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MBE: Con Law | 1

Notes/Hypos

11th Amendment

Limitations on jurisdiction of
federal courts

Prohibits private parties from suing states for $


damages in any court.
Exceptions:
1. fed suits brought by one state against
another
2. cases brought by fed govt. against a state
3. political subdivisions
4. injunctions
5. states consent (clear & unambiguous)
6. Congress can use its enforcement power
under 13th, 14th, and 15th Amend. to abrogate
state sovereignty

1.
2.
3.
4.
5.
6.

Case or controversy
Standing
Ripeness
Mootness
Political question
Abstention (refusal to hear) undecided state
law issues
7. Adequate and independent state grounds
(apply only to S.Ct.)
CRAMPS

Foreign affairs frequently tested


political question topic (in general,
court doesnt get involved in foreign
affairs)

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Standing

Specialized problems of Standing

1. injury in fact
a. P must show direct & personal injury,
actual (past) or imminent (future),
caused by the govt. action
2. causation
3. redressability
a. P must show that the relief sought will
redress the injury

3d parties do not have standing, except when:


1. there is a special reln betn litigant & 3d p.
such that 3d ps interests are well
represented by the litigant
2. 3d party is unable/has difficulty to bring suit
on his own behalf
3. ASSOCIATIONAL STANDING where an
organization has standing to assert claims of
its members with no injury to itself, if:
a. members would have standing
individually;
b. interest asserted is imp. to assoc.s
purpose; and
c. neither claim nor relief requires
participation by individual members

Eg. if the govt. destroys Joes house


to build a highway, Neighborhood
cannot bring suit on his behalf for $
damages because Joe has to be a
party that lawsuit. But if the house
hasnt been destroyed yet, then
Neighborhood Association can bring
suit to enjoin.

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Case has resolved itself no continuing live


controversy.
Mootness

Exception:
** capable of repetition but evading review ** the
facts of the case can recur but because of the
nature of the facts, it is very difficult for the courts
to hear the case.

Art. III Sec. 2, S.Ct. has:


Original jurisdiction in:
1. cases involving ambassadors, other public
ministers, and consuls
2. cases involving states as parties
Jurisdiction of the S.Ct.

Appellate jurisdiction:
1. where the constitution or federal law are at
issue
Congress has the power to do what it wants to
lower federal courts because it created them
except add to or restrict a courts original
jurisdiction.

Eg., if there is a restriction on a


pregnant womans right to seek an
abortion but there is no way the case
can be decided while she is still
pregnant the court will ever get to
hear it (abortion); but it is capable of
repetition (can get pregnant again)

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1.
2.
3.
4.
5.
Powers of the Congress
6.
7.
8.

For a
1.
2.

9. Power of eminent
domain
10.
Admiralty
Legislative power
and maritime
Commerce power
power
Taxing power
11.
Bankruptcy
Spending power
power
War & defense
12.
Postal power
power
13.
Copyright/Pa
Immigration &
tent power
naturalization
14.
Speech/deba
Investigatory
te clause
power
15.
Civil War
Property power
amendments
16.
Delegation
of power
fed law to be constitutional:
Congress must have the power to pass the
law, and
It must not violate a constitutional right

For a state law to be constitutional:


1. It must not violate a constitutional right.
Legislative power

Three sources of Congresss power to legislate:


1. Enumerated powers taxing & spending;
regulate commerce; declaring war; raising &
supporting armies
2. Enabling Clauses of the 13th, 14th, 15th
give Congress the power to enforce these
amendments
3. Necessary & Proper clause gives
Congress implied power to make laws that
are n&p to carry out its ordinary powers

Congress has the powers given to it


by the Constitution and no others.
Congress has no power to promote
general welfare or police powers
unless it is D.C. or some other fed
territory:
1. Military
2. Indian lands/territories
3. Fed lands (national parks)
4. Dist. of Columbia
MILD

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Commerce power

Congress can regulate:


1. Channels of inter-state commerce (highways,
waterways, air traffic, maybe internet)
2. Things that run on inter-state channels
(boats, trains, trucks, airplanes)
3. Activities that affect inter-state commerce:
a. Substantial effect any economic
activity, whether intra-state or interstate, can be regulated by Congress if it
has a substantial effect in the interstate economy
b. Cumulative effect activities that
have a tiny effect in the inter-state
commerce by themselves but when
added have a big effect
Limitations:
1. Cannot regulate purely intra-state noneconomic activity
Exception: comprehensive scheme where
Congress has regulatory authority to regulate an
entire area (eg, drugs), then it has authority to
regulate any piece under that umbrella (eg,
home grown weed)
2. Cannot overcome state sovereign immunity

Eg, possession of a handgun or a


violent crime is not an economic
activity but loansharking is an
economic activity

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Taxing power

A congressional act purporting to be a tax is


upheld as valid exercise of Congresss taxing power
if:
1. It raises revenue; or
2. It was intended to raise revenue; or
3. Congress has power to regulate the activity
(then it also has power to tax it)

Congress can spend money to promote general


welfare.

Spending power

e.g., building highways, or even a single bridge in a


single state promotes transportation;
giving money to political candidates in return for
them abiding by certain expenditure limits
reduces harmful effects of candidates reliance on
large private contributors who may have personal
agendas

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Congress may:
1. Declare war;
2. Raise and support armies;
3. Provide and maintain a navy; and
4. Organize, arm, and call forth a militia
5. Establish military courts to gain jurisdiction
over armed force members
War & defense powers

Broad authority: use any means necessary during


wartime/peacetime for national defense reasons
Wartime:
1. Do anything for national defense
2. Wage, price and rent control for national
security
3. Exclude civilians from restricted areas
1. Broad investigatory powers if Congress has
power to regulate, it has power to investigate
BUT cannot override any persons
constitutional rights

Investigatory, Property, Eminent


Domain powers

2. Congress has power to regulate or dispose of


fed property
a. If fed territory, it has general legislative
powers can pass any law it wants
(MILD police power)
3. Eminent domain power to take private
property for public use for just compensation
via Takings clause.

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Civil War Amendments

No state actor required


13th Amendment bans slavery and involuntary
servitude
State action required
14th Amendment prohibits States from violating
due process, equal protection, and privileges and
immunities
15th Amendment prohibits discrimination by
race in voting rights
To validly enforce, Congress must show:
1. State action (except for 13th);
2. widespread violation; and
3. that the congressional act is proportion and
congruent to those widespread violation

Delegation power

Congress can create agencies and give them some


legislative powers to implement rules and
regulations that enforce a federal law.
Agency regulations in such a case prevails
over state law.
Limitation: cannot give the agencies broad lawmaking powers.

Executive Power

1. As Chief Executive:
a. Enforcement of laws
b. Appointment power high officials like
Ambassadors /cabinet members with
advice and consent of the Senate
c. Removal power
i. Any executive appointee can be
removed w/o cause
ii. Those with fixed terms must be
removed only for cause
iii. Cannot remove judges
(impeachment by Congress)
iv. Congressional approval of
removal
d. Veto power
i. Congress can override with 2/3rd
vote in both houses
ii. Line-item veto is unconstitutional
e. Pardon power only for federal crimes,
not state. Cannot undo impeachments
f. Executive privilege absolute privilege
to refuse to disclose info related to
national security; presumptive privilege
over confidential matters unless
subpoenaed as evidence in criminal
trial (Nixon)

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2. As Commander in
Chief:
a. Military powers
International affairs
(treaties, executive
agreements)

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1. Generally, if Congress is validly acting within its
power, it can block or restrict the President from
acting.

SEPARATION OF POWERS:
Congressional limits on the
Executive

2. Impeachment power Congress can remove


President from office (also fed judges or any fed
official):
a. HOR has the sole power to impeach
b. Senate requires 2/3rd votes only removes
incumbent from office, no criminal penalty
attached
3. Appropriations power Where Congress by
legislative act explicitly directs the President to
spend appropriated money, he/she has no power to
refuse/delay spending the funds.

SEPARATION OF POWERS: Presidential


limits on Congress

Veto every act of Congress must be approved &


signed into law by the President. If disapproved,
Congress can override with 2/3rd votes in both
houses
Pardon power President can pardon anyone
convicted under a law that he/she doesnt like

Things
1.
2.
3.

that can get you impeached:


treason
bribery
high crimes/misdemeanors

Eg., if Congress doesnt want any


Guantanamo prisoners transferred to
the US, it can say no to fed funds
may be used to transport prisoners
to US this will prevent Pres. from
doing otherwise

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SEPARATION OF POWERS: Judicial


limits on Congress & President

Constitutional limits on states


police powers

The only thing a court can do is hold a fed law


unconstitutional but no forceful mechanisms
available to enforce their judgment.

1. States police powers are limited when


exclusive fed power reserves certain
enumerated powers to the fed govt. alone
2. Individual rights restrict both state and fed
govt. from acting in violation of them
3. Under Supremacy clause, if Congress intends
to preempt state law, it can.
Remember, these are all limits placed on states by
the Constitution.

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1. Sovereign immunity Fed govt. cant be sued


w/o its consent
Immunity of Fed govt.

2. Supremacy clause Fed law is superior over


state law
3. Immunity from state taxation if it would
interfere with performance of fed functions

1. 11th Amendment prohibits states from


being sued by private individuals from its
own state and other states
Immunity of State govts.

2. Immunity from fed taxation if the tax is


applied to either (a) unique state sovereign
activities, or (b) essential govt. functions
3. Anti-commandeering doctrine (10th
Amendment) Fed govt. cant force states to
act in their sovereign capacity

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Generally, states cant discriminate against out of
state economic actors.

Authority reserved for the states:


Dormant commerce clause

1. If a state law discriminates on its face, it


must show:
a. the law furthers a compelling interest;
and
b. the law is necessary to meet that
interest.
2. If a law merely incidentally burdens interstate
commerce: it must show:
a. the regulation serves important state
interest; and
b. the burden on interstate commerce is
not excessive with relation to the govt.
interest
3. Exceptions
a. Congress can authorize discrimination
(because it has authority under
commerce clause to regulate interstate
commerce)
b. State as a market participant
Constitutional rights can only be violated when
there is state action (except for 13th amendment)

State action

Exceptions
1. Public function theory where a private
entity is carrying out activities traditionally
performed by the govt.
2. Significant state involvement theory
where a private partys action is closely
encouraged and supported by the state, the
private partys action can be treated as govt.
action for the purpose of state action
doctrine. (entanglement theory)

Market participation examples:


1. NY enacts legislation saying
the police dept. must buy
uniforms from in-state
suppliers this law
discriminates on its face,
however, state is acting as a
market participant the
exception applies.
2. If a state sets up shop and
enters the market place in
cement production (just like
any other private actor), the
exception applies and state
can discriminate in favor of
in-state buyers over out-ofstate buyers.

E.g., private entity carrying out


public function company town
even though privately owned by
company, streets equivalent to city
streets cant ban expression of free
speech (Jehovahs Witnesses)
But this doesnt apply to
privately owned shopping
center

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Any regulation on pre-viability abortion is
unconstitutional if it imposes an undue burden on
womans right to choose an abortion.
Examples of undue burden:
Fundamental rights: Abortion

1.
2.
3.
4.

Total ban on abortion pre-viability


Spousal notification requirement
Spousal consent requirement
Recording names of the patients who seek
abortion
5. State law that requires minors to get parental
consent without judicial bypass

Voting restrictions that are constitutional:


1. Reasonable residency requirement
2. Reasonable voter registration requirement
3. Reasonable regulations as to the time and
manner of voting
4. Denying felons the right to vote
Right to vote
Restrictions that are unconstitutional:
1. Poll tax
2. A requirement that voters in a school board
election own property in the district
3. Requirement using voting standards that lack
uniformity or are vague

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