PART ONE: POWERS OF THE FEDERAL GOVERNMENT

Question 1

Judicial Power: Article 3

Answer 1

• Fed gov is of limited powers, meaning for fed action to be legit, it must be authorized. The Constitution authorizes fed government to act. Thus, whenever a question involves action by a fed gov entity, action will be valid only if it is authorized by Constit. The Constit authorizes a fed ct system in Article III, which provides that fed cts shall have judicial power over all “cases & controversies”:
  1. Arising under the Constit, laws, or treaties of the U.S.;
  2. Affecting ambassadors, other public ministers, & consuls;
  3. Of admiralty and maritime jurisdiction;
  4. In which U.S. is a party;
  5. Between 2/more states;
  6. Between a state & citizens of another state;
  7. Between citizens of different states;
  8. Between citizens of the same state claiming lands under grants of different states; and
  9. Between a state/citizens thereof & foreign states, citizens, or subjects.

Question 2

POWER OF JUDICIAL REVIEW: Review of Other Branches of Federal Government

Answer 2

• Constit does not explicitly state that SC may determine constitutionality of acts of other branches of gov.
• However, judicial review of other branches of fed gov is established by case law

Question 3

Separation of Powers and Finality of Court Decisions

Answer 3

• Constit separates governmental powers among branches of gov.
• Separation of powers doctrine prohibits legislature from interfering w/ cts’ final judgments.
• However, Congress may change fed statutes & may direct fed cts to apply those changes in all cases in which a final judgment has not been rendered.

Question 4

Federal Review of State Acts

Answer 4

• Fed review of state acts (executive, legislative, or judicial) is allowed on the clear basis that:
• Supremacy Clause of Article VI: Constit, Laws, & Treaties of the U.S. take precedence over state laws & judges of state cts must follow fed law, anything in the constit/laws of any state to the contrary notwithstanding.

Question 5

FEDERAL COURTS: Article III Courts

Answer 5

• 2 types of fed cts: Art 1 cts & Art 3 cts
• Congress has power to set jurisdictional limits, both original & appellate, of these cts, although it is bound by standards as to subject matter, parties, & “case/controversy” requirement
• Thus, Congress cannot require these cts to render advisory opinions/perform admin/nonjudicial functions.

Question 6

Federal Courts: Article I Courts

Answer 6

• e.g., US Tax Ct, cts of the DC.
• Judges of such Article I cts do not have life tenure/protection from salary decrease as do Article 3 ct judges.
• Article I cts are sometimes vested w/ admin as well as judicial functions

Question 7

Limitation

Answer 7

Congress may not take cases of type traditionally heard by Article 3 cts & assign jurisdiction over them to Article I cts.
- Ex. broad grant of jurisdiction to bankruptcy cts, including jurisdiction over K claims, violates Article 3

Question 8

Jurisdiction of the Supreme Court: Original (Trial) Jurisdiction

Answer 8

• Under Article 3, Sect 2, SC has original jurisdiction “in all cases involving Ambassadors, other public Ministers & Consuls, and those in which a State shall be a Party.” (APS)
• This provision is self-executing: Congress may neither restrict nor enlarge SC’s original jurisdiction, but Congress may give concurrent jurisdiction to lower fed cts & has done so regarding all cases except those between states.

Question 9

Appellate Jurisdiction

Answer 9

• Article 3, Sect 2 : “in all other Cases b/f mentioned [i.e., arising under Constit, Act of Congress, or treaty], SC shall have appellate jurisdiction, both as to Law & Fact, w/ such Exceptions, & under such Regulations as the Congress shall make.”

Question 10

Statutory Application of Appellate Jurisdiction: Certiorari

Answer 10

• Congress has provided 2 methods for invoking SC appellate jurisdiction: appeal (jurisdiction is mandatory), & certiorari (jurisdiction is w/in Ct’s discretion).
• Very few cases fall w/in Ct’s mandatory appeal jurisdiction; thus, appellate jurisdiction is almost completely discretionary.

1) Writ of Certiorari (Discretionary)
- SC has complete discretion to hear cases that come to it by writ of certiorari.
- A case will be heard if 3 justices agree to hear it.
- The following cases may be heard by certiorari:
a) Cases from highest state cts where:
(i) constitutionality of a fed/state statute/fed treaty is called into question; or
(ii) a state statute allegedly violates fed law; and
b) All cases from fed COA.

Question 11

Appeal (Mandatory)

Answer 11

• SC must hear those few cases that come to it by appeal.
• Appeal is available only as to decisions made by 3-judge FDC panels that grant/deny injunctive relief.

Question 12

Limitations on Statutory Regulation

Answer 12

• Congress has full power to regulate & limit SC’s appellate jurisdiction.
• However, possible limitations on such congressional power:
  1) Congress may eliminate specific avenues for SC review if it does not eliminate all avenues.
  2) Although Congress may eliminate SC review of certain cases w/in fed judicial power, it must permit jurisdiction to remain in some lower fed ct.
  3) If Congress were to deny all SC review of an alleged violation of constitutional rights—or go even further & deny a hearing b/f any fed judge on such a claim—this would violate DP

Question 13

CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION—POLICY OF “STRICT NECESSITY”

Answer 13

• Even if a fed ct has jurisdiction over subject matter of a case, it still might refuse to hear the case.
• Whether the ct will hear the case (i.e., whether the case is justiciable) depends on whether a “case/controversy” is involved, & on whether other limits on jurisdiction are present.

Question 14

No Advisory Opinions

Answer 14

Fed cts will not decide moot cases, collusive suits, cases w/ no binding effect on parties, or cases involving challenges to governmental legislation/ policy whose enforcement is neither actual nor threatened.

Question 15

Compare—Declaratory Judgments

Answer 15

• Fed cts can hear actions for declaratory relief.
• A case/controversy will exist if there is an actual dispute between parties having adverse legal interest.
• Complainants must show they have engaged in (or wish to engage in) specific conduct & that challenged action poses a real & immediate danger to their interests.
• However, fed cts will not determine constitutionality of a statute if it has never been enforced & there is no real fear that it ever will be.

Question 16

Ripeness

Answer 16

• To avoid issuing advisory opinions, fed cts require that a dispute has matured sufficiently to warrant a decision.
• Cts avoid getting involved in abstract disagreements over gov policies, preferring to wait until policy is formalized & can be felt in a concrete way.
• When considering a question of ripeness, a fed ct considers 2 main factors:
  (1) fitness of issues for judicial decision, and
  (2) hardship to parties of withholding ct consideration

Question 17

Fitness of Issue for Judicial Decision

Answer 17

• Generally, an issue is not fit for judicial decision if it relies on uncertain/contingent future events that may not occur as anticipated.

Immediate Impact of Future Events
- A ct will hold that issue is fit for judicial decision even if it relies on uncertain/contingent future events when future events have an immediate impact.

Question 18

Hardship to the Parties of Withholding Consideration

Answer 18

• A ct will find that an action is ripe for review if a party would have to risk substantial hardship to provoke enforcement of law.

Question 19

Mootness

Answer 19

• A fed ct will not hear a case that has become moot; a real, live controversy must exist at all stages of review, not merely when complaint is filed.
• Party asserting mootness bears burden of proof & must show that a once-live case is now moot.

Question 20

Exception—Capable of Repetition But Evading Review

Answer 20

• Controversy will not be moot when there is a reasonable expectation that same complaining party will be subjected to same action again & would again be unable to resolve issue b/c of the short duration of the action (i.e., where the controversy is capable of repetition yet evading review),

Ex:1) Issue concerns events of short duration (pregnancy, elections, divorce actions); and
2) D voluntarily stops offending practice, but is free to resume it.

Question 21

Class Actions

Answer 21

• A class rep may continue to pursue a class action even though rep’s controversy has become moot, if claims of others in the class are still viable.

Question 22

Distinguish Ripeness

Answer 22

• Ripeness & mootness are related concepts in that ct will not hear a case unless there is a live controversy.
• Ripeness bars consideration of claims b/f they have been developed; mootness bars their consideration after they have been resolved.

Question 23

Standing

Answer 23

• SC will not decide a challenge to an action unless person who is challenging the action has “standing” to raise the issue.
• A person has standing only if she can show a concrete stake in the outcome of the controversy.

Components
- P will be able to show a sufficient stake in the controversy only if she can show an
(1) injury in fact—
(2) caused by D—
(3) that will be remedied by a decision in her favor (i.e., causation & redressability).

Question 24

Injury in Fact

Answer 24

• To have standing, person must be able to assert an injury in fact, which requires both:
  (1) particularized injury—an injury that affects P in a personal & individual way; and
  (2) a concrete injury—one that exists in fact.
• It is not enough to show merely that a fed statute/ constitutional provision has been violated (& that we all suffer when that happens).

Question 25

Injury Need Not Be Economic

Answer 25

• Injury does not always have to be economic.
• In some cases, Ct has found that an individual is harmed b/c alleged illegal act/unconstitutional action has an impact on person’s well-being.

Question 26

Injury May Be “Self-Inflicted”—Test Cases

Answer 26

• The fact that an injury is “self-inflicted” does not bar standing.
• Injury resulting from application/ threatened application of a rule remains fairly traceable to the rule, even if injury could be described in some sense as willingly incurred.
• Theres standing even when P admitted their actions were motivated by a desire to bring a case to test the constitutionality of a particular rule]

Question 27

Causation

Answer 27

• There must be a causal connection between injury & conduct complained of—i.e., injury must be traceable to challenged conduct of D & not be attributable to some independent 3rd party not b/f the ct.

Question 28

Redressability

Answer 28

• In determining whether a litigant has a sufficient injury to establish standing, cts ask whether a ruling favorable to the litigant would eliminate the harm to him.
• If ct order declaring an action to be illegal/ unconstitutional (& ending that action) would not eliminate harm to litigant, that individual does not have the type of injury that would give standing

Question 29

Required at All Stages

Answer 29

• Standing must be met at all stages of litigation, including on appeal.

Question 30

Common Standing Issues: Congressional Conferral of Standing

Answer 30

• Congress has no power to completely eliminate case/ controversy requirement, b/c the requirement is based in the Constitution.
• However, a fed statute may create new interests, injury to which may be sufficient for standing.

Question 31

Standing to Enforce Government Statutes—Zone of Interests

Answer 31

• P may bring suit to force gov actors to conform their conduct to a specific fed statute.
• Even in such cases, person must have an “injury in fact.”
• If injury caused to individual/group seeking to enforce fed statute is w/in “zone of interests” Congress meant to protect w/ statute & Congress intended to allow private persons to bring fed ct actions to enforce the statute, cts are likely to grant standing to those persons.

Question 32

Standing to Assert Rights of Others

Answer 32

• To have standing, claimant must have suffered/may presently suffer a direct impairment of his own rights.
• P may, however, assert 3rd-party rights where he himself has suffered injury and:
• (i) 3rd parties find it difficult to assert their own rights or

ex. NAACP was permitted to assert the freedom of association rights of its members in attacking a state law requiring disclosure of membership lists b/c its members could not file suit w/o disclosing their identities

• (ii) Injury suffered by P adversely affects his relationship w/ 3rd parties, resulting in an indirect violation of their rights

ex. vendor of beer was granted standing to assert the constitutional rights of males under 21 in attacking a state law prohibiting sale of beer to them but not to females under 21

Question 33

Standing of Organizations

Answer 33

• An organization (unincorporated association, corporation, union, etc.) has standing to challenge action that causes injury to the organization itself.
• An organization also has standing to challenge actions that cause an injury in fact to its members if the organization can show these 3 facts:
  a) Must be an injury in fact to org’s members that would give individual members a right to sue on their own behalf;
  b) Injury to members must be related to org’s purpose; and
  c) Neither claim’s nature nor relief requested requires participation of individual members in the lawsuit.

Question 34

No Citizenship Standing

Answer 34

• An injury too generalized, has no standing.
• People have no standing merely “as citizens” to claim that gov action violates fed law/Constit.
• Congress cannot change this rule by adopting a statute that would allow persons to have standing merely as citizens (where they otherwise have no direct, personal claim) to bring suit to force gov to observe Constit/fed laws.

Question 35

Compare—Tenth Amendment Violation Claims

Answer 35

• A person can have standing to allege that fed action violates 10th Amend by interfering w/ powers reserved to the states, if person can show injury in fact & redressability.

Question 36

Taxpayer Standing

Answer 36

Generally No Standing to Litigate Government Expenditures
- A taxpayer has standing to litigate her tax bill
- However, people generally do not have standing as taxpayers to challenge the way tax dollars are spent by the state/fed gov, b/c interest is too remote.
- Nor do taxpayers have standing to challenge a law granting tax credits to people who contribute to orgs that provide scholarships to students attending private schools.
- Note that such tax credits do not fall under the Establishment Clause exception below—even to extent that credits are available for contributions used for religious school scholarships—b/c the program does not involve transfer of gov funds; thus, there is no injury for standing purposes.

Question 37

Exception—Congressional Measures Under Taxing and

Answer 37

Spending Power that Violate Establishment Clause
- There is an exception to the general rule: A fed taxpayer has standing to challenge fed appropriation & spending measures if she can establish that the challenged measure:
(1) Was enacted under Congress’s taxing & spending power; and
(2) Exceeds some specific limitation on the power.
- Only limit SC has found on taxing & spending power is the Establishment Clause.
- Note: The measure challenged must arise under the taxing & spending power.
- No standing to challenge a fed gov transfer of surplus property under Property Clause that allegedly violated Establishment Clause.
- No standing to challenge expenditures of executive branch general funds that allegedly violated the Establishment Clause.

Question 38

Legislators’ Standing

Answer 38

• Legislators may have standing to challenge the constitutionality of gov action if they have a sufficient “personal stake” in the dispute & suffer sufficient “concrete injury.”

Question 39

Assignee Standing

Answer 39

• An assignee of a legal claim has standing even if assignee has agreed to give any recovery proceeds back to assignor, if done pursuant to an ordinary business agreement made in good faith.
• Ex. a paid collection agent has standing to bring the claims of an assignor even though collection agent will submit any recovery back to assignor

Question 40

Standing for Free Speech Overbreadth Claims

Answer 40

• A person has standing to bring a free speech claim alleging that gov restricted substantially more speech than necessary (restriction was overbroad), even if person’s own speech would not be protected under 1st Amend
• Essentially, P can bring a claim on behalf of others whose speech would be protected under 1st Amend.
• However, this rule does not apply to restrictions on commercial speech.

Question 41

Adequate and Independent State Grounds

Answer 41

• SC will hear a case from a state ct only if the state ct judgment turned on fed grounds.
• Ct will refuse jurisdiction if it finds adequate & independent nonfederal grounds to support the state decision.

Question 42

“Adequate”

Answer 42

• Nonfederal grounds must be “adequate” in that they fully settled the case, so that even if fed grounds are wrongly decided, it would not affect the outcome of the case.
• Where that is the case, SC’s review of the fed law grounds for state ct’s decision would have no effect on judgment rendered by state ct, so that SC, in effect, would be rendering an advisory opinion.

Question 43

“Independent”

Answer 43

• Nonfederal grounds must also be “independent”:
• If state ct’s interpretation of its state provision was based on fed case law interpreting an identical federal provision, state law grounds for the decision are not independent.

Question 44

Where Basis Is Unclear

Answer 44

• If it is unclear whether the state ct decision turned on fed/state law, SC may dismiss case/remand it to the state ct for clarification.
• However, Ct will usually assume there is no adequate state ground unless state ct expressly stated that its decision rests on state law.

Question 45

Abstention: Unsettled State Law

Answer 45

• When a fed constitutional claim is based on an unsettled question of state law, fed ct should abstain temporarily, so as to give state cts a chance to settle underlying state law question & thus potentially avoid needless resolution of a fed constitutional issue.

Question 46

Pending State Proceedings

Answer 46

• Generally, fed cts will not enjoin (issue an injunction) pending state criminal proceedings.
  1) Pending
• State ct proceedings are pending if begun b/f the fed ct begins proceedings on the merits.
• Hence, the order of filing charges is irrelevant
• “Proceedings of substance” must occur first in fed ct b/f an injunction will issue.
  2) Civil & Administrative Proceedings
• Fed cts should not enjoin pending state admin/civil proceedings when those proceedings involve an important state interest.

3) Exception
- An injunction against state proceedings will be issued in cases of proven harassment/bad faith prosecutions (w/o hope of a valid conviction).

Question 47

Political Questions

Answer 47

• Ct will not decide political questions.
• Political questions are:
  1) Those issues committed by Constit to another branch of gov; or
  2) Those that cannot be resolved/enfored by the judicial process.

Question 48

Compare—“Nonpolitical Controversy”

Answer 48

• Presidential papers & communications are generally considered to be privileged & protected against disclosure in the exercise of the executive power.
• But where these docs are necessary to the continuation of criminal proceedings, the question of production is justiciable & not political.

Question 49

Eleventh Amendment Limits on Federal Courts

Answer 49

• 11th Amend prohibits a fed ct from hearing a private party’s/foreign gov’s claims against a state gov

Question 50

What Is Barred?

Answer 50

11th Amend’s jurisdictional bar extends to the following:
(i) Actions against state govs for damages;
(ii) Actions against state govs for injunctive/declaratory relief where state is named as a party;
(iii) Actions against state gov officers where effect of the suit will be that retroactive damages will be paid from the state treasury/where the action is functional equivalent of a quiet title action that would divest state of ownership of land; and
(iv) Actions against state gov officers for violating state law.

Question 51

Compare—Sovereign Immunity

Answer 51

• While 11th Amend bars most suits against states in fed ct, the doctrine of sovereign immunity applies to bar suits against states in state cts/ b/f fed agencies.
• The Ct has also held that the following are barred by the doctrine of sovereign immunity:
  a) Suits against a state gov in state ct, even on fed claims, w/o D state’s consent (provision in federal Fair Labor Standards Act creating a private cause of action in state courts against state employers who violate the Act violates sovereign immunity);
  b) Suits against a state gov brought in the cts of another state, w/o D state’s consent and
  c) Adjudicative actions against states & state agencies b/f fed admin agencies

Question 52

What Is Not Barred?

Answer 52

1) Actions Against Local Governments
- 11th Amend protects only state govs.
- Local govs (e.g., cities/counties) are not protected.

2) Actions by US Gov/Other State Govs
- Actions by USG/other state govs are not barred.

3) Bankruptcy Proceedings
- 11th Amend does not apply to fed laws that are exercises of Congress’s Article I power to create bankruptcy laws, & thus does not bar actions of US bankruptcy cts that have a direct impact on state finances.

Question 53

Consent and Waiver: Express Waiver

Answer 53

• A state may waive its 11th Amend protection & consent to be sued.
• Express waivers must be explicit.

Question 54

Structural Waiver

Answer 54

• SC has recently held that as part of the constitutional plan, the states implicitly consented to yield sovereign immunity for certain fed powers.
• Structural waiver (waiver based on Constit’s structure) applies when the fed power is complete in itself & the states implicitly consented to fed gov exercising that power as part of the Constit’s plan .

Question 55

Structural Waiver: Eminent Domain

Answer 55

• States surrendered their immunity from the fed gov’s eminent domain power, which includes exercise of condemnation proceedings in ct.
• Likewise, private parties can sue states when fed gov has delegated this power.

Question 56

Structural Waiver: Military-Related Powers

Answer 56

• States implicitly agreed that their sovereign immunity would yield to the fed gov’s power to build & maintain a national military, including when asserting immunity would frustrate the fed gov’s ability to provide a common defense.
• Ex. as part of its power to provide a common defense, Congress can create veterans’ employment protections that permit veterans to sue states for violating those protections.

Question 57

Exceptions to Eleventh Amendment: Certain Actions Against State Officers

Answer 57

• SC allows the following actions to be brought against state officials despite 11th Amend:

Question 58

Actions Against State Officers for Injunctions

Answer 58

• A fed ct may enjoin a state officer to refrain from future actions that violate fed law/to take prospective actions to comply w/ constitutional mandates.

Question 59

Actions Against State Officers for Monetary Damages from Officer

Answer 59

• A fed ct may hear an action for damages against a state officer for violations of fed law if monetary damages are to be paid out of the officer’s own pocket.
• Rationale: By acting outside scope of fed law, officer is stripped of his representative capacity—action is not one against a state, but rather is against an individual.

Question 60

Actions Against State Officers for Prospective Payments from State

Answer 60

• A fed ct may hear an action for damages against a state officer where effect of the action will be to force state to pay money in the future to comply w/ ct order.
• However, fed ct jurisdiction is barred if action will result in retroactive damages to be paid from state treasury.

Question 61

Congressional Removal of Immunity Under the Fourteenth Amendment

Answer 61

• Congress can remove the states’ 11th Amend immunity under its power to prevent discrimination under 14th Amend.
• Ex. the Equal Pay Act—based on 14th Amend—can serve as a basis for fed suits against a state by its employees.

Question 62

Compare—Article I Powers

Answer 62

• Unlike its power under 14th Amend, Congress’s legislative powers under Article I do not include power to revoke state immunity under 11th Amend.
• However, SC has held states may not assert sovereign immunity in proceedings arising under bankruptcy law.

Question 63

Summary

Answer 63

• For most bar questions, a key principle to remember is this:
• 11th Amend will prohibit a fed ct from hearing a claim for damages against a state gov (although not against state officers) unless:
  1) The state has consented to allow lawsuit in fed ct, including if the state implicitly consented to such suits as part of basic structure of the Constitution;
  2) P is the US/another state; or
  3) Congress has clearly granted fed cts authority to hear a specific type of damage action under 14th Amend (e.g., under a civil rights statute).