Constitutional Law I

Question 1

Origins of judicial review

Answer 1

i. Marbury v. Madison
1. Congress may not increase jurisdiction of federal courts
2. Court has power of judicial review over:
a. Legislative action
b. Executive action
ii. This case established power of judicial review and set precedent that Art. III is ceiling for the original jurisdiction of the USSC
iii. Congress cannot increase the jurisdiction of the federal courts

Question 2

Methods of constitutional interpretation

Answer 2

i. Text
ii. History
iii. Structure
iv. Precedent
v. Policy

Question 3

Judiciability limits

Answer 3

i. No advisory opinions
1. Only “cases and controversies” per Art. III
ii. Standing
1. Constitutional requirements
a. Injury-in-fact
i. Personal, distinct, concrete (no speculative)
b. Causation
i. Fairly traceable to defendant’s conduct
c. Redressability
i. Likely with court order
2. Prudential requirements
a. No third-party claims
i. Unless close relationship or person injured is for some reason unable to bring claim
b. No generalized grievances
i. Being a citizen does not give individuals standing to sue government for failure to follow the law
iii. Ripeness
1. No claims that ask for judgment before enforcement
a. Exceptions
i. If enforcement is inevitable then no need to wait or
ii. If there is a “credible threat of enforcement”
iv. No mootness
1. Plaintiff must present a “live” controversy
a. Exceptions
i. Repetition
1. Capable of repetition yet evading review
ii. Cessation
1. Voluntary cessation by defendant that could be resumed
iii. Class action
1. If claim of named plaintiff in class action is moot, claim of class may continue
v. No political questions
1. Issues constitutionally designated to political branches of government are inappropriate for judicial review

Question 4

Other judiciability limits

Answer 4

1. Avoidance
   a. Courts avoid constitutional issues
2. Abstention
   a. Abstain if state law unsettled
3. Adequate and independent state grounds
   a. Courts will not review if state court decision rests on adequate and independent state grounds

Question 5

Final judgments doctrine

Answer 5

i. Congress cannot order courts to reopen cases

Question 6

Necessary and proper

Answer 6

1. Ends legitimate
2. Means rationally related

Question 7

Commerce

Answer 7

i. Step one
1. Activity
2. Not inactivity
ii. Step two
1. If economic (aggregation)
a. Channels
b. Instrumentalities
c. Activity substantially affecting interstate commerce
i. Congress must have:
1. Rational basis
2. Substantial effect
3. Interstate commerce
iii. Step three
1. If noneconomic (no aggregation)
a. Activity substantially affecting interstate commerce
i. Factors
1. Regulatory scheme
2. Jurisdictional element
3. Legislative findings
4. Too attenuated
5. Federalism

Question 8

Taxing/spending

Answer 8

i. Generally allowed as long as:
1. Rational basis for promoting
2. General welfare
ii. If condition on spending, tax must:
1. Promote general welfare
2. Unambiguous
3. Germane
4. Not otherwise violate
a. 10A

Question 9

Section 5, Fourteenth Amednment

Answer 9

i. Liberties
1. Equal protection
2. Due process
ii. Enforcement power
1. Congress has authority to:
a. Remedy or deter
b. Likely constitutional violation
iii. Two tests for enforcement power
1. City of Boerne v. Flores
a. Congruent
i. Related in kind
b. Proportional
i. Related in degree
2. Katzenbach v. Morgan & Morgan
a. Rational basis

Question 10

Tenth Amendment

Answer 10

1. Commerce
   a. No commandeering state legislative or executive branch
   b. Unless market participant
2. Spending
   a. No coercive conditions
   i. Not coercive
3. 5% highway budget
   ii. Too coercive
4. 100% Medicare budget (or 10% of state budget)

Question 11

Eleventh Amendment

Answer 11

1. No suing states
2. Exceptions
   a. Consent
   b. State officials
   c. Express override with S514A authority (and Art. I authority if regulating private actors)

Question 12

Executive power (express)

Answer 12

a. Art. II
i. General power (not “herein granted”)
1. Executive power “vested” in President
2. President must “take care” that laws are faithfully executed
ii. Enumerated power
1. Commander in chief

Question 13

Executive power (implied)

Answer 13

i. Youngstown Sheet & Tube Co. v. Sawyer
1. President with Congress
a. Court defers
2. President alone
a. Circumstantial
3. President without Congress
a. Strict scrutiny
i. President’s power must be:
1. Exclusive
2. Conclusive
a. I.e., enumerated
b. Court will look to text, history, precedent, and structure to determine if president has power

Question 14

Executive privilege

Answer 14

i. Official business
1. Balance
a. Need for confidentiality
b. Need for disclosure
ii. Personal business while president
1. State criminal matter
a. Lower separation of powers concern
b. Less privilege
2. Congressional matter
a. More separation of powers concern
b. Factors
i. Avoid confrontation
ii. No broader than necessary
iii. Valid legislative purpose
iv. Minimize burdens on president
iii. Personal business post-presidency
1. Some protection but greatly diminished

Question 15

Presidential immunity

Answer 15

i. No absolute immunity
1. Immune from civil lawsuits when operating in official capacity
2. Not immune to causes of action brought before presidency

Question 16

Foreign affairs

Answer 16

i. President shares treaty and war powers with Congress
ii. However, he has exclusive power over most foreign affairs
iii. Even if defying Act of Congress
1. Exception
a. Detainment without due process

Question 17

Impeachment

Answer 17

i. Expressed
1. House impeaches (simple majority)
2. Senate convicts (2/3)
ii. Implied
1. Grounds for impeachment
a. What are “high crimes and misdemeanors”?
b. Nonjusticiable political question
i. Court defers to House

Question 18

Nondelegation doctrine

Answer 18

1. Congress must provide “intelligible principle”
   a. Exception
   i. Major questions doctrine

Question 19

Legislative veto

Answer 19

1. Unconstitutional
   a. Bypasses:
   i. Bicameralism
   ii. Presentment

Question 20

Legislative act

Answer 20

2. Action is “legislative” if:
   a. Alters the legal rights, duties, and relations of persons outside the legislative branch

Question 21

Line-item veto

Answer 21

1. Unconstitutional
   a. Bypasses:
   i. Bicameralism
   ii. Presentment
   b. Even if Congress and President agree, they cannot act outside scope of Constitution

Question 22

Appointment

Answer 22

a. Principal officers
i. Appointed by Congress
b. Inferior officers
i. Cannot be appointed by Congress
1. Factors
a. Subject to removal by department official
b. Limited scope of duties
c. Not a policymaker
d. Limited tenure

Question 23

Removal

Answer 23

a. President can removal executive officer
i. Unless limited by statute
b. Congress, by statute, may limit removal power over:
i. Multi-member groups of experts that are nonpartisan and serve legislative and judicial functions; or
ii. Inferior officers with limited jurisdiction, limited tenure, and lacked policymaking or administrative authority

Question 24

Preemption

Answer 24

i. Supremacy clause
1. If there is a conflict between federal and state law, federal law controls
ii. Types of preemption
1. Express
a. Expressly preempted by Congress
b. Implied by obstacle/frustration of purpose
i. If fed and state statute purposes are same
c. Implied by occupation of field
i. If federal legislation occupies the entire field, leaving no room for the states

Question 25

Dormant commerce clause

Answer 25

i. Economic protectionism 1. Protectionist state laws are per se invalid ii. Two tiers 1. Discriminatory a. Strict scrutiny i. If state discriminating against out of staters, burden on state to show: 1. Legitimate local purpose and 2. Narrowly tailored or least restrictive means 2. Nondiscriminatory a. Undue burden i. If non-discriminatory, then court will uphold law unless challenger shows burdens outweigh benefits iv. Exceptions 1. Congressional approval 2. Market participant

Question 26

Types of discrimination (dormant commerce clause)

Answer 26

1. On its face 2. By its effects 3. By its purpose

Question 27

Privileges and immunities

Answer 27

i. Art. IV, section 2 1. Fundamental right to move around the country in search of a livelihood a. Livelihood i. Lawyering b. Not a livelihood i. Hunting ii. Authority 1. Substantiality test a. Discrimination will be allowed only if it is substantially related to achieving a substantial state interest

Question 28

Frontiero factors

Answer 28

i. History of discrimination ii. Relative political powerlessness iii. Immutability of trait iv. Irrelevance of trait to individuality or individual abilities

Question 29

Carolene Products

Answer 29

b. Carolene Products i. Rational basis unless Court suspicious government is discriminating against “discrete and insular minorities” 1. Discrete a. Identifiable 2. Insular a. Marginalized

Question 30

Facially neutral (equal protection)

Answer 30

1. When discrimination is facially neutral a. Apply “disparate impact” i. Without intent or purpose 1. Rational basis ii. With intent 1. Corresponding tier of scrutiny 2. Discriminatory intent must be: a. “Because of” disparate impact b. Not “in spite of”

Question 31

Types of evidence showing intent (Arlington Heights)

Answer 31

a. Impact of official action b. Otherwise unexplainable pattern c. Historical background d. Sequence of events leading up to decision e. Procedural or substantive changes f. Legislative or administrative record g. Testimony

Question 32

Proving intent (disparate impact)

Answer 32

4. Intent must be: a. Strict i. Actual b. Intermediate i. Actual ii. Exceedingly convincing justification 1. Sex discrimination only c. Rational basis i. Any conceivable

Question 33

Tiers of scrutiny

Answer 33

1. Fully suspect class (race) a. Strict scrutiny i. Ends compelling ii. Means necessary/narrowly tailored 2. Quasi-suspect class (sex/gender) a. Intermediate i. Ends important ii. Means substantially related 3. Non-suspect class (age, income, or disability) a. Rational basis i. Ends legitimate ii. Means rationally related

Question 34

Rational basis "with bite"

Answer 34

4. Rational basis “with bite” a. No conceivably legitimate ends b. Only justification is animus c. Unconstitutional

Question 35

Compelling government interest

Answer 35

1. Diverse student body (effectively overruled) 2. Remedying past government discrimination 3. Avoiding race-based violence in prisons

Question 36

Not a compelling government interest

Answer 36

1. Diverse role models 2. Quotas 3. Stereotypes 4. Quantification 5. Racial balancing 6. Saving money

Question 37

Enforcement power (S514A)

Answer 37

1. Congress has authority under 14A (states) and 5A (feds) a. City of Boerne i. Remedy or deter ii. Likely constitutional violation iii. By congruent and proportional means iv. However, it must be “likely” violation 1. Intermediate or strict scrutiny is “likely” constitutional violation 2. If rational basis, proof of widespread pattern or practice of irrational discrimination against group constitutes “likely” violation

Question 38

Race discrimination (example)

Answer 38

When discrimination is facial, intentional, or express; invidious (harmful) or benign (affirmative action) a. Apply strict scrutiny i. Ends 1. Compelling government interest ii. Means 1. Necessary or narrowly tailored

Question 39

Incorporation doctrine

Answer 39

1. Some but not all of Bill of Rights 2. Incorporated under due process “liberty” iii. Test for incorporation 1. Whether the right is fundamental to scheme of ordered liberty or 2. Deeply rooted in history and tradition

Question 40

State action doctrine

Answer 40

1. Civil Rights Cases a. 14A applies to government action b. 14A does not apply to private action 2. Exceptions a. Public function b. Entanglement