Con Law: additional issues
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Judicial Power: source, scope, and limitations
- Source: Article III
- Scope: Fed court jurisdiction limited to cases and controversies
- Limitations: Eleventh Amendment (state sovereign immunity)
Cannot sue a state for money damages in either the state's own court or federal court unless the state consents or
the U.S. Congress expressly says so to enforce 14th Amendment rights
- - May sue state for money damages in a sister state's court
- - May sue a state officer for injunctive relief; can get money damages from the officer personally
- - Damages from the state treasury are barred
Eleventh Amendment protects state and state agencies not___
For Congress to override a state's 11th Amendment immunity to enforce _____, it must ____. Any lack of clarity will ____.
- - individual rights
- - say so expressly
- - preclude damages
Jurisdiction of the Supreme Court- Appellate Jurisdiction and limits
- Most cases to Supreme Court are appeals; original jurisdiction allowed but not invoked often.
- - To establish:
- 1) writ of certiorari- discretionary, so Court can refuse case. Court the only fed court with discretionary jurisdiction OR
- 2) Direct appeal (less frequent)
- can be limited by Congress and rule of Adequate and Independent State Grounds
Limits to fed court jurisdiction- Adequate and Independent State Grounds: rule: The Supreme Court can review a state court judgment only if it turned on federal grounds. The court has no jurisdiction if the judgment below reseted on an adequate and independent state ground
Arises only in the U.S. Supreme Court, and only when the SC reviews a state court judgement
AISG: Arises only in the U.S. Supreme Court, and only when the SC reviews a state court judgement
AISG: adequate: the state ground must control the decision no matter how a federal issue is decided. This happens when the federal claimant (the party claiming a federal right) wins anyway under state law
AISG:Independent: The state law does not follow/depend on an interpretation of federal law. No AISG if state law adopts or follows federal law.
Hypo- Adequate and Independent State Grounds: A criminal defendant objects to the legality of a search and asks for the evidence to be suppressed under both the 4th Amendment and under the analogous search and seizure provision of the state's constitution. Suppose the state court says it is unsure about the 4th Amendment, but under the state law, the search was illegal and the evidence must be suppressed. Can this be reviewed?
No. The federal claimant wins anyway under state law, so there is no live federal issue.
When a state court decision is unclear as to whether it rests of federal grounds or state grounds, the Supreme Court can or cannot review the federal issue?
It can review the federal issue.
AISG procedure: What does the Supreme Court do if it agrees or disagrees with the state court's decision of federal law.
- Agrees: Affirms the decision
- Disagrees: Remands the case to the state court, so that the state court can reconsider state law.
AISG procedure hypo: D moved to suppress evidence under both the 4th Amendment and the analogous search and seizure provision of the Michigan Constitution. The highest court in the state ruled that the search was illegal but it did no make clear whether it was illegal as a matter of state law or federal law, or both. The Supreme Court took the case, reviewed the federal issue, found that the search was valid, and that the evidence could lawfully be used under the 4th Amendment. What does the Supreme Court do next?
Remand the case to the Michigan Supreme Court, so that the court can reconsider whether the search was lawful under the state constitution.
Justiciability: Standing elements
Standing requires injury, causation,
- 1. injury:
- -almost anything can be injury, especially if Congress says so (either past or future).
- - it must be concrete (not abstract), but need not be economic.
- --if your freedom of movement or enjoyment of public space is impaired, that constitutes injury.
- - mere ideological objection is not injury
- - an organization has standing if its members have standing
2. causation [rarely tested]: Ds act must have caused or will cause the injury
- 3. redressability:
- - a court can remedy or redress the injury
- - if the injury is in the past, the redress is damages
- -if future injury is threatened, the redress is an injunction
- - past injury does not give automatic standing to seek an injunction for future injury. You must show that it will happen again.
Standing hypo: Corporation A applies for a business license, but is turned down. Corporation B applies for the same license and get it. Corporation A sues to enjoin the government from licensing Corporation B. Does Corporation A have standing? Why or why not?
No. The relief sough would not redress the wrong to Corporation A. The wrong to Corporation A was wrongful denial of a license. Corporation A should sue for its own license.
True or False? Federal taxpayers always have standing to challenge their own tax liability (i.e. property taxes). However, taxpayers generally do not have standing to challenge government expenditures.
True. Note that there is a narrow exception: Under the Establishment Clause, an establishment of religion challenge to specific congressional appropriations can be challenged by any taxpayer
Also, state courts often allow municipal taxpayers to challenge a municipality's expenditures
legislators generally do or do not have standing to challenge laws that they voted against?
They do not
third party standing- definition and exception
-Whether you can raise the rights of someone else.
-generally, cannot have third party standing. but exception: parties to an exchange or transaction can raise the rights of other parties to that exchange or transaction.
third party standing hypo. A doctor was not compensated for providing abortion services. Can he raise the rights of women who wanted to have abortions provided? Why or why not?
Yes, the doctor may. The doctor has injury because he wasn't paid but he wants to raise the rights of his patient to have an abortion, not his own. The doctor and the patient are involved in an exchange or transaction.
third party standing hypo 2. A seller of beer in a bar wants to raise the rights of 18 year old boys to buy beer at the same age as 18 year old girls. Does the seller have standing? Why or why not?
Yes. The beer seller is injured because she is not making money. She wants to raise the rights of the underage boys because that is gender discrimination. She can raise the claims of those customers or would-be-customers because they are parties to an exchange or transaction.
Judiciability: Timeliness elements
- -ripeness: concerns the prematurity of a case. Must show:
- -actual harm OR an immediate threat of harm.
- -mootness: overripe and are dismissed whenever they become moot. Cases can become moot during trial or on appeal.
- --exception: controversies capable of repetition, yet evading review, are not moot, even though they look like it. Such controversies always have an internal time limit (e.g. pregnancies and abortion)
True or false. Federal courts can issue advisory opinions.
hypo. advisory opinions. A dispute about a federal grant and aid project is litigated, and the federal court states that its judgement would take effect only if the federal agency, or the executive officer, agreed with it. Is this constitutional? Why or why not?
No, it is not constitutional. Federal courts decide cases; they do not make recommendations to executive officers and they cannot rule on the constitutionality of proposed legislation.
Political question: definition and examples
A non justiciable question related to an area reserved for another area of government for which courts will not decide because there are manageable standards for judicial decision-making
- -Guarantee Clause protection the republican form of government
- -Foreign affairs, such as opening or breaking off diplomatic relations with another country
- -Impeachment procedures
- -Political gerrymandering (how to decide judicially manageable standards for determining what is and what is not acceptable in the area of drawing districts?)
Three wrong answers in MBE Con Law questions related to legislative power:
- 1. promoting the general welfare (this is not a power of Congress)
- 2. police power (federal government does not have)
- 3. necessary & proper as a free-standing power of congress (it is only an add-on to some other legislative power)
Three main Congressional powers tested on bar:
taxing, spending, commerce
General rule when deciding amongst Congress' taxing, spending, or commerce powers
- tax when a tax
- spending when fed money spent or dispersed
- commerce if none of the above
Commerce Power- Congress can regulate:
- the channels of interstate commerce (highways, seaways, airways, etc.)
- intrastate and interstate activity that has a substantial effect on interstate commerce
substantial effects test: elements and limits of commerce clause
sub. effect judged in the aggregate if everyone doing the same thing
limits: not within Commerce Clause for non-economic, non-commercial activity. So Congress cannot regulate purely intrastate, non-commercial, non-economic activity for which a substantial effect on interstate commerce has not been shown (i.e. Morrison and domestic violence, Lopez and firearms near school)
standard of scrutiny to allow federal tax
rationally related to raising revenue
Spending power includes spending for the _____ welfare. Under spending power, congress can accomplish things it could not do by direct regulation under the ___
- Commerce Clause (i.e. south dakota v. dole and conditioning hwy funds on alcohol age limit)
Anti-Commandeering: Congress cannot force state to adopt or enforce ____ programs.
Hypo- Anticomandeering: Congress wants to enact a law requiring background checks for ppl wantitn to purchase firearms and that state and local law enforcement carry out those background checks. Is this Constitutional?
TRUE or FALSE. Congress can provide for military trial of U.S. civilians
Presidential powers: exclusive power to appoint officers of the U.S., including administrative agencies
Of the 13th, 14th, and 15th amendments which can govern purely private behavior, and what are its elements?
13th: broad power to legislate against racial discrimination, whether public or private
For 14th Amendment to be properly remedial legislation must have ____ and ____
- - congruence
- - proportionality
there must be a reasonable fit b/w the remedial law enacted by Congress and the constitutional right as declared by the Supreme Court.
hypo- 14th amendment and religious accommodation: Congress passes an act requiring states and local municipalities to allow a religious group to be excluded from a neutral requirement (it applies to everyone regardless of religious preference). Is this constitutional? May federal government accommodate religious groups for neutral law? Why?
- No. Congress overstep boundaries of what federal government may do when it regulates state function.
- Yes, federal gov't may accommodate its own federal institutions
no racial discrimination in voting
True or False. Pres. has the power to enforce the law
Three domestic exclusive presidential powers not subject to statutory control:
- - pardon power: can pardon or commute punishment for all federal offenses; cannot be limited by Congress
- - veto power: 10 days to veto legislation. No line item veto. Overriding a veto requires a 2/3 majority vote of each house.
- - appointment and removal of executive officers: only president or his appointees can hire or fire executive officers (anyone who takes action on behalf of the U.S).
hypo- executive officers. A certain officer is appointed by the Speaker of the House (under legislative control). Can the officer be given executive power?
No. Congress cannot give executive power to anyone it can hire or fire
Three presidential foreign affairs powers
- - Control over military decisions (NOTE: Congress has exclusive power to declare war)
- - Treaties: negotiated by the President, but require 2/3 approval by the Senate. Once treaty approved, has same authority as a statute
- - Executive agreements- presidential negotiations not submitted for approval by the Senate. Do not have the binding status of a treaty.
state power: state economic regulation must pass a commerce clause test of reasonableness, which is sufficient if it is rational (a coin flip could be okay)
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