Con Law

Judicial Review

Court has the ability to review decisions by other branches of government on the grounds of constitutionality.

Judicial review as established in Marbury v. Madison

It is the province and duty of the judicial department to state what the law is.

Originalism Constitutional Interpretation

text-based interpretation

Originalism principles

Look at plain text and whether the law was written historically. Looks at framer’s intent, history and text easier to implement, can be applied through analogy.

Non-originalism Constitutional interpretation

The Constitution is a living document

Non-originalism principles

Look at modern needs and make the Constitution more modern and applicable. World changes, and constitutional interpretation should too.

Congressional Limits

Congress can only limit Supreme Court Appellate jurisdiction - Not original jurisdiction

Original Jurisdiction - Granted by Article III Section I

All cases affecting ambassadors other public ministers and consuls, and those in which a State shall be a party. Congress cannot change this!

Appellate Jurisdiction - Exceptions and Regulation Clause

Supreme Court has appellate jurisdiction over all other cases not in its original jurisdiction with such Exceptions and under such Regulations as the Congress shall make

Original Jurisdiction meaning

If the Court has original jurisdiction, a party may commence litigation in the Supreme Court in the first instance rather than reaching the high court on appeal from a state court or an inferior federal court

Justiciability

Limits on cases that federal courts can hear. Five Doctrines - Prohibition against advisory opinions, standing, ripeness, mootness, political questions

Prohibition on Advisory Opinions

Supreme Court/ federal courts cannot issue advisory opinions. There must be adverse litigants

Standing definition

Determination of whether a specific person is the proper party to bring a matter to the court for adjudication. Is litigant entitled to have the court decide the merits of the dispute?

Standing requirements

Injury, causation, redressability

Injury

Party must have concrete/ particularized or imminent injury - Plaintiff must prove that they suffered or will imminently suffer an injury

Injury in injunctive cases

Plaintiff must show harm is likely to occur again.

Causation

In jury must be traceable to the challenged conduct of the defendant (not too attenuated)

Redressability

A favorable court decision is likely to address or redress the injury. Necessary parties must be a part of the litigation and judiciary must have power to order restitution

Redressability exceptions ** check notes

Political question doctrine

SCOTUS may not address political questions which are issues committed to another branch of the federal government or issues inherently incapable of resolution and enforcement by the judicial process. Ex. Foreign policy, impeachment and removal, gerrymandering. Does not apply to conflicts between state and federal governments.

Legal basis of Political Question Doctrine

Comes from Constitutional premise of separation of powers. Marbury v. Madison - “Some matters are so inherently political that they are best left to the political branches resting on the principles of separation of powers.”

Political Question Test Categories

(1) Issues textually committed to another branch. (2) Issues beyond judicial expertise, (3) other prudential concerns that counsel against the court advising on the matter

PQD - Issues textually committed to another branch

Is there a textually demonstrable constitutional commitment of the matter to a coordinate branch of government?

PQD - Issues beyond judicial expertise

(1) Is there a lack of judicially discoverable and manageable standards for resolving the matter? (2) Is there an impossibility of deciding without initial policy determination requiring non-judicial discretion?

PQD - Other prudential concerns that counsel against advising

(1) Is it impossible for the court to decide the matter without expressing a lack of respect for a coordinate branch of government?, (2) Is there an unusual need to adhere to a political decision already made?, (3) Is there a potential for embarrassment from multifarious pronouncements by different departments?

PQD and Gerrymandering - Equal protection clause

Challenges to gerrymandering brought under Equal protection is not a political question and is justiciable.

PQD Political Gerrymandering

Partisan gerrymandering is not justiciable because they present a political question beyond the reach of the federal courts

Enumerated Executive Powers

Commander in chief, executes and enforces laws. Makes treaties (with advice and consent of senate), grant reprieves and pardons. head of executive departments, nominates ambassadors and justices

Presidential Authority - Youngstown Triparte Test Zone 1

Maximum power - Executive power is at its maximum when the president is relying on Article II power with Congressional authorization. Actions are presumed constitutional

Presidential Authority - Youngstown Triparte Test Zone 2

Twilight Zone - Executive power is in a Zone of Twilight when Congress has not spoken to grant or deny authority and the President acts using only their Article II power. Actions must be analyzed to determine their constitutionality.

Presidential Authority - Youngstown Twilight Zone Consideration

When looking at presidential authority, especially in Zone 2, examine the non-delegation and major questions doctrines. Counter will be that there is an invasion on the separation of powers

Presidential Authority - Youngstown Triparte Test Zone 3

Lowest Ebb - Executive power is at its lowest ebb when the president takes action in conflict with congressional authority. President must have express authority under Art. II or their action is presumptively unconstitutional

Executive privilege definition

Presidential documents and conversations are presumptively privileged. Privilege yields when there is a need for these documents as evidence in a criminal case when they would be admittable. Determination made by the trial judge after hearing the evidence and engaging a balancing test. There is NO ABSOLUTE PRIVILEGE

Executive privilege balancing test

Judges balance the president’s interest in confidentiality and other branch’s constitutional interests. Military, diplomatic, and sensitive national security secrets are given the most deference by courts.

Limits on executive privilege - Nixon

Presidential communications will be available to the prosecution where a need for such information is demonstrated.

Limits on executive privilege - Cheney

Executive privilege is given more deference and implemented more often in civil cases

Limits on executive privilege - Trump I

The grand jury in a state criminal prosecution may subpoena a sitting president’s records without a heightened showing of need

Limits on executive privilege - Trump II

To determine if Congress can subpoena the president, court must analyze (1) Are there other sources available to get the subpoenaed information, (2) Is the subpoena sufficiently narrow, (3) is the subpoena sufficiently explained and specific, (4) Is the subpoena too burdensome on the president?

Executive privilege if Congress subpoenas:

NSCB - New Shoes Create Bills (Numerous ways to get info, specific, clear. burdensome)

Executive immunity

President cannot be sued for civil suits or damages related to their official capacity. Only for action taken while officially in office.

Appointment power

President has the authority to appoint, along with advice and consent of the senate, Ambassadors, other public ministers and consuls, SCOTUS judges, all other officers of the US, Inferior officers

Administrative agencies and possessed powers

Legislative - can promulgate rules that have force of law; executive branch - can enforce these rules; judicial - Administrative judges

Non-Delegation Doctrine

Congress may not delegate its legislative power to administrative agencies without providing intelligible criteria. If intelligible criteria is lacking, statute is declared unconstitutional and the agency action is revoked

Major Questions Doctrine

Administrative agencies may exercise powers with a significant impact on politics or economics only if there is a clear congressional authorization allowing the agency’s actions. If not authorized, law remains but agency action is revoked.

Legislative Veto

Unconstitutional - does not meet requirements of presentment (bringing act to president for approval or veto) and bicameralism (approval by a majority of both houses to ratify legislation)

Tools for congress to control executive agencies

Slash agency budget, use appointment power, hold a hearing with agency, pass a law to override agency decision.

Executive Foreign affair powers

Powers to recognize foreign governments, make treaties (with senate), extinguish treaties, serve as commander in chief, represent nation in day to day negotiations with foreign countries

Legislative Foreign affair powers

Regulate foreign commerce. make treaties (with president), raise and maintain armies, declare war

Foreign Powers Constitutionally

Federal government internal powers carved out from state powers in constitution. Fed gov has control over foreign affairs because its external sovereignty did not depend on grants of power from the constitution. Congress can delegate its foreign affair law making powers to president as he is the head of foreign relations.

Dissent for presidential immunity

U.S. is a government of laws, not of men

Temporary executive immunity

Idea that sitting president cannot sit for trial because it would hurt the time and devotion to presidential duties -NOT CONSTITUTIONAL.

Impeachment - Generally

Ultimate check on the president (also VP and federal judges). The house has the sole power to start an impeachment, needing a majority. Then, senate holds a trial in which 2/3 must convict to remove the president. Chief Justice presides

Crimes of impeachment

High Crimes and misdemeanors - could be criminal acts or whatever a majority of the House agrees on

Congressional Authority: Big Questions

(1) Does Congress have the constitutional authority to legislate? (2) If so, does the legislation violate another constitutional provision or doctrine (10th amendment)?

Necessary and Proper Clause

Congress shall have the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States. Must be paired with an enumerated power.

Necessary and Proper clause counterpoint

Not necessary and proper

Commerce Clause

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

Parts of Commerce that Congress can regulate

(1) Channels of Interstate Commerce, (2) Instrumentalities, persons, and things, (3) Activity having a substantial relation to interstate commerce

Channels of interstate commerce

Roads, highways, airspace, waterways, trains

Instrmentalities

automobiles, goods themselves

Activities that have a substantial effect on interstate commerce test

(1) Is the activity economic in nature? (2) Is the activity non-economic? If so, is there a substantial effect with a nexus* connected to interstate commerce? (weed case)

Jurisdictional nexus

PROOF* needed to prove that there is a connection/ nexus between non-economic activity and interstate commerce

Commerce Clause Analysis Questions

(1) What is the congressional act? (2) What is being regulated? (3) Is it in a category that congress can regulate? (4) is the activity being regulated an economic activity?

Commerce Clause counterpoint

Not specifically enumerated in 10th amendment. No power!

Anti-Commandeering doctrine

Federal government may not commandeer the state or its officials to carry out federal objectives or issue direct orders to states. Congress cannot order states to regulate federal programs or direct orders to state legislatures

Federal powers in emergencies

Emergencies do not grant Congress or the President/ Executive branch additional powers - Only powers granted by the constitution!

Taxing and Spending Power

Congress shall have power to lay and collect taxes, duties, imports, and excises to promote the general welfare

Taxing power

Congress has the power to tax (or spend) as they see fit for the general welfare as long as it does not violate other Constitutional provisions. Does not need to be within enumerated powers

Taxing power for test

What is the reasoning behind utilizing the taxing power in this way? How does Congress expect the tax to provide for the general welfare? Were there hearings? What are they trying to help with?

Spending powers

Congress has power to spend as it sees fit for the general welfare, not just when aligned with Article I powers. Usually involves conditional grants, but there are limits.

Under spending power, conditional grants must…

(1) Relate to the general welfare, (2) be clear and unambiguous, (3) relate to the federal interest in the particular program, (4) not be barred by another constitutional provision.

Clear and unambiguous

The consequences for not following the law (%$)

Under spending power, conditional grants must NOT…

Be unduly coercive

What is a coercive amount?

Dole - 5% is not coercive; Sebelius - 100% is coercive

Counterargument for spending clause

Regulation amount is coercive

State sovereign immunity

States have some immunity under the 11th amendment so generally cannot be sued in federal court. When they are sued it can ONLY be for injunctive relief.

Exceptions - When states can be sued in federal court (1)

State officials can be sued in their personal capacity for monetary damages and in their official capacity for injunctive relief

Exceptions - When states can be sued in federal court (2)

When states explicitly waive immunity

Exceptions - When states can be sued in federal court (3)

When Congress has authorized suit pursuant to its 14th amendment enforcement powers

Reconstruction amendments power

Congress is granted the power to enforce the 13, 14, and 15 amendments

13th Amendment

Abolished slavery (except for punishment as a crime)

14th Amendment

All people born in the US are citizens of the United States… Not State shall make or enforce any law which abridges the privileges or immunities of US citizens, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person equal protection under the laws

15th Amendment

The right of citizens to vote shall not be denied or abridged by the US or by any state on account of race, color, or previous condition of servitude.

Limits on state power to regulate - Congress has acted

Pre-emption (using supremacy clause)

Limits on state power - Congress has not acted

Dormant Commerce Clause or Privileges & Immunities

Preemption requirements

Statute passed by Congress that represents a valid exercise of Constitutional power.

Preemption reasoning

Certain matters are of such national, as opposed to local, character that federal laws preempt or take precedence over state laws. When there is a conflict between federal and state law, under the supremacy clause, federal law controls and the state law is invalidated

Two types of preemption

Express and Implied

Express preemption

In federal law, congress specifically says that there is something the state cannot do. “State cannot regulate XYZ.” Precludes states from acting in an intended area

Implied Preemption Categories

(1) Conflict preemption, (2) Field preemption, (3) Impedes federal objective

Conflict preemption

When it is impossible to comply with both federal and state regulations because the laws are mutually exclusive.

Conflict preemption Analysis

If it is possible to comply with both state and federal laws, no conflict preemption. If federal regulation is lower than state regulation and compliance with both is possible, no preemption. If you cannot comply with both, the state law is preempted.

Conflict preemption test

look at the “floor” (minimum standard) or the “ceiling” (higher standard) set by congress to determine if it is possible to comply with both.

Field Preemption

If congress has explicitly determined that a field should be handled exclusively by federal government, federal law is pervasive and there is no room for state laws to supplement

Strictly federal fields

Immigration, space, foreign affairs, bankruptcy, patent

Fields typically left to states

health and safety regulations

state law impedes federal objective

If state law imposed the achievement of a federal goal or if state law is an obstacle to accomplishment of the full purposes and objectives of congress. For preemption, law must GO AGAINST congressional objective. Complimentary laws okay

Dormant commerce clause - generally

The principal that state and local laws are unconstitutional if they place an undue burden on interstate commerce

Dormant Commerce Clause First Question

Is the law discriminatory against out-of-staters, or does it treat in and out of staters alike?

Dormant Commerce Clause First Question Factors to consider

(1) Are there obstacles for interstate dealers? (2) Does it impede the flow of interstate goods? (3) Does it add costs to interstate goods? (4) Does it create distinctions between in-state and out of state sellers? (5) Does the law serve an economic protectionist purpose?