Constitutional Law Bar Exam - Bar Exam Outlines

Constitutional Law

FEDERAL POWERS

JUDICIAL POWER

• Overview

  • Source: Article III

  • Limit: Actual Cases & Controversies

  • Doctrine: Justiciability, whether lawsuit is capable of judicial resolution as a case or controversy, depends on

    • WHAT is requests (no advisory opinions)

    • WHEN it is brought (ripe & not moot), and

    • WHO brings it (standing) (HEAVILY TESTED)

  • Additional doctrines limit federal court review

    • Political question, sovereign immunity, abstention.

    • Special rules govern Supreme Court Review

• Advisory Opinions

  • RULE: Federal courts may not render advisory opinions, which LACK

    • An actual dispute between adverse parties

    • Any legally binding effect on the parties

• Ripeness & Mootness

  • Ripeness (too early)

    • Rule: federal courts may only decide controversies that are ripe for judicial review

  • Application:

    • Pre-enforcement review of laws are not ripe, UNLESS

      • Substantial hardship in absence of review (more the better)

      • AND

      • Issues in the record are fit for review (more legal than factual the better)

• Mootness (too late)

  • Rule: federal courts may only decide LIVE controversies, ie., plaintiff suffers ongoing injury

  • Application: LIVE IF

    • For injunction or declaratory relief challenged law or conduct continues to injure

    • For damages, plaintiff not made whole from injury

  • Exceptions: though injury has passed, not moot if

    • Injury is capable of repetition but yet evades review because of the inherently limited duration

    • Defendant voluntarily ceases the challenged activity, but may restart at will, or

    • In class actions, ONE plaintiff suffers ongoing injury

• Standing

  • Rule: Plaintiff must have standing to sue, which consists of

    • Injury

    • Causation

    • Redressibility

  • Injury

    • What: almost ANY harm counts

      • Examples: physical, economic, environmental, loss of constitutional or statutory rights

      • NOT: ideological objections or generalized grievances as citizen or taxpayer

        • Examples:

          • Citizen may not sue to force government to obey laws

          • Taxpayer may not sue over how government spends tax revenues

        • Exceptions:

          • Taxpayer challenge to HIS TAX LIABILITY

          • Congressional Spending in violation of Establishment Clause

            • Not executive spending

              • Congress gives general appropriations

            • Not tax credits for contributions to private tuition

    • When: Injury must have occurred or will imminently or soon occur

      • Injunctive or declaratory relief:

        • Must show a likelihood of future harm

• Who: injury must be personally suffered by plaintiff rather than those not before court

  • No 3rd party standing generally

  • Exceptions

    • Close Relationship:

      • Plaintiff injured, 3P unable or unlikely to sue, P can adequately rep 3P

    • Organizations (obo members):

      • Members have standing, members' injury related to purpose of organization, members' participation not requires (not seeking individualized damages)

    • Free Speech Overbreadth (party who's speech can be censored obo those whose speech cannot)

      • SUBSTANTIAL overbreadth in terms of law's legitimate to illegitimate sweep, NOT COMMERCIAL speech

• Legislative Standing:

  • Legislators may challenge acts that injure them personally, rather than the legislature as a whole

• Causation & Redressability

  • Causation:

    • Plaintiff must show that injury is fairly traceable to defendant

• Redressability:

  • Plaintiff must show that favorable court decision can remedy the harm

    • Through money damages or injunction

• Political Question Doctrine

  • Rule: federal courts will NOT decide political questions, ie. questions:

    • Committed by the constitution to the political branches or government, or

    • Incapable of or inappropriate for, judicial resolution

  • Examples

    • Guarantee Clause

    • Foreign Affairs

    • Impeachment Process

    • Partisan Jerrymandering

    • Election & Qualifications

    • Seating of Delegates

• Sovereign Immunity (Eleventh Amendment/Federalism)

• Abstention

  • Federal courts may decline to decide a federal constitutional claim that turns on an unsettled question of state law

    • Ex. EQ claim that depends on meaning of ambiguous new state immigration law

• Federal courts generally may not enjoin pending state court or administrative proceedings

  • Ex. Criminal trial allegedly in violation of Due Process

• Supreme Court Review

  • Final Judgment Rule:

    • Supreme Court only hears a case after there has been a final judgment by the highest state court capable of rending a decision, a federal court of appeals, or (in special statutory situations) a three-district court

• Independent & Adequate State Grounds

  • Supreme Court will not review a federal question if the state court decision rests on an independent & adequate state law ground

    • Independent= separate

    • Adequate= wholly capable

  • Exists if outcome would be the same regardless of how the federal question is decided

LEGISLATIVE POWER

• Overview

  • Source: Article I

  • Limit: Enumerated Powers

    • Unlike states, Congress has no general police power to pass laws

      • Exception: federal land, indian reservations, D.C.

  • Necessary & Proper Clause

    • NOT a basis of legislative power, unless coupled w/ another power

    • Allows Congress to choose ANY RATIONAL means to carry out an enumerated power, as long as not prohibited by Constitution

    • Example: Article 1 gives Congress power to raise & support armies, but not to hold a bake sale.

      • Nonetheless, Congress may choose the means of a bake sale to help raise & support armies.

• Enumerated Powers

  • Examples: citizenship, bankruptcy, federal property, patents & copyrights, post offices, coining money, territories & D.C>, declaring war, raising & supporting armies, providing and maintaining navy

  • Taxing & Spending Powers

    • Rule:

      • Congress may tax and spend to provide for the general welfare

        • Includes ANY public purpose not prohibited by constitution, even if not w/in an enumerated power

        • Ex. Tax on factor carbon emissions (even though no enumerated power to regulate environment)

        • Spending on schools for states following federal educational standards (though no enumerated power to regulate local education)

          • NOTE: "strings" must RELATE to PURPOSE on spending & not violate constitution

  • Commerce Power

    • Rule: Congress may regulate commerce with

      • Foreign nations

      • Indian Tribes

      • AMONG the states

    • Interstate Commerce

      • Broadest & most common basis for regulation

• Exception:

  • Non-economic activity in area traditionally regulated by states

    • Possession of gun w/in 1000 ft. of school (wholly non-economic)

    • Criminal ban on domestic violence of women (wholly non-economic)

• Delegation of Power

  • To Agencies: may broadly delegate legislative power as long as some INTELLIGIBLE principle guides exercise of delegated power

    • To EPA to regulate air pollutants that "endanger public health or welfare

  • To President: no line item veto

    • Rational: violates bicameralism (passage by both chambers) and presentment (giving bill in entirety to President to sign or veto)

  • To Congress: no legislative veto to void duly enacted laws w/o bicameralism & presentment

    • Ex. Law providing one chamber of Congress may overturn agency regulation (cant do this)

• Speech & Debate Clause

  • RULE: members of Congress enjoy immunity from civil and criminal liability for LEGISLATIVE ACTS

    • Examples: speeches on floor, voting, committee reports

    • NOT: bribing, speeches and publications outside of Congress

EXECUTIVE POWER

• Domestic Powers

  • Enforcement

    • President has power (and duty) to EXECUTE laws.

      • But cant be sued for failure to do this

• Appointment & Removal

  • Appointment

    • Ambassadors, Federal Judges, Officers of US (cabinet secretaries)

      • President appoints

      • Senate gives advice and consent by majority vote

    • Inferior Officers

      • Congress may vest appointment power in President, department heads, or judiciary

        • Ex. Undersecretary of state, assistant attorney general, independent counsel

    • Congress may not appoint Executive Branch Officials

• Removal

  • President may remove high-level executive officers (cabinet secretaries) AT WILL

  • Congress may limit presidential removal of other executive officials to GOOD CAUSE

  • Congress may not remove executive officials except through impeachment process

• Pardon

  • President may pardon anyone accused or convicted of a federal crime

    • Exception: No power to pardon crimes underlying Impeachment by HOR

    • Note: doesn’t cover civil liability

• Foreign Powers

  • War

    • Congress alone has power to declare war

    • President as...