Midterm Review

Question 1

What does Marbury v. Madison stand for?

Answer 1

Marbury v. Madison established the authority of the federal judiciary to review the constitutionality of executive* and legislative acts. It is the role of the judiciary to say what the law is.

*Caveat for executive acts: only under judicial review if act involves individual rights or legal duties, but some actions are entirely within the discretion of the executive

Question 2

What does Martin v. Hunter’s Lessee stand for?

Answer 2

Martin v. Hunter’s Lessee established the federal courts’ authority to review state court decisions.

Question 3

Name the 5 justiciability doctrines.

Answer 3

1. Advisory Opinions
2. Standing
3. Ripeness
4. Mootness
5. Political Questions Doctrine

Question 4

What is the rule against advisory opinions? (What are the requirements for a case to not be considered an advisory opinion?)

Answer 4

Court cannot hear a case unless it is:

1. an actual dispute between adverse litigants, and
2. there is a substantial likelihood the decision will have an impact

Question 5

What are the three requirements of standing?

Answer 5

1. Injury-in-fact (must be actual or imminent, concrete, and particularized)
2. Causation
3. Redressability

Question 6

What are the requirements for ripeness?

Answer 6

there must be:

1. fitness of the issue for judicial decision
2. hardship on the party seeking review caused by delaying adjudication

Question 7

What is the mootness doctrine?

Answer 7

Mootness is when the passage of time or an intervening event has eradicated the plaintiff’s injury.

Question 8

What are the 4 exceptions to mootness?

Answer 8

1. wrongs capable of repetition yet evading review
2. voluntary cessation of illegal conduct
3. class actions
4. collateral consequences

Question 9

What are 6 examples/factors of a political question?

Answer 9

1. If constitution clearly gives exclusive power over the issue to another branch (Ex: impeachment, declaring war)
2. Lack of judicial standard (i.e., no precedent)
3. If impossible to decide without an initial policy/political determination (Ex: whether US is at war)
4. If impossible to decide without expressing a lack of respect for other branches
5. Unusual need for stability/adherence to political decision already made (Ex: overturning election results after president in office)
6. Potential for embarrassment from inconsistent pronouncements of different branches

Question 10

What is sovereign immunity?

Answer 10

State governments cannot be sued by private citizens (in-state, out-of-state, or foreign citizens) in federal court.

Question 11

What does the 11th amendment not apply to?

Answer 11

The 11th amendment does not apply to:

• suits by the US gov against a state
• suits by a state against another state
• cities/municipalities

Question 12

Name and explain the three exceptions to sovereign immunity.

Answer 12

1. Waiver/Consent - A state can waive its sovereign immunity and consent to be sued in federal court.
2. Ex Parte Young - You can sue a state official who violates the Constitution for prospective injunctive relief.
3. Congressional Abrogation - Congress may authorize suits against state governments only when it is properly exercising its power under section 5 of the 14th amendment.

Question 13

What does McCulloch v. Maryland stand for?

Answer 13

McCulloch v. Maryland broadly construes Congress’ power and limits the authority of the states to impede them. In other words, it establishes implied powers and supremacy.

Question 14

What is the enumeration principle?

Answer 14

Each branch of federal government can only exercise powers specifically granted to them in the Consitution. They must follow their “shopping list.”

Question 15

Generally define the Necessary & Proper Clause.

Answer 15

Congress has the power to make laws reasonably adapted to the attainment of a legitimate end under Congress’ enumerated powers.

Question 16

What Commerce Clause principles come out of the New Deal Trilogy?

Answer 16

Congress may regulate activities that have a close and substantial relation to interstate commerce. (NLRB v. Jones & Laughlin Steel)

Congress may regulate activities that are injurious to interstate commerce. (US v. Darby)

Congress may regulate intrastate activities that have a substantial economic effect in the aggregate. (Wickard v. Filburn)

Congress must have a rational belief that the activity will affect interstate commerce, and their motive for enacting a law is irrelevant.

Question 17

What are the three categories that Congress may regulate under the Commerce Clause?

Answer 17

1. Channels of interstate commerce
2. Instrumentalities of interstate commerce (includes persons and things)
3. Activities that have a substantial effect on interstate commerce

Question 18

What factors does the court consider in evaluating whether regulating an “activity” is valid under the Commerce Clause?

Answer 18

If activity is economic, Court applies New Deal Trilogy and regulation is likely valid as long as there’s a rational link to interstate commerce.

If the activity is noneconomic, the Court will consider following factors:

• aggregate effect (maybe - conflicting precedent after Morrison)
• whether connection is too attenuated
• jurisdictional element in statute
• activity traditionally subject to state/local control
• legislative history
• part of larger regulatory scheme

Question 19

Generally define Congress’ Taxing and Spending Power.

Answer 19

Congress has broad authority to tax and spend for the general welfare, so long as it does not violate other constitutional provisions.

Question 20

What are the restrictions on the Taxing Power?

Answer 20

The tax must merely raise revenue.

Question 21

What is the 4-part Dole Test to evaluate Congress’ use of its Spending Power?

Answer 21

1. Spending must be for the “general welfare”
2. Conditions must be unambiguous
3. Conditions must be reasonably related to the purpose of the federal spending
4. Conditions cannot violate any other constitutional provision / cannot be unduly coercive

Question 22

May Congress attach conditions to federal spending?

Answer 22

Yes, so long as it meets the Dole test.

Question 23

What is the test for the Enforcement Clause (section 5 of 14th amendment)?

Answer 23

1. Is there state action? (only applies to government, not private, conduct)
2. Does that state action violate the 14th amendment, according to SCOTUS? (Congress cannot define or broaden the 14th amendment - only remedy violations)
3. Is the remedy congruent and proportional to the harm?

Question 24

What is the 10th amendment?

Answer 24

The 10th amendment says that the powers not delegated to the federal government by the Constitution are reserved to the states. US v. Darby declared the 10th amendment “but a truism,” not an independent limitation.

Question 25

What is the anti-commandeering doctrine?

Answer 25

The federal government cannot require states to enact legislation. They also cannot require state executives to enforce federal legislation.

Question 26

Are there any exceptions to the anti-commandeering doctrine?

Answer 26

Yes, if Congress issues a law of general applicability that happens to include states, the anti-commandeering doctrine does not apply. (Congress must be regulating states as states for the doctrine to apply.)

Question 27

Define preemption.

Answer 27

Preemption means that federal law is supreme to state law. If the federal law is properly enacted, it preempts state law.

Question 28

What are the types of preemption?

Answer 28

1. Express - where there’s explicit preemptive language in statute.
2. Conflict - where it’s impossible to comply with both state and federal law
3. Obstacle - where state law frustrates the purpose / stands as an obstacle to the objective of the federal law
4. Field - where Congress regulates an entire field so pervasively, no room for states to legislate that area

Question 29

What is the Dormant Commerce Clause?

Answer 29

DCC means state/local laws that place an undue burden on interstate commerce are unconstitutional. It is inferred from Congress’ Commerce Clause power.

Question 30

When does the Dormant Commerce Clause apply?

Answer 30

When there is a state law and (1) no federal law, or (2) the federal law does not preempt the state law.

Question 31

What are the types of laws under the Dormant Commerce Clause and what tests apply to each?

Answer 31

1. Facially discriminatory = use heightened scrutiny test
2. Facially neutral w/ discriminatory purpose/effect = use heightened scrutiny test
3. Facially neutral w/ incident burden = use balancing test

Question 32

What is the Dormant Commerce Clause heightened scrutiny test?

Answer 32

State bears burden to show:

1. the law serves a legitimate, non-protectionist purpose
2. that could not be achieved by less discriminatory means

Question 33

What is the Dormant Commerce Clause balancing test?

Answer 33

Challenger bears burden to show:
(pre-analysis):
1. state has legitimate local purpose
2. law regulates even-handedly
3. burdens on interstate commerce are only incidental

if all three met, in right test, then balance:
Law will be upheld unless the burden is clearly excessive in relation to local benefit

Question 34

What are the exceptions to the Dormant Commerce Clause?

Answer 34

1. Consent - Congress may consent to a state law that burdens interstate commerce
2. Market Participant Exception - DCC does not apply when the state is acting as a private entity participating in the market. (But, the state cannot impose downstream limitations.)

Question 35

When does the Privileges & Immunities Clause apply?

Answer 35

P&I applies to fundamental rights and to important economic activities.

Question 36

What are the differences between Privileges & Immunities and Dormant Commerce Clause? (How is P&I broader or narrower than DCC?)

Answer 36

Privileges & Immunities:

1. must be facially discriminatory (narrower)
2. applies to fundamental rights and economic activities (broader)
3. only citizens can sue under P&I (narrower)
4. DCC exceptions do not apply (narrower)

Dormant Commerce Clause:

1. can be facially discriminatory or facially neutral
2. only applies to economic/commercial discrimination
3. corporations and aliens can sue under DCC, too
4. consent and market participant exceptions

Question 37

What is the test under a Privileges & Immunities challenge?

Answer 37

State bears burden to show:

1. a substantial reason for the discrimination (gov interest),
2. discrimination bears a substantial relationship to that reason, and
3. the reason could not be achieved by less discriminatory means

Question 38

What is the Unitary Executive Theory?

Answer 38

The vesting clause puts all executive powers in one president. The executive branch and its agencies are the president.

Question 39

What are the four theories about implied powers that emerge from Youngstown Sheet & Tube v. Sawyer?

Answer 39

1. There is no inherent presidential power. (majority) = power must come from either the Constitution or a federal statute.
2. implied power 1 = the vesting clause does not contain “herein granted,” thus the president is not limited to enumerated powers
3. implied power 2 = may be implied power when there’s “a systemic, unbroken, executive practice, long pursued to the knowledge of Congress”
4. implied power 3 =
   implied powers relative to Congress
   – Congress authorizes = strong claim
   – Congress silent = twilight zone
   – Congress disapproves = weakest claim

Question 40

What is the line-item veto?

Answer 40

When a president can veto parts of a bill, line by line. It is unconstitutional.

Question 41

What factors determine if someone is an inferior officer?

Answer 41

Morrison factors:

1. subject to removal by a higher executive branch officer
2. granted limited duties, not policymaking functions
3. limited jurisdiction
4. limited tenure

Question 42

Who are typical principal officers?

Answer 42

Cabinet secretaries; officers who exercise significant authority

Question 43

Who can appoint principal officers?

Answer 43

The president, with the advice and consent of the Senate.

Question 44

Who can appoint inferior officers?

Answer 44

The president alone, the courts of law, or the heads of departments.

Question 45

Who can remove principal officers? And can Congress set any limits on their removal?

Answer 45

The president at will; or via impeachment

Congress can’t limit removal if officer is purely executive (Myers), but they can set some limits is there is a need for independence from the president.

Question 46

Who can remove inferior officers? And can Congress set any limits on their removal?

Answer 46

The president or principal officers. Congress may limit, but not completely bar, removal if there is a need for independence from the president.

(Watch out for the double layer of “just cause” protection.)

Question 47

What standards did US v. Nixon establish around executive privilege?

Answer 47

Executive privilege is inherent, but it is not absolute. The need for candor and protection of national security must be balanced with impeding the court’s ability to function.

Question 48

What is the nondelegation doctrine?

Answer 48

Congress may not delegate legislative powers unless there’s an intelligible principle.

Question 49

What is the legislative veto?

Answer 49

The legislative veto is when Congress overturns an agency’s actions through something less than official lawmaking. The legislative veto is unconstitutional.

Question 50

Why is the legislative veto unconstitutional?

Answer 50

Because legislative acts require bicameralism (passage by both houses) and presentment (presentation to the president).