Con Law stuff

Question 2

Removal of Article III judges

Answer 2

Only by IMPEACHMENT

Question 3

Standing for a legislator

Answer 3

Must prove **personal stake in dispute **& concrete injury to challenge constitutionality of government action.

A federal or state legislator has standing to challenge the constitutionality of government action in the rare instance that the action caused the legislator personal and concrete harm—eg, by nullifying the legislator’s vote. Institutional, abstract harm shared equally by all legislators in that respective body does not confer standing.

Question 4

Child standing

Answer 4

Parent has standing unless parental rights have been limited by court
OR
lawsuit may adversely affect child.

Question 5

Congress power to suibpoena POTUS

Question 6

Speech or debate clauset

Question 7

Taxpayer standing exception

Answer 7

Taxpayers do have standing to challenge government expenditures made pursuant to federal (or state and local) STATUTES as violating the Establishment Clause.
- NOT general executive revenues
- NOT grants of property
- NOT tax credits

Question 8

Ripeness factors

Answer 8

• 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 to effectively decide the issue?

Question 9

SC original js

Answer 9

The Supreme Court has original and exclusive jurisdiction over suits between states, as well as original jurisdiction where just one of the parties is a state.

Question 10

Final Judgrement rule

Answer 10

Generally, the Supreme Court may hear cases only after there has been a final judgment from the highest state court, a federal court of appeal, or a three-judge federal district court.

Question 11

State law grounds are INDEPENDENT if:

Answer 11

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 12

Bars against suits against state govs

Answer 12

The Eleventh Amendment bars suits against states in federal court

Sovereign immunity bars suits against states in state courts or federal agencies.

Exceptions:
States may be sued pursuant to federal laws adopted under Section 5 of the Fourteenth Amendment, but it must be unmistakably clear that Congress intended to remove the protection.

Question 13

Abstention

Answer 13

• Federal courts may not enjoin pending state court proceedings.
• 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.

Question 14

Powers that congress CANNOT delegate (nondelegalble powers)

Answer 14

• Making/repealing laws (but not RULES - agencies can make rules too)
• Declaring war
• Impeaching federal officers

Question 15

Spending conditions - upheld? not upehdld?

Answer 15

A federal law that would withhold 5% of the federal highway funds otherwise allocable to a state unless the state had a drinking age of not less that 21 for alcohol was upheld where the funds withheld amounted to less than one-half of 1% of the state’s total budget.

A federal law that threatened to withhold Medicaid funding from states that did not greatly expand their Medicaid program was found to be unduly coercive because the withheld funds would be about 10% of an average state’s total budget.

Question 16

Inferior officers

Answer 16

Officers whose work is supervised by superiors that were appointed by the President and confirmed by the Senate (i.e. through standard appointment process).

Congress can delegate power to appoint inferior officers to:

The President (can appoint without approval of Senate);
The courts; or
Heads of executive departments

Question 17

What are the President’s removal powers

Answer 17

Can remove high-level executive appointees without cause

⚠️ Exception: must show cause to remove:

Officer performing a judicial or quasi-judicial role; or
Officer appointed for a statutorily specified duration

Question 18

Deportation of resident aliens

Answer 18

However, despite Congress’s plenary power, resident aliens are entitled to notice and a hearing before they can be deported.

Question 19

Nonresident aliens

Answer 19

Aliens have no right to enter the United States and can be refused entry summarily because of their political beliefs.

Question 20

Can congress delegate legislative power?

Answer 20

Congress has broad discretion to delegate its legislative power to executive officers or administrative agencies.

Delegations of legislative power to the executive branch of government are typically upheld.
The Supreme Court says that there must be some standards to guide the exercise of discretion, but the requirement is very minimal.

Question 21

Major Questions doctrine

Answer 21

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 22

How are judges appionted?

Answer 22

The President appoints ambassadors, federal judges, and officers of the United States, with the advice and consent (that is, approval) of the Senate.

Question 23

Recess Appointments

Answer 23

The President may not make recess appointments (which don’t require Senate approval) during intrasession recesses that are less than 10 days.

Question 24

REMOVAL POWER of executive officers

Answer 24

Unless removal is limited by statute, the President may fire any executive branch officer.

For Congress to limit removal of an executive officer, the office involved must be one for which independence from the President is desirable.

Even for those officers, Congress can’t completely prohibit removal of executive appointees, but it can limit removal to when there is good cause.

Further, 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.