ConLaw 1

• Judicial Review


  The power of the Supreme Court to review the constitutionality of legislative and executive action (Marbury v. Madison) and state courts (Martin v. Hunter's Lessee)
• Judicial Supremacy


  When the Supreme Court interprets the Constitution it is final and binding on everyone, i.e. even state officials (Cooper v. Aaron)
• Constitution's Supremacy Clause = supreme law of the land
• Subject matter jurisdiction in federal court


  • Federal questions and diversity cases
• Original jurisdiction


  Court is hearing case because it is being filed at the Supreme Court from the get go, acting like a trial court (very few cases)
• Appellate jurisdiction


  Case originated from a different court and is now being heard by the Supreme Court on appeal (most often)
• Justiciability


  • If a case is not justiciable, the Supreme Court does not hear the merits of the case
• Standing


  • A plaintiff must satisfy 3 constitutional requirements to bring suit: (1) Injury in Fact that is Actual & Imminent, Concrete & Particularized, (2) Causation - Injury must be fairly traceable to defendant's conduct, (3) Redressability - Injury must be redressable by a favorable decision
• Congress cannot alter the Constitution's requirements for standing (Lujan v. Defenders of Wildlife)
• Ripeness


  Seeks to separate matters that are premature for review because the injury is speculative and may never occur
• Mootness


  An actual controversy must exist at all stages of litigation UNLESS (1) it is capable of repetition, yet evading review, (2) the defendant has voluntarily ceased behavior (but could resume it at any time), or (3) it is a class action where the named plaintiff's claim is mooted
• SCOTUS does not issue advisory opinions outside of an actual case or controversy
• Exceptions Clause


  Congress has the power to strip the appellate jurisdiction of the Supreme Court
• Congress cannot use the Exceptions Clause to literally dictate outcomes (US v Klein) or interfere with separation of powers</b>
• Rational Basis


  Extremely deferential standard of review; as long as the government has a legitimate government interest and a rational connection between its means and objectives, the law will be considered rational (lowest level of scrutiny)
• Strict Scrutiny


  Not deferential; when Congress passes a law, it has to be narrowly tailored to achieve a compelling government interest (higher level of scrutiny, less likely to uphold a law)
• Congress's Commerce Clause power


  • Congress can regulate: (1) Channels of Interstate Commerce, (2) Instrumentalities/Persons/Things of interstate commerce, and (3) Intrastate activities that substantially affect interstate commerce
• Economic activity


  Relates to "economic enterprise, producing/distributing/consuming commodities" - quintessentially economic (Raich)
• Economic inactivity cannot be regulated (Sebelius)
• Factors for determining if non-economic activity substantially affects interstate commerce


  • Jurisdictional hook - a statutory clause requiring the regulated activity to have a connection with commerce, 2) Congressional findings suggesting a connection between the regulated activity and interstate commerce, 3) Whether the activity is part of a larger regulatory scheme over economic activity, 4) Whether the activity has too attenuated a connection to interstate commerce
• Taxing Power


  Congress can impose taxes that raise revenue for the general welfare, but a "penalty" rather than a tax has characteristics like being exceedingly burdensome, having a scienter (intent) element, and being enforced by someone other than the IRS
• Conditional Spending Power


  • Congress can place conditions on federal spending for states as long as: (1) the conditions are in pursuit of the general welfare, (2) the conditions are unambiguous, (3) the conditions are related to the purpose of the funding, and (4) the conditions do not violate other parts of the Constitution
• Congress cannot use the conditional spending power in a way that is unconstitutionally coercive (NFIB v. Sebelius)
• Necessary and Proper Clause


  Gives Congress broad authority to carry out its enumerated powers, but Congress must first point to one of its enumerated powers as the basis for legislation
• Treaty Power


  Congress can pass statutes to implement valid treaties, even in ways that may not be permissible under the Commerce Clause (Missouri v. Holland)
• Section 5 of the 14th Amendment


  Gives Congress the power to pass laws that enforce the protections of the 14th Amendment, but Congress's power is limited to remedies that are congruent and proportional to the constitutional violations it seeks to address (Boerne v. Flores)
• 10th Amendment Anti-Commandeering


  Limits Congress's ability to compel state governments to implement federal regulations or policies, but Congress can subject state governments to generally applicable federal regulations when states are acting as private actors in the marketplace
• Congruence


  There must be a link b/w alleged constitutional violation and the remedy to address it, demonstrated by a record of "widespread and persistent" violations
• Look for facts depicting a record or pattern of states violating the right at issue or inflicting a specific injury on people related to that right
• Proportionality


  The scope of the remedy designed to remediate or prevent constitutional violations must be "responsive to" and "dispose to prevent' constitutional violation
• 10th Amendment Anti-Commandeering


  The 10th Amendment is about the limitations on the federal gov as it attempts to implement a federal regulation/policy
• Questions to ask about 10th Amendment Anti-Commandeering

  1. Can Congress regulate this at all?

  2. Can Congress regulate this thing in this particular way? (Is it commandeering?)

  3. How does Congress get around this?
• Congress can subject state governments to generally applicable federal regulations when states are acting as any other private actor in the marketplace
• Where state is being regulated


  • Garcia v. San Antonio – Where state is being regulated as employer
  • Reno v. Condon – Where state is being regulated as "the owner of databases"
• Congress cannot force states as states (in their sovereign capacities) to legislate
• Where Congress cannot force state legislature or officials

  • NY v. US – Where "take title" provision was unconstitutional
  • Printz v. US – Where State officers, who are not under the authority of the President, cannot be forced to do background checks to enforce fed law
• How Congress can get around 10th Amendment Anti-Commandeering


  1. Do it themselves though other powers!

  2. Pre-emption – can pre-empt or displace state or local law it wants to get rid of
• Preemption


  The power of Congress to displace state/local law
• Types of Preemption

  • Express preemption
  • Implied Preemption
  • Field Preemption
  • Conflict Preemption
• Express preemption


  When Congress explicitly says the law is preempted