US Con Law

Question 1

Do you always starts with Constitutional text?

Answer 1

Yes

Question 2

US constitution does not establish the right to vote, then where

Answer 2

There are references to the right to vote but there is no definition on what the right to vote is

Question 3

Courts and judges are not the only players in constition interpretation

Answer 3

Yes

Question 4

How many judges are on the SC

Answer 4

9

Question 5

Supreme Court work from

Answer 5

the first monday of October untill June 30

Question 6

Need at least how many votes to get your petition granted?

Answer 6

4 out of 9 judges

Question 7

When the chief justice is in the majority

Answer 7

he gets to write the opinion but he doesn’t have to, then gets passed to the next senior justice.

Question 8

Constitution was created on

Answer 8

September 17, 1787

Question 9

Articles of Confederation is a failure because

Answer 9

states didn’t listen to it, so it had to be redone

Question 10

Article 1 defines

Answer 10

role of congress

Question 11

Article 2 defines

Answer 11

role of executive

Question 12

Articles 3 defines

Answer 12

role of Judiciary

• supreme court is created by the constitution, it must exist for as long as the constitution exists
• one supreme court not multiple

Question 13

Judicial Review

Answer 13

the power to interpret the constitution and to invalidate the acts of governments or actors in conflict with the constitution

Question 14

Problem with Judicial Reivew

Answer 14

Constitution didn’t grant judicial review, will the judge use this power responsibly?

• people said no because they are not influenced by anything
• people said yes because they are not influenced by anything so they can be impartial

Question 15

Marbury v Madison

Answer 15

Fact: installed a bunch of federalist judges in the courts to be able to retain some kind of power

Issues:

Does Marbury have a right to the commission?

Yes, if the commission was signed and sealed then he had a legal right to it.

Does Marbury have a remedy?

Yes, it is implicit in the notion of civil liberty, a fundamental principle of American law, for every right that is violated/for every legal wrong done, there is a remedy.

This case is important because it established that supreme court is a separate branch of government on par with congress and the executive. It is also the first case that exercised judicial review power by judicial branch.

Judicial review power is born from this case and to review the power of executive officials.

Question 16

Adequate and independnet state grounds doctrine

Answer 16

supreme court will not review a state court judgement that clearly and expressly rests on adequate and independent state law grounds. (Adequate to support the state court judgement and independent of federal question, resting on state law alone)

• This applies even in cases where a federal question is potentially implicated if the underlying state court judgement is based on state law rather than fed law.

Question 17

Basic Principles of Judicial Review

Answer 17

• The supreme court has the power of judicial review under its article III powers
• This power extends to acts of congress and the executive that are not discretionary, ie do not involve political questions and this power extends to state court judgements, including state court criminal judgements, as long as they don’t rely on adequate and independent state law grounds.

Question 18

Internal and external controls of Judicial Review

Answer 18

External controls are controls that come from the other branches of gov’t

Internal controls such as the petition mechanism (4/9 votes)

Question 19

Doctrine of Justiciability

Answer 19

• Another limitation of judicial power and judicial review
• These limits come from the constitution
• Article III: The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the united states and treaties made, or which shall be made, under their authority; to all cases to controversies.
• Five doctrines have been developed to determine whether something is a case or controversy appropriate for exercise of federal judicial power. these are the doctrines of justiciability which are designed to enforce the case or controversy requirement

Question 20

Prohibition in Advisory opinions

Answer 20

Federal courts do not render advisory opinions

• Federal courts hear actual, live cases and controversies involving adverse parties, for which a final judgement will make some difference. THerefore, federal courts will not render advisory opinions.

ex. the president asks for the court to give their opinion on whether a potential law/ action is unconstitutional -> court cannot do this

Question 21

Standing

Answer 21

• refers to whether the party bringing the action is the proper party to bring that action.
• Is the plaintiff the proper party raising this lawsuit?
• Whether they are raising a constitutional claim or not is irrelevant to this question.

Question 22

Constitutional Core of Standing

Answer 22

1. Injury in Fact:

• Injury in fact must be concrete and particularized
• The plaintiff must have suffered the injury (Can be physical, emotional, economic, aesthetic)
• The injury needs to be traceable to the defendants conduct
• Need to ask, who is the one getting injured and are they part of the lawsuit.
• Having an interest in a particular bad action does not grant you standing, you have to be injured from the bad action.
• For a lawsuit to pass this element, only need 1 plaintiff to have standing
• A factual showing of perceptible harm
• A mere violation of a statute does not create an injury.

2. Causation
   - The injury must be fairly traceable to the defendant
   - if they are traceable to a third party and not the defendant then there is no standing.
3. Redressability
   - Injury alleged must be capable of some redress
   - If the judge makes a decision that does not make a difference to the parties lives then they are making an advisory opinion.

• Must have all three elements to have to stand!!!!

Question 23

Massachusetts v Environmental Protection Agency

Answer 23

In terms of standing, a state can sue the federal gov’t as long as it can show hardship to its sovereign interests.

Question 24

Can you bring a lawsuit as a third party?

Answer 24

• Bringing a suit as a third party is not allowed, you cannot assert the rights of someone else.
• Unless the first party cannot represent themselves or if special relationship between plaintiff and third party or if an organization
• Zone of interest rule: plaintiffs injury must be within the zone of interest protected by the underlying law or gov’t action.

Question 25

Ripeness

Answer 25

4. Ripeness: Regarding when you can bring the suit.
   - To be ripe a decision must have:
5. You were harmed by the law, or
6. You are under threat that law will be enforced against you, or
7. You were faced with a imminent threat of the law.
   - Ex. Local prosecutor has threatened to charge you with a crime under a new law but they haven’t done it yet, but he has assured you it will happen.

Question 26

Mootness

Answer 26

5. Mootness:
   - The case no longer involves a live controversy between adverse parties. ex. Covid 19 cases on school.
   - Litigant dies, law changes, defendant paid monies owed and no longer wished to appeal the judgement

Question 27

The political question doctrine

Answer 27

Doctrine is for prohibiting judicial review in cases that are not fit for judges, anyone else can answer but not judges

• Things that are committed to the discretion of the political branches are not fit for the judiciary are political questions which courts cannot resolve.

6 categories:

Textually demonstrable commitment to coordinate branch,

Question 28

Six categories of the political question

Answer 28

1. Textually demonstrable commitment to coordinate branch:

• Does the constitution actually say this thing is for someone else to decide, if so, must take case to that branch to decide and not judiciary
• If constitution says something is for congress to decide then judiciary can’t decide.

2. Lack of judicially discoverable and manageable standard:

• The case presented an issue that judges just aren’t going to be able to figure out, it is not within the expertise of the domain of judges, might be good for policy makers but not good for judges.

3. Impossible to decide w/o making policy;

• If the court were to accept a lawsuit and it may lead to make policy determination then not for judge, that is for policy makers.

4. Impossible to decide w/o showing disrespect to coordinate branch;
5. Unusual need to adhere to decision already made
6. Potential for Embarrassment by conflicting pronouncements;

• if president says one thing and we say another, could that be potentially embarrassing and hurt US interest.

Just because a question touches on politics does not make it a political question.
- Impeachment is likely seen as political question.

Question 29

Political gerrymandering claims are seen as political questions, racial gerrymandering are not

Answer 29

yes

Question 30

Federalism

Answer 30

The distribution of power in the constitution between the states and federal gov’t

• state retain sovereignty but it is not absolute like if we’re talking about another country
• supremacy clause in constitution makes federal laws supreme to state laws when they are in conflict.

-

Question 31

Congress only has its power given to it by the constitution and anything that does not belong to it belongs to the states themselves

Answer 31

yes.

Ex. Federal gov’t has no general police powers so police power belongs to the states.

Question 32

Federalism gives states some individual liberties and allows them to try things out in terms of policy without it affecting other states.

Answer 32

Yes.

Ex. Michigan doing something and it goes bad, it won’t affect those in Arizona.

Question 33

Federalism isn’t just about preseving state power, its about balancing state power and federal power

Answer 33

Yes.

Question 34

The Necessary & Proper Clause

Answer 34

Whatever the ends are, congress can pass a law that is necessary and proper for carrying out those ends.

Necessary = Convenient or useful to carrying out some enumerated power

Proper = The use to carry out the enumerated power is appropriate

Test = End must be legitimated and must be within the scope of the constitution.

Question 35

Commerce Clause*

Answer 35

there will be a question on this in the exam.

Congress shall have the power to regulate commerce with foreign nations and among the several states and with the indian tribes

There are three distinct commerce clauses within this power
- foreign commerce clause
- indian commerce clause
- interstate commerce clause

Question 36

Interstate commerce clause

Answer 36

to regulate commerce among the several states

• Among the several states = intermingled with more than one state
• doesn’t extend to commerce that occurs exclusively and holding within one state
• commerce within a state is state power, not federal power

Question 37

How to determine Commerce clause

Answer 37

Federal gov’t can act to protect instrumentalities of interstate commerce, like railroads, even if the regulation involved activity that was wholly intrastate as a way to protect interstate commerce

• Looks at whether there is a close and substantial relation to interstate commerce.
• Interstate activities by reason of close and intimate relation to interstate commerce may fall within federal control

1. is demonstrated in the case of carriers who are engaged in both interstate commerce
   2 a question of degree, how close is the relationship or the effect on interstate commerce.

Question 38

Wickard v Filburn (Interstate Commerce Clause)

Answer 38

Interstate commerce can be affected through wholly instrastate activity as long as the wholly intrastate activity has this effect on the interstate marketplace.

• Aggregation theory -> look at everybody similarly situated to the person.
• ex. look at every farmer who is similarly situated, every farmer who over produces wheat for home consumption, when aggregating the activity, pretty obvious market will overhang.
• Cout is not saying that there has to be an actual effect on the interstate market rather congress is able to rationally conclude that there is an effect on interstate commerce.

Question 39

WHat can congress regulate under the commerce clause?

Answer 39

1. Channels of interstate commerce
2. instrumentalities of interstate commerce
3. Activities that substantially affect interstate commerce.

3.a the activity being regulated must be economic or commercial, must involve economic activity.

3.b the activity being regulated must be an essential part of a larger scheme of economic regulation.

Question 40

Can congress try to eradicate the marketplace using its commerce power?

Answer 40

It can. Ex. Marijuana -> imagine trying to regulate the marketplace for controlled substances but not regulating marijuana, it would undercut that regulatory scheme since the regulatory scheme is to go after the diversion into the illicit marketplace.

Question 41

Can congress use commerce power to induce people to engage in a particular activity so that you can then regulate that activity, the activity has to already exist to exercise the commerce clause and regulate the activity.

Answer 41

Yes.

Question 42

Anti-commandeering

Answer 42

even if congress otherwise has the authority to do something, it cannot do so, even under the commerce powers, if doing so would infringe on certain aspects of state sovereignty.

• Congress cannot commandeer a state executive official into enforcing a federal program or federal law.
• it is ok for congress to pass law that regulated state and private actors even handedly which simply said here’s federal law, you have to follow it and it doesn’t require states to do anything to enforce the federal law.
• Congress cannot use its powers to say that the states cannot pass a certain kind of law.

Question 43

Congress cannot make law that specifically operated on the states and not private individuals

Answer 43

Yes

Question 44

Dormant Commerce Clause Doctrine

Answer 44

Almost all cases regarding the dormant commerce clause involve private commercial actors or interests

• You only have a dormant commerce clause power unless there is a state law, federal laws are governed under the affirmative commerce clause
• Negative commerce clause because this gives the states power over interstate commerce whenever congress is dormant regarding an issue.
• if congress says something about interstate commerce then that governs due to supremacy and preemption but as long as there is no preemption, congress has not asserted itself over some interstate commerce question, the state’s share in power to regulate interstate commerce.
• ex if you have a state law that discriminates against out of state commerce, it is unconstitutional unless it is narrowly tailored to serve a legitimate purpose.
• Legitimate purpose must be a non discriminatory purpose, there can be no less restrictive alternatives available to the state and it must serve a legitimate state purpose.

Question 45

Anti-discrimination principle

Answer 45

Facial, purpose, effect

Law invalid unless serve legitimate purpose and narrowly tailored

Extraterritoriality: has to do with a state law that regulateds interstate commerce but it imposes obligations beyond the states borders, it forces a business to do something and spend money even if that business is not literally in the state that is doing the regulating, the state law operates extraterritorial because it binds the actions of entities beyond its borders.

Question 46

Pike balancing test

Answer 46

Law that is neutral between in state interests and out of state interests, apply this test to see

• A neutral law that is non discriminatory is valid, even if it regulates interstate commerce
• Law valid unless burden is on interstate commerce outweighs local benefits
• Law is valid as long as it is non-discriminatory and the burden on interstate commerce does not outweigh the local benefits.
• State law is not valid if there are substantial burdens on interstate commerce that would outweigh any local benefits.
• Law is presumed to be valid if it is non-discriminatory, must show that interstate commerce burden outweighs local benefits to strike down.

The very rigorous or strict test requires that the government prove that the law serves a legitimate local purpose and that the purpose cannot be adequately served by reasonable nondiscriminatory alternative means (often described by the Court as a standard of virtual per se invalidity because of how difficult it is to satisfy).

Question 47

State as Market Participants

Answer 47

Ex. State sells cement at a higher price to out of state company’s than they do to in state company’s this is discriminatory but since the state itself owns the cement company, it is valid, because the state itself is in the market, the discriminatory act is valid.

Question 48

The states can regulate when congress is dormant but the states can only regulate to the extent that those regulations are not discriminatory against out of state commerce.

Answer 48

Yes

Question 49

Westland creamery v healey

Answer 49

Had a neutral tax held unconstitutional as discriminatory

State imposed on all milk dealers in MA does not matter if they were in state or out of state

however, this is neutral but the revenue from the tax went into a subsidy that was then used to subsidize only in state dairy farmers

so this is discriminatory.

Question 50

The privilieges and immunities clause of Article IV

Answer 50

The citizens of each state shall be entitled to all privileges and immunities of citizens of the several states.

TO establish a violation of the privileges and immunities clause, you must show some discrimination against an out of state entity with respect to a fundamental right.

In practice, this boils down to the right to prevent a state from imposing unreasonable burdens on citizens of other states in:

1. privileges in trade and commerce which is when seeking a job or applying to a trade
2. the ownership and disposition of privately held property within a state
3. access within a state’s courts.

Corporations are not protected

Question 51

National executive power

Answer 51

looking at the separation of powers between congress and the president

• separation of powers is understood as a way of limiting federal power and preserving public liberty.

Question 52

Procedural Due Process

Answer 52

THe court asks does the person have a legitimate claim of entitlement to the benefit or a reasonable expectation of the entitlement

• if there is a property interest then the person must receive its processes that it is due.

Question 53

Board of Regents v Roth

Answer 53

1 year contract professor no rehired and was not given a reason or a hearing for it, he sued for due process

Question 54

Procedural Due Process: Expectation of Entitlement = proper hearing

Answer 54

Yes

Question 55

Procedural Due process for liberty or property interest - 3 pronged test

Answer 55

1. Look at the private interest in the additional process
2. What are the gov’t interests in not having the additional process
3. Look at the risk of an erroneous deprivation.

Question 56

the equal protection clause

Answer 56

no state shall deny to any person within its jurisdiction the equal protection of the law

in equal protection, we are interested in discriminating against individuals or groups that are similarly situation.

• the mere fact of a classification or of some individual or group being excluded under a law is not by itself enough to say that the law violates equal protection.