Separation of Powers

Question 1

When does a case not involve a justiciable questions:

Answer 1

1) Issue is committed to another branch;
(US v Nixon: Senate defines trial NOT CT.)
OR
2) Lack of manageable standard to resolve issue.
(Luther: guarantee of republican gov’t - CT can’t define “republican”.)

(Baker v Carr: “one person-one vote” =justiciable.) (Reynolds v Sims)

Question 2

What limits are place on State by the Contract Clause:

Answer 2

Contract Clause does not obliterate police power- BUT- State NOT free to impose drastic impairment when moderate course would serve purpose as well. (US Trust Co)

1) State’s own contract: Mid-Level review.
2) Re-writing private contracts: “reasonable relation” to “legitimate interest”.

Kansas Power & Lighting Test:

1) Substantial impairment of contractual provision; (restricted increased cost of gas)
2) Impairment serves significant-legitimate interest, (interstate markets) AND
3) Law reasonably relates to that purpose.

(Allied Steel: state required additional coverage in private pension plan- MAY affect private contracts to protect common good.)

Question 3

Standard of review for regulation that affects interstate commerce:

Answer 3

LOW: “Rational relation” between means and “Legitimate” gov objective.
BUT: State interest must outweigh Burden imposed on interstate commerce.

NOT rational, OR
Burden on interstate commerce to great =
Violates Dormant Commerce Clause.

Question 4

Levels of review for Substantive Due Process with “NO fund right” affected, such as economic regulation:

Answer 4

Mere Rationality.

Leg objective and rationally related means.

Question 5

Level of review Equal Protection with NO “suspect/quasi suspect class” & “NO Fund right”:

Answer 5

Mere Rationality.
Leg objective and rationally related means.

Includes economic, some alienage, and “important rights” e.g. food, shelter, and free public education.

Question 6

What are the “Fundamental Rights” and “suspect classes” for Strict Equal Protection review:

Answer 6

Right to:

1) Travel
2) Vote
3) Be a candidate
4) Access to courts.

1) Race
2) National origin,
3) Alienage (sometimes

Question 7

What are the “semi-suspect” classifications and what type of review do they get:

Answer 7

1) Gender
2) illegitimacy- (citizen status)

Mid-Level:
Means chosen must be:
“Substantially Related” to an “Important Gov Objective.”

Question 8

Why do CTs have power to declare Congressional statutes unconstitutional:

And when can the court not review:

Answer 8

Marbury v Madison:
Marshall “It is the Judiciary’s role to interpret the Constitution.

Cannot Review if state court decided on “independent and adequate” grounds.
(Decision did not rely on fed question.)

Question 9

General Powers of Congress:

6

Answer 9

1) Interstate Commerce:
As well as foreign Commerce.

2) Tax and Spend: for general welfare.
(NO general police power.)

3) DC & Federal Property:

4) War and defense:
Congress alone can declare war and raise money for defenses.

5) Enforcement of Civil War Amendments:
Can ban private intrastate non-commercial conduct.

6) Necessary & Proper:
Any means to achieve objective within “enumerated power”: IF means:
1) rationally related to objective, AND
2) is NOT forbidden by Const.

Question 10

Congress’ Control over Judiciary:

2

Answer 10

1) Decides types of cases Supreme court hears: cannot expand their power.
&
2) Creates lower federal courts: limited to federal judicial powers. Can eliminate diversity - but canNOT let federal courts hear non fed intrastate claims.

Question 11

General Power of Executive Branch:

6

Answer 11

1) Execution of laws,

2) Commander in Chief:
Directs and leads armed forces.

3) Treaty and Foreign Affairs:
Appoints ambassadors, “Single voice of nation.”

4) Appointment of Federal Officers:
Fed judges, cabinet members.

5) Pardons: Fed offenses-NOT impeachment.

6) Veto:
May be overridden by 2/3 maj of each house.

Question 12

Congress’ Commerce Power:

4

Answer 12

1) Channels: highways, internet, air traffic.
2) Instrumentalities: people, machines, anything used for commerce- even intrastate.

3) Articles moving in interstate commerce:
information, (Reno: personal information.)

4) “Substantially affecting” Commerce:

Question 13

How to determine if activity “Substantially Affects” commerce and can be regulated by Congress:

(2)

Answer 13

1) Commercial Activity or commodity:
Doesn’t need to directly affect interstate.

Indirect Cumulative Affect:
(Gonzalez v Raich: Marijuana grown for personal (interstate) medicinal use could enter the illegal interstate market.)

Manufacturing can be regulated as well:
(Wickard: Wheat quota= growing person wheat reduces the demand on market.)

2) Non-Commercial Activity:
Cannot reach “inactivity” - use tax power.
Need an “Obvious Connection”
(US v Lopez: Cannot ban guns in school relying on possible interstate affect.)
“Jurisdictional Hook”: Could say “any gun that moved in interstate commerce.

Question 14

How is Congress Limited when regulating Commerce:

4

Answer 14

1) “Interstate effect” must exist: (Lopez)

2) Traditional domain of states:
education, family law, general criminal law - UNLESS national solution needed.(Gonzales)

3) Compelling activity:
(Sebelius: Congress was able to “tax” inactivity but NOT compel activity.)

4) 10th: Reserves traditional state power- not granted to Congress.
-If applies to person = applies to state.
(Garcia v San Antonio: Minimum wage req w/NO exception for state employees.)

-May NOT compel state to “enact or enforce” (NY v US: Can’t threaten state to enact leg.)
(Printz v US: Guns- Can’t use state officials to implement fed mandate.)

Question 15

What are Congress’ Tax & Spend powers and limitations:

Answer 15

1) Regulation: under guise of tax.
(Doremus: As long as Congress intended for tax to raise revenue= not be considered disguised regulation.) Can’t label it “penalty”:
-YET (Sebelius) was able to tax “inactivity.”)
(Dist. Comstock: Was w/in Congress’ power.)
-CanNOT tax “exports” from states.
-Customs Duties = uniform among states.

2) Spending Power: Independent power.
MAY spend “conditionally” using N&P:
(Dole: Congress can indirectly regulate through tax/spend what it cannot do directly.)

Question 16

Dole Test:

To determine if condition on spending is Valid:
(Used today)

(Must prove all 5 Factors)

(Dole: Withheld 5% funding from states that didn’t maintain 21 drinking age.)

Answer 16

1) Spending must promote “general welfare”;
2) Condition must be unambiguous; (state must understand consequences of participation.)
3) Condition should related to “the federal interest in that particular program”; (safe interstate travel)
4) Condition must NOT be unconstitutional; AND
5) The condition must not be coercive. (CanNOT be so excessive as to remove choice.)

Question 17

Limit on President’s emergency War powers during active combat:

Answer 17

President’s Power must stem from either Constitution or Congress.

Youngstown Sheet: Truman ordered seizure of steel mills for the Korean War-feared strike. Truman also sent troops w/out Cong auth.)

1) Pres can’t seize property & Congress didn’t authorize him to. (Taking=Congress’ power)
2) Leg History: Congress expressed disapproval. Congress had refused to adopt that method of settling labor disputes. (Taft-Hartley Act)
3) He was making not executing laws.

Question 18

How to determine if President is acting with Congressional Approval:

(3)
(Jackson’s Concurrence in Youngstown.)

Answer 18

President acts:

Zone 1: Pursuant to express or implied authorization from Congress:
• Strongest presumptions and the widest latitude of judicial interpretation.
• Power at maximum-combines w/ Congress’.

Zone 2: In absence of congressional action:
•”Zone of twilight:”President or Congress can act.
•Pres must rely on his independent powers.
• Look for Congressional Acquiescence.

Zone 3: In opposition to express or implied will of Congress:
• His power is at its lowest.
• Must rely on his powers minus power Congress has over the matter.
• Can only be sustained if CT finds Congress didn’t have power-or didn’t address matter.
• Greatly scrutinized - Sep of powers at stake.

Question 19

Limit to President’s Veto power:

Line-Item Veto

Answer 19

Violates Presentment Clause:

Clinton v NY:
President can’t make laws by means of editing them- can only approve or veto entire bill.

Question 20

Limit to President’s Ability to suspend Habeas Corpus:

Answer 20

Suspension Clause in Art. I:

“May only suspend in cases of Rebellion or Invasion when the public safety may require it.”

Boumediene v Bush:
Law violates Suspension clause: subjecting enemy combatants to military tribunal-not adequate substitute for HC -even foreign prisoners on US territory have rights to HC.

Question 21

Factors for Habeas Corpus & when a military tribunal is permitted:

Answer 21

1) Boumediene: Habeas corpus=available if detainee held on US territory.
(Military Commission Act-violated Sus Cl.)

2) Habeas Corpus is not available to foreign nationals outside the US.

3) Person can ONLY be tried in a military tribunal when:
1) Martial law is declared, AND
2) Civil courts are closed (Ex parte Milligin)
If courts are open: must allow citizens access to civilian courts. –can’t be overridden by congress.

Question 22

Factors to determine an enemy’s status and rights:

Answer 22

The Detainee Treatment Act: sets out procedures for determining, before military tribunals whether aliens qualify as “enemy combatants.” Appeal is to the D.C. Circuit.

Ex parte Milligan: Civilian NOT engaged in actual warfare shall be tried with due process.

Al-Marri: Association with Al-Qaeda- even in US- enough to be detained as enemy combatant.- But still get adequate process.

Question 23

Presidential Removal Power and Limitation:

Answer 23

1) Meyers: Congress can’t limit Pres ability to remove any purely executive officer at will.

2) Morrison: Congress CAN limit pres’ power to remove members of independent agencies if independence from president would be desirable.
- Congress may vest appointment of inferior officers in the Heads of Departments.
- May be limited to “good cause” removal of quasi/exec “inferior” officers.

3) Congress CANNOT completely prohibit all removal, AND
CANNOT give the removal power to itself (other than exercising its impeachment power) (Bowsher)
Morrison: Inferior officer- under exec control

Question 24

When can Congress delegate legislative power to an independent agency to carry out quasi/legislative Acts:

Answer 24

Mistretta:

Must direct agency to conform with an “Intelligible Principle”:

Sufficient to clearly delineate:

1) General policy,
2) Public agency which is to apply it, AND
3) Boundaries of this delegated authority.”

Question 25

“Inferior Officer”

4 Factors from Morrison v Olson:

Answer 25

1) Removable by a higher executive officer: Attorney general.
2) Limited duties: investigate and prosecute federal crimes.
3) Limited jurisdiction: only to federal officials.
4) Limited tenure: terminates upon completion of task.

Question 26

Executive Immunity & Executive Privilege:

Answer 26

Not in Constitution.
1) Absolute Immunity: from Civil Liability for “Official Acts” while pres. (Nixon v Fitzgerald)

2) NO immunity-“unofficial acts” -before or during term. (Clinton v Jones)

3) Executive Privilege: qualified right to refuse to disclose confidential info:
Weighed against compelling giv interest.
(US v Nixon: Criminal trial outweighed pres’ vague reasons for not disclosing.)

4) All other officials: qualified immunity for official acts-unless violate established right.

Question 27

What is the Dormant Commerce Clause:

Answer 27

The negative effect of the Commerce Clause.

Restricts states from unduly burdening interstate commerce.

Question 28

When to use Dormant Commerce Clause:

4

Answer 28

1) Out-of-staters discriminated.
2) Environmental regulation effects neighboring state.
3) State involvement with industry.
4) State tax favoring locals.

Question 29

How to determine if State is violating Dormant Commerce Clause:

(3)

Answer 29

(1) Facial Discrimination
Per se invalid: UNLESS - no other means to advance a legit local interest
(City of Philadelphia; Maine v. Taylor)

(2) Purposive Discrimination
(Healy) West Lynn Creamery

(3) Discriminatory Effect
Upheld: UNLESS - burden on interstate commerce is “clearly excessive” in relation to local benefits,
eg: if there is a less burdensome alternative (Pike, Kassel)

Question 30

If a state regulation discriminates the action is invalid unless:

Answer 30

(1) Furthers important, “non-economic” state interest & no reasonable non-discriminatory alternatives; OR
(2) State is a market participant.

Question 31

If the law does not have a discriminatory purpose, but has a discriminatory effect:

No need to prove intent if:
(3)

Answer 31

1) Effect is to exclude virtually all out-of-staters from a particular market;
2) Law imposes costs only to out-of-staters, and not in-staters;
3) Law was motivated by protectionist purposes.
(Intent can be inferred.)

Question 32

The Test for Dormant Commerce Clause:

3

Answer 32

Regulation must:

1) Pursue legitimate state end,
2) Rationally related to that end, AND
3) Burden on interstate commerce must be outweighed by States interest.

Question 33

When health regulations incidentally discriminate against out-of-staters in violation of Dormant Commerce Clause:

Indication of Protectionism:

(3 Cases)

Answer 33

If less restrictive means are available = Violation.

Dean Milk: cannot ban all out of state milk because regular inspections would suffice.

Hunt v Washington Apple: NC interest in health & protecting against fraud not satisfied. “leveling effect” lowering quality standards.

West Lynn Creamery: Even handed tax-all dealers had to pay. + subsidy from tax directly to MA farmers. TOGETHER=Invalid

Question 34

When Environmental Regulations incidentally discriminate against out of staters:

Answer 34

Phil v NJ: State cannot ban all waste from entering state.

Question 35

Market Participant Exception:

When can a state favor its own citizens:

(3 Cases)

Answer 35

Reeves: Valid: State owns cement company and during shortage sells only instate.
Can also refer its own people as buyers.

SCC Dev Timber: State owned company cannot regulate “downstream” by requiring timber to be processed in-state.

White: City funded city projects who hired 50% city residents= valid.
(Dist. Camden:- ordinance req citizens.)
Can encourage but not mandate discrim.

Question 36

N Corp Test:

To determine if Act Violates Dormant Commerce Clause:

(3)

Answer 36

Act does NOT:

1. Prohibit flow of interstate independent dealers;
2. Place added cost upon dealers; OR
3. Distinguish between in-state & out-of-state companies.

Question 37

When has Congress Preempted State Law:

3

Answer 37

1) Supremacy Clause:
State law that conflicts with Fed law= Invalid.

2) Express Preemption:
Fed Law states that it preempts state law.

3) Implied Preemption:
Congress didn’t state-manifested an intent.

Question 38

How to recognize when Congress has Impliedly preempted state’s ability to legislate:

(2 Major types)

Answer 38

1) Field preemption: Scheme of fed regulation is so pervasive-infer congress left no room.

National matter traditionally left to Fed.
(Hines: Fed role in immigration- clear that fed displaced state requirements for aliens to register.)

2) Conflict Preemption:
a) Impossible to follow both, OR

b) Inconsistent with Fed Scheme:
(Gade v Nat. Waste: State’s law stood in the way of full implementation of federal law.Congress did not intend to let states supplement.)

Question 39

Formalist v Functionalist:

Answer 39

Formalism: defined by the text of the Constitution. Branches have power given in Constitution- no more, no less.

Functionalism: (like adverse possession)
If a branch takes over a certain power unresisted for a long time=it can be fairly assumed the other branches & people didn’t have a problem.
Look at how the branches have been “functioning” and what works practically, as opposed to merely what the Constitution specifically states.