BAR FLASHCARDS - CL Part 1_ Powers of the Fed Gov

Question 1

THE FEDERAL JUDICIAL POWER

Answer 1

Federal judicial power extends to cases involving:
• Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws, and
• Disputes between states, states and foreign citizens, and citizens of diverse citizenship

Question 2

IS THERE A CASE OR CONTROVERSY

Answer 2

Federal courts are courts of limited jurisdiction- No Advisory Opinions.
Must have ripeness, not be moot, must have standing. No Adequate and independent state grounds

Question 3

Cases and Controversies - REQUIREMENT FOR CASES AND CONTROVERSIES

Answer 3

Article II uses this word. SC interprets this as limits (4 justiciability doctrines). Article III of the Constitution limits the powers of the federal courts using the two words “cases and controversies” . “Justiciable” here means the federal court may hear the case.

Question 4

Justiciability

Answer 4

Justiciability refers to the concept that a case may be tried in court. In federal courts it is a broad term that encompasses a number of more specific topics, such as ripeness, mootness, and standing.

Question 5

4 justiciability doctrines

Answer 5

Standing, Ripeness, Mootness, Political Question doctrine.

Question 6

Standing

Answer 6

Most important. Standing is the issue of whether the plaintiff is the proper party to bring a matter to the court for adjudication. Standing concerns whether the plaintiff is the proper party to bring a matter to the court for adjudication. A person must have a concrete stake in the outcome of a case at all stages of litigation, including on appeal.

Question 7

4 requirements to have standing

Answer 7

Injury; Causation and redressability; no third party standing; no generalized greivances.

Question 8

Standing Summary

Answer 8

A person has standing if she can demonstrate a concrete stake in the outcome of the controversy shown by an injury in fact-caused by the government-that can be remedied by a ruling in the plaintiff’s favor (i.e., causation and redressability).

-plaintiff must have a concrete stake in the outcome at all stages of litigation
a. Injury in fact—specific injury, not theoretical
1. Taxpayers—too remote/abstract
a) Exception: Taxing and spending measures that violate the Establishment Clause
b. Remediable by court decision

Question 9

Standing requirement: injury in fact

Answer 9

To have standing, a person must be able to prove that they have been or imminently will be injured. Plaintiffs may only assert injuries that they personally have suffered. It isn’t enough to show merely that a federal statute or constitutional provision has been violated (and that we all suffer when that happens). However, the injury need not be economic. For example, a person with an interest in the environment could have standing to challenge a government policy that allegedly will discourage recycling.
- Injunctive or Declaratory Relief: Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm.
- Test Cases: Standing isn’t defeated simply because the plaintiff wanted to bring a case to test the constitutionality of a particular rule. The injury is still traceable to the government, even if the plaintiff knowingly triggered the application of the rule.

Question 10

Injury

Answer 10

The plaintiff must allege and prove that he or she has been injured or imminently will be injured
i. Personally suffered. Plaintiffs only may assert injuries that they personally have suffered. (Sierra Club v. Morton) (Clapper)
ii. Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm (Lyons).

Question 11

in most suits by taxpayers involving allegations of violations of the Taxing and Spending Clause, standing will…

Answer 11

in most suits by taxpayers involving allegations of violations of the Taxing and Spending Clause, standing will not be found because the taxpayer’s interest is too remote.

Question 12

Standing requirement: Causation and redressability.

Answer 12

Redressibility is the part of standing that provides that a decision in the plaintiff’s favor must be able to eliminate/remedy the harm. The plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury. (Hospitals providing free care case).
Causation: There must be a causal connection between the injury and the conduct complained of. The plaintiff must allege and prove that the defendant caused the injury (causation) so that a favorable court decision is likely to remedy the injury (redressability). This is because Article III prohibits courts from issuing advisory opinions (discussed further below).
Rule statement: the injury must be traceable to the challenged government conduct and not attributable to a third party, and a declaration that the government conduct is illegal or unconstitutional must be capable of eliminating the harm.

Question 13

Standing requirement: No third party standing.

Answer 13

A plaintiff cannot assert claims of others, of third parties, who are not before the court.
i. Exception: third party standing is allowed if there is a close relationship between the plaintiff and the injured third party. Sufficient identity of interests.
ii. Exception: third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights
iii. Exception: (assoc’ standing) an organization may sue for its members, if
— the members would have standing to sue;
— the interests are germane to the organization’s purpose; AND
— neither the claim nor relief requires participation of individual members

Question 14

Standing requirement: No generalized grievances

Answer 14

The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law. AKA neither citizenship standing nor taxpayer standing are sufficient unless an exception applies.
- Exception - Establishment Clause Challenges: taxpayers have standing to challenge government expenditures of money pursuant to federal (or state and local) statutes as violating the Establishment Clause.
- Exception—Challenging Tax Bill: A taxpayer has standing to litigate their tax bill (for example, whether they really owe X dollars).

Question 15

No generalized grievances Examples:

Answer 15

—Taxpayer has standing to challenge federal law providing monetary aid to parochial schools
—Taxpayers do not have standing to challenge federal government grants of property to religious institutions
—Taxpayers do not have standing to challenge federal government expenditures from general executive revenues
—Taxpayers do not have standing to challenge state tax credits that benefit religious institutions

Question 16

Taxpayer standing

Answer 16

In general, a taxpayer has no standing to challenge the expenditure of federal funds. The major exception to this rule is where the taxpayer alleges that the expenditure was enacted under Congress’s taxing and spending power and exceeds some specific limitation on that power, in particular the Establishment Clause.

Question 17

For a taxpayer to have standing, ___ ___ ___ must be involved

Answer 17

For a taxpayer to have standing, remember that Congress’s spending power must be involved

Question 18

Would a person have standing as a taxpayer to challenge federal government grants of surplus property to religious groups or expenditures of general executive branch funds?

Answer 18

No, no standing as a taxpayer to challenge federal government grants of
surplus property to religious groups (because Congress is using the property power rather than the spending power) or expenditures of general executive branch funds (because the executive branch is doing the spending, not Congress).

Question 19

Who has the best standing?

Answer 19

economic loss.

Question 20

Standing of members of Congress to challenge a law

Answer 20

The Supreme Court has held that members of Congress lack standing to challenge a law authorizing the President to exercise a line item veto (such as the statute here), reasoning that the injury is not concrete and personal, but rather is institutional in that it is shared by all members of Congress. [Raines v. Byrd (1997)]

Question 21

Ripeness

Answer 21

Ripeness is the question of whether a federal court may grant pre-enforcement review (a declaratory action) of a statute or regulation. (harm must actually be threatened). a federal court considers two main factors:
a. The hardship that will be suffered without pre-enforcement review, AND
b. The fitness of the issues and the record for judicial review —that is, does the court have all that it needs to effectively decide the issue?

Question 22

If the challenger will suffer a hardship because they must choose between taking steps to comply with the rule or law or facing possible sanctions later for not complying, the case will usually…

Answer 22

If the challenger will suffer a hardship because they must choose between taking steps to comply with the rule or law or facing possible sanctions later for not complying, the case will usually be found to be ripe.

Question 23

Mootness

Answer 23

If events after the filing of a lawsuit end the plaintiff’s injury, the case must be dismissed as moot. —must be real, live controversy at all stages - A real, live controversy must exist at all stages of review, not merely when the complaint is filed; if issue has been resolved, court will not hear. BUT EXCEPTIONS next

Question 24

Mootness exceptions

Answer 24

a. Exception: Wrong capable of repetition yet evading review - not moot. (Issues concerning events of short duration from a court review standpoint).
b. Exception: voluntary cessation. If the defendant voluntarily halts the offending conduct, but is free to resume it at any time, the case will not be dismissed as moot.
Exception: class action suits. A class action will not be dismissed if the named plaintiff’s claim becomes moot so long as one member of the class has an ongoing injury.

Question 25

The political question doctrine. (4 types)

Answer 25

Court will not decide issue that is not suitable for judicial branch. The political question doctrine refers to constitutional violations that the federal courts will not adjudicate. Political questions involve issues (1) constitutionally committed to another branch of government or (2) inherently incapable of judicial resolution. 4 types: a. The “republican form of government clause” - the US shall gaurantee to each state a republican form of gov. b. Challenges to the President’s conduct of foreign policy c. Challenges to the impeachment and removal process d. Challenges to partisan gerrymandering

Question 26

If a question asks whether a statute violates repub form of gov...

Answer 26

Case dismissed as a Nonjusticiable political question.

Question 27

Should a lawsuit challenging the validity of a federal statute be dismissed as a political question if the case involves a dispute between branches of the federal government regarding foreign affairs?

Answer 27

No, a lawsuit challenging the validity of a federal statute should not be dismissed as a political question even if the case involves a dispute between branches of the federal government regarding foreign affairs.

Question 28

No Advisory Opinions:

Answer 28

No Advisory Opinions: Article III bars a court from issuing advisory opinions. Thus, federal courts will not render decisions in moot cases, collusive suits (that is, where the parties aren’t actually adverse), or cases that won’t have a binding effect on the parties.

Question 29

SC review - appellate jurisdiction

Answer 29

Appellate Jurisdiction: The SC has appellate jurisdiction in all cases to which federal power extends, subject to congressional exceptions and regulation. Cases can come to the Court in one of two ways: Writ of Cert, Appeal.

Question 30

Supreme Court review (generally)

Answer 30

a. All cases from state courts come to the Supreme Court by writ of certiorari b. All cases from United States courts of appeals come to the Supreme Court by writ of certiorari c. Appeals exist for decisions of three-judge federal district courts. Federal Statutes exist that create this. SC is required to hear the case. d. The Supreme Court has original and exclusive jurisdiction for suits between state governments. State files it with the SC bc SC is the only court that can hear it.

Question 31

writ of certiorari

Answer 31

Virtually all cases come to the Supreme Court by writ of certiorari. The Supreme Court has complete discretion to hear these cases. The cases that come by certiorari are: • Cases from state courts where (1) the constitutionality of a federal statute, federal treaty, or state statute is in issue, or (2) a state statute allegedly violates federal law, and • All cases from federal courts of appeals.

Question 32

Appeal

Answer 32

Appeal—Rare Cases: The Supreme Court must hear cases that come to it by appeal. These cases are confined to decisions by three-judge federal district court panels that grant or deny injunctive relief.

Question 33

SC Original Jurisdiction

Answer 33

Original Jurisdiction: SC has original and exclusive jurisdiction over suits between states, as well as original jurisdiction where just one of the parties is a state. It also has original jurisdiction in all cases affecting ambassadors, public ministers, and consuls, but Congress has given concurrent jurisdiction to lower federal courts in all these cases. Congress cannot expand the Court’s original jurisdiction beyond what is provided for in Article III.

Question 34

Final Judgement Rule

Answer 34

The Supreme Court may hear cases only after...there has been a final judgment of the highest state court, of a United States Court of Appeals, or of a three-judge federal district court.

Question 35

Adequate and independent state grounds

Answer 35

If a state court decision rests on two grounds, one state law and one federal law, if the Supreme Court’s reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it. A federal court will not hear appeal from state court if adequate and independent nonfederal grounds support state decision. State law grounds are adequate if they are fully dispositive of the case. For the Supreme Court to review a state court decision, there must not be an independent and adequate state law ground of decision. They are independent if the decision is not based on federal case interpretations of identical federal provisions. If the state court didn’t clearly indicate whether its decision rests on state law, the Supreme Court may hear the case.

Question 36

Power of Judicial Review

Answer 36

Under its power of judicial review, the Supreme Court may review the constitutionality of acts of other branches of the federal government. It may also review state acts pursuant to the Supremacy Clause.

Question 37

LOWER FEDERAL COURT REVIEW

Answer 37

First, justiciability reqs must be met. Federal courts (and state courts) may not hear suits against state governments - State govs must not be sued in fed or state court. The principle of sovereign immunity i) The Eleventh Amendment bars suits against states in federal court ii) Sovereign immunity bars suits against states in state courts or federal agencies

Question 38

Eleventh Amendment and Sovereign Immunity

Answer 38

Federal courts (and state courts) may not hear suits against state governments. • The Eleventh Amendment bars suits against states in federal court • Sovereign immunity bars suits against states in state courts or federal agencies

Question 39

Exceptions where States may be sued

Answer 39

States may be sued under the following circumstances: i) Waiver is permitted. Waiver must be express, no implied waiver. Most states have expressly waived sovereign immunity, at least to a limited extent, in their tort claims acts. ii) States may be sued pursuant to federal laws adopted under section 5 of the Fourteenth Amendment (Like Title 7 of the CRA). it must be unmistakably clear that Congress intended to remove the protection. Congress cannot authorize suits against states under other constitutional provisions (like commerce clause). iii) The federal government may sue state governments. Other states can also sue state governments. iv) “Plan of the Convention” - When they joined the federal union, states implicitly agreed that their sovereign immunity would yield to certain federal powers: Bankruptcy proceedings under BK Clause (Plan of the Convention) and suits pursuant to statutes adopted by Congress under its power to raise and army and a navy. This exception extends to suits brought by the federal government as well as to suits by private parties if Congress delegates its power.

Question 40

Other exception to state immunity

Answer 40

Suits against state officers are allowed — state officers may be sued for injunctive relief-enjoin the official from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state. — state officers may be sued for money damages to be paid out of their own pockets (even if state has chosen to indemnify the officer) — state officers may not be sued if it is the state treasury that will be paying retroactive damages (except for indemnifying which you can still sue for). BUT, a suit against a state official is prohibited by sovereign immunity to the extent that it seeks retroactive damages.

Question 41

Actions Against Local Governments

Answer 41

Local governments (for example, a city or county) are not protected by sovereign immunity. Neither are entities like police departments. So these entities can be sued.

Question 42

Abstention

Answer 42

Federal court has js but declines (abstains). - If action already going on in state court on unsettled question of state law, federal court will abstain so state can settle issue. If state law is unclear and state court clarification of that law could make a federal constitutional ruling unnecessary, then the federal court will abstain. - Federal courts may not enjoin pending state court proceedings.

Question 43

11th Amendment and Sovereign Immunity

Answer 43

Generally cannot sue state in federal court for damages (without state’s permission). Waiver—Can be express (explicit consent) or structural (implicit consent to yield immunity with respect to certain federal powers based on the plan of the Constitution) Exceptions: Actions against state officers and removal of immunity under 14th Amendment

Question 44

IS LAW WITHIN CONGRESS’S POWER (fed legislative power)?

Answer 44

The federal government has limited powers. Every exercise of federal power must be traced to the Constitution.

Question 45

For congressional power, need...

Answer 45

Must have Express or implied authority to act. Police power is wrong answer bc congess generally doesnt have police power.

Question 46

Congress police power

Answer 46

congess generally doesnt have police power. No fed police power EXCEPT: military, indian tribes in indian land, federal lands or territories (doesnt extend to wild animals), DC. (Congress just has a MILD police power)

Question 47

No Federal Police Power

Answer 47

Congress may act only pursuant to an express or implied power in the Constitution. Congress has no general police power (that is, it has no general power to adopt laws for the health, safety, and welfare of citizens). Exceptions: Congress has police power type powers over the District of Columbia, federal lands and territories, military bases, and Indian reservations (based on its power over the capital and its property power).

Question 48

Necessary and Proper Clause

Answer 48

Congress has the power to make laws necessary and proper (appropriate) for executing any power granted to any branch of federal government. Congress may choose any means not prohibited by the Con' to carry out its Con' authority.

Question 49

Can a law be supported by the Necessary and Proper Clause?

Answer 49

The Necessary and Proper Clause standing alone can’t support federal law. It must work in conjunction with another federal power. So, an answer choice that states that a law is supported by the Necessary and Proper Clause (or is valid under Congress’s power to enact legislation necessary and proper) will be incorrect unless another federal power is linked to it in the question.

Question 50

Taxing/spending power

Answer 50

a. Congress may tax and spend for the general welfare - Congress can raise any tax and make any spending program for the welfare. SC has never struck down one. Taxing and spending may be for any public purpose not prohibited by the Constitution.

Question 51

General welfare clause

Answer 51

The federal government can tax and spend for the general welfare; it can’t directly legislate for it. Thus, nonspending regulations can’t be supported by the General Welfare Clause.

Question 52

Taxing Power

Answer 52

If revenue raising, generally valid. Most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed. Whether something is a tax as opposed to a regulation depends largely on its function (that is, does it seek to bring in money for the government) rather than on a label given by Congress.

Question 53

Spending Power

Answer 53

Spending may be for any public purpose; Congress may regulate beyond enumerated powers by attaching strings to a grant as long as the strings are: (i) clearly stated, (ii) related to the purpose of the grant, and (iii) not unduly coercive

Question 54

Commerce Power

Answer 54

Congress may regulate: 1. Channels of interstate commerce—roads, rails, waterways, phones, etc. 2. Instrumentalities of interstate commerce—trucks, trains, planes, etc. and persons or things in interstate commerce. Basically anything that crosses state lines. 3. Economic Activities having a substantial economic effect on interstate commerce. Local activity with cumulative effect. (In the area of non-economic activity, a substantial effect cannot be based on cumulative impact.) (Also, five justices have said that Congress cannot regulate inactivity.) a. Generally must be economic or commercial activity. (when the activity is noneconomic, the court will not base the substantial effect on cumulative impact, unlike economic activities, and normally will not uphold the law)

Question 55

Commerce Power - Intrastate Activity

Answer 55

When Congress attempts to regulate intrastate activity under the third prong, above, the Court will uphold the regulation if it is of economic or commercial activity (for example, growing wheat or medicinal marijuana even for personal consumption) and the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce. However, if the regulated intrastate activity is noncommercial and noneconomic (for example, possessing a gun in a school zone or gender-motivated violence), the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce, which it generally will not be able to do.

Question 56

Commerce Power - Activity vs Inactivity

Answer 56

The Commerce Clause gives Congress power only to regulate existing commercial activity. A majority of justices have stated, albeit likely in dicta, that Congress can’t regulate inactivity (that is, Congress doesn’t have the power to compel activity).

Question 57

War and Related Powers

Answer 57

The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.

Question 58

Investigatory Power

Answer 58

Congress has an implied power to investigate to secure information as a basis for potential legislation or other official action (such as impeachment or trying impeachments).

Question 59

Property Power

Answer 59

Includes power of eminent domain, to dispose of federal property, and to make rules/ laws regulating federal lands and Indian reservations. Congress has the power to dispose of and make rules for territories and other properties of the United States. While there is no express limitation on Congress’s power to dispose of property, federal takings (eminent domain) must be for the purpose of effectuating an enumerated power under some other provision of the Constitution.

Question 60

Bankruptcy Power

Answer 60

Congress has power to establish uniform rules for bankruptcy. The power is nonexclusive, so states may legislate in the field as long as their laws do not conflict with federal law.

Question 61

Postal Power

Answer 61

Congress has an exclusive postal power (that is, the power to establish postal services, which it obviously has done). Under the postal power, Congress may validly classify and place reasonable restrictions on use of the mails, but may not deprive any citizen or group of citizens of the general mail “privilege.”

Question 62

Power Over Citizenship

Answer 62

The Constitution gives Congress the power to establish uniform rules of naturalization. This gives Congress plenary power over aliens. a. Exclusion of Aliens: Aliens have no right to enter the United States and can be refused entry summarily because of their political beliefs. However, despite Congress’s plenary power, resident aliens are entitled to notice and a hearing before they can be deported. b. Naturalization and Denaturalization: Congress has exclusive power over naturalization and denaturalization. However, Congress may not take away the citizenship of any citizen—native-born or naturalized—without his consent.

Question 63

Admiralty Power

Answer 63

The Constitution gives Congress plenary and exclusive power over admiralty issues except to the extent that Congress leaves maritime matters to state jurisdiction.

Question 64

Power to Coin Money and Fix Weights and Measures

Answer 64

The Constitution gives Congress the power to coin money and fix standards for weights and measures.

Question 65

Patent/Copyright Power

Answer 65

The Constitution gives Congress the power to control the issuance of patents and copyrights.

Question 66

Miscellaneous Other Powers

Answer 66

War (including power to declare war and fund war), investigatory, bankruptcy, postal, citizenship, admiralty, coin money, fix weights and measures, and grant patents and copyrights

Question 67

Delegation

Answer 67

1. Congress may delegate its power to other branches. Typically, Congress can delegate rulemaking or regulatory power to the executive branch (including administrative agencies) or judicial branch as long as intelligible standards are set and the power isn’t something that is uniquely confined to Congress (for example, the power to declare war or impeach). A general standard will usually suffice as an intelligible principle. a. Intelligible standard “requirement” for delegation (usually, almost anything suffices) b. Exception—major questions doctrine: Agency seeking to adopt rules having significant financial or political impact must be able to point to language clearly granting such authority

Question 68

Delegation - Major Questions

Answer 68

Claims of Broad Delegation on Major Questions: When an agency adopts regulations that have extraordinary economic and political significance (“major questions”), it must be able to point to clear congressional authorization for the exercise of such power. In major questions cases, modest, vague, or subtle language can’t support a broad delegation of power. Absent clear language, the Court will strike down the agency action as not being sufficiently specific regarding authority and direction on the major question.

Question 69

Speech or Debate Clause

Answer 69

Immunity for speech made within Congress

Question 70

Legislative Veto

Answer 70

A legislative veto occurs when Congress attempts to overturn an executive action without bicameralism or presentment. Congress cannot make a law reserving to Congress the right to overturn discretionary executive action without passing a new law and presenting it to the President for approval. For Congress to act, there must always be bicameralism (passage by both the House of Representatives and the Senate) and presentment (giving the bill to the President to sign or veto). The President must sign or veto the bill in its entirety.

Question 71

line-item veto

Answer 71

A line-item veto occurs when the President attempts to veto part of a bill, while signing the rest into law. line-item vetoes are unconstitutional

Question 72

Delegation of Executive Power by Congress

Answer 72

Congress may not delegate executive power to itself or its officers.

Question 73

Fed EXECUTIVE POWER

Answer 73

.

Question 74

Domestic Powers of President

Answer 74

1. Appointment and removal of officers and Supreme Court Justices with advice and consent of Senate 2. Pardon—federal crimes only 3. Veto power 4. Power as chief executive/executive orders - Youngstown

Question 75

Presidential Veto power—

Answer 75

10 days to veto; if President fails to act in 10 days and: a. Congress in session = approval b. Congress out = pocket veto c. No line item veto

Question 76

Power as chief executive/executive orders—

Answer 76

Youngstown guidance from Justice Jackson: a. If express or implied authority from Congress—action likely valid b. If Congress silent—action valid if it does not impinge on powers of another branch c. If against Congress’s will—action likely invalid

Question 77

Presidential Power Over External Affairs

Answer 77

1. President may commit troops but power to “declare war” belongs to Congress 2. Treaty power—signs treaties with approval of two-thirds of Senate a. Treaty is on par with other federal laws (“supreme law of land”) b. Treaties cannot conflict with Constitution 3. Executive agreements—enforceable if not in conflict with federal law, treaties, or Constitution

Question 78

Presidential treaty power

Answer 78

Treaties are agreements between the United States and a foreign country that are negotiated by the President and ratified by two-thirds of the Senate. Treaty power—signs treaties with approval of two-thirds of Senate a. Treaty is on par with other federal laws (“supreme law of land”) b. Treaties cannot conflict with Constitution

Question 79

Treaties - Conflicts with Other Laws

Answer 79

Treaties prevail over conflicting state laws. If a treaty conflicts with a federal statute, the one adopted last in time controls. However, if a treaty conflicts with the U.S. Constitution, the treaty is invalid.

Question 80

Executive Agreements

Answer 80

An executive agreement is an agreement between the US and a foreign country that is effective when signed by the President and the head of the foreign nation. They can be used for any purpose.

Question 81

Executive Agreements - Conflict with Other Laws

Answer 81

Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.

Question 82

Foreign Relations

Answer 82

The President has paramount power to represent the United States in day-to-day foreign relations.

Question 83

Foreign Relations- Recognition Power

Answer 83

Presidential power of foreign relations includes the exclusive power to recognize foreign states and what is included in a foreign state. Thus, Congress cannot pass a statute designating the capital of a foreign country. Also, Congress was held not to have the power to require the U.S. Secretary of State’s office to designate a person’s birthplace as Israel at a time when the Executive Branch position was that no country had sovereignty over Jerusalem.

Question 84

Foreign Relations - Immigration Policy

Answer 84

The President has broad discretion in determining whether to admit individuals to the United States.

Question 85

War

Answer 85

The President has broad powers as Commander-in-Chief to use American troops in foreign countries (even without a congressional declaration of war).

Question 86

Hierarchy of US law

Answer 86

US Con' > Treaties & Fed Statutes (last in time wins) > Executive Agreements > State law

Question 87

Executive Privilege/Immunity

Answer 87

1. Privilege extends to documents and conversations but must yield if court decides information needed in criminal case 2. Immunity a. President immune from suits for civil damages for actions taken as President b. Immunity extends to aides exercising discretionary authority of President

Question 88

Impeachment

Answer 88

President, vice president, and all U.S. civil officers may be impeached for treason, bribery, high crimes, and misdemeanors by majority vote of the House; are tried by Senate; and conviction requires two-thirds vote of Senate

Question 89

Supremacy Clause - Federal law supreme, and conflicting state law is invalid

Answer 89

Federal law supreme, and conflicting state law is invalid a. Actual conflict—state law invalid b. Interference with federal objectives—state law invalid c. Preemption—no room for state legislation; Congress controls entire field 1) Express preemption—narrowly construed 2) Field (implied) preemption—if federal law comprehensive or a federal agency oversees area, preemption may be found 3) Presumption that historic state police powers not intended to be preempted unless that is the clear and manifest purpose of Congress

Question 90

Tenth Amendment

Answer 90

The Tenth Amendment as a limit on Congressional powers. The Tenth Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people. Anti-commandeering principle, spending power conditions, preventing harmful state activites.

Question 91

Tenth Amendment: Anti-commandeering principle

Answer 91

a. Congress cannot compel state regulatory or legislative action. EXCEPTIONS: a. Congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program. Also, the conditions cannot be unduly coercive. (ex-drinking age, highway safety not coercive). (Medicaid program was coercive bc states lost all medicaid money). b. Congress may prohibit harmful commercial activity by state governments. (Fed gov prohibited selling DMV lists, fed gov won.)

Question 92

Tenth Amendment: Spending Power Conditions

Answer 92

Through its spending power, Congress can induce state and local government action by placing conditions on the grant of money to those governments (so-called “strings”). Such grants won’t violate the Tenth Amendment if the conditions (1) are expressly stated, (2) relate to the purpose of the program, (3) are not unduly coercive, and (4) do not otherwise violate the Constitution. [0.5% of state budget=not coercive, 10%=coercive]

Question 93

Tenth Amendment: Preventing Harmful State Activities

Answer 93

Congress may prohibit harmful commercial activities by state governments without violating the Tenth Amendment.

Question 94

tate Taxation/Regulation of Federal Government

Answer 94

1. State cannot directly tax federal government 2. State cannot directly regulate federal government 3. State may tax federal employee and contractor salaries (indirect tax)

Question 95

Congressional Power Under the Fourteenth Amendment

Answer 95

Section 5 of the Fourteenth Amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment. Congress may not create new rights or expand the scope of rights under this provision; it may act only to prevent or remedy violations of rights recognized by the courts. Such laws must be proportionate and congruent to remedying constitutional violations.

Question 96

Congress’ power under section 5 of the Fourteenth Amendment.

Answer 96

Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violations of rights recognized by the courts. Such laws must be narroiwly taiulored: “proportionate” and “congruent” to remedying constitutional violations.

Question 97

Dormant Commerce Clause

Answer 97

Dormant Commerce Clause (negative implications of Commerce Clause) a. Congress may delegate commerce power to states b. Absent delegation, states may not intentionally discriminate against interstate commerce 1) Exception: Necessary to achieve an important [noneconomic] state interest (that is, no reasonable alternatives available) 2) Exception: State acting as a market participant a) Might still violate the Privileges & Immunities Clause b) No downstream restrictions—state cannot control what happens to goods after state sells them 3) Traditional government function

Question 98

Dormant Commerce Clause - Nondiscriminatory state law

Answer 98

Nondiscriminatory state law—may not be unduly burdensome (burden on inter- state commerce cannot outweigh promotion of the legitimate state interest sought to be served) 1) Nondiscriminatory state tax affecting interstate commerce requires: a) Substantial nexus between object of tax and taxing state b) Fair apportionment according to rational formula c) Fair relationship to services or benefits provided by state

Question 99

If Congress has not acted, state regulation of interstate commerce is valid if....

Answer 99

If Congress has not acted, state regulation of interstate commerce is valid if the regulation does not discriminate against out-of-state competition and does not unduly burden interstate commerce. If the regulation does discriminate against interstate commerce, it is valid if it is necessary to an important, noneconomic government interest.

Question 100

21st Amendment

Answer 100

liquor regulation—states can regulate sale of liquor, but cannot favor local businesses

Question 101

Suits

Answer 101

1. The United States may sue states without their consent 2. States cannot sue the United States without its consent 3. State can sue state in federal court; Supreme Court has exclusive jurisdiction

Question 102

DELEGATION OF POWERS

Answer 102

Principle that a law will be struck down if its an uncon' delegation of power. BUT No limit exists on Congress’ ability to delegate legislative power. Never been struck down.

Question 103

Major Questions doctrine

Answer 103

An admin agency can act on a major question of economic or political significance only if there's clear direction from Congress. Not been defined by the court. Would struck down action, not statute.

Question 104

Legislative vetos and line-item vetos

Answer 104

Legislative vetos and line-item vetos are unconstitutional. For Congress to act, there always must be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President to sign or veto). The President must sign or veto the bill in its entirety.

Question 105

For Congress to act, there always must be...

Answer 105

For Congress to act, there always must be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President to sign or veto). The President must sign or veto the bill in its entirety.

Question 106

Congress may not...

Answer 106

Congress may not delegate executive power to itself or its officers.

Question 107

FED EXECUTIVE POWER

Answer 107

.

Question 108

Treaties

Answer 108

Treaties are agreements between the United States and a foreign country that are negotiated by the President and are effective when ratified by the Senate. President negotiates, Senate ratifies. Treaty > State law. a. Treaties prevail over conflicting state laws b. If a treaty conflicts with a federal statute, the one adopted last in time controls c. If a treaty conflicts with the United States Constitution, it is invalid.

Question 109

Treaty vs Federal Law

Answer 109

Last in time rule. Whiochever came into existence last wins.

Question 110

Executive agreements

Answer 110

a. Definition. An executive agreement is an agreement between the United States and a foreign country that is effective when signed by the President and the head of the foreign nation. NO senate approval reqd. b. Executive agreements can be used for any purpose. c. Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.

Question 111

Executive agreements are effective when...

Answer 111

effective when signed by the President and the head of the foreign nation.

Question 112

TREATIES vs EXECUTIVE AGREEMENTS

Answer 112

Senate approval reqd? T-Yes ; EA-NO ; Conflicts with state law? T-Controls ; EA-Controls ; Conflicts with Fed law? T-whichever was last in time; EA-Fed statute controls

Question 113

Limits on the recognition power.

Answer 113

It is unconstitutional for Congress by statute to designate the capital of a foreign country. The President has broad discretion in determining whether to admit individuals to the United States. The President has broad powers as Commander-in-Chief to use American troops in foreign countries.

Question 114

TREATIES vs EXECUTIVE AGREEMENTS: Is senate approval required? Conflicts with state law? Conflicts with federal statute? Conflicts with Const?

Answer 114

Treaties: Is senate approval required? YES. Conflicts with state law? TREATY CONTROLS. Conflicts with federal statute? WHICHEVER WAS ADOPTED LAST IN TIME CONTROLS. Conflicts with Const? Con controls. Executive Agreements: Is senate approval required? NO. Conflicts with state law? EXECUTIVE AGREEMENT CONTROLS. Conflicts with federal statute? FEDERAL STATUTE CONTROLS. Conflicts with Const? CON CONTROLS.

Question 115

Pres' power to use troops

Answer 115

The President has broad powers as Commander-in-Chief to use American troops in foreign countries. Always constitutioanl.

Question 116

Executive Power - Domestic Affairs

Answer 116

.

Question 117

The appointment and removal power

Answer 117

.

Question 118

The appointment power

Answer 118

i. The President appoints ambassadors, federal judges and officers of the United States. Senate must confirm, but appt is solely the prez. ii. Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts. An inferior officer is one who can be fired by an officer of the US. (US attorneys, undersecretary of state - can be fired). iii. Congress may not give itself or its officers the appointment power. (Congress creates agency, cant give appoitmt power to itself). iv. The President may not make recess appointments (which dont req' senate approval) during intrasession recesses that are less than 10 days. But prez has power to fill out all recesses otherwise.

Question 119

The removal power.

Answer 119

The removal power. Unless removal is limited by statute, the President may fire any executive branch officer. For Congress to limit removal, i. it must be an office where independence from the President is desirable and ii. Congress cannot prohibit removal of exec' appointees, but it can limit removal to where there is good cause... and iii. it cannot be a single person who heads an agency and exercises substantial discretion. Congress cannot limit the President’s authority to remove the head of an independent agency if that person is the sole director and exercises substantial discretion. BUT it CAN be a multihead agency.

Question 120

Impeachment and removal.

Answer 120

Impeachment and removal. The President, the Vice President, federal judges and officers of the United States can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors a. Impeachment does not remove a person from office (a conviction is required) b. Impeachment by the House of Representatives requires a majority vote; conviction in the Senate requires a 2/3 vote

Question 121

Executive immunity

Answer 121

The President has absolute immunity to civil suits for money damages for any actions while in office. However, the President does not have immunity for actions that occurred prior to taking office.

Question 122

President immunity to civil suits

Answer 122

The President has absolute immunity to civil suits for money damages for any actions while in office. However, the President does not have immunity for actions that occurred prior to taking office.

Question 123

Executive privilege

Answer 123

The President has executive privilege for presidential papers and conversations - the right to keep that information confidential - but such privilege must yield to other important government interests. (for example, a need for the information in criminal trials).

Question 124

President immunity to subpoenas

Answer 124

The President has no immunity to keep his financial records from being subpoenaed by a state grand jury, but if the financial records are subpoenaed by a congressional committee, the court must balance the competing interests bc sep of power concerns.

Question 125

Limits on Protection from State and Congressional Subpoenas

Answer 125

The President has no immunity to keep the President’s financial records from being subpoenaed by a state grand jury, but if the financial records are subpoenaed by a congressional committee, the court must balance the competing interests.

Question 126

Pardon power

Answer 126

The President has the power to pardon those accused or convicted of federal crimes. ONLY federal crimes, NOT state crimes. NOT civil liability. The pardon power cannot be limited by Congress.

Question 127

Veto Power

Answer 127

If the President vetoes an act of Congress, the act may still become law if the veto is overridden by a two-thirds vote of each house.

Question 128

Power as Chief Executive

Answer 128

- If the President acts with the express or implied authority of Congress, the President’s authority is at its maximum and the President’s actions likely are valid - If the President acts where Congress is silent, the action will be upheld unless it usurps the power of another governmental branch or prevents another branch from carrying out its tasks and - If the President acts against the express will of Congress, the President has little authority, and the action likely is invalid (for example, the President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent).

Question 129

Sources of Congressional power

Answer 129

General fed police power for DC, military bases, federal lands. Spending power and commerce clause. Sixteenth amendment taxing power. (fed income tax). Spenidng power. Power to coin money. (tax to regulate banknotes rather than to raise revenue). Property power (Congress prohibits hunting on fed lands). Commerce clause (discirmination ban at places of public accomodation) (Federal minimum wage reqs, applying to state govs too).