question 36

Presidential Power: Executive Agreements

Answer 36

Though not mentioned in the constitution, an executive agreement between the President and leaders of other nations without approval of the Senate, are as binding as treaties.

• some executive agreements are approved by majority vote of the house and senate (NAFTA).
• both treaties and executive agreements are binding and preempt conflicting state law.

Question 37

Executive Privilege

Answer 37

The President has a qualified right to keep confidential information secret. There is a presumption in favor of secrecy, and there must be a very strong need for the information to break the privilege.

*ex: SC’s order that Nixon turn over WH tapes. The criminal investigation outweighed Nixon’s mere generalized interest in confidentiality.

Question 38

Presidential Immunity

Answer 38

The President enjoys absolute immunity from monetary damages for constitutional statutory violations committed while performing official acts.

• the President has NO immunity for conduct occurring before she took office.
• high-ranking aides/officials have only qualified or “good faith” immunity and are liable for acts that she knows or should know that actions taken in her official capacity violate the constitutional rights of another.

Question 39

Impeachment

Answer 39

The President, Vice President, federal judges, and all other civil officers of the US can be removed by impeachment and conviction. The House impeaches and the Senate conducts the trial and can only convict with a two-thirds vote.

• when the President is impeached, the Chief Justice presides over the trial.
• impeachment can be based upon treason, bribery, or other high crimes and misdemeanors.

Question 40

Supremacy Clause

Answer 40

Under the Supremacy Clause, a state law is preempted if it conflicts with federal laws, regulations, or treaties.

Question 41

Preemption

Answer 41

Preemption of state law by federal law may be express (“No state shall….) or implied (conflict between federal and state law).

• state law is constitutional if is supplements but does not conflict with federal law.
• factors considered in preemption analysis: (1) whether area is one typically the province of state regulation; (2) the comprehensiveness of the congressional scheme; (3) the federal interest in the field regulation; and (4) the need for a uniform system of national regulation.

Question 42

Eleventh Amendment

Answer 42

The Eleventh Amendment immunizes states from suit for money damages without their consent.

• Congress CAN permit suits for money damages against states for violations of the Fourteenth Amendment.
• Injunctions against states are okay.
• suit against counties, cities, municipalities are permitted.

Question 43

Dormant Commerce Clause

Answer 43

Under the Dormant Commerce Clause, state and local laws are unconstitutional if they place an undue burden on interstate commerce EITHER by (1) geographically discriminating against out-of-state business activity; OR (2) placing a substantial burden on interstate commerce.

Question 44

Dormant Commerce Clause Analysis

Answer 44

Step One: Does the state law impact interstate commerce in any way? If yes, proceed.

Step Two: Does the state law discriminate against interstate commerce based on geography, typically against out of state business activity? If yes, the state must show that (1) the law serves an important gov’t interest; AND (2) that no non-discriminatory alternative was available.

If no, proceed.

Step Three: Does the state law excessively, unduly, or substantially burden interstate commerce? If yes, state must show that law serves an important local interest.

If no, there is no DCC violation.

Question 45

Dormant Commerce Clause Analysis

Answer 45

The most common justification (i.e., gov’t interest) for discrimination against other states is health and safety.

• ex: SC upheld regulation of truck width in South Carolina, which often prevented trucks from other states from passing on SC’s roads. Court found that safety was sufficient to justify effect on interstate commerce.
• SC upheld a main prohibition on the importation of live baitfish because of the health interest in avoiding the introduction of parasites.

Question 46

Dormant Commerce Clause Exception: Market Participant Doctrine

Answer 46

The market participant doctrine permits the state to discriminate based on geography–against nonresidents–in running ITS OWN business. As a participant in the marketplace, the state acts like a private business owner.

• ex: a state-run cement plant, during a period of shortage, refused to sell to nonresidents. No violation.
• ex: state university offers lower tuition to in-state residents. No violation.

Question 47

Dormant Commerce Clause Exception: Congressional Consent

Answer 47

Congress can authorize state discrimination.

*ex: federal law permits state ban of out of state nuclear waste