Con Law

The Supreme Court refused to hear constitutional challenges to the Vietnam War because

the Court considered it to be a political question.

Supreme Court cases involving interpretation of the Constitution are binding on the states because

the Supremacy Clause makes the Constitution the Supreme Law of the Land.

The powers of states to enact laws is found in

the Tenth Amendment.

Which of the following is not a criteria considered by the Supreme Court when it evaluates the constitutionality of a state tax affecting interstate commerce?

the amount of the tax

Inherent presidential powers

Inherent presidential powers

Explain the difference between a direct appeal and a petition for writ of certiorari.

A direct appeal requires an appellate court to review a matter as part of due process. - A party can file a direct appeal from a trial court and the appeal is one of "right" that must be heard by an appellate court. - Such cases include reviews from decisions of the federal court of appeals (the appeal of right court for direct appeals) A writ of certiorari is a discretionary review (the appellate court may say "no" to reviewing the case). - Appellate review is generally obtained by the Supreme Court's granting a writ of certiorari. - Such cases include reviews from decisions of the federal court of appeals and reviews from state supreme courts or the supreme court of Puerto Rico where there is a federal question.

The Supreme Court has exclusive original jurisdiction in which of the following?

Both cases involving ambassadors, public ministers, and consuls and cases between two states

Discuss the checks and balances system and give an example of such for each branch of government.

Checks and Balances refers to the system where each branch can "check" the other and in return the powers are balanced between the branches. For example, if the legislature makes the law the president can veto it. If the president (executive) vetoes the law, then congress can override with a 2/3 vote of majority. If the judicial declares the laws unconstitutional then the legislature can amend or change the law to make it constitutional. The legislature has the power to impeach the president, and must approve the judges selected to by on the judiciary. The president gets to nominate the members of the judiciary.

Those who supported the Constitution were known as

Federalists

Field preemption

In the event that there is no present express preemption clause in a federal law, the Court will consider whether Congress intended to usurp total control over the subject matter of the law. - If it did, the federal law implicitly preempts any state law (field preemption). - When considering if field preemption applies, the key factor is the intent of Congress in passing the federal law.

The power or authority that a court has to hear a case is known as

Jurisdiction

What impact does the necessary and proper clause, the commerce clause, and the supremacy clause have on the power and size of the Federal government.

Just these three clauses alone give the federal government a great deal of power over the states, specifically the power to regulate commerce within states and internationally, and the power to pass any and all laws deemed necessary and proper to that end. The Supremacy Clause makes these laws control over any contrary state law, thus expanding the power and reach of the Federal Government.

The __________ consisted of several similar cases heard together by the Court that dealt with actions taken by President Lincoln prior to any congressional declaration of war.

Prize Cases

Describe the organization of the U.S. Constitution with specific reference to the articles and what area of the government they control.

There are 3 parts to the U.S. Constitution. The 3 parts are the Preamble, the seven articles, and the Amendments. The seven articles control different parts of the government. Article I controls the Legislative Branch of government, Article II controls the Executive Branch, and Article III controls the Judicial branch. Articles IV-VII control the states, amendments, Debts, and ratifications respectively.

What criteria does the Court use to determine if a state law violates the Dormant Commerce Clause?

There are two ways that a state may violate the dormant commerce clause.: 1. If a state passes a law that is an "undue burden" on interstate commerce 2. or that "discriminates" against interstate commerce, it will be struck down.

Which of the following is not a requirement for those seeking office in the U.S. House of Representatives?

They must be born in the United States.

Which of the following is NOT within the subject matter jurisdiction of the federal courts, as expressed in the Constitution?

cases arising under state laws

Under the U.S. system of government, the judiciary has the power

to interpret laws

Which area is not an enumerated power of Congress contained in Article I

to regulate intoxicating drugs

One common criterion used by the Court to decide if conflict preemption exists is

whether compliance with both federal and state regulations is a physical impossibility.

What is the Dormant Commerce Clause and how does it limit the right of states to enact laws?

• The Dormant Commerce Clause is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the US Constitution. - The doctrine prohibits states from passing legislation that discriminates against or excessively burdens interstate commerce. It applies and exists without specific action on the part of Congress - it is an underlying concept that can be raised against any state law that impacts interstate commerce.

Compare the Supreme Court's original jurisdiction with the Supreme Court's appellate jurisdiction.

- The supreme courts original jurisdiction is the right to provide a remedy to the winning party and they have the power to use writs to command appearance and production of evidence. The court has the power to hear the trial and look, review, and accept evidence. They are in effect a trial court. - The appellate jurisdiction is the power to affirm, reverse, or demand lower court decisions. They review the trial through hearing an appeal and the look for errors in the trial from the records kept by the lower court, they do not take new evidence or hear witnesses.

Set forth at least four (4) specific areas of authority granted to the President by Article II.

1) Power to grant pardons 2) To make treaties with other nations (if 2/3 of senate concurs) 3) Power to fill up vacancies during the recess of the senate. 4) commander in chief of the armed forces. 5) power to veto laws

What specific provisions of the Constitution limit the powers of the state to enact laws or impose taxes? Give at least two examples of specific prohibitions contained in the Constitution.

1. A bill of attainder is a law that punishes a specific individual or individuals for some act, - it is a legislative determination that an individual has done something that he or should be punished, - deny accused the right to trial. 2. And an ex post facto imposes criminal punishment for an act that was not a crime at the time the act occurred OR a law that increases the punishment for a crime, - operates to eliminate the obligation of one of the parties to the contract resulting in a deprivation of some property interest to the other party. Both are prohibited by the Constitution.

Explain the two methods for removal of the President from office (one is contained in an Amendment!).

1. Article II, Section 4 of the Constitution sets forth that the President may be removed from office through impeachment on the grounds of violating the Constitution. -The impeachment may be based on conviction of "treason, bribery, or other high crimes and misdemeanors." Congress is granted the authority to impeach and remove the President. - The first step is impeachment by the U.S. House of Representatives. -After the House has impeached or accused the official of some offense, a trial on the accusations takes place in the U.S. Senate. The president is not removed from office unless two-thirds of all senators present vote to convict. 2. The 25th Amendment was added to also cover the scenarios of removing and replacing a president in the event of succession, disability, or death. - Section 3 of the 25th Amendment sets forth the President's ability to allow the President to inform Congress that the Vice President may act as President in the event he/she could not continue the role. - To cover the scenario of if the President was incapacitated to the point he or she could not inform the Congress of his/her inability continue serving, Section 4 of the 25th Amendment allows the Cabinet (and VP) to come to a joint decision that "the President is unable to discharge the powers and duties of his office," and should therefore be removed. The President is allowed to protest the decision but Congress must ultimately decide if the Cabinet's decision should permit the removal of the President.

The War Powers Resolution

All of the Above: limits the power of the president as commander in chief to use military force. requires the president to report to Congress within forty-eight hours of using force unless the president consulted with Congress prior to the use of force. gives Congress the right to order the removal of armed forces from hostile situations.

The president has the power to appoint

All of the above: all U.S. Supreme Court justices. all federal courts of appeals justices. all federal district court justices.

In general, a state law is found unconstitutional

All of the above: if a federal law preempts the state law. if a state law or tax violates the commerce clause, even though there is no federal law on the subject (dormant commerce clause). if the state law violates some other provision of the Constitution.

Which of the following principles form the basis for the Declaration of Independence?

All of the above: - Governments are formed to secure rights such as life, liberty, and the pursuit of happiness. - Governments derive their power from the people who are governed. - The abuse of power by a government justifies changing the government.

Which of the following are specifically listed powers of Congress in Article I

All of the above: - To borrow money - establish roads - copyright laws

Diversity of citizenship

All of the above: - constitutes a basis for federal court jurisdiction under the Constitution. - refers to controversies between citizens of a state and citizens of a foreign country. - refers to controversies between citizens of different states.

The legislature has the power

All of the above: - to approve presidential appointments, cabinet members, and ambassadors. - to impeach the president, vice president, and other national officers. - to make laws.

Legislative powers are found in which Article of the Constitution?

Article 1

The most specific powers of the president are found in which Article of the Constitution?

Article II

express preemption

Express preemption: - A type of federal preemption that covers the principle that a state law is unconstitutional because a federal law expressly preempts it. - Express preemption occurs when a federal law indicates the intent of Congress to expressly supersede federal statutes and regulations over state law. -An express preemption clause in a federal law can be modified by a saving clause. The Court still considers if a state law is preempted even when it found no express preemption.

The concept that citizens of the United States would be subject to two governments, state and national is known as

Federalism

What does it mean to say that the U.S. system of government is based on the concept of federalism?

Federalism is a system where power of government is divided between two levels. The U.S. government is divided between the federal and state. All states have the power to make their own laws as long as they don't interfere with the national laws. Every part of the government has their own separate powers which is an idea of federalism.

Conflict Preemption

If both the federal and state governments enact regulations that are conflicting laws of one another, the Supremacy Clause of the Constitution controls. - This means the federal law preempts the state law. Although the supremacy of federal law is unquestioned, courts must still determine if a conflict exists. The Court uses two common criteria to make this decision: 1) Is compliance with both federal and state regulations a physical impossibility? 2) Does state law stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress?

What does justiciability mean?

Justiciability refers to the types of matters that a court can adjudicate. - If a case is "nonjusticiable" then the court cannot hear it. - Typically, these issues are all up to the discretion of the court which is adjudicating the issue. Put simply is whether a given question is suitable for judicial resolution, in turn this depends on whether the question is one that is capable of being determined through the application of legal standards.

Compare and contrast the concepts of mootness and ripeness and explain their relevance to the constitutional requirement that the courts have jurisdiction only when there is a case or controversy.

Mootness is when a case before the court is resolved too late for court's decision to have an impact - (setting aside a law as unconstitutional today that was just repealed by the legislature last week would be an example). Ripeness is when is a case is too early for a court to decide on - (like objecting to a new criminal law before anyone has been charged with violating it). Ripeness and mootness are relevant because they limit jurisdiction to only when a case is at a certain point. Without it, the courts would be issuing advisory opinions that do not impact the parties before the court.

Define standing and describe two situations under which a plaintiff might have problems with standing.

Standing is an essential element that the court uses when dealing with an injured plaintiff. - The requirement that a party bringing a lawsuit must show that he or she has suffered "injury in fact" is a key requirement of the court's doctrine of standing. - An example would be a plaintiff from Texas suing Colorado over the state refusing to criminalize marijuana - the plaintiff does not live in Colorado and is neither a citizen of Colorado or a representative of Colorado. -A further example would be a challenge over a school prayer by someone who did not have children in the school or a connection to the school.

What is meant by "separation of powers"?

Separation of powers was a part of the compromise the framers of our Constitution created to ensure a national government with limited power. Separation of powers is provided in our Constitution as it created three separate branches of the government with each branch holding different powers and authorities. The three branches include the legislative branch who makes the laws, the executive branch who enforces the laws, and the judicial branch who interprets the laws and applies them to factual disputes. The concept of separation of powers ensures that not one branch of the federal government will have too much power compared to one another.

Set forth at least five (5) enumerated powers granted Congress by the Constitution.

Tax and borrow money duty, impose, excise, direct tax and capitation tax but must be uniform throughout the U.S and direct taxes must be imposed according to state population power to spend for the "general welfare" To regulate immigration To coin money and punish counterfeiting To declare war To make all laws for the nation's capital raise and support an army and navy,

The organizational plan for the national government is found in which part of the Constitution?

The Articles (2nd part of Const. and 7 articles)

Describe the types of cases within the subject matter jurisdiction of federal courts.

The Constitution (Article III) grants federal courts the subject matter jurisdiction to hear only certain kinds of cases. These cases include: - cases arising under the Constitution o cases arising under federal laws and treaties o cases affecting ambassadors, public ministers, and consuls o cases involving admiralty and maritime law o controversies to which the United States is a party o controversies between two or more states o controversies between citizens of different states (diversity of citizenship) o controversies between a state or citizens and foreign states, citizens, or subjects (also diversity of citizenship) and o controversies between citizens of the same state claiming lands under grants of different states. - Additionally, federal courts have supplemental jurisdiction, meaning they can hear all claims when a case is brought involving claims based on state law.

List the criteria used by the Court to determine the constitutionality of a tax on an out-of-state business.

The Court set a four part test for testing state taxes under the Commerce Clause: 1. A state must be applied to an activity that has substantial connection with the state; 2. be fairly apportioned to activities in the state, 3. must not discriminate against interstate commerce 4. and be fairly related to services provided by the state.

What relevance does the Declaration of Independence have to the U.S. Constitution?

The Declaration of Independence is relevant to the U.S. Constitution because it included some of the fundamental principles that would later shape it. These principles included that governments are formed to secure rights such as life, liberty, and the pursuit of happiness, Governments derive their power from the people who are governed, and the abuse of power by a government justifies changing the government. They also had a list of abuses that were considered when the constitution was drafted.

What is the importance of the Judiciary Act of 1789?

The Judiciary Act of 1789 established the lower federal courts of the United States (the Constitution only created the Supreme Court). It included two types of inferior courts: district courts and circuit courts that would coexist with the state courts. It established the limits of the jurisdiction of the federal courts and became the model for the Federal Court system still in use today.

Describe the relevance of the Magna Carta and the English Bill of Rights to the U.S. Constitution.

The Magna Carta and the English Bill of Rights were influential documents in the making of the U.S. Constitution. They both focused on limiting authority and responding to the clear abuse of power by the people in charge. Many restrictions on power in the Constitution come from early documents such as the Magna Carta and the English Bill of Rights.

Where in the Constitution is the Necessary and Proper Clause found? What authority stems from this clause?

The Necessary and Proper Clause is found in Article I, Section 8 of the Constitution. This extends the authority of Congress to make all laws that are needed to carry out the authority granted to Congress by the Constitution.

Explain the role and function of the President's cabinet.

The President holds the power to appoint cabinet members to advise and assist with carrying out the executive roles of the government. Cabinet members are granted a powerful role by the 25th Amendment as it allows the members to decide if a President is no longer able to perform the duties and powers of the role and should therefore be removed from office. - The President can protest this decision, but it must ultimately be decided by Congress. Cabinet members include but are not limited to: • Secretary of State who supervises the State Dept. (deals with foreign countries and protection of U.S. citizens abroad) • Secretary of Treasury who is in charge of the financial responsibilities of the governments, collection of taxes and the Secret Service • Attorney General (enforces laws and in charge of the Justice Department)

What is the term limit for a President and where can it be found?

The limit for the terms for the president is two four-year terms, equaling eight years. The two terms do not have to be consecutive, they can be spread apart. This can be found in the 22nd Amendment.

How does the Supremacy Clause of the Constitution affect the relationship between federal and state courts?

The Supremacy Clause is a clause within Article VI of the US Constitution which dictates that federal law is the "supreme law of land." -This means that judges in every state must follow the Constitution, laws, and treaties of the federal government in matters which are directly or indirectly within the government's control. -These clearly imposes limitations on the state government and can affect the relationship between federal and state courts as all state court must adhere to rulings of the Supreme Court.

Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010). Briefly summarize why there was a separation of powers concern and why the Court believed that the doctrine of separation of powers was violated.

The Supreme Court held 5-4 that the two-tiered good cause protection from removal for heads of government agencies (like the SEC) violated separation of powers by denying sufficient authority to the president. It also held that at will removal did not violate the Appointments Clause and that the SEC commissioners constituted the head of the department. The ruling set a limit on the ability of Congress to create agencies insulated from presidential control.

Explain the concept of checks and balances adopted in the Constitution and provide an example covering each branch.

The System of checks and balances in government was developed to ensure that no one branch of the government would become too powerful. That is why they developed the three branches which keep the other branches in check and make sure the power is balanced. For example, the president (executive) serves as a commander in chief for military forces, but congress (legislative) appropriates funds and votes to declare war. The president nominates federal officials, but the senate confirms them. The supreme court and other federal courts (judicial) can declare laws or presidential actions unconstitutional, but the president has the power of appointment. And congress can impeach both members of the executive and judicial branches.

Explain the abstention doctrine.

The abstention doctrine gives U.S. courts the power to refuse to hear a case even if it meets all formal requirements to be heard. The idea that the federal courts will sometimes abstain from exercising jurisdiction over a dispute in deference to the state court system. - It allows the federal court to "force" the parties to resolve the matter in state court rather than federal court. Or, in deference to other branches of the federal government, the court could refuse to hear a case that raises a "political question."

Explain the concept of sovereign immunity. How does this relate to the Eleventh Amendment to the Constitution?

The concept of sovereign immunity is the government cannot be sued with out its consent. 11th Amendment: U.S. courts cannot hear cases and make decisions against a state if it is sued by a citizen who lives in another state or a person who lives in another country. You would have to sue that state in its own state court system.

What is the doctrine of judicial review?

The doctrine of judicial review is the process of executive, legislative and administrative actions of the federal government are subject to review by the judiciary to insure constitutionality. The federal courts therefore have the authority to invalidate laws as well since this essential to judicial review.

Where are the enumerated powers located?

The enumerated powers are located in Article 1 section 8 of the constitution along with the legislative powers.

What are the Articles of Confederation and why were they unsuccessful?

The first attempt to form a true unification of the colonies was the drafting and ratification of the Articles of Confederation (1781). However, there were major problems with the Articles of Confederation as it struggled to balance the power of the government and the states. Per the Articles of Confederation, the new government had no power to impose direct taxes and had no effective way of collecting state taxes. A national government was created but it left most of the governing power to the states. Lastly, a unanimous vote of the states was required for the Articles of Confederation to be amended.

What is the importance of the necessary and proper clause.

The part of the Clause that authorizes Congress to make all Laws which shall be necessary and proper for carrying into execution all other powers they have vested by the Constitution. -This is sometimes called the elastic clause because it is an ENLARGEMENT not a constriction of the powers expressly granted to Congress

The president has the right to veto legislation under which clause of the Constitution?

The president has the right to veto legislation under which clause of the Constitution?

the concept of pre-emption and the interplay with the Supremacy Clause are fundamental to understanding the line between Federal Authority and state authority

When in an area of Federal Authority, it controls under the Supremacy Clause. Individual state action may exists as long as it is not contrary to Federal action -- or it may be an area exclusively Federal (like immigration) where not state action is allowed. For example: - coining money is Federal, no state may issue its own currency as it has been pre-empted. -But, criminalizing drug use is not preempted -- both state and Federla law may exists, but state law does not curtail Federal law. >For recreational marijuan, states are opting out of making it illegal under state law, leaving it still "illgeal" but only violating Federal law. >Since state law enforcement is not enforcing Federal law, and the Federal government has decided not to try and enforce the law in those states, it looks like it is "LEGAL" to use it in Colorado, when it is in fact still ILLEGAL -- it is a violation of Federal law, that is not being enforced, but not a violation of Colorado law.

How does being a market participant affect the right of a state to discriminate against out-of-state businesses? Give at least one example of state acting as a market participant.

When the state acts as a market participant, however, the court would have to direct its order against the state or its officials to negate the discrimination against interstate commerce. For example, when a state is engaging in the buying or selling of goods it may choose to buy from local companies at a higher price than it would pay outside the state or sell to local companies at a lower price than it would otherwise receive.

Could South Carolina pass a law the require all headlights of vehicles driven in South Carolina be yellow tinted, instead of say blinding white or blue? What issue could be raised based upon interstate commerce that would question the validity of such a law?

While on its face this law does not violate interstate commerce, its application would greatly impede and restrict commerce as all large trucks passing goods through SC would have to potentially stop, change headlights, and then move through the state. -This would be compounded if NC decided to use only white lights, requiring the trucks to stop again and change lights again. This would impact interstate commerce and likely be unconstitutional.

Which of the following situations usually involves a political question and will, therefore, generally not be heard by the court?

a controversy regarding whether a treaty was terminated

A clause in a federal law providing that the law "does not exempt any person from any liability under common law" is known as a

a savings clause.

A regulatory agency is

a valid delegation of congressional rule making authoriy to a government agency.

Congressional power to investigate is an example of

a valid necessay and proper function of the enumerated powers of Congress if properly related to the function of Congress.

The Necessary and Proper clause

allows Congress to expand its powers to all things needed to carry out its enumerated powers.

Federal control over immigration is

an area of exclusive authority, so only the Federal government can act to enforce immigation laws as it has preempted state action.

Which of the following would be an example of a necessary and proper function of Congress and not one of the enumerated powers.

creating the Treasury Department and criminalizing counterfiet currency.

The doctrine of sovereign immunity

limits the right of parties to sue the federal or state government.

Under Article 1 §10, entitled "Powers Denied to the States," states are not prohibited from

enacting laws pursuant to a general police power.

Three important concepts upon which the U.S. government was formed are:

federalism, separation of powers, and checks and balances.

The Necessary and Proper Clause

gives the legislature the implied power to enact laws related to its express powers.

The president has the power to pardon individuals who

have committed federal offenses.

Explain the difference between interstate and intrastate commerce.

interstate commerce is referring to things that go beyond state boarders while intrastate stays within the borders of a state. When the nation was founded, most trade was intrastate in nature, now almost all trade is interstate in a nature.

An executive agreement

is an agreement between the president and the head of another nation.

Which of the following powers does the president not have?

power to remove federal judges from office

When an appellate court remands a case, it

reverses the decision and sends it back to the lower court for further proceedings.

The 10th Amendment

serves to limit federal authority and preserve federalism.

The enumerated powers doctrine

serves to try and limit federal authority to those areas specifically listed in the Constiution, creating a "limited" federal government with specific areas of authority and power.

The dormant commerce clause applies to

state laws that impact interstate commerce where no federal law on the subject exists.

Taxpayers often have difficulty pursuing court cases dealing with tax laws because

taxpayers often lack standing.

Preemption as it relates to federal authority is

the idea that certain areas are only matters for the federal government, and states may not be involved.

The key factor in deciding if field preemption applies is

the intent of Congress.

The Rule of Four refers to

the number of justices required to grant a petition for writ of certiorari.