Separation of Power

Question 1

Case or Controversy

Answer 1

Federal courts may only hear live cases and controversies.

actual dispute between adverse parties, or

legally binding effect on the parites.

No advisory opinions

Question 2

Ripeness

Answer 2

A case will not be heard if it is not ripe. To determine ripeness, the court will look to the fitness of the issues for judicial decision and any hardship that might be caused by withholding consideration. An issue is not fit if it relies on uncertain or contingent future events that may not occur as anticipated. A court will find that action is ripe if a party would have to risk substantial hardship to provoke enforcement of the law.

Question 3

Mootness

Answer 3

A case is moot if there is no real, live controversy that exists at all stages of review. Wrongs capable of repetition but evading review are not moot when there is a reasonable expectation that the same complaining party will be subject to the same action again but be unable to resolve the issue due to the short duration of the action (pregnancy, elections, divorce, voluntary abandonment with freedom to repeat)

Question 4

Standing

Answer 4

A plaintiff must have standing for a case to be justiciable. To have standing there must be

1. injury in fact to the plaintiff
2. causation fairly traceable to the defendant, and
3. a showing that favorable court decision would remedy the harm.

The injury must be actual or imminent and suffered by the plaintiff herself.

Generalized grievances as a citizen or taxpayer will not have standing except where:

1. he is challenging his tax bill
2. he is challenging congressional spending on 1A Establishment Clause grounds. This is only if Congress’s spending power is involved.

Question 5

Third-party standing

Answer 5

Third party standing will only be found where the is:

1. a close relationship between the plaintiff and third party
2. the third party is unable to unlikely to assert own rights, and
   plaintiff can adequately represent the third party

Question 6

Political Questions

Answer 6

Political questions will not be decided if:

1. the issues are constitutionally committed to another branch of government or
2. the issues are inherently incapable of judicial review.

Question 7

Sovereign Immunity (Eleventh Amendment)

Answer 7

Sovereign immunity of the Eleventh Amendment bars a private party’s suit against a state.

Exceptions:
1. the state waives immunity
2. Congress clearly intended to remove immunity under its 14A powers to prevent discriminations

The bar also does not extend to actions:
1. against local governments
2. actions by the federal government or other states, or
3. proceedings in federal bankruptcy courts

Question 8

Supreme Court Original Jurisdiction

Answer 8

The Supreme Court has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party. However, Congress have given lower courts the power to hear all but those between states.

Question 9

Supreme Court Appellate Jurisdiction

Answer 9

Cases can come to the Court by Writ of Certiorari or by Appeal. The Court has complete discretion to hear cases that come by certiorari. These cases are those that come from the highest state court on issues of the constitution or federal law, or from federal courts of appeals.

Question 10

Adequate and Independent State Grounds

Answer 10

The Supreme Court will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds, even if federal issues are involved. State grounds are adequate if they are fully dispositive of the case. They are independent if the decision was not based on federal interpretations of federal provisions.

If a decision rests on state and federal grounds but the Supreme Court’s reversal of the federal ground will not change the result, the Supreme Court can’t hear the case.

Question 11

Federal Police Powers

Answer 11

Congress has no federal police power except in regard to D.C., federal lands, military bases, and Indian reservations.

Question 12

Necessary and Proper Clause

Answer 12

Congress has the power to make all laws necessary and proper to carry out any legislative powers enumerated, as long as it does not violate another provision of the Constitution.

This clause alone cannot support federal law without another federal power to support it.

Question 13

Taxing and Spending Power

Answer 13

Congress has broad powers to tax and spend to provide for the general welfare. Congress may place conditions on its granting of money to states, but the conditions must be related to the purpose of spending, and cannot be unduly coercive.

Question 14

Commerce Power

Answer 14

Congress has the power to regulate commerce among the several states. Congress may regulate:

1. the channels of interstate commerce,
2. the instrumentalities of interstate commerce, and
3. activities that have a substantial effect on interstate commerce

Regulations on interstate commerce will be upheld if it involves an economic or commercial activity, and the court can conceive of a rational basis on which Congress could conclude the activity in aggregate substantially effects interstate commerce. Congress may not regulate intrastate noneconomic activities in areas that are traditionally regulated by states, no may they compel participation in commerce.

Question 15

War and Related Powers

Answer 15

Congress has the power to declare war, raise and support armies, and provide for and maintain a navy. These powers include: Economic Regulation and Military Courts and Tribunals.

Question 16

Investigatory

Answer 16

Congress has a broad implied power to investigate to secure information for potential legislation or other official action such as impeachment. Congress can subpoena the President’s personal information if it advances a legitimate legislative purpose. Congress’s interests will be weighed against the burdens on the President.

Question 17

Power over Citizenship

Answer 17

Congress may establish uniform rules of naturalizations, fiving it plenary powers over aliens. Aliens can be refused entry because of political beliefs. However, aliens must get notice and hearing before they can be deported.

Congress has exclusive power over naturalization and denaturalization but it cannot take away citizen-ship of any citizen without consent.

Question 18

Patent/Copyright Power

Answer 18

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

Question 19

Delegation of Power

Answer 19

Legislative power can generally be delegated to the executive branch or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress (almost anything passes for intelligible standard)

Question 20

Bicameralism and Presentment

Answer 20

To pass a law, congress must pass it by both houses and present it to the President for signature or veto.

Question 21

Line Item Veto

Answer 21

Congress cannot delegate to the President the power of the line item veto. The President can only approve or reject a bill.

Question 22

Legislative Vetoes

Answer 22

Congress cannot give itself the authority to amend or repeal an existing law without undergoing bicameralism and presentment.

Question 23

Speech or Debate Clause

Answer 23

Conduct occurring in the regular course of the legislative process is immune from prosecution.

Question 24

Issuing Executive Orders

Answer 24

The President has some implied power to direct subordinate executive officers.

When the President acts with express or implied authority of Congress, his authority is at is maximum and the actions are likely valid.

When he acts where Congress is silent the court will consider the circumstances and relevant history. It is unlikely to be upheld if it usurps the power of another branch or prevents another branch from carrying out its tasks.

When he acts against the express will of Congress and Congress had authority to act, the action is likely invalid.

Question 25

Appointment Powers

Answer 25

The President appoints ambassadors, justices of the Supreme Court, and other officers of the United States whose appointments are not otherwise provided for in the Constitution, with advice and consent of the Senate.

Congress can vest the appointment of inferior officers in the President alone, the courts, or the heads of departments. Congress itself may not appoint members of a body with administrative or enforcement powers.

Question 26

Removal Powers

Answer 26

The President can remove high level, purely executive officers at will, without any interference by Congress. Congress also cannot restrict the President from removing the head of an independent agency if that person is the sole director and has significant executive power. Congress can provide statutory limitations on the President’s power to remove all other executive appointees.

Question 27

Veto Power

Answer 27

If the President disapproves an act of Congress the act may still become law if the veto is overridden by a 2/3 vote of each house.

Question 28

Pocket Veto

Answer 28

The President has 10 days to exercise the veto power. If he fails to act within that time, the bill is automatically vetoed if Congress is not in session. If Congress is in session is becomes law.

Question 29

President’s Military Powers

Answer 29

The President cannot declare war but can act militarily in hostilities against the United States without a declaration of war to protect American lives and property. However, Congress may limit the President under its military appropriation power.

Challenges to the President’s conduct as commander in chief are likely to be nonjusticiable political questions.

Question 30

Treaty Power

Answer 30

The President has the power to enter into treaties with the consent of 2/3 of the Senate.

Treaties are the “supreme law of the land” if they are self-executing (effective without any implementation by Congress).

When there is a conflict between a congressional act and a valid treaty, it is resolved by order of adoption: last in time wins.

Question 31

Executive Agreements

Answer 31

Executive agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for. They do not require consent of the Senate.

In a conflict between executive agreements and federal law, federal law wins.

Question 32

Executive Privilege

Answer 32

The President has a privilege to keep certain presidential communications secret so he can receive candid advice and protect national security.

Exception: In criminal proceedings, presidential communiques will be available to the prosecution where a need for such information is demonstrated. The President is subject to state criminal subpoenas of the President’s personal records, which do not fall under privilege.

Question 33

Executive Immunity

Answer 33

The President has absolute immunity from civil damages based on any action taken while exercising official responsibilities, but not for acts that happened before he took office.

Presidential aides exercising discretionary authority in a sensitive area can share in the immunity.

Question 34

Impeachment

Answer 34

The President, Vice President, and all civil officers of the U.S. are subject to impeachment. A majority vote in the House is necessary to bring charges and a 2/3 vote in the Senate is needed to convict and remove from office.