Judicial Power
What are "cases" and "controversies"?
(1) channels of IC
(2) instrumentalities of IC
(3) activities that substantially affect IC?
The four factors for considering whether an official is a principal officer or inferior officer (for purposes of assessing constitutionality under the Appointments Clause).
1. Pwr to fire (check: president fires --> principal)
2. Tenure of office (check: short/definite duration --> inferior)
3. Scope of power--duties
4. Scope of power--jurisdiction
For further review, see Morrison v. OlsonQ&A Book, p. 33. Question 40.
(B) is correct.
The difference between a jurisdictional hook and congressional findings.
A jurisdictional hook is statutory clause requiring the regulated activity have a connection with commerce. Congressional findings are factual material which may support the connection between the regulation and commerce.
The requirements of the mootness doctrine, including its exceptions.
- Live controversy at all stages of litigation.
- Four exceptions: wrongs capable of repetition yet evading review, class actions, defendant voluntary ceases allegedly wrongful conduct, and collateral injuries.
What is the necessary and proper clause?
The key rule language (two words) defining the non-delegation doctrine.
Intelligible principle
For further review: Recall that under Art I, Congress has express power to draft legislation, not the executive branch or an agency within executive branch.
Q&A book, p. 55. Question 70.
(D) is the correct answer.
For review of this concept, check out Reno v. Condon (considered a federal regulation regarding releasing private identifying information).
The difference between a treaty and an executive agreement
A treaty must have not only the President's approval but two-thirds of the Senate as well. An executive agreement can be entered into without Senate participation.
For further review: Article II, Section 2 gives the President power to make treaties with the consent of the Senate. Also check out Dames & Moore case, p. 395 (holding an executive agreement trading hostages held in Iran for releasing Iranian assets/claims was constitutional).
The doctrine of ripeness and its requirements.
Ripeness is about when review may be sought, especially for pre-enforcement of a statute/regulation.
Three factors:
(1) Fitness of issues for judicial decision (purely legal issues are fit).
(2) Hardship to the parties in withholding judicial consideration.
(3) Inevitability--injury is unavoidable and certain to happen.
What are commandeering state legislatures and conscripting state officials?
This clause of the Constitution provides the conditions under which the President may remove an official.
What is no clause?
The Constitution is silent on removal! There's no text on it. Instead, a series of court opinions provide further definition on when the President may remove officials from office.
Some key questions to think about:
(1) Is the office one in which independence from the president is desirable? (Think: expertise, judicial/legislative functions)
(2) Are Congress' limits on removal constitutional? (Think: Congress can limit removal to good cause, but cannot put itself in charge of removal or prescribe a "double layer" of protection from removal as in Free Enterprise Bd v. Public Accounting Oversight Bd).
Q&A Book, p. 35. Question 43.
(D) is correct.
Consider looking back at Curtiss-Wright and the cases thereafter for further review on executive power over foreign policy.The difference between the Commerce Clause and the "dormant Commerce Clause."
The Commerce Clause is found in Article I, Section 8, and provides Congress with the authority to regulate commerce, inter alia, among the several states.
The "dormant Commerce Clause" is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. There is no express constitutional provision so stating; rather, this principle is inferred from the Commerce Clause.
So note, that a Commerce Clause issue will examine whether federal legislation is constitutional pursuant to Article I, Section 8. By contrast, a "dormant Commerce Clause" issue will examine whether state legislation violates constitutional principles.
A type of standing not required by Article III, Section 2's "cases" and "controversies" limitation.
What is prudential standing?
Two types:
- Prohibition on third party standing
- Prohibition of generalized grievances
The key steps for thinking through whether Congress has power to enact a law according to its enforcement powers given in the 13th, 14th and 15th Amendments.
(1) Think through scope of amendment itself
(2) Private conduct or state action?
(3) Scope of enforcement power (for 14th: congruence and proportionality test; for 15th: check for “equal sovereignty” issues).
The rationale for the Supreme Court's decision invalidating the line-item veto, which empowered the President to cancel particular parts of appropriation bills will allowing the rest to go into effect.
The president by exercising the line-item veto was changing a law adopted by Congress; in other words, he was repealing it. No provision in the Constitution permits the President to enact, amend, or repeal legislation.
For further review, the relevant opinion here is Clinton v. City of New York, p. 337. (And the larger question considered is can Congress increase executive power?)
Q&A book, p. 21. Question 28.
(A) is correct.
The difference between the three types of implied preemption: conflicts preemption, federal objective, and field preemption.
Conflicts preemption--state and federal law are mutually exclusive so that it is impossible to comply with both
Federal objective--State law interferes with the achievement of a federal objective
Field preemption--Federal law occupies a particular area of law, preempting even complementary state law.
For further review: Be sure you can state the constitutional address for the concept of preemption. It's the Article VI Supremacy Clause. Be sure as well that you understand the difference between express preemption and implied preemption. The former is based on words in the statute that address preemption, the later is not based on express language, but rather congressional intent.
A rule statement for standing including definitions for all three elements.
(1) Injury - concrete, particularized, personally felt, actual, imminent
(2) Causation - fairly traceable to the defendant's conduct
(3) Redressability - Favorable court ruling will bring about some change
These are the five requirements which must be met when Congress attaches conditions to spending.
What are:
(1) Congress must spend for the general welfare
(2) Conditions must be unambiguous
(3) Conditions must be [rationally] related to the federal interest associated with the grant
(4) Conditions cannot conflict with independent constitutional guarantees
(5) Conditions cannot be unduly coercive (think: amount of funding, preexisting grant program)
The proper holding if a sitting president is sued for conduct occurring prior to the president taking office.
For further review: Can you state a good rule for the president's absolute immunity? When would it apply?
Q&A Book, p. 39. Question 49.
(D) is the correct answer.
Relevant material for your review is in Chemerinsky, p. 445-446. Your text notes that while there are ambiguities as to some questions on impeachment (e.g. what constitutes a high crime or misdemeanor and what procedures are required for impeachment and removal) that the Supreme Court is unlikely to address them due to the political question doctrine.
The difference between inherent executive power in domestic affairs and inherent executive power in foreign policy
Broader conception of inherent executive power in foreign policy as compared to domestic affairs.
For further review, check out Curtiss-Wright and Zivotofsky v. Kerry (p. 382-394). Note especially how in Zivotofsky, the Court uses Justice Jackson's three-part framework, concludes the case falls in category three (no deference!) but then still concludes the president's action is constitutional. The broad conception of inherent executive power with respect to foreign policy matters is at play here.