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Judicial Power

Defined in Article III

Extends to:

  1. interpretation of the constitution, federal laws, treaties, admiralty and maritime laws
  2. disputes between states, states and foreign citizens, and citzens of diverse citizenship


Jurisdiction of the Supreme Court

  1. Original Jurisdiction
    1. in all cases invloved ambassadors, public minsters, consuls, and those in which a states is a party
  2. Appellate jurisdiction
    1. write of certiorari -discretionary review
      1. state court cases involving
        1. constitutionality of federal statutes, federal  treaty
        2. a state statute violates federal law
      2. all cases from federal courts of appeals
    2. Appeal - SC must hear cases that come to by appeal


Standars of Federal Jurisdiction

  1. There must be a specific present harm. complainants must show a real and immediate danger to their interests
  2. Ripeness - harm must be suffered or immediate
  3. Mootness - real controversy must exist.  
  4. Standing -
    1. injury
    2. causation
    3. redressavility
  5. Where a state court judgment is based upon adequate and independant state grounds, the SC will not exercise jurisdiction
  6. abstention - federal court will not rule on unsettled question of state law
  7. Political questions will not be decided
    1. constituionally committed to another branch of govt.
    2. inherently incapable of judicial resolution
  8. 11th amendment limits on Fed Courts
    1. prohibits federal courts from hearing a private party's or foreign govts claims against a state govt.
      1. soveregin immunity bars states from being sued, except
        1. by the US, other states, or in BK courts
      2. Congress can remove 11th amendment protection as to actions created under the the 14th amendemtn


Legislative Power

  1. Congress can exercise enumerated powers in constitution plus all auxiliary powers necessary and proper to carry out all powers vested in federal govt.
    1. necessary and property - must relate to an enumerated power of any branch of govt.
    2. taxing power - congress has power to tax if it bears a reasonable relationship to revenue production or if congress has power to regulate the activity being taxed.  congress cannot tax exports to foreign countries
    3. spending power - congress may spend to provide for the common defense and general welfare.  congress cannot blankly legislate for general welfare, only spend. 
    4. Commerce Power  -exclusive power to regulate interstate commerce. law must either
      1. regulate the channels of commerce
      2. regulate the instrumentalities of comerce, or 
      3. regulate activities that have a substantial effect on interstate commerce.
        1.  intrastate activity is economic or commercial activity and the court can conceive a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.  if activity is not commerical, then it must be factually shown that it has a substantial economic effect on interestate commerce. 
    5. War Power - congress can declar war, rais and support armies, provide for navy
    6. investigatory power - implied power. 
    7. property power - federal taking must be for the purpose of effectuating an enumerated power
    8. no federal police power
    9. bankruptcy power
    10. postal power
    11. power over citizenship
    12. admiralty power
    13. power to coin money and fix weights and measurements
    14. patent/copyright poewr
  2. Delegation of power - congress can delate power to executive or judicial brank as long as intelligble standard are set and power is not uniquely confined to congress (power to declare war)
  3. speech and debate clause - immunity for federal legislators when conducting regular congressional business
  4. congressional veto of executive actions is invalid


Executive Power

Domestic Powers

  1. Appointment and Removal
    1. cabinet members and other public ministers.  senate must approve. 
  2. Pardons - may pardon federal offenses
  3. Veto Power - can be overriden with 2/3s majority of both houses
    1. Pocket Veto - presient has 10 days to veto.  bill is automatically vetoed after that if congress not in session.  if congress is in session, then bill becomes law. 
    2. Line Item Veto unconstitutional
  4. Power as Cheif Executive
    1. when president acts with the express or implied authorty of congress, his actions are likely valid
    2. when president acts where congress is silent, his action will be upheld unless it usurps the power of another governmental branch or prevents another branch from carrying out its tasks.
    3. if president acts against the express will of congress, then his action is likely invalid




Executive Power - External Affairs

  1. war - no power to declar way, but may act militariliy in without declaration
  2. foreign relations - power to represent US in day to day relations
  3. Treaty Power - power to enter into treaties with consent of 2/3s of senate
    1. Treaty is supreme law of the land.  conflicting state law is invalid.
    2. Conflicting federal law is resolved by adopting the law that is last in time
    3. Treaties must be consistent with constitution
  4. Exective Agreements - like treaty, but do not require consent of senate.
    1. prevails over conflicting state law
    2. federal law prevails over EA


Executive Power - Privilege/Immunity/Impeachment

  1. Executive Privilege - president has privilege to keep communications secret.  National security items are given great deference.
    1. exception is when there is a criminal proceeding. 
  2. Executive Immunity - absolute immunity for civil damages based on any action he took within his official responsibilities.  this immunity may flow down to aids as well. 
  3. Impeachment - President can be impeached for
    1. treason
    2. bribery
    3. high crimes
    4. misdemeanors
    5. majority of house needed to invoke charges.  2/3s of senate needed to convict and remove from office


Federal System

Relative Spheres of Federal and State Powers

  1. Exclusively Federal
    1. power of states expressly limited - Treaty power, coinage of money
    2. inherent federal powers - declaration of war, federal citizenship
  2. Exclusive State Power - all power not delegated to Federal governemtn is reserved for states. 
  3. Concurrent Power - effect of supremacy clause
    1. federal law wins in conflict of laws
    2. state law invalid if it prevents achievement of federal objective
    3. preemption - non-conflicting state law may be invalid if federal law occupies the entire field (i.e. treaty, immigration, etc)
  4. Full Faith and Credit Clause - a judgment in one state is given recognition in another if
    1. court had jurisdiction over parties and SMJ
    2. judgment was on the merits
    3. judgment is final


Intersovereign Litigation

  1. States may only sue USA with consent
  2. USA can sue states without states' consent
  3. Suits against federal officers are not permited and are deemed to be suits against the USA itself.  Suits against officer allowed if officer acted  beyond his authority. 
  4. One state may sue another without any consent.  supreme court has exclusive jurisdiction


Intergovernmental Tax and Regulation Immunities

  1. Federal Taxation and Regulation of State Govts.
    1. allowed if it applies to private and public sector (i.e. minimum wage laws)
    2. not allowed to regulate or tax state alone
      1. execptions - congress may restrict state activities that violate civil liberties
      2. spending power conditions
    3. Congress cannot require local police to enforc federal laws
  2. State Taxation and Regulation of Federal Government
    1. states cannot directly tax federal govt.  it can use nondiscriminatory, indirect taxes (like state income tax of federal employee).  


Privileges and Immunities Clauses

  1. Article IV - Privileges of State Citizenship - Prohibits discrimination by a states against nonresidents
    1. fundamental rights protected - such as commercial activities (pursuit of livelihood) and civil liberties
    2. substantial justification exception.  state must show that nonresidents cause a problem the state is attempting to solve and there are no less restrictive means to solve the problem
  2. Fourteenth Amendment - Privileges of National Citizenship - states cannot deny citizens the privilege or immunities of national citizenship


Regulation of Interstate Commerce

Regulation by Congress

  1. Power of congress to superseded or preempt state regulation
  2. congress has power to permit or prohibit state regulation that would otherwise violat the commerce clause.  does not extend to violation of civil liberties. 
  3. State govts. may enact laws that regulate local aspects of commerce.  it must not discriminate against or unduly burden interstate commerce.
    1. discriminatory regulations - almost always invalid, unless regulation furthers an important, NONECONOMIC state interest and there are no reasonable nondiscriminatory alternatives
      1. State may prefer its own citizens when it is a market participant (buying, selling, hiring, giving subsidies)
      2. SC gives more lenient standard when state law involves performance of traditional govt function (waste removal)
    2. Nondiscriminatory laws - balancing test (nondiscriminatory means that local and out of state interests are treated the same).
      1. if Nondiscrminatory law burdens interstate commerce, it will be valid unless the burden outweighsthe promotionof the legitimate local interest. 
      2. State can force seller to collect use tax if it has a sufficient necus within the taxing state


Regulation of Interestate Commerce - 

Ad Valorem Property Taxes

  1. State may not place tax on commodities in transit
  2. validity of ad valorem tax on instrumentalities of commerce depends on:
    1. whether the instrumentality has acquired a taxable situs in staxtings state(sufficient contacts)
    2. and whether the value of the instrumentality has been properly apportioned accoding to the aomunt of the contacts with each taxing state


Regulation of Interestate Commerce -

Privilege license franchise or occupational taxe

valied if:

  1. substantial nexus to taxing state
  2. fairly apportioned
  3. does not discriminate against interstate commerce
  4. fairly relates to services provided by state


Constitutional Restrictions on Power over Individuals

  1. Bill of rights limits federal power.  14th amendment due process clause limits state power for bill of rights except 5 and 7 (requiring grand jury and right to jury trial in civil cases)
  2. Thirteenth Amendment - prohibits slavery. under enabling clause, Congress can prohibit racial discrimination by anyone
  3. 14th amendment - prevents states from depriving any person of life, liberty, or property without due process.  to adopt law, congress must point to history of state violation of such rights and adopt legislation that is congruent and proportional to solving violation
  4. 15th amendment - extends right to vote to people of color. 
  5. Commerce Clause - congress may prohibit private racial discrimination in activities may have a substantial effect on interstate commerce. 


State Action Requirement for 14th amendment

  1. Exclusive public functions - activities that tradtiionally involved the action of the state, no matter who performs them (police) (running a town)
  2. Significant state involvment - whereever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens


Retroactive Legislation

  1. contract clause - prohibits states from enacting any law that retroactively impairs contract rights.  
    1. private contracts - if law substantially impairs an existing private contract it is invalid unless
      1. it serves an important and legitimate Public interest
      2. and is reasonable and narrowly tailored
    2. public contract - same as above, but scrutiny will be stricter. 
  2. Ex Post Facto Laws - applies to criminal laws - person cannot be charged for past act that was not illegal when it was done
  3. Bill of Attainder - prohibited at state and fed level - inflicts punishments on individuals wihtout judicial trial
  4. due process considersation - if law does not relate to fundamental right, it need only be rationally related to a legitmate govt interest


Procedural Due Process

Def: Notice and Hearing

  1. life, LIberty, property (includes entitlements), must be at stake for due process requirement 
  2. the extensiveness of process is determined by test:
    1. the importance of the interest to the individual, and
    2. the value of specific procedural safeguards to that interest, against
    3. the govt interest in fiscal and administrative efficiency
  3. Due process is subject to waiver if waiver is voluntary and made knowningly
  4. INdigent Plaintiffs- govt fees must be waived when imposition of a fee would deny a fundamental right


The Takings Clause

Fifth Amendment states that private property may not be taken for public use without just compensation.  
  1. Public Use -  govt action must be rationally related to a legitimate public purpose
  2. Taking v. Regulation
    1. taking requires compensation, regulation does not. 
    2. Use Restriction -
      1. denial of all economic value of land, then it is a taking
      2. temporary denial may require just compensation
      3. decrease of value is not a taking
    3. just compensation -
      1. FMV
      2. terminate regulation and pay damages


Standard or Review for governmental actions

  1. Strict Scrutiny - applies to fundamental rights or suspect classifications.  Law is upheld if it is necessary to acheive a compelling government purpose.  Law invalid if there is a less burdensom alternative to acheive same goal.
    1. Govt has burden of proof
  2. Intermediate Scrutiny - applies to quasi-suspect classes (gender and legitimacy).  law is upheld if it is substantially related to an important govt. purpose.
    1. unclear who has burden of proof
  3. Rational Basis Test (minimal scrutiny) - all other matters.  law is upheld if it is rationally related to a legitimate government purpose.  law usually valid.
    1. burden of proof on challenger of law



Substantive Due Process

  1. Fifth Amendment applies to Feds. 
  2. 14th Amendment applies to States
  3. when involving fundamental rights, strict scrutiny is applied.
    1. Right of privacy
      1. marriage, contraceptives, abortion
      2. Obscene Reading material
      3. keeping extended family together
      4. right of parents
    2. Right to Vote
    3. Right to Travel
    4. 1st amendment rights

Stanford Def:

does the gov have an adequate reason to take away a persons life, liberty or property → generally must meet strict scrutiny.
a. Economic liberties → rational basis test
b. Taking → public purpose + just compensation
c. Abortion → can’t place an undue burden on the ability to obtain an abortion  


Freedom of Speech and Assembly

  1. Government Speech will be upheld if it is rationally related to a legitimate state interest
  2. Content - laws regarding content of speech subject to intermediate scrutiny.
  3. Vagueness & Overbreadth - A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.  A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated
  4. Scope of Speech - symbolic acts are protected.  free not to speak.  symbolic speech can be regulated if it has an important interst in the regulation indepent of the speech aspects(govt. can outlaw burning draft cards to facilitate a smooth draft)
    1. govt cannot compel speech, however, it can compel revenue and then use that revenue to express a message contrary to the belief of the tax payer
  5. Time place and manner of speech
    1. public forum (sidewalk) - regulation must be content and viewpoint neutral. must be narrowly tailored to serve an important govt. interest. must leave open alternative channels of communication
    2. Limited public forum - (nonpublic forums govt open to speech) same as above
    3. non-public forum (school, military base) - gov may regulate so long the regulation is reasonable and viewpoint neutral.
  6. Unprotected Speech
    1. incitement of illegal activity if substantial likelihood of imminent illegal activity
    2. Obscenity -
      1. appeals ot prurient interest in sex
      2. patently offensive under the law
      3. taken as whole, lacks artistic, literary value (national reasonable standard instead of community standard for this one)
    3. Commerical Speech - inherently risks deception or ads for illegal activity.  The restriction must
      1. serve substantial govt interest.
      2. directly advance that interest, and
      3. is narrowly tailored to serve that interest. 
  7. Prior restraints - prevents speech from occurring instead of punishing speech after it happens.  can be done when the gravit of harm justifies restraint and necessary to prevent harm.
    1. standards must be narrowly drawn, reasonable and definite
    2. injunction must promptly be sought
    3. there must be prompt and final determination of the validity of restraint. 


Equal Protection

14th amendment requires equal protection under state laws. Applies to Feds under 5th amendment due process

  1. For strict or intermediate scrutiny to be applied there must be intent on the part of govt. to dscriminate.  intent is shown by:
    1. law is discriminatory on its face
    2. discriminatory application of facially nuetral law, or
    3. discriminatory motive behind law.  (difficult to prove.  Must show history of discrimination)
  2. Suspect Classifications - requires strict scrutiny
    1. Race, national origin (however undocumented aliens are not a suspect class, whereas legal aliens are)
  3. Quasi-Suspect Classifications - requires intermediate scrutiny
    1. Gender
    2. legitimacy (bastardness)
  4. All other classes (age, poverty, etc.) - requires rational basis test


Freedom of Association

laws that prohibit or punish membership in a group must meet strict scrutiny.  Must prove that the person (1) actively affiliated, (2) knowing of its illegal activities, (3) with the specific intent to further those activities

  1. Limits on campaign contributions - intermediate scrutiny
  2. Limits on speech of govt employees.  employees may be fired for speech not related to public concern.  courts must balance employee's rights as a citizen to comment on a matter of public concern vs. govt. employer interst of efficient performance. 


Freedom of Religion

a. Establishment Clause – the test: (1) law must have a secular purpose, (2) neither advances nor inhibits religion, (3) no excessive entanglement w/ religion.
b. Free exercise clause: can’t be used to challenge a neutral law of general applicability

  1. Free exercise clause - prohibits govt interference with religious beliefs, but it generally does not prohibit regluation of conduct. (if the governmental action regulates general conduct, including religious conduct, it is valid.  
  2. Establishment Clause -Lemon test above and
    1. recipient based aid - allowed, as long as class receiving aid is not defined with reference to religion or religious criteria
    2. aid to colleges and hospitals will be upheld as long it is used for nonreligious purposes
    3. grade schools and high schools - normally have secular purpose, unless program prevents religious instruction in the school. then there is an entanglement problem
    4. religious activity in public school - school sponsered religious activity is invalid.  school accomodation of religion is valid.