I

I. Federal Judicial PowerA. Authority of Judicial Review

1. Marbury v. Madison that authorized judicial reviews of federal laws and executive actions

a. Power to review constitutionality

2. Other early supreme court established Supreme Court/Federal Courts authority of judicial review for state law and state review

a. Martin v. Hunters Lessee

B. Requirement for cases and controversies

a. Justiceability Doctrines (all are required)

1. Standing (most important) Is the plaintiff the proper party to bring the matter to the court for adjudication?

a. Injury

i. Plaintiff must show was or will be injured

ii. Personally suffered injury

iii. Sierra Club v. Morton

b. Causation and Redressability

i. Must allege that defendant is the cause of the harm and a favorable court decision will remedy the harm

ii. Federal Courts prohibition on giving advisory opinion

c. No 3rd Party Standing is allowed

i. Plaintiff cannot submit claims of another (3rd party)

ii. Exceptions:

1. Close relationship between plaintiff and injured 3rd party

a. Doctor-Patient2. If injured 3rd party is unlikely to be able to assert his or her own rights

a. Criminal Defendants have standing to raise non-discrimination claims of potential jurors

d. No generalized grievances are allowed

i. Exception

1. Taxpayers have standing to challenge government expenditures as violating the establishment clause

a. Glass v. Cohen

2. Ripeness May the federal court grant pre-enforcement review of a statute or regulations?- Usually you must violate a law, be arrested, and then challenge constitutionality

a. Hardship that the Plaintiff will suffer without pre-enforcement review

i. Greater the hardship, the more likely the court will hear the case

b. Fitness of the issues and the record for judicial review

i. Does the court have before it all it needs to hear the review

ii. Should it wait to have all the issues before it?

c. Abbott v.

3. Mootness If events after the filing of the lawsuit end the plaintiffs injury, the case shall be dismissed as moot- A plaintiff must submit a live controversya. Exceptioni. Wrongs capable of repetition but evading review

ii. Voluntary dis-cessation if the defendant voluntary halts the offending practice but is free to use it at any point in the future

4. Political Question Doctrine- Refers to allegations of constitutional violations that courts will not adjudicate- Court says that some questions are left to the elected officials to interpret

a. Examples

i. Challenges to the presidents conduct in foreign policy

1. Court would not see Vietnam challenges of constitutionality

ii. Challenges to the impeachment and removal process

1. Nixon v. United States

iii. Challenges to partisan jerrymandering

1. Beeth v. Jubilier

II. Federal Legislative Power

A. Congress Authority to Act

a. Congress may act only if there is legislated act- No general police power- Must point to authority in Constitution

b. Necessary and Proper Clause- Congress may enact all laws that are necessary and proper

1. McCulluch v. Maryland

a. Congress can use any means to carry on its authority

2. Congress may raise an army and a navy

a. They can implement a national bakesale to fund it if they wanted to

c. Taxing/Spending & Commerce Clause Powers- Article I, Section 8 lists powers

1. Congress may tax and spend for the general welfare

2. Commerce Clause Power

a. Article I, Sub B

b. 1995 Supreme first limited

i. US v. Lopez

1. Guns free schools laws were unconstitutional

c. Limits of Commerce Clause

i. Channels

1. Places where commerce occurs

a. Highways, Internet, Railways

ii. Instrumentalities of Interstate commerce in persons or things in interstate commerce

1. Trucks, trains, telephones

2. Gibbons v. Ogdon

a. Commerce refers to all forms of intercourse thus commerce can regulate insurance, electricity, etc. because they go across state lines

3. Man Act

a. Federal Crime to take a woman across state lines for unclean actsb. Court overruled

iii. Congress may regulate activities that have a substantial affect on interstate activities

1. Wickered v. Phillmer

a. Regulated amount of wheat they could grow for their own family

b. SC ruled against farmers

i. Look at all of the wheat for home consumption has a significant impact of interstate commerce

2. Non economic activities

a. Substantial affect cannot be based on cumulative impact

b. US v. Morrison

i. Civil Damages provision of the violence against women act

ii. Women could sue for damages in federal court

iii. SC ruled it unconstitutional Congress was regulating non-economic activity

d. 10th Amendment all powers not granted to the federal government are reserved for the states

1. Congress cannot compel state legislative or regulatory activities

a. Ex. Congress stated that every state had to clean up its nuclear waste

i. SC says UnCon.

ii. Violated 10th Amendment

b. Ex. Congress in Brady Handgun bill required background checks

i. SC says UnCon

ii. Conscripting state activity

c. Congress can try to induce activity by putting string on grants, as long as they are clearly stated

e. Congress power under section 5 of the 14th Amendment

1. Congress is authorized to create laws to enforce the 14th amendment

a. Cannot create expand rights or create new rights

b. Can only act to prevent or remedy violation of rights already protected by the 14th Amendment

c. Congruent to proven constitutional violations

2. City of Birmingham v. Flores

a. Congress used its power to create new rights

B. Delegation of Powers

a. No limit exists on the ability of Congress to delegate legislative powers

i. No laws have been struck down as to the delegation of powers

1. All have been upheld

ii. Ex. FCC ( delegation is allowed

b. Legislative Vetos & Line Item Vetos are unconstitutional

i. For Congress to act, their must always be bicameralism (passage both houses) and presentment to the president to sign or veto

ii. President must then sign or veto the bill in its entirety

iii. Presidential Line Item Veto1. Clinton v. XXXX

a. Unconstitutional

III. Federal Executive Power

A. Foreign Policy

a. Treaties and Executive Agreements

i. A treaty must be ratified by the Senate

ii. An executive agreement does not have the be ratified

b. President has broad power as commander and chief to use American troops in foreign countries

i. Never has been declared unconstitutional (political questions)

B. Domestic Affairsa. Appointment & Removal Power

1. Who may possess the appointment power

a. President appoints ambassadors, federal judges, and officers of the United States

i. Senate must approve the nomination for the person to take office

b. Congress may vest the appointment of inferior officers in the president, in the heads of departments or in the lower federal courts

i. Congress cannot give the appointment power to itself or its officers

2. Removal Power

a. Unless the power is limited, the president may fire any executive officer

i. Nixon ordered the firing of special investigator Cox

b. Congress can limit the power of removal if:

i. It must be an office where independence from the president is desireable

1. Special prosecutor

ii. Statute must not prohibit removal

1. It can limit removal to where there is good cause

b. The President has absolute immunity for civil suits for money damages for anything done while in office

1. President does not have immunity for acts done prior to taking office

a. Clinton v. Jones

c. Executive Privilege protects confidential papers and conversations, but the privilege must yield when there is important need for the information

1. U.S. v. Nixon

a. Watergate special prosecutor subpoenaed tapes made in the Oval Office

b. SC said that the privilege must yield in overriding concerns

IV. Federalism

- Limits on state and local powers because of the power of a federal government

- Challenge to something a state and local government has done

A. Preemption- Article 6 Supremacy Clause ( Federal Law wins out

a. Express Preemption

i. If a federal law explicitly says that the federal law is exclusive, then state and local laws are preempted

1. Federal Meat Labeling Act

b. Implied Preemption

1. Federal law and state law are mutually exclusive, the state law is preempted

2. State or local law that interferes with achieving a federal objective, the state or local law is preempted

3. If Congress evidences a clear intent to preempt state and local laws, then state and local laws are deemed preempted

a. Ex. Federal Immigration Law

c. States cannot tax or regulate federal government activity

i. McCulloch v. Maryland

1. UnCon. Tax on a federal bank by states

B. Dormant Commerce Clause & Privileges and Immunities Clause of Article 4

a. Definitions

1. Dormant Commerce Clause

a. State and Local Laws are unconstitutional if they place an undue burden on interstate commerce

b. Supreme Court infers this

c. aka Negative Commerce Clause

2. Privileges and Immunities Clause of Article 4

a. No state may discriminate against any other states regarding the privileges and immunities it gives members of its own state

b. Anti-discrimination clause against out-of-staters

3. Privileges or Immunities Clause of the 14th Amendment

a. No state shall deprive any privileges or immunities of the law

b. 1873-1999

i. No overturns

c. 1999

i. Saynes v. Rucker

1. California said that welfare benefits for the 1st year of residency are at the level of the prior state of citizenship

2. SC said unconstitutional

a. Protects rights to travel

b. Does the law discriminate against out of staters? (or does it treat them both the same)

c. Analysis if a state or local law does not discriminate

1. The privileges and immunities clause of article 4 does not apply

2. If the law puts a burden on interstate commerce, the law violates the dormant commerce clause

a. Balancing Act

i. Illinois Law all trucks that operate in the state must have curved mud flaps

1. SC said it is unconstitutional - Identified no benefit

d. Analysis if the state or local discriminates against out of staters

1. If the law puts a burden on interstate commerce, it violates the DCC unless it is necessary to uphold an important purpose or goala. Only once has the court found this purpose

i. Maine v Taylor baitfish to protect Maines habitat2. If the law discriminates against out of staters relating to the ability to earn a livelihood it violates the P&I Clause of article 4 unless it is necessary to achieve a purpose

a. Must be discrimination against out of staters

i. Applies ONLY when is discrimination against out of staters

b. Discrimination must be in relation to civil liberties or the ability to earn a livelihood

i. Tumor v. Witsow

1. Fishing license (instate $25, out of state, $2500)

2. UnCon

ii. Piper v. New Hampshire

1. In order to be an attorney in the state, had to be a resident

2. UnCon

iii. Baldwin v. Montana Fish and Game

1. Elk Hunting License difference in fees

2. SC Not UnCon hobby

c. Corporations and Aliens cannot sue under this provision

d. Discrimination is allowed only if it is necessary to achieve an important government purpose

i. Govt must show Substantial and Important interest and necessary to achieve it