Con Law Exam
Last Modified: 2011-05-03
o Five major doctrines:
§ Prohibition against advisory opinions
§ Political question doctrine
(P) must allege that s/he has suffered or imminently will suffer injury and
(P) must allege that the injury is fairly traceable to (D)'s conduct
(P) must allege that a favorable federal court decision is likely to redress the injury
A party may assert only his or her own rights and cannot raise claims of a third party
A (P) may not sue as a tax payer who shares a grievance in common with all other tax payers
1. Wrongs capable of repetition but evade review (e.g. Roe v. Wade)
2. Voluntary cessation
3. Class action suits
-President ordered national control of steel mills
-Held: Pres. cannot do this without direction of Congress or under express authority of the Constitution (i.e. President cannot create laws)
-Emergency does not create powers for the PRes. (J. Douglas)
-Explicit Authority from Congress (highest power)
-Zone of Twilight (no precedent - middle power)
-Congress forbade (lowest power -- if Congress is acting unconst. then burden of Pres. to prove)
-found unconstitutional under INS v. Chadha
-provision allowing Congress to invalidate an action of an agecy with less than a bicameral vote
-Pres. has absolute immunity for all official actions while in office (Nixon v. Fitzgerald)
-No immunity for acts that occur before a Pres. takes office (Clinton v. Jones)
-Nazi agents come to US in submarine
--Lawful for Pres. to set up military tribunal for unlawful enemy combatants
-Unlawful enemy combatants are NOT entitled to 5th and 6th amendment rights;
-Congress had given jurisdiction to military commissions for offenses against the law of war
-Enemy combatant was an AMCIT
-Procedural due process still applies since citizen even though held outside US
-Entitled to const. protection
-gives supremacy to fed. gov't
-constitution is the supreme law
-cannot tax the fed. gov't b/c the power to tax is the power to destroy
Does congress have the authority under the Constitution to legislate on this subject?
If so, does the law violate another constitutional provision or doctrine, such as infringing upon the separation of powers or by interfering with individual liberties?
-Congress places tax on surplus crops
-Held: the regulation of Agriculature is, absent a nexus with interstate commerce, delgated to the states and not Congress
-US gov't withheld funding from SD b/c drinking age in state was under 21yrs
-Held: Withholding a small amount of funds is not coercive and is a proper exercise of tax and spend power (caveat: conditions must be explicitly stated when the gov't puts strings on funding)
a. Facially discriminatory: explicit distinction in language of the statute between in-staters and out of staters
i. Substantial state interest?
ii. No reasonable alternative?
a. Facially neutral:
i. Discriminatory purpose or effect?
1. If yes then must ask whether the law imposes a burden clearly excessive in relation to local benefits (undue burden test); same analysis as facially disc.
-NJ prohibits the importation of waste that originated outside the state
-Law discriminatory on its face
-Violates CC b/c PROTECTIONIST MEASURES ARE NOT CONSTITUTIONAL(undue burden on out-of-state commerce)
-Ordinance requiring all waste brought into town to be processes at municipal plant for a fee
-Undue burden -- BURDEN ON INTERSTATE COMMERCE IS CLEARLY EXCESSIVE IN RELATION TO THE PUTATIVE LOCAL BENEFITS
-"Flow control" ordinance requiring locally produced garbage to be deliveres to local publicly-owned facilities
-Does NOT violate the CC; Ct. makes distinction b/w publicly-owned and private actors; not protectionist but a public int. chosen by ppl
-statute prohibiting the sale of minnows outside the state that were procured from in- state waters
-serves a legitimate purpose but not done so by the least discriminatory means possible
-NC enacted statute requiring only US grades on outside of shipping boxes; WA state used their own superior method of grading
-Facially neutral but both discr. purpose (eliminating grading so NC app. not inferior to WA app) & discr. effect (cost)
-law prohibiting producers of petro from operating retail gas stations in MD
- DOES NOT violate CC b/c law is not targeting a particular st. but effects are felt by certain retailers
-CC protects the interstate market, not particular interstate firms
-Congressional Approval : Congress authorizes states to regulate certain areas
-Market Participation Exception: A state may favor its own citizens in receving benefits from gov't. programs or in dealing with gov't. owned business
-SD built and operated a cement plant which sold to both in-staters and out-of-staters; later gave perference to in-staters
-States that are market participants in the buying and selling of goods are not bound by the CC
-As a condition of buying Alaskan timber from the state, buyer must have it processed in state
-Alaska exceeded market participant exception and became a regulator of the downstream market
Has the st. discr. against out-of-st. w/ regard to P&I that it accords its own citizens? (affect a fund. or econ. right?)
If there is discr., is there sufficient justification for the disc.? (subst. st. interest and least restrictive alt.)
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