Constitutional Law 2005

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
A. ARTICLE III

Federal judicial power extends to cases involving...

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1. Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws; and

2. Disputes between states, states and foreign citizens, and citizens of diverse citizenship.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
B. POWER OF JUDICIAL REVIEW

The Supreme Court may review the _____of acts of other branches of the ____. It may also review ____acts pursuant to the ___ ____

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The Supreme Court may review the constitutionality of acts of other branches of the federal government. It may also review state acts pursuant to the Supremacy Clause.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
C. FEDERAL COURTS

Only Article III courts (i.e., courts established by Congress pursuant to Article III) are the subject of this outline.

Congress has ____power to delineate the ___and ____ ____of these courts but is bound by the standards set forth in ____ as to __ ___ and ___jurisdiction and the requirement of a "___ or ___." Congress can also create courts under ___ (e.g., ___). Judges in those courts do not have ___ ___as do ___ judges, and Congress may not assign to ___courts jurisdiction over cases that have traditionally been tried in ___ courts.

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Congress has plenary power to delineate the original and appellate jurisdiction of these courts but is bound by the standards set forth in Article III as to subject matter and party jurisdiction and the requirement of a "case or controversy." Congress can also create courts under Article I (e.g., tax courts). Judges in those courts do not have life tenure as do Article III judges, and Congress may not assign to Article I courts jurisdiction over cases that have traditionally been tried in Article III courts.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
D. JURISDICTION OF THE SUPREME COURT
1. Original Jurisdiction
The Supreme Court has ___jurisdiction in all cases affecting ___, ____, ___, and those in which ____is a party, but Congress has given ___jurisdiction to ___ ___courts in all cases except those ___ ___.

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The Supreme Court has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party, but Congress has given concurrent jurisdiction to lower federal courts in all cases except those between states.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
D. JURISDICTION OF THE SUPREME COURT
2. Appellate Jurisdiction

The Supreme Court has ___jurisdiction in all cases to which _____ power extends, subject to congressional ___and ___

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The Supreme Court has appellate jurisdiction in all cases to which federal power extends, subject to congressional exceptions and regulation.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
D. JURISDICTION OF THE SUPREME COURT
2. Appellate Jurisdiction

Cases can come to the Court by one of two ways:
a. ___of ___--Most Cases The Supreme Court has complete ____to hear cases that come to it by ____ The cases that come by ____ are:
1) Cases from ____courts where (i) the constitutionality of a ___statute, ___ ___, or ___statute is in issue, or (ii) a ___statute allegedly violates ___law.

2) All cases from ___courts of ___

b. ____--Rare Cases The Supreme Court ___hear cases that come to it by ___. These cases are confined to decisions by a _____ federal district court panel that ___or ___ ___relief.

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a. Writ of Certiorari--Most Cases The Supreme Court has complete discretion to hear cases that come to it by certiorari. The cases that come by certiorari are: 1) Cases from state courts where (i) the constitutionality of a federal statute, federal treaty, or state statute is in issue, or (ii) a state statute allegedly violates federal law. 2) All cases from federal courts of appeals. b. Appeal--Rare Cases The Supreme Court must hear cases that come to it by appeal. These cases are confined to decisions by a three-judge federal district court panel that grants or denies injunctive relief.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"

Whether a case is "justiciable" (i.e., a federal court may address it) depends on there is a "___ or ___"

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...there is a "case or controversy." In addition to the "case or controversy" requirement, there are other limitations on federal court jurisdiction.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
1. No Advisory Opinions

There must be specific ___ ___or threat of specific __ ___Federal courts can hear actions for ___relief if there is an ___dispute between parties having adverse legal interests. Complainants must show that they have engaged in (or wish to engage in) ___conduct and that the challenged action poses a ___and ___danger to their interests. However, the federal courts will not determine the constitutionality of a statute if it has never been ____and there is no real ___that it ever will be.

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There must be specific present harm or threat of specific future harm. Federal courts can hear actions for declaratory relief if there is an actual dispute between parties having adverse legal interests. Complainants must show that they have engaged in (or wish to engage in) specific conduct and that the challenged action poses a real and immediate danger to their interests. However, the federal courts will not determine the constitutionality of a statute if it has never been enforced and there is no real fear that it ever will be.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
2. Ripeness--Immediate Threat of Harm

A plaintiff is not entitled to review of a statute or regulation before its ____(i.e., may not obtain a ___judgment) unless the plaintiff will suffer some ___or ___threat of ___

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the plaintiff will suffer some harm or immediate threat of harm.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
3. Mootness

A real ___must exist at all ___of review. If the matter has already been ___the case will be ___ as ___.

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A real controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
3. Mootness
a. Exception

Controversies capable of ___, but __ ___ are not ___. Examples: Issues concerning events of ___ ___(e.g., ___) or a defendant who voluntarily ___the offending practice but is free to ___

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Controversies capable of repetition, but evading review are not moot. Examples: Issues concerning events of short duration (e.g., abortion) or a defendant who voluntarily stops the offending practice but is free to resume.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
3. Mootness
b. Class Actions

A class representative may continue to pursue a class action after the ____'s controversy has become ___ if claims of ___ ____ ___ are still ____.

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A class representative may continue to pursue a class action after the representative's controversy has become moot if claims of other class members are still viable.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
3. Mootness

Ripeness bars consideration of claims ____they have been ____; mootness bars their consideration ____ they have been _____.

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Ripeness bars consideration of claims before they have been developed; mootness bars their consideration after they have been resolved.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
4. Standing

A person must have a concrete stake in the outcome of a case. What are the three components?

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1) Injury

2) Causation

3) Redressability

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
4. Standing
a. Components
1) Injury

Plaintiff must show that she has been or will be ___ and ___ injured by the allegedly unlawful government action, which affects her rights under the Constitution or federal law. The injury need not be ____.

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Plaintiff must show that she has been or will be directly and personally injured by the allegedly unlawful government action, which affects her rights under the Constitution or federal law. The injury need not be economic.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
4. Standing
a. Components
2) Causation


There must be a ____ connection between the ___ and the ____ complained of.

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There must be a causal connection between the injury and the conduct complained of.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
4. Standing
a. Components
3) Redressability

A decision in the litigant's favor must be capable of ____ her ____.

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A decision in the litigant's favor must be capable of eliminating her grievance.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
4. Standing
a. Components

Remember that standing just allows the plaintiff to get ___ ___. Thus, a successful ruling on the ____ issue does not mean that the plaintiff ___ his ___; it merely means that he gets an opportunity to __ __.

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Remember that standing just allows the plaintiff to get into court. Thus, a successful ruling on the standing issue does not mean that the plaintiff wins his suit; it merely means that he gets an opportunity to try it.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
4. Standing
b. Common Standing Issues
1) Congressional Conferral of Standing

A federal statute may create new interests, injury to which may be ___ for ___. However, Congress has no power to eliminate the ___ or ___ requirement and, thus, cannot grant ____ to someone not having an ___.

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A federal statute may create new interests, injury to which may be sufficient for standing. However, Congress has no power to eliminate the case or controversy requirement and, thus, cannot grant standing to someone not having an injury.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
4. Standing
b. Common Standing Issues
2) Standing to Enforce Government Statutes

A plaintiff may have standing to enforce a ____ statute if she is within the "___ of ___" Congress meant to ____.

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A plaintiff may have standing to enforce a federal statute if she is within the "zone of interests" Congress meant to protect.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
4. Standing
b. Common Standing Issues
3) Standing to Assert Rights of Others

Generally, one ___ assert the constitutional rights of ___ to obtain ___, but a claimant with ___ in ___ ___ right may also assert the rights of a ___ ___ if:

a) It is ____ for the ___ ___ to assert her own ____(e.g., an association may attack a law requiring disclosure of membership lists, because members cannot attack the law without disclosing their identities); or

b) A special ____ exists between the ___ and the ___ party (e.g., a doctor can assert a patient's rights in challenging an abortion restriction).

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Generally, one cannot assert the constitutional rights of others to obtain standing, but a claimant with standing in her own right may also assert the rights of a third party if:

a) It is difficult for the third party to assert her own rights (e.g., an association may attack a law requiring disclosure of membership lists, because members cannot attack the law without disclosing their identities); or

b) A special relationship exists between the claimant and the third party (e.g., a doctor can assert a patient's rights in challenging an abortion restriction).

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
4. Standing
b. Common Standing Issues
4) Standing of Organizations

An organization has standing if
(i) there is an ___ in ___ to members that gives them a right to sue on their own behalf,

(ii) the ___ is related to
the organization's ___, and

(iii) ___ member participation in the lawsuit is ___ ____.

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An organization has standing if (i) there is an injury in fact to members that gives them a right to sue on their own behalf, (ii) the injury is related to the organization's purpose, and (iii) individual member participation in the lawsuit is not required.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
4. Standing
b. Common Standing Issues
5) No Citizenship Standing

People have no ___ merely as "____" to claim that government action violates ____ law or the ___. The injury is too ____.

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People have no standing merely as "citizens" to claim that government action violates federal law or the Constitution. The injury is too generalized.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
4. Standing
b. Common Standing Issues
6) Taxpayer Standing Requisites

A taxpayer has standing to litigate her __ __, but a taxpayer generally has no standing to challenge ___ ___, because the taxpayer's interest is too ___.

Exception: Suits attacking ___ and ___ measures on ___ Amendment ____ Clause grounds (e.g., federal expenditures to aid ___ schools).

For a taxpayer to have standing, the ___ power must be involved. Thus, for example, there is no standing to challenge federal government grants of surplus ____ to ____ groups.

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A taxpayer has standing to litigate her tax bill, but a taxpayer generally has no standing to challenge government expenditures, because the taxpayer's interest is too remote. Exception: Suits attacking taxing and spending measures on First Amendment Establishment Clause grounds (e.g., federal expenditures to aid parochial schools).
For a taxpayer to have standing, the spending power must be involved. Thus, for example, there is no standing to challenge federal government grants of surplus property to religious groups.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
5. Adequate and Independent State Grounds

The Supreme Court will not exercise ____ if the state court judgment is based on ___ and _____ state law grounds--even if ___ issues are involved. State law grounds are ____ if they are fully ____ of the case. They are ____ if the decision is not based on ____ case interpretations of identical ____ provisions. When the state court has not clearly indicated that its decision rests on ____ law, the Supreme Court ___ hear the case.

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The Supreme Court will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds--even if federal issues are involved. State law grounds are adequate if they are fully dispositive of the case. They are independent if the decision is not based on federal case interpretations of identical federal provisions. When the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
6. Abstention
a. Unsettled Question of State Law

A federal court will temporarily ____ from resolving a ____ claim when the disposition rests on an ____ question of ___ law.

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A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
6. Abstention
b. Pending State Proceedings

Federal courts will not ___ pending state ____ proceedings (and in some cases pending state ___ or ___ proceedings involving an ___ state interest), except in cases of proven ____ or ___ taken in bad ____.

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Federal courts will not enjoin pending state criminal proceedings (and in some cases pending state administrative or civil proceedings involving an important state interest), except in cases of proven harassment or prosecutions taken in bad faith.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
7. Political Questions

Political questions will __ be decided. These are issues (i) constitutionally committed to another ___ of ___ or (ii) ___ incapable of ____ resolution.

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Political questions will not be decided. These are issues (i) constitutionally committed to another branch of government or (ii) inherently incapable of judicial resolution.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
7. Political Questions
a. Examples of Political Questions

Challenges based on the "____ ____ of Government" Clause of Article __, challenges to ____ procedures for ratifying constitutional _____, and the President's conduct of ___ policy are political questions.

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Challenges based on the "Republican Form of Government" Clause of Article IV, challenges to congressional procedures for ratifying constitutional amendments, and the President's conduct of foreign policy are political questions.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
7. Political Questions
b. Compare--Nonpolitical Questions

Legislative ____, arbitrary exclusion of a congressional ____, and production of presidential ___ and ____ are not political questions.

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Legislative apportionment, arbitrary exclusion of a congressional delegate, and production of presidential papers and communications are not political questions.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
8. Eleventh Amendment Limits on Federal Courts

The _____ Amendment prohibits ___ courts from hearing a ___ party's or ___ government's claims against a ___ government.

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The Eleventh Amendment prohibits federal courts from hearing a private party's or foreign government's claims against a state government.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
8. Eleventh Amendment Limits on Federal Courts
a. What Is Barred?

The prohibition extends to actions in which the ___ is named as a party or in which the ___ will have to pay ___ damages. Similarly, the Supreme Court has held that the doctrine of ___ ___ bars suits against a ___ government in ___ court, even on ___ claims, unless the defendant ____ consents.

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The prohibition extends to actions in which the state is named as a party or in which the state will have to pay retroactive damages. Similarly, the Supreme Court has held that the doctrine of sovereign immunity bars suits against a state government in state court, even on federal claims, unless the defendant state consents.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
8. Eleventh Amendment Limits on Federal Courts
b. What Is Not Barred?

The prohibition does not extend to actions against ___ governments, actions by the ____ ____ or other ___, or discharge of a ____'s claim against a ___ in federal ____ court.

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The prohibition does not extend to actions against local governments, actions by the United States or other states, or discharge of a state's claim against a debtor in federal bankruptcy court.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
8. Eleventh Amendment Limits on Federal Courts
c. Exceptions
1) Certain Actions Against State Officers

The following actions can be brought against state officers in ____ court despite the ___ Amendment: (i) actions to enjoin an officer from future conduct that violates the ___ or ___ law, even if this will require ____ payment from the ____; and (ii) actions for ____ against an officer ____.

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The following actions can be brought against state officers in federal court despite the Eleventh Amendment: (i) actions to enjoin an officer from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state; and (ii) actions for damage against an officer personally.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
8. Eleventh Amendment Limits on Federal Courts
c. Exceptions
2) State Consents

A state may ____ to a suit in ___ court. Such ___ must be ___ and ____.

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A state may consent to a suit in federal court. Such consent must be express and unequivocal.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
I. THE JUDICIAL POWER
E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY"
8. Eleventh Amendment Limits on Federal Courts
c. Exceptions
3) Congress Removes the Immunity

Congress can remove ____ Amendment ____ as to actions created under the _____ Amendment, but it must be unmistakably ____ that Congress intended to remove the _____.

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Congress can remove Eleventh Amendment immunity as to actions created under the Fourteenth Amendment, but it must be unmistakably clear that Congress intended to remove the immunity.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS

The federal government has limited powers. Every exercise of federal power must be traced to the Constitution.

Congress can exercise those powers enumerated in the ____ plus all _____ powers ___ and ____ to carry out all powers ____ in the federal government.

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Congress can exercise those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
1. Necessary and Proper "Power"

Congress has the power to make all laws _____ and _____ (appropriate) for executing any power ____ to any _____ of the federal government.

The _____ and ____ Clause standing alone cannot support _____ law. It must work in conjunction with another ______ power.

Thus, an answer choice that states that a law is supported by the Necessary and Proper Clause (or is valid under Congress's power to enact legislation necessary and proper) will be _____ unless another ____ power is linked to it in the question.

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Congress has the power to make all laws necessary and proper (appropriate) for executing any power granted to any branch of the federal government.
The Necessary and Proper Clause standing alone cannot support federal law. It must work in conjunction with another federal power. Thus, an answer choice that states that a law is supported by the Necessary and Proper Clause (or is valid under Congress's power to enact legislation necessary and proper) will be incorrect unless another federal power is linked to it in the question.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
2. Taxing Power

Congress has the power to ____, and most ____ will be upheld if they bear some _____ relationship to ____ production or if Congress has the power to _____ the activity ____. However, neither Congress nor the states may tax ___ to foreign countries.

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Congress has the power to tax, and most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed. However, neither Congress nor the states may tax exports to foreign countries.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
3. Spending Power

Congress may spend to "provide for the ___ ___ and ___ ____." Spending may be for any ____ purpose.

The federal government can ___ and ____ for the ___ ___; it cannot directly ____ for it.

Thus, ____ ____ cannot be supported by the General Welfare Clause.

Also recall that although the power to spend for the general welfare is broad (any public purpose), it is still limited by the Bill of Rights and other constitutional provisions.

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Congress may spend to "provide for the common defense and general welfare." Spending may be for any public purpose.
The federal government can tax and spend for the general welfare; it cannot directly legislate for it. Thus, nonspending regulations cannot be supported by the General Welfare Clause.
Also recall that although the power to spend for the general welfare is broad (any public purpose), it is still limited by the Bill of Rights and other constitutional provisions.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
4. Commerce Power

Congress has the ___ power to ____ all ____ and ___ commerce. To be within Congress's power under the ____ ____, a federal law regulating ____ ____ must either:

(i) Regulate the ____ of ___ ____;

(ii) Regulate the _____ of interstate commerce and ___ and ____ in interstate commerce; or

(iii) Regulate activities that have a ___ ___ on interstate commerce.

If Congress attempts to regulate ____ (i.e., ____) _____ activity, the federal government must prove to the court that the activity in fact affects _____ commerce.

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Congress has the exclusive power to regulate all foreign and interstate commerce. To be within Congress's power under the Commerce Clause, a federal law regulating interstate commerce must either:
(i) Regulate the channels of interstate commerce;
(ii) Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or
(iii) Regulate activities that have a substantial effect on interstate commerce.
If Congress attempts to regulate noneconomic (i.e., noncommercial) intrastate activity, the federal government must prove to the court that the activity in fact affects interstate commerce.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
5. War and Related Powers

The Constitution gives Congress power to declare ___, raise and support ___, and provide for and maintain a ____.

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The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
5. War and Related Powers
a. Economic Regulation

_____ regulation during ___ and in the ___ period to remedy ___ disruptions has been ____.

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Economic regulation during war and in the postwar period to remedy wartime disruptions has been upheld.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
5. War and Related Powers
b. Military Courts and Tribunals

Congress is authorized to make rules for the ___ and ____ of ___ ____.

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Congress is authorized to make rules for the government and regulation of armed forces.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
5. War and Related Powers
b. Military Courts and Tribunals
1) Judicial Review

Regular ___ (or ___) courts have no ____ power of ____ over ____-____ proceedings.

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Regular federal (or state) courts have no general power of review over court-martial proceedings.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
5. War and Related Powers
b. Military Courts and Tribunals
2) Enemy Civilians and Soldiers

Enemy ___ and ___ may be tried by ____ courts.

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Enemy civilians and soldiers may be tried by military courts.

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PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
5. War and Related Powers
b. Military Courts and Tribunals
3) American Soldiers

____ courts have ____ over all offenses committed by persons who are members of the ____ ____ both at the time of the ___ and when ___.

Back 47

Military courts have jurisdiction over all offenses committed by persons who are members of the armed services both at the time of the offense and when charged.

Front 48

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
5. War and Related Powers
b. Military Courts and Tribunals
4) American Civilians

American ____ may be tried by ____ courts under ___ law only if actual ___ forces the ___ courts to ___ ___.

Back 48

American civilians may be tried by military courts under martial law only if actual warfare forces the federal courts to shut down.

Front 49

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
5. War and Related Powers
b. Military Courts and Tribunals
5) Detention of Citizen Enemy Combatants

____ ____ requires that a ___ held in the ___ ___ as an "____ ____" have a meaningful opportunity to contest the ____ basis for his _____ before a ____ ____.

Back 49

Due process requires that a citizen held in the United States as an "enemy combatant" have a meaningful opportunity to contest the factual basis for his detention before a neutral decisionmaker.

Front 50

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
6. Investigatory Power

The power of Congress to ___ is ___. ____ must be ___ or ____ authorized by the appropriate congressional ___.

Back 50

The power of Congress to investigate is implied. Investigation must be expressly or impliedly authorized by the appropriate congressional house.

Front 51

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
7. Property Power

Congress has the power to ___ of and make rules for ____ and other ____ of the United States. While there is no express limitation on Congress's power to _____ of property, ____ takings (___ _____) must be for the purpose of ___ an ____ power under some other ____ of the ____.

Back 51

Congress has the power to dispose of and make rules for territories and other properties of the United States. While there is no express limitation on Congress's power to dispose of property, federal takings (eminent domain) must be for the purpose of effectuating an enumerated power under some other provision of the Constitution.

Front 52

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
8. No Federal Police Power

Congress has no general ___ ___. However, Congress has ___ ___ type powers over the ____ of ____, federal _____, ____ bases, and ___ ___ (based on its power over the capitol and its property power).

If an answer choice attempts to support federal action on the basis of the police power (e.g., "Congress can constitutionally act under the police power" or "the action is valid under the federal police power"), see whether the facts state that the action pertains to MILD. If not, it is a wrong choice.

Back 52

Congress has no general police power. However, Congress has police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations (based on its power over the capitol and its property power).
If an answer choice attempts to support federal action on the basis of the police power (e.g., "Congress can constitutionally act under the police power" or "the action is valid under the federal police power"), see whether the facts state that the action pertains to the District of Columbia or other federal possessions. If not, it is a wrong choice.

Front 53

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
9. Bankruptcy Power

Congress's power to establish uniform rules for ____ is ____; ____ may legislate in the field as long as their laws do not ___ with ____ law.

Back 53

Congress's power to establish uniform rules for bankruptcy is nonexclusive; states may legislate in the field as long as their laws do not conflict with federal law.

Front 54

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
10. Postal Power

The ___ power is ____. Under the ____ power, Congress may validly classify and place reasonable restrictions on use of the ___, but may not deprive any ___ or ___ of ___ of the general ___ "___.

Back 54

The postal power is exclusive. Under the postal power, Congress may validly classify and place reasonable restrictions on use of the mails, but may not deprive any citizen or group of citizens of the general mail "privilege.

Front 55

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
11. Power Over Citizenship

Congress may establish uniform rules of ____. This gives Congress ____ power over ___.

Back 55

Congress may establish uniform rules of naturalization. This gives Congress plenary power over aliens.

Front 56

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
11. Power Over Citizenship a. Exclusion of Aliens

____ have no right to ___ the United States and can be ___ entry summarily because of their ___ ____. However, ___ aliens are entitled to ___ and a ___ before they can be ____.

Back 56

Aliens have no right to enter the United States and can be refused entry summarily because of their political beliefs. However, resident aliens are entitled to notice and a hearing before they can be deported.

Front 57

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
11. Power Over Citizenship
b. Naturalization and Denaturalization

Congress has ___ power over ___ and ____. However, Congress may not take away the ____ of any ____--___ ___ or ____--without his ___.

Back 57

Congress has exclusive power over naturalization and denaturalization. However, Congress may not take away the citizenship of any citizen--native born or naturalized--without his consent.

Front 58

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
12. Admiralty Power

Congress's ___ power is ___ and ___ unless Congress leaves ___ matters to ____ jurisdiction.

Back 58

Congress's admiralty power is plenary and exclusive unless Congress leaves maritime matters to state jurisdiction.

Front 59

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
13. Power to Coin Money and Fix Weights and Measures

Congress has the power to ___ money and ___ standards for ___ and ___.

Back 59

Congress has the power to coin money and fix standards for weights and measures.

Front 60

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
A. ENUMERATED AND IMPLIED POWERS
14. Patent/Copyright Power

Congress has the power to control the ___ of ___ and ___.

Back 60

Congress has the power to control the issuance of patents and copyrights.

Front 61

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
B. DELEGATION OF LEGISLATIVE POWER

Legislative power may generally be ___ to the ____ or ____ branch as long as ___ standards are set and the power is not uniquely ___ to Congress (e.g., powers to declare war, impeach).

Note: Congress may not ___ members of a body with ___ or ____ powers (see III.A.1.a., infra).

Although you should know that a valid ___ of legislative power requires "___ ____" for the ____ to follow (see above), in applying that rule almost anything will pass for an ___ ___, and thus no legislative ___ has been invalidated since 1936.

Back 61

Legislative power may generally be delegated to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress (e.g., powers to declare war, impeach).
Note: Congress may not appoint members of a body with administrative or enforcement powers (see III.A.1.a., infra).
Although you should know that a valid delegation of legislative power requires "intelligible standards" for the delegate to follow (see above), in applying that rule almost anything will pass for an intelligible standard, and thus no legislative delegation has been invalidated since 1936.

Front 62

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
C. SPEECH AND DEBATE CLAUSE--IMMUNITY FOR FEDERAL LEGISLATORS

___ that occurs in the ____ course of the federal ____ ____ and the ____ behind that ____ are ____ from ____.

Note: Immunity does not cover ___, ___ outside Congress, or the ___ in a ___ release or ___ of a ____ statement ___ made in Congress.

Back 62

Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution.
Note: Immunity does not cover bribes, speeches outside Congress, or the republication in a press release or newsletter of a defamatory statement originally made in Congress.

Front 63

PART 1: POWERS OF THE FEDERAL GOVERNMENT
II. LEGISLATIVE POWER
D. CONGRESSIONAL "VETO" OF EXECUTIVE ACTIONS INVALID

A legislative ___ is an attempt by Congress to overturn an _____ agency action without ____ (i.e., passage by both ____ of ____) or ___ (i.e., giving the bill to the ____ for his ____ or ___). Legislative ___ of ____ actions are ___.

Back 63

A legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism (i.e., passage by both houses of Congress) or presentment (i.e., giving the bill to the President for his signature or veto). Legislative vetoes of executive actions are invalid.

Front 64

III. THE EXECUTIVE POWER
A. DOMESTIC POWERS
1. Appointment and Removal
a. Appointment Powers

The executive appoints "all ___, other public ___ and ___, justices of the ___ ___, and all other ___ of the United States whose appointments are not otherwise provided for," with ___ and ___ of the Senate. Congress, however, may vest the appointment of ___ ___ in the President ___, the ___, or the ___ of ___. Congress itself may ___ appoint members of a body with ___ or ____ powers.

Back 64

The executive appoints "all ambassadors, other public ministers and consuls, justices of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for," with advice and consent of the Senate. Congress, however, may vest the appointment of inferior officers in the President alone, the courts, or the heads of departments. Congress itself may not appoint members of a body with administrative or enforcement powers.

Front 65

III. THE EXECUTIVE POWER
A. DOMESTIC POWERS
1. Appointment and Removal
b. Removal of Appointees
1) By President

The President can remove high level, purely ____ officers ( e.g., ____ members) at ___, without any ____ by Congress. However, Congress may provide ____ limitations ( e.g., removal only for __ ___) on the President's power to remove ___ ___ executive ____.

Back 65

The President can remove high level, purely executive officers ( e.g., cabinet members) at will, without any interference by Congress. However, Congress may provide statutory limitations ( e.g., removal only for good cause) on the President's power to remove all other executive appointees.

Front 66

III. THE EXECUTIVE POWER
A. DOMESTIC POWERS
1. Appointment and Removal
b. Removal of Appointees
2) By Congress

Congress may remove ___ ___ only through the ____ ___.

Back 66

Congress may remove executive officers only through the impeachment process.

Front 67

III. THE EXECUTIVE POWER
A. DOMESTIC POWERS
2. Pardons

The President may grant _____ for all ____ offenses but not for ____ or ___ ___. The ___ power cannot be ___ by Congress.

Back 67

The President may grant pardons for all federal offenses but not for impeachment or civil contempt. The pardon power cannot be limited by Congress.

Front 68

III. THE EXECUTIVE POWER
A. DOMESTIC POWERS
3. Veto Power

If the President disapproves (vetoes) an act of Congress, the act may still become law if the veto is ____ by a ___-____ vote of ___ house.

Back 68

If the President disapproves (vetoes) an act of Congress, the act may still become law if the veto is overridden by a two-thirds vote of each house.

Front 69

III. THE EXECUTIVE POWER
A. DOMESTIC POWERS
3. Veto Power
a. Pocket Veto
The President has ___ days to exercise the ___ power. If he fails to act within that time, the bill is ___ ___ if Congress is __ in session. If Congress is in ___, the bill becomes ___.

Back 69

The President has 10 days to exercise the veto power. If he fails to act within that time, the bill is automatically vetoed if Congress is not in session. If Congress is in session, the bill becomes law.

Front 70

III. THE EXECUTIVE POWER
A. DOMESTIC POWERS
3. Veto Power
b. Line Item Veto Unconstitutional

The veto power allows the President only to approve or reject a bill __ ___; he cannot cancel __ (through a __ ___ ___) and approve ___ parts.

Back 70

The veto power allows the President only to approve or reject a bill in toto; he cannot cancel part (through a line item veto) and approve other parts.

Front 71

III. THE EXECUTIVE POWER
A. DOMESTIC POWERS
4. Power as Chief Executive

The President's powers over internal affairs are ____. Clearly the President has some power to direct ___ ___officers, and there is a long history of Presidents issuing ___ ___. Perhaps the best guide is as follows:

a. If the President acts with the ___ or ___ authority of Congress, his authority is at its maximum and his actions likely are ___;

b. If the President acts where Congress is ____, his action will be ___ unless it ___ the power of ___ ___ branch or ___ another branch from carrying out its tasks; and

c. If the President acts ___ the ___ will of Congress, he has ___ authority, and his action likely is ___ (e.g., the President has no power to ___ to spend appropriated funds when Congress has ___ mandated that they be spent).

Back 71

The President's powers over internal affairs are unsettled. Clearly the President has some power to direct subordinate executive officers, and there is a long history of Presidents issuing executive orders. Perhaps the best guide is as follows:
a. If the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid;
b. If the 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; and
c. If the President acts against the express will of Congress, he has little authority, and his action likely is invalid (e.g., the President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent).

Front 72

III. THE EXECUTIVE POWER
B. POWER OVER EXTERNAL AFFAIRS
1. War

The President has __ power to declare war but may act militarily in ___ hostilities against the United States ___ a congressional declaration of war. However, Congress, under its power to enact a military ___ every ___ years, may __ the President.

Back 72

The President has no power to declare war but may act militarily in actual hostilities against the United States without a congressional declaration of war. However, Congress, under its power to enact a military appropriation every two years, may limit the President.

Front 73

III. THE EXECUTIVE POWER
B. POWER OVER EXTERNAL AFFAIRS
2. Foreign Relations

The President has ___ power to represent the United States in day-to-day ___ relations.

Back 73

The President has paramount power to represent the United States in day-to-day foreign relations.

Front 74

III. THE EXECUTIVE POWER
B. POWER OVER EXTERNAL AFFAIRS
3. Treaty Power

The President has the power to enter into treaties with the ___ of ___-__ of the ____.

Back 74

The President has the power to enter into treaties with the consent of two-thirds of the Senate.

Front 75

III. THE EXECUTIVE POWER
B. POWER OVER EXTERNAL AFFAIRS
3. Treaty Power
a. Supreme Law

Like other federal law, treaties are the "___ law of the land." ___ laws that conflict are ___.

Back 75

Like other federal law, treaties are the "supreme law of the land." State laws that conflict are invalid.

Front 76

III. THE EXECUTIVE POWER
B. POWER OVER EXTERNAL AFFAIRS
3. Treaty Power
b. Conflict with Federal Laws
A conflict between a congressional ___ and a valid ___ is resolved by order of adoption: the ___ in time prevails .

Conflict with Constitution

Treaties are __ co-equal with the Constitution; a treaty may not be ___ with the Constitution.

Treaties are subject to ___ limits. Thus, no __ (or __ agreement) can confer on __ authority to act in a manner __ with any specific ___of the __.

Back 76

A conflict between a congressional act and a valid treaty is resolved by order of adoption: the last in time prevails .
Conflict with Constitution
Treaties are not co-equal with the Constitution; a treaty may not be inconsistent with the Constitution.
Treaties are subject to constitutional limits. Thus, no treaty (or executive agreement) can confer on Congress authority to act in a manner inconsistent with any specific provision of the Constitution.

Front 77

III. THE EXECUTIVE POWER
B. POWER OVER EXTERNAL AFFAIRS
4. Executive Agreements

______ agreements are signed by the ______ and the ______ of a ______ ______. They can be used for any purpose that ___ can be used for. They do ___ require the ___ of the ___.

Back 77

Executive agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for. They do not require the consent of the Senate.

Front 78

III. THE EXECUTIVE POWER
B. POWER OVER EXTERNAL AFFAIRS
4. Executive Agreements
a. Conflict with State Laws

If a ___ law conflicts with an ___ agreement, the agreement ___.

Back 78

If a state law conflicts with an executive agreement, the agreement prevails.

Front 79

III. THE EXECUTIVE POWER
B. POWER OVER EXTERNAL AFFAIRS
4. Executive Agreements
b. Conflict with Federal Laws
If an ___ agreement conflicts with a ___ law, the ___ ___prevails over the ___.

Back 79

If an executive agreement conflicts with a federal law, the federal law prevails over the agreement.

Front 80

III. THE EXECUTIVE POWER
C. EXECUTIVE PRIVILEGE/IMMUNITY
1. Executive Privilege

The President has a privilege to keep certain ___ secret. ___ ___secrets are given great ___ by the courts.

Back 80

The President has a privilege to keep certain communications secret. National security secrets are given great deference by the courts.

Front 81

III. THE EXECUTIVE POWER
C. EXECUTIVE PRIVILEGE/IMMUNITY
1. Executive Privilege
a. Exception

In ___ proceedings, presidential ___ will be available to the ___ where a need for such information is ___.

Back 81

In criminal proceedings, presidential communiques will be available to the prosecution where a need for such information is demonstrated.

Front 82

III. THE EXECUTIVE POWER
C. EXECUTIVE PRIVILEGE/IMMUNITY
2. Executive Immunity

The President has absolute ___from ___damages based on any action he took within his ___ ___, but there is no ___for acts that allegedly occurred ___taking ___. If presidential ___have exercised ___authority in a ___area, they may share in the ___for suits brought concerning that area.

Back 82

The President has absolute immunity from civil damages based on any action he took within his official responsibilities, but there is no immunity for acts that allegedly occurred before taking office. If presidential aides have exercised discretionary authority in a sensitive area, they may share in the immunity for suits brought concerning that area.

Front 83

III. THE EXECUTIVE POWER
D. IMPEACHMENT

The ___, ___ ___, and all ___officers of the United States are subject to ___(the bringing of charges). Grounds include ___, ___, ___crimes, and ___. A ___vote in the ___is necessary to invoke the charges of impeachment, and a ___-___vote in the ___is necessary to ___and ___from office.

Back 83

The President, Vice President, and all civil officers of the United States are subject to impeachment (the bringing of charges). Grounds include treason, bribery, high crimes, and misdemeanors. A majority vote in the House is necessary to invoke the charges of impeachment, and a two-thirds vote in the Senate is necessary to convict and remove from office.