con law rules - govt powers.txt

• 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 won’t be dismissed as moot.

• issues constitutionally committed to political branches or inherently incapable of judicial resolution
• e.g.,
• 1) “republican form of govt clause”
• 2) Challenges to President’s 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.

• 1) personal injury in fact [P has personally suffered]
• 2) causation between defendant's conduct and plaintiff's injury
• 3) redressability

• 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]

• 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).

• 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.

• 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.

• 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 can’t 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. That’s 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 President’s cabinet [they’re there to ensure President’s 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”)

• 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 has privilege to keep certain communications secret, particularly national security, but not in criminal proceedings where the prosecution shows a need.

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.

There must be express or implied Congressional power.

• 1) Commerce Clause
• 2) Tax and Spending
• 3) Taking Property
• 4) Citizenship
• 5) Civil Rights
• 6) Foreign Affairs
• 7) War
• 8) Elections

• 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]

• Congress may tax and spend for the general welfare.
• Congress may enact any tax to raise revenue for the general welfare.

• 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, can’t 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 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 gov’t (people dealing with the fed govt) if it produces an undue burden on federal activity.
• -----Federal gov’t never has to comply with state/local pollution/environmental laws. That’s a significant burden on federal activity.

• (“negative implications of the Commerce Clause”)
• State and local laws are UnC if they place an undue burden on interstate commerce

• 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

• 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.

• 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)

• 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 individual’s right to migrate from state to state