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Con Law I 2


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What are the five ways to analyze a constitutional question?
1. textual
2. founder's intent
4. historical
5. policy
What is the test for standing?
1. injury in fact
2. fairly traceable to the governmental action
3. redressability
what are the prudential limits of standing? third party actions except respodeat superior
2. no generalized grievances
3. no citizen standing, but Congress may designate a zone of interests
test for association standing
1.memebr must have standing
2. injuiry must be related to assoc. goals
3. nature of the injury and therelief that teh assocaiation is seeking is such that you do not need each person
the political question test
Court will not hear when:
1. there is a textually demonstraitve contittuional commitment to another branch or the state
Prudential limitations:
1. not without manageable judicial standards or intial policy determination
2. not when there is a need for adherence to another branch
3. there is a potential for national embarrassment
advisory opinions
prohibited by Art. III
can only adjudicate "cases and controversies"
should be avoided unless absolutely necessary to decide live dispute
1. must allege actual or immenent harm
2. issue must be concrete, unless more harm by waiting
1. must still have issue
2. must be a live dispute
ex parte Yerger
exceptions to mootness
1.if there is a case of repetition, yet evading review
2. D's voluntary cessation of activity
3. collateral consequences remian (imprisonemt, threat of continual harm)
When can the president act without authorization?
1. emergency and
2. congress has not negate that particular action
(Steel Seizure)
Executive Privilege Balancing test
1. does the executive have a high interest in exercing the privilege?
2. Is the material essential to the court's/ legislatures investigation?
areas in which the executive has a high interest in exercising his privilege
military, diplomatic, national secrets
areas in which the president ahs a LOW interest in exercising privilege
generalzied interest/ confidentiality
Flowchart of executive sending troops
1. has he introduced troops with a declaration of war (yes=valid)
2.has the president received congresstional authorizations under the war powers resolution (yes=valid)
3. have us forces been attacked (yes valid, no=invalid after 60 days)
formalist perspective
strict separation fo powers, strikes down executive power
functionalist perspective
general checks and balandce, allows greater executive power
If congress is silent on an issue, can the executive act?
If on domestic affairs, may not fulfill legislative function. Steel seizure.
If foreign affairs/war power, he gets greater deference. Dames Moore.
congress can never directly remove exceptn for impeachment
someone may be impeached for_
treason, bribes, any other hgih crime
who removes by impeachement
house chooses, senate decides
Prez may not remove non-executive officers unless Congress has conferred the right
The appointment of principal officer is given to _
the PResident with teh advice and consent of Congress
Congress may vest teh appointment of inferior officers in _
president, heads of departments, courts of law; can never directly appoint (Valeo)
test for appointment this an inferiror officer
2. is this upsetting the divisionof powers/checks and balances
Art. 1 s 8
taxing, spending, military, and commerce powers
steps to constitutionality
1. state its scope
2.are there anby plausible interpretations of the statute that would allow the court ot avoid a constitutional pronouncement
3. what regualtion/ statute/ power allows this
4. are there any external limits on the way congress can assert authority
Implied powers doctrine
congrees may exercise "necessary anbd proper" p[owers
Congressional means must have a rational basis to teh end (McCullogh)
Gibbons v Ogdne
Congress shall have the power to regulate commerc among the several states, and this power is plenary
current test for Commerce power
1. channel of commerce
2. instumentality/ thing/ person
3. substantiantial effect or relatioship to commerce
ambiguit for substantial effect favors _
Congress (Morrison)
Exceptions even if the commerce test is met
1. Congress may not regulate non-economic acitivites (Lopez, Morrison)
2. may not regualte solely on teh conducts aggregate effect (Morrison)
3. May not interfere with areas of tradionally state law (criminal)
KAtzenbach v Morgan
issues not related to voting cannot fit under teh 15th
for a statute to come under teh 14th
1. must be remedial, proportional, and congruent (Florida prepaid)
2. may not pass a law interpreting the substance of teh 14th
3. congress mjust maintain constitutional restraints
the 14th _ reach private conduct, but it can_
cannot, prohibit individuals from interfering with state officals (Morrison)
TO come under the 13th
1.action must be purposeful and invidious
2.congress determines the badges and incidents of slavery
3. if no statute, probably cover only peonage
regarding the 11th, the 13th, 14th, and 15th _ it
Overcome it, unlike commerce
alteration or effecting legal rights, duties, and relations of people outside of congress
Delgation to exective
congress may take responsibiluity for an issue if it fits under teh commerce piwer and giving regulatory power to the executive; must have an intelligble principle
necessary and proper clause
congress may use any means that is:
1. rationally related tot eh exercise of an enumerated power, and
2. not specifically forbidden by the constituion
for a treaty to be effective, it must be _
ratified by 2/3 of the senate
executive agreeemnt
superior ot state law but cannot override previous act of congress
taxing statute will be upheld as long as it collects some revenue
to come under spending power, congress action
1. must be in pursuit of the general welfare
2.must condition receipt of the funds unambigously
3. must be related to teh federal policy interest
4.may not induce states to do something unconstituional
5. may not be excessively coercive
(South Dakota v Dole)
To come under war power...
the activity must be directly/substantially connected to a war cause (woods)
Missouri v Holland
laws must relate to the conditions in the treaty, once it is validly made, congress has the power
the treaty power may contravene _ but not _
commerce power, constitutional enumerations (Reid)
to become law, legislation must...
have bicameral passage and presentment to the president (chada)
line item veto is unconstitutional becasue iot contravenes presentment
a unicameral legislative veto over the power is unconstitutional
Congres can not re-open cases that have reached final adjudication
cannot appoint ot something that is more appropriate for another branch
Conhgress has no power to alter _ jurisdiction
congress can alter the appellate jurisdiction but cannot
1. cut off all avenues of review
2. interfere with essential functions
3. control teh results in a particular case
5. entirely deprive someone of remedies
6. violate other individual liberties
federal courts may not hear state liability cases (11th) unless _
Congressionally imposed under the 4th or for injunctive relief
the policy of self restriant is due to _
1. the delicacy of teh judicial function
2. comparative finality of decisions resting on constittuional grounds
3. need tpo consider other branches
4. inherent limitations off the process
checklist for the court to hear
1. jurisdiction
brought under Art. III?
has Congress taken away?
2.standing, mootness, ripeness, political questions
states are expressly prohibited from _
making money, wagin war
Us term limits
cannot go beyond the qualifications set in teh const.
Seminole tribe
congress cannot abrogate the 11th under the commerce power
Congress cannot enact laws that require non-coinsetning states to submujt to suit in their own courts (but the states may consent)
federal immunity from staete power has several rules:
1. states may notn tax federal instrumentalites ina adirect and discriminatory way
2. tax exemptions also may not discriminate
3. state may not exercise police power over federal instrumentalities
HOWEVER, non-burdensome state regulations are acceptable.
tax emepotions may not discrimate agaisnt teh fed
State tax commission
states may not tax fed directly or discriminatorily
state may not exercise police power over fed
Art. VI
Supremacy clause
If congress and the states have passed laws that are not in direct conflkict, but the state action is contrary tot eh congressional goals of polcity or uniformity, you have _
field (war, foreign affairs, immmigration)
conflict (with the piurpose)
prudential iunsurance
congress may consent to any state law impinging on commerce unless it violates equal protection or fundamwental rights.
City of Piladelphia
discrimanatory state law have a nera per se rule of invalidity
For discrimanatory laws, must ask:
1. is the laws true effect to discrimnate against out of state or favor locals at expense of out of state there an important state purpose to which this program is related
3. does the legislation as worded closely supporet this purpose
4. is there a valid nondiscriminatory alternative
no valid alternative
Washington Apple
law discriminating against out of state interests
for facially neutral laws, must ask:
does the law at all burden interstate commerce, or cause inconsistent state regulations? (truck and train length, truck flaps);
if no, valid;
if yes must use balancing test
balancing test for facially neutral laws
If burden on interrstate commerce is greater than the benefits to regulating state, it is invalid. Pike Bruce.
Ambiguity in favor of state's purpose.
Clover Leaf
where burden on commerce is small, and the environmental benefits of a state law big, it is ok
granting exceptions to benefit local business can make a law unconstitutional
South central timber
effects of a regulation msut be within teh state's borders and may not regulate down the stream of commerce
Art. IV
privileges and iummunities
test for P and I
1. must impact an interest that is fundamental to interestae harmony
2. must be a substantial relatiohshio between teh out of state actors regulating agaisnt and the cause of the problem in state
Union v Camden
test for substantive due process
1. does the substance of a law deprive or burden life, liberty or property
2. if so, is there a valid public purpose (if yes, generally health and welfare)
3. does the law closely support the valid purpose
test for procedural due process
has the system or judicial process derpived or burdened life, liberyt, or property
2. if so, and the individual is requesting a certtian procedure, use the balancing test:
1. impact on individual
2. cost to governement
3. what is the risk of error if the requested procedure not applied

Private interst +risk of deprivation balance with government's interest
test for contracts clause
1. does the state law impair an existing contractual relationshipo (Fletcher)
2. does the state law promote a significant and legitimate state purpose
3. does the law's means reasonably and narrowly conform to this purpose
exception to an otherwise invalid act under the contracts clause
no impairment when contract includes notice of potential government action to impair the contract (Energy Reserves group)
Qeustions for takings
1. is there a taking there a valid public purpose
3. is the taking related to teh public purpose or is it clearly excessive in relation to the harm of the indicvidual
if something is "taken" what can happen
if failed test, taking is unconstituitonal and must give it back
if passed the test, take and pay compensation
exceptions to the takings clause
1. if the person never possessed the right (marijuana)
2. if therte was fair notice that a regulatory agency could change its policy
Miller cedar
taking the land for public nuisance, emergency is ok
Hawaii housing
if the government takes the land for a valid public purpose other thatn emergency, take and compensate;
if no valid public purpose, it is unconst.

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