Con Law I

Front 1

Marbury v. Madison

Back 1

--If you have a vested legal right, there is a remedy at law (just have to be sure you're bringing it in the right court)
--It is the essential "province and duty" of courts to say what the law is

Front 2

Exceptions Clause

Back 2

Congress has the power to limit what cases the SC may hear
--Can't expand the range in the constitution
--Court doesn't care what Congress's motive is for limiting
(But can't use power to redelgate already delegated constitutional powers)

Front 3

Advisory Opinions & Taxpayer Suits

Back 3

Court does/hears neither -- adversarial nature is required*

*not technically a standing requirement. See: DOMA case

Front 4

Standing (requirements)

Back 4

1) Injury in need of redress that is both "actual or imminent" and "concrete and particular"
2) Causation
3) Redressability (don't have to fully be able to fix it; just have to be able to make it better through judicial relief)

--Court and NOT congress determines what makes up a case and controversy; state or congress can't just grant it statutorily (Lujan)
--Congress can created new vested rights (Mass v. EPA)
--Mere violation of procedural right isn't sufficient injury (has to be additional injury to a protected right) -- you're never going to see a supreme court case for not following notice & comment requirements b/c you're not going to be able to prove another injury from it

Front 5

Associational Standing

Back 5

1) One+ members of assoc. have standing themselves
2) Purpose of organization relates to the subject matter of the lawsuit
3) Neither claim or relief requires participation of members in the suit

Front 6

Political Question (questions & examples)

Back 6

1) Textually demonstrable commitment of issue to another branch
2) Lack of judicially discoverable and manageable standards
3) Impossibility of decision w/o non-judicial policy determination
4) Can't rule without expressing lack of due respect for another branch
5) Unusual need to adhere to political decision already made
6) Potentiality of embarrassment from multiple departments on one question

Examples:
--Foreign relations (if the government hasn't already acted/decided on this particular issue)
--Dates & duration of hostilities
How long constitutional amendments are open for ratification
--"guarantee clause" -- whether states are doing something that undermines this

Front 7

State Sovereign Immunity

Back 7

Citizens can't sue states (with narrow interpretation)

Exceptions/Nuances:
--State can specifically waive immunity for certain things
--Can bring suit against state officials for relief for unconstitutional or illegal acts
--14th Amend specifically takes away state immunity for certain things

Front 8

Necessary & Proper

Back 8

"necessary" means "convenient & useful"
(McCulloch v. Maryland)

Two step analysis:
1) What is the relationship b/n the means being enacted and the legitmate ends?
2) Is this otherwise prohibited by constitution?

Front 9

Gibbons v. Ogden (Commerce)

Back 9

NY v. federal authorization to run steamboats

Important points:
"Among" means "intermingled with" the states
Commerce includes navigation

Front 10

The Daniel Ball

Back 10

Steamboat running exclusively in Michigan (interstate?)

"Navigable" can be:
--navigable in fact -- actually used to cross state lines
--could be used in conjunction to transport across lines

Front 11

US v. EC Knight

Back 11

Sherman anti-trust act re: sugar monopolization

--Manufacturing ISN'T commerce

Front 12

Champion v. Ames

Back 12

Interstate lottery

--Tickets stream of commerce so Congress can regulate (moves with intent to be sold)
--Protects state's ability to ban them

Front 13

Hammer v. Dagenhart

Back 13

Tries to ban movement of goods manufactured by child labor

--Nope, you can't regulate manufacturing even if you're trying to be sneaky about it (later overturned)
--Regulation has to be a direct result of the transportation itself

Front 14

US v. Darby

Back 14

OVERTURNS DAGENHART - Fair Labor Standards Act

--We actually don't care why you're regulating the commerce

Front 15

Wickard v. Filburn

Back 15

Bans wheat production outside of allowed limits

--Yeah, no, even in your backyard
--Interstate effect doesn't have to all come from this one instance, can aggregate for larger effect

Front 16

US v. Lopez

Back 16

Tries to penalize weapons on school grounds -- this isn't a commercial activity

"Substantial impact" allowance does not allow regulation of purely local, non-economic, non-commercial activities

Front 17

US v. Morrison

Back 17

Violence Against Women Act

Reaffirms Lopez

Front 18

Commerce Clause summed up:

Back 18

1. Channels (rivers, conduits through or over which commerce moves, wires, air waves, etc.)
2. Instrumentalities & persons & things (things that move through the channels, railway cars, buses, specific products, etc.)
3. Economic/commercial activities that substantially affect interstate commerce (but can't compel commercial activity that is not already happening)

Front 19

Tax & Spend Clause

Back 19

--don't just have to tax/spend within other enumerated powers
--Can impose conditions on funding (dole test)

Front 20

Dole test (conditions for federal funding)

Back 20

1) Pursuit of general welfare
2) Unambiguous conditions so states can make choice
3) Related to federal interest
4) Can't make states take part or choose unconstitutional activity

**Coercion is also mentioned - important in ACA decision

Front 21

10th Amendment

Back 21

--Typically seen as a truism instead of a specific grant of power
--Congress can't compel states to enact legislation (can't hijack their legislative powers)

Front 22

State Sovereignty & Discrimination

Back 22

--Congress CAN abrogate state immunity (14th amend, sect. 5), but only when it unequivocally does so and when it does so pursuant to a valid grant of constitutional authority (except not an article 1 power)
--Even if there IS discrimination and there is no state immunity, not necessarily a violation -- state can show it has a "rational basis"

Front 23

13th & 14th Amendments (Civil Rights Cases)

Back 23

13th - applies to state & private - "badges & incidents of slavery" - pretty narrow

14th - applies only to state action - broader - allows congressional regulation that is "congruent and proportional" to recent state violation of 14th, which is established by evidence brought before congress)

Front 24

Dormant Commerce Clause

Back 24

IF LAW IS DISCRIMINATORY (EITHER ON ITS FACE OR IN THAT IT UNEVENLY BURDENS NON-LOCAL AND INTERSTATE BUSINESS):
--Law is per se invalid, unless
--state can show that it is protecting a legitimate interest (rigorous scrutiny)
--and there is no other non-discriminatory method by which they could affect the same protection

IF IT IS NOT DISCRIMINATORY (AND APPLIED EVENHANDEDLY TO LOCAL AND NON-LOCAL BUSINESS):
--Law will be upheld, as long as:
1) Creates a legitimate local benefit that is NOT protectionism,
2) Imposes only incidental burden on interstate commerce, and
3) that burden could not be lessened through a different method

Front 25

Market Participant Doctrine

Back 25

if a state is acting as a participant, they are allowed to be protectionist or favor local business
However, that favoritism has to function in the market they are acting in (not in down-stream or corollary markets)

Front 26

Executive War Powers

Back 26

"I'm the president bitches. I'm here to enforce the law and fights the terrorists."

--Can't declare war
--Can't suspend habeas rights

How far is too far? (Dissent: Youngstown Steel)
1) President has most leeway when he is acting directly in reaction to grant or authorization by congress
2) Somewhat hazy middle ground w/o direct authorization but in reaction to "congressional inertia"
3) Least latitude when he is relying only on his own powers minus the constitutional powers of congress

Front 27

Who is an officer?

Back 27

Someone who exercises authority to the law of the US:
--makes rules or regulations
--prosecutes violations

Carlson Test: Does person have the power to take the action that affects private citizens?

Front 28

Inferior Officers (factors from Morrison)

Back 28

1) Can be removed by another executive above them who is not the president
2) Limited duties
3) Limited jurisdiction
4) Limited tenure

Employees have no actual policy make role

Front 29

Summarizing Removal Powers

Back 29

President: Removal is an inherent incident of executive power and congress can't draw that to themselves

Congress: Can impose limits on appointment and removal on created positions, even positions that are fully executive in nature, but double layers of "for-cause" requirement may cause problems

Front 30

Legislative Veto of Executive Power

Back 30

--Unconstitutional
--Legislation, that is, anything that affects the rights of the people, must be both bicameral and presented to the president

Front 31

Line Item Vetoes

Back 31

Also unconstitutional. C'mon guys, this is basic stuff. Veto the whole thing or not at all.

Front 32

Congressional Privileges

Back 32

"speech & debate" clause now expands protection to subordinate when they are acting "as one" with the congressperson within the legislator's legislative capacity

Front 33

Executive Privilege

Back 33

For President:
Absolute for official acts, which is defined broadly

For everyone else:
Limited to acting in good faith (couldn't have reasonably known at the time that they were violating a privilege or right, likely because it hadn't been declared a privilege or right yet)