Constitutional Law - Judicial Review, Separation of Powers, Federalism

Question 1

Division of Federal Courts

Answer 1

Article III Courts
* Created by Constitution
* Judges appointed for life for good behavior
* Judges’ salaries guaranteed
U.S. Supreme Court, U.S. Court of Appeals, U.S. District Courts

Article I Courts
* Created by Congress
* Congress can choose length of judges’ terms
* Judges’ salaries not guaranteed
Bankruptcy courts, Immigration Courts

Question 2

Limitation on Jurisdiction

Answer 2

Article III limits jurisdiction of federal courts to all “cases and controversies”:

1. Arising under the Constitution, federal laws, or treatises;
2. Between two or more states;
3. Between citizens of different states;
4. Between a state and citizens of foreign states;
5. Admiral and Maritime Cases; AND
6. Cases where the U.S. is a party

Question 3

The Eleventh Amendment

Answer 3

A private individual cannot sue a state for money damages or for injunctive relief in federal / another state court…

Without consent of the state OR congress.

A private individual must have consent of the state or of congress to sue a state

Question 4

Political Question Doctrine

Answer 4

Federal courts do not decide political questions, including (SCREAM):
1. Seating of delegates at a national political convention;
2. Challenges to impeachment and removal procedures;
3. Republican form of government clause issues
4. The election and qualifications of Congress
5. Procedures to amend the Constitution, AND
6. Military or foreign affairs decisions by the President

Question 5

Standing Requirements

Answer 5

1. The injury must be actual or imminent, not hypothetical
2. The injury must be fairly traceable to Defendant’s actions; and
3. A favorable decision would eliminate the harm or remedy the injury

Question 6

Mootness

Answer 6

A case should not be decided once it is moot because there is no “case or controversy”

Question 7

Evading Mootness

Answer 7

1. [Wrongs] Capable of Repetition to that particular plaintiff
2. Class Action and at least one member of a class is still affected
3. Collateral Consequences that will still affect the person
4. Ceased Activity Voluntarily but could easily start again

Question 8

Ripeness

Answer 8

A plaintiff may not sue unless a real injury has already resulted or there is a strong likelihood of an actual injury.

Question 9

Third Party Standing Requirements

Answer 9

1. A special relationship AND
2. The third party does not want to or cannot raise his own rights

Question 10

Organizational Standing Requirements

Answer 10

1. A member or members have standing
2. The member’s injury is related to the organization’s purpose; AND
3. The members are not required to participate in the lawsuit

Question 11

Taxpayer Standing

Answer 11

Taxpayers lack standing to challenge tax dollar spending unless
1. The law was enacted under Congress’ taxing and spending powers, AND
2. Plaintiff alleges Congress exceeded a specific constitutional limit.

Question 12

Supreme Court Jurisdiction

Answer 12

Original Jurisdiction
Cases involving APS:
* Ambassadors
* Public Ministers, Consults
* State is a party

Original and Exclusive Jurisdiction
* Lawsuits between states

Question 13

Supreme Court Review of Federal Decisions Made by State Courts

( Discretionary Appeal )

Answer 13

The Supreme Court can review a federal decision made by a state court if:
1. It involves a matter of federal law
2. It is a final judgement
3. From the highest court authorized to hear the case, AND
4. There are no adequate and independent state grounds on which the decision is based

Question 14

War & Foreign Affairs Powers
of the Executive (the Presidet)

Answer 14

• Conduct operations once war is declared and respond to attacks
• Enter into treaties or executive agreements

Question 14

Steps to Analyze:

Can the Federal Court Hear the Case?

Answer 14

1. Is the case one that the Constitution permits the federal court to hear?
2. Does the Eleventh Amendment allow the case or is there consent by the state or by Congress?
3. Is the case not pending in state court? or if it is, is there a proven harassment or prosecution taken in bad faith?
4. Is the case not a policial question?
5. Does Plaintiff have standing?
6. Is the case ripe?
7. Is the case not moot?

Question 15

Congress needs
____ and ____
to pass laws. Explain.

Answer 15

Congress needs bicameralism and presentment to pass laws.

• Bicameralism: Majority vote in both houses
• Presentment: Presented to President to sign or veto; 2/3 vote in each house of Congress can override President’s veto.

Question 16

Congress’ Taxing Power

Answer 16

1. The tax has a reasonable relationship to revenue, and
2. Congress has the power to regulate the taxed activity

Question 17

Condition on Receipt of Federal Funds by a State

Answer 17

A condition on receipt of federal fund must:
1. Serve the general welfare
2. Be unambiguous
3. Relate to a legitimate federal interest
4. Not be unduly coercive, AND
5. Not require states to violate individual liberties

Question 18

Congress’ Commerce Power

Answer 18

Under its commerce power, Congress can regulate:
1. Anything economic, AND
2. Anything noneconomic that “substantially affects” interstate commerce

Example: Congress cannot mandate state law enforcement to enforce federal drug laws and report to the federal government – because Congress cannot “commandeer” state authorities

Question 19

Congress’
Enforcement Powers

Answer 19

Congress may:
* Enforce the 13th, 14th, 15th Amendments with “congruent and proportional” legislation

Congress may NOT:
* Expand the 13, 14, 15 Am’ts OR
* Create new rights

Question 20

Limitations on Congress’ Power to Delegate Powers

Answer 20

• The power cannot be uniquely delegated to Congress by the Constitution
• There must be intelligible standards
• There must not be a separation of powers problem (a legislative veto is unconstitutional - Congress tried to overturn executive action without bicameralism or presentment; requiring Executive or agency to get Congress’ approval on the action is unconstitutional)

Question 21

Impeachment Powers

Answer 21

• For treason, bribery, and high crimes and misdemeanors
• Requires majority vote by House to impeach
• Requires 2/3 Senate vote for conviction

Question 22

Veto Power

Answer 22

The President has 10 days to sign or veto a law.

If the President fails to sign or veto the bill in 10 days, then
* the bill passes by default if Congress is IN session
* the bill is automatically vetoed if Congress is NOT in session

Question 23

Youngstown Test

Enforcement of Laws

Answer 23

The president must “take care” that the laws are faithfully executed. As chief executive, the President may not act against the express will of Congress.

• President acts with express or implied authority: President’s action valid
• Congress is Silent: President’s action valid, if it does not take over the power of another branch or prevent it from carrying out its tasks
• President acts against Congress’ express will: President’s action invalid

Question 24

Appointment Power

Answer 24

President may appoint
* Principal officers: with advice and concent of the Senate
* Inferior officers: if Congress vests appointment in the President

Question 25

Removal Power

Answer 25

Congress has NOT limited removal:
* President may remove principal officers at will, without cause

Congress HAS limited removal:
* President shows “good cause”: valid
* President does NOT show “good cause”: invalid removal

Question 26

Pardon Power

Answer 26

• President MAY pardon federal crimes
• President MAY NOT pardon state crimes
• President MAY NOT undo an impeachment

Question 27

War Powers

Answer 27

President may:
* Conduct military operations once war is declared, AND
* Respond to attacks or take emergency actions

President may NOT:
* Declare war

Question 28

Treaty

Definition & Heirarchy

Answer 28

A treaty is an agreement between countries. A treaty requires 2/3 Senate approval.

A treaty will prevail over an earlier federal statute and always prevails over state law. A treaty will not prevail over the Constituton. If it conflicts, the treaty is invalid.

Constitution >
Treaty / Federal Statute >
State Law

Question 29

Executive Agreement

Definition & Heirarchy

Answer 29

An executive agreement is an agreement between the President and the heads of foreign countries. These need not be ratified by the senate. It is effective when it is signed by the President and the head of the foreign country.

Constitution >
Federal Statute >
Executive Agreement >
State Law

Question 30

Federal Preemption

Answer 30

Federal preemption occurs when
* there is an actual conflict between federal and state law,
* State law prevents achievement of a federal objective, OR
* Congress has passed such extensive regulation that it means to “occupy the field”

Question 31

Privileges and Immunities Clause of Article IV

Answer 31

Under the Privileges and Immunities Clause, states may not discriminate against:
* Out of state
* Citizens
* with respect to fundamental rights
* unless there is “substantial justification” and there are no less restrictive means.

Question 32

Dormant Commerce Clause:
Unreasonable Burdens

Answer 32

Even is a state law is nondiscriminatory on its face but it still burdens interstate commerce, it is valid ONLY IF
* it serves an important state interest AND
* does NOT impose an unreasonable burden on interstate commerce.

balancing test that weighs in favor of state interest

Question 33

State Taxation on Interstate Commerce

Answer 33

If the tax does not expressly discriminate against interstate commerce:
1. Is there a substantial nexus between the taxpayer and the state?
2. Is the tax fairly apportioned?
3. Is there a fair relationship between the tax and service or benefits provided by the state?

Question 33

Dormant Commerce Clause Analysis

Answer 33

1. Did the** state pass a law**?
2. Is the state acting as a regulator or market participant? Market participant: No DCC issue.
3. Does the law discriminate against interstate commerce (treating out of state citizens differently) or does it merely burden interstate commerce (treat in state and out of state citizens the same?

Discriminates Interstate Commerce: Apply Strict Scrutiny - law will be struck down UNLESS the state can show that
* the law was NECESSARY
* to serve a COMPELLING STATE INTEREST and that there is
* NO reasonable nondiscriminatory ALTERNATIVE

Merely Burdens Interstate Commerce: Use Balancing Test. Weigh the effects of the law on interstate commerce against the state’s interest served by the law.

Question 33

Exceptions to the Dormant Commerce Clause

Answer 33

1. Congress passes the law - Congress can pass a regulation that would otherwise be impermissible if the state passed the law.
2. Market participate doctrine - If the state is acting not as a regulator but instead as a market participant or business, the Dormant Commerce Clause does not apply and the state can do what it wants.
3. Traditional government function - laws that are looked at more favorably are laws that favor a government entity performing traditional activities (such as waste disposal).

Question 33

When There Is State Action

Answer 33

• A state passes a law
• A private actor performs a traditional and exclusive government function
• A state closely controls private action

Question 34

Full Faith and Credit Clause

States must enforce judgments of other states IF

Answer 34

A state must enforce another state’s judgment IF:
1. The court rendering the judgment had jurisdiction;
2. The judgment is on the merits; and
3. The judgment is final

Question 35

Retroactive Legislation

The Contracts Clause

NOTE: USUALLY THE WRONG ANSWER

Answer 35

A law violates the Contracts Clause if it:
1. Substantially impairs
2. Prexisting contracts
3. Unless the law serves an important and legitimate public interest, AND
4. The law is reasonable and narrowly tailored to promoting that interest

Question 36

Retroactive Legislation

Ex Post Facto Laws

Answer 36

1. Retroactivly alters the
2. Criminal Law
3. In a substantially prejudicial manner
4. For the purpose of punishing a person for some past activity

Question 37

Retroactive Legislation

Bills of Attainder

Answer 37

1. Specifically identifies people to be punished
2. Imposes punishment
3. Does so without a judicial trial