The very essence of civil liberty certain consists in the right of every individual to claim the

protection of the laws, whenever he receives an injury. Justice Marshall

Federal Court System:

Art. 3: Vests the judicial power in the Supreme Court and such inferior courts as Congress may
establish.

--Congress has no power to divide the SC.

--Jurisdiction limited to cases and controversies. There must be an actual and definite dispute
between parties having adverse legal interests.
--The SC does NOT give advisory opinions.
--Judges have lifetime tenure and salary protection.

Congress has plenary power. This means absolute powerexclusive to establish lower courts
and determine their jurisdiction.

Art. 3 does not expressly grant the Federal Courts power to review the constitutionality of federal
or state laws or executive actions. This power comes from two cases: Cohens v. VA (giving the
SC the authority to review state court judgments, as well as holding that criminal defendants
can seek SC review when they claim that their conviction violates the Constitution) and
Cooper v. Aaron (giving authority to the SC to review the constitutionality of state laws and
the actions of state officials).

Jurisdiction:
1) Original: only a few specific kinds of casesambassador, public minister, counsel,
or where a state is a party. In these situations, Congress may neither enlarge or
restrict the original jurisdiction of the SC (see M v. M?). There is exclusive
jurisdiction between two or more states.
2) Appellate: Congress CAN broadly regulate the appellate jurisdiction. There is one
limitation, however: Congress may not legislate to preclude review of an entire class
of cases. Ex/ No lower state court decision dealing with school prayer may go to the
SC. Such action violates principles of federalism (see McCardle
a. Exceptions Clause: The Supreme Court shall have appellate jurisdiction,
both as to law and fact, with such exceptions and under such regulations as the
Congress shall make.
i. The SC has the ability to decide if a statute restricting jurisdiction is
constitutional before it can be applied to deny review in a particular
case.
ii. Congress cannot create a situation in which there is no jurisdiction for
a case (thereby creating severe due process problems).
Types of Review:
1) Appeal: very few cases come on appeal. The main situation is where theres a
decision of 3-judge federal district court.
2) Certiorari: vote of 4 or more justices to hear the case. State court decisions and
lower federal court decisions come here, as well as cases from US Courts of Appeal.

Lower Federal Courts: have concurrent jurisdiction; they are able to hear most cases the SC,
with the exception of exclusive jurisdiction.

Case and Controversy, Self-Imposed Restrictions, Timing or delicacy, Separation of

Powers, Principle of Comity (respecting state court decisions): Restrict judicial review as to
who may litigate, when it happens, where it happens, and what issues may be raised. There are
seven specific doctrines:
1) Adequate state grounds
a. This doctrine only applies to SC. Need a final judgment from the highest
court in the state that the case may reach.
b. Where a state court decision establishes both an adequate and independent
state ground upon which the case was decided, the supreme court will not hear
the case, even if the state court erroneously decided a federal constitutional
issue.
c. Caveat: Michigan v. Long the state court must make it clear that the state
ground upon which the case was decided must be clear and independent of the
constitution. Otherwise, the SC will decide that the state decides that federal
law dictations and this gives the SC authority to hear the case.
2) Standing
a. Most important doctrine of all of them. Any time you have a P in federal
court, standing is the FIRST issue. The P must establish a personal stake in the
outcome.
i. Constitutional standard: Art. 3 cases and controversiesa) injury in
fact, generally economic injury, and is pretty easy to satisfy and b)
causation or redressability (the relief sought must relieve the harm
alleged) is harder to establish.
ii. Prudential Limitations: Even if the Constitutional element has been
satisfied, court may still deny it. A) cases dealing with 3rd party
standing (there is no third-party standing. P must advance his or her
own rights, although there are many exceptions such as next friend,
and special need to adjudicate. Craig v. Boren and B) Abstract or
generalized grievances
iii. Tax-Payers Standard: Federal taxpayers have NO standing because
their interests are too remote. Exception: Flast v. Cohen.
3) Ripeness
 a. A case that is brought too early. In order for a case to be ripe and justiciable,
there must be a genuine and immediate threat of harm. The only issue you
can argue is the courts reasons to hold back; the court would argue that the
issue will resolve itself. The P would argue s/he would suffer immediate
hardship.
b. There must be sufficient gain to waiting for an actual prosecution.
4) Mootness
a. The rule: an actual controversy must exist at all stages of review. Otherwise,
the case will be dismissed as moot. It is the case that is brought too late. One
exception: where the injury is capable of repetition yet evading review. Ex/
Roe v. Wade. Roe was no longer pregnant when suit made it to court, but she
is part of a bigger class that would continue to face this problem.
5) Political Questions
a. Non-justiciable issue that is committed to another branch of govt. The policy
is that there are some issues not enforceable by federal judiciary. Ex/ Respect
to other branches (comity), subject matter, lack of standards which are
judicially manageable, Presidential exercise of a veto, Presidential exercise of
a pardon, how the legislature votes, Impeachment, aspects of a Presidential
Election, Declaration of War, Elements of foreign policy, some elements of
amending the Constitution. 6-Factors from Baker v. Carr
i. The constitution says it should be decided by a different branch
ii. It would embarrass another branch
iii. A standard cannot be put to it
iv. It cannot be decided without relying solely on public policy
v. Separation of powers would be violated
vi. Theres a need to adhere to previous political decisions
b. Guarantee clause of Art. 4 The U.S. shall guarantee to every state in this
Union a Republican form of government. See Baker v. Carr. The court says
the constitutionality of apportionment schemes is not a political question; the
court can compel a state to re-district political districts. There is a guarantee
of one person and one vote.
i. SC has jurisdiction over the Equal Protections Clause: it is the
courts area of competence, so if there is a violation of the guarantee
clause relating to the EPC, it is a justifiable question for review.
ii. It doesnt do violence to the other branches.
c. Amendment ratification process: the court cannot determine the amount of
time for a state to ratify a constitutional amendment. It is a political question
left to Congress.
d. Organizing, arming, and disciplining the military. Art. 1 Sec. 8, plus executive
power. These are reserved solely for Congress. This is a political question
that will not be touched by the SC.
e. Age, residency, and citizenship requirements of members of Congress is
reserved solely for Congress to decide. see Powell v. McCormick. Congress
 refused to allow member to sit. He wants a) reinstatement and b) backpay.
Court can determine backpay issue; however, Congress can only remove him
if he violates one of their requirements. Otherwise, he is elected directly by
the people.
f. Congress also has sole power of impeachment. (see Nixon v. US)
i. There is no legal definition for high crime or misdemeanor. It is
often a political question; no president has been removed from office
via impeachment and conviction.
g. Foreign affairs: Congress and the Presidents have the power to control foreign
affairs, and the court will rarely hear a case in this area.
th
6) 11 Amendment
a. A state cannot be sued in Federal Court by its own citizens, citizens of
another state, or citizens of a foreign country without consent. It does not bar
suits against municipalities, counties, local school boards, or other local
agencies. States are immune in federal court. A state cannot be sued in state
court or federal court.
i. Ex Parte Young: State officials may be sued for federal law violations
1. This is limited if money will be taken from a state treasury.
2. Limitations are also imposed if the state govt exerts significant
control over the officials decisions/actions, or if s/he has been
appointed by the states exec or legislative branch.
ii. Fitzpatrick under Civil Rights enforcement; the court can strip state of
immunity from suits. Congress can withhold the immunity when civil
rights are involved.
iii. The state can consent to being sued.
7) Abstention Doctrine
a. As a general rule, a court will abstain where an unsettled area of state law
exists. State court interpretation of its own statutes will most likely occur.
Pullman abstention doctrine. (Deals with pending proceedings; whereas
adequate state grounds applies to highest waiting until highest state court
rules)

Separation of Powers: the fed govt only has that authority that the Constitution gives or
confers upon it. The 10th Amendment gives the rest of the power to states.
1) Enumerated Powers Art 1 Sect 8: bankruptcy, power to coin money, propose
amendments to constitution, commerce power, war power, postal power, D.C.,
copyright/patent, militia and national defense. (These are the powers explicitly
listed.) They are Great Powers.
a. Federal Commerce Power: a plenary powerboth domestic and foreign.
Can regulate any person or thing crossing state lines. Test for the following
things: jurisdiction, traditional state functions, and commercial purposes.
 i. Affectation Doctrine: Any activity which in the aggregate has a
substantial economic effect on the stream of interstate commerce may
be regulated by the federal commerce power. To properly fall within
the scope, an activity must substantial affect interstate commerce
(Lopez supplies a limit for an activity that is too tenuous).
1. Social welfare, health care, and civil rightsunder enabling
clause by appropriate legislation (see Heart of Atlanta)
ii. Cumulative Impact Doctrine: Wickard v. Filburn Such an activity as
growing for own purposes within a state still counts. Even entirely an
entirely intra-strate activity can have a cumulative impact on inter-state
commerce.
iii. Rational Basis Test: Ollies BBQ, or Katzenbach v. McClung
Deference is given to Congress. If there is a reasonable basis for
Congressional regulation, then it is permissible.
iv. 10th Amendment challenge and limit to commerce power: National
League of Cities v. Usery (hours and wages of state employees
regulation). State says there are things reserved for the states in areas
of traditional govt functions. But in 10 years later, it was difficult to
determine what other activities fit within traditional or inherent state
functions and was over-ruled in Garcia decision. So, 10th Amendment
is a weak limitation.
1. A generally applicable law is Constitutional (ones that apply to
all businesses)
2. NY v. U.S : Congress cannot interfere with state law-making
processes. Congress may not simply commandeer the
legislative processes of the states by directly compelling them
to enact and enforce a particular federal regulatory program.
a. Can use spending power to restrict federal funds to
regular indirectly (conditioned the receipt of federal
funds)
b. Commerce power itself can be used if Congress said
radioactive waste cannot be shipped outside a states
borders.
3. Congress may prohibit state governments from engaging in
harmful conduct, particularly if the law applies to private
entities as well; but Congress may not impose affirmative
duties on state governments.
v. General Welfare Clause: Properly used can serve as a limitation to
the taxing and spending power.
vi. Spending Power: Congress can regulate indirectly where it cannot
legislate directly. Also, Congress can spend in any way it believes
would serve the general welfare. ex/ fed funding for
 transportation/hwys in exchange for drinking age law. See South
Dakota v. Dole
vii. Federal Taxing Power: a federal tax is valid if the dominant intent is
fiscal. (Revenue raising is valid.)
2) Delegation: Congress can delegate its legislative powers to the executive branch/exec
officers, pres and to the court. There are limitations, however:
1. Legislative Veto: Congress can delegate legislative power, but
it cannot subsequently retract that power. See INS v. Chadha
a. A legislative veto is not actual law-making because it
violates bicameralism and presentment. Each
amendment to a statute must go through the
process. See also Bowsher v. Synar
i. Even a two-house veto is unconstitutional in
over-riding a delegated power.
b. Congress can overturn agency decisions so long as
there is bicameralism and presentment.
c. Congress cannot delegate executive tasks to itself. So,
Congress can delegate legislative tasks, but not
executive tasks without bicameralism and presentment.
A legislative officer cannot be granted the power by
Congress to perform executive functions/administer the
law.
2. Ex Post Facto: Congress cannot retroactively apply laws.
3. Klein: once Congress has made an act, they cannot
subsequently take away the authority away in order to get the
desired outcome
4. Non-delegation Doctrine: There is a limit to how much a
branch can give away power. There needs to be an intelligible
principle for why the power is conveyed; the power cannot be
broadly given as a go-ahead without specific instruction.
a. If Congress delegates a task to themselves, it must go
through bicameralism and presentment; it cannot be
handled in-house. See Bowsher v. Syner
b. There are few actual limitations to what cannot be
delegated. No challenges have succeeded in the last 60
years.
3) Necessary and Proper Clause: allows Congress to use any means necessary and
proper to carry into execution the enumerated powers (above). It is no good on its
ownit needs to support an enumerated power.
a. Congress can raise and support (maintain and regulate the armed forces,
including the state militia)
 b. Congress can delegate responsibility, as long as it is working within proper
limits.
c. There are implied powers, not enumerated by the constitution, that are
permissible as means to an end of powers that are necessary and proper.
i. These powers cannot be too attenuated or antithetical to the spirit of
the constitution.
ii. The threat of revolution is a safe-guard that works to limit implied
powers. There are additional political safe-guards
4) Bicameralism and Presentment: the Constitution specifies that we need the two
houses, plus the approval of the present (Art. 1, Sect. 7). A law must be made through
this process.
5) Federal Executive Power: President has power to faithfully execute the laws. From
Youngstown Sheet and Tube Co. v. Sawyer there are three areas of the Presidents
political reach: P+C, P, and P-C.
i. With the implied or express permission of Congress authority is at its
maximum, for it includes all that he possesses in his own right plus all
that Congress can delegate.
ii. With little concurrent power/authority there is a zone of twilight in
which he and Congress may have concurrent authority, or in which its
distribution is uncertain.
iii. Against Congressional intent: an area where the President may not act
unless the law enacted by Congress is unconstitutional.
b. President cannot cut back or diminish laws.
i. The president has inherent authority, unless the president interferes
with the functioning of another branch of government or usurps the
powers of another branch vs. the president has no inherent power; s/he
may only act if there is express constitutional or statutory authority
(functionally, the president has been given powers not strictly
enumerated in the Constitution, such as the ability to recognize foreign
governments)
c. Appointment and Removal: President can appoint purely exec officers:
cabinet members, ambassadors, SC justices. Senate consent is required,
however. Pres can appoint: agencies and commissions with admin powers.
i. Note: Congress cannot appoint fed officials. Congress (and its officers)
cannot appoint inferior officers, but they can delegate such
appointment to the judiciary or executive branch or president. See
Morrison v. Olson.
1. Ask: Is the position temporary?
2. Ask: Is the position limited?
ii. Pres may remove any purely exec official (NOT fixed term official
or justice). However, this power is limited if the removal is barred by a
 statute. The power to remove . . . is an incident to the power to
appoint.
1. Congress cannot give itself the power to remove executive
officials. See Bowsher v. Synar Except where through
impeachment.
2. Ask: Do removal restrictions impede the Presidents ability to
perform her/his constitutional duty?
3. Removal can be limited by Congress (for example, to show
good cause) if it is in an area that should ideally be held
separate from the president.
d. Pres has no legislative power. S/he may veto legislation within 10 days. It
may be overridden by 2/3 vote of each house.
i. However, the President may not veto legislation piecemeal, especially
if s/he has already signed the legislation. See Clinton v. NY
1. Has Congress given the President the wrong kind of power (i.e.
non-executive power)?
2. Has Congress given the President the power to encroach upon
Congress own constitutionally reserved territory?
3. Has Congress given the President too much power, violating
the doctrine of nondelegation?
e. Pres has pardon power:
i. only for offenses against the U.S. FEDERAL CRIMES, not state
crimes.
ii. It does not apply to people have been impeached
f. Exec privilege: refusal to disclose information: it is absolute for military or
diplomatic secrets. Otherwise is qualified privilege.
i. Diplomacy is generally regarded as an area that requires secrecy
ii. Candor with advisors also justifies privilege
g. Exec has absolute immunity from civil suits when in office. Not permitted
to sue the Pres for money damages for conduct in office, nor for injunctions.
i. Limited to acts within Presidency (Paula Jones)
ii. There is not immunity from criminal suits; however, there must be
relevant material that is absolutely necessary to have a fair proceeding.
iii. Impeachment must come from Congress
1. Breach of public trust
2. Over-extension of power that undermines or subverts the
Consitution
h. Commander and Chief: can send troops even before outbreak of war.
Congress can declare war and regulate militia, but Pres can call state militia
units into active service. There are broad emergency powers, as well.
i. Foreign Powers: treaty power (with approval of the senate), commander and
chief, ability to make executive agreements with foreign nations. See Dames
and Moore v. Regan
 i. Congressional Authorization: delegation by congress of its
commerce power to the Pres. who can then go out and do exec
agreements in foreign affairs. See US v. Belmont: The Pres. has more
berth to recognize foreign govts. However, there are limitations.
ii. Treaties: needs consent of 2/3 of senate. It is treated as supreme law
of the land. If theres a conflict with act of congress, the last in time
prevails.
1. Treaties cannot be challenged as violating the 10th amendment
iii. Commander and Chief: see above
j. Executive Orders: few limits
Hierarchy:

1) Constitution
2) Act of Congress OR Treaty (last in time prevails)
3) Executive Agreement/Order
4) State Law

Federalism:
Intergovernmental Immunities (fed govt can regulate the state and state can regulate the fed
govt). The fed govt and its agencies are immune from state taxation and regulation (but a state
can tax a fed contractor, as long as the obligation to pay does not fall on the fed govt itself. It
must be non-discriminatory). The state may levy property taxes on federally owned buildings
and collect income taxes on federal employees.
Two questions must be asked:
1) Does Congress have the authority under the Constitution?
2) If so, does the law violate another constitutional provision or doctrine?
1) Limits to Federal Power:
a. Violations of civil rights
b. Titles of nobility
c. Ex Post Facto Laws
d. 10th amendment
e. Objects not entrusted to the govt
f. Pretexts of spending (trying to achieve an end that isnt an enumerated power)
i. There are implied powers: anything that is appropriate to lead to
enumerated powers would be an implied power and is permissible.
2) State Regulations
a. Art. 4 Sec. 3: Federal Property Power: Congress has the power to dispose of and
make all needful rules respecting the territory of the US.
i. Wild animals on Fed. Land
ii. Fed. Buildings or enclaves
iii. Military ships and airplanes
iv. Indian reservations
3) Federal Govt Regulation of States
 a. States are not immune. The 10th amendment and 11th amendment does not give
immunity. The Federal govt can sue a state.
b. Fed. Govt can tax propriety state businesses, but may not tax unique state
activities (essential state functions like parks, schools, or capitol building)
c. States cannot tax federal institutions (no benefits to the part from the whole)
i. The states do not have power that is sufficient to destroy or squash federal
operations, if the operations are legitimate see McCulloch v. Maryland
d. Federal Laws and Regulations trump or supersede state regulation.
i. In some cases, such as cases dealing with treason, federal law would apply
rather than state law.
ii. If there is an issue that interferes with integral govt operations, the govt
needs to be able to perform the functions without impediment (and can
strike down state law)
iii. There is more leeway given to the regulation of private companies and
individuals than for state regulation.
1. States have police power that allows states and local governments
to adopt any law that is not prohibited by the Constitution.
a. In D.C., Congress has the same police power as the states
4) Dormant Commerce Clause
a. Not a power, but a negatively framed doctrineif there is no federal doctrine, the
states are free to do it.
i. Must be non-discriminatory: state law may not discriminate in favor of
local interests. The state MAY act as a market participant, however.
1. If a state law is intended to fulfill a legitimate purpose (not
purposefully discriminatory) but the effect is discriminatory, then
in order to be Constitutional, the law must be achieved by the least
restrictive means available. See Philadelphia v. New Jersey
a. Think about other alternatives available. If there are
alternatives, then the regulation/law wont hold.
b. There is an exception for quarantines since the very
transportation of these things could spread disease and pose
a hazard.
2. Exception: if the state uses its own funds and then gives preference
to its own residents. Where the state as a market participant uses
its own tax-payer funds, then it may give subsidies, and favor local
commerce.
a. Market Participation: The state has a right to decide with
whom they interact. Ex/ North Dakota can sell their
cement only to ND projects. However, Alaska cannot force
purchasers of lumber to have it processed in Alaska (they
are merchants of the lumber, not processors of lumber)
ii. Must not unduly burden interstate commerce: balancing test. There is a
test weighing the state interest in regulation against the burden against
interstate commerce. See Bibb v. Navajo Freight Lines and other trucking
cases.
1. As a general policy: the court will uphold state laws in the
following areas: state regulation of roads and highways, health and
safety, preventing fraud or usury, conservation of natural resources.
a. Factors that are weighed: is there discrimination on the face
of the law, is there a discriminatory purpose or effect, is the
law motivated by a protectionist purpose?
b. If the burdens of the law exceed its benefits, it is
unconstitutional. See Pike v. Bruce Church, Inc.
c. The SC has struck down attempts to help in-state
businesses at the expense of out-of state businesses, as
facially protectionist.
2. Privileges and immunities clause (Art 4, Sect. 2): prevents
discrimination by one state against citizens or residents of one state
regarding basic economic rights or liberties. (Discrimination
against out-of-staters)
a. If dealing with a limited area of recreational interests
(rather than commercial interests), then discrimination is
ok. See Baldwin v Montana and Piper v. New Hampshire
(states must allow you to sit for the bar).
i. Test: Is the activity in question a constitutional right
or important economic activity?
ii. The court allows discrimination where: there is a
substantial reason for the difference in treatment
OR where the discrimination against nonresidents
bears a substantial relationship to the States
objective.
b. Theres a right to engage in a common calling or profession
c. Only citizens can sue under the privileges and immunity
clause-- a corporation doesnt count because a corporation
isnt a citizen.
d. Art 4 v. State power to regulate commerce: If the
discrimination is against citizens or residents, then it is an
Art 4 immunity issue. If the discrimination is against an
entire business or industry, then it is a commerce clause
issue.
e. Congressional action can excuse a state law under the
dormant commerce clause, but cannot excuse a law under
the privileges and immunities clause.
f. There is no market participant excuse under the privileges
and immunities clause.
 b. There cannot be a protectionist measure from one state to another. Nor can there
be a state monopoly.
i. These things are inconsistent with the idea of a unified nation, as well as
the idea of a federal power that can regulate interstate commerce.
c. A state tax must:
i. Be reasonable and fairly related to the serviced provided by the state
ii. Be non-discriminatory to out-of-staters
iii. There must be a substantial nexus between the state interest and the
activity being taxed (to satisfy the due process clause)
iv. Goods which are in the stream of inter-state commerce may not be taxed
no multiple tax burdens.
1. Goods can be taxed at the beginning or end of the transit. Or, if
theres a break in transit, they can be taxed at the stop.
v. Instrumentalities may be taxed, but must be fairly-apportioned to tax-
payer use.
vi. Direct taxes must be apportioned (ex. real property or income tax).
Indirect taxes must be geographically uniform.
5) Supremacy Clause:
a. Pre-emption doctrine: where congress intends to occupy a given field, any
conflicting state law will be invalidated.
i. This is generally in a case where theres explicit pre-emption language
OR
ii. Implied pre-emption where it is a physical impossibility to comply with
both state and federal law.
1. Or, where a state regulation impedes the achievement of a federal
objective.
b. Super-session doctrine: a federal law will supersede any state law which is in
direct conflict.
i. A state may enact more stringent standards than required by federal law
when in area of health/safety.
c. Legal Incidence Test: if a tax will be directly borne by the federal government, it
is unconstitutional as violating the supremacy clause, unless expressly permitted
by Congress.

Due Process

1) The constitution may not be suspended:

a. A plausible exception would be if the civil courts are no longer functioning OR
b. It becomes impossible to safely hold prisoners OR
c. Someone is caught red-handed
2) Habeas Corpus
 a. Congress has the ability to suspend habeas corpus; however, until it does so, there
cannot be a lack of due process.
i. The president has worked beyond these boundaries, but it is a case of the
president working without Congressional assent. (P-C)
b. Someone can be held indefinitely as an enemy combatant see Hamdi v. Rumsfeld
i. However, the individual, if a citizen, gets some kind of due process to
contest the factual basis for that detention before a neutral decision maker.
c. Adequate Procedure: Guantanamo Bay is not a place of rebellion; therefore,
Congress would need to specifically outline a class of people and basic
components of the due process for the detainees. If there isnt adequate procedure,
then Congressional action is unconstitutional.
i. Even enemy combatants can get HC
1. Pg 294
2. Constitution has full effect at Guantanamo Bay
3. Only the Suspension Clause can take away HC
3) Jurisdiction
a. Sovereignty affects the outcome
i. The Geneva Convention may alter the rules
b. Supreme Court must have proper jurisdiction over the case, and the individual
must have a right to a federal trial.