Federal Powers

Question 1

What is justiciability requirement

Answer 1

A case must be justiciable to be heard in fed. court, which means there must be a case or controversy presented

Question 2

How do you determine the existence of Justiciability

Answer 2

To determine whether a case or controversy exists, the case must satisfy requirements for:

1. Standing (P must have the standing to sue)
2. Ripeness (the case must be not filed, not too late, not too soon)
3. Mootness
4. Political question doctrine
   
   • ​No advisory decision
   • Opinion on foreign policy

Question 3

What is standing? requirements?

Answer 3

A party must have a concrete interest in the outcome of a claim to have the claim heard in fed. court

Requirements:

1. Injury - P must have suffered some injury or show a likelihood of imminent injury
2. Causation There must be a causal connection between the injury and the conduct complained of
3. Redressability - the court can grant a proper remedy.

Question 4

Can you sue the government to act in a particular way?

Answer 4

No generalized grievances - P cannot sue solely as a U.S. citizen or taxpayer to compel the govt. to act in a particular way

• Exception – taxpayers have standing to challenge specific govt. expenditures pursuant to the Establishment Clause

Question 5

Can Congress confer standing?

Answer 5

Congress - cannot automatically confer standing, but can create new rights that, if violated, may give rise to standing

• e.g. discrimination acts create cause for action

Question 6

Third-Party Standing requirements

Answer 6

Third-party standing - a P with standing may assert the rights of a third party where P has suffered injury and either:

1. P’s injury adversely affects his relationship with third parties
   
   • E.g., doctor could assert patients’ rights in challenging abortion restrictions; bar owner could assert underage males’ rights in challenging ban on beer sales to underage males
2. Injured party is unlikely or unable to assert his own rights
   
   • E.g., association could challenge law requiring disclosure of member identities b/ c members could not challenge law directly without revealing their identities

Question 7

Can an organization have standing? for itself? for their members (State requirements)?

Answer 7

Organizational standing - organizations always have standing if the injury is to the organization itself

• Suits on behalf of members - organizations may sue on members’ behalf if:

1. Members would have standing to sue individually;
2. Injury is related to the organization’s purpose; and
3. Neither claim nor relief requires participation of individual members

Question 8

Ripeness and Mootness requirement (for being heard in fed court)

Answer 8

To be justiciable in fed. court, a case must contain a ripe claim and a live controversy (i.e., it cannot be moot)

Ripeness – P has been harmed or suffers an immediate threat of harm

• P is not entitled to review of a law before it has been enforced

Mootness - a live controversy must exist at all stages of review

• If circumstances causing P’s harm cease to exist after P files suit, the case must be dismissed as moot

Question 9

Exception to Ripeness and Mootness

Answer 9

Exceptions;

1. Wrongs capable of repetition but evading review Arises where injury ceases before complete litigation of the claim, but P can reasonably expect to be subject to the same harm in the future
   
   • E.g., a disabled bar examinee seeks an injunction b/c of denied accommodations and can’t take the exam b/c it occurs before his case is heard; not moot b/c he will need to take the bar exam again
2. Voluntary cessation by D- D has ceased the acts giving rise to P’s suit, but can resume them at any time
3. Class action lawsuits - only one member of the class must have an ongoing injury

Question 10

Political Question Doctrine to determine justiciability

Answer 10

Fed. courts will not adjudicate certain constitutional issues that constitute political questions.

Political questions involve issues that:

1. Const. commits to another branch of govt. (i.e., not the judiciary), or
2. Are inherently incapable of judicial resolution or enforcement

Question 11

Say some common political questions deemed non-justiciable

Answer 11

1. Actions under the ‘‘republican form of government’’ clause
2. Challenges to the conduct of foreign policy
3. Challenges to impeachment and removal proceedings

Question 12

Non-political questions that are justiciable

Answer 12

Non-political questions deemed justiciable: Some questions look political but are not: Examples:

• Legislative apportionment (arbitration exclusion of a congressional delegate)
• Production of presidential papers/ communications

Question 13

Methods of Supreme Court Review

Answer 13

• Discretionary review - most cases get to the U.S. Supreme Court by writ of certiorari; the Court then decides whether to grant review
• Mandatory review - the Court must take appeals from three-judge district court panels regarding injunctive relief
  
  • This bypasses the courts of appeal
• Original & exclusive jurisdiction - suits between states
  
  • These suits must be filed in the Supreme Court (concurrent jurisdiction with lower federal courts)

Question 14

Final judgment requirement for Supreme Court Review

Answer 14

Supreme Court only hears cases on review if there has been a final judgment of a lower fed. court or a state’s highest court

Question 15

SCOTUS review of state decision limitations

Answer 15

SCOTUS would not review a State Supreme Court decision when:

1. IASG: Decision rest on an independent, adequate state law ground (I.e., if the state decision is based on fed. and state law, the Supreme Court will not grant review unless the decision cannot stand on the state grounds alone)
2. No federal review: If the state grounds are fully dispositive of the case and do not depend on federal case law interpretation, there is no need for federal review
3. State law question: Decision is based on an unsettled question of state law
4. Review of the state grounds would render an advisory opinion​

Question 16

11th Amendment and State inmunity

Answer 16

The 11th Amend. and the related doctrine of sovereign immunity bar suits against state govts. in fed. court

• Under the 11th Amend., fed. courts cannot hear claims from a private party or foreign govt. against a state govt.
• Sovereign immunity bars suits against states in state court

Question 17

Exception to sovereign immunity doctrine

Answer 17

Exceptions - suits against state govts. are allowed in fed. court where:

1. The state waives sovereign immunity or consents (local govs don’t have immunity)
2. The suit involves the enforcement of laws under section 5 of the 14th Amend. and Congress has removed immunity,
3. The fed. govt. brings the suit, or
4. Bankruptcy proceedings

Question 18

11th Amendment and Suits against state officers

Answer 18

Suits against state officers - can be brought in fed. court if the suit involves either:

1. Injunctive relief claim for violation of the Const. or fed. law, or
2. Claim for money damages to be paid by the state officer personally

Question 19

What is the necessary and proper clause

Answer 19

Congress can exercise constitutionally enumerated powers and all auxiliary powers that are necessary and proper to carry out those enumerated powers

• Enables Congress to take any action not constitutionally prohibited to carry out its express powers
  
  • This authority constitutes Congress’s implied powers

Question 20

Is the “Necessary & Proper clause” an independent source of power

Answer 20

Not an independent source of power - the Necessary and Proper Clause does not confer a free-standing, independent source of power to Congress; it must be used in conjunction with another fed. power

Question 21

Taxing and spending power

Answer 21

Taxing & spending power - Congress may tax and spend in any way deemed necessary for the ‘‘general welfare’‘ (a very broad power)

• Note- ‘‘general welfare’’ as an answer choice is usually correct only if a question concerns taxing, spending, or an area within Congress’s limited police power (military, Indian reservations, fed. land, D.C.)
• Taxes must reasonably relate to revenue production (a low threshold)

Question 22

Can be penalties considered taxes?

Answer 22

Penalties as taxes- calling a measure a ‘‘penalty’’ rather than a ‘‘tax’’ is valid if it behaves similarly to a tax (e.g., ACA individual mandate)

Question 23

Can congress uses taxes for a regulatory effect?

Answer 23

Congress can tax to achieve a regulatory effect if:

1. The tax’s dominant intent is to raise revenue; and
2. There is some reasonable relationship between the tax and the regulation (low burden to satisfy)

Regulatory spending- Congress can create a regulatory effect by placing conditions on its spending as long as it is not overly coercive

Question 24

Does Congress have police power?

Answer 24

Police power - Congress has no general police power, except for legislation concerning:

1. Military
2. Indian reservations
3. Land - i.e., fed. land or territories
4. District of Columbia

Question 25

Power to regulate commerce

Answer 25

The Commerce Clause gives Congress exclusive authority to regulate interstate commerce

This includes intrastate activity (when it affects interstate commerce) depending on if it’s economical (rational basis) or not economical (substantial economical effect) the test will be different

Congress cannot compel activity, can just regulate it when it already exist

Question 26

What things can be regulated under the commerce power clause

Answer 26

1. Regular the channels (highways, waterways, telephone lines, internet)
2. Regulate the intrumentalities (cars, airplanes)
3. Regulate activities that have substantial effect on interstate commerce

Question 27

Can congress regular intrastate commerce (within one state)

Answer 27

Intrastate commerce- yes depending on if the activity done within states is economic or not

• Economic activities - Congress may regulate commercial or economic activities if there is a rational basis to conclude that the activity, in aggregate, substantially affects interstate commerce
• Non-economic activities- Congress may only regulate non-economic activity if it has a direct, substantial economic effect on interstate commerce (tougher burden to satisfy)

Question 28

What is the dormant commerce clause?

Answer 28

A limit on state laws to burden interstate commerce

Question 29

What are the 10th amendment limitations on congressional power?

Answer 29

Under the 10th Amend., all powers not granted to the fed. govt., nor prohibited to the states, are reserved to the states.

Limits Congress’s ability to regulate and/or tax states alone

• Exception- civil rights; Congress may restrict state activities that violate civil liberties

Question 30

Dual application of regulation (private and public sector)

Answer 30

Regulations applying to both public and private sector are usually valid (e.g., fed. minimum wage laws are applicable to state/ local govt. as well as private sector)

Question 31

What are conditional grants? (conditions to regulate with funds)

Answer 31

Congress can induce (but not compel) state regulatory or legislative action through the use of conditional grants

• Requirements:

1. Condition must be expressly stated;
2. Condition must relate to the purpose of the law at issue; and
3. Condition cannot be unduly coercive

Question 32

Can congress delegate legislative powers?

Answer 32

Congress has broad authority to delegate legislative powers to executive officers and administrative agencies

Administrative agencies established by congressional enabling acts can create rules that have the status of law

Question 33

What are the limitations (requirements) on delegation?

Answer 33

• Congress must provide intelligible standards to define the scope of legislative authority it delegates
• Congress may not delegate executive or judicial powers to itself or its officers (e.g., Congress cannot create commissions that enforce or prosecute violations of law)
• TIP: This power is broad, therefore be wary of answer choices regarding excessive delegation as a limitation on congressional authority

Question 34

Can Congress stop a decision by an agency acting pursuant to delegated power?

Answer 34

No Legislative veto - Congress cannot veto a decision by an agency acting pursuant to delegated power

Must be overturned by enacting a superseding law

Question 35

Can the President veto part of a bill?

Answer 35

• Line-item veto- President cannot veto part of a bill; would be impermissible delegation of power to the President
  
  • >> President must sign or veto a bill in its entirety

Question 36

Can Congress change the need to go to the two chambers and the veto/signature of the President?

Answer 36

No. That would be inconstitutional

You need that all laws use bicameralism and presentment

Question 37

What are the appointment powers for each branch?

Answer 37

• President - can appoint ambassadors, fed. judges, and other high-level officers with advice and consent of Senate
• Congress - cannot give itself appointment powers
  
  • However can vest power to appoint inferior officers in President, courts, heads of departments or agencies
    
    • Inferior officers- usually those working under presidentially-appointed officers ( i.e., can be fired by the appointed officer)

Question 38

What are the removal powers for each branch?

Answer 38

• President - can remove high-level executive officers (cabinet members) at will
  
  • However Congress can statutorily limit President’s power to remove all other executive appointees (e.g., can require good cause for removal)
• Congress - can only remove executive officers ONLY through its impeachment power

Question 39

Can you remove a judge from office?

Answer 39

No “during good behavior”, that means that only through impeachment and conviction you could remove them from office.

They can resign voluntarily

Question 40

Notes on impeachment

Answer 40

• House of Representatives can impeach (pass formal allegation) the President, VP, fed. judges, and fed. officers for treason, bribery, or high crimes and misdemeanors- requires a majority vote
• Upon impeachment (allegation), trial in the Senate - requires 2/3 vote of the senate for removal from office

Question 41

What is the inmunity given to the president?

Answer 41

Immunity - President has absolute immunity from civil suits arising from official actions taken while in office

• No immunity for actions occurring prior to taking office

Question 42

What is executive privilege? (think exception to justiciability - political questions)

Does it have exceptions?

Answer 42

Executive privilege - protects against disclosure of presidential papers and conversations

• Important govt. interests in criminal cases can override the privilege (e.g., Watergate - presidential documents and phone logs were disclosed for evidentiary purposes, which overrode the privilege)

Question 43

what are the pardon powers of the president?

Answer 43

Pardon power - President has the power to pardon those accused or convicted of fed. crimes (not state crimes)

• President may also commute sentences (a lesser sentence is given)
• Congress cannot limit President’s pardon power

Question 44

What crimes the president CANNOT pardon?

Answer 44

President cannot pardon someone for convictions leading to impeachment and actions of civil contempt

Question 45

If the president vetoes a law, can congress still pass it?

Answer 45

Yes, if the veto is overridden by 2/3 of EACH house

Question 46

President waits on giving his veto, what happens?

Answer 46

if he takes more than 10 days:

• Congress in session: Bill becomes law
• Congress NOT in session: Bill is vetoed

Question 47

What are the external affairs powers of the president

Answer 47

Article 11 gives the President authority to make treaties, appoint ambassadors, and act as Commander in Chief of the military

War: cannot declare war, but may act militarily in actual hostilities against the United States without a declaration of war. Congress can limit military appropriation

Foreign relations: The president represent the US in foreign day to day relations

Question 48

Differences between treaties and executive agreements

Answer 48

Treaties:

1. Approval: Require 2/3 of senate
2. Conflicts: beat fed (only if older) and state law but never constitution
3. Note: Treaties are still bound by the constitution, therefore they cannot createinconsistent powers to the president or congress

Executive Agreements:

1. Approval: No congressional approval required
2. Conflicts: only beats state law
3. Note: Can be made for any purpose

Question 49

Supremacy Clause effects

Answer 49

Under the Supremacy Clause, fed. Laws trump conflicting state and local laws.

A Fed Law can preempt a state law by express preemption or implied preemption.

Question 50

What is express preemption

Answer 50

Express preemption- if a fed. law provides that it is the exclusive authority in a given area, it preempts state and local laws in that area

• However, preemption provisions are narrowly construed (not broad power)

Question 51

What is implied preemption

Answer 51

Implied preemption- if a fed. law is silent on preemption, it implicitly preempts state law in three situations:

1. Mutual exclusivity- fed. and state laws are mutually exclusive (i.e., complying with both is impossible)
   
   • States can set stricter requirements if compliance with both fed. and state laws is possible
2. State law impedes a fed. Objective
3. Congress evidences a clear intent to legislate exclusively and/or preempt state law (E.g., immigration and bankruptcy law)

If a state law doesn’t run afoul of any of the above three situations, it is likely valid under the Supremacy Clause

Question 52

What is the dormant clause again? (think federalism, not congress powers)

Answer 52

Where Congress has not acted, state and local laws may regulate local aspects of interstate commerce, but only if the regulation is neither discriminatory nor unduly burdensome

Question 53

Test to determine if a local regulation affects interstate commerce

Answer 53

Test - a state/local law regulating interstate commerce is invalid if it:

1. #### Discriminates against out-of-state competition,
2. #### Unduly burdens interstate commerce, or
3. #### Regulates wholly out-of-state activity

Also:

There is an exception? (1) It protects or achieve an important state interest? (2) Is the state a market participant? (3) It is a traditional government function?

Question 54

What are the exceptions to a state law that violates a dormant commerce clause?

Answer 54

State law burdening interstate commerce is valid if either:

1. It is necessary to an important state interest- i.e., furthers an important, non-economic state interest and no reasonable alternatives are available
2. State is market participant- state can favor its own citizens in buying or selling products, hiring labor, giving subsidies, etc., (E.g., tuition discounts at state universities to in-state residents)
3. Traditional govt. function - state can discriminate against non-residents if law involves performance of traditional govt. functions

Question 55

Effect of the Interstate Privileges and Immunities Clause

Answer 55

States may not discriminate against non-state residents

• Arises if a state law is intentionally protectionist and concerns rights relating to important commercial activities

>> I.e., look for situations where a state intentionally protects its citizens by discriminating against non-state residents

• Note - only protects citizens; corporations
  
  • Aliens are not citizens for purposes of the Privileges & Immunities Clause

Question 56

When a discriminatory state law (discriminates non-state residents) is invalid?

Answer 56

Discriminatory state law is invalid

1. Relates to civil liberties or commercial activities; and
2. Is not necessary to achieve an important govt. interest

>> I.e., state law is intentionally protectionist in nature, there is no substantial justification for the discrimination, or less restrictive means are available

Question 57

Say an example of a valid discriminatory law and an invalid one

Answer 57

• Valid: law requiring higher fees for non-state residents at public golf courses; higher fees for hunting licenses for non-state residents, etc.
• Invalid: income tax on non-residents only; limiting bar admission to state residents; different fees for commercial fishing licenses

Question 58

Article IV privileges & immunities vs 14th Amendment Privileges & immunities

Answer 58

• 14th
  
  • ​primarily applies to restrictions on rights to interstate travel; narrowly construed and unlikely to be a correct answer choice

Question 59

Restriction of state taxation on interstate commerce

Answer 59

States may only tax activities that have a substantial connection to the state and may not tax in a way that discriminates against interstate commerce

A state may not use its tax systems to help in­state businesses or discriminate against interstate commerce

Question 60

How do you analyze if a tax discriminates against interstate commerce?

Answer 60

ASK: does the tax discriminate against interstate commerce?

• Yes - invalid; violates Dormant Commerce Clause
• No - then ask: does the burden placed on interstate commerce outweigh its benefits to the state?

To confirm if the burden is valid look into these three requirements:

1. Substantial nexus- tax must have a substantial nexus to the taxing state (i.e., item taxed is based on significant in-state activity)
2. Fair apportionment - tax must be fairly apportioned, (i.e., state can only tax the portion of the activity connected to the state)
3. Fair relationship- tax must be fairly related to services or benefits provided by the state (i.e., tax must be fairly related to some govt. service or benefit)

Question 61

Can state tax federal govt activity (intergovernmental immunity?)

Answer 61

States may not directly tax or regulate fed. govt. activity; but incidental taxes are acceptable

• E.g., states can collect income tax on fed. employees working within the state or tax private entities doing business with the fed. govt.
• Other examples:
  
  • ​Impose an income tax on persons who receive a salary from the federal government
  • Charge a sales tax on items purchased by contractors acting as purchasing agents for the federal government