Constitutional Law Final Exam

Judicial Review

The power of the federal courts to review actions of the executive or legislative branches (including laws passed by Congress) and declare them void if unconstitutional (Marbury v. Madison)

Supreme Court Authority over State Court Judgements

The Supremacy Clause makes the Constitution, federal laws, and treaties the supreme law of the land, binding on the states. When a state court decision conflicts with federal law, federal law prevails.

The Supreme Court has authority (appellate jurisdiction) over state to interpret and apply the Constitution and federal laws. This includes authority to review state court rulings on federal questions (Martin v. Hunter's Lessee).

Judicial Exclusivity in Constitutional Interpretation

The Supreme Court has the final authority to interpret the Constitution, and its interpretations are binding on state courts and state officials. States cannot disregard or refuse to follow federal constitutional rulings (Cooper v. Aaron).

What is the Case or Controversy Requirement?

Under the Article 3, Sec. 2 of the Constitution, for federal courts to have the power to hear and decide a case, it must meet the "case or controversy" requirement. This doctrine gives rise to five issues: advisory opinions, standing, mootness, ripeness, and political questions.

Advisory Opinions

The federal courts may not issue advisory opinions. An advisory opinion occurs when a court answers hypothetical questions or addresses issues in non-adversarial cases, where there is no real dispute between the parties.

Standing

1. Injury in Fact: an injury which is (1) concrete and particularized, and (2) actual or imminent

2. Causation: there must be a causal connection between the plaintiffs injury and the conduct complained of

3. Redressability: the court must be able to provide a resolution and the remedy to injury must be likely (not speculative).

Exceptions to Standing

- Third-Party Standing: generally, a plaintiff cannot sue for someone else unless their interests are so closely related to the injured parties

- No "legislator standing" unless they are personally injured

- Procedural Injury (immediacy/redressability)

- Organizational Standing: An organization can sue if it's been injured, or it can sue on behalf of its members if: (a) the members could sue themselves; and (b) the issue is related to the organization's purpose.

Mootness

A case must not arise too late to be heard by the federal court. Mootness does not equal a case or controversy because the controversy has either been resolved or eliminated. Although, there are exceptions if the case is "capable of repetition yet evading review"

Ripeness

Under the ripeness doctrine, a case must not arise too soon, or it will not be ready for decision. In addition, a case is not ripe when it is too hypothetical or speculative, or not concrete or particularized (no actual harm).

Political Questions

Non-justiciable issues the federal court will not decide because they are meant for the political branches. A case is non-justiciable if either:

(a) The issue is constitutionally committed to the unreviewable discretion of another branch; or

(b) Prudentially should be left to another branch.

- (i) Lack of judicially manageable standards

- (ii) A policy decision better suited for the political branches

- (iii) Institutional concerns like finality, the need for a single voice, respect for co-equal branches (comity), or preserving judicial legitimacy

What are Enumerated Powers and Implied Powers of the Federal Government?

Federal powers come from the Constitution through the delegation of 17 enumerated (express) powers. Additionally, Congress has implied powers through the Necessary and Proper Clause to carry out these powers.

What powers are reserved for the states?

State powers come from the 10th Amendment, which reserves powers to the states or the people that are not delegated to the federal government or prohibited by the Constitution.

What is the Necessary and Proper Clause?

The Necessary and Proper Clause grants Congress the power to make laws that are useful or convenient to execute any enumerated power or any power vested in another branch of the federal government.

Where does sovereignty lie according to the U.S. Constitution?

Sovereignty lies with the people, not merely with the state governments, as the U.S. Constitution is an agreement by the people.

What are the qualifications for the U.S. Senate and House of Representatives?

The qualifications for federal legislative offices are outlined in the U.S. Constitution, and states may not impose additional qualifications beyond those specified in the Constitution.

What power does Congress have under the Commerce Clause?

Under the U.S. Constitution (Art. I, § 8, cl. 3), Congress has the power to regulate commerce with foreign nations, among the several states, and with Indian tribes. This grants Congress the authority to regulate interstate commerce.

Police Powers

Police powers are reserved to the states, however, Congress may use the commerce power to regulate or forbid services, objects or persons claimed to be harmful. Police powers may include: inspection, quarantine, health, internal commerce of the state

Modern Categories of Commerce

1. Channels: the use of channels of interstate commerce (e.g., highways, railroads, waterways)

2. Instrumentalities of interstate commerce (e.g., trains, trucks, planes)

3. Person or things ("goods") in interstate commerce

4. Economic activities having a substantial relation to interstate commerce ("substantially affects")

What are the rules and alternatives to commandeering by Congress?

Rule: Congress cannot compel or force state legislatures to enact or enforce specific legislation.

Congressional Alternatives:

1. Spending Power: Congress can encourage state action by attaching conditions to federal funds.

2. Commerce Power: Congress may directly regulate individuals/entities engaged in interstate commerce (e.g., allowing states to restrict waste from other states).

3. Conditional Preemption: Congress can allow states to regulate in a particular area, with federal regulation applying if the states do not act.

Relationships between the Federal, State and Tribal Governments

The federal government has exclusive authority to deal with Tribes to the exclusion of the States. Federal government can assert authority when Congress desires.

Tribal Sovereignty

Tribes retain all inherent sovereign authority and rights not expressly divested or delegated

Domestic Dependent Nations

Tribes are considered domestic dependent nations that retain limited sovereignty.

Discovery Doctrine

Rooted in Papal Bulls, this principle in international law justified European powers' claims of sovereignty over Indigenous lands. It supported colonial expansion, the seizure of Indigenous territories, and the subjugation of Indigenous peoples.

State Sovereign Immunity

The 11th Amendment prohibits private suits against states in federal court without the states consent - including suits by its own citizens, citizens of another state, or foreign citizens.

What are the exceptions to state sovereign immunity?

1. States Consent: A state can waive its immunity and agree to be sued. Congress can also attach waiver conditions to federal funding.

2. Federal Laws: Congress can allow private suits:

- (a) To sue state officers acting beyond their authority for prospective injunctive relief

- (b) To sue states for retrospective damages when enforcing valid 14th Amendment rights

- (c) To sue states under federal bankruptcy laws

3. State Court Suits: A state can allow suits against itself in its own courts, but that's up to the state.

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What are the limits on Congress's power to regulate conduct through taxing powers?

Under the Taxing Clause, Congress can lay and collect taxes. A tax that incidentally regulates conduct is constitutional, but a tax that functions as a penalty is not. A tax is not considered a penalty if:

1. It does not impose an undue burden.

2. It contains no scienter (knowledge) requirement.

3. It is collected through ordinary tax methods (e.g., by the IRS).

What are the conditions under which Congress can regulate through its Spending Powers?

Under the Spending Clause, Congress can use federal funds to promote the general welfare and may attach conditions to funds to further policy objectives. Federal spending is permissible if it meets five requirements.

The Five Limitations on Conditional Spending:

1. The spending must promote the general welfare.

2. Congress must clearly state the funding conditions and consequences for noncompliance.

3. The conditions must be related to the purpose of the spending program.

4. No other constitutional provision may independently bar the condition (e.g., non-discrimination requirements).

5. The financial inducement must not be so coercive that it crosses the line from pressure to compulsion.

Dormant Commerce Clause

Applies when Congress is silent and has not passed legislation on an interstate commerce issue. It limits state and local laws that discriminate against or unduly burden interstate commerce (including cities, counties, municipalities, etc.)

What are the Three Modern Categories of Dormant Commerce Clause?

1. State laws that facially discriminate against out-of-state commerce

2. State laws that are facially neutral between in-state and out-of-state commerce but have an impermissibly protectionist purpose or effect

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

Define: State laws that facially discriminate against out-of-state commerce

States cannot pass laws that explicitly discriminate against interstate commerce unless the law serves a legitimate local purpose and no reasonable non-discriminatory alternatives exist.

Facial Discrimination = Law is written to treat in-state and out-of-state commerce differently.

Define: Facially neutral state laws with protectionist purpose or effect

A law that appears neutral but favors in-state businesses over out-of-state competitors is unconstitutional if its purpose or effect is to protect local economic interests

Courts consider:

- Does the law benefit in-state businesses?

- Are in-state and out-of-state businesses treated equally?

- Does it protect local businesses from competition?

- Are there in-state competitors being shielded?

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

Even neutral law may be unconstitutional if it disproportionately burdens interstate commerce, especially if it does not directly protect local interests

Balancing Test (Pike v. Bruce) - DCC

The balancing test compares whether the burden on interstate commerce is excessive in relation to the local benefits. The Court considers whether:

1. The law is evenhanded (not discriminatory).

2. It serves a legitimate local interest.

3. It only incidentally affects interstate commerce.

4. There are no less burdensome alternatives that could achieve the same local benefits without significantly hindering interstate trade.

Home Processing Requirements

A state may not impose a law that require goods (e.g., cantaloupe) to be processed or manufactured within the state before they can be sold or used in commerce if it discriminates or burdens interstate commerce (Pike v. Bruce)

Market Participant Exception

Allows a state or local government to favor in-state businesses when acting as a buyer, seller, or provider of economic incentives, rather than as a regulator.

Interstate Privileges and Immunities Rule

The Interstate Privileges and Immunities Clause (Article IV, § 2) ensures that citizens of one state have the same rights as citizens of other states. It prevents states from treating out-of-state citizens unfairly.

Privileges and Immunities - Two Part Test

Step 1: Does the state law that discriminates against out-of-staters violate a fundamental right?

Step 2: If discrimination burdens a fundamental right, apply the Intermediate Scrutiny Test:

- (a) Does the state have a substantial reason for the difference in treatment?

- (b) Does the discrimination against non-residents closely relate to the state's objective?

Congressional Preemption of State Regulation

Under the Supremacy Clause, federal law is supreme over conflicting state law. State law is preempted when it directly conflicts with federal law, rendering it invalid. There are three categories of preemption: (1) Express Preemption, (2) Field Preemption, and (3) Conflict Preemption

What is Express Preemption?

When Congress explicitly states its intent to preempt state law within the text of a federal statute, the only issue is whether the state law falls within the scope of the preemption.

What is Field Preemption (implied)?

Field preemption occurs when federal regulation is so extensive that it occupies the entire field, leaving no room for state regulation (consider the four factors)

What are the 4 Factors for Field Preemption?

Did Congress intend to occupy the entire field?

1. Pervasiveness of federal regulation (how pervasive is federal regulation)

2. Uniformity need for federal regulation (is there a need for Uniform federal regulation)

3. Similarity between state and federal laws (how similar are the state and federal laws?)

4. History of state vs. federal control over the subject matter (is the subject matter historically classified as state or federal?)

What is Conflict Preemption? (implied)

Conflict preemption occurs when (a) compliance with both federal and state law is impossible; or (b) when state law stands as an obstacle to the accomplishment of federal law's purpose

Can Congress consent to state laws that discriminate against out-of-state commerce?

Yes, Congress may consent to state laws that discriminate against out-of-state commerce if such discrimination is authorized by federal law. However, this consent does not permit state laws that violate other constitutional protections, such as the P&I which protects fundamental rights

What are the requirements for a state tax on interstate commerce to be constitutional?

A state tax on interstate business is constitutional if it:

1. Applies to an activity with a substantial nexus to the taxing state,

2. Is fairly apportioned,

3. Does not discriminate against interstate commerce, and

4. Is fairly related to the service provided by the state.

Intergovernmental Tax Immunities

States cannot tax federal government operations (e.g., national bank), and the federal government cannot tax state government operations. These are reciprocal immunities.

Intergovernmental Regulatory Immunities

States cannot regulate the federal government, but the federal government can regulate the states. Under the Supremacy Clause, state laws that conflict with federal laws are preempted.

Executive Assertions of Power (3 Part Test)

Justice Jackson’s 3 Part Test (Youngstown Sheet & Tube v. Sawyer)

1. Maximum Power: the President acts with express or implied authorization of Congress, the President has all Article II powers plus all the powers that Congress can delegate

2. Mid-range Power: the President acts and Congress is silent, the President has independent powers. Any overlap with Congress’s powers creates a “zone of twilight” where the President’s powers may be limited. The court’s will look to the facts of the case for a fact-specific inquiry

3. Minimal Power: the President acts contrary to an express or implied prohibition of Congress, the President has only the Article II powers that are exclusive to the President (and NOT any of the powers that overlap with Congress).

Executive Orders

The President's power to issue executive orders derives from the Constitution or an act of Congress. Executive orders direct the executive branch on how to implement policies or manage federal operations, but cannot override existing law or create new law.

Executive Agreements

An executive agreement is a valid agreement made between the President and a foreign country. Unlike treaties, it does not require Senate approval. If an executive agreement conflicts with state law, the executive agreement takes precedence over the state law.

Congressional War Powers

Article I, Sec. 8 grants Congress the power to:

- Declare War

- Raise and support Armies

- Provide and maintain a Navy

- Make laws necessary and proper for these powers

What are Congress' powers related to treaties under the Constitution?

Under Article II, Sec. 2, the President, with Senate consent (two-thirds majority), has the power to make treaties, which are the supreme law of the land (Article VI, Cl. 2) and preempt state laws. Congress can enact laws to implement treaties, overriding state laws when necessary. However, the President cannot direct states to comply with non-self-executing treaties.

What powers does Congress have over foreign affairs?

Congress has the implied power to regulate foreign affairs for the effective functioning of the federal government. When operating outside the U.S., the government is not bound by all constitutional provisions; some rights (natural rights) apply internationally, while others (artificial or remedial rights) apply only within the U.S. Congress can treat people outside the U.S., like those in Puerto Rico, differently from those within the U.S.

What control does Congress have over the Executive Branch (non-delegation)?

Non-delegation rule: Congress cannot delegate its legislative power to another branch of government.

Delegation with limits: Congress can delegate limited authority to another branch if it provides an "intelligible principle"—clear instructions on how the delegated power should be exercised.

What are the different types of presidential vetoes and how do they work?

Normal Veto: The President can veto any bill passed by Congress, canceling it before it becomes law. Congress can override the veto with a two-thirds majority in both Houses.

Pocket Veto: If the President does not sign or return a bill within 10 days, it becomes law unless Congress adjourns, making the veto absolute.

Legislative Veto: A veto by one chamber of Congress on executive actions, which violates bicameralism and presentment, and is unconstitutional.

Define Bicameralism

The process by which legislative power requires both houses of Congress to act and approve a bill before it is presented. Attempts by Congress to create or enforce laws without bicameralism and presentment are invalid.

Define Presentment

A legislative procedure by which, after both Houses of Congress pass a bill, it must be presented to the President before becoming law.

What control does Congress have over the appointment and removal of executive branch officials?

Congress can set limits on the appointment and removal of inferior officers but cannot control the appointment or removal of principal officers. Congress can determine how inferior officers are appointed (e.g., by the President, courts, or heads of departments) without Senate confirmation. Impeachment is the only method Congress can use to remove executive officers.

Can Congress appoint executive branch officials?

No. Under the Appointments Clause (Article II, §2, cl. 2), only the President can appoint executive officers—like ambassadors, Supreme Court justices, and agency heads—with Senate consent. Congress cannot appoint executive officials.

Recess Appointment Clause

Under Article II, §2, cl. 3, the President may fill vacancies during Senate recesses with temporary appointments that expire at the end of the next Senate session. Recesses include both inter- and intra-session breaks, but breaks shorter than 10 days don't count. Vacancies can arise before or during the recess. Pro forma sessions count as real sessions.

Can Congress remove executive officers?

No. Congress cannot remove executive officers; removal is limited to impeachment. The President generally has the authority to remove executive officers without cause or congressional approval, unless restricted by law.

Can Congress limit the President's power to remove executive officers?

Congress may limit the President's removal power over officials in independent regulatory agencies (i.e., those with quasi-legislative or quasi-judicial functions) by requiring removal only for cause.

Independent Counsel

An independent counsel is considered an inferior officer because of limited duties and authority. The Attorney General can only remove them for good cause. Removal restrictions are constitutional if they do not unduly interfere with the President's constitutional duties.

What is the rule for inter-branch innovations under the separation of powers?

The Constitution does not require absolute separation of powers. Courts may participate in certain inter-branch functions as long as it does not undermine the core functions of each branch.

When can Congress subpoena a sitting President's financial records?

Congress may issue subpoenas for presidential records (e.g., financial documents) if they serve a legitimate legislative purpose. However, Congress cannot issue subpoenas just to support a criminal investigation—that is the role of the executive branch.

Executive Privilege for Presidential Communications

Executive privilege is an implied power, not expressly granted, and is recognized by courts. It is not absolute but offers a presumptive privilege for communications related to military, diplomatic, or national security matters. The privilege survives a President's term but does not apply to generalized confidentiality claims.

Congressional Subpoena's (Balancing Test)

Balancing Test for Presidential Subpoenas:

1. Whether the President's papers are necessary for the legislative purpose.

2. Whether the subpoena's scope is no broader than reasonably necessary.

3. Whether Congress can offer detailed and substantial evidence of a legislative purpose.

4. What burdens are imposed on the President's ability to carry out official duties.

What immunity does the President have from Civil Damages Liability?

1. The President has absolute immunity from civil suits for damages caused by official acts performed within the scope of presidential duties

2. he President has no immunity (not even temporary immunity) for civil suits for damages caused by unofficial acts

Is the President immune from lawsuits for actions taken before becoming president?

The President is not immune from lawsuits for actions taken before becoming president. The President can be sued for actions that occurred prior to taking office

What is the President's immunity from state criminal subpoenas while in office?

The President is not completely immune from lawsuits or judicial processes (e.g., subpoenas) while in office. The President has no absolute immunity from state criminal actions, and no heightened standard is required to subpoena the President’s private records.

Can the President pardon individuals for state crimes?

The President can pardon individuals for federal crimes, but not for state crimes.

Can the President use the pardon power to prevent or reverse an impeachment?

No, the President cannot use the pardon power to prevent or reverse an impeachment.

What is the rule about Multiple Layers of Tenure Protection in the executive branch?

Congress may not create multiple layers of protection from removal for executive officers. This undermines the President’s ability to ensure executive accountability, as all executive officers must ultimately be answerable to the President.

What is the process and standard for Presidential Impeachment?

The President, Vice President, and civil officers (e.g., federal judges, cabinet officials) may be impeached for treason, bribery, or other high crimes and misdemeanours (including abuses of power or breaches of public trust)

Impeachment involves two steps:

(1) the House of Representatives initiates impeachment with a majority vote, and

(2) the Senate holds a trial and must convict by a two-thirds vote.For presidential trials, the Chief Justice presides.