Module 1
What is judicial review? What are the pros and cons of judicial review?
Judicial review allows the federal courts to declare acts of another branch unconstitutional (Marbury v. Madison).
Pro - prevents abuse of govt power
Con - counter majoritarian
What is the enumeration principle?
The three branches of the federal government may only exercise powers that are specifically granted to them in the constitution.
When is the use of Congress's taxing power constitutional?
If the tax raises revenue for the US
What is the privileges and immunities clause?
Under Article IV, § 2 of the Constitution, citizens are entitled to all privileges and immunities of citizens in the several states.
- fundamental rights
- common callings
In order for Congress to delegate legislative power, what must they establish?
An intelligible principle (Gundy).
What are the requirements for standing?
1. Injury in fact that is both concrete and particularized, and actual or imminent
2. fairly traceable to defendant's conduct, and
3. the injury is likely to be redressed by favorable court decision.
What did McCulloch v. Maryland hold regarding the necessary and proper clause?
Implied powers under the necessary and proper clause to enact laws that are convenient, useful, or essential to carrying out their enumerated powers.
What is sovereign immunity, and what are the exceptions?
The 11A of the Constitution has been generally interpreted to mean states may not be sued by private citizens in federal court.
Exceptions:
1. state consent
2. Ex parte young
3. congressional abrogation - section 5 14A power
What is preemption, and what are the various types?
Federal preemption is when Congress has invoked its enumerated powers to regulate an area of conduct, which may preempt state laws that regulate that same type of conduct.
1. Express
2. Actual conflict
3. Obstacle
4. Field
Explain executive privilege.
Executive privilege is inherent in the powers of the office, but it is not an absolute privilege.
The President must make a specific claim that the privilege is necessary to protect military, diplomatic, sensitive national security interests, etc.
What are the requirements for ripeness?
(1) purely legal; and
(2) hardship
What is the aggregation principle?
Congress may regulate smaller intrastate activities if their aggregate and cumulative effect in interstate commerce is substantial.
When is the use of Congress's spending power constitutional?
If it passes the Dole test:
1. the spending is for the general welfare
2. the conditions are unambiguous
3. the conditions are reasonably related to the purpose of the federal spending; and
4. the conditions cannot violate any other constitutional provision
What are the exceptions to the DCC?
1. congressional consent
2. market participant doctrine
What does Wilcox signal to?
Overruling Humphrey's Executor - Congress cannot limit the president's ability to remove principal officers.
What is mootness, and what are the exceptions?
Mootness is the passage of time or an intervening event that has caused the plaintiff's injury to be eradicated.
Exceptions:
1. Capable of repetition, yet evading review
2. Voluntary cessation of illegal conduct
3. Class action
4. Collateral consequences
What was the holding of Gonzales v. Raich?
Congress can regulate purely intrastate activity that is not itself commercial if Congress concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in the commodity.
What is the anti-commandeering doctrine, and what are the exceptions?
Unconstitutional for Congress to (1) require the states to regulate and/or (2) command state officers to administer or enforce federal regulatory programs.
Exceptions
1. laws of general applicability
2. the state is acting like a business
In the case of the DCC, when is heightened scrutiny applied, and what are the elements of heightened scrutiny?
Heightened scrutiny is applied when laws are explicitly discriminatory or facially neutral with discriminatory purpose or effect.
The state bears the burden of showing:
1. the law serves a legitimate, non-protectionist purpose; and
2. that purpose could not be achieved by available less discriminatory means
What are the various theories of executive powers?
1. Youngstown majority
2. Vesting clause
3. Frankfurter's concurrence - historical practices
4. Jackson's concurrence - relationship to congressional actions
What is the political questions doctrine?
The political questions doctrine is applicable when the court believes that exercising judicial power over the case would be problematic from a separation of powers standpoint.
1. Text
2. Standard
3. Initial policy determination
4. Respect
5. Reliance
6. Embarrassment
What is the Lopez test?
Under the Lopez test, Congress can regulate three broad categories: channels, instrumentalities and persons or things, and activities that substantially affect interstate commerce.
Under the third category, the Court considers:
1. If it is an economic/commercial activity
2. If there is a jurisdictional element
3. If there are congressional findings, and
4. If the activity being regulated is one typically regulated by the states.
When is Congress's use of section 5 of the 14A power constitutional?
City of Boerne
1. is the law limiting government or private conduct (state action doctrine)?
2. does the law prevent or remedy violations of the 14A?
- Can't overrule SCOTUS unless it is by amendment
3. Is the remedy both congruent and proportional to the harm?
In the case of the DCC, when is the balancing test applied, and what are the requirements for the balancing test?
The balancing test is applied when the law is facially neutral with no discriminatory purpose or effect.
Even if:
1. Legitimate local purpose
2. law regulates evenhandedly
3. burdens on interstate commerce are only incidental
The challenger has the burden to show the state law's burden on interstate commerce is clearly excessive in relations to the local benefit.
What are the tests to determine a principal v. inferior officer?
Principal officer - those exercising significant authority pursuant to the laws of the US. Continuing office established by law, exercise significant discretion while carrying out important functions.
Inferior officers - subject to removal by a higher executive branch officer; granted limited duties, not policymaking functions; limited jurisdiction; limited tenure (Morrison).