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Federal judicial power of Article III courts extends to
1. Interpretation of the Constitution, federal laws, treaties, and maritime laws
2. Disputes between states, states and foreign citizens, and citizens of diverse citizenship
Judicial Review
Under the Supremacy Clause, the Supreme Court may review state acts.

Under judicial review, the Supreme Court may review the constitutionality of acts of other branches of the federal government (legislative and executive)
Original Jurisdiction and Appellate Jurisdiction of the Supreme Court
Original jurisdiction: Cases affecting ambassadors and where the state is a party

Appellate jurisdiction: Writ of certiorari, appeals from three-judge federal district court that grant or deny injunctive relief
Writ of certiorari
1. Cases from state court where
a. The constitutionality of a federal statute, state statute, or federal treaty are at issue
b. A state statute allegedly violates federal law

2. All cases from federal courts of appeals
Justiciability of case
A case must satisfy the case or controversy requirement.

1. No advisory opinion
2. Must be ripe
3. Must not be moot
4. Party must have standing
5. No more adequate court
6. No political question
7. Not a claim against state government by a private party
Injury - direct and personal injury that need not be economic
Causation - causal connection between the injury and conduct complained of
Redressability - a decision must be capable of alleviating grievance
Advisory Opinion
There must be specific present harm or threat of future specific harm. Courts will hear a declaratory action if there is an actual dispute between parties.
Political question
Issues that are 1. constitutionally committed to another branch of government or 2. inherently incapable of judicial resolution
Sovereign immunity
The federal courts are barred from hearing private actions against a state

The state may only be sued if it consents
1. May sue local govt
2. US or other states may sue a state
3. Proceedings in bankruptcy court
4. Actions under 14th Amendment

Sovereign immunity does not apply to officers of the state in the following circumstances:
1. Injunctive actions
2. Monetary relief
Enumerated and implied powers and the Necessary and Proper Clause
Congress can exercise those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government

Necessary and proper
Congress has the power to make all laws necessary and proper (appropriate) for executing any power granted to any branch of the federal government

Note: Necessary and Proper Clause must be used along with another federal power, such as the power to tax
Legislative powers
1. Taxing power
2. Spending power
3. Commerce power
4. War power
5. Investigatory power
6. Property power
7. Bankruptcy power
8. Postal power
9. Power over citizenship
10. Admiralty power
11. Power to coin money
12. Patent/copyright power

EXCEPT: DC, federal lands, Native American lands, military bases
Taxing and spending powers
Taxing power: Power to tax will be upheld if it bears a reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed

Spending power: Congress may spend to provide for the common defense and general welfare. Spending may be for any public purpose.
Commerce power
Congress has the exclusive power to regulate all foreign and interstate commerce. Jurisdiction:
1. Regulate the channels of interstate commerce  (rivers, highways)
2. Regulate the instrumentalities, persons and things (cars, trains, employees engaging in interstate activity)
3. Regulate activities that have a substantial effect on interstate commerce (economic or commercial intrastate activity that in the aggregate effects the nation)
-Example: marijuana
War power
Congress has the power to declare war, raise and support armies, and provide for the navy

1. Economic regulation during and after wartime to provide for necessary resources to the army have been upheld
2. Military courts and tribunals - Congress is authorized to make rules for the regulation of the armed forces
-Regular federal and state courts have no power to review court martial proceedings
-Enemy combatants may be tried by military courts
-Congress has no power to deny habeas corpus review to enemy combatants
-American citizens (not soldiers) may be tried by military courts only under martial law
-American citizen enemy combatants must have a meaningful opportunity to contest the factual basis for his detention before a neutral decisionmaker
Power over citizenship
Congress may establish naturalization rules and has plenary power over aliens.

Aliens have no right to enter the US and can be refused. Resident aliens have a right to notice and hearing before deportation.

Congress has exclusive power over naturalization.

Congress may not take away citizenship of any citizen without consent.
Delegation of legislative power
The legislature may delegate to the executive or judicial branch any legislative power not strictly confined to Congress (such as power of war and impeachment) so long as standards are set.
Executive domestic powers
1. Appointment and removal
2. Pardons
3. Veto
Appointment and removal by executive branch
The President appoints with the advice and consent of Senate all
1. Ambassadors
2. Public ministers and consuls
3. Justices
4. Executive officers

The Senate does not consent to the appointment of inferior officers

-The President may remove high level executive officers at will without Congressional interference (cabinet members)
-All other executive appointees may only be removed for good cause
-Congress may only remove executive officers through impeachment

The President may grant pardons for all federal offenses EXCEPT
1. Impeachment
2. Civil contempt
Veto power
Congress may override the veto by 2/3 of each house

Pocket veto: The President has 10 days to exercise the veto power. If he does not when Congress is in session, the bill becomes law. If Congress is not in session, the bill is automatically vetoed.

Line item vetoes are unconstitutional
Executive actions and executive orders
Their power is uncertain. Best rules:
1. If the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions are likely valid
2. If the President acts where Congress is silent, his actions will be upheld unless they usurp the power of another branch or prevents another branch from carrying out its tasks
3. If the President acts against the express will of Congress, he has little authority, and the executive action is likely invalid.
Presidential war power
The President has no power to declare war.

The President may act militarily in actual hostilities against the US without a congressional declaration of war.

Congress, under its power to enact a military appropriation every 2 years, may limit the President.
Executive branch and foreign relations
The President has paramount power to represent the US in day-to-day foreign relations
Executive treaty power
The President may enter into treaties with the consent of two thirds of the Senate

State laws that conflict with a treaty are invalid.

Where federal law and a treaty conflict, the most recent prevails

Where the treaty conflicts with the Constitution, it is unconstitutional
Executive agreements
Agreements between the President and the head of a foreign country that do not require consent of the Senate.

If a state law conflicts, the agreement prevails

If a federal law conflicts, the federal law prevails
Executive privilege and executive immunity
The President has the privilege to keep certain communications secret. National secrets are given great deference by the courts.
-Exception: In criminal proceedings, presidential communications will be available to the prosecution where a need is demonstrated

Executive Immunity: The President has absolute immunity from civil damages based on any action within his official responsibilities while President.
Applies to:
Vice President
All civil officers

High crimes

Majority vote in the House to invoke the charges and a 2/3 vote in the Senate to convict and remove from office
Exclusive state powers
All powers not delegated to the government are reserved to the states.

Some powers are expressly limited to federal government: treaty power, coinage of money

Some powers are inherently federal: Declaration of war, federal citizenship
Supremacy Clause
A federal law may supersede or preempt local laws.

1. Conflict between federal and state laws: State law invalidated
2. State prevents achievement of federal objective: State law invalidated.
3. Federal law expressly or impliedly occupies the field, even if state law not conflicting, state law invalidated
Full faith and credit clause
If a judgment is entitled to full faith and credit, it must be recognized in sister states
1. The court rendering the judgment had jurisdiction
2. The judgment was on the merits
3. The judgment is final
Federal taxation or regulation of state and local government
1. Congress may regulate or tax if the law or tax applies to BOTH public and private sector

2. Congress may regulate or tax solely the public sector within reason limited by the 10th Amendment
-Exception: Civil rights and conditions placed on grants through spending power

NOTE: A state may not directly tax federal instrumentalities without Congressional consent UNLESS it is nondiscriminatory, indirect taxation (ex: state income tax of federal employees). States may not regulate the federal government.
Privileges and Immunities Clause
Prevents discrimination by a state against nonresidents.
-Corporations and aliens not protected
-Only fundamental rights (important commercial activities and civil liberties) are protected
-State law may still be valid if there is substantial justification for discrimination between residents and nonresidents
-State must show that there is no less restrictive means to solve problem
-Under 14th Amendment, states may not deny their citizens the privileges of immunities of national citizenship (ex: voting for federal officers; right to interstate travel)
Regulation of foreign commerce
Lies exclusively with Congress
State regulation of interstate commerce
Conflicting state laws are superseded and nonconflicting state and local laws in the same field are preempted. If Congress has not enacted laws on the subject, a state may regulate local aspects of interstate commerce so long as it does not discriminate against or unduly burden interstate commerce.

State or local regs that discriminate against interstate commerce to protect local economic interests are almost always invalid.
Exception: Important, non-economic state interest and no reasonable nondiscriminatory alternatives
Exception: A state may prefer its own residents when participating in the market (ex: giving subsidies, hiring labor)

If a nondiscriminatory state law (one that treats local and out of state interests alike) burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest

Taxation: Congress has the power to authorize or forbid state taxation that affects interstate commerce

Discriminatory taxes (tax out of state business more) violate the Commerce Clause, and may also violate the privileges and immunities clause and the equal protection clause

Nondiscriminatory taxes will be valid IF
1. Substantial nexus of activity within state
2. Fair apportionment: Rational
3. Fair relationship to the benefits provided to the state
Bill of Rights
The first 10 Amendments. Limits federal power. Applies to the states through the 14th Amendment Due Process Clause.
Exceptions where does not apply to states:
1. 5th Amendment grand jury
2. 7th Amendment civil jury trial
13th, 14th, and 15th Amendments
13th: Prohibits slavery and involuntary servitude. Congress can prohibit racially discriminatory action by anyone (govt or private citizen) through Enabling Clause.

14th: Prevents state from depriving any person of life, liberty, or property without due process and equal protection of law

15th: Prevents federal and state govt from denying a citizen the right to vote because of race

Note: Congress may also prohibit private racial discrimination in activities that have a substantial effect on interstate commerce
State action
To show that the state is involved in the alleged Constitutional violation, P must show
1. Private individual performs exclusive public function OR
2. Has significant state involvement
(exists where state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens)
Contracts Clause
Prohibits states from enacting law that retroactively impairs contract rights
-Not applicable to federal government (but note that flagrant contractual impairment would violate 5th Amendment Due Process Clause)
-Intermediate scrutiny applies: State law that substantially impairs an existing private contract is invalid unless it serves an important and legitimate public interest and is reasonably and narrowly tailored
Ex Post Facto Laws
The state or federal government may not pass an ex post factor law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity

Such as
1. Makes criminal an act that was innocent when done
2. Prescribes greater punishment than was prescribed when it was done
3. Reduces the evidence necessary to convict
Bill of attainder
Legislative acts that inflict punishment on individuals without a judicial trial. Prohibited for both federal and state govt
Procedural due process
A fair process (notice and hearing) is required for a government agency to take a person's life, liberty, or property. Only intentional deprivation of rights violates Due Process.

1. Has a life, liberty, or property right been taken?
Liberty: loss of significant freedom of action or loss of freedom provided by Constitution or statute
Property: Belongings and realty, or a legitimate claim or entitlement to a benefit under state or federal law
-Attendance at school, welfare benefits, govt employment in some cases

Type of process required based on balancing test:
1. The importance of the interest to the individual AND
2. The value of specific procedural safeguards to that interest AGAINST
3. The government interest in fiscal and administrative efficiency

Due Process can be waived voluntarily and knowingly
Access to Courts
Fees must be waived when imposition of a fee would deny a fundamental right to the indigent
Marriage license or divorce filing fee
Filing fee for political candidacy

Fees can still be imposed for nonfundamental rights
Bankruptcy discharge fee or review of welfare determination
Taking Clause
5th Amendment (fed) and 14th Amendment (states): Private property may not be taken for public use without just compensation

If the govt action is rationally related to a legitimate public purpose, public use is satisfied

Use may be deprived in two ways:
1. Actual appropriation
2. Denial of ALL economic value of land
-Regs that decrease the value of land do not amount to a taking if they leave an economically viable use for the property

Remedy: Just compensation
-If reg amounts to a taking, the govt must
1. Pay the property owner fair market value OR
2. Cancel the reg and pay for temporary taking
Relationship between substantive due process and equal protection
Due process: If a law limits liberty to ALL persons to engage in some activity, it is usually a due process question

Equal protection: If a law treats a person or class of persons differently from others, it is usually an equal protection problem
Strict scrutiny
Regulations affecting fundamental rights:
Interstate travel
1st Amendment

OR Suspect classifications
National origin

The law must be necessary to achieve a compelling government purpose

Will be invalidated if there is a less burdensome alternative to achieve the goal

The government has the burden of proof
Intermediate scrutiny
Regulations affecting quasi-suspect classifications

The law is upheld if it is substantially related to an important government purpose

The burden of proof is on the govt
Rational basis
Regulations that do not affect fundamental rights or involve quasi-suspect classes

The law is upheld if it is rationally related to a legitimate government purpose.

The law is usually valid unless arbitrary or irrational.

The person challenging the law has the burden to prove it is not rational
Equal Protection
1. If a fundamental right or suspect classification is involved, use strict scrutiny
2. If a quasi-suspect classification is involved, use intermediate scrutiny
3. All other cases get rational basis

Must show intent of the government to discriminate
-Discriminatory law on its face
-Discriminatory application of a facially neutral law
-Discriminatory motive behind the law
Substantive Due Process
When a fundamental right is limited, the law or action is evaluated under strict scrutiny.

In all other cases, use rational basis.
Race and National Origin
School integration: Only intentional segregation violates the Constitution. If school systems are established in a racially neutral manner, there is no violation. There is no violation if housing patterns result in racial imbalance.

Affirmative Action: Govt action that favors racial minorities are subject to the same strict scrutiny as actions against minorities. Affirmative action must be narrowly tailored to the interest of remedying past discrimination.
-Schools may consider race as one of many factors
-Race can be one of many factors in redistricting voting districts

State/local laws on aliens are suspect classifications and subject to strict scrutiny (but not federal laws)
-Unconstitutional to require citizenship for welfare, most civil service jobs, or to become a lawyer
-Undocumented aliens are not a suspect class and receive rational basis standard

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