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- A federal court may review a statute or regulation PRE-ENFORCEMENT if . . .
- 1) P will suffer some harm or immediate threat of harm,
- 2) issue fit for judicial review, and
- 3) there is a judicial record for review
- (HFR) HARM, FIT, RECORD
- Federal court has jurisdiction but does not exercise it.
- A federal court will abstain from resolving a constitutional claim when . . .
- 1) based on an unsettled question of state law
- If a real controversy does not exist at all stages of review, the case is moot.
- If the matter has already been resolved, case will be dismissed as moot unless . . .
- 1) controversy is capable of repetition but evading review (short duration, e.g., Roe v. Wade),
- 2) voluntary cessation
- 3) class action suits [if named P's claim is moot, class won't be dismissed as moot if another P has ongoing harm]
- Voluntary: If ? agrees to end the case voluntarily, but can resume the challenged practice at any time, case wont be dismissed as moot.
- issues constitutionally committed to political branches or inherently incapable of judicial resolution
- 1) republican form of govt clause
- 2) Challenges to Presidents conduct of foreign policy
- 3) Challenges to the impeachment and removal process
- 4) Challenges to partisan gerrymandering
- Standing is the issue of whether the p is the proper party to bring a matter to the court for adjudication.
- P must show concrete and particularized interest in the case.
Individual standing requires?
- 1) personal injury in fact [P has personally suffered]
- 2) causation between defendant's conduct and plaintiff's injury
- 3) redressability
Standing the assert rights of others requires?
- 1) special/close relationship between claimant and 3rd party & plaintiff's injury adversely affects the relationship with the 3rd party, OR
- 2) it is difficult/unlikely for 3rd party to assert own right [P must meet all other standing requirements]
Association or Organization standing requires?
- 1) individual members have standing
- 2) interest germane to organization's purpose
- 3) individual members participation in the lawsuit not required
- A private party cannot sue a state government in federal court unless:
- 1) private party sues state officer
- 2) state consents [must be explicit waiver]
- 3) Congress removes immunity
- -----e.g., States may be sued pursuant to federal laws adopted under section 5 of the 14th Am (authorizes Congress to adopt laws to uphold the 14th Am).
President's Foreign Powers?
- 1) Treaty
- 2) Executive Agreement
- 3) Power to send in troops to foreign countries [commander-in-chief]
- President can enter into agreement with foreign country with 2/3 Senate approval.
- Treaty prevails over conflicting state laws.
President may enter in agreement with a foreign country. Agreement prevails over conflicting state laws, but not federal law or Constitution.
War & Foreign Relation Powers?
- President has no power to declare war
- But he may act militarily in actual hostilities. Can send in troops as part of his powers as commander-in-chief.
President's Domestic Powers?
- 1) appointment & removal
- 2) pardons
- 3) veto
- 4) chief executive
- President appoints ambassadors, federal judges, and officers of the United States
- Senate must approve (confirm), but President appoints
- Side note: Congress cant give itself the appointment power
- Exam tip: Congress created a new federal agency. Under terms of statute, President appoints some members, speaker of house appoints some members. Thats unconstitutional! Congress cannot give the power to appoint executive officers to itself.
- Unless removal is limited by statute, the President may fire any executive branch office
- 1) Congress cannot prohibit all removal, the most is it can limit removal to where there is good cause
- 2) Congress cannot prohibit removal of the Presidents cabinet [theyre there to ensure Presidents policy is carried out]
- 3) For Congress to limit removal, it must be an officer where independence from the President is desirable
- 2/3 vote in each house will override.
- Line-item vetos are unconstitutional
- President has 10 days to veto. Past that,
- 1) If Congress is in session, bill becomes law
- 2) If Congress is NOT in session, bill automatically vetoed (pocket veto)
Chief Executive Power?
- If President acts . . .
- 1) with express or implied authority of Congress -> President's authority is at its highest, actions likely valid
- 2) where Congress is silent -> actions will be upheld unless he usurps power from another branch
- 3) against will of Congress -> little authority, likely invalid
- ---this means AGAINST an enacted law. if Congress rejects a bill, may still be considered silence...
President's Executive Privilege
President has privilege to keep certain communications secret, particularly national security, but not in criminal proceedings where the prosecution shows a need.
President's Executive Immunity
President has absolute immunity from civil damages for acts while in office
- President, the VP, federal judges and officers of the US can be impeached and removed from the office for treason, bribery, or for high crimes and misdemeanors
- 1) Majority in the House to impeach (charge)
- 2) 2/3 Senate vote to convict and remove from office.
Congress' authority to act
There must be express or implied Congressional power.
Congress' Source of Power - enumerated powers?
- 1) Commerce Clause
- 2) Tax and Spending
- 3) Taking Property
- 4) Citizenship
- 5) Civil Rights
- 6) Foreign Affairs
- 7) War
- 8) Elections
Commerce Clause power?
- 1) channels of IC,
- 2) instrumentalities of IC,
- 3) persons or things in IC,
- 4) economic activities that have a substantial effect on IC (cumulative impact ok)
- [non-economic activities, a substantial effect cannot be based on cumulative impact]
Tax & Spending power?
- Congress may tax and spend for the general welfare.
- Congress may enact any tax to raise revenue for the general welfare.
Tenth Amendment limit on Congress' Power?
- All powers not granted to the US, nor prohibited to the states, are reserved to the states or the people.
- 1) Congress cannot compel state regulatory or legislative action. [anti-commandeering principle]
- ----but Congress can induce state govt action by putting strings on grants
- 2) Congress may prohibit harmful commercial activity by state govts [as long as it's not an affirmative duty]
- Note: For regulations that apply to both public and private sector, states 10th Am rights are protected by representation in Congress, cant use it.
- 1) Preemption
- 2) Dormant Commerce Clause
- 3) Privileges & Immunities Clauses (Article IV and 14th Amendment)
- Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.
- 1) Express Preemption: federal law explicitly says that federal law is exclusive in an area, state and local laws preempted
- 2) Implied Preemption
- 1) if federal and state laws are mutually exclusive, federal law preempts state law
- 2) if state law impedes the acheivement of a federal objective, federal law preempts state law
- 3) if Congress evidences a clear intent to preempt state law [e.g., by fully occupying the field], federal law preempts state law
- Exam Tip: #1, states may set environmental standards stricter than Federal law, unless Congress clearly prohibits this (regulations on PRIVATE individuals only)
States taxing Federal Govt?
- States may not directly tax or regulate federal government activity (Inter-Governmental Immunity)
- UnC to pay a state law tax out of the federal treasury
- States cannot indirectly tax or regulate the federal govt (people dealing with the fed govt) if it produces an undue burden on federal activity.
- -----Federal govt never has to comply with state/local pollution/environmental laws. Thats a significant burden on federal activity.
Dormant Commerce Clause
- (negative implications of the Commerce Clause)
- State and local laws are UnC if they place an undue burden on interstate commerce
If state law discriminates against out-of-state persons and is an undue burden on interstate commerce, it is invalid under DCC unless:
- 1) state is a Market Participant
- 2) law furthers an important, noneconomic state interest and there are nondiscriminatory alternatives
- 3) law favors govt performing traditional govt functions
If state law does not discriminate against out-of-staters, then ask if it burdens IC?
- 1) If state law burdens interstate commerce, then it is invalid under DCC unless the state's interest in the regulation outweighs the burden of interstate commerce.
- 2) If it does not burden interstate commerce, then it is valid.
Privileges & Immunities Clause - Article IV
- No state may discriminate against the citizens of another state in favor of its own citizens when it affects a fundamental right, such as the pursuit of a livelihood.
- (anti-discrimination against out-of-staters)
Privileges & Immunities Clause - 14th Amendment
- 14th Am was meant to protect citizens from their own state, but is used only for the right to [interstate] travel.
- When a state uses a durational residency requirement for dispensing benefits, the govt must show that the requirement is tailored to promote a compelling interest because it interferes with the individuals right to migrate from state to state