Con Law - Gov't Powers

• 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.

Permitted only if Congress has not already regulated a particular activity and tax does not discriminate against or unduly burden interstate commerce

• Four Part Test
• 1) Substantial Nexus b/w activity & state
• 2) Fair Tax apportionment for activity
• 3) No local commercial advantage; AND
• 4) Tax must be fairly related to services provided by taxing state

• If Congress has not, states can regulate interstate commerce so long as regulation does not: 
• 1) Discriminate against out-of-state commerce;
• 2) Unduly burden IC; OR
• 3) Regulate wholly out-of-state activity

• 1) Market Participant
• 2) law furthers an important, noneconomic state interest and there aren't any nondiscriminatory alternatives
• 3) law favors govt performing traditional govt functions
• 4) Congressionally permitted discrimination

A state law that is not discriminatory may still be struck down as unconstitutional if it imposes an undue burden on IC

The courts will balance the objective and purpose of the state law against the burden on IC and evaluate whether there are less restrictive alternatives

• 1. Forbids serious discrimination against out of state individuals, absent substantial justification (applies to state discriminating against citizens of other states)
• 2. Substantial Justification --> Applies if nonresidents are cause or part of problem state is trying to solve, and there are no less restrictive non-discriminatory means

• 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