Judicial Review: Marbury v. Madison: Gives judiciary the ultimate power to interpret the Constitution. Martin v.

Hunters Lessee: USSC can review state rulings that are adverse to a federal right or claim. Justiciability: -No advisory opinions by the federal courts -Political Question: Should be decided by Executive or Legislative branch and not the judicial branch. Test: 1. "Textually demonstrable constitutional commitment of the issue to a coordinate political department;" a an example of this, Brennan cited\ issues of foreign affairs and executive war powers, arguing that cases involving such matte would be "political questions" 2. "A lack of judicially discoverable and manageable standards fore solving it;" 3. "The Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;" 4. "The Impossibility of a court's undertaking independent resolution withoutexpressing lack of the respect due coordinate branches of government;" 5. "An Unusual need for unquestioning adherence to a political decision already made;" 6. "The Potentiality of embarrassment from multifarious pronouncements by various departments on one question." I. Legislative Powers - Commerce Clause (strong gov arg) (direct regulation on the states) - Congress has the power to regulate (1) the uses of channels of interstate commerce; (2) instrumentalities of interstate commerce, including persons and things moving in interstate commerce, and (3) anything that substantially affects interstate commerce, either by itself or in the aggregate. (sub effects prong is commonly tested) - Wickard personal wheat production; aggregation principle (gov arg) - Lopez possessing a gun in a school zone; need of a commercial nexus, needs to be economic activity as buying and selling are (if gov could reg just b/c some part moved in intersate commerce there would be nothing that the gov couldnt reg, a nat police power), also jurisdictional nexus explicit lang in act that the activity regulated interferes with goods in interstate commerce; also regulates something that is traditionally in state police power and cong shouldnt reg if no connection to commerce ( arg) - Raich upheld regulation of intrastate medical marijuana b/c it is a commodity that can b bought or sold (hence, commodity) ( arg), allowing specific forms of prohibited items would under mine reg scheme. (gov arg) - Morrison violence against women eoon/nonecon ( arg) or direct/indirect chain of causation, not to many inferences, direct (gov arg) - Jones & Laughlin labor relations fall within the commerce power. This overruled the decisions in Carter Coal and Poultry (The early Ne w Deal Cases). - Darby regulations of intrastate wages upheld - Necessary and Proper - The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. - Purely a legislative power. - Anti-Commandeering principle - Congress (fed gov) may not use its commerce power (any power) to take (commandeer) over the legislative processes of the states, nor may it require state officials to take a role in enforcing federal laws; however they may get them to perform minstrel functions. Cong authorization is of no importance. Rationale preserve federalism (state autonomy) and accountability by preventing the federal government from hijacking state or hiding behind it in imposing regulations. - Printz Ct struck down law that let Prez use state law officials to conduct background checks; cant be required to finance and/or admin fed programs; can do ministerial functions but window is small - New York - gov arg can avoid commandeering by offering spending incentives (cond spend) or conditional preemption (if you dont reg we will) cant strong arm only persuade - Separation of Powers - Nondelegation doctrine Intelligible principle - A court will not overturn a delegation of power to an administrative agency as long as the Congressional delegation is sufficiently clear to allow the agency and a reviewing court to determine whether the Congressional will is being obeyed. Rationale: Congress may not delegate purely legislative powers/functions (law making) to aggrandize executive branch by conferring these functions. The USSC regulates the manner in which Cong may delegate authority to the agencies of the fed gov (sep o pow policing). - excessively vague and standardless and therefore invalid ( arg) - Youngstown was a regulation over domestic affairs to support foreign war; stuck down

- 14th Amendment Enforcement - Congress has preventative and remedial powers under 5 of the 14 th Amendment, which mean that Cong can legislate to remedy present discrimination and to prevent future discrimination. - Conditional Spending (way to get around commandeering) - Congress has the power to spend for the general welfare, and the USSC has been very deferential to Congresss judgment of what the general welfare means. Only if there is no rational basis for this determination will the court overturn the appropriation. - Can uses this to induce States to regulate themselves, to regulate private actors within their borders, or both. - RULE Cong may place conditions on the States receipt of federal funds so long as five conditions are met: (1) the spending must be for the general welfare (as to which the courts will defer to Congresss judgment), (2) the conditions must be stated clearly in order to give the States a choice of accepting or rejecting them, (3) the conditions must be related to the federal interests in particular programs, (4) the conditions must not require the States to do anything unconstitutional, and (5) the conditions must not be of such magnitude that they are coercive. Dole. - Dole drinking age for 5% highway funds relatedness upheld (more might be ok, coercion?) - Direct Spending Power Cong uses this power to directly fund programs it wants to. There seem to be no federalism limits on direct spending. - Taxing Power

- The taxing power is extremely broad: all that seems to be required is that the tax produce some revenue and not discriminate in ways expressly forbidden by the Constitution. - Impeachment: Article 2, Section 4: Pres and Vice Pres can be impeached by Congress for treason, bribery, and other high crimes and misdemeanors. House impeaches and Senate Convicts. - Legislative Veto NOT ALLOWED - Chada Actions of Congress to which the concurrence of both the House and Senate is necessary must be presented to the Prez for signature (bicam and present) Leg. could overrule Attorney General decisions in alien cases. II. Executive Powers - Separation of Powers Executive Power to Seize - Youngstown / Jackson analysis (3) low end power Prez acts contrary to the will of congress; (2) mid-range power Prez acts where Cong is silent (and therefore acts in complete reliance on own powers); (1) high end power Prez acts with express Cong authorization - Youngstown Domestic seizure with some indication of Cong disapproval unconstitutional. If in emergency or war time or over foreign affairs Prez has more latitude. Pres wanted to stop strike of Steel Mill. - Appointments Clause - Requires that the Prez (not Cong), with advice and consent of the Senate, appoint all superior officers of the US. Inferior____________ - Morrison Defines: Inferior officers are subject to the control of other officers (supervision), or whose duties are limited in time (not life tenure) or in scope. -Art. 2, Sec 2, Clause 2: provides that eht Pres shall nominate and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, and consuls, Judges of the Supreme Court, and all other OFFICERS of the United States. -Congress may vest in the Pres. Alone appointment of inferior officers, judges, and heads of departments. -Inferior officers do not make public policy and carry out orders from superiors. -Removal: Myers v. US: Pres could dismiss Postmaster even though his job was confirmed by the Senate. -Humphreys Executor v. US: Court sustained constitutionality of clause in commissioner of Fed Trade Commision that stated he could only be removed for inefficiency, neglect of duty, or malfeasance in office. The court distinguished this because he was in position for a term and needed to be free of executive control. This position was different from a postmaster or cabinet member. - Sep o Powers - Executive Immunity - The Prez enjoys absolute immunity from civil liability for official acts, even those at the outer perimeter of his authority. Fitzgerald; Clinton. -20th Amendments: Jan 20 is when Pres and Vice Pres term starts. -22nd Amend: Prez serve two terms or no more than 10 years. Veto Power- Article 1 Section 7- Every bill passed by house and senate must be signed by President. No line item veto. -Powers: Police, Foreign Affairs, Pardon, Executive Orders, Commander in Chief. -US v. Nixon: No pres privaledge of immunity for pres in criminal cases. -Nixon v. Fitzgerald: Pres has absolute immunity from decisions/actions in official capacity. -Clinton: Not same protection for actions prior to becoming pres. 25th amendment: Succession of president in case of death or disability.

III. Judicial Powers - Congressional Court Creation - Congress has control over the subject-matter jurisdiction of the lower federal courts. Article III vests the judicial power of the US in the USSC an such other courts as Congress shall from time to time establish. The Congressional power to establish the lower courts carries with it the power to control their subject-matter jurisdiction.

- Supremacy Clause - State judges are bound by the constitution and laws of the US, and thus this case could be brought in state court pursuant to the general subjectmatter jurisdiction of the state courts. Such a matter would fall under the original jurisdiction of the USSC (ambassadors, ministers and counsels, state a party Hunters Lessee)(did Cong preclude federal judicial oversight?) Standing - Art III standing requires, at a minimum, (1) a concrete, personal injury, either imminent or actual, (2) a causal relationship between the defendants actions and the injury, and (3) the availability of some judicial remedy to redress the injury. Rationale the court only want to decide if the the parties have fully developed the issues, monir inconveniences or no stakes make for tame verdicts. - Lujan Cong can create standing but cant circumvent the constitutional standing requirements of Art III. - Organizational Standing Org will have standing if: (1) each member whose interests are represented would have Art III standing to sue, (2) the claim or interest asserted is germane to the organizations purpose, and (3) neither the claim nor the relief requested would require the members individual participation in the suit. -Taxpayer Standing: Taxpayers typically do not have standing unless spending violates a Constitutional protectionsFlast rules on this because federal financial aid was given to a Christian school. Must be ripe and not a moot issue.

IV. State Powers - Dormant Commerce Clause (DO BOTH) - The dormant commerce clause is triggered if: (1) the state has regulated or burdened interstate commerce, (2) the matter regulated lies within the Congressional commerce power, (3) Congress has not consented to the states regulation, and (4) Congress has not preempted the states regulation. - Strict Scrutiny if a reg either facially or effectively discriminates against interstate commerce the law is presumed invalid, then; (1) state has burden of proving that the law is necessary to achieve an important state interest that (2) cannot be achieved in any less discriminatory way. (interests: health and well being, revenue)(Rationale: to prevent economic protectionism, almost always invalid under strict scrutiny) - Pike Balancing if a reg places a neutral burden on interstate commerce (even-handed burden to all) the law is presumed valid, then; (1) the challenger must show that (2) the laws burdens on interstate commerce substantially outweigh (clearly excessive) its (putative) local benefits. should also be able to show there is some less discriminatory means of achieving a states goals. - Champion v. Ames something that moved in interstate commerce - Kassel a plurality; the local benefits were substantial but not protectionist; protectionist benefits are usually given little weight in the balance test. Are the benefits illusory? - New Jersey law differentiates among articles of commerce based on their place of origin (struck down; protectionist, almost never legit) - Hunt v. Wash. Apple act had true purpose of stripping a competitive advantage from an out of state competitor (cant have thin cover of protectionism; illusory), cant level the playing field by disadvantaging a particular out-of-state seller. - Maine v Taylor prtotectionist law passed strict scrutiny b/c of local environmental concerns and evaled less discrim alternatives - 11th Amendment Immunity - The 11th Amendment provides that states are immune from suit in federal court unless the state has waived immunity or Congress has expressly abrogated state immunity under its 14th Amendment enforcement powers. - officer-suit fiction allows suit to be brought against a state official if the suit will not result in the payment of damages by the state. (can get damages if consent or abrogation) -Alden and Seminole Tribe reiterate that an individual cannot sue a state. -State Taxation- Muccullough v. Maryland: States cannot issue a tax of notes issued by a Federal Bank of the United States. -Police Power: May be used to promote the public welfare. Substantive Due Process: Takings: