Powers of the Federal Government

Question 1

Article III authorizes what?

Answer 1

Federal courts shall have judicial power over all “cases and controversies”:

1. Arising under the Constitution, laws, or treaties of the US
2. Of admiralty and maritime jurisdiction
3. In which the US is a party
4. Between two or more states
5. Between a state and citizens of another state
6. Between citizens of different states
7. Between citizens of the same state claiming lands under grants of different states
8. Between a state or citizen thereof and foreign states, citizens, or subjects

Question 2

What did Marbury v. Madison establish?

Answer 2

Judicial review

Question 3

What are the two types of Supreme Court jurisdiction?

Answer 3

Original and Appellate

Question 4

Can Congress restrict or enlarge the Supreme Court’s original jurisdiction?

Answer 4

No

Question 5

What are the two methods to invoke the Supreme Court’s appellate jurisdiction?

Answer 5

Appeal (where jurisdiction is mandatory) and Certiorari (in court’s discretion)

Question 6

When does the Supreme Court have mandatory appellate jurisdiction?

Answer 6

Available only as to decisions made by three-judge federal district court panels that grant or deny injunctive relief

Question 7

What cases may be granted certiorari?

Answer 7

1. Cases from the highest courts where (i) the constitutionality of a federal statute, federal treaty, or state statute is called into question; or (ii) a state statute allegedly violates federal law
2. All cases from federal courts of appeals

Question 8

Congress may eliminate specific avenues for Supreme Court review as long as what?

Answer 8

It does not eliminate all avenues.

Question 9

Although Congress may eliminate Supreme Court review of certain cases within the federal judicial power, it must what?

Answer 9

It must permit jurisdiction to remain in some lower court.

Question 10

If Congress were to deny all Supreme Court review of an alleged violation of constitutional rights - or go even further and deny a hearing before any federal judge on such a claim - this would violate what?

Answer 10

Due Process

Question 11

Ripeness

Answer 11

A plaintiff generally is not entitled to review of a state law before it is enforced. Thus, a federal court will not hear a case unless the plaintiff has been harmed or there is an immediate threat of harm.

Question 12

Mootness

Answer 12

A federal court will not hear a case that has become moot - a real, live controversy must exist at all stages of review, not merely when the complaint was filed.

Question 13

Exception to mootness

Answer 13

Where there is a reasonable expectation that the same complaining party will be subjected to the same action again and would again be unable to resolve the issue because of the short duration of the action

Ex: pregnancy, elections, divorce actions

Ex: Defendant voluntarily stops the offending practice, but is free to resume it

Question 14

Mootness in class action cases

Answer 14

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

Question 15

Standing

Answer 15

A person has standing only if she can demonstrate a concrete stake in the outcome of the controversy.

Question 16

Components of standing

Answer 16

1. Injury in fact
2. Caused by the government
3. Redressability

Question 17

Injury component of standing

Answer 17

To have standing, a person must be able to assert that she is injured by a government action or that the government has made a clear threat to cause injury to her if she fails to comply with a government law, regulation, or order.

Some specific injury must be alleged and it must be more than the merely theoretical injury that all persons suffer by seeing their government engage in unconstitutional actions.

Ex: A Communist Party member would have standing to challenge a statute making it a crime to be a member of the Communist Party because the member’s freedom of association is directly infringed, but a non-Party member would have no standing

Question 18

In order to have standing, does the harm/injury need to be economic?

Answer 18

No, can have standing if harms person’s well-being.

Ex: Law students were allowed to challenge an Interstate Commerce Commission rate-setting policy on the ground that such policies discouraged recycling and thereby diminished the quality of each student’s physical environment. If the ICC rate-setting policy violated congressional statutes, the elimination of those rate-setting policies would have an impact on the students’ physical environment.

Question 19

Causation component of standing

Answer 19

There must be a causal connection between the injury and the conduct complained of - injury must be traceable to the challenged conduct

Question 20

Redressability component of standing

Answer 20

Will a ruling in favor of the plaintiff eliminate the harm?

Ex: The Supreme Court held that mothers do not have standing to challenge the government’s refusal to enforce criminal laws that would require the fathers of their children to pay child support. The enforcement of the criminal laws against a father who is guilty of nonsupport would not necessarily result in the father’s providing support to the mother and her children.

Ex: Indigents have no standing to challenge an IRS policy that allows hospitals to receive favorable tax treatments even though they refuse to provide free or subsidized care for indigents. The indigents could not demonstrate that a different IRS policy would cause hospitals to provide them with free care.

Question 21

Does standing have to be met at all stages of litigation?

Answer 21

Yes, even on appeal.

Ex: A district court held unconstitutional a state constitutional amendment that defined marriage as a union between a man and a woman. After trial, the court enjoined state officials from enforcing the provision, and the state officials elected not to appeal. The proponents of the state constitutional amendment sought to appeal. Since the proponents were not ordered to do or refrain from doing anything, they have no injury other than a generalized grievance in vindicating the validity of a generally applicable state law. Such an interest does not give the proponents a concrete state in the outcome. Therefore, they lack standing to bring the appeal.

Question 22

Common standing issues

Answer 22

1. Congressional Conferral of Standing
2. Standing to Enforce government statutes - zone of interest
3. Standing to assert Rights of others
4. Standing of Organizations
5. No Citizenship standing
6. Taxpayer standing
7. Legislators’ standing
8. Assignee Standing

Question 23

Common Standing Issues: Congressional Conferral of Standing

Answer 23

Congress has no power to completely eliminate the case or controversy requirement, because the requirement is based in the Constitution. However, a federal statute may create new interests, injury to which may be sufficient for standing.

Question 24

Common Standing Issues: Standing to Enforce Government Statutes - Zone of Interests

Answer 24

In some instances a plaintiff may bring suit to force government actors to conform their conduct to the requirements of a specific federal statute. Even in such cases, the person must have an “injury in fact.” Often, the Court asks whether the injury caused to the individual or group seeking to enforce the federal statue is within the “zone of interests” that Congress meant to protect with the statute. If Congress intended the statute to protect such persons, and intended to allow private persons to bring federal court actions to enforce the statute, the courts are likely to be lenient in granting standing to those persons

Question 25

Common Standing Issues: Standing to Assert Rights of Others

Answer 25

A plaintiff may assert third-party rights where he himself has suffered injury and:

1. Third parties find it difficult to assert their own rights - ex: NAACP protecting identity of members

or

2. The injury suffered by the plaintiff adversely affects his relationship with third parties - ex: beer vendor was granted standing to assert the constitutional rights of males under 21 - limited on family law issues - divorced father sought to challenge on behalf of daughter but court held he lacked standing since mother was sole conservator

Question 26

Common Standing Issues: Standing of Organizations

Answer 26

An organization has standing to challenge govt action that causes injury to the organization itself or to its members if:

1. There must an injury in fact to the members of the organization that would give individual members a right to sue on their own behalf
2. The injury to the members must be related to the organization’s purpose

AND

3. Neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit

Question 27

Common Standing Issues: No Citizenship Standing

Answer 27

People have no standing merely “as citizens” to claim that government action violates federal law or the Constitution. Congress cannot change this rule.

Question 28

Common Standing Issues: Taxpayer Standing

Answer 28

A taxpayer, of course, 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 or federal government, because the interest is too remote.

Nor to taxpayers have standing to challenge a law granting tax credits to persons who contribute to organizations that provide scholarships to students attending private schools.

Question 29

Common Standing Issues: Taxpayer Standing Exception

Answer 29

A federal taxpayer has standing to challenge federal appropriation and spending measures if she can establish that the challenged measure:

1. Was enacted under Congress’s taxing and spending power

AND

2. Exceeds some specific limitation on the power.

Question 30

Common Standing Issues: Legislators’ Standing

Answer 30

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

Question 31

Common Standing Issues: Assignee Standing

Answer 31

An assignee of a legal claim has standing even if the assignee has agreed to remit any proceeds recovered from the litigation back to the assignor, if this is done pursuant to an ordinary business agreement made in good faith.

Question 32

Adequate and Independent State Grounds

Answer 32

The Supreme Court will hear a case from a state court only if the state court’s decision turned on federal grounds.

Question 33

Abstention

Answer 33

1. Unsettled state law

2. Pending state proceedings

Question 34

Will the Supreme Court decide political questions?

Answer 34

No

Question 35

What are political questions?

Answer 35

1. Those issues committed by the Constitution to another branch of government

or

2. Those inherently incapable of resolution and enforcement by the judicial process

Ex:

• Questions regarding the conduct of foreign relations or issues as to when hostilities have stopped
• Questions relating to which group of delegates should be seated at the DNC
• Procedures used by the Senate to “try” impeachments
• What constitutes a “republican form of government” guaranteed to the state by Article IV, Section 4
• Whether the number of votes a candidate for Congress received is sufficient to elect him
• Questions regarding partisan legislative reapportionment

Question 36

Eleventh Amendment Limits on Federal Courts

Answer 36

The 11th amendment is a jurisdictional bar that modifies the judicial power by prohibiting a federal court from hearing a private party’s or foreign government’s claims against a state government

Question 37

What actions are barred by the 11th Amendment?

Answer 37

1. Actions against state governments for damages
2. Actions against state governments for inductive or declaratory relief where the state is named as a party
3. Actions against a state government officers where the effect of the suit will be that retroactive damages will be paid from the state treasury or where the action is the functional equivalent of a quiet title action that would divest the state of ownership of land
4. Actions against state government officers for violating state law

Question 38

What suits are barred by the doctrine of sovereign immunity?

Answer 38

1. Suits against a state government in state court, even on federal claims, without the defendant’s state’s consent
2. Adjudicative actions against states and state agencies before federal administrative agencies

Question 39

What actions are not barred by the 11th Amendment?

Answer 39

1. Actions against local governments
2. Actions by the United States government or other state governments
3. Bankruptcy proceedings

Question 40

Exceptions to 11th Amendment

Answer 40

1. Certain actions against state officers

2. Congressional removal of immunity under the 14th Amendment

Question 41

Exceptions to 11th Amendment: Certain actions against state officers

Answer 41

1. Actions against state officers for injunctions
2. Actions against state officers for monetary damages from officer
3. Actions against state officers for prospective payments from State

Question 42

Key for Bar exam questions involving 11th Amendment

Answer 42

The 11th Amendment will prohibit a federal court from hearing a claim for damages against a state government (although not against state officers) UNLESS:

1. The state has consented to allow the lawsuit in federal court
2. The plaintiff is the US or another state
3. Congress has clearly granted federal courts the authority to hear a specific type of damage action under the 14th Amendment (ex: under a civil rights statute)

Question 43

Five parts to Con Law

Answer 43

1. Powers of the Federal Government
2. The Federal System
3. State Regulation or Taxation of Commerce
4. Individual Guarantees Against Governmental or Private Action
5. First Amendment Freedoms

Question 44

Legislative power topics include what?

Answer 44

1. Enumerated and Implied powers
2. Delegation of Legislative power
3. The Speech or Debate Clause - special immunity for federal legislators
4. Congressional “Veto” of Executive actions invalid

Question 45

What are the 14 enumerated or implied legislative powers?

Answer 45

1. Necessary and Proper power
2. Taxing power
3. Spending power
4. Commerce power
5. War and related powers
6. Investigatory power
7. Property power
8. No federal police power
9. Bankruptcy power
10. Postal power
11. Power over citizenship
12. Admiralty power
13. Power to coin money and fix weights and measures
14. Patent/Copyright power

Question 46

Legislative Necessary and Proper “Power”

Answer 46

The Necessary and Proper Clause grants Congress the power to make all laws necessary and proper for carrying into execution any power granted to any branch of the federal government.

***BAR TIP - The necessary and proper clause is not itself a basis of power; it merely gives Congress power to execute specifically granted powers. Thus, if a bar question asks what is the best source of power for a particular act of Congress, the answer should not be the Necessary and Proper Clause, standing alone.

Question 47

Legislative Taxing power

Answer 47

Congress has the power to lay and collect taxes but they must be uniform throughout the US.

Question 48

Determining what is a tax?

Answer 48

Depends on function, not what Congress labeled it.

Question 49

Uniformity of taxes

Answer 49

Requirement of uniformity in the levy of indirect taxes has been interpreted by the Court to mean geographical uniformity only.

Question 50

Direct Taxes

Answer 50

Must be apportioned.

A “direct” tax (imposed directly on property or on the person) has seldom been employed by Congress because of the cumbersome apportionment requirement; taxes on income from real or personal property were initially held “direct” by the Court, but the resulting need for apportioning such taxes was obviated by the 16th Amendment (Income Tax Amendment).

Question 51

Are taxes generally held valid or invalid?

Answer 51

Valid.

A tax measure will be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity.

***Be very hesitant to rule against a tax measure on the exam.

Ex: Special excise tax levied on dealers in illegal narcotics is valid because it raises revenue

Question 52

Legislative Spending Power

Answer 52

Congress may spend to “provide for the common defense and general welfare.

Spending may be for any public purpose.

Question 53

Legislative Commerce Power

Answer 53

Article I, Section 8, Clause 3 empowers Congress to “regulate commerce with foreign nations and among the several states, and with the Indian tribes”

Question 54

Definition of Commerce

Answer 54

“Every species of commercial intercourse that concerns more states than one”

Congress has consistently regarded transportation or traffic as commerce, whether or not a commercial activity is involved. - included non-vehicular transportation such as electricity, TV, radio

Question 55

“Substantial Economic Effect”

Answer 55

The Supreme Court has sustained congressional power to regulate any activity, local, or interstate, that either in itself or in combination with other activities has a “substantial economic effect upon,” or “effect on movement in,” interstate commerce.

Question 56

Limits on Congress’s power to regulate commerce

Answer 56

To be within Congress’s power under the Commerce Clause, a federal law must either:

1. Regulate the channels of interstate commerce
2. Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce

OR

3. Regulate activities that have a substantial effect on interest commerce

Question 57

What will the Court do if Congress attempts to regulate intrastate activity?

Answer 57

The Court will uphold the regulation if it is of economic or commercial activity and the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.

Question 58

Legislative War and Related Powers

Answer 58

Article I, Section 8 gives Congress the power to declare war, raise and support armies, provide for and maintain a navy, make rules for the government and regulation of the armed forces, and organize, arm, discipline, and call up the militia.

Question 59

Legislative War and Related Powers: Economic Regulation

Answer 59

During War - Regulatory power of Congress in support of war effort is pervasive. Court has sustained national price and rent control, as well as conscription and regulation of civilian/military production and services.

Post War - The pervasive regulatory power may be validly extended both to remedy wartime disruptions and to cope with “cold war” exigencies.

Question 60

Constitutional basis of court of military justice?

Answer 60

Article I, Section 8, Clause 14

Question 61

Do the regular federal (or state) courts have the general power to review court-martial proceedings of military courts and tribunals?

Answer 61

No

Question 62

Can military courts try enemy civilians and enemy military personnel?

Answer 62

Yes during wartime

Question 63

What offenses do military courts have jurisdiction over?

Answer 63

Military courts have jurisdiction over all offenses committed by persons who are members of the armed services, both when charged and at the time of the offense.

Question 64

Calling forth the militia

Answer 64

Congress has the power to authorize the President to order members of National Guard units into federal service - even in circumstances that do not involve a national emergency.

The President does not need to obtain the consent of the governor of a unit’s home state to call it into such service.

Question 65

Legislative Investigatory Power

Answer 65

The power to investigate to secure information to secure information as a basis for potential legislation or other official action (such as impeachment) is a well-established implied power.

It is a broad power, in that an investigation need not be directed toward enactment of particular legislation, but it does have some limitations.

Question 66

Legislative Investigatory Power Limitations

Answer 66

5th amendment

Relevance

Procedural Due Process

Question 67

Can Congress hold a subpoenaed witness in contempt for refusing to appear or answer before Congress?

Answer 67

Yes

Question 68

Legislative Property Power

Answer 68

Congress has the power to “dispose of and make all needful rules and regulations respecting the territory or other property belonging to the US.”

Question 69

Eminent Domain

Answer 69

“nor shall private property be taken for public use without just compensation.”

Must be taken for the purpose of effectuating an enumerated power under some other provision of the Constitution.

Question 70

Legislative Police Power

Answer 70

Congress does not have general police power. Except for in DC

***On the bar exam the validity of a federal statute cannot rely on “the police power.”

Question 71

Legislative Bankruptcy Power

Answer 71

Congress has the power “to establish uniform laws on the subject of bankruptcies throughout the US.” - both fed and states can enact bankruptcy laws

Question 72

Legislative Postal Power

Answer 72

Congress has the power “to establish post offices and post roads.”

Question 73

Can Congress deny anyone from getting their mail?

Answer 73

No

Question 74

Legislative Power of Citizenship

Answer 74

Congress has the power to “establish a uniform rule of naturalization.”

Question 75

Are resident aliens entitled to notice and hearing before they can be deported?

Answer 75

Yes

Question 76

Can Congress take away anyone’s citizenship without their consent?

Answer 76

No

Question 77

Rights of Children of Citizens born outside the US?

Answer 77

Have no constitutional right to become US citizen. Congress may grant citizenship conditioned upon their return to the US to live here.

Fail to show up within a certain period you lose the grant

Question 78

Legislative Admiralty Power

Answer 78

The federal admiralty power attaches to all navigable waterways - actually or potentially - and to small tributaries that affect navigable waterways.

The federal maritime power is not limited to tidewaters or interstate waters.

Question 79

Legislative Power to Coin Money and Fix Weights and Measures

Answer 79

Congress has the power to coin money and fix the standard of weights and measures.

Question 80

Patent/Copyright Power

Answer 80

Congress has the power to control the issuance of patents and copyrights.

Question 81

Delegation of Legislative Power

Answer 81

Congress has broad discretion to delegate powers.

Question 82

Limitations on Delegation of Legislative Power

Answer 82

1. Power cannot be uniquely confined to congress - power to declare war
2. Clear standard - will be upheld if it includes intelligible standards - basically anything
3. Separations of Powers Limitations

Question 83

The Speech or Debate Clause

Answer 83

Special immunity for federal legislators

“For any speech or debate in either House shall not be questioned in any other place.”

Question 84

Who are covered by the Speech or Debate Clause?

Answer 84

Federal legislators and their aides

Not state legislators

Question 85

What is the scope of the Speech or Debate Clause?

Answer 85

Clause covers conduct that occurs in the regular course of legislative process and the motivation behind that conduct are immune from prosecution.

Does not cover bribes, speeches outside of Congress, or defamatory statements.

Question 86

Are legislative vetoes of executive actions valid or invalid?

Answer 86

Invalid - Chadha case

Question 87

Executive power is vested in who?

Answer 87

The President by Article II, Section 1

Question 88

What are the President’s domestic powers?

Answer 88

1. Appointment and Removal of Officers
2. Pardons
3. Veto Power
4. Power as Chief Executive

Question 89

What are President’s powers over external affairs?

Answer 89

1. War
2. Foreign Relations
3. Treaty Power
4. Executive Agreements

Question 90

Executive Privilege

Answer 90

The executive privilege is not a constitutional power, but rather is an inherent power to protect the confidentiality of presidential communications

Question 91

Executive Immunity

Answer 91

President has absolute immunity from civil damages based on any action that the President took within his official responsibilities.

Extended to aides to when dealing with “sensitive areas” of national concern.

Question 92

Grounds for impeachment?

Answer 92

Treason, bribery, high crimes, and misdemeanors