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Introduction A Constitution does 3 things: 1. Sets up the organs of a government that you cant live without (executive, legislative, judicial) 2. Empowers the pieces to do their jobs 3. Limits the power of other pieces


Judicial Power A. Jurisdiction 1. Original Marbury v. Madison: congress cannot expand original jurisdiction outside the bounds of the constitution; sets up the theory of Judicial Review. Laws are subject to the constitution. Also, the constitution comes from the people, a higher authority than the representatives that make laws. Moreover, one of the principle reasons for the constitution was to create uniformity between the states for certain things. 2. Appellate Cooper v. Aaron: Supremacy Clause. All courts including state courts must follow the decisions of the Supreme Court, Article VI 2. All legislative and executive officers swear oaths to support the constitution, so they are bound to the constitution. The Supreme Courts function is to interpret the constitution, the laws made in pursuance to it, AND treaties (which are not made in pursuance to the constitution). Martin v. Hunters Lessee: It is the case not the court that gives jurisdiction; Federal matter doesnt have to rise directly, it can rise indirectly through a state court claim and the Federal court shall have jurisdiction through the supremacy clause. The S.C. can determine underlying facts about the state court case to determine whether a federal claim is valid. Ex parte McCardle: Appellant jurisdiction doesnt come from acts of congress it comes from the Constitution. It is conferred with such exceptions and under such regulations, as congress shall make. In the constitution, it would seem that the S.C. always has an appellate power. However, congress grants jurisdiction. The court takes this as an implied restriction to everything else. If congress hasnt given it, the court doesnt have it (i.e. presumes it is taken away).


Justiciability 1. Cases and Controversies Muskrat: Congress cannot seek an advisory opinion from the court. There must be some case or controversy that the court can remedy. Political Question Fundamentally a question of the separation of powers. A political question is one where there is: 1) a textually demonstrable constitutional commitment of the issue to a coordinate political department. 2) lack of judicially discoverable and manageable standards for resolving it 3) impossibility of deciding w/o an initial policy determination of a kind clearly for non-judicial discretion 4) impossibility of a court's undertaking independent resolution w/o expressing lack of the respect due coordinate branches of government 5) an unusual need for unquestioning adherence to a political decision already made 6) potentiality of embarrassment from multifarious pronouncements by various departments on one question 3. Ripeness Are we there yet (i.e. at a case of controversy); has someone bee harmed or is a harm imminent enough for a court to hear a case. Mootness Is there still a case? There must be a controversy at every stage of the litigation. (appeal, certioari, and not just when originally filed). This requires: 1. Possible Relief 2. Adverse Parties Voluntary cessation if D voluntarily quits illegal conduct, this doesnt render a case moot because the conduct is capable of repetition evading review. Class actions people in similar legal and factual circumstances; class representative is certified to bring those claims on behalf of a class, so even if his claim is moot, he will still be allowed to proceed. 5. Standing a) Taxpayer 1. Taxpayers status must arise under art. I, sec. 8 of the constitution



2. There is a nexus between that status and a constitutional infringement by congress b) Non-Taxpayer 1. Injury to the plaintiff 2. Causal connection between the injury and the defendants conduct 3. The court can grant a sufficient remedy to make the plaintiff whole There must be an actual injury to the Plaintiff. The causal connection is the but-for test. Redressability (availability of relief) must also be fulfilled. 3rd Party Standing 1. Injury to P adversely affects the 3rd party as well 2. Theres a close connection between the P and the 3rd party 3. The 3rd party cannot assert their own rights without great difficulty 6. Jurisprudential Even if a party or case meets all the requirements of art. III, the court may deny them a hearing if doing so would represent an unwise public policy choice.


Legislative Power A. Implied Power McCulluch v. Maryland; We must never forget that this is a constitution that we are expounding, not a code. Let the end be legitimate. Necessary and proper clause adds no new powers, it merely makes the means of expressing powers possible. It is up to the judgment of congress to pick these means as long as these means are directed towards one of these powers B. State Powers in Light of the Commerce Clause Start with Pre-emption. Active Commerce Clause congress has acted upon the subject matter (much dispute as to what this is); the supremacy clause dictates that this congressional action will void any state action in the realm of interstate commerce. Dormant Commerce Clause congress has not acted upon the subject matter (sometimes not at all, sometimes it has acted specifically, sometimes its acted generally in the area).

Divisions of the commerce clause: 1. With foreign nations 2. Among states 3. With Indian tribes Note the word changes. Ogden: Among the states means interstate commerce; its all included, not just buy, sell and barter, but the conveyance of goods, people and money as well. Cooley rule of selective exclusion shift from looking at the regulation itself to the thing being regulated. Other entities like states may regulate commerce if congress has not acted on it, if congress authorizes them, or if the subject is local. If something is such that by its nature it requires a national uniformity, the state must leave it alone no mater what. Cooley Rule - 3 part test: 1. Congress has not acted on the subject matter 2. The statute or regulation is not on its face intended to harm interstate commerce (discriminatory); i.e. its claimed that its for health or safety. 3. Whether the burden placed on interstate commerce is not just a burden but an undue burden to determine this, you must shift the analysis to the thing being regulated as opposed to the regulation itself, then examine the context of the thing (is national uniformity needed, local concerns, etc.) Police Power of the State: Legislatures will always claim health and safety, but all things are not as they seem. Many times acts are disguised as health and safety when they are really economic regulations, at other times acts are products of a state exercising power to protect a genuine interest. Dean Milk Test: 1. Court must decide if that is a legitimate local concern (health, safety, etc.) or illegitimate (protect local business). If there is a legitimate concern: 2. Can the action taken be justified? 3. Are there legitimate alternatives that dont discriminate against interstate commerce? Bulk Package rule started in foreign commerce to describe the point in time where foreign commerce is over. If you break the original package, commerce is done because the goods are now part of the goods in the state subject to taxation in the state.

Once something is property, the laws of interstate commerce apply. If there is no property, then it probably is restrictable by the state. Here, wild animals, once killed or captured, became property. Market Participant Doctrine: If the state is a market participant, it is exempt from the commerce clause. You must look to the thing that the state is regulating; is it regulating the market or its own interest in the market? The latter is permissible. Even as a market participant (employer, owner of natural resources, etc.), a state may not violate the Privileges and Immunities Clause of the Constitution when it comes to discriminating against residents of out of state. To determine if this has been done, you must ask: 1. Does the regulation affect a privilege or immunity? If not, it is not governed by the clause. 2. Is there an evil that the state is trying to regulate and are the citizens of another state the source of that evil? 3. Did the state pick the least discriminatory alternative to resolve the evil, or is there a nexus between the evil and remedy to be applied. (or, is the statute narrowly defined to address the problem must be no broader than it absolutely has to be.) Silkwood v. Kerr-McGee: Where a state regulation and federal regulation touches on the same subject, you must ask: 1. If congress evidences an intention to regulate the field (supremacy clause)? 2. If the state law conflicts with the federal law (i.e. its impossible to apply both or the state law frustrates the federal law = pg. 157)? If you can comply with both, it is not an obstacle. The overriding principle of the commerce clause is that the nation is 1 economic unit. Combined dormant clause tests: 1. 2. 3. 4. 5. C. National v. Local Concerns Is the statute facially discriminatory Is there a legitimate purpose to the legislation Is there an undue burden on interstate commerce Is this the least discriminatory way the state effect the end

Federal Powers under the Commerce Clause 1. Early Cases Transporting an article in the chain of commerce makes one subject to the commerce clause regulations. It is not enough that you stay in one state with it.

When does interstate commerce end? How does a good cease to be in interstate commerce? One answer is the original package test (i.e. when broken). Is it when it is purchased by the consumer? When its on the shelf? Its always fact driven, but the question is the same; i.e. have the goods come to rest and left the stream of interstate commerce? Manufacturing, production and Ks are events that precede commerce. (logging, fishing, farming, etc.) Under normal circumstance, intrastate regulation is fine, but where it interferes with the federal regulations, it will be ruled void What is regulating? Controlling, prohibiting, freeing something from regulations. Basically from shutting down traffic to not regulating commerce in particular items. Direct Effect Test the thing which Congress regulates must have a direct effect on interstate commerce for Congress to be able to claim the power to regulate the thing according to its powers under the Commerce Clause Manufacturing, production and Ks are events that precede commerce (logging, fishing, farming, etc.) and therefore have an indirect effect upon it. Non-Delegation Doctrine congressional delegations with legislative authority are to be very strictly looked into. The Court does not want a delegation to private individuals, industry groups or even Presidents. 2. New Deal Cases Close and Substantial Relation Test substantially broader than the Direct Effect Test. Stream of Commerce Flow of many industries bottlenecks at certain points (such as plants), thus conditions at the plant that could harm these other industries may be considered to have a close and substantial relation to interstate commerce. There are two ways that an act made under congress commerce power will always be invalidated: 1. If the act violates the constitution 2. Or if it does not have a substantial affect on commerce. The Non-Delegation Doctrine Survives.

Class of Activities Test It is the class of activities together that is important and all those acts within the class may be regulated in the furtherance of commerce. 3. Modern Commerce Clause If there is a link to commerce, generally congress will be able to regulate. Commerce Clause Power extends to: 1. Channels of interstate commerce 2. Instrumentalities of interstate commerce, including persons or things travelling in interstate commerce 3. Things having a substantial relation to interstate commerce Originally the Court declared that the Federal Government could not seek to regulate original governmental functions. This standard is far too elusive. Now, it doesnt matter if the act is destructive of state sovereignty; if congress can regulate it, it is free to do so. The political process must save the states. Coercion of a states legislature violates the 10th am.; congress cannot commandeer the states legislative power and require them to enact legislation to support federal policy. Congress must instead do it by carrots (no sticks). To enforce federal regulations, however, is different. Federal law must be enforced by a feral official [from executive]. With judges supremacy clause means federal government can make state judges enforce federal law IV. The President and the Congress A. Foundations of the Foreign Affairs Power In the area of foreign affairs, the President takes a place of primacy (Curtis-Wright) and things like the Non-Delegation Doctrine may not apply. However, the President cannot bootstrap presidential external powers to internal powers. 3 part test of presidents power: 1. With acts pursuant to an act of congress, he has the most power 2. With acts in absence of act of congresss assent or denial, he is in a twilight zone (i.e. within his own powers) 3. With acts incompatible with the will of congress, he has the least amount of power (1) when congress has acted and the president enacts it, this can only be illegal where they dont have the authority to do said act.


Treaties Self Executing Treaty treaty which requires no legislation to carry out. Treaty v. statute = which is more important? Under the constitution they are equal, but 1. The more specific trumps the general 2. Then the latest in time will govern Treaties are the supreme law of land if made under authority of U.S. government. The necessary and proper clause allows the legislature to carry into being all powers of U.S. in constitution. Therefore, a treaty doesnt make a law constitutional, but the necessary and proper clause vests the authority in congress to make the law pursuant to the treaty Limits to the treaty power dont have to do with a distinction between international and domestic affairs. The Court doesnt rule a treaty void because of under the authority of the U.S. However, a treaty probably cannot violate particular pieces of the constitution which prohibit the government from doing something


Citizenship and Naturalization When its a question of whether an alien can stay in the country, the court gives congress the broadest discretion; its almost a political question. So to when it comes to letting aliens in the country. 2 types of citizens: those born in the U.S. and subject to the jurisdiction thereof and naturalized citizens. Also statutory citizens; i.e. if youre born outside the U.S. as a statutory citizen (like one parent is a citizen) if certain conditions are not met, you can have your citizenship revoked (Ballei). Due Process may be met with something as simple as a hearing to determine the aliens past actions. Generally, Congress cant take citizenship away without your own revocation.


Speech and Debate Clause This clause keeps the Legislature from falling within the police powers of the executive by not allowing members of congress to be arrested while in session. All communications which concern the introduction of a bill, a vote on a bill, or any allusion to a prior act is privileged and cannot be used against a member of congress in court. A promise to introduce a bill or vote or some other future act, however, is not privileged. A legislative act for the purposes of the Speech and Debate Clause can concern either the legislative or the informing functions of Congress. The informing function includes things like depositions, reports for a committee, etc.; not newsletters sent out to your constituents.


Presidential Privilege and Immunity Executive privilege is rooted in the separation of powers. Where a communication between the president and one of his advisors concerns military, diplomatic, or sensitive national matters it will be considered privileged. A balancing test is used to balance the validity of the presidents claim against the purported use that will be made of the information. In camera review is appropriate to meet this end. A former president can also invoke this privilege. The president enjoys absolute immunity from damages liability resulting from acts within the outer perimeter of his responsibility while in office.


The Appointment Power The President appoints principle officers while the Congress is given discretion in who appoints inferior officers (either the President, the Judiciary, or the Heads of Departments). In determining whether an office is principle or inferior, you may look at: 1. 2. 3. 4. How may they be removed from office dispositive of who controls them The extent of their duties The breadth of their jurisdiction The length of their term

An inquiry that may be made when determining whether an officers job is permissible deals with the separation of powers. If the officer is outside the control of the President and he substantially interferes with the Presidents ability to carry out the business of the executive branch, the officers position may be determined unconstitutional. V. Equal Protection Equal Protection Cl. 14th Am. = echoes 5th Am. in regards to due process. = sometimes 5th is incorporated with 14th to give federal government requirement of equal protection. Due process protects life, liberty or property = if none of these are threatened, you have no due process claim. Equal protection is about protecting people from arbitrary treatment or from being subjected to things prohibited by the constitution. Equal protection comes in when we have discrimination against a suspect class or a facially neutral statute being applied in a manner that discriminates against a suspect class. Suspect class means we have a much higher scrutiny of the excuse given by the state for discrimination (tends to be those things we cant control race, etc.).

For a state to be able to discriminate, there must be a COMPELLING STATE INTEREST to allow such a rule.

Commerce Clause analysis: Pre-emption if Congress has acted, state cant act Commerce Clause is either Active or Dormant; if they have acted, they have either preempted, authorized otherwise unacceptable state action, or they havent its preempted if the statute based on its words and intent intend to occupy a field, even if it doesnt if the state action interferes with the act, state action is pre-empted. If they havent pre-empted or theyve only partially done so = can the state regulate (dormant clause problem) Dormant Commerce Clause regime: Cooley rule is dispositive look at what is being regulated; if it is a national issue (needing uniformity), states are pre-empted; if not, there is room for state action. States need for individual regulation v. the flow of commerce = would 50 different regs burden commerce? Next test is state action discriminatory on its face or as applied (same test for incoming and outgoing commerce); if its not discriminatory, its good law. If it is: Balancing test: is there in fact a (health or safety) standard that is reasonable here and are they addressing it in the least restrictive way they can that discriminates against commerce. Market Participant: if state is ACTING as a market participant and not a regulator, action is okay. They cannot regulate beyond the market in which they are engaged. This is an exit from the commerce clause analysis, but P/I can come into play. P/I meant to grant each of us to go to different states and pursue livelihoods and create a comity between the states so were not always angry at what another state did to our own citizens.