POWERS OF THE FEDERAL GOVERNMENT

Question 1

Case and Controversy (3)

Answer 1

1. no advisory opinions (adverse parties)
2. proper timing (ripeness and mootness)
3. standing

Question 2

Ripeness (2)

Answer 2

1. actual harm
   OR
2. immediate threat of harm

“bleeding plaintiff”

Question 3

Mootness (Not moot if..)

4

Answer 3

1. harm capable of repetition to THAT P (but by nature might evade review ex. pregnant woman challenging abortion statute)
2. class action and remains alive to at least 1
3. collateral consequences/continuing issue (ex. sue gov but die, damages may still go to estate)
4. D voluntary ceases harm but might continue again

Question 4

Standing (3)

Answer 4

1. actual, concrete injury
2. causation “fairly traceable”
3. redressability

Question 5

Organization/Association standing (3)

Answer 5

sue for injury to self or its members IF:

1. member/members would have standing
2. injury related to purpose of org/assoc
3. no reason that requires member participation

Question 6

Rights of others of 3rd p standing (3)

Answer 6

only to raise his or her rights EXCEPT IF:

1. actual injury
2. special relationship
3. hindrance to 3rd p raising own rights

ex. Dr raises rights of patient to abortion

Question 7

Citizen standing

Answer 7

NO STANDING AS A CITIZEN

*even if statute allows, P must suffer personal harm

Question 8

Taxpayer standing

Answer 8

• may sue to challenge their OWN tax liability

- federal taxpayers have NO STANDING to challenge how gov spends the money it has collected (same for state taxpayers)

Question 9

Taxpayer standing EXCEPTION

Answer 9

1. laws under Congress taxing and spending powers (not exec or admin action)
2. exceeding a specific constitutional limit on taxing and spending (an establishment clause challenge to a taxing and spending law)

Question 10

Legislator standing

Answer 10

Legislators may challenge acts that cause them a PERSONAL AND CONCRETE harm

ex. member being denied right to vote on particular piece of legislation
* generally no standing to challenge laws properly enacted or believes unconstitutional

Question 11

Supreme Court review of STATE COURT JUDGMENTS (4)

Answer 11

1. matter of federal law
2. final judgment
3. from highest state court authorized to hear the case
4. no independent and adequate state ground on which court decision is based

Question 12

Independent state ground

Answer 12

state law does not depend on an interoperation of FEDERAL LAW or incorporate a FEDERAL STANDARD

Question 13

Adequate state ground

Answer 13

no matter how the federal issue in the case is decided, the outcome will still be under the resolution of the STATE LAW ISSUE

Question 14

Doctrine of Abstention

Answer 14

a FED CT will decline to hear case challenging state law IF it involves a CONSTITUTIONAL CHALLENGE to STATE LAW, but the meaning of the state law is UNSETTLED/UNCLEAR
or
the matter is ALREADY PENDING before state judicial or admin tribunals

Question 15

Political Questions Doctrine (Nonjusticiable questions)

Answer 15

FED CT will not decided questions constitutionally committed to another branch of gov to decide or are beyond competence or enforcement capability of judicial branch

Question 16

Political Questions (examples) (6)

Answer 16

CHALLENGING:

1. republican form of government or “guarantee clause”
2. foreign affairs/military command decisions
3. impeachment procedures (up to congress)
4. seating of delegates at a national political convention
5. election/qualification of congress members (age, citizenship, residency)
6. procedures to amend constitution

Question 17

11th AMENDMENT (2)

Answer 17

a PRIVATE party cannot sue a STATE in FEDEAL COURT unless:
1. state expressly CONSENTS
or
2. congress clearly says so to enforce EQUAL PROTECTION RIGHTS

*may sue state officers in the ind capacities for damages or for injunctions against future unconstitutional action

Question 18

Legislative Powers

Answer 18

must relate in some way to an EXPRESS GRANT of power in the CONSTITUTION

*under 10th, all powers not granted to the FED are reserved to STATES and PEOPLE

Question 19

Enumerated powers of Congress may include:

Answer 19

admiralty, citizenship, bankruptcy, federal property, patents and copyright, post offices, coining money, territories and the district of columbia, war, and raising/supporting armies

Question 20

Most testable Congress Power sources (3)

Answer 20

1. regulate interstate commerce
2. tax and spend for general welfare
3. to enforce 13th, 14th, and 15th amendments

Question 21

Necessary and Proper Clause

Answer 21

allows congress to use all means CONVENIENT and USEFAUL to carry out enumerated powers

ex. chartering a fed bank to help tax, spend and coin money
* MUST BE COMBINED WITH ANOTHER POWER

Question 22

Commerce Power (chief source of Congress power)

Answer 22

almost anything:
-rules, standards and rates, and promoting, prohibiting, and punishing behavior (transportation, wages/hurs, environment, manufacturing, food/drugs, communications)

Question 23

“Cumulative Effects Doctrine” (Congress)

Answer 23

may regulate purely local and intrastate activities which by themselves or repeated by others SUBSTANTIALLY AFFECT INTERSTATE COMMERCE

Question 24

Congress can do any of the 3 to make states act

Answer 24

1. regulate states (like private individuals- don’t pollute air, min wage)
2. threaten preemption (either ban mining or we will regulate it)
3. bribe with money under spending power

Question 25

Taxing power

Answer 25

Congress may use to regulate and prohibit behavior SO LONG AS statute is capable of raising some revenue (ex. prohibitive tax on gambling or goods made by child labor)

Question 26

Spending Power

Answer 26

chief source of power to bribe states to do what FEDERAL GOV wants them to

Question 27

state accepts fed funds, CT enforce condition IF: (4)

Answer 27

1. law enacted for GENERAL WELFARE 2. no INDIVID RIGHTS VIOLATION 3. REAS related to LEGIT fed interest 4. CLEAR CONDITION and state has a CHOICE *if money TOO large its coercion

Question 28

13th AMENDMENT (congress power under)(3)

Answer 28

outlaws slavery and allows Congress to pass all laws applicable to ANYONE (private or gov) to eliminate slavery and all "badges and incidents" of slavery ex. racial discrimination in housing

Question 29

14th AMENDMENT (congress power under)(2)

Answer 29

1. implement provisions of 14th (equal protection and due process) 2. enforce/remedy rights of 14th as defined by the courts (cannot redefine or create)

Question 30

15th AMENDMENT (congress power under) (2)

Answer 30

1. protects right to vote from fed/state racial discrimination 2. enforce amendment

Question 31

Delegation of Congressional Power (3)

Answer 31

1. broadly delegate 2. leg powers to admin agencies 3. long as INTELLIGIBLE PRINCIPLE or standards set forth to guide exercise of the power

Question 32

Legislative Veto

Answer 32

if congress delegates authority to exec branch, may NOT: 1. reserve itself 1 house, 2 house, or committee veto over acts pursuant to that delegation 2. must pass new legislation passed by both houses (BICAMERALISM) and sign by president (PRESENTMENT)

Question 33

Congressional Immunities "speech and debate clause)

Answer 33

members of congress may not be prosecuted or punished (civil or crim) for their official or legislative acts * acts integral to legislative process such as actions on the floor, voting, and committee work * *dont include communicating with constituents, redistribution of materials prepared in legislative process or bribery)

Question 34

Domestic Powers (executive powers)

Answer 34

PRESIDENT 1. power/duty to enforce/carry out laws (may only make in emergency if congress has not said no) 2. MUST carry out congressional directives (ex. impoundment of funds) 3. MAY sign or veto legislation (no line item) 4. power to PARDON FED OFFENSES 5. appoint and remove executive officials (own officials not executive branch or make decisions on behalf of US gov)

Question 35

President power to appoint/remove officials (2 types)

Answer 35

PRINCIPAL OFFICERS-- ambassadors, judges, cabinet heads W/ ADVICE n CONSENT of the SENATE INFERIOR OFFICERS-- those who answer to another or have limited duties of jurisdiction i.e independent counsels

Question 36

Congress may never (in regard to executive officials) (3)

Answer 36

1. directly appoint executive branch officials 2. directly remove executive officials except through impeachment 3. give executive powers to persons it may hire and fire

Question 37

War and Foreign Affairs Powers (3)

Answer 37

1. Congres alone has power to declare war (press may conduct military operations and unless congress specifically said no, take emergency action to protect LIVES and PROPERTY of US) 2. Pres may act without any approval of congress as CHIEF FOREIGN POLICY SPOKESPERSON of the government 3. President agreements with foreign gov, some form of congressional approval (even if only acquiescence

Question 38

Treaties (war/foreign powers)

Answer 38

2/3 SENATE approval

Question 39

Executive agreements (war/foreign powers)

Answer 39

acquiescence (but invalid if congress later disapproves)

Question 40

Conflicts btwn treaties and exec agreements

Answer 40

later legislation prevails

Question 41

Presidential Immunities (2)

Answer 41

1. presumptive privilege not to disclose presidential communications (balance communication w/ specific need to disclose) 2. ABSOLUTE immunity from civil suit for damages for any presidential acts (not pre presidential acts)

Question 42

Impeachment Process (3)

Answer 42

1. articles of impeachment by the house 2. trial by the senate 3. removal from office