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75 Cards in this Set

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What are the three mootness exceptions?
1. capable of repetition yet evading review
2. voluntary cessation by defendant
3. collateral consequences.
In relation to ripeness; what is a specifice threatened harm?
For a case to be ripe it is not necessary that the litigant have already suffered harm. It will be enough that there is a reasonable probability of harm. However, the anticipated harm has to be fairly specific.
What is the taxing power?
Art. 1 sect. 8: The power to "lay and collect taxes". This is an independent power which can be used to reach conduct that might be beyond the other sources of congressional power. Congress can most likely regulate under the guise of taxing, so long as there's some real revenue produced. Note: 1. that congress cannot tax any exports from any state and 2. all customs duties and excise taxes must be unifrom. Ex. congress cannot place a higher fed excise tax on gas in one state than the other
What is the three part test a state has to meet in order to avoid violating the Dormant Commerce Clause?
1. legitimate state end
2. regulation must be rationally related to the legitimate state end
3. the regulatory burden imposed by the state on interstate commerce must be outweighed by the state's interest in enforcing its regulations
One of the things to look for when evaluating whether a state had violated the DCC
Discrimination against out of staters. If the state is promoting its residents' own economic interests this will not be a legitimate state objective and will virtually automatically violate the Commerce Clause.
What is an example of a legitimate state end in regards to the the DCC?
regulations that are truly addressed to the state's health, safety, and welfare objectives.
The DCC balancing test
Whether the benefits to the state from its regulations outweigh the unintentional burdens on commerce.
Note: Pay special attention to whether there are less restrictive means avialble to the state b/c if the state could accomplish its objective as well or even almost as well while burdening commerce less, then it probably has to do so.
Note II: A measure that leads to a lack of unifomity is likely to constitute a big burden on interstate commerce.
In regards to DCC what is the "market participant exception?"
If the state acts as a market particpant it may favor local over out of state interests.
McCullogh v. Maryland
estabished that when Congress is acting in pursuit of a consitutionally specified objective, the means chosen merely has to be rationally related to the objective , not "necessary" to the objective's attainment.
In relation to the the Necessary and Proper Clause; what is the means and ends relationship?
Congress may use any means that is 1. rationally related to the exercise of the enumerated power; and 2. not specifically for idden by the Constitution.
Exam tips on Supreme Court Authority
1. If the facts describe a lawsuit that takes place in federal court be alert to limits on the federal judicial power.
2. If the facts involve a state court suit that is heard by the SC on cert. be sure that the state court decision was based on federal law.
3. Be alert to the possible existence of an independent and adequate state ground. i.e. if the state court decided some issue of state law in a way that would have been enough to dispose of the case, there is not fed issue that is vital to the case, and the SC may not decide the federal issue or if state court decided the state issue solely as a matter of state law.
What is Congress power over the Supreme Court and the Article III courts?
1. Congress can withing limts cut back on the kinds of cases the Supreme court may hear, but cannot expand the case load beyond that which is allowed by the Consitution.
2. Congress may cut back perhaps even completely eliminate, the lower federal courts; as with the Supreme Court, Congress may not expand the lower courts dockets beyond what the Consititution allows.
U.S. v. Lopez
established that the activity which Congress is regulating must in fact have a "substantial effect" on interstate commerce
What is the Anti-commandeering principle?
Congress may not simply "commandeer the legislative processes of the states by directly compelling them to enact and enforce a regulatory program." (New York v. U.S.)
Note: the Congress mmay sigle out the states for regulation whne the stes are acting as market participants.
What is the cumulative effect on interstate commerce as established in Wikard v. Filburn?
It states that even if a particular commercial activity being regulated seems to take place solely intrastate, the Court will usually find that hwn all similar activities are considered as a class they ahve a cumulative effect on interstate commerce.
What is a "jurisdictional hook" within interstate commerce regulations?
It is when Congress, for example, puts forth a regulation which bans only those items passed in interstate commerce. The term is usually used when referring to activites that probably don't substantially affect interstate commerce or are not really commercial.
Exam Tips: Congress Regulating the States
Be allert for fact patterns where congress in regulating the states. Such regulation raises a Tenth Amendment issue. So long as Congress has merely passed a generally applicable law, this law can apply to the states just as it does to private individuals.
Can congress use the taxing power to regulate?
Yes, a tax can be pricipally for regualtory purposes. The taxing power is an independent source of congressional power - so as long the tax produces at least a non-trivial amount of revenue, and its regulatory scheme seems rationally related to the collection of the tax itself, it's a valid exercise of the tax power.
What is the difference between a treaty and an executive agreement?
The president may propose a treaty, but it does not become effective until ratified by two thirds of the Senate. An executive agreement is essentially an agreement entered ito between the Presiedent and some other country but not ratified by the Senate.
Can an executive agreement overide a prior act of Cogress or a state law?
No
The Power of Judicial Review
It is the Supreme court, not congress, which has the authority and duty to review the consitutionality of sttues passed by Congress, and to invalidate the statue if it violates the Consititution.
Supreme Court review of state court decisions "Independent and adequate state grounds"
The Supreme Court may review state court decisions, but only to the extent that the decision was based on federal law. Ben if there is a federal question in a state court case, the SC may not review the case if there was a "independent and adequate" state ground for the stte court's decision. (Thsi is , if the same result would be reached even if the state court had made a different decision on the federal question.)
Art. III Section 2
The federal judical power: This power includes (partial listing) cases arising under the Consitution or under federal statutes; cases of admiralty; cases between two or more states; cases between citizens of different states; and cases between a state or its citizens and foreign country or foreign citizens.
Marbury v. Madison
If you don't know this one you need to quit law school.
Martin v Hunter's Lessee
Established the SC's power to review state court decisions. The SC rejected Virginia's argument of sovereignity and stressed that there was a need for uniformity in decisions through the nation interpeting the constitution.
Ex Parte McCardle
After the SC heard arguments in the McCardle case,but before it handed down its decision Congress passed a lw repealing th poetion of the act which allowed apprals to the SC. The SC upheld Congress' restriction of the Court's jurisdiction noting that the jusidiction of the SC is conferred "with such exceptions and under such regulations as Congress shall make."
McColloch v. Maryland
Doctrine of Implied Powers. The 2nd Bank of the United States case.
Test for Commerce Power
A particular congressional act comes within congress' commerce pwer if both of the following are true:
1. The activity being regulated substantially affects commerce and
2. the means chosen by Congress is "reaonable realted" to Congress' objective in regulating.

Note: Where Congress thinks that what it is doing falls witin its commerce power, the Court raely disagrees, especially where the activity being regulated is itself "commercial."
Tenth Amendment Limitations on Congress' Power
The 10th amendment ("the powers not delegated to the United States by the consitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People") occasionally limits congree's ability to use its commerce pwer to regulate the states.
Gibbons v. Ogden
NY and NJ steam boat monopoly case. The first major case construing the Commerce Clause. The court took a borad view of Congress' powers under the CC saying that Congress could legislate with respect to all commerce which concerns more states than one. This, they said, included not only bjuying ans selling but all "commerical intercourse."
Conditional Spending
Congress may place conditions on its spending power as a kind of regulation. This is true even if Congress could not regulate in an area directly (because the area regulated would be of such completely local concern that the commerce power would not be triggered). Conditions placed upon the doling out of federal funds are usually justified under the "Necessary and Proper" clause (which lets congress use any means to seek an objective falling within the specifically enumerated pwers, as long as the means is rationally related to the objective, and is not specifically forbidden by the consitituion.
Dormant Commerce Clause
The mere existence of the federal commerce pwer restricts the states from discriminating against, or unduly budening, interstate commerce. This restriction is called the "dormant Commerce Clause."
Dormant Commerce Clause Three Part Test
A state regulation which affects interstate commerce must satisfy each of the following three requirments in order to avoid violating the Dormant Commerce Clause:
1. the regulation must pursue a legitimate state end
2. the regulation must be rationally related to the legitimate state end; and
3. the regulatory burden impsed by the state on interstate commerce must be otu weighed by the state's interest in enforcing its regulation.
Supremacy Clause
Under the Supremacy Clause of the Constitution, the constitution and federal laws take priority over any conflicting state law.
Note: If Congress has manifested an intent to occupy an entire field, then any state regulation in that field (even if it does not directly conflict with federal regulation) is invalid because of the Supremacy Clause.
Note II: If a state law is directly inconsistent with a valid federal statute covering the same subject matter, the state law is invalid under the Supremacy Clause.
Exam Hints on ways to spot protectinism
1. looke for rules restricting the exprot of "good stuff" produced inside the states. this is especially likely where natural resources are the "good stuff" produced (e.g. a rule saying, "no more than x% of coal mined from the stte mahy be exported."
2. Look for rules barring the import of "bad stuff" (e.g. "No out-of -state arbage or toxic wast may be buried in or state"
3. Look for rules whose effect is to limit imports of "good stuff" because the state is trying to boost demand for in-state-produced good stuff (e.g. "Coal -fired utilities located in this tate must buy at least 10% of their coal from in-state mines.)"
Taxing and the Dormant Commerce Clause
Taxes can be a violation of the DCC. Thus, if the state is discriminating aainst interstate commerce by taxing it less favorabley than instatrs, this will be a DCC violation. alternatively, a teac scheme will violate the DCC if the scheme unfairly burdens commerce even though it doesn't discriminate against out of staters on its face.
Example: The sate puts a flate tax on some activity regardless fo its degree of connection with the state which has the effect of taxing out of staters much more heavily than in staters.
Note: In considering the burden consider whatever the fact pattern tells you about the tax plicies of other states inconsitencies can make the whole scheme burdensome.
Exam Tips on Federal Pre-emption
1. look for fact patterns telling you that there are federal and state statutes dealing with the same area
2. look for fact patterns where there are federal and state statutes dealing with the same actitivy, and the state statute is more stringent than the federal statute. Ask your self whether congress ment to set a minimum standard or not.
3. be on the look out for dederal statutory scheme that seems to deal with an eintire borad area. Where Congress has acted in a way ther may represent congress' intent ot occupy the whole field.
State Immunity from Federal Regulations
The dates generaly are not imune from federal regulation. However, if a federal regulatory scheme had the effect of preventing the states from exercising their core functions, this might be foundto be a violation of the Tenth Amendment.
Privileges and Immunites Clause of Article IV
States that: "the citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states." This clause means that a state may not discriminate against non-residents. But it only operates with respect to rights that are fundamental to national unity. Thus only rights related to commerce are covered.
Examples: the right to be employed; the right to practice one's profession; and the right to engage in business
State Immunity from Federal Taxation
The only real state immunity from federal taxation is thtthe federal government may not tax in a way whyc sustantially interferes with a state perfomance of its basic governmental functions.
Note: If the feds are taxing a state's public parks or schools , you might have a violation of the state immunity.
Note II: Where the federal tas is a generally applicable tax, there will be not interference with basic gov. functions adn thus not violation of statre immunity. (Example: the federal government can tax all airplanes, including state-operated ones.)
P&I Article IV does not apply to?
The right to "fundamental unity is not involved; where what is involved is the pursuit of recreation i.e. an out of stater's right to hunt or fish. Even if the ban on out of staters is tital you should still conclude that Art. IV P & I is nt violated, because commerce is not involved and thus there is not right fundamental to nationa unity.
Note: However that this is different if the out of stater wants to hunt, fish, etc, as a professional who will earn most of his living that way.)
Important Separation of Powers Principles concerning the President/Congress boundary line.
1. The presidnet cannot make the laws. all he can do is to carry out the laws made by congress.
2. Only Congress not the President cna declare war.
3. The President, not congress, has the pwer to appoint federal executive officers.
4. Only the president may remove and executive officer, excetp by the special process of impeachment.
5. Federal Judges cannot be removed by either congress or the President.
Executive Immunity
Courts recognize an imlied executive immunit from civil actions.
1. The President has absolute immu ity from civil liability for his official acts.
2. All other federal officials, including presidential assistants. recieve only qualified civil immunity.
Executive privilege
Presidents have a qualifed right to refuse to disclose confidential information relating to the preformance of their duties. This is called "executive privilege."
Note: Since the privilege is qualified, ti ay be outweighed by other compelling governmental interests (e.g. the need for the President's evidence in a ciminal trial.)
Exam Tips on Separation of Powers / President
When ever your fact patern indicates that the President is issuing an "executive order" consider whether this may amount to the making of law rather than the mere carying out of law. If so, the preseednt is probably treading on Ccongress' domain.
Note: Remember that if congress acquiesces, even implicitly, to the President's exercise ofpower, then the problem disappears. See Dames & Moore v. Regan.)
Bi-cameralism and Presentment
Legislation cannot go into effect unless the President has been givente opportunity to veto the bill. there fore, if your fact pattern has congress do something by one house or concurrent resolutiondtermine whether what congress is doing amoubnt to lawmaking; is so the action is unlawful. (iSee INS v. Chadah, the "legislative veto."
What happens if Congress retains the right to remove an administrative director whose appointment has been legislated to the Prez and where the director's powers are clearly executive?
Congress and its agents can only exercise "legislative power" not "executive power." The directors powers are clearly executive -- the director is carrying out the laws rather than formulating the laws. Congress, by retaining the right to remove converted the post of diretcor into an agent of congress thus in effect taking excecutive powers unto itself. See Bowsher v. Synar, sriking down certain powers of the Comptroller General on the similar analysis that Congress improperly converted him into an agent of Congress by retaining the power to remove him.
Removal of Officers
Congress may not itself ever remove a federal officer, except by impeachment. Congress may limit the President's right to remove a federal official, at least a lower-ranking official. Probably congress may not severley limit the President's right to fire high level officers. (Example: Congress probably may not pass a law stating, "The Secretary of State shall serve for atleast four years and may not be removed by the President before expiration of his term."
Impeachment Procedural Rules
By majority vote the House decides whether to impeach. Then the senate conducts a trial, at which a two-thirds vote is necessary for conviction.
Exam Tips on Immunities
Issues that might be tested:
1. If a member of congress is sued (either civilly or criminally) or called before a grand jury, be alert to the possibility that the member may be protected by the "Speech or Debate" Clause, which is basically a form of immunity.
2. Members of the executive Branch other than the President get only qualified immunity from civil suits. (focus on whether the right violated by the official was "clearly established" at the time he acted; if it was he can be liable if not he's be immune.")
3. remember that there is no Executive Branch imunity from criminal prosecutions.
What are the requirements of justiciability?
1. No advisory opinions
2. Standing
3. Mootness
4. Ripeness
5. 11th Amendment Suits against states
6. No Political Questions
What is an advisory opinion?
An opinion based on abstract or hypothetical questions. Adivsory opinions are prohibited on the basis that the Constitution limits federal court juridiction only to "cases and controversies."
What are the three standing requirements?
The P must have a singnificant stake in the contoversy by showing that:
1. That he has suffered an injury in fact. That is, P must show that he has himself been injured (or is likely to suffer an injury) in some way by the conduct that he complains of.
2. The inury he is suffering must be concrete and "individuated"
the action chllenged must be the cuase in fact of the injury (established through a but for test)
Explain Mootness
A case is moot if events occuring after the filing have deprived the litigant of an ongoing stake in the controversy.
Exceptions to Mootness
1. Capable of repetition yet evading review
2. Voluntary cessation by the defendant.
3. Collateral Consequences. Even if a case is mostly decided if there are still collateral consequences that might be adverse to the D the case is not moot. For instance, a a criminal D has already served his sentence by the time his attack on the consitutionality of his conviction comes before the federal court. The case will not be moot, because there will probably be future collateral consequences to the D from his conviction. (e.g. he will lose his right to vote, his reputation or employabiltity will be damages, etc.)
Explain Ripeness
Not yet sufficiently concrete to be easily adjudicated.

Note: It is not necessary that the litigant have already suffered harm. It will be enough that there is a reasonble probability of harm.
11th Amendment
The 11th Amendment has been held to bar most types of damage suits against a state without the states consent. It has been interpreted to bar suits against a state brought by citizens of a different sate, foreigners, and by citizens of the defendant state. Also the states have a constitutionally guaranteed sovereign immunityfrom private damge suits brought against the state in the state's own courts. This is true even if the suit is based on a Congressionally granted federal right.

Note: Congress can't change the "no federal court suits against the states" principle behind the 11th Amendment even if it want to and expressly says it's doing so. (Seminole Tribe v. Florida)
Exception to the 11th Amendment Immunity
If Congress is acting properly persuant to its remedial pwers under the 13th, 14th, or 15th Amendment, it may abrogate the states' 11th Amendment immunity.
What the 11th Amendment does not cover
1. Does not bar federal suits brought by one state against another state, or by the federal government against a state.
2. No counties or cities protected: Only the state itself not its subdivisions, such as counties or cities, is protected.
3. No bar against injuctions: The 11th Amendment essentially bars only suits for damages. That is, it does not bar most suits for injunctions. For instance, if a private lititgant sues a state official to enjoind him from taking acts which would violate the P constitutional or federal law rights, the 11th Amendment does not apply and the suit may proceed.
Explain Political Questions
Does not mean that the fed courts will not decide a case that involves politics or that the courts will refuse to decide cases where political issues are right at the heart of the controversy. Instead, the court will decline to hear a case on political question grounds only if it thinks that the doctrine of separation of powers requires this or if it thinks that deciding the case would be unwise as a policy matter.
Name the two important factors relevant in in the decision of whether a case will be found to involve a non-justiciable political question.
1. Commitment to another branch: The courts will refuse to decide a case on political question grounds if the case raises an issue the determination of which is clearly committed by the Constituion to another branch of the federal government. (Example: Impeachment proceedings)
2. Lack of judicially managable standards by which the court can resolve the issue. (Example: Asking the court to determine whether a particualar government is republican as per the Aritcle IV section IV requirement that "the United States shall guarantee to every state in this union a republican form of government." The court cannot decide this question because it presents a political question. There are no criteria by which a court could determine whether a priticular "government" was "Republican."
List of Justiciability question to look for on the exam
1. advisory opinions
2. standing
3. mootness
4. ripeness
5. 11th Amendment's ban on certain suits against states
6. abstention
7. political questions
Exam Tips for Advisory Opinions
Afvisory opinion problems usually arise on exams where a state court issues and advisory opinion (as allowed by the prcedureof most state), and loser seeks review in the U.s. Supreme Court. Typically you'll say that even if the state court advisory opinion is based on federal law, the SC cannot hear the issue bcasue there is not true "case or controversy."
Exam Tips for Standing
1. Ask yourself: "Has P suffered, or is she about to suffer, a concrete, individualized harm that would be redressed by a favorable result in the lawsuit? Unless the answer is yes there's probably no standing.

Note: Remember that P need not have already suffered the harm.But if not, the threatened harm needs to be pretty imminent and pretty likely- some small chance of harm at some indefinite future time won't suffice.

Note II: One common fact pattern would be; P has a contract with the government, and some statute or rule would prevent or dissuade the government from honoring the contract. Here there's usually standing because P is likely to suffer an "injury in fact" from losing the beenfit of the contract. (P has a contract to build a school for state X and federal statute would withdraw funds that X was expecting to recieve and pay over to P. In this situation P has standing.)
Organization Standing
An organizqtion will genrally be allowed to sue on behalf of its member, if;
1. the member would indiicually have standin
2. if the suit if related to organization's purposes
3. the case does not require the participation of individual members
Policy towards third-party standing
The rule against the assertion of third party rights is not mandated by the Article III "case or controversy" requirement. In other words, it is not a rule imposed by the Constitution on the federal courts; instead it is a rule of prudence, a policy decision adopted by the SC.

Note: That this means the SC is free to make whatever exceptions it wishes to the doctrine.
Some exceptions to the rule against assertion of third party rights
1. The litigant can assert the third party's rights if these rights would be impaired, and it's legally or practically difficult for the third party to be present in the suit. (Example: Vendors are often permitted to assert the rights of their customers, who would each individually have too little at stake to sue.)
Rules on taxpayer and citizen standing
If P is asserting rights as a federal "taxpayer" or as a "citizen," and P is not part of the transaction in uestion, prbably P does not have standing. Three special cases are:
1. If P is a state taxpayer challenging a state expenditute, then probably all that's required for standing is that there be a "direct expenditure of funds" by the state.
2. If P is a federal taxpayer who is challenging the tax itself, which P would have to pay unless the suit succeeds, P has standing.
3. If P is a federal taxpayer or citizen challenging a federal expenditure that directly violates some constitutional guarantee, P may have standing. Probably this exception only applies to federal expenditures that violate the First Amendment's Establishement Clause (e.g. the federal government pays money to private schools to be used in furthering their religious message).
Spotting a mootness problem
You can spot a mooness problem by the fact that P doesn't really seem to have a problem any more. but be careful before you conclude that the case if moot look for:
1. collateral consequences
2. Look for issue capable or repetition yet evading review(Example: A political group if prevented fro doing something until after the elction; the election is now over but other political groups or this very group would be likely to facr the same mootness problme in a future context.
One possible scenario type of scenario for ripeness
The risk is too abstract. a state keeps a secret file on citizens; P, one of the montored citizens, claims that his First Amendment rights are being "shilled." The Court will probably hold that nay chilling prblem is too speculative and abstract,and the case is unripe, unless P can show what activity he is being dissuaded from engaging in.)
Doctrine from Alden v. Maine
Even if the question involves a private damages suit brought on a Congressioanlly guaranteed right, but brought against a state in its own courts, the doctrine of sovereign immunity means that the state doesn't have to hear the case.
Examples of two possible scenarios for finding of a political question
1. A federal court is asked to overrule Congress' decision that P doesn't satisfy the age, citizneship or residency requirment for Senators and Represnetatives.
2. P clais that a particular tax is so burdensome that it amounts to an uncompensated "taking" i violation of the fifthe Amendment. This issue is a non justiciable political one, because no standards exist to tell the Court how to decide.
Difference btwn. federal and state powers
The federal goverment is one of limited, enumerated powers. The three branches may only assert powers specifically grantd to it by the United States Constitution. The state goverment can do whaever they want as far as the U.S. constitution is concerned, unless what they are doing is expressly forbidden by the Consitution.
Explain the limitations on the Supreme Court's review of state court opininions
1. The SC my review stte court opinions, but only to the extent that the decisionn was decided based on federal law.
2. Even if there is a federal question in the state court case, the supreme court may nto review tha case if ther is an independant and adequate state ground ofor the state court's decision. That is, if the same result would be reached even had the state court made a different decision on the federal question.
3. If a state action violates the same clause fo both state and federal consitutions (e.g. the Equal Protection Clause of each, the state court decision may or may nto be based on and "independent" state ground. If the state court is saying, "this state action would violateour state consitution whether or not it violated the federal consitution."the's Indpendent. But if the stae court is saying "based on our readin of the consitution provision (which we think has the same meaning under bothe the state and federal consitutions) this state action violates both consitution." this is not "indepanedent" so the Supreme court may review the decision.
The four broad categories Congress can regulate under the commerce clause
1. Channels of interstate commerce
2. Instrumentalities of interstate commerce. This category refers to people, machines, and other things used in carrying out commerce.
3. Articles moving in interstate commerce
4. Activities having substantial effect on interstate commerce.