Constitutional Law Flashcards

Question

ESSENTIAL FUNCTIONS DOCTRINE

Answer 1

No one branch of doctrine can rule to interfere with any other branch of government • The three cases McCardle (as long as McCardle had an avenue to get to court and wasn’t just sitting in jail, the court wasn’t interfered with operating its function) , Yerger (same interference analysis as McCardle) , and Klein (congress was interfering with the Court’s function of finding judgment) develop this doctrine • An analysis under this type would begin with identifying what the proposed language’s power is relaying (ex. the exception’s clause, supremacy clause, etc), then you would determine whether or not this power is properly being used, THEN you would determine, by the language, if this power will interfere with any other branches of government

Answer 2

• AKA justiciability doctrines – doctrines that tell the court whether they can adjudicate the claim - There are 5 articles included in this section 1. ADVISORY OPINIONS DOCTRINE – opinions on the constitutionality of legislative or executive actions that did not grow out of the case or controversy

Answer 3

• In a standing analysis, you must first analyze the three elements of Constitutional standing, then you would analyze the three prudential requirements of standing

Answer 4

 Injury in Fact Rule - P’s injury must be actual and imminent, not conjectural or hypothetical - Sub-Rule for Imminent: - Cases: Clapper (the clients’ could not prove that the government was collecting information from their emails and telephone conversations because the government would not reveal what information they were collecting, the only exception in which the gov. will reveal information is if it is a concern of national security)/ Lyons (Lyons second cause of action involved future incidents of excessive force by the police, which is not imminent)

Answer 5

Causation Rule: P injury must be caused by D, must be traceable to challenged action, not to an intervening third party or event - Cases – Lujan (majority of the funders were not part of agency decision making process)/ Allen v Wright (racist white parents were the cause of the segregated schools, not the IRS)/ Simon v Eastern Kentucky (court held that the hospitals made the decision on whether or not to treat the homeless people) - Pattern of Facts for these Cases: there is a third-party present, that is not a party to the suit, whose actions contribute to P’s injury

Answer 6

Rule for Redressability: Court can order a remedy that puts P in a better position, the remedy MUST focus on/address D’s conduct - Cases: Allen v Wright (the remedy requested, which was revoking the tax exempt status, would not integrate schools because this remedy would not force white parents to send their children to public school)/ Lujan (the remedy was to consult agency providing funding regarding endangered species, but this remedy would not stop the project that would damage the environment./ Linda RS v Richard D (the remedy available was not the award for child support, but for the arrest of the dead beat dad, and this remedy would not put the mother and child in a better position.) Simons v EKWR (court held that it was speculative that the homeless people would receive care from the hospital if the tax was revoked.)/ Steel Co. and Laid Law (both cases are similar factually, however the difference is that in Steel Co. the Ps asked for civil penalties (gov. gets money in civil penalties, so this would not put Ps in a better position, and in Laid Law the Ps asked for civil damages (Ps get the money from civil damages) to deter future behavior, so this would put Ps in a better position. Steel Co said no redressability, while Laid Law said redressability was sound

Answer 7

o an order telling one to do something - Case: Lyons (Lyons had 2 causes of action, 1 being excessive force, which he asked for damages for the injuries that have already occurred. The court can award money for the injuries so that as redressable. The second cause of action involved Lyons wanting the police to stop future excessive force actions, he sought injunctive relief for future instances of excessive force. The court held that they would have to assume that Lyons would be pulled over again and that the police would put him in a chokehold again, so it is difficult to put Lyons in a better position in this aspect)

Answer 8

(court has discretion to treat the prudential requirements as they wish)  There can be no third-party Ps - if causation is met in constitutional elements then this element is satisfied also, in an analysis only a sentence explaining this is needed - Exception: if a parent/guardian is acting upon a minor, group, or class action - Case: (when a parent does not fall into the exception when suing on behalf of their child) Elk School District v Newdow (the daughter did not want to be a part of the lawsuit, Newdow was not acting in the best interest of the child AND the child’s mother expressed that the suit is not in the best interest of her child)(the exception ONLY applies when interest of the parent and child align, if their interest do not align the familial relationship becomes as if they are strangers)

Answer 9

 No Generalized Grievance Rule: < the injury is be generally suffered by others> - if all is being asked is to tell someone to do their job or asking someone to follow the law, then there is a generalized grievance, if injury in fact is met in constitutional elements, then this is met here. In an essay just a sentence is needed as an analysis - Cases: Allen v Wright (the remedy was to either pull the non-expemt status)/ Lujan (the remedy was to tell people to follow the administrative act)/Schlesnger v Reservists (remedy was to tell Congress that they must follow the Const. and not serve as a reservist and on Congress at the same time)/US v Richardson (remedy was for a expenditures to be published in the record, the CIA’s expenditures are not, so Richardson wanted the CIA to publish its expenditures)/ FEC v Akins (no generalized grievance because the order is not just telling the FEC to do their job, its asking them to do more, to disclose donation contributions)

Answer 10

Zone of Interest Rule: must involve a statute, regulation, or constitutional provision, law includes class to be protected AND injury to be protected from - Case - Mass. V EPA - FEC v Akins (the statute said anyone can bring a suit to disclose donations, and Akins is anyone)

Answer 11

 Must be a Taxpayer  Appropriation  Appropriation must be spent on something that violates the constitution - Cases: Flast v Cohen (P is a taxpayer, there was an appropriation that would aid private catholic schools, which would be an order by legislature to aid religion, and that is a violation of the establishment clause/ Valley Forge (there was a transfer of title instead of an appropriation, so no taxpayer standing)/ Hein v Freedom Foundation (court held that the mere use of money that has been budgeted is not an appropriation)/ Daimler Chrysler (case bought claiming a tax credit was a substitute for appropriation, but court held it was not an appropriation)/ Arizona Christian School v Nguyen (a tax deduction is not an appropriation, so no tax payer standing)

Answer 12

RULE – P must actually use/continue to use the places/environments *Sub-Rules • Aesthetic Injury - Aesthetics (just enjoying the area) can qualify as an injury, even though its non-monetary • Procedural Injury – P has been injured because in a statute/regulation (ex: to do an environmental protection plan before going through with a plan) there was a procedure D was supposed to follow, and P was injured by D’s failure to follow the appropriate decision. o A right has been violated and that is where the injury comes from o If the procedure was followed, D will reconsider the decision that harmed P o Cases – Mass. V EPA and Lujan o Procedural injuries can cross over with zone of interest standing because for a zone of interest analysis, there MUST be a statute, regulation, or constitutional provision ad the P must be in the class of people who can exercise that right

Answer 13

• The organization must have memberships, and one of the members must have been injured o IF a member of a group has been injured, then a member can adopt another member • The group/organization itself must suffer injury • Cases: Defenders of the Wildlife, Lujan, Sierra Club

Answer 14

Held. Individual rights within the meaning of this passage, do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public. Sri Lanka (who is not before the court) is actually causing the injuries (which breaks the causation element for intervening third party)

Answer 15

Held. No injury because none of the members of Sierra Club actually used the area/environment (the attorneys in Lujan learned from this and included members who actually traveled to the area as Ps)

Answer 16

Held. The affidavit that was admitted was not specific enough to show that the project would injure their use of the property. There must be a connection between the use of the property and D’s conduct.

Answer 17

1. The party discriminated against must be P 2. There must be a barrier/ unequal playing field/ stigmatic injury o A key to there being an unlevel playing field is finding the barrier first (in the medical school case, the barrier was the school setting aside 10 seats automatically for minorities, so white students are competing for 90 seats instead of 100) o CASES: Allen v Wright, Bache MBE, Northeast Florida Contractors, University of Michigan, Gratz v Bollinger 3. The P must be ready, willing, and able to compete RULE – All such persons could claim the same sort of abstract stigmatic injury, such as those caused by discrimination • The common fact in all of these cases is some type of set aside, quota system, etc. • The injury analysis must tell whether or not there is an uneven playing field

Answer 18

* The court said there was an injury to the black children regarding the IRS refusal to tax the school but, * The IRS’ conduct is not causing the de facto segregation; it is the racist white parents and schools that are causing the injuries and these actors are not in this case. Therefore, causation is a problem (stigmatic injury- picking and choosing based on race) * Enforcing the tax would not integrate schools because the schools are not a party in this case, so the court cannot order the schools to integrate, so redressability is also a problem * Held. There is not enough information to show that there is discrimination across the United States, due to the filing of the case as a class action. • If a case does not involve an environmental or discrimination injury, use the default rules for injury under standing

Answer 19

• Using canons of construction to determine if a provision is constitutional • Example in book – provision restricting Supreme court from hearing any case or controversy regarding prayer in public school o The Establishment Clause  The jurisdiction of a court refers to its authority to hear a case  Proper jurisdiction means there is a power to declare the law  The original jurisdiction of the Supreme court comes from the constitution directly and cannot be expanded or expounded by congress (Const.’ language granting this jurisdiction: “the supreme court shall have original jurisdiction over cases affecting ambassadors, other public ministries, etc.)  Supreme court also has appellate jurisdiction, which is jurisdiction to review and affirm or overturn the decisions of state or lower federal courts  Religious liberty was first a matter of state law rather than constitutional law, because Article 1 of the constitution applied to the legislative powers of Congress only (except in cases where states are mentioned expressly, ex ; “No state shall…”), but the Supreme court eventually incorporated the First amendment clause into the 14th amendment, thus granting itself authority over state laws dealing with the press  Ex Parte Mccardle – “We are not at liberty to inquire into the motive of the legislature, we can only examine into its power under the constitution, and the power to make exceptions to the appellate jurisdiction of the court is given by express words- chief justice chase  Klein case – the provision expressly stated that presedntial pardons shall not be considered by the supreme court on appeal but this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power (the exceptions clause Article 3)  The issue regarding school prayers would be transferred to state courts where each state supreme court would have the final say (most likely ruling how the supreme court would)  There is no express language that the bill of rights was intended to be part of the 14th amendment (thus under supreme court jurisdiction) • Matters of school prayer, capital punishment, desegregation, abortion, etc. are all areas of individual state power and should not have been intervened by the supreme court because such a role is not provided for in the constitution. The judiciary power in the constitution was intended to extend to all cases arising out of the constitution, but to cases of judiciary nature only

Answer 20

Issue: Whether congress's proposal would be constitutional? Rule: According to article III section 2, the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions, and under such regulations as the congress shall make. However, congress has power under the exceptions clause per McCardle. ALSO state what the scope of the power under the constitutional provision is. This is NOT what the court has stated, but what the words are and how much discretion the provision grants the other branch or government or what the limit of the discretion is. Rule Explanation: (explain the exceptions clause and what it allows congress to do and not do) Analysis: (analyze whether congress violates the separation of power principle/essential function doctrine with their proposal) Conclusion: conclude on my position

Answer 21

• Political Q Doctrine is a rule of law drafted by the Supreme Court to ensure that it is abiding by the Separation of Powers Doctrine of the Constitution

Answer 22

* **Only the first two steps are typically used by courts to determine a rule of law and then use this rule to apply to facts 1. A textually demonstratable constitutional commitment of the issue to another political branch

Answer 23

1. Who’s acting? i. If state, usually no political question 2. What coordinate branch? (judicial, legislative, executive) 3. What textual commitment (legislative, article 1 – executive, article 2 – judicial, article 3) i. If none, court engages in judicial review 4. What is the scope of the power granted? (interpret constitution using canons of construction) 5. Determine whether the power is Discretionary i. If yes discretionary power, the outside limit of this power is individual rights i. Baker v Carr (provides that individual rights is a judicially manageable standard) ii. If there is a judicially manageable standard, the court can engage in judicial review o If no judicially manageable standard then there is a POLITICAL QUESTION i. If no discretionary power, there is a judicially manageable standard rule of law ii. Court can engage in judicial review i. The power must be committed to other coordinate branches of government at the federal level, executive, or legislative ii. After determining if there is a power, the scope of the power must be determined using the canons of construction iii. Next is to determine whether the power is discretionary

Answer 24

2. A lack of judicially discoverable and manageable standards for resolving the issue a. The Constitutional language will be used to find a rule of law b. If there is a standard (rule of law) found, this can be applied to the facts 3. An impossibility of deciding the issue without making an initial policy determination of a kind not suitable for judicial discretion a. This element states that if the power is discretionary, then the decision about how to apply that power belongs to another branch of government, not the court b. Similar to element 1 4. A lack of respect for the other branches of government in undertaking independent resolution of the case a. Similar to element 1 5. An unusual need for unquestioning adherence to a political decision already made OR a. Usually comes up in war powers and national security cases 6. The potential for embarrassment for differing pronouncements of the issue by different branches of government a. Usually comes up in war power and national security cases * If the action taken by the coequal branch of government is within its scope of power its constitutional, if outside, unconstitutional * If the power is discretionary and individual rights have not been violated (an individual right is a judicially manageable standard), then there is a political question

Answer 25

1. State Legislatures are acting a. Usually when state is acting there is no political question however there are some exceptions 2. Textual commitment is Article 1 Section 2, the elections clause 3. What is the Scope of the Power a. Congress must fix state political gerrymandering b. Case: Rucho v Common Cause: (If there is a political gerrymander, Congress must fix it) 4. Is the Power Discretionary? a. No, because gerrymandering is not a judicially manageable standard, NO POLITICAL QUESTION b. Case: Rucho v Common Cause: (Held. Partisan gerrymandering claims present political questions beyond the reach of the federal courts.)

Answer 26

* All commerce power was not granted to Congress because of the use of the word INTERstate commerce * INTRAstate commerce (local, stays in the state) remains in the power of the states

Answer 27

* An analysis under the commerce clause would start by 1) asking “who is acting?” if Federal, such as Congress, then use elements under federal, if State is acting use elements under state * You would then 2) ask if the statute is facially discriminatory (follow elements under discriminatory) or facially neutral (follow elements under neutral)

Answer 28

1. The use of the channels of interstate commerce - channels are the way things move, i.e planes, trains, automobiles, etc - Recognized before NLRB so once the commerce stops moving, i.e. leaves the channels of interstate commerce, the commerce clause detaches, then once the commerce enters channels again, it will attach OR 2. The instrumentalities (things moving in interstate commerce) of interstate commerce, or persons or things in interstate commerce a. Even though the threat may come only from intrastate activities - instrumentalities are the things that create commerce, such as goods or people - recognized NLRB OR 3. Intrastate activates having a substantial relation to interstate commerce Factors: a. Economic Activity Rule: if it involves buying, selling, or trading Congress can regulate, NOT mere possession -substitute transaction(WICKARD) -black market (drug/marijuana) transaction (RAICH) ii. Cases: Wickard: (you can aggregate economic activities of multiple people) OR b. No jurisdictional hook i. cross state lines – if something has crossed state lines Congress can regulate it c. Legislative History i. Used to bolster argument if necessary OR d. Congress cannot exercise general police power i. An additional re-emphasis that Congress cannot carry out states’ power of policing

Answer 29

* Start by asking if statute is facially discriminatory or facially neutral to determine which rule of law to follow * Then ask if the state is acting as a market participant or acting as a regulator to further determine which rule of law to follow

Answer 30

1. Market participant (when state acts the same as a person would act) • Define market -Reno case • State can favor its own citizens o States can charge its citizens less than out of state citizens o Ex: in state college tuition cheaper • Cannot regulate Downstream o Downstream (i.e a state telling a citizen how they can use a product) o Downstream regulation is unconstitutional -Alaska cases: Alaska telling consumers they had to process a certain way • Cannot violate the constitution • Congress can regulate state same as it regulates private actors OR 2. Regulatory – almost per se invalid state burden of proof, when the state is acting as the government would • Legitimate government interest (Gov. Interest) i. Police power • Class used virtually certain to achieve legitimate government interest (Gov. Nexus) i. • No facially neutral alternatives i. Cases: City of Philadelphia v New Jersey: (a land regulation by the state requiring citizens to dispose of toxic waste separately would be a valid neutral alternative)/ Maine v Bait Fish (the alternative must be currently AVAILABLE and financially practically, in this case the fact that there was SOME technology that could potentially cure the bait fish was not a good enough facially neutral alternative)/West Lyn Creamery Inc. v Healy (possible exam question!/ The facially neutral alternative is to uncouple the tax and the subsidy imposed on Massachusetts milk to make the order constitutional)

Answer 31

*** When state regulates economic activity, if more than one burden could apply to a fact pattern, on exam start with the strongest argument, ex: the burden is equal… if the court happens to find the burden not equal, then it could also be exclusively out of state… • Burden Exclusively Out of State o State Burden 1. Legitimate governmental interest - legitimate governmental interests are police powers, i.e take care of its citizens 2. Class used is highly likely to achieve legitimate government interest 3. Legitimate government interest cannot be served as well by available non-discriminatory means • Cases: Hunt v Washington (North Carolina’s governmental interest was the prevention of fraud, the court says North Carolina is only regulating closed container apples, so they have not accomplished their governmental interest of preventing fraud, also North Carolina could have used separate labels for apples destined for Washington, therefore there was a non-discriminatory means to serve the government interest) • Burden Mostly Out of State (burden shifting analysis) o State Burden 1. Legitimate governmental interest 2. Class used likely to accomplish legitimate government interest o Challenger burden 1. Rebut justification OR 2. Establish legitimate government interest can be served as well by non-discriminatory means, i.e. i.e. find a facially neutral alternative • Case: Kassel v Consolidated Freightways (the alternative is to treat everyone the same and allow all trucks of any size to pass) • Burden Equal (rational basis) o Rational basis – challenger burden 1. Legitimate governmental interest 2. Reassemble legislator could’ve concluded class chosen would accomplish interest • Cases: Hunt v Washington (North Carolina’s governmental interest was the prevention of fraud, the court says North Carolina is only regulating closed container apples, so they have not accomplished their governmental interest of preventing fraud, so second element not met)

Answer 32

1. Substantial nexus to state a. Case: South Dakota v Wayfair: (if a business does more than 100,000 dollars or has more than certain number of establishments, then they must charge a state tax, regardless of whether they have a physical presence in the state, such as online retailers) 2. Must be fairly apportioned - everyone must be taxed equally 3. Must not discriminate against interstate commerce a. This element is analyzed by going back to the decide whether the state is facially discriminating or facially neutral from above (DO NOT FORGET ON EXAM) - state is essay, because this statute states... it seems to be facially discriminatory and the rule of law for this is... HOWEVER if the statute is ruled to be facially neutral then the rule of law is... 4. Must be fairly related to services provided by the state

Answer 33

o Congress can tax events that o Penalty = punishment  Must be on a matter that can be regulated, i.e. Congress can only regulate matters that have can been granted in the constitution, i.e. enumerated power  FACTORS 1. Excessively heavy Burden o 10 percent of net income o Case: NFIB v Sebelius: no heavy burden because the tax was less than purchasing the insurance 2. Scienter requirement o knowing or deliberate o Case: NFIB v Sebelius: No Scienter requirement 3. Who Collected Money o Case: NFIB v Sebelius: collected by the IRS ii. Case: Bailey v Drexel: (Not a tax, but a penalty) iii. Case: NFIB v Sebelius: satisfies Bailey test, shared responsibility healthcare insurance is a tax not a penalty

Answer 34

• GENERAL WELFARE o Defined in US v Butler: limited to enumerated powers (Madison), o separate, enumerated power constrained by the other provisions of the constitution, usually meaning individual rights (Hamilton)  Supreme Court adopts Hamilton’s definition of general welfare

Answer 35

1. General Welfare o Public purpose o Defer to Congress 2. Conditions Unambiguous o Entity receiving must know conditions at time the money was granted o Cannot be retroactive  Case: NFIB v Sebelius: 3. Conditions must be related to national payout/program for which money was expended o Nexus between condition and federal program o Case: Dole: The nexus between drunk people deriving on the highway and highway funds was close enough to justify increasing the drinking age to 21. SO, the condition, drinking, and the program, highways, was held to be close enough 4. Restrained by other provisions of the Constitution o Conditions cannot violate another provision of the constitution  Case: AALS: student loans in private law schools not in violation of the first amendment

Answer 36

• For a preemption analysis, you first need BOTH a state and a federal statute (really a supremacy clause analysis) 1. Express 1. Implied a. Field i. Federal statutes are set up to not allow any room for state involvement b. Interferes with federal policy i. State policy creates an obstacle to federal policy ii. Two types: 1. When you cannot comply with both OR 2. State actions create an obstacle to federal action

Answer 37

• Right to wage war successfully • The suspension clause is a CONGRESSIONAL power (not executive) o Case: Woods v Cloyd: there was a housing shortage after men came home from the war, so the cost of housing went up and people could not afford housing. Housing is local, so Congress cannot regulate through the commerce power SO, they use the WAR power, which states Congress can use its power to address problems caused by war

Answer 38

Reconstruction followed the Civil War • All Reconstruction Amendments Section 1 Start “Thou shall not”… o Interpreted as individual rights • 13th Amendment – slavery o Section 2 grants Congress power to create remedies and  The test the court uses for the remedy is congruence and proportionality (on EXAM and BAR)(not on final this semester) o Section 5 grants Congress power to prevent violations of section 1 o Only provision that applies to individuals • 14th Amendment - citizenship o overturns Dred Scott  Case: Katzenbach v Morgan: literacy test testing Puerto Rican citizens’ ability to understand English voting procedures was not constitutional. Court held that Congress can exercise its section 5 power to remedy a section 1 power because there was a violation of equal protection/ Nevada v Hibbs: Congress exercised section 5 power to remedy a section 1 power because there was a gender discrimination and the remedy was the adoption of the FMLA for all genders.  Case: Borne v Flores: By passing the statute the way that it did, Congress is redefining the Constitution, to do so the Constitution would have to be amended. Court cites Marbury v Madison holding the court defines what the constitution means, Congress cannot change the meaning of the constitution by passing a statute. The statute is reenacted to be just applied to Congress. SO, Congress can protect what is defined by the Supreme Court, it CANNOT make up its own definitions of what it can protect • 15th Amendment – discriminate based on race o Voting is included in this amendment

Answer 39

• Executive negotiates treaty • Ratification is then needed by Senate • Congress can pass domestic legislation under Necessary and Proper Clause o Case: Missouri v Holland: (Supreme Court holds that the treaty power is a separate independent power, and that Congress can enact legislation to enforce the treaty through the necessary and proper clause) • Treaties cannot negotiate away individual rights o Reid v Covert: (Congress could not impose a treaty which would force Mrs. Covert to be convicted by a military tribunal, the Supreme Court held that a civilian in her position could not be tried in military courts) • 2 types of Treaties 1. Self- Executing Treaty: Does not need domestic legislation to become effective • Ex: a peace treaty ending a war 2. Non-Self Executing Treaty: Needs domestic legislation to become effective • Ex: Vienna Convention Medellin v Texas ***ONLY analyze under treaty power if the fact pattern concerns a self-executing/non-self-executing treaty, i.e. whether the treaty needs domestic legislation to become effective

Answer 40

11TH AMENDMENT – SOVEREIGN IMMUNITY

Answer 41

10TH AMENDMENT – ANTI-COMMANDEERING DOCTRINE TENTH AMENDMENT – used to protect federalism • “powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the states, respectively, or to the people” • Private Individuals have standing to raise a tenth amendment claim • Only protects that which existed before o Case: U.S. Term Limits v Thornton: (The position they wanted to limit did not exist before so it could not be limited. The court held the tenth amendment could only reserve that which existed before) Anti-Commandeering Doctrine o Federal agencies cannot command the states o Case: New York v U.S: (state legislature is being commandeered, The statute had three incentives, first, was a surcharge, where out of state people pay more (Congress using its Commerce power), the fees increase and money goes to feds (Commerce using its taxing power) and the feds send money to the good states (Congress using its spending power) so eventually South Carolina closes its borders to outside waste, and finally, if a state did not regulate toxic waste according to the federal standard, then the state had to take title of the waste, this is the incentive which triggers commandeering. The court held that the states cannot agree to violate the constitution.)/ Printz v U.S. (the Brady act required the Attorney General to establish a national instant background check system for weapon purchases. Here, the state executive is being commandeered. The court held that conditional spending, i.e. paying states for services, is the way around commandeering)

Answer 42

``` • vested with Executive power o foreign affairs o Case: U.S. v Curtis Wright • Commander in Chief – take care laws are faithfully executed o Make treaties  Case: U.S. v Curtis Wright o Nominate and Appoint ambassadors, and officers  Case: U.S. v Curtis Wright o Veto o Pardons o Recogonize foreign sovereigns  Case: U.S. v Curtis Wright o State of the Union o Oversees Executive department and Agencies ```

Answer 43

only applicable when the president acts • Must first figure out whether the treaty is self-executing or not self-executing • APEX o Article 2 AND explicit Congress authorization (individual rights) o If no, then federal gov. does not have power to act o Case: U.S. v Curtis Wright: (you do not have the power to tell states to act in this way because each state is its own sovereignty, Held. States do not have foreign affair powers therefore, the president is the sole organ of domestic affairs)/ Dames and Moore v Regan: (Carter’s first acts, of freezing Iranian assets, were on the Apex part of the spectrum because there was a statute allowing the president to freeze the assets)

Answer 44

• TWILIGHT ZONE o Executive and Congress share power o Glass – Implied Yes/approval of Presidential acts (individual rights) o Case: Dames v Regan (the agreement calling for the establishment of an Iran-U.S Claims Tribunal, which would arbitrate any claims not settled within six months, is in the twilight zone because there is no specific statute granting the president to act in this way, however, historically Congress has never objected to this presidential action)

Answer 45

• NADIR o Article 2 but no congressional authorization (individual rights)  Either Express or Implied  Youngstown – Implied No/disapproval of Presidential acts  Case: Medellion v Texas (the Senate’s ratification of a non-self-executing treaty was an implied disapproval of the president’s actions.)

Answer 46

Lindh • U.S California citizen, who was white • He was caught fighting for the Taliban • Once Afghanistan discovered he was a U.S citizen, he was shipped back to the U.S, he was then charged with treason • Currently in prison Hamdi – Hamdi v Rumsfield • Dual Citizen, U.S and Suadi • Held in U.S for fighting with Taliban with no communication with outside world • His parents filed a Habeas case to figure out where he was located • Hamdi argued the U.S cannot just hold him indefinitely without to change to challenge his status of an enemy combatant • The constitution applies because a U.S. citizen is being held on U.S. soil Padilla • U.S. citizen arrested in the United States for trying to conceal parts of a bomb in his shoe • He does not fit the definition of an enemy combatant so court says he must be tried in a U.S court for treason, not just hold him indefinitely Rasul • Does constitution apply to Gitmo? • Not a U.S citizen, but constitution still applies to non- citizens (unless the language of the Constitution specifically states “citizens”) • Constitution DOES apply, even in Gitmo Cuba (the only place the U.S thought they could have complete control over non-citizens or enemy combatants because Cuba is not technically a U.S territory, but the U.S owns two-thirds of the island) Hamdan • Non-U.S. citizen • Focused on what was required for Hamdan’s hearing, not on if him being held during the duration of the conflict was unconstitutional Boumediene – Boumediene v Bush • Boumediene had no counsel, his military tribunal trial allowed hearsay, and no right to cross examination • This infringes upon individual rights, so Congress enacted a new statute for the hearings of military tribunals

Answer 47

U.S v Nixon (criminal case) • Nixon claimed he had a blanket executive privilege, and that he was the sole individual who could determine how far that privilege extended • This case went straight to the Supreme Court from the federal court (i.e. skipped the court of Appeals) because there was no prior law that the appeals court could have used to reach a decision • The court reasons that there is an executive privilege implied from Article 2 that the president will have confidential communications with his high level cabinet members to protect confidential communications between the president and its advisors, however, the court answered no to Nixon’s argument that he gets to define the scope of this privilege. The court used Marbury v Madison to hold that it is the court’s job to define what the constitution means. Becuase this is a criminal case the privilege will most likely attach when there is an issue of national security or diplomatic • This privilege is NOT ABSOLUTE because it would interfere with the court carrying out its job, the privilege DOES APPLY to military and diplomatic secrets and national security

Answer 48

* The court reasoned that there is a difference between civil and criminal cases because there is less of an urgency to prosecute, and civil case discoveries are more broad * The court rules that instead of invoking the privilege, one should consider whether the production of the documents will impair another branch in the performance of its constitutional duties

Answer 49

• President was named and the court refused to have jurisdiction/hear the case • Executive Official named, the official was named, and the court heard the case Misconduct in Office • President not named, the court heard the case and ruled the president was immune from damages • Executive Official named, committed misconduct and the court held he was not immune from damages Misconduct by Office • The court held that the court can manage litigation so that it does not interfere with the president’s job

Answer 50

* U.S v Nixon | * U.S. v Clinton

Answer 51

• Need intelligible principle | o Ex: unreasonable risk or in the public interest

Answer 52

• INS v Chadha:  The court held that a one house veto, that Chadha should be deported, violated the Presentment Clause of the Constitution.  The President, nor Congress, nor either of the Houses can veto in violation of the Presentment Clause

Answer 53

4. OVERSIGHT HEARING 5. APPROPRIATION RIDER • Appropriation Process forces agencies to explain exactly how they spent money 6. SUNSET LEGISLATION 7. REPEAL

Answer 54

* Each of the 3 branches can appoint its own officers * Issues arise when Congress create positions and it is questionable on whether these officials are subject to the appointments clause

Answer 55

1. What Power Is Being Exercised 2. Is That Power Legislative, Executive, Or Judicial 3. If The Power Is Executive, The Official Is Subject To The Appointments Clause < Not every employee of the executive branch is subject to the appointments clause> -If the official is inferior the app. Clause does not apply, if superior it does -Factors such as what kind of duties, what kind of power, how long is the person in office, etc. to determine the officials status as superior/inferior o Case: Morrison v Olson: (the court used the factors to classify the official as inferior and concluded that the appointments clause did not apply) • Myers v U.S - • Humphrey’s v U.S. – • Buckley v Valeo – • Bowsher v Synar – o you have to determine what kind of power the official is executing to determine what type the official is (legislative, executive, or judicial) o This is done by reading the statute or regulation o If it is executive power, it is subject to the appointments clause, and the President has to be able to fire the official o The court says the difference between a department head and an independent agency is that Congress does not have control over all of the board members (“do what I say or I will fire you”) and a department head is terminable at will by the president • Morrison v Olson – o Not every employee of the executive branch is subject to the appointments clause o You must first determine whether the official is superior or inferior. If the official is inferior the app. Clause does not apply, if superior it does o The court uses factors such as what kind of duties, what kind of power, how long is the person in office, etc. to determine the officials status as superior/inferior

Answer 56

Congress’ recess period is for a ten-day period

Answer 57

• Will be about one of the branches of gov. we talked about this semester • Use IREAC instead of CREAC just in case your conclusion changes and you do not have time to go back and change the C sentence in the beginning of the essay o I - A good Issue statement mentions the RULE OF LAW + SPECIFIC FACT (if there are two possible issues, mention here and complete two full IREACs for each): The issue is whether the court can hear whether the president correctly used his veto power? DO NOT TELL READER WHAT YOUR GOING TO DO JUST DO IT (example the actor is… and the textual comm. Is… Next I will apply the plain meaning. BETTER VERSION – the president vetoed the bill according to the presentment clause of the Const. and this clause plainly states…) o R – complete rule statement o RE – roadmap/ explain that each element will be analyzed  mI – first element issue statement  mR – first element rule of law  mRE – use precedent cases if able (may not have a rule exp. If there is not much case law on this particular element). FOCUS on specific facts the court focused on to come to a conclusion  mRA – apply facts to rule. REALLY TIE THE LAW TO THE FACTS!  MC – conclude on first element only  REPEAT THIS PROCESS FOR THE REST OF THE ELEMENTS o C – overall conclusion 50 minutes for multiple choice rest of time on essay questions

Answer 58

in place because the constitution only applies to government (besides 13th amendment) 1. State delegated a traditional exclusive public function to a private entity o Case: Marsh v Alabama: (the town was owned by a company, but the court held that no one from the public would know that the city was owned by a private entity, and because the town was acting as a public function their actions constituted state action.) 2. State entangled with a private entity o Case: Lugar v Edmondson: (the sheriff’s involvement in the seizure of property constituted state action) / Burton v Wilmington Parking Authority: (the restaurant owner is held as a state actor because an integral part of a public building devoted to a public parking service, indicates the state participation and involvement in the discriminatory action of the restaurant owner)/ Case: Evans v Newton: (the park with a covenant that only white people use the park constitutes state action because the park is treated as a public institution because it was serving a public function and was municipal.) 3. State approved, encouraged, or facilitated private entity • GOVERNMENT ACTING o Constitution applies • PRIVATE PERSON OR ENTITY ACTING o Constitution does not apply at all, however the government can still regulate and prohibit private behavior  Case: Flagg Brothers v Brooks: (the private entity, the storage company, following a statute to sell belongings in storage that were not paid for, was not enough to constitute state action.)/ Rendell-Baker v Kohn: (the fact that 90 percent of a school’s income was derived from government funding did not make the school a state actor)

Constitutional Law Flashcards

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