Constitutional Law FINAL

When does the Fed Govt have immunity?

• what are the exceptions?

1. from suits by private individuals, and

   • can be waived

2. state taxation and regulations

   • but states can tax people who deal w the Fed govt

Which level of govt has police power: Federal, or State?

Only state govt has police power. Federal govt has no police power.

Can Congress overrule SCOTUS case law?

• What do we do when Congress contradicts SCOTUS?

Nope. No one is above SCOTUS

• Congress is to be disregarded when it contradicts SCOTUS

How do you know if a state regulation is valid?

• A state or local regulation is valid if:

  • it is rationally related to the health, safety and general welfare of its residents; and

  • does not violate any constitutional rights. 

If Fed and State law are contradictory, who wins?

Federal law

What article is the Supremacy Clause and what does it say?

Article 4 says that the Constitution is the supreme law of the land

• Says that Fed Law preempts state laws, so if they contradict the state law is always wrong.

Marbury v. Madison outlined what powers of the Supreme Court?

The Supreme Court can:

• render constitutional decisions and

• review actions by the legislature and the executive

When does SCOTUS have OG jurisdiction?

• only when one of the parties is:

  • the State;

  • an Ambassador; or

  • Public Minister or Consul

Can SCOTUS review decisions made by a state court, if there was federal jurisdiction?

Yes

Can SCOTUS review a state court decision over a state law issue?

No.

Who controls appellate jurisdiction?

Congress

What is the political question doctrine?

SCOTUS won’t hear cases with a political question involved.

What questions are political?

• war

• impeachment

• amendment process

• foreign affairs

• electoral stuff

• federal elections

What is Standing and what article is it under?

Article 4. It’s the determination of whether a specific person is the proper party to bring a matter to the court for adjudication

What are the 3 requirements of Article 4 Standing?

1. an injury

2. D’s conducts causal connection to P’s injury

3. Likelihood of redress

What’s redress?

compensation for injuries sustained

What’s prospective redress?

seeking an injunction

What’s money damages redress?

seeking monetary relief

Explain the injury requirement of Standing?

The injury must be concrete and imminent

What test should you use for the causal connection requirement of standing?

The but-for test

What kind of remedies can you get from suing the government?

you can only get injunctions or orders from the govt to stop doing the conduct complained of

• you can’t have money damages from the govt

What kinds of powers does Congress have?

• what section and article is that from?

Express and implied

• Article 1 Section 8

What are some of Congress’ express powers?

• Laying and collecting taxes,

• Regulating commerce,

• Borrowing money, and

• Conducting war

What is the rule of McCulloch v. Maryland?

• “the congress bank case”

Congress has the power to charter a national bank but not to tax it

What can Congress do with its legislative power? (3 things)

• make laws, 

• conduct investigations, and 

• all other things “necessary and proper” to enact legislation

Can Congress criminalize conduct?

• When?

Yes. Congress has the implied power to criminalize any conduct that might interfere with the exercise of an enumerated power

• they can even imprison the people that violate those laws!

What is the Article 4 rule about treaties?

If a treaty is valid there can be no dispute about the validity of the statute that implements it as a necessary and proper means to execute the powers of the govt

What does the Necessary and Proper Clause do?

grants Congress broad authority to enact Fed legislation that is convenient or useful.

What are the 3 things that Congress can regulate under the commerce clause?

1. The use of the channels of interstate commerce

2. the instrumentalities of interstate commerce or persons or things in interstate commerce

3. activities having a substantial relation to interstate commerce

What happened in Gibbons v. Ogden?

• Hint: “The ferry case”

D got license from NY state to operate a ferry boat between NY and NJ; P was licensed to do the same under federal law; D’s monopoly was preempted by the federal law and Congress trumps state law

What is a widget?

It can be anything! Even people can be widgets.

What is the rational basis test?

the means must be rationally related to a legitimate govt interest.

• You just need a hypothetical rational basis for the regulation. It doesn’t even have to be the real reason!

What happened in the Wickard case?

• Hint: “The Wheat case”

Even tho farmer’s wheat harvest was for his own personal use, it could rationally have a substantial economic impact on commerce, so Congress was able to regulate it.

What happened in 1937?

That was The Switch In Time. Before that year, Congress could regulate movement between the states but no more than that. Now, Congress has the taxing power

What is the Substantial Relationship Test?

• what is required?

Whether regulated activity substantially affects interstate commerce.

• Requires Congress to provide facts and data to support a substantial link to the activity.

• Not just hypos like RB

What happened in the Lopez case?

• Hint: “School Guns Act”

The SC struck down the Gun Free School Zone Act, holding that it was an unconstitutional exercise of Congress’s Commerce Power bc it was not “substantially related to interstate commerce”

What test do you use in an analysis of whether Congress can regulate something?

You analyze both the RB test and SR test.

What can Congress do with its taxing power?

Congress can tax anything and everything with no limits

What can Congress do with the spending power?

Congress can lay and collect Taxes, Duties, Imposts, and Excises to pay the Debts and provide for the common defense and general welfare of the US”

What are the 3 limits of the spending power?

1. Congress must have a purpose to serve the general welfare (RB test)

2. Congress has to make a clear statement of the funding condition

3. The federal grants to the states have to be unrelated to the spending program

How can Congress impeach an officer of the state?

• What article is that from?

A1 S2&3: For an officer of the state, Congress can remove them from office only if there is:

1. Impeachment by the House of Reps

2. Conviction by the Senate

What power does the 10th Amendment give?

The 10th Amendment states that any powers not specifically delegated to the Fed Govt is preserved for the states

What is Commandeering?

• Is it allowed?

When Congress forces a state legislature or the exec branch to act.

• It’s banned by the 10th Amendment.

Can Congress create an agency?

• How about giving it powers?

Yes. Congress can create agencies and delegate powers to them.

Can Congress oversee an agency they delegated power to?

No. Once Congress gives the agencies the powers, they have to leave them alone.

What are the methods of oversight used by Congress and POTUS?

1. Reprimand/Reverse

2. Hiring (appointment)

3. Firing (removal)

What’s bicameralism?

• What article and section is it from?

A1 S7: Bills must pass both House and Senate

What’s presentment?

• What article and section is it from?

A1 S7: Every bill shall be presented to POTUS

What happened in the Chadha case?

• Hint: the “Congressional control” case

Congress delegated powers to 2 agencies, and tried to step in later unconstitutional because it violates two separate provisions of the constitution

Can congress use the legislative veto power?

Absolutely not.

Does Congress have control over the appointment power?

• Who can Congress give the power to?

• Congress may vest the appointment power for inferior officers in the president, the heads of departments, or the lower federal courts

• Congress cannot give the appointment power to itself or to its officers

Can Congress use the firing (removal) power?

• Who can Congress fire?

Congress cannot “fire” agents that are out doing legislative, executive, or judicial tasks (which is 99% of agents).

What is a joint resolution?

a resolution passed by both houses of a legislative body that has the force of law when signed by or passed over the veto of the executive

What happened in the Bowsher case?

• Hint: “the firing case”

Officer was subject to firing by joint resolution, but SC said Congress can’t remove an agent who does executive, judicial, or legislative tasks

Can POTUS declare war?

POTUS cannot declare war

Can POTUS deploy troops in response to attack?

Yes. POTUS can deploy troops in response to attack

What are POTUS’s powers?

1. He controls the military;

2. He may exercise any right/power about any property which any foreign or national country may have an interest; and

3. He may exercise powers not mentioned in the Constitution as long as he doesn’t violate any federal law

What happened in the Youngstown case?

• Hint: “the steelworkers case”

Steelworkers went on strike so POTUS took over to keep it going because steel is necessary, which was illegal bc violated the separation of powers

What are the 3 ways POTUS uses power?

1. authorization by Congress,

2. twilight zone, and

3. negation

What is the Twilight Zone?

power for which POTUS and Congress may have concurrent authority, or in which its distribution is uncertain but Congress has not claimed control

What is negation as it relates to POTUS’s power?

When POTUS takes measures incompatible with the express or implied will of Congress. He can’t do this, so this is when his power is at its lowest.

What is the presumption around POTUS’s actions?

We presume that everything POTUS does is presidential

What is the impeachment clause in Article 1 Section 3 of the Constitution?

An impeached or removed officer remains subject to criminal indictment, trial, judgment, and punishment

Can you criminally prosecute POTUS while he is in office?

You can't criminally prosecute a President while they are in office

• Its like a sticker- comes off when they leave office

What happened in US v. Nixon?

• Hint: “the Watergate case”

Nixon named “unindicted co-conspirator” as sitting president during the Watergate scandal

Can POTUS be sued for money damages?

POTUS can never be sued for money damages for official acts from when he was in office

• BUT he can be sued civilly for wrongs committed before or after taking office

What happened in the Nixon v. Fitzgerald case?

• Hint: “the whistleblower case”

F analyst in the Air Force alleged that his job was eliminated in an unconstitutional retaliation for his whistleblowing against POTUS. F was unable to sue P

What happened in the Clinton v. Jones case?

• Hint: “the creepy governor case”

Clinton was sued for sexual harassment that allegedly occurred while he was governor of Arkansas. The suit was allowed because that was before he was POTUS.

Can POTUS veto portions of the taxing or spending powers?

POTUS cannot veto portions of spending and tax law

What part of the Constitution is the appointment clause?

Article 2 Section 2

What are the 4 characteristics of inferior officers?

• Subject to Removal

• Limited Duties

• Limited Jurisdiction

• Limited Tenure

Can POTUS appoint principle officers?

• what are the kinds of officers he can appoint?

• POTUS can appoint principal officers, with consent from the Senate, who are:

  • Ambassadors

  • Prime ministers and Consuls

  • Judges to SC

  • President’s Cabinet

Can POTUS appoint inferior officers?

It depends. Congress gets to choose who to give the power of appointment of inferior officers to, but it has to give the power away. They can’t keep it for themselves.

What firing (removal) power does POTUS have?

• Who can he remove?

The president may remove executive officials unless removal is limited by statute

• he can only remove independent officials sometimes

What are executive officials?

• When can POTUS remove them?

a high-level official directly appointed by the President and accountable to the executive branch

• POTUS can remove them at will

What is an independent official?

• When can POTUS remove them?

An officer who is part of an independent agency, meaning they are not under the direct control of the President

• Can only be removed by POTUS if there is good cause

What is a treaty?

• If it conflicts with other Federal law, which one prevails?

agreements between the US and a foreign country

• Last in time prevails because it’s on the same level as Federal law

Where does a treaty get its power?

its self-executing which means it has it’s own power

• it doesn’t need a Fed statute to back it up

Can a treaty violate the Constitution?

No

Can a treaty alter the constitution?

Yes. They just have to negotiate and pass the treaty, then pass a law for it

What happened in the Holland case?

• Hint: “the bird case”

US entered into a treaty with Great Britain to protect migratory birds, and it passed laws accordingly. Court ruled the law to be constitutional because it was in furtherance of a treaty, and the power to make treaties is a federal government power.

What is an executive agreement?

an agreement between the US and a foreign country that is effective when signed by POTUS and the head of the other govt

• inferior to state law unless granted Congressional authorization (Congress creates Fed statute to back it up)

Who controls the war power?

• What sections of the Constitution give the war power?

Congress and POTUS fight over it.

• A1 S8: Congress has the power to declare war and the authority to raise and support the Army and the Navy

• A2 S2: POTUS the Commander in Chief of the Army, Navy, and Militia when called into service

Who is entitled to due process?

Citizens of the US and aliens present in the US

What are the 2 limits on the power of the states?

1. Dormant Commerce Clause

2. Privileges and Immunities Clause

What does the dormant commerce clause say?

A state reg is held invalid if it imposes an unreasonable burden on interstate commerce

What is the test for determining whether a state reg imposes a burden on interstate commerce for the DCC?

You must balance:

• the burden imposed; and

• the local interest that is advanced by the state law

What is discrimination based on point of origin?

• When can it occur in a law?

• What test do you apply?

If a statute draws a distinction between in-staters and out-of-staters, then there is a strong presumption against the law

• The law will only be upheld if it is necessary to achieve an important purpose

• Test: LRA

What is the Least Restrictive Alternative test?

Legitimate end is served by the least restrictive means

• IOW: must be absolutely necessary to achieve an important purpose

When does a regulation discriminate against out of state commerce?

A state or local regulation discriminates against out-of-state commerce if it protects local economic interests at the expense of out of state competitors

• If the benefit falls only in state and the burden fall only out of state, then the law probably discriminates on point of origin

What happened in the Baldwin case?

• Hint: “the no milk case”

NY state law restricted the prices of milk produced out of state and prevented it from being sold at a lower price than in state milk.

What happened in the Philly v. NJ case?

• Hint: “the trash case”

A state statute prohibited importation of out-of-state garbage. Discriminated in favor of local trash collectors. Fails the LRA test.

What happened in Dean’s Milk Case?

Wisconsin banned milk being sold from outside local sources. This law was unconstitutional.

What is a neutral law for the commerce clause?

• What are the 2 tests?

a law is neutral if it doesn’t pose an undue burden on interstate commerce

• Tests: Rational Basis and Pike Balancing Test

What is the Pike Balancing test?

Its a balancing test with these factors:

1. legitimate objective

2. rational relationship

3. burden on interstate commerce

The burden on interstate commerce must not be clearly excessive compared to the local benefits

When can states regulate freely and discriminate b/w in and out of state commerce?

When the States are acting:

1. under Congressional Authorization;

2. Traditional govt functions; OR

3. as market-participants

What is the Market Participant Exception to the DCC?

• Can it discriminate against point of origin?

• Can it impose conditions outside that market?

When state govts enter the marketplace as a market participant to compete (via a state owned business), it can act like a private company

• and therefore can discriminate based on point of origin

• BUT they cant impose conditions outside the particular market

What is a subsidy?

a grant or payment made by a govt to help a business, industry, or public service

What is the rule about Subsidies under the MPE?

State govts may discriminate based on point of origin in favor of its own citizens when handing out subsidies