Con Law

Question 1

Justiciability

Answer 1

A case must be justiciable to be heard in fed. court, which means there must be a case or controversy presented

To determine whether a case or controversy exists, the case must satisfy requirements for:

1) Standing
2) Ripeness
3) Mootness
4) Political question doctrine

Question 2

Federal Judicial Power

Answer 2

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 3

Standing

Answer 3

A party must have a concrete interest in the outcome of a claim to have the claim heard in fed. court

Requirements:

1) Injury — P must have personally suffered an injury or will suffer an imminent injury that is concrete and particularized

2) Causation — P must allege that D caused the injury

3) Redressability - the court can grant a proper remedy

Question 4

No Generalized Grievances

Answer 4

No generalized grievances — P cannot sue solely as a U.S. citizen or taxpayer to compel the govt. to act in a particular way

Exception — taxpayers have standing to challenge specific govt. expenditures pursuant to the Establishment Clause

Question 5

Ripeness

Answer 5

To be justiciable in fed. court, a case must contain a ripe claim and a live controversy (i.e., it cannot be moot)

Ripeness — Dispute needs to be matured sufficiently to warrant a decision

P is not entitled to review of a law or govt. act before it has been effectuated

Question 6

Exception for Ripeness - Analysis of Ripeness of Pre-Enforcement Review of Statute/Reg

Answer 6

When considering a question of ripeness, a federal court considers two main factors:

*The hardship that will be suffered without pre-enforcement review—the greater the hardship without pre-enforcement review, the more likely the court will hear the case AND

*The fitness of the issues and the record for judicial review—that is, does the court have all that it needs (facts, etc.) to effectively decide the issue?

Question 7

Mootness

Answer 7

Mootness — a live controversy must exist at all stages of review

If circumstances causing P’s harm cease to exist after P files suit, the case must be dismissed as moot

Question 8

Exception to Mootness: Wrong Capable of Repetition But Evading Review

Answer 8

Arises where injury ceases before complete litigation of the claim, but P can reasonably expect to be subject to the same harm in the future. Concerns issues of short duration from the court review standpoint.

E.g., a disabled bar examinee seeks an injunction b/c of denied accommodations and can’t take the exam b/c it occurs before his case is heard; not moot b/c he will need to take the bar exam again

Question 9

Exception to Mootness - Voluntary Cessation

Answer 9

D has ceased the acts giving rise to P’s suit, but can resume them at any time

Question 10

Exception to Mootness - Class Actions

Answer 10

only one member of the class must have an ongoing injury

Question 11

SCOTUS Jx

Answer 11

Original jurisdiction — Under Art. III, Supreme Court has original jx over suits between states and cases involving foreign ambassadors and other foreign ministers; such cases must be filed in fed. court

Exception — suits between states must be filed in Supreme Court
Congress cannot expand Court’s original jx to other types of cases

Question 12

Methods of SCOTUS Review

Answer 12

Methods of Supreme Court review:

Discretionary review — most cases get to the U.S. Supreme Court by writ of certiorari; the Court then decides whether to grant review

Mandatory review — the Court must take appeals from three-judge district court panels regarding injunctive relief

-This bypasses the courts of appeal

Question 13

Final judgment requirement for SCOTUS

Answer 13

Supreme Court only hears cases on review if there has been a final judgment of a lower fed. court or a state’s highest court

Congress may limit Court’s appellate jx to certain cases under Art. III

Question 14

State court decisions & SCOTUS

Answer 14

Supreme Court cannot review a state court decision that rested on an independent, adequate state law ground

I.e., if the state decision is based on fed. and state law, the Supreme Court will not grant review unless the decision cannot stand on the state grounds alone

Question 15

The 11th Amendment & Sovereign Immunity

Answer 15

bar suits against state govts. in fed. court

Under the 11th Amend., fed. courts cannot hear claims from a private party or foreign govt. against a state govt.

Sovereign immunity bars suits against states in state court

Question 16

Exceptions to 11th Amend & Sovereign Immunity

Answer 16

Exceptions — suits against state govts. are allowed in fed. court where:

1) The state waives sovereign immunity or consents,

2) The suit involves the enforcement of laws under section 5 of the 14th Amend. and Congress has removed immunity,

3) The fed. govt. brings the suit, or

4) Bankruptcy proceedings

Question 17

Exception to 11th Amend - Suits against State Officers

Answer 17

can be brought in fed. court if the suit involves either:

a) Injunctive relief claim for violation of the Const. or fed. law, or

b) Claim for money damages to be paid by the state officer personally

Question 18

3rd Party Standing

Answer 18

a P with standing may assert the rights of a third party where P has suffered injury and either:

a) P’s injury adversely affects his relationship with third parties

-E.g., bar owner could assert underage males’ rights in challenging ban on beer sales to underage males

b) Injured party is unlikely or unable to assert his own rights

-E.g., association could challenge law requiring disclosure of member identities b/c members could not challenge law directly without revealing their identities

Question 19

Organizational Standing

Answer 19

organizations always have standing if the injury is to the organization itself

Suits on behalf of members — organizations may sue on members’ behalf if:

1) Injury to the members that would give members standing to sue individually;

2) Injury is related to the organization’s purpose; and

3) Neither claim nor relief requires participation of individual members

Question 20

Political Question Doctrine

Answer 20

Fed. courts will not adjudicate certain constitutional issues that constitute political questions

Political questions involve issues that:

a) Const. commits to another branch of govt. (i.e., not the judiciary), or

b) Are inherently incapable of judicial resolution or enforcement

Question 21

Common political questions deemed non-justiciable:

Answer 21

1) Actions under the “republican form of government” clause

2) Challenges to the conduct of foreign policy

3) Challenges to impeachment and removal proceedings

Question 22

Non-political questions deemed justiciable

Answer 22

Production of presidential papers/communications

Validity of a fed. statute (even if case involves dispute between branches of the fed. govt. regarding foreign affairs)

Question 23

Legislative Powers Overview

Answer 23

1) Taxing and spending

2) Regulating commerce

3) Establishing uniform naturalization rules and bankruptcy laws

4) Raising and supporting military

*Executing laws — executive branch is obligated to execute laws passed by Congress

Speech or Debate Clause — members of Congress have criminal and civil immunity for “legislative acts”

Applies to activities and documents essential to legislative duties

Question 24

Necessary & Proper Clause

Answer 24

enables Congress to take any action not constitutionally prohibited to carry out its express powers

This authority constitutes Congress’s implied powers

*Not an independent source of power — the Necessary and Proper Clause must be used in conjunction with another fed. power

Note — the Necessary and Proper Clause is usually an incorrect answer choice to MBE questions regarding Congress’s power to act b/c the clause is not a source of congressional power on its own

Question 25

Congress' (lack of) Police Power

Answer 25

Congress has no general police power, except for legislation concerning: 1) Military 2) Indian reservations 3) Land — i.e., fed. land or territories 4) District of Columbia

Question 26

Congress - Taxing & Spending Power

Answer 26

Congress may tax and spend in any way deemed necessary for the “general welfare” (a very broad power) Note — “general welfare” as an answer choice is usually correct only if a question concerns taxing, spending, or an area within Congress’s limited police power (military, Indian reservations, fed. land, D.C.) Taxes must reasonably relate to revenue production (a low threshold) Penalties as taxes — calling a measure a “penalty” rather than a “tax” is valid if it behaves similarly to a tax (e.g., ACA individual mandate)

Question 27

Taxes & Regulations

Answer 27

Congress can tax to achieve a regulatory effect if: 1) The tax’s dominant intent is to raise revenue; and 2) There is some reasonable relationship between the tax and the regulation (low burden to satisfy)

Question 28

Spending & Regulations

Answer 28

Congress can create a regulatory effect by placing conditions on its spending as long as it is not overly coercive

Question 29

Congress' Power to Regulate Commerce

Answer 29

The Commerce Clause gives Congress authority to regulate interstate commerce Power to regulate intrastate commerce depends on the nature of the activity (economic vs. non-economic)

Question 30

Interstate Commerce Between States

Answer 30

Congress may regulate 1) channels of interstate commerce, 2) instrumentalities of interstate commerce, or 3) economic activities that have a substantial effect on interstate commerce ---Includes persons and things in interstate commerce Note — broad power; beware of answers suggesting Congress has acted beyond its commerce power concerning interstate activity

Question 31

Interstate Commerce within State

Answer 31

1) Economic activities — Congress may regulate commercial or economic activities if there is a rational basis to conclude that the activity, in aggregate, substantially affects interstate commerce 2) Non-economic activities — Congress may only regulate non-economic activity if it has a direct, substantial economic effect on interstate commerce (tougher burden to satisfy)

Question 32

Dormant Commerce Clause

Answer 32

Congress has broad commerce power; where Congress has not acted, state and local laws may regulate local aspects of interstate commerce if the regulation is neither discriminatory nor unduly burdensome

Question 33

Test for DCC

Answer 33

a state/local law regulating interstate commerce is invalid if it: 1) Discriminates against out-of-state competition, 2) Unduly burdens interstate commerce, or -Ex: CA passes law that says no purple cars 3) Regulates wholly out-of-state activity (Exs: Regulations protecting local businesses or requiring local operations, Regulations limiting access to in-state products)

Question 34

Exceptions to DCC

Answer 34

state law burdening interstate commerce is valid if either: A) It is necessary to an important state interest — i.e., furthers an important, non-economic state interest and no reasonable alternatives are available B) State is market participant — state can favor its own citizens in buying or selling products, hiring labor, giving subsidies, etc. E.g., tuition discounts at state universities to in-state residents C) Traditional govt. function — state can discriminate against non-residents if law involves performance of traditional govt. functions D) Congress approves — state can burden insterstate commerce where Congress has unmistakenly granted permission

Question 35

Congress & War

Answer 35

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

Question 36

Executive Power

Answer 36

Broken into two parts: foreign affairs and domestic affairs Foreign affairs, generally — though Congress has some power regarding foreign affairs (e.g., to declare war), the President alone has authority to represent the U.S. in foreign affairs Note — beware of answer choices in which another branch attempts to direct U.S. foreign representatives (e.g., ambassadors)

Question 37

Executive Power - Foreign Affairs

Answer 37

The President has no power to declare war (only Congress does), but the President, as commander in chief, can act militarily in actual hostilities against the United States without a congressional declaration of war to protect American lives and property. However, Congress, under its power to enact a military appropriation, may limit.

Question 38

Executive Power - Treatises

Answer 38

agreements between the U.S. and foreign countries negotiated by the President Become effective upon ratification by 2/3 of the Senate Conflicts — if a treaty conflicts with other sources of law, these rules control: 1) Conflicts with state law — treaty prevails 2) Conflicts with fed. law — most recent prevails 3) Conflicts with the Const. — Const. prevails

Question 39

Executive Agreements

Answer 39

agreements reached between the President and foreign heads of state Can be used for any purpose No congressional approval is required Conflicts — executive agreements only prevail over conflicting state laws

Question 40

Executive Powers - Domestic Affairs

Answer 40

The President’s powers over internal affairs are unsettled, but among them is the express power and duty to faithfully execute the laws under Article II, Section 3, Clause 4 (the Take Care Clause). Clearly the President has some power to direct subordinate executive officers, and there is a long history of Presidents issuing executive orders.

Question 41

Executive Power - Appointment Powers

Answer 41

The President appoints ambassadors, federal judges, and officers of the United States, with the advice and consent (that is, approval) of the Senate. Congress may vest the appointment of inferior officers in the President, the heads of departments, or the lower federal courts. However, Congress may not give itself or its officers the appointment power.

Question 42

Removal Powers - Executive

Answer 42

1) President — can remove at will, high-level, purely executive officers and some heads of independent agencies (if sole director & exercises executive power) --Congress can statutorily limit President’s power to remove all other executive appointees (e.g., can require good cause for removal) 2) Congress — can only remove executive officers through its impeachment power --Art. III Judges cannot be removed “during good behavior”

Question 43

Impeachment

Answer 43

House of Representatives can impeach the President, VP, fed. judges, and fed. officers for treason, bribery, or high crimes and misdemeanors — requires majority vote Upon impeachment, trial in the Senate — requires 2/3 vote for removal from office

Question 44

Executive - Veto Power

Answer 44

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. - If President does not act within 10 days, bill is immediately law if Congress IS in session but vetoed if Congress is NOT - President cannot take a pen and cross out stuff out to veto and then pass the law

Question 45

Executive Orders & Domestic Affairs - Express Congressional Authority

Answer 45

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

Question 46

Executive Orders & Domestic Affairs - Congressional Silence

Answer 46

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

Question 47

Executive Orders & Domestic Affairs - Against Congress' Will

Answer 47

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 48

Executive Immunity

Answer 48

President enjoys immunity from civil and criminal suits 1) Absolute immunity from civil suits arising from official actions taken while in office 2) Absolute immunity from criminal suits for actions within their conclusive and preclusive authority and a presumption of immunity for all other official acts taken while in office and after 3) No immunity for unofficial acts 4) No immunity for actions occurring prior to taking office

Question 49

Executive Privilege

Answer 49

protects against disclosure of presidential papers and conversations Important govt. interests in criminal cases can override the privilege (e.g., Watergate — presidential documents and phone logs were disclosed for evidentiary purposes, which overrode the privilege) Not applicable to state criminal subpoenas of President's personal records

Question 50

Pardon Power

Answer 50

President has the power to pardon those accused or convicted of fed. crimes (not state crimes) Exception — President cannot pardon someone for convictions leading to impeachment President may also commute sentences Congress cannot limit President’s pardon power

Question 51

10th Amendment Limitations on Congressional Power

Answer 51

Under the 10th Amendment, all powers not granted to the fed. govt., nor prohibited to the states, are reserved to the states Limits Congress’s ability to regulate and/or tax states alone—anti-commandeering principle -->E.g., Congress cannot commandeer states by requiring them to enact laws or administer fed. law Exception— civil rights; Congress may restrict state activities that violate civil liberties Dual application — regulations applying to both public and private sector are usually valid (e.g., fed. minimum wage laws are applicable to state/local govt. as well as private sector)

Question 52

Congressional Conditional Grants/Anti-Commandeering

Answer 52

Congress can induce (but not compel) state regulatory or legislative action through the use of conditional grants E.g., fed. highway funds conditioned on states maintaining a minimum drinking age of 21 Requirements: 1) Condition must be expressly stated; 2) Condition must relate to the purpose of the law at issue; and 3) Condition cannot be unduly coercive

Question 53

Supremacy Clause

Answer 53

Under the Supremacy Clause, fed. laws trump conflicting state and local laws Preemption = Two Types -Express -Implied

Question 54

Express Preemption

Answer 54

If a fed. law provides that it is the exclusive authority in a given area, it preempts state and local laws in that area However, preemption provisions are narrowly construed

Question 55

Implied Preemption

Answer 55

if a fed. law is silent on preemption, it implicitly preempts state law in three situations: 1) Mutual exclusivity (Conflict) — fed. and state laws are mutually exclusive (i.e., complying with both is impossible) --States can set stricter requirements if compliance with both fed. and state laws is possible 2) State law impedes a fed. objective (Object preemption) 3) Congress evidences a clear intent to legislate exclusively and/or preempt state law (Field preemp) --E.g., immigration and bankruptcy law *If a state law doesn’t run afoul of any of the above three situations, it is likely valid under the Supremacy Clause

Question 56

State constitutions

Answer 56

may provide broader rights/protections than fed. Const. but may not provide lesser protections that conflict with scope of fed. Const. rights/protections

Question 57

Intergovernmental immunity

Answer 57

states may not 1) directly tax or 2) regulate fed. govt. property or activities without consent of Congress Exception — indirect, non-discriminatory taxes are valid if they do not unreasonably burden fed. govt. (e.g., state income tax on fed. employee working in the state is OK b/c not a direct tax on fed. govt.)

Question 58

Article IV Privileges & Immunities Clause

Answer 58

States may not discriminate against non-state residents of the privileges & immunities it accords its own citizens Arises if a state law is intentionally protectionist and concerns rights relating to important commercial activities ---Distinguish with DCC where DCC can regulate even if discrim not on its face --->I.e., look for situations where a state intentionally protects its citizens by discriminating against non-state residents Note — only protects citizens; corporations and aliens are not citizens for purposes of the Privileges & Immunities Clause

Question 59

Analysis for P&I Clause

Answer 59

discriminatory state law will be invalid if it: 1) Relates to civil liberties or important economic activities; and 2) Is not necessary to achieve an important govt. interest I.e., state law is intentionally protectionist in nature, there is no substantial justification for the discrimination, or less restrictive means are available

Question 60

Examples of P&I Clause

Answer 60

Valid: law requiring higher fees for non-state residents at public golf courses; higher fees for hunting licenses for non-state residents, etc. Invalid: income tax on non-residents only; limiting bar admission to state residents; different fees for commercial fishing licenses

Question 61

14th Amend. Privileges OR Immunities Clause

Answer 61

primarily applies to restrictions on rights to interstate travel; narrowly construed and unlikely to be a correct answer choice Protects attributes of national citizenship (vote for federal officers, travel interstate, etc.)