Essay Topics Flashcards
1
Q
Spending Clause
A
- Yes/no constitutional authority under spending powers
- Article 1 section 8 = taxing and spending clause
- Dole five factors = general welfare, clear condition, related to federal program, no independent bar to constitutionality, coercion
> General welfare = public purpose - Dole, Sebelius
> Clear = not ambiguous - Dole
> Federal interest = relationship bt condition and federal interest not too attenuated - Dole
> Independent bar = no constitutional provision bars condition - Dole, Sebelius
> Coercion = pressure turns into compulsion - more like Dole or Sebelius? - Necessary and proper sprinkle for CC too
> Article 1 section 8 = necessary and property to regulate commerce
> McCulloch = convenient, useful
> Comstock = must be tied to an enumerated power
> Sebelius = individual health mandate was NOT valid exercise of enumerated power (no genuine choice)
2
Q
Executive Authority
A
- President did/did not violate separation of powers and went beyond his authority
- Chadha = separation of powers principle
Constitution
> Emergency powers
> The Constitution vests in the President the “executive Power.” (Art. II Sec. 1).
> It states that “he shall take Care that the Laws be faithfully executed.” (Art. II Sec. 3).
> The President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties”. Need ⅔ Senate to approve. (Art. II Sec 2).
> “shall be Commander in Chief … of the [military]” (Art. II Sec 2). Provides civilian control over military and defines ultimate control in one actor (the president)
> The Reception Clause states that “he shall receive Ambassadors and other public Ministers.” (Art. II Sec 3).
> Presentment Clause states that a bill from Congress must be presented to the president before it becomes law. Also signed into law. Article I, Section 7, but the President has POWER to veto. - Youngstown
> High (President is acting with express/implied authority from Congress; President can exercise own power legitimately delegated by Congress without intervention) = Dames and Moore, Curtiss-Wright, Hawaii (exception = Clinton)
> Twilight (President is acting and Congress is silent; President can exercise own power, but where Congress and President have concurrent authority, a resolution will depend on situation, not law; case-by-case analysis)
> Low (President is acting and there is express or implied resistance from Congress; presidential action is valid only if there is a remainder of executive power after the subtraction of such powers as Congress may have over the issue) = Youngstown (exception = Zivotofsky) - Separation of powers challenge
> Is President trying to defy Congress’s Appropriations (where money will be appropriated) and Spending Clause powers?
> Is he not abiding by the Presentment Clause (bicameralism)?
> Is he trying to coerce the states to comply with his executive order?
> Can you limit his conduct by voting him out or allowing Congress to impeach him?
3
Q
Constitutional Standing
A
- Yes/no party has constitutional standing
- Allen = Separation of powers doctrine
- Article III = case or controversy
- Lujan = injury to plaintiff, causation by defendant, redressability by court
> Injury = concrete, particularized, actual/imminent - Duke Power, Massachusetts, Lujan, Los Angeles, Allen, Clapper
> Causation = fairly traceable to defendant - Duke Power, Massachusetts, Simon, Allen
> Redressability = effective relief, likely that a favorable decision will redress injury - Duke Power, Massachusetts, Linda, Warth
4
Q
Prudential Standing
A
- Yes/no party has prudential standing
- 3rd party standing - Singleton, Barrow, Craig, Gilmore, Elk Grove
> Relationship of litigant to person whose right litigant seeks to assert
> Ability of 3rd party to assert their own right - General grievance = prevents individuals from suing if their only injury is as a citizen or a taxpayer - Richardson
> Exception from Flast = establishment clause + spending clause power
5
Q
Ripeness
A
- Issue is ripe/not ripe and can/cannot be heard in court
- Fitness of the issue for judicial decision
- Hardship to the parties of withholding court consideration
- Cases = Abbott, Poe, Trump
6
Q
Mootness
A
- Issue is not moot/moot and can/cannot be heard in court
- Continuing controversy (come up again)
- Controversy likely to repeat but timing evades review
- Cases = Moore, Roe, DeFunis, Friends of the Earth, US Parole Commission, New York State Rifle & Pistol
7
Q
Anti-Commandeering Principle
A
- Yes/no violation of anti-commandeering doctrine
- McCulloch = federalism principle
- Article 1, section 10 = limits powers of the states
- Tenth amendments = powers not delegated to fed gov reserved to states
- Reno = anti-commandeering prohibits fed gov from compelling a state legislature to enact a law or a state official to implement a fed program
- Executive - Printz
- Legislative - New York, Murphy
- US government = distinguish from Printz (state actors) and use Condon (broad application of state and local individuals)
- Counter perspective = compare to Printz (use of state personnel and a lack of regulation) and NY (using state personnel to implement federal regulation imposes on states a burden that should fall on federal agents), distinguish from Condon
8
Q
Spending Clause Cases
A
Dole and Sebelius gives 5 factors
Spending okay
- Dole - not too attenuated
Spending bad
- Sebelius - coercive
N&P
- McCulloch - convenient, useful
- Comstock - tied to enumerated power
- Sebelius - need genuine choice
9
Q
Executive Authority Cases
A
Youngstown
High
- Dames and Moore (Iran Claims)
- Curtiss-Wright (sole organ**)
- Hawaii (Muslim ban - nat sec lens + FA)
- Clinton (Line Item Veto)
Twilight
- Chevron (“stationary source” express statutory gap)
Low
- Youngstown (No take private prop)
- Zivotofsky (exception for passports)
Other Congress rel. cases
Chadha (student visa)
- one-house veto of exec action violates presentment and bicameralism
Gundy (sex predators case)
- nondelegation case
War Powers
- 9/11
- Korea, etc.
- Ukraine sanctions
10
Q
Constitutional Standing Cases
A
Broad
- Allen - Sep of Powers
- Lujan - ICR
Yes
- Duke Power (build nuclear reactor)
- MA v. EPA (rising tides)
No
- Lujan (I - wildlife preservation)
- City of LA (I - illegal choke - no future injury)
- Allen (segregation of schools)
- Clapper (C - spy on foreign peep)
- Simon v. EKWRO (C - Indigent healthcare)
- Linda v. Richard (redress - bastard kids)
- Warth v. Seldin (redress - apt zoning)
11
Q
Third Party Standing Cases
A
Yes
- Singleton v. Wulff (abortion doctors)
- yes close relatioship, and 3rd party unlikely to assert own right
- Barrow v. Jackson (racially restriv cov)
No
- Gilmore v. Utah (stay execut plz)
- Son waived his own right
- Elk Grove v. Newdow (Pledge of Alleg)
- not his legal custody daughter
12
Q
General Grievance Cases
A
No general grievance
- US v. Richardson (CIA reporting)
Yes
- Flast v. Cohen (fund to religious schools)
- establishment clause do not have personal injury, so need general case for court to hear
13
Q
Ripeness Cases
A
Yes Ripe
- Abbott Labs v. Gardner (med labels)
No
- Poe v. Ullman (contraceptive, sue before)
- Trump v. NY (census case)
14
Q
Mootness Cases
A
Not moot
- Moor v. Ogilvie (IL election - future elections are important)
- Roe v. Wade (9 months cannot be bar)
Moot
- DeFunis v. Odegaard (white law school guy - already a 3L)
- Friends of the Earth v. Laidlaw (mercury discharge. Laid out 3 exceptions
- wrongs capable of rep, but evade review
- class actions
- voluntary cessation
- US Parole v. Geraghty (class action)
- NY Rifle (NY changed law already)
15
Q
Anti-Commandeering Cases
A
Broad
- McCulloch - supremacy
- NY and Printz - Fed cannot control
- Reno - Anti-C doctrine (DMV case)
Executive
- Printz (fed background - accountability is important)
Legislative
- NY v. US (toxic waste - no choice)
- Murphy v. NCAA (sports gamble - congress cannot force if not going to regulate)
- Reno (DMV) (not commanderer)
