Attack Outline Flashcards
(41 cards)
FEDERAL JUDICIAL POWER (A3S1) - Judicial Review: Judiciary may review [C.I.Q.]
- Constitutionality of federal law
- If state law is inconsistent with federal law
- Final state court decisions on CON/Federal questions
FEDERAL JUDICIAL POWER (A3S1) - XI Amendment: The Rule plus the 3 ways to bypass it (C.I.L)
Sovereign Immunity extends to all private un-consenting actions brought by persons in federal courts against states.
Bypassed by 1. CONSENT, 2. INJUNCTION against official 3. LOCAL govt/institutions unless “arm of the state”
FEDERAL JUDICIAL POWER (A3S1) - Justiciability - No Advisory Opinions (6 doctrines) [A.S.R.M.P.A.]
- No advisory opinions: Review must have concrete legal effect
- Standing: (I(CPA).C.R)1. Injury in Fact (Concrete, particularized, and either actual/imminent.) 2. Causation 3. Redressability
- Ripeness: (Except review of law if P will suffer from enforcement/is from the prospect)
- Mootness: P must have live controversy at all stages of review (except 1. Repeatable wrong 2. Voluntary Cessation 3. Class action)
- Political Question: If either 1. Constitutionally assigned to other branch 2. Inherently incapable of judicial resolution
- A.I.S.G.: If decision has force from state law and fed Q is irrelevant
FEDERAL JUDICIAL POWER (A3S1) - Standing (I(CPA).C.R.)
- Injury in Fact
a. Concrete,
b. particularized, and
c. either actual/imminent.) - Causation
- Redressability
FEDERAL JUDICIAL POWER (A3S1) - Federal Court Jurisdiction
S/C OG from CON, Else up to full A3 depending on LEG
Lower Court: Very existence of lower courts is subject to LEG
S/C OG: No modification by LEG:
1. Ambassadors,
2. ministers,
3. state party
S/C AP: Modification allowed but no directing rules of decision
CONGRESS: Regulation General Concepts: (Necessary and Proper) [L.S.F]
- No federal police power, only enumerated;
- LEG case = federalism
- If Necessary and Proper, Congress may do
a. ends legitimate,
b. within scope,
c. not forbidden)
CONGRESS: Commerce: [C.I.S.]
(1) Channel
(2) Instrumentality
(3) Substantial effect (Lopez)
- Aggregation principle (Wickard)
Expands from Old Standard of Commerce Clause before FDR to include manufacturing/production and indirect regulation; which previously was outside of CC authority.
CONGRESS: Taxing and Spending: Sebelius
Limited by mechanism rather than subject.
Sebelius: LEG can’t order people to do stuff but they can tax/spend to encourage behavior
CONGRESS: Taxing and Spending: DOLE TEST [G.U.G.C.N]
Conditional federal-state funds: okay if elements true
1. General welfare
2. Unambiguity
3. Germaneness; and
4. Constitutional compliance
5. No Severe Coercion (Sebelius, existing funding/substantial funds)
CONGRESS: Other Powers:
XIV-XVS5: (Due Process/Equal Protection) [R.C.S.]
- Remedial or preventative, but may not expand the right. (Boerne)
- Must be congruence between means/ends
Explanation: Legislation enacted under §5 must generally deter or prevent conduct that itself would violate the Fourteenth Amendment. - State action doctrine: Can’t use S5 powers against private individuals, only grants
power to regulate those capable of violating CON (states)
CONGRESS: Other Powers that are not XIII-XV, or Taxing/Spending: Other enumerated powers are: [R.I/C/S.L]
- Regulatory
- At individuals/corporations/states
- But with limits on the regulation of states by Congress (under Anti-Commandeering Principle)
CONGRESS: Treaties
Self executing treaties are enforceable without an act of congress
Non-self executing treaties need domestic legislation
If expands past LEG enumerated powers (valid); If shrinks individual rights (invalid);
Congress - Regulation of the States - New York
New York: FEDs may not compel states to action, but may pre-empt or incentivize
Congress - Anti-Commandeering Principle Generally
Anti-Commandeering Principle: If within the scope of enumerated power, still subject to analysis under the ACP if directed at states.
ACP: Congress has no power to command the state (or their political subdivisions) [or their officers] to take affirmative steps to govern their residents according to federal directives.
Four Limits [S.A.E.C]
1. Sovereign vs. proprietary capacities “Generally applicable legislation” (states can be objects of federal regulation)
2. Only forbids requirement of affirmative acts (Prohibitions are A-OK)
3. Can encourage states to act according to federal instructions with conditional spending (Dole test)
5. Can command state courts because of the Supremacy Clause
Relevant when:
1. Congress regulates states with an enumerated power that is not remedial XIVS5 (or other post reconstruction amdmts)
2. Limits on congressional power with regard to
a. generally applicable regulations b. in areas generally regulated by states Lopez: Schools/Crime Morrison: Torts
Congress: Anti Commandeering Principle Four Limits [S.A.E.C]
Four Limits [S.A.E.C]
1. Sovereign vs. proprietary capacities “Generally applicable legislation” (states can be objects of federal regulation)
2. Only forbids requirement of affirmative acts (Prohibitions are A-OK)
3. Can encourage states to act according to federal instructions with conditional spending (Dole test)
5. Can command state courts because of the Supremacy Clause
Congress: Two situations where ACP becomes relevant:
- Congress regulates states with an enumerated power that is not remedial XIVS5 (or other post reconstruction amdmts)
- Certain limits on congressional power with regard to
a. generally applicable regulations, in
b. areas generally regulated by states Lopez: Schools/Crime Morrison: Torts
Separation of Powers - Presidential Authority - Executive Action Test [C.T.P.]
(congress/twilight/presidential)
(a) Congress had implicitly authorized,
- (EXC supported by LEG)
(b) fell into the “zone of twilight” but was nonetheless permissible, or
- (No LEG opinion on EXC)
(c) contravened a federal statute, but was still constitutional because Congress had attempted to encroach on powers resting exclusively with the President.
- (EXC Opposed by LEG)
Separation of Powers - Recognition: Zivotofsky v. Kerry
President has the SOLE power of recognition
Separation of Powers - Appointment - Officers are appointees who meet two criteria: [C.S(d.f.f)]
(1) Continuing office authorized by law, and
- Act of Congress; Permanent; Persons in the Legislative Branch are not officers
(2) Exercise significant authority pursuant to the laws of the United States.
- Administrative Law Judges are officers as they are basically identical to Special Trial Judges in Freytag which were found to also be officers. Factors?
Separation of Powers - Appointment - Superior vs. Inferior officers
Superior: President appoints and senate approves
Inferior: Congress may vest appointment power in the President, Courts, or department heads.
Distinguishing the Two: Edmond: Whether one is an ‘inferior’ officer depends on whether he has a superior other than the President.
(Can make final, binding decisions on the executive branch)
Separation of Powers - Removal - Congress vs. President
Congress has no removal power except impeachment
Removal of executive officer’s is the President’s alone
Separation of Powers - Removal Limitations by Congress
Seilia: Removal limitations are presumptively unconstitutional unless
- Constitutional ONLY IF within Humphrey/Morrison boundary
Humphrey
- Multimember expert agencies without substantial executive power
Morrison
- Inferior officers with limited duties and NO policymaking/administrative authority
Separation of Powers - Other Principles - Nondelegation Doctrine
LEG cannot delegate lawmaking authority to executive agencies/private entities
Separation of Powers - Nondelegation Doctrine - “Intelligible Principle” test (giving LEG power to agencies) Yakus Congress must indicate: [P.A.B]
(1) a general policy
(2) the public agency which is to apply it; and
(3) the boundaries of this delegated authority
