Federalism

Question 1

Art I, sec 8

Answer 1

Powers of Congress

Question 2

Art VI, sec 2

Answer 2

Supremacy Clause

Question 3

Art I, sec 8, cl 18

Answer 3

Necessary and Proper clause

Question 4

10th Amendment

Answer 4

state powers where Congress is silent

Question 5

Art I, sec 8, cl 3

Answer 5

Commerce Clause

Question 6

Commerce Clause Text:

Answer 6

Congress has the power to regulate commerce among the states, with Native tribes, and with foreign nations.

Question 7

Commerce Clause Test First step:

Answer 7

Sebelius –>
Congress has the power to regulate private entities already voluntarily engaged in interstates commerce, but Congress may not create commerce or force people to engage in commerce against their will

Question 8

Commerce Clause test Second step:

Answer 8

Morrison/Lopez –>
A Congress may regulate channels of interstate commerce
- rivers, roads, air space, etc
B Congress may regulate the instrumentalities, or persons, or things of interstate commerce
- planes, trains, trucks, etc
C Congress may regulate local (intrastate) activities that substantially affect interstate commerce
1 activity that the statute is regulating must be economic or commercial in nature
2 jurisdictional element: Did Congress specify under what provision of Constitution it passed the law?
3 legislative record: committee reports/congressional record
4 Congress may not regulate traditional areas of state law
5 connection between the activity regulated by the statute and interstate commerce must not be too remote or weak

Question 9

Commerce Clause test Third step:

Answer 9

Aggregate Effects –>
If all people were to do the same thing nationally that a person or small group of persons is doing locally, would it substantially affect interstate commerce?

Question 10

Dormant Commerce Clause

Answer 10

state law regulating interstate commerce

Question 11

Dormant Commerce Clause test Step One

Answer 11

Is there a federal law on point?
Yes. Is it a valid law under Commerce Clause test? YES. This federal law preempts state law.
No –> Step 2

Question 12

Dormant Commerce Clause test Step Two

Answer 12

Did Congress approve the state/local law?
Yes –> state law valid
No –> Step 3

Question 13

Dormant Commerce Clause test Step Three

Answer 13

Market Participation Doctrine
Is the state a buyer/seller/lessor/lessee/owner?
Yes? Law is not a regulation and valid
No? step 4

Question 14

Dormant Commerce Clause test Step Four

Answer 14

Does law discriminate against interstate commerce differently than in-state commerce or is it a ban at the border?
If yes to either –> law is NOT generally applicable –> apply discrimination test
If no to both –> law IS generally applicable –> apply test for general applicability

Question 15

Dormant Commerce Clause test Step Four Discriminatory state laws test

Answer 15

Does state have legitimate interest aside from economic protectionism?
if no –> law is invalid
If yes –> can the legislative interest be served without discriminating against interstate commerce?
If yes –> law is invalid
If no –> valid

Question 16

Dormant Commerce Clause test Step Four General Applicable laws test:

Answer 16

Legitimate state interest
Law must be rationally related
Burdens on commerce must not outweigh the benefits to state

Question 17

Art I, sec 8, cl 1

Answer 17

Tax and Spending Power

Question 18

Tax Power text

Answer 18

Congress shall have the power to lay and collect taxes, duties, imposts, and excises, to pay debts and provide for the common defense and general welfare of the US

Question 19

Tax Power test:

Answer 19

1. Raises some revenue for gov’t
2. Does not violate any other provision of the Constitution
3. Does not function like a punitive measure to compel behavior (look at whether it’s an excessive amount or functions like a criminal fine)

Question 20

Spending power text:

Answer 20

Congress may spend to pay debts, provide for the common defense and general welfare

Question 21

Conditional spending power test:

Answer 21

1. Spending is in pursuit of general welfare
2. Condition is unambiguous so a state knows what to do to satisfy the condition, and when it’s violating the condition
3. Condition is connected to the purported ends of the statute
4. Not barred by another provision of the Constitution
5. 10th Amendment
   a. Conditional spending is not coercing the states
   - compelling behavior
   - South Dakota v Dole

Question 22

10th Amendment text/test

Answer 22

1. all powers not specifically given to federal gov’t in the Constitution are reserved to the states
2. laws that apply generally to state and private officials do not violate the 10th amendment

federal gov’t may not compel states to enact particular legislation

2. federal gov’t may not compel state officers to enforce federal laws

Question 23

Necessary and Proper clause text

Answer 23

Congress may choose any means that are “necessary” and “proper” for carrying out its enumerated powers so long as it is rationally related to a legitimate gov’t interest

Question 24

Supremacy clause text

Answer 24

If there is a conflict between a state/local law and federal law, the state/local law is deemed invalid and preempted by the fed. law if the fed. law is constitutional.

Question 25

Separation of Powers: Presentment and Bicameralism text

Answer 25

Presentment: every bill must be presented to the president for his signature, providing president with opportunity to veto.

Bicameralism: bill must pass both chambers to become law

Legislative acts which alter the rights, duties, or obligations of persons outside the legislative branch must meet P&B.

Question 26

Separation of Powers: Line Item Veto

Answer 26

President does not have the constitutional authority to change bills passed by Congress. Must pass as presented or veto all.

Question 27

Art I, sec 7, cl 2&3

Answer 27

Presentment and Bicameralism

Question 28

Separation of Powers: Delegation text

Answer 28

Congress can delegate power to executive pursuant to an “articulable principle” which sets the limits on what the delegated powers are such that the delegee would know when they are exceeding the power

Question 29

Separation of Powers: Delegation test

Answer 29

1. Is there an articulable principle behind the delegation?
2. Is the delegation limited so that delegee knows when they are exceeding their authority?
3. Is the delegation limited temporally?
   If yes to ALL, delegation is valid.

Question 30

Domestic Separation of Powers test

Answer 30

1. Does the text of the Constitution solve the issue?
2. Is the branch taking power acting appropriately or self aggrandizing?
3. Is the branch from which the power was taken impermissibly encroached upon or interfered with?

Question 31

Presidential Powers: foreign affairs test

Answer 31

Youngstown –> Jackson’s concurrence
Triggered when the president is claiming he has power in an area dealing with foreign affairs
1. When President has been delegated power by Congress in a particular area, presidential power in that area is at its highest. It consists of his constitutionally enumerated powers plus his congressionally delegated powers.
2. If Congress is silent as to president’s power in a particular area, presidential power in that area is dependent on imperatives of events and contemporary imponderables.
3. If Congress has said President does not have power in a particular area, President’s power is limited to his enumerated powers.

Question 32

Presidential Powers: Appointment rule

Answer 32

The president appoints all principal officers with advice and consent of Congress. Congress may, by law, vest appointment of inferior officers in (1) the president, (2) courts of law, and (3) heads of department.

It is necessary to determine whether an officer is a principal or inferior officer in order to determine who is in charge of the appointment.

Principal officers: ambassadors, consuls, public ministers, SOCTUS, all other officers of US

Unsure if principal?

1. Is the officer subject to removal by a higher officer?
2. May the officer only perform certain, limited duties?
3. Is the officer limited in jurisdiction/scope?
4. Is the officer limited in tenure/temporary?

Question 33

Art II, sec 2, cl 2

Answer 33

Appointment rule

Question 34

Presidential Powers: Removal rule

Answer 34

Congress may limit the ability of the executive branch to remove inferior officers. Principal officers are removal “at will” by president.

Test:
1. Is this an officer where independence from the President is desirable?
2. Congress cannot prohibit removal, only limit it to a showing of “good cause.”
NOTE: Congress can remove principle officers through impeachment.

Question 35

Presidential Powers: Immunities Rule

Answer 35

The president is only immune from damage suits based on acts committed (1) while in office AND (2) that are within the scope of his duties. “official acts” (broadly interpreted).

NOTE: President not immune from lawsuits based on actions which allegedly occurred prior to taking office. –> may be postponed if pres can show that maintaining the suit would interfere with ability to perform duties.

Question 36

Presidential Powers: Privileges

Answer 36

Pres does not have to share information that applies to military, diplomacy, or sensitive matters of nat’l sec.

This presumption may be overridden by a balancing test:
The need for confidentiality against the need for the information.
NOTE: if there is a specific need for the info, a general claim of “maintaining confidentiality” will usually not hold.