Con Law I

Question 1

Obstacles to Judicial Reivew

Answer 1

1. Political Question
2. Cases and Controversies
3. Standing
4. Exceptions Clause

Question 2

Political Question

Answer 2

Some constitutional q’s are non-justiciable. SC won’t hear issues that are:

1. Committed by the Constitution to another branch of gov’t; OR
2. Inherently incapable of judicial resolution

Question 3

Political Q factors

Answer 3

Factors to determine whether a political Question exists:

1. Textually demonstrable commmitment in the Constitution of the issue to the President or Congress
2. Whether there are judicially discoverable and manageable standards for resolving the issue.
3. Whether resolution of the Q calls for policy decisions inappropraite for judicial resolution;
4. Whether resolution of the Q will express a lack of due respect for other branches;
5. Whether there is an unusual need for questioning adherence to a political decision that has already been made; and
6. Whether there is the potential for embarassment from inconsistent resolutions by the Court and one or more political branches.

Question 4

SC can only hear cases and controversies

Answer 4

1. no advisory opinions - must have adverse parties.
2. submitted for adjudication
3. Ripeness and Mootness

Question 5

Ripeness

Answer 5

Ripe = developed into a an actual controversy (Potential exceptions: consider hardship w/out review and fitness of issues (gain anything by waiting?))

Question 6

Mootness

Answer 6

Moot = claims in which the parties no longer have any meaningful and concrete stake 
Exceptions:
1. Wrong capable of repetition
2. D free to restart
3. Class Actions

Question 7

Standing

Answer 7

Only P’s who have standing may enforce constitutional provisions.

1. Injury in Fact - Concrete and Particularized AND actual or imminent
2. Fairly traceable to the challenged conduct
3. Likelihood of redressibility (favorable ruling that is not too speculative)

Question 8

Exceptions Clause

Answer 8

Congress has some authority pursuant to the Exceptions Clause of Article III to deprive the Supreme Ct. of appellate jurisdiction.

Question 9

Legistlative Power

Answer 9

Congress’s legislative powers are derived from the express and implied powers granted by the Constitution.

Express: Article I, Section 8
Implied: Necessary and Proper Clause

Question 10

Necessary and Proper Clause

Answer 10

grants Congress the power to make all laws necessary for carrying in to execution the express powers. (Think of Bank case)

Question 11

Commerce Power

Answer 11

Absolute power held by Congress to regulate:

1. Interstate commerce
2. use of channels of commerce (roads, navigable waters)
3. instrumentalities of commerce (persons or things)
4. Interstate economic activity that Congress might rationally believe substantially affects IC

Question 12

Aggregate Effect Test

Answer 12

When determining whether the local economic activity that Congress seeks to regulate has the requisite connection to Interstate Commerce, the Court considers all of the regulated activity in the aggregate.

Question 13

Rational Basis Test

Answer 13

look this up I have no idea.

Question 14

Taxing Power

Answer 14

Congress has the power to tax for the general welfare

• Can’t impose tax as a penalty
• Can’t regulate conduct not otherwise w/in Congress’s reach (regulate through taxation)
• Court will invalidate a tax does not produce revenue and is truly a penalty

Question 15

Spending power

Answer 15

Congress can impose conditions upon the receipt of federal funds under these requirements:
Condition must be:
1. for general welfare
2. unambiguous
3. related to the federal interest n the spending
4. must not violate any Constitutional bar
5. must not be so coercive so as pressure turns into compulsion.

Question 16

War Power

Answer 16

Congress has the authority to regulate issues arising from war’s rise, progress, and aftermath.

Question 17

Treaty Power

Answer 17

Gives the President the authority to make treaties subject to a two-thirds consent of the Senate. Includes matters which would otherwise be outside of the scope of the federal power.

Question 18

Dormant Commerce Clause

Answer 18

A State law affecting interstate commerce is invalid if:

1. The state law concerns a subject for which national uniformity is necessary.
2. The state law discriminates against interstate commerce (on its face or in its effects) unless the discrimination is necessary to protect a legitimate state interest.
3. The State law imposes a burden on interstate commerce that is excessive in relation to legitimate local interests.