law school outline: constitutional law 1



Constitutional Law I

  1. Introduction

  1. Articles of Confederation: 1781-1788

  1. Sovereign states
  2. Limited congressional power
  3. No executive or judiciary.
  4. No bill of rights
  5. Lack of national power was largest problem with Articles.

  1. Federalist Papers

  1. Written by Madison, Hamilton and Jay as propaganda pieces to support a Constitution in response to the antifederalists.
  2. Antifederalists: Opposed Constitution as against the Revolution and inconsistent with Republicanism. Wanted states more powerful than federal.
  3. Federalists: Distribution of powers between state and federal governments. Promotes checks and balances, personal liberties.
  4. No. 10 (Madison): Control of factions, which can destroy a government.  Democracy breeds factions, which endangers the minority.  Control via votes and magnitude of population.

  1. Democracy has dangers of factional warfare due to natural self-interests of people; does not protect the minority.
  2. Republic delegates government to representatives, therefore refines the public views by passing them through a chosen body of citizens.

  1. No. 45 (Madison): Balance of power between State and Federal Government reduce risk of tyranny and abuse from either front. State government is more powerful.
  2. No. 46: Composition of Federal government designed to protect States from overreaching by Congress.
  3. No. 51 (Madison): Separation of powers.

  1. Fragmentation of society into interests and classes protects minority from majority.
  2. Strong legislature weakened by bicameralism; weak executive fortified by veto power.
  3. Checks and balances operates as check against factionalism and self-interested representation.

  1. No. 84 (Hamilton): Bill of Rights unnecessary because enumeration of federal powers. Said there was no need to declare that things shall not be done which there is no power to do.

  1. Constitution: 1788-present

  1. Written in response to problems with Articles. Only amendments to the Articles were authorized, but convention totally rewrote it.
  2. Gets its authority from Conventions and adoption by the states.

  1. Federal Courts

  1. Constitution establishes one supreme court, allows Congress to establish inferior courts.
  2. Jurisdiction

  1. Original of Supreme Court is enumerated in Constitution, to the exclusion of others, and cannot be restricted nor enlarged (Marbury).

  1. Cases affecting ambassadors, other public ministers and consuls
  2. Cases between states
  3. Heard through Special Master

  1. Appellate

  1. All cases under the constitution, federal laws, treaties, two states, citizens different states, state and citizens of another state, and cases to which the US is a party.

  1. Includes review of constitutional decisions by state courts (Martin v. Hunter�s Lessee). Necessary because federal judges are insulated by life tenure and salary protections, thus enforce Constitution without fear of reprisal. Extended to criminal proceedings in Cohens v. Virginia.

  1. Congress can expand and restrict the appellate jurisdiction of the federal courts (McCardle).

  1. Methods

  1. Eliminate avenues for review (but not all)
  2. Eliminate review of certain cases (but some lower federal court must retain jurisdiction)
  3. Deny all review of a certain violation (would violate due process)

  1. Control invalid if

  1. Violate explicit limits in other parts of Constitution
  2. Attempt to control outcome of cases
  3. Interfere with "essential" or "core" function of court
  4. Prescribe a decision in pending case

  1. Appeals only when: (1) Federal statute or treaty is invalid; or (2) State statute is valid, contrary to federal law.
  2. Certiorari: Discretionary review of civil or criminal, federal or state cases.

  1. Review of state court judgments

  1. Constitutionality of federal statute or treaty is in question, where the federal statute was key to the decision.
  2. State statute is challenged as unconstitutional, against federal law or treaties
  3. Only when claimant has exhausted all available state remedies and when the last judgment is final.

  1. Criteria for selecting cases

  1. Decisions of federal or state courts conflict.
  2. When federal or state court decides an issue of federal law that should be decided by the SC.

  1. No jurisdiction when an issue of state law has been decided that is sufficient to support the outcome.

  1. Judicial review (Marbury): SC has the power to declare acts of Congress unconstitutional.  Marbury wasn�t the first to use judicial review, but first to justify it. Chief Justice Marshall had serious conflict of interest and should not have heard the case.

  1. Political questions, including discretionary duties of executive branch, not subject to judicial review. Judiciary can review minterial conduct.
  2. Basis for power.

  1. Checks & balances
  2. Role of judiciary to exclusively interpret the law.
  3. Supremacy clause which places the Constitution above all other laws.
  4. Grant of jurisdiction to all cases arising under the Constitution
  5. Judge�s oath (but all government officials take one and it only applies to official duties)
  6. Framers supported judicial review (Federalist 78)

  1. Vis-�-vis Democracy

  1. Judges have life tenure, not elected, but maybe insulation from politics is good for interpretation.
  2. Only balance is the burdensome process of constitutional amendment.
  3. Hamilton justifies in Fed. 78 saying that judges are not making value judgments, only forcing Congress to conform to constitution (will vs. judgment).
  4. Maybe role of court is to promote and protect democracy

  1. Interpretations based on:

  1. Original meaning and intent of framers.
  2. Text
  3. Tradition and precedent
  4. Natural law (but different opinions)

  1. Justiciability

  1. Can be raised at any point in the proceeding, and by the court itself.
  2. Cases & Controversies

  1. Adversity
  2. Non-advisory
  3. Prohibits political questions (narrow interpretation):

  1. Types:  Guaranty clause, foreign relations, war, impeachment, etc.
  2. Criteria

  1. Issues which are constitutionally delegated to another branch
  2. Lack of judicially discoverable and manageable standards
  3. Impossibility of deciding without policy determination
  4. Decision would indicate lack of respect to other branch
  5. Risks embarassment of contrary decisions from different branches

  1. Declaratory judgment is ok even though no affirmative relief is sought so long as there is a genuine controversity and a real threat of harm.

  1. Ripeness: Immediate threat of harm to plaintiff.
  2. Mootness:  Real controversy, unresolved.

  1. Exception for cases that are capable of repetition, yet evading review (Roe v. Wade).

  1. Standing

  1. Personal injury to a legally protected interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical.

  1. Injury may be one created by statute, if p is within zone of interests intended to be protected or regulated by the statute.
  2. If generalized, undifferentiated grievance common to all members of the public, p must demonstrate concrete harm.

  1. Taxpayers can sue only if personal injury; or exceeding constitutional limit and part of federal spending program.  Generally allowed only in Establishment cases.

  1. Third party suits not allowed unless difficult for TP to assert rights (narrow) or where special relationship exists. Exception also for First Amendment cases.
  2. Organization has standing if:

  1. Members have standing in their own right;
  2. The interests at stake are germane to organization�s purpose; and
  3. The participation of individual members is not necessary.

  1. Fairly traceable (substantial probability) to D �s alleged unlawful conduct
  2. Likely to be redressed by the requested relief

  1. No power of Congressional review of court decisions or grant standing to someone not having an injury.
  2. Political control of the courts discourages courts from straying too far from the popular will and protects the checks and balances.

  1. Constitutional amendment: Requires 2/3 of both Houses or 2/3 of the state legislatures; must be ratified by � of the states.

  1. Jefferson encouraged, Madison discouraged amendments. Madison won.

  1. Power to appoint by president, subject to Senate�s confirmation.
  2. Impeachment: Never used.
  3. Life tenure insulates and protects independence.
  4. Power to create and therefore destroy or restrict lower federal courts. Now, however, lower federal courts are such a key part of our structure that may be unconstitutional.
  5. Changing the number of justices

  1. Congress

  1. Express:  Statutes must be rationally related to express power; or necessary and proper to effectuate the power

  1. Federal property:  Virtually unlimited power.

  1. Taxing and Spending

  1. Tax anything that it has the power to regulate, or which has some reasonable relationship to revenue production.
  2. Spend to provide for defense and welfare (any public purpose, limited by bill of rights).

  1. If Congress has the power to directly regulate the activity or conduct, a spending program conditioned upon certain state action is valid as a necessary and proper exercise and through the Commerce Clause.

  1. Congress may not take away funds if states refuse to stop an act.
  2. But they may offer funds if the states stop an act.
  3. Conditions must bear some realationship to purpose of federal spending.

  1. Treaty & War power

  1. Only Congress can declare war.
  2. Continues after the war to remedy evils created by the war
  3. Treaty may not be unconstitutional

  1. 10th Amendment: States have no claim if subject matter is only transitorily within the state and the treaty is the only way to deal with the subject matter.

  1. Commerce

  1. Federalist separation of powers concept.
  2. Federal regulation of Interstate Commerce

  1. Most likely valid, unless clear limitation elsewhere in Constitution
  2. Regulation of foreign commerce is exclusively a federal power.
  3. Scope

  1. Channels or facilities:  Broad power over health, safety, welfare, morals.  National economic effect

  1. Congress has the power to regulate all activity that directly or indirectly substantially affects or is connected to interstate commerce (Lopez).

  1. Does not include costs to society, national productivity, activities such as merely possession of a gun.
  2. Court has said that discrimination affects interstate commerce by restricting and/or discouraging interstate travel by blacks.

  1. Potentially limitless power

  1. Only activities that are completely internal to a single state or so remotely or trivially affect other states that to uphold congressional regulations would obliterate our concept of federalism (difficult to imagine).
  2. Also limited by individual rights (Bill of Rights).

  1. Factors

  1. Is the activity commercial?
  2. Is the statute regulating an area traditionally subject to state regulation?
  3. Has Congress made findings with respect to the impact of the regulated activity on the national economy?  Findings highly regarded.
Approach:  Prohibit or regulate. 10th Amendment / Enlistment of States to implement

  1. Tenth amendment reserves non-enumerated powers to the states and the people. Does not give people powers they did not previously have.
  2. Federal government can not enlist states or state employees in order to implement federal programs (Printz).
  3. Congress can regulate interstate commerce directly, but cannot mandate state legislation, and states cannot consent to such legislation (Guaranty Clause). Congress can preempt state laws.
State regulation of Interstate Commerce (Dormant Commerce Clause) permissible under police power of state so long as no constitutional violation.

  1. Where Congress has acted (expressly, implidely, or by preemption), federal supercedes conflicting state laws.

  1. Preemption determined by

  1. Interest in uniform regulation
  2. Historically federal matter
  3. Extent of federal regulation
  4. Similarity between federal and state regulations

  1. Where Congress has not acted: Substantial and cognizable burden on interstate commerce is prohibited.

  1. Discriminatory burden against interstate commerce is presumed unconstitutional unless strict scrutiny test is met.

  1. Exceptions

  1. Congressional consent
  2. State is a market participant
  3. Regulation of alcoholic beverage conditions
  4. Matters of local concern that can never be fully dealt with by congress (Cooley).

  1. Nondiscriminatory burden presumed constitutional unless burden substantially outweighs need (health, safety, welfare, or valid state interest) - balancing test.
  2. Taxes

  1. Compensating use tax: Usually valid. Happens when there is a local sales tax, and the state decides to tax imports, to level the playing field.
  2. Taxes may not affect activity addressed by federal preemptive legislation, discriminate against interstate commerce, or unduly burden interstate commerce.
  3. Commerce clause prevents taxes from imposing multiple burdens on interstate commerce.
  4. Commerce clause prevents sales tax of goods bought outside the state, unless seller has substantial contacts with consumer state.  State can't tax out of state purchase.
  5. Due Process Clause restricts taxes to those states with whom the commerce has necessary minimum contacts.
  6. Use taxes such as highway and airport fees are ok if evenly applied to everyone.

  1. Subject having imperative need for national uniformity can't be burdened.

  1. Privileges & Immunities Clause: If statute denies out-of-state citizen a livlihood or civil liberties (discriminatory), law is invalid unless state has substantial justification (solve substantial problem caused by nonresidents, or means substantially related to the end) and no less restrictive means. Only a US citizen can sue.
  2. Federal government has exclusive power to regulate foreign commerce.
Implied

  1. Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the government.
  2. Investigatory power
Amendment enforcing

  1. 13, 14, 15th Amendments
  2. Remedial and preventive only, not plenary

  1. Power is to enforce, not determine what constitutes a violation.
  2. Corrective legislation only
  3. Must be necessary and proper for counteracting unconstitutional state laws.
  4. Means and ends must be proportional
Inherent (via sovereignty)

  1. Foreign affairs:  Federal government has exclusive power over foreign affairs.
  2. Territory administration
Delegation

  1. Congress can delegate its power to executive or judicial branch as long as intelligible standards are set and the power is not uniquely confied to Congress.

  1. Retaining control

  1. Congress can restrict removal of executive officers, but can only remove them itself by impeachment.
  2. Congress cannot impose a "one-house legislative veto" on the acts of the administrative agencies due to bicameral design and presentation requirement. "Two-house veto" is ok though. Acts by one house of congress are only allowed for impeachment, impeachment convictions, presidential appointments and ratification of treaties.
  3. Oversight hearings
  4. Appropriations rider (restriction on spending money)
  5. Time limits
  6. Agencies cannot interpret the laws � Congress can control the agencies only by creating new laws.

  1. Unfunded Mandates: Forcing the states to do something without providing funds. Legal up to $50 million per year.

  1. Largest problem with delegation is separation of powers. President is in charge of executing the laws, not an administrative body of Congress.
Appointment

  1. Principal officers must be appointed by president with the advice and consent of the senate.
  2. Inferior (determined by tenure, jurisdiction, policy making authority):  Congress cannot appoint but can vest appointment power in the president, other executive officers or the judiciary (Independent Counsel)
Limitations

  1. Guaranty Clause: National government pledges to maintain autonomous governments in each state.
  2. Tenth Amendment (see Commerce Clause)
  3. Separation of powers
  4. Bicameralism & presentment requirements:  Legislative action by congress altering person's legal rights must be passed by both housesna dpresented to President for veto.
Presidential Powers

  1. Source of power

  1. Congressional statute (express or implied)
  2. Event makes it imperative for President to act
  3. Constitutional authority

  1. Specific powers

  1. Execute laws: At the discretion of the President.
  2. Veto legislation

  1. Line item veto unconstitutional as lawmaking and encroachment on congress� power, as opposed to discretionary execution. Original intent was for entire bill to be signed or vetoed.

  1. Congress should not be allowed to change the constitutional requirement of a supermajority for overriding a veto, which they did by only requiring a simple majority for overriding a line item veto. OTOH, maybe each branch should be left alone to be flexible.

  1. Commander in Chief

  1. Congress has primary responsibility of supplying the armed forces. Therefore Presidential seizure of private industry is not allowed.
  2. War Powers Act

  1. President can use armed forces

  1. When Congress declares war;
  2. With specific statutory authorization; or
  3. To defend against attack.

  1. Consultation and reporting with Congress

  1. President should consult Congress before and while using armed forces
  2. Unless war is declared, President must submit a report within 48 hours of use
  3. Within 60 days after the 48 hour report, President must terminate use, unless Congress has

  1. Declared war
  2. Granted a 60 day extension
  3. Emergency 30 day extension

  1. Congress can order withdrawal of troops via joint resolution at any time, unless there is a declaration of war.

  1. Exclusive representative of nation in foreign affairs. Does not require authorization (joint resolution) to act with regard to foreign affairs.

  1. Checks & Balances

  1. US v. Nixon

  1. Separate powers were not intended to operate with absolute independence.
  2. President is not immune from judicial process � not limited to impeachment.

  1. But Nixon v. Fitzgerald held that because of the prominance of the President�s office, civil suits against the President should be restricted, and the safeguards of impeachment, the press, the prestige and historical stature will provide enough checks.

  1. Confidential communications between President and advisors (executive privilege) does not absolutely prevail over a subpoena unless national security concern, even then probably in camera.

  1. Clinton v. Jones

  1. Immunity for official acts only, to discourage fear of civil liability for work.
  2. Separation of Powers: Judiciarty cannot perform an executive function, but can decide a case and controversy, so long as it does not hamper the performance of the executive�s official duties.
  3. Frivilous litigation: Stay can be implemented to promote public welfare or convenience. Must be weighed against p �s interest in disposition of claim. Frivilous cases can be terminated on summary judgment, and sanctions are a deterrant.

  1. Impeachment

  1. "Treason, Bribery, or other high Crimes and Misdemeanors." US Const. Art II, �4.

  1. Impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history. Conviction results from whatever offense 2/3 of the Senate (supermajority) considers to be sufficiently serious to require removal of the acused from office. (Ford).

  1. Nixon

  1. Obstruction of justice.
  2. Violation of constitutional rights of citizens and impairing the administration of justice.
  3. Failing without lawful cause to produce papers and things as directed by a subpoena.

  1. Andrew Johnson is the only President to be impeached, and he escaped conviction by one vote.
  2. Clinton

  1. Limitations by Congress� use of Art. I legislative power.

  1. Independent counsel, authorized by the Ethics in Government Act

  1. Info to Atty Gen (Congress asks AG)
  2. Initial investigation by AG
  3. AG refers to Special Division of court, which investigates
  4. If sufficient grounds, Special Division appoints Independent Counsel, and defines the jurisdiction (scope) of the IC�s investigation.

  1. Jurisdiction can be expanded by AG petition.
  2. Appointments Clause of the Constitution: Congress can delegate appointment of "inferior officers" to the judiciary. Principal officers must be appointed by President, confirmed by senate.

  1. Independent counsel investigates and can prosecute the executive
  2. Independent counsel can be removed by AG for good cause.
Separation of Powers

  1. When an act of one branch impairs the constitutional functions assigned to another branch, or performs the duties of another branch.
  2. One branch cannot expand itself at the expense of another.
  3. Formal: Spheres of government must be distinct
  4. Functional (modern): Allows some overlap to deal with changing situations.  Undue burden balances need against disruption.
  5. SC has never required the three branches to operate with absolute independence.
  6. Cross-branch appointments are OK for inferior officers.
Personal rights

  1. Regulation affects everyone (substantive due process, federal found in 5th, state found in 14th)

  1. No fundamental rights involved:  Rational Basis test
  2. Fundamental rights involved:  Strict Scrutiny test

  1. Regulation affects certain classes of people (equal protection), 14th limits state, 5th limits federal but only in extreme cases.

  1. Law must discriminate on its face, in application, or in motive.  Effect not enough.
  2. Suspect class (race, national origin, alienage) or fundamental right:  Strict Scrutiny test.
  3. Quasi-suspect class (gender, legitimacy):  Intermediate Scrutiny test
  4. No suspect or quasi-suspect class, no fundamental right involved:  Rational Basis test

  1. Privileges or Immunities Clause

  1. 14�1: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

  1. Designed to protect rights given by some federal law against infringement by states.  
  2. Very limited to fundamental rights.

  1. AIV�2: "The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States."
  2. Prohibits discrimination of essential activities and basic rights by a state against a nonresident, unless strict scrutiny test passed.

  1. Procedural Due Process

  1. "No State shall deprive any person of life, liberty or property without due process of law."

  1. Democracy vs. power of the Supreme Court:  Protect minorities from tyrrany of majority
  2. Shields private fundamental rights from exercise of arbitrary government power.

  1. Selective incorporation

  1. Hearing before an unbiased decisionmaker is required for deprivation of life, liberty or property by the government.

  1. Property can include legitimate claim of entitlement, such as welfare and education.
  2. Legislature can decide whether there is "property," but once it is created, only a hearing can take it away. That is the distinction between rescinding a benefit already created, and refusing to grant a benefit in the first place.

  1. Hearing serves to provide more accurate facts, and to recognize and promote the dignity of those whose interests are at stake by allowing participation in the process.
  2. Prior notice can substitute for hearing depending on importance of private interest, value of procedural safeguards, and government interest in efficiency.
  3. Subject to voluntary and knowing waiver.

  1. Privacy

  1. Not explicitly created in Constitution, but found in penumbras of the 1st, 3rd, 4th, 5th, 9th and 14th amendments (Grizwold).
  2. Coverage

  1. Yes:  Childbirth, abortion, marriage, raising children, educating children, family cohabitation companionship

  1. Contraception (marital and single), because it relates to family planning and procreation.
  2. Refusing unwanted medical treatment:  Established from common law battery and informed consent. State can require clear and convincing evidence of patient�s wishes to be taken off life support. State can decide that decision of close family members is not enough. Finds that "life" is more than just vital signs, and includes some quality of life.

  1. Maybe:  Consensual heterosexual sodomy, disclosure of information on perscription drug use

  1. Controlling imminent death:  Privacy increases as one nears the end of one's life.

  1. Due Process: autonomy.  Strongest argument
  2. Equal Protection:  If the machines can be turned off, the non-machined people can get help in dying.

  1. No:  Personal appearance (police, students), membership in large unselective groups?, close family refusal of life support for incapacitated adult, Doctor assisted suicide

  1. Consensual homosexual sodomy, because not related to family, marriage or procreation.   Laws can be based on morality (religion). Due process won�t work. Equal protection will protect from laws which prohibit anti-discrimination statutes.  Not protected just because it's in the home.

  1. Not absolute. State must meet strict scrutiny test for fundamental rights, rational basis test for other rights. Requires that liberty interest be both fundamental and an interest traditionally protected by our society.  Factors include location (home/sidewalk), person (abortion), relationship (marriage).
  2. Abortion (14th)

  1. Fundamental privacy because it relates to family planning and procreation.
  2. If a fetus is a person, then 14th amendment requires due process of law to deprive it of life.
  3. Row v. Wade:  14th and 9th

  1. First trimester: Totally up to woman and doctor.
  2. After first trimester, before viability: State can regulate in ways related to maternal health, safety and welfare (strict scrutiny).
  3. Post-viability: State can regulate and prohibit abortion except for preserving life/health of mother (rational basis).

  1. Webster and Casey: Throws out trimester system, says before viability it�s woman�s choice subject to state�s heath and safety regulations, after viability it�s state�s choice to regulate.
  2. OK: Parental notification, waiting periods, informed consent, prohibiting federal funding, tests to determine viability, providing information about abortion and alternatives. Reason: They encourage woman to make informed choice.
  3. Not OK: Spousal notification

  1. Test is "undue burden".  State can regulate for health and safety concerns.

  1. There is a difference between state interference with a protected activity and state encouragement of alternative activity.
  2. Government can prohibit public employees from performing abortions in public hospitals, because government has no obligation to operate hospitals.

  1. Standards of review

  1. Rational Basis / Means-Ends test

  1. Ends must bear a rational relation to a legitimate government interest.
  2. Means must not be arbitrary: Any rational basis that the means can achieve the end.
  3. Cost/benefit: Whether the achieved ends outweighs the cost imposed.
  4. Very difficult to overturn a law on rational basis

  1. Deference to legislative judgment.

  1. Overinclusion: OK to encompass more people than strictly necessary to accomplish goals so long as group is not a suspect class. If too many people are overincluded, then the law is irrational, and arbitrary.
  2. Underinclusion: Rule does not apply to everyone who is similar. This alone is not enough to violate the test, unless the reason for the underinclusion is irrational. EP does not require that all evils of the same genus be eradicated, or none at all.
  3. Laws which circumscribe a class of persons characterized by an unpopular trait or affiliation, without a rational relation to a legitimate government interest, are prohibited.

  1. Irrational prejudice.

  1. Differences between individuals must be relevant to the purpose of the rule.
  2. Non-suspect class

  1. Age
  2. Sexuality: Laws which withdraw from gays, but no others, the protection from discrimination are illegal. No rational relation to legitimate government interest, other than a desire to harm. Denial of the ability for a specific group to seek aid from the government is a literal denial of equal protection. (Romer)

  1. Intermediate Scrutiny

  1. Gender, illegitimacy
  2. Burden on government to show substantial justification for important state interest.
  3. Statute assumed constitutional

  1. Strict Scrutiny

  1. Suspect classification based on discrimination

  1. Immutable characteristics
  2. Long history of discrimination and/or oppression
  3. Long history of negative stereotype
  4. Politically powerless

  1. Also applies to infringements on fundamental rights
  2. Government has the burden to show compelling justification for differential treatment.
  3. Differential treatment must be the only way to accomplish the goal, substantially effective, and must be the least intrusive, most narrowly drawn law.

  1. Other factors at play: Interpretive dangers of creating new rights; overturning precedent.
Exam notes

  1. Does the court have jurisdiction?
  2. Is the claim justiciable?
  3. Was the harm caused by government action?

Exam Review

  1. Powers of the national government

  1. Judicial

  1. Judicial review: Congress cannot expand original jurisdiction of USSC. Judiciary has the sole power to interpret the law.
  2. Congressional control over the federal courts
  3. Judiciability

  1. Case or controversy must fall within judicial power.
  2. Ripeness and mootness
  3. Standing

  1. Injury
  2. Causation
  3. Redressability
  4. Not a generalized grievance

  1. Political question: Based on separation of powers.

  1. Legislative

  1. Enumerated powers

  1. Necessary & proper
  2. Commerce clause
  3. Treaty power
  4. War power
  5. Taxing power
  6. Spending power: Conditional spending permitted for general welfare.
  7. Power to enforce (not interpret) the 14th, 15th & 16th amendments to prevent or remedy injury.

  1. Limits on congress� power

  1. Federalism
  2. Political processes

  1. Delegation to executive branch

  1. No legislative veto can be retained
  2. Bicameralism and presentment clauses required for lawmaking (altering legal duties and rights of persons).
  3. No line item veto because essentially lawmaking. Congress cannot delegate that power to Executive.

  1. Federal limits on state legislative power (other than individual rights)

  1. State�s police power for health, safety, welfare, benefit.
  2. Limited by dormant commerce clause

  1. Facially discriminatory laws require strict scrutiny
  2. Discriminatory in effect laws require rational basis
  3. Neutral laws require balancing test
  4. Exception: Market participant

  1. Express or implied preemption or inconsistencies; Federal law wins.
  2. Conditional spending
  3. Article 4 Privileges and Immunities requires states to meet strict scrutiny for different treatment.
  4. Equal protection: Rational basis test must be met.

  1. Executive

  1. Powers limited to execution of laws, cannot make new laws without express or implied authority from Congress.
  2. Judicial procedures: President not immune from civil suits.
  3. Executive orders

  1. Individual Rights

  1. 14th Amendment applies many of the first 10 to the states
  2. Equal protection
  3. Due process

  1. Procedural: Removal of a government benefit requires notice or hearing.
  2. Substantive

  1. Economic: State can�t interfere with liberty, including freedom of K, employment, labor.
  2. Family, education, children, reproduction, abortion, medical care, suicide.  Not sexuality.
 

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