Authority and
Role
Role
McDonald’s engages in widespread sale of saltless fries in rural parts of the United States. To rectify this, Congress passes a law that says all farmers can sue McDonald’s employees for failing to put enough salt on fries, even if the plaintiff-farmer cannot demonstrate that he ever received such saltless fries. Subsequently, J. Carter sues D. Trump. Is there standing?
No. Congress cannot create standing by a statute. It is an “irreducible constitutional minimum.” It cannot be watered down by Congress or anyone else.
In Wickard v. Filburn, the Court held that Filburn’s act of growing wheat fell under interstate commerce. How did the Court justify this decision?
Aggregate effects
Where is the Dormant Commerce Clause allegedly implied in the Constitution? (Provide: article, section, clause)
Art. 1 Sec. 8 Cl. 3
Where is the Suspension Clause in the Constitution? (Provide: article, section, clause)
ABQ: Where is the Takings Clause in the Constitution?
Art. 1 Sec. 9 Cl 2
ABQ: 5th Amendment
In United Hauler, this Supreme Court Justice expressed his belief that there is no Dormant Commerce Clause
Justice Thomas
What art the requirements for standing under Art III?
You must show
1) a concrete and particularized injury that is actual or imminent
2) causation linking the injury to the challenged conduct, and
3) redressability through a favorable court ruling
According to Bailey v. Drexel, what three factors are used to determine if something is a valid tax or and invalid penalty?
1. the monetary amount
2. Scienter (intent requirement)
3. Which agency is collecting it?
What is the test for the Privileges and Immunities Clause?
1) Does the law burden a fundamental privilege?
2) If yes, does the state/city have a substantial justification for the discrimination?
3) Are the means closely related?
When can the President make an agreement with a foreign country without the Senate’s consent?
ABQ: What are the per se categories of takings?
If the treaty is self-executing.
Note to self: make sure this is correct
ABQ: confiscatory regulations, permanent physical occupation
Supreme Court of New Hampshire v. Piper (279) Invalidated a state law limiting bar admission to in state residents because it discriminated against the fundamental right of out-of-staters. Why did Justice Rehnquist dissent
Rehnquist dissent: Lawyers are different. Law should be regulated differently. Lawyers are the pool from which policy makers are chosen.
What are the 3 requirements for judiciability
1. Standing
2. Ripeness
3. Mootness
Note: Federal Courts will not hear political questions, nor will they do advisory opinions.
Congress offers money to the States, with certain conditions. What are the Dole factors for a valid use of the Spending power?
(1) serve the general welfare
(2) is a clear statement
(3) is related to the program’s federal interest, and
(4) does not violate other constitutional limitations
(5) Not coercive
Which of the following actions is MOST LIKELY valid?
A) A municipal law requiring all citizens to purchase their toothpaste at White’s Noticeably White Toothpaste Shop, thus granting a monopoly
B) A state law granting a monopoly on energy to the State Department of Energy, which causes in-state and out-of-state energy providers to lose access to the state energy market.
C) A state contract where the state agrees to sell its excess state-owned Air JordansTM to retailer Michael, but only if he first uses the shoes in advertisements with world famous athlete and state-native Josie “the Swift.”
B
Explanation:
A) Invalid (discriminatory effect on interstate commerce)
B) Valid (market participant exception)
C) Invalid (Down-stream effects: see South Central Timber Development Inc. v. Wunnicke (250))
What are the factors for determining who gets habeas corpus?
ABQ: What is the Nebbia standard for economic substantive due process?
Status
Geography
Emergency
ABQ: If the laws passed are seen to have a reasonable relation to proper legislative purpose, and are neither arbitrary nor discriminatory, due process is satisfied (low scrutiny)
What was Jackson’s 3-part framework in his Youngstown concurrence?
1. POTUS at maximum. When Congress authorizes POTUS (express or implied) then POTUS has his own powers + those powers Congress can and has delegated. POTUS gets the most deference and it is most likely to be upheld 2. “Zone of Twilight” - a middle tier. When President acts in absence of either grant or denial by Congress. He can only act on his independent powers. He and Congress may have concurrent authority. 3. Least deference from the judiciary. President acts in a way that is incompatible with Congress’s express or implied acts. President must rely on his own constitutional power, minus the constitutional powers of Congress.
What are the three exceptions to mootness?
1) Collateral consequences
2) CRYER
3) Voluntary Cessation
Which, if any, of these four laws would be valid:
1.A state tax on all waste produced outside of that state
2. A state subsidy for all petroleum processed in that state
3. A state tax on all bonds, except for bonds issued by that state
4. A federal 2% tax on all gambling that gambling advocates fear may discourage gambling
Answer: 2,3, and 4
1. Invalid (Chemical Waste Management, Inc. v. Hunt (238))
2. Valid (New Energy Co. of Indiana v. Limbach (240))
3. Valid (Department of Revenue of Kentucky v. Davis (248))
4. Valid (United States v. Kahriger (197))
During a national airplane-runway shortage, private airport corporations prioritized runway space for their self manufactured aircraft. To prevent such discrimination from occuring again, the state of Elleshu passes a law prohibiting corporations from operating private airports in the state if those corporations also manufacture aircraft. Out-of state aircraft manufacturer Parsi-Foreman sues Elleshu for discrimination against out-of staters under the Dormant Commerce Clause. What result?
The suit fails because the law equally prohibits all instate and out of-state aircraft manufacturers. It was “even handed.” (See Exxon Corp v. Governor of Maryland (260))
If Congress wants to demand documents from a sitting president for legislative purposes, what factors must be considered?
ABQ: What factors are used as part of Penn Central balancing?
Legislative purpose (needs to be detailed)
Specific subpoena (evidence needs to be uniquely significant)
Narrow scope (no broader than necessary)
Careful assessment of burdens on the president (see Trump v. Mazars)
ABQ: 1 extent to which the regulation has interfered with the distinct investment backed expectations of the claimant 2 is the action more like a physical invasion or does the interference arise from a public program adjusting the benefits and burdens of economic life to promote a common good? 3 broadly balance the public interest served by the regulation and the property owner’s interest
In Bond v. United States, a woman attempted to use chemicals to harm her homewrecking pregnant best friend. In his concurrence, Justice Scalia would have held the application of the Chemical Weapons Convention Implementation Act invalid because…
He rejects applying the necessary and proper clause to the treaty power. Treaties do not give Congress the power to make laws to enforce the treaty: making treaties is not an enumerated power [so doesn’t get necessary and proper power]. He would undue in Missouri v. Holland
Congress has passed a law allowing anyone wearing a black track suit and gold chains to be charged with a felony if they are engaged in certain “unreasonable activities.” (Assume that the Court found the law valid under the necessary and proper clause because of the effects of the track suit industry on interstate commerce). However, many privacy advocates, such as legal scholar Emma, fear that the “unreasonable activities” section is poorly worded, and allows prosecutors to charge black tracksuit enthusiasts merely if they are “excessively nervous.” Fearing for her safety, black tracksuit enjoyer Caitlin sues Attorney General Guiseppe. Will the Court hear her suit?
No, standing requires imminence. It cannot just be a speculative fear of future harm. (see Clapper (49)).
Go through the steps of an ICC analysis (including preemption)
A. Whether the state regulation is potentially in an area of federal power or concern
B. Is it an area exclusively granted to Congress? (presume concurrent)
C. Whether Congress has used its power (yes if ICC)
1. Express preemption
2. Field preemption
3. Conflict preemption
Reminder: Through in policy words
Go through the steps of a DCC analysis
A. Whether the state regulation is potentially in an area of federal power or concern
B. Is it an area exclusively granted to Congress? (presume concurrent)
C. Whether Congress has used its power (no DCC)
1. Facial discrimination
2. Purposeful discrimination
3. Discriminatory effects
4 Pike Balancing Test (undue burden > local benefit)
Reminders:
Do policy
Facial discrimination is per se invalid. note the exceptions: Quarantine and Baitfish
Answer all of the following correctly:
1. Can Congress stipulate a TWO-house veto in a law?
2. Can Congress typically use a joint resolution to authorize the President to limit arms shipments to other countries?
3. What does Congress need to delegate rule creating authority to executive officers?
1. No. Still need presentment
2. Yes, nondelegation is weakest in foreign affairs (see Curtis Wright (396))
3. An “intelligible principle” (Gundy (393))
In Printz v. United States, The Supreme Court held invalid a federal law attempting to force state officials to conduct background checks. Why did the Court hold this and why did Justice Stevens think this wasn’t a good reason?
It was commandeering . Justice Stevens believes commandeering is actually a good thing because having local officials implement national policy programs avoids the need for the overbearing presence of federal officials