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Constitutional Law Bar Outline

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This is an extract of our Constitutional Law Bar Outline document, which we sell as part of our Constitutional Law - Bar Exam Outlines collection written by the top tier of Thomas Jefferson School Of Law students.

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1. Requirement for Cases & Controversies a. STANDING - (Proper Party?) - Plaintiff has suffered a (1) concrete injury in fact, (2) caused by the defendant that is (3) redressible by the court. i. Concrete Injury - P must allege and prove that he has personally been injured or imminently will be injured.

1. Need NOT be an economic injury

2. P seeking injunctive or declaratory relief must show a likelihood of future harm

3. MBE Tip: If asked to determine the best standing identify personal injury. If more than one, id personal injury with economic loss ($) ii. Causation - Must be a causal connection between the injury and the conduct. iii. Redressibility - P must allege and prove that a favorable court ruling is likely to remedy the harm suffered. NO ADVISORY OPINIONS!

1. Note - Often the flip side of causation

2. Courts will NOT determine the constitutionality of a statute if it has never been enforced and there is no real threat that it ever will be. iv. Third Party Standing - P can only sue to protect his own rights, NOT those of 3rd parties.

1. Exceptions - Must meet the 3 above elements AND: a. Special Relationship between P and injured party (Dr. - Patient) b. Injured party is unlikely to be able to assert his own rights i. Ex. law criminalizing distribution of contraceptives to unmarried persons. Doctor allowed to raise rights of unmarried persons. c. An Organization may sue for its members, if: i. Members would have standing to sue in their own right ii. Interests are related to the organizations purpose

1. i.e. Sierra Club can bring an environmental claim. iii. Individual member participation is NOT required (i.e. no individual damages requested - injunction) v. No generalized grievances - P must NOT be suing solely as a citizen or taxpayer interested in having the government follow the law.

1. Exception: taxpayers have standing to challenge government expenditures under the Establishment Clause (i.e. Federal aid to religious schools) a. NOTE - For a taxpayer to have standing under this exception, Congress's spending power must be involved.

2. Exception: P has standing to enforce a federal statute if she is within the "zone of interests" congress meant to protect. b. POLITICAL QUESTION DOCTRINE - Federal Courts will NOT adjudicate political questions that have constitutionally committed to another branch or inherently incapable of judicial resolution. i. "Republican form of government clause" ii. Foreign Policy - President's conduct of foreign policy (i.e. the war is illegal)

1. Including presidents ability to rescind treaties, even though Senate must ratify iii. Impeachment or Removal - Challenges to impeachment or removal process 1

1. i.e. whether persons elected meet age, residency or voting requirements. iv. Partisan Gerrymandering - Challenges to Partisan Gerrymandering

1. Drawing Voting district lines to maximize votes for republicans / democrats

2. Can still bring a case for anything other than partisan purposes (Race) c. RIPENESS - (Avoiding Pre-mature litigation) - May the court grant pre-enforcement review of a statute or regulation: (2 part test) i. Hardship that will be suffered without pre-enforcement review ii. Fitness of the issues and the record for judicial review

1. MBE Tip: request for declaratory judgment is a ripeness question

2. Ex. challenging statute before signed into law, or challenging a law after enactment but before it is applied to plaintiff d. MOOTNESS - A live controversy must exist at ALL stages of litigation. If the matter has already been resolved, the case will be dismissed as moot. i. Exceptions

1. Wrong capable of repetition but evading review (Roe v. Wade)

2. Voluntary cessation - D halts offending practice but is free to resume at any time

3. Class action suits - As long as one member of the class has ongoing injury ii. Ex. Parties die, events occur or lapse, change in law

2. SUPREME COURT REVIEW (Generally MBE) a. Original Jurisdiction - Supreme Court has original and exclusive jurisdiction for suits between state governments, cases affecting ambassadors or public ministers. b. Writ of Certiorari i. Supreme Court has discretion to grant Writs of Certiorari.

1. ALL cases from State Courts and the U.S. Court of Appeals to the Supreme Court are by Writ of Certiorari ii. Supreme Court MUST hear cases that come to it by appeal from decision of a three-judge federal district courts c. Final Judgment Rule - Only hears cases after final judgment from the highest state court, a US Court of Appeals, or a three-judge federal district court. (Must be a "case or controversy." i. In other words, generally NO interlocutory review d. State Law Grounds- The Supreme Court will hear State Cases regarding the constitutionality of a federal statute, or whether a State Statute violates a federal law. i. The Supreme Court will NOT hear the case if reversal of the federal law ground will NOT change the result because of a companion state law ground. (Can't overrule state law decisions) ii. MBE: Residents file injunction under state and federal environmental law. The State Supreme Court holds both violate, the Supreme Court cannot review, because reversal of fed law would not change the outcome.

3. ELEVENTH AMENDMENT (Sovereign Immunity) a. Rule - Prevents Federal AND State courts from hearing suits involving citizens suing their own state or another state government. a. Exceptions i. Waiver is permitted, but MUST be express 2

ii. Section 5 of the 14th Amendment (i.e. Title VII) iii. Plaintiff is the Federal Government suing a state iv. Actions against Local Governments v. Bankruptcy proceedings b. Suits against state officials are ALLOWED for: i. Injunctive relief (Even if it will require prospective payment from the state) ii. Money damages to be paid by them personally iii. May NOT be sued if the state treasury will be paying retroactive damages

4. ABSTENTION a. Federal courts may NOT enjoin pending State Court proceedings except in cases of proven harassment OR prosecutions taken in bad faith. b. A federal courts will temporarily abstain from resolving a constitutional claim when the disposition rest on an unsettled question of State Law.

5. CONGRESS'S Authority to Act a. Power must be based on an Express or Implied power i. NO General Federal police power ii. Exceptions: MILD - Military Bases, Indian Reservations, Federal Lands, District of Columbia b. Necessary and Proper Clause - Congress has the power to make ALL laws necessary and proper (appropriate) for executing ANY power granted to ANY branch of the federal government. i. The necessary and proper clause standing alone cannot support federal law. It must work in conjunction with another federal power. c. Taxing and Spending Power - Congress may tax and spend for the general welfare i. Taxing - Must raise some revenue ii. Spending - Spending may be for ANY public purpose. iii. Limited - Although the taxing and spending powers are broad, they are sill limited by all other constitutional provisions. iv. MBE: If the answer states general welfare, then must be tax and spending or police power d. The Commerce Clause- Congress may regulate the: i. Channels of interstate commerce;

1. i.e. highways, waterways, internet ii. Instrumentalities of interstate commerce and Person or Things in interstate commerce

1. ANYTHING crossing state lines - Trucks, planes, trains, phones, internet, stocks, insurance, radio signals, cattle, people. iii. Economic Activities that have a Substantial Effect on interstate commerce

1. Intrastate Activity: If congress attempts to regulate intrastate activity the court will uphold the regulation if: a. It involves economic or commercial activity. (i.e. growing wheat or medical marijuana), AND b. Congress can conceive a rational basis that it has a cumulative effect on interstate commerce. 3

2. Non-Economic Activity - Congress can NOT regulate unless Congress can factually show that it has a Substantial Economic Effect on interstate commerce. a. i.e. possessing a gun in a school zone, or gender motivated violence e. War and Treaty Powers - Congress has the power to declare war, raise and support armies, and provide for and maintain an army. i. Remedy the Effects - Economic Regulations during war and in the post war period to remedy the affects of war have been upheld. f. Power to Coin Money - Congress has the power to coin money and fix weights and measures. g. Power Over Citizenship - Congress may establish uniform rules of naturalization. This gives congress plenary powers over aliens. h. Fourteenth Amendment, Section 5 powers i. Congress may NOT create new rights or expand the scope of rights ii. May act only to prevent or remedy violations of rights recognized by the courts and such laws must be proportionate and congruent to remedy the violations i. Tenth Amendment Limit on Congress Power - States that all powers NOT granted to the United States, nor prohibited to the states, are reserved to the states or the people. i. Congress cannot COMMANDEER state regulatory or legislative action

1. i.e. Cannot require States to legislate per federal standards, or require them to enforce federal law (against 3d parties)

1. Note: Can induce action by attaching strings to grants, so long as the conditions are express and relate to the purpose of the spending program ii. Congress MAY prohibit harmful commercial activity by state governments.

1. Ex: Prevent state from releasing or selling private information j. Delegation of Powers i. Legislative powers MAY be delegated so long as "intelligible standards" are set.

1. Generally Congress may Delegate ANY Legislative Power

2. Exceptions - Powers uniquely confined in Congress (declare war, impeachment)

3. MBE Tip: Fed law is unconstitutional because it is in excess of delegation of legislative powers is usually wrong. ii. Legislative Vetoes are ALWAYS Unconstitutional

1. Congress MUST use: a. Bicameralism (passage by both houses of government, AND b. Presentment - Presenting the bill to the president for his signature or veto iii. Congress may NOT delegate executive powers to itself or its officers

6. Federal EXECUTIVE Power a. FOREIGN Policy i. Foreign Relations - President has paramount power to represent the U.S. in day to day foreign relations. 4

ii. Treaties - Agreements between the U.S. and foreign country that are negotiated by President.

1. Power - President has the power to ENTER into treaties with the consent of two thirds of the Senate.

2. Prevail over conflicting State Laws

3. Conflict between Treaty and Federal Law, the LAST one adopted controls

4. Conflict between Treaty and Constitution, treaty is INVALID iii. Executive agreements

1. Agreement between U.S. and foreign country that is EFFECTIVE when signed by President and head of foreign country a. i.e. NO Senate approval required

2. Can be used for ANY purpose that treaties can be used for

3. Prevail over conflicting State Laws,

4. NEVER prevail over conflicting Federal law or the Constitution iv. Commander in Chief

1. Broad powers to use American troops in foreign countries

2. MBE Tip: Lawsuit to challenge use of troops - dismissed as political question, otherwise, President wins. b. DOMESTIC Affairs i. Appointment Power

1. President appoints Ambassadors, Federal Judges, and Official Officers of the U.S.

2. Congress may vest the appointment of inferior officers in the President, heads of departments, or in the federal courts a. Inferior Officer - those that can be fired by an officer of the U.S.

3. Congress may NOT appoint members of a body with administrative or enforcement powers. a. MBE Tip: Congress created new agency - gives appointment rights to President for some, to Congress for some, and to others - WRONG!
(President must appoint ii. Removal Power

1. President - unless limited by statute, the President may fire (remove) any executive branch officer

2. Congress may provide statutory limitations on the president's power to remove a. Note - Can't prohibit removal, but may limit removal to good cause. b. Note - Congress can remove executive officers through impeachment. iii. Veto Power - President has the power to veto acts of congress.

1. Override - 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.

2. Pocket Veto - The president has 10 days to exercise the veto power. If he fails to act then the bill becomes law if congress is in session, but is automatically vetoed if Congress is NOT is session

3. Line Item Veto - ALWAYS unconstitutional.

5 iv. Impeachment and Removal - The president, vice president, federal judges and officers of the U.S. can be impeached from the office for treason, bribery, or for high crimes and misdemeanors.

1. Impeachment does NOT remove person from office

2. A majority vote of the House of Representatives is necessary to invoke the charges of impeachment. (*Impeachment does not remove)

3. 2/3 vote from Senate is necessary to convict and remove v. Executive Privilege / Immunity

1. Privilege - President has executive privilege to keep certain communications secret. (National security secrets are given great deference by the courts) a. Exception - In criminal proceedings, presidential communication will be available to the prosecution.

2. Immunity - President has Immunity from Civil Suits for money damages involving actions that occurred while in office. a. NO immunity for actions that occurred prior to taking office vi. Power to Pardon those accused or convicted of FEDERAL crimes

1. Exceptions: a. Impeachment - cannot be pardoned for the offenses that led to impeachment b. Civil Contempt

2. MBE Tip: Federal ONLY! Criminal Liability ONLY!

7. STATE POWER (FEDRALISM) a. PREEMPTION (Supremacy Claus of Article VI) - The Supremacy Clause of Article VI provides that the Constitution, and Laws made pursuant to it, are the Supreme Law of the land. i. Express preemption - Federal law says the states may NOT regulate.

1. MBE Tip: States may set stricter environmental standards than EPA, unless Congress prohibits ii. Implied preemption

1. Conflict a. Physical - If you cannot comply with both federal and State Laws, then federal law preempts b. Obstacle - If the State law is an obstacle to the Federal Objective, then federal law preempts

2. Field - Federal interest is so dominant or federal regulation is so pervasive that it will preclude enforcement of state laws on the same subject. a. Look for comprehensiveness or the federal scheme and creation of an agency to administer the laws. (Ex: Immigration laws) b. i..e congress has left NO room for the states to act b. Dormant Commerce Clause & Article 4 Privileges and Immunities Clause i. Privileges OR Immunities Clause of the 14th Amendment - No State may deny their citizens the privileges or immunities of national citizenship.

1. Interpreted as the right to travel, and the right to vote for federal officers.

2. Look for durational residency requirements. 6

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