Con Law Finals Notes

Judicial review

The supreme court has the power of judicial review when congress enacts a statute at odds with the constitution, the supreme court has the power to strike down the statute as unconstitutional (Marbury v. Madison)

Supreme Court authority over state court judgements

The supremacy clause establishes that the constitution, the laws of the US and the treaties are the supreme law of the land, overriding any conflicting state law. The supreme court has authority over state courts to interpret and apply the constitution and federal laws, ensuring uniformity in decisions and requiring state judges to adhere to the constitution. (Martin v. Hunter's Lessee)

Judicial exclusivity in constitutional interpretation

Under the constitution, the powers of government are separated among the branches of government. This separation of power doctrine prohibits the legislature from interfering with the court's final judgements. However, Congress may change federal statutes and may direct federal courts to apply those changes in which a final judgement has not been rendered. Congress may also amend the constitution; this is an example of equal power between the branches.

case or controversy issues

Under the constitution, it is provided that in all cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make. Whether the court will hear a case depends on whether a "case or controversy" is involved, and on whether other limitation on jurisdiction is present. No standing, mootness, ripeness, adversarial opinions, and political questions

Standing

whether a particular plaintiff may bring a suit against that defendant, that plaintiff must prove: (1) an injury in fact that is concrete and particularized, and actual or imminent, (2) that is causally connected to the defendant's action (injury must be traceable to the defendant's action and not the action of a third party), and (3) is redressable by the court where a court must be able to provide a resolution and the remedy to the injury must be likely and not speculative (Lujan v. Wildlife; Mass. v. EPA)

Ripeness

Ripeness exists where the injury a party has is hypothetical or speculative and has not occurred yet. A case may not arise too soon before the issues of the case are well defined, unless there is an imminent danger or threat, where the court will sometimes grant anticipatory relief.

Mootness

The case must not arise too late after the controversy has already been resolved and the litigants no longer have a stake in the outcome due to changes in law or facts since the initial filing. The exception to mootness is where there is potential for repetition (Roe v. Wade). If one person's issue in a class action has resolved, the case will not become moot so long as one current member's issue is ongoing

Political question

allegations of constitutional violations that the court will not adjudicate. These matters are left to the other elected branches to solve. The issue must not be committed to the unreviewable discretion of another branch or prudentially should be left to another branch. Political questions concern the separation of powers among the co-equal branches of government and not the relationship between federal and state courts (Baker v. Carr)

Advisory opinions

Opinion requested by a government official on the constitutionality of a proposed or actual governmental action. The issue must not be (1) constitutionally committed to the unreviewable discretion of another branch, or (2) one that prudentially should be left to another branch. The executive branch may enforce a law until the courts have made a final decision because the issue had an adversarial presentation assured. (US v. Windsor)

Enumerated powers

Under the constitution, congress is granted a number of express specific powers, many of which are enumerated in Article 1, section 8. It also grants congress implied powers under the necessary and proper clause

Express: powers that are expressly written in the constitution, and are the powers that delegate the congress of the US

Implied: powers that, although are not directly states in the constitution, are implied to be available based on previousy stated powers

Necessary and proper

Under the constitution, the necessary and proper clause grants congress the power to make all laws necessary and proper for carrying into execution any powers granted to any branch of the federal government. However, this clause is not itself a basis of power, it merely gives congress power to execute specifically granted powers and it limits congress as it cannot adopt laws that are expressly prohibited by another provision of the constitution (McCulloch = bank)

Location of sovereignty

Under the constitution, sovereignty lies with the people and not within the individual state governments. where congress has power, states are subordinate; federal government has supremacy over states. When congress takes action, so long as it is consistent with the constitution, federal government is superior over state government. There is a broad interpretation of the necessary and proper clause where congress has discretion to choose among appropriate means to achieve a legitimate end. States can't take actions that would threaten or undermine the sovereignty of the federal government. (NFIB)

Congressional regulation of commerce

Under the constitution, congress has the power to regulate commerce with foreign nations and among the several states, and Indian tribes. Commerce includes basically all activity affecting 2 or more states and includes transportation or traffic. There are 4 tests that the Supreme Court uses to determine if the regulations passed by congress are within the scope of its commerce power.

4 commerce power tests

1) direct v. Indirect: not used anymore

2) substantial economics test: congress can regulate purely intrastate commerce activities if they have a substantial economic impact on interstate commerce (Shreveport)

3) stream of commerce test: intrastate activities can be regulated by congress when they are an integral part of commerce flow (swift)

4) national police regulation test: congress can use its commerce power to regulate problems of morality and criminality with regards to harmful products that are a part of interstate commerce (lottery/egg/trafficking)

Police powers

Under the constitution, congress may use their commerce power under the 4th commerce powers test to regulate problems with morality and criminality by regulating harmful products that are part of interstate commerce. Congress may also regulate the transportation of goods between states and the means of regulation may have the quality of police regulations. Normally, police powers are reserved to the states, however, congress can regulate acts themselves which are harmful, cross state lines, and involve the exchange of money (Egg/lottery/trafficking)

Commandeering (legislative/executive)

congress may encourage states to engage in certain activities, but under the constitution, congress can't compel states to engage in those activities. Congress may not tell state legislatures how to legislate. Instead of commandeering, congress congress may regulate the spending power, commerce power and conditional preemption

State sovereign immunity

under the constitution, congress may not take away a state's sovereign immunity without the states the state's consent. This limitation is implied by the structure and history of the constitution. Exceptions to this limitation include state officers acting beyond their constitutional authority, states consent to being sued, states being sued under federal bankruptcy law, and congress conditioning federal spending on states agreement to waive sovereign immunity.

congressional regulation through taxing powers

Under the constitution, congress shall have the power to lay and collect taxes, duties, to pay the debts and provide for the common defense and general welfare of the US. In NFIB, the court outlined 4 requirements for a valid federal tax

4 requirements for a valid federal law

(1) the process produces some revenue for the government, (2) it's not a heavy expense, (3) there's no knowledge requirement to trigger (not a weird unknown tax ), (4) it's collected through the revenue agency (NFIB)

Congressional regulation through spending power

under the constitution, congress shall have the power to pay the debts and provide for the general welfare of the US. The spending of the federal government may be for any public purpose so long as it is a permissible exercise of the spending power. To be permissible it must meet the following 5 elements

Elements to determine is a condition of spending is constitutional

(1) condition must be tied to general welfare, (2) clear statement of funding condition and consequences of non-compliance, (3) related to a federal interest, (4) no other constitutional provisions prohibit or independently bar, (5) the financial inducement passes the point of pressure and turns into compulsion (SD v. Dole)

Congressional regulation of activity of interstate commerce (3 categories)

(1) channels of interstate commerce, (2) instrumentalities of interstate commerce; people and objects, (3) intrastate activities that substantially affect interstate commerce

State regulation of commerce

Under the dormant commerce clause, congress is silent because it has not passed legislation on a particular issue regarding interstate commerce, but the supreme court holds that the states are still prohibited from regulating interstate commerce

3 modern categories of state regulation of commerce

(1) state laws that facially discriminate against out of state commerce are unconstitutional, (2) state laws that are facially neutral between in-state and out of state commerce but have impermissibly protectionist purpose or effect are usually unconstitutional, (3) state laws that are facially neutral but have a disproportionate adverse effect on interstate commerce are unconstitutional

State laws that facially discriminate against out of state commerce

- unconstitutional

- on its face the legislation discriminates against other states and favours local businesses (geographic boundary)

- states can't ban out of state goods/services from entering the states, and states may not use discriminatory taxes/fees, tax credits or tax exemptions on goods from out of state

- states may use quarantines or other restrictions when movement is the problem, subsidies from general revenues, or differential taxes if merely compensating for costs charged to in state businesses in other ways

State laws that are facially neutral between in state and out of state commerce but have permissibly protectionist purposes of effects

- sometimes unconstitutional

- states can't favour local government interests at the expense of out of state competitors

= preventing the sale of goods produced somewhere else for cheaper (milk), prohibiting new building facilities (milk productions), using own state grades to protect their products (apples)

- exception: the court will apply a balancing test between the state local government and the harm to interstate commerce, if the benefit to the local pupils is greater than the harm to interstates commerce, the law will stand (milk containers)

State laws that are facially neutral but have a disproportionate adverse effect on interstate commerce

- unconstitutional

- the law intended to protect in-state business but has an adverse effect

- 4 factor balancing test: (1) non-discriminatory, (2) advances legitimate local public concern, (3) only incidentally effects interstate commerce, (4) there are less burdensome alternatives that could promote the local interest

home processing requirements

A state cannot facially discriminate by requiring home processing, even if it would promote a local health interest or if a more reasonable nondiscriminatory alternative exists (dean milk, carbon). It is unconstitutional when states favour private businesses, but it is constitutional for states to favour state business when there is a governmental entity participating in a traditional governmental function (United haulers garbage)

Market participant exception

An exception to facial discrimination where (1) the government acts as a buyer or seller of the goods or services, and (2) may discriminate in favour of local businesses when it functions as a market participant. The local government can provide subsidies to local businesses from general revenues (overall taxes). The market participant is limited to only allow a state to regulate the market it is a participant in but no further "downstream" after the products have left the state's hands (SC Timber)

Interstate privileges and immunities

Under the constitution, "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." This protects citizens against discrimination based on their state residency. This is a restraint on state's efforts to bar out of staters from access to local resources if a fundamental right is involved.

US v. Camden set out a state discrimination test looking at:

(1) does a state law that discriminates against out of staters violate a fundamental right?

(2) if so, does the government have a substantial reason for the difference in treatment and does the degree of discrimination bear a close relation to the reason? When looking at part 2 we must determine:

- (a) the government has a substantial reason for the different in treatment AND

- (b) does the degree of discrimination bear a close relation to the state's objectives?

Congressional preemption of state regulation (3 categories)

Under the supremacy clause, "the constitution, laws of the US which shall be made in pursuance thereof, shall be the supreme law of the land." When congress exercises a granted power, the federal law may supersede a contrary state law. A valid federal law explicitly bars certain types of state action.

The state law is preempted if (1) there is a perverse federal regulation, (2) need for uniform federal regulation, (3) similarly between state and federal law, and (4) the subject matter historically classifies as federal and not state. There are 3 categories of preemption: express preemption, field preemption, and conflict preemption

Express preemption

if congress makes a federal statute in the same area as a state statute, the federal statute will preempt

field preemption

The court requires a clear showing that congress meant to occupy a field and so displaces the states from regulating on that subject. to show this the federal regulation may be: (1) perverse scheme or (2) dominant federal interest

Conflict preemption

state law preempted because it actually conflict with federal law

- (1) compliance with state and federal law is impossible or (2) state law stands as an obstacle to accomplish and execute the full purposes and objectives of congress

- state law is not preempted where: (1) federal law sets a minimum but not uniform standard, no evidence of congressional design to occupy the field, and (2) no physical impossibility of complying with both federal and state laws

congressional consent to state regulation

Congress can pass laws that allow states to regulate in violation of the commerce clause, but not in violation of the privileges and immunities clause which is not waivable. Congress can imply consent to state laws that discriminate under the commerce clause. (White v. Mass)

State taxation on interstate commerce

state taxation of interstate business and income, state tax is upheld if it is: (1) applied to an activity within a substantial nexus within the taxing state, (2) fairly apportioned, (3) does not discriminate against interstate commerce, (4) fairly related to the services provided by the state (Wayfair)

Intergovernmental tax immunities

Under the constitution the 10th amendment provides that powers not delegated to the US by the constitution, nor prohibited to the states, are reserved to the states. States can't tax the federal government, the federal government cannot tax the state government, no immunity for employee salaries, and states cannot tax federal government property. Congress provides statutory grant of immunity to national agencies, and under the supremacy clause, states cannot tax the US government directly or closely connected agencies or instrumentalities

Intergovernmental regulatory immunities

Under the constitution the 10th amendment provides that powers not delegated to the US by the constitution, nor prohibited to the states, are reserved to the states. State regulation for the federal government is often impermissible. Employees of the federal government have some immunity but when the federal law is silent, they may be governed by state law or regulations. States cannot make any laws that are designed to hinder the execution of federal law

Executive assertions of power

The president's power to issue an order must stem from either (1) an act of congress or (2) the constitution itself. There are 3 levels of presidential authority:

(1) maximum where congress has given authority and presidential power

(2) mid range when the president acts in absence of either a congressional grant or denial or authority, he can rely on his independent powers but there is a zone where concurrent powers may exist, and

(3) minimal where the president acts contrary to an express or implied prohibition of congress, then his power is at his lowest ebb

- the president has only the article 2 powers that are exclusive to the president

executive orders

the president orders the executive branch to carry out laws or policies in a specific way. executive orders are official documents through which the president manages the operations of the federal government

executive agreements

the president's power to enter into agreements with the heads of foreign countries is not expressly provided for in the constitution; nevertheless, the power has become institutionalized. Executive agreements can probably be on any subject so long as they do not violate the constitution. They are similar to treaties but do not require the consent of the senate

Congressional war power

Under the constitution, congress shall have the power to: (1) define and punish offenses concerning the laws of nations, (2) declare war and make rules concerning captures on land and water, (3) raise and support armies, and (4) make rules for the government and regulation of the land and naval forces

Congressional treaty power

the treaty power is granted to the president by and with the advice and consent of the senate, provided 2/3 of the senators present concur. The treaty power is that of supreme law and on the par with a federal law, meaning it is supreme over the laws of the state. However, the treaty power in below that of the constitution

congressional power over foreign affairs

the president's power to represent and act for the US in day to day foreign relations. He has the power to appoint and receive ambassadors and make treaties (with advice and consent of the senate) and to enter into executive agreements. The Supreme Court has held that the power to recognize foreign states lines with the president (Zivotofsky)

congressional control over executive branch actions

Under the constitution, congress can retain control over executive officers' actions or jobs. There is a constitutional grant that all legislative power implies a principle of non-delegation in which congress cannot delegate its legislative power to another branch of government.

The non-delegation doctrine is not violated so long as congress sets forth an intelligible principle to which those exercising the delegated authority are directed to conform

Bicameralism

the process by which both houses of congress (senate and congress) must approve a bill before it is presented. Attempts by congress to create laws or control the enforcement of laws without bicameralism and presentment are invalid

presentment

a federal legislative procedure by which bills originating in congress become federal law in the US. the process in which after a bill has passed the bicameralism chambers it is presented to the president for final signature or veto

congressional control over executive branch officials

- congress cannot retail some of its power over the executive branch through a one house veto; a one house veto is unconstitutional because it violated the constitutional requirements of bicameralism and presentment

- the president cannot take a bill and sign it into law, and then scratch out selected provisions and inform congress what has changes; one line vetos are unconstitutional because they do not follow bicameralism and presentment

- a normal veto is constitutional when the entire bill has been canceled

Congressional appointment of executive officers

under the constitution, the "president shall appoint superior officers with the advice and consent of the senate which allows congress to vest appointments of inferior officers." The president shall nominate, with advice and consent of the senate, and appoint officers of the US. Congress has no role in appointment other than in giving advice and consent of the senate

Congressional removal of executive officers

Congress doesn't retain power to remove executive officers charged with execution of the laws. congress can put restrictions on presidential removal. Congress cannot reserve power of removal of an officer charged with execution of the law, except by impeachment

Congressional fettering of presidential removal of executive officers

Congress cannot vest appointment power in another other than those specified in article 2 section 2 of the constitution. This provision grants the president the authority to nominate and appoint certain officials with senate approval and allows congress to delegate appointment of inferior officers. However, congress cannot appoint itself, as it would exceed its constitutional authority

Independent counsel

an independent counsel is an inferior officer with limited jurisdiction, with limited tenure and who lacks policymaking or significant administrative authority.

Although they may be purely executive, the court will no longer follow that test in determining whether congress can include restrictions on the president's removal power. The attorney general can remove the independent counsel for good cause and the president can remove the attorney general at will

Other inter branch innovations

the framers rejected the notion that the 3 branches must be entirely separate and distinct. Co-mingling of functions of the branches, but that pose no danger of either aggrandizement or encroachment, has been held permissible by the court

Multiple layers of tenure protection

Congress may not enact legislation that creates multiple layers of protection for a party in the executive branch as the party must be accountable to the executive.

In Sarbanes Oxley, the court has found that the legislations 2 layer protection of a board member made them not accountable to the president and not accountable to the board which, therefore, was unconstitutional

Leadership structure of independent agencies

The constitution avoids concentrating power into one person except for the elected president; therefore, such authority must remain subject to the ongoing supervision and control of the elected president.

In Selia law, the court struck down the single director structure of the CFPB where the director was only removable for cause

Executive privilege for presidential immunities

- the president cannot be sued for official actions, but may be sued for unofficial actions for civil damages liability while in office. A lawsuit may be Brough to determine if the president's actions are unconstitutional, but the court may not stay a civil litigation suit arise from the president's unofficial actions

- the president is absolutely immune from civil damages liability for his official acts as president. In the absence of explicit affirmative action to remove his immunity by congress (US v. Nixon). The president does have immunity from private suits that are unrelated to his presidency (Nixon v. Fitzgerald)

Congressional subpoenas of a sitting president

Congress has set out a balancing test to determine if it is proper to subpoena a sitting president for their financial records:

- Subpoena must serve a valid legislative purpose:

(1) are the president's papers necessary for that purpose?

(2) is the scope of the subpoena no broader than reasonably necessary?

(3) is congress' evidence sufficiently detailed?

(4) what are the burdens imposed on the president?

(5) not an exhaustive list of factors, therefore, are there considerations?

Executive immunity from civil damages liability for official actions

The president is absolutely immune from civil damages liability for official acts int he absence of explicit affirmative action by congress. The president has many duties and diversion of his energies by concerns with private lawsuits that would risk ineffective functioning of the government

Executive immunity from civil damages liability for unofficial actions

a sitting president who is sued for unofficial actions cannot claim immunity, even temporary immunity. These lawsuits would not deter the president from acting in his official capacity, and such litigation would not unduly distract the president from effective discharge if his duties (Clinton v. Jones)

Criminal indictment of a sitting president

a sitting president is "constitutionally immune" from indictment and criminal prosecution. Criminal charges against a president would "violate the constitutional separation of powers" delineating the authority of the 3 branches of government. The indictment or criminal prosecution of a sitting president would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions

Criminal indictment of a sitting president - pardons

under the constitution, the president shall have power to grant reprieves and pardons for offences against the US, except in cases of impeachment. The president can issue a pardon at any point after a crime is committed and before, during or after criminal proceedings have taken place. A pardon covers both the offender's conviction of the crime and the sentence for that crime

Presidential impeachment

under the constitution, the "president, vice president, and all civil officers of the US, shall be removed from office on impeachment for the conviction of treason, bribery, and other high crimes and misdemeanours." The house impeaches the president and the senate will hear the case. Impeachment is the process by which a legislature may bring charges against an officeholder for misconduct alleged to have been committed with a penalty of removal. A US president is impeached when the house votes by a simple majority to approve one or more articles of impeachment, and then the process moves to the senate for a trial in which a 2/3 vote on at least one article is then required to convict and remove a president from office

Presidential censure

Under the constitution, a censure is a formal statement of disapproval with requires a simple majority vote. there is no action taken against a censured individual as it is only a formal statement of disapproval. Int he US, governmental censure is done when a body's members wish to publicly reprimand the president of the US, a member of congress, a judge or a cabinet member. Congress lacks lear constitutional authority to censure a president, but lawmakers use censure resolutions in their place

marshall trilogy - federal government role v. state government role

each federally recognized tribe retains the rights of an independent sovereign nation apart from the local, state or federal government. The US government has an underlying contract with the tribal nations that the tribes possess inalienable powers of sovereignty. Because the constitution vested the legislative branch with plenary powers over Indian affairs, states have no authority over tribal governments unless expressly authorized by congress

Tribal sovereignty

tribes are domestic, dependent nations that retain limited sovereignty. The essence of tribal sovereignty is the ability to govern and to protect and enhance the health, safety and welfare of tribal nations of tribal citizens within tribal territory. Tribal governments maintain the power to determine their own government structures and enforce laws through police departments and tribal courts

Domestic dependent nations

tribes are domestic because they are within the boundaries of the US. They are dependent because they are subject to the power and responsibility of the federal government. They are nations because they exercise sovereign powers over their people, property and activities that affect them

Discovery doctrine

On discovery, the sovereignty of the Indigenous peoples and their rights to sell their land were diminished, but their right of occupancy remained. The discovering nation, having ultimate title to the land, and the right to sell the land of indigenous peoples, subject to the latter's rights of occupancy