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Introduction To American Law Outline

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Issues Preliminary Issues

1. Standing (Art. III)"Standing": plaintiff in federal court must be able to demonstrate that they have some "personal stake" in the outcome, that could be remedied by the court o 1. "Distinct and palpable" injury
? Injury in fact:
? "Injury to citizen's interest in the govt acting legally" is not enough
? Same with "taxpayer" standing If there is no injury
? And congress cannot bestow such "citizen standing" (Lujan v. Defenders of Wildlife, 1992)If the main injured does not appeal, then another interested does not have standing
? There is no "actual controversy" between the parties, and no "concrete and particularized" injury to the interested ((Hollingsworth v. Perry, 2013)
? They may have standing to defend, but not to appeal (Hollingsworth v. Perry, 2013) o The litigant can only assert his/her own rights o

Hollingsworth was anti-gay marriage organization that had proposed constitutional amendment that was declared unconstitutional, and the state did not want to pursue to defend the constitutionality further

o (Blum) Problem: Gives the executive branch a veto, the executive is thwarting the will of the people!
o And it also does not follow the rationale of standing (that the ones appealing would defend the case better!)
? Decisions on standing sometimes are decided against their foundations!?(Sotomayor) There should be standing in this case (Kennedy) you should be able to defer to state law, in California a third person can have standing. Otherwise, you are not taking into account the dynamics of the state in which the situation took place.

It's different in the case where the government is involved, the harm is loss of tax revenue and the third party is the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives (instead of defendant, US) (US v. Windsor) o

The issue was that a tax exemption for estate tax did not apply to a same sex couple, married in Canada

1 o Context mattered: Especially if the the issue was federal from the beginning, not state ([?] Hollinsworth); and if Hollingsworth had the same rights as married couples (not like Windsor that had to pay tax) o o o

Scalia dissent: it's inconsistent Thomas: the executive is the one that should have appealed, and they didn't!
Blum: creates a lot of uncertainty for future cases!

o 2. Current
? Not ripe or moot
? Ripeness: Brought too early to the courts - injury not suffered yet
? Thus, you can bring the suit even if you suspect that the government is spying on your conversations under its powers of the Foreign Intelligence Surveillance Act, until you can show an injury ("Clapper v. Amnesty") o It was only an "abstract subjective fear", not a "reasonable fear of injury" o Costly measures to ensure confidentiality are not enough injury, it was self inflicted harm based on fears of hypothetical future harm o

It was prior to Snowden

o ? otherwise, the courts would be flooded with wellintentioned, meddlers (public-interest organizations) o o

(You can't challenge validity of ordinance to distribute leaflets until you've distributed them and were punished for that) Breyer dissent: Future harm is not speculative, and should be sufficient for standing: there is a high probability of interception of communications.

Mootness: Brought to the courts too late - injury no longer suffered
? Ej. Applicant to a state university: by the time the case reached the SC, he was in his final term at law school. SC: "moot"! (DeFunis v. Odegaard, 1974)
? Court may review if the issue is "capable of repetition, yet evading review" o Ej. Abortion (Roe v. Wade): needs to be ruled in 2, 3, 4 months
? The courts need to address it even if the case is rendered moot, because it is a matter that will arise again (and it is impossible for anyone to stay pregnant until the case reaches the USC!) o 3. Caused by the defendant
? Rationale:2

??(Article III) "Cases and controversies" I. In a democracy, unelected judges may only decide when they are called to do so (not legislate) II. The best way to assure fully informed decisions is to rely on the parties themselves (adversarial system) o Critics: today some people motivated by ideaological concerns (NGOs?) are well suited to stand!

Class actions

2. Jurisdiction1. Jurisdiction must be federal (not state) o Marbury v. Madison o Supreme Court can review state court's decisions that involve federal law (Martin v. Hunter's Lessee)
? Supreme Court has appellate jurisdiction (Art. III), otherwise it would be left out on having the last word on some cases regarding federal lawThere must be "Cases and Controversies" (Art. III) o Related to standingThe issue must not be a "Political Question" (Guarantee Clause - Art. IV) o Based in the Republicn form of government o "Political Question": A question incapable of judicial resolution - not a legal question o Test - 2 situations:
? 1. Lack of Judicially Manageable Standards:?

Eg. Did states properly ratified an amendment to the CN prohibiting child labor - Kansas had ratified it too late? Congress established no limit on ratification. What was a reasaonable time? (Coleman v. Miller, 1939)

o H: No judicial standards!
? SC would be making political statement, that corresponds to the other branches Does not includes a state (Tennessee) ignoring a law on legislative apportionment (voting district design) after 30 years in which the demographics had changed, and thus violating Equal Protection (Baker v. Carr, 1962) o The Equal Protection question was separate!
o (Brennan test)

- "Textually demonstrable constitutional commitment of the issue to a coordinate political department;" as an example of this, Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be "political questions"
-"A lack of judicially discoverable and manageable standards for resolving it;"

3 -"The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;"
-"The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;"
-"An unusual need for unquestioning adherence to a political decision already made;"
-"The potentiality of embarrassment from multifarious pronouncements by various departments on one question."2. Commitment to a Political Branch:
? If the CN entrusts the resolution of the issue to the Executive or the LegislatureEg. Impeachments (art. I), foreign policy (Goldwater v. Carter (1979), treaty w Taiwan) o (but yes procedural issues in the political question application, etc.)

4 Main Issues:

3. State v. Federal issue: Congress did not have the power to enact such legislation o Federalism as a "check"
? Federal government is superior (US Term limits v. Thornton)
? "The Constitution and the laws made in pursuance thereof are supreme...they control the constitution and laws of the respective states, and cannot be controlled by them" (McCulloch)

Thus the people of Arkansas could not establish new conditions to be a congressional representative ((US Term limits) o It's important to have uniformity among the states!
o Enumerated Powers
? It is a constitution that we are interpreting, not a legal code (Marshall in McCulloch)
? Could be implied in other powers (McCulloch)
? 10th Amendment1 does not apply to power applying to the operation of the federal government, not reserved by the states (McCulloch)
? Such as the conditions to be a senator (US Term limits) o Thomas dissent: this is not a federal matter, but one reserved to the states

o "Necessary and Proper" clause (Art. I Sec. 8 Cl. 18)
? Proper: Those means that facilitate the execution of the powers of government (McCulloch)
??????Eg. The power to "establish post offices" includes the power to punish for stealing correspondence

o Taxing and spending powers (Art. I Sec. 8 Cl. 1)
? "The power to tax involves the power to destroy" (McCulloch)
? Federal government would be harmed if the states could tax it, no state would trust each other (McCulloch)The federal government may impose spending conditions (conditions that states must comply with in exchange of federal money)
? Limit: State autonomy
?????Test (South Dakota v. Dole) o a. Means chosen are conducive to the General welfare o b. Requirements must be clear o c. Related to the spending program

1 The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 5


o d. Not otherwise banned by the constitution
o e. There be no undue coercion Thus, a spending condition to give federal money for highways in exchange for raising the minimum drinking age to 21 is constitutional (South Dakota v. Dole) o?

O'Connor dissent: Problem with c.) - there could be a relation between anything and anything! The law is over inclusive (people who don't drive are banned) and under inclusive (teenagers are a small part of the drunk-driving problem)

Thus, government may not withdraw Medicaid federal funds from states that do not comply with the federal legislation expanding Medicaid: d.) It places an undue burden on the states (NFIB v. Sebelius)

Thus, government may also impose a tax on those that do not purchase medical care (health insurance)- even if those taxes look like punishment (NFIB v. Sebelius)
? Similar to a tax on cigarettes
? Specially if the amount is not too burdensomeScalia dissent: we cannot recategorize punishment as tax, it would amount to rewriting the act

o Commerce Clause (Art. I, Sec. 8, Cl. III)
? Highways (South Dakota v. Dole)
? Health Care (NFIB v. Sebelius)???Scalia dissent: Commerce clause may regulare existing commercial activity, but not compel to participate in commerce! This would open a new realm of Congressional authority. Ginsburg: the distinction is irrelevant, because this people are already participating in the health care market.

Amount of wheat a small scale farmer could grow (Wickard v. Filburn): because of the cumulative effect it would have on prive of wheat Civil Rights Act (Katzenbach v. McClung), prohibition on requiring literacy to vote (Katzenbach v. Morgan, 1966) Regulation of medical marihuana growth (Gonzalez v. Reich, 2005)
? Related to controlled substances, "quintessentially economic" activities Excludes
? Prohibition to posess firearms near school (US v. Lopez, 1995)
? Violence Aginst Women Act (US v. Morrison, 2000) Categories 6


1. States try to fence out items of commerce that compete with local products

2. States "fencing in" valuable local resources

3. States prohibiting to burden out of state, or preger in state business or products


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