Supreme Court’s Authority If the facts involve a state-court suit that is heard by the Supreme Court on certiorari, be sure that the state-court decision was based on federal law. Be alert to the possible existence of an independent and adequate state ground. In particular, be alert for fact patterns where a state and federal constitutional provision cover the same territory-the state court might have decided the state issue as solely a matter of state law, in which case there would be no federal issue necessary to the case. If a fact pattern involves an attempt by Congress to limit the power of either the Supreme Court or the lower federal courts, the main things to remember are: -Congress can within limits cut back on the kinds of cases the Supreme Court may hear, but cannot expand the case load beyond the categories set forth as the federal judicial power in the Constitution; and -Congress may cut back, perhaps even completely eliminate, the lower federal courts; as with the Supreme Court, Congress may not expand the lower courts’ dockets beyond the bounds of the constitutional federal judicial power. Federalism & Federal Power Generally Most importantly, any time your fact pattern tells you that Congress (or, for that matter, the Executive or Judicial Branch) is doing something, be sure that the action taken falls within one of the enumerated powers. Remember that there is no general federal police power. Congress has the power to tax and spend for the “general welfare,” but not a general power to legislate for the “general welfare.” Therefore, if your fact pattern indicates that Congress is regulating rather than taxing or spending, it is not enough that Congress is acting for the “general welfare”; it must be regulating pursuant to some other enumerated power, typically the commerce power or the post-Civil War amendments. Once you identify an enumerated power that might be relied upon by Congress, invoke the “Necessary and Proper” Clause. Under this clause, Congress may use any means that is: (1) rationally related to the exercise of the enumerated power; and (2) not specifically forbidden by the Constitution. Whenever you’ve got to decide whether a congressional statute falls within an enumerated power, check the Commerce Clause first. It encompasses a broader variety of congressional action than any other congressional power. Remember that the Court takes a fairly deferential view on the issue of whether a particular action falls within the commerce power. So long as a regulated activity “substantially affects” interstate commerce, the regulation will be found to fall within the commerce power. For instance, even if a particular commercial activity being regulated seems to take place solely intrastate, the Court will usually find that when all similar activities are
considered as a class, they have a cumulative effect on interstate commerce. See Wickard v. Filburn. Also, remember that Congress may ban or regulate interstate transport as a way of dealing w/ local problems. However, look out for congressional regulation of activities that are not really commercial. Here, there’s a much better chance that the Court will find that the activity does not substantially affect interstate commerce. Cite to U.S. v. Lopez in this situation. Examples of attempts to regulate activities that probably don’t substantially affect interstate commerce, so that the regulation is probably invalid: -Congress prescribes the curriculum public schools must use. -Congress makes it a federal crime to commit a gender-based violent crime against a woman. (see U.S. v. Morrison) -Congress bans marriage under the age of 18. -But if there’s a “jurisdictional hook”-like a ban only on those machine guns that passed in interstate commerce- the regulation is probably OK. Be alert for fact patterns where Congress is regulating the states. Such regulation raises a Tenth Amendment issue: So long as Congress has merely passed a generally applicable law, this law can apply to the states just as it does private individuals, and there is no 10th Amendment violation. (Ex: Minimum wage laws may be applied to state workers just as to private workers.) But Congress may not directly compel the states to enact or enforce a federal regulatory program. [New York v U.S.; Printz] When Congress does this, it violates the 10th Amendment. (But Congress may single out the states for regulation when the states are acting as market participant. [Reno v. Condon] Other National Powers Professors sometimes test on the blurry line between taxing and regulation. Your fact pattern might give you a tax that is principally for regulatory purposes. If so, you can rely on the taxation power as an independent source of congressional power (distinct from the Commerce Clause, for instance) – so long as the tax produces at least a nontrivial amount of revenue, and its regulatory scheme seems rationally related to the collection of the tax itself, it’s a valid exercise of the tax power. Occasionally, you will be tested on the procedural requirements for a treaty. Remember that the President may propose a treaty, but it does not become effective until ratified by two-thirds of the Senate. Also, keep in mind that even where the President cannot get a treaty ratified, the President may create an international agreement as an “Executive Agreement.” An Executive Agreement can’t override a prior act of Congress, but is superior to state law.
2 Limits on State Power: Dormant Commerce Clause & Preemption Remember that one main branch of dormant Commerce Clause analysis is the “burden” branch: if a state’s regulations would burden interstate commerce, the regulation will be struck down unless the burdens are outweighed by the state’s interest in enforcing its regulation. Thus you must use a balancing test to evaluate “burden” problems. Also: Look for conflicts between the laws of 2 or more states. The existence of conflicting regulations is likely to be an undue burden on commerce, since a business operating in multiple states would find it difficult or impossible to comply with all of the conflicting regulations. Be on the lookout for regulations affecting transportation, especially trucking. These are classic scenarios where the states have differing regulations & commerce is directly affected b/c goods have to pass from state to state. Remember that you must do a “burden” analysis even where the state seems totally even-handed, and is not showing any protectionism. A common instance of state regulations that are even-handed but nonetheless unduly burdensome are health and safety regulations. If the state (or local government) insists on performing its own inspection of goods that are imported from elsewhere, this is likely to be an undue burden on commerce even if the state is truly pursuing health & safety rather than protectionism. Remember that the other main branch of dormant Commerce Clause analysis is the “protectionist” branch-if the state is intentionally discriminating against out-of-staters, in order to promote its residents’ own economic interests, this is not a legitimate state objective, so the regulation will almost automatically violate the Commerce Clause. Here are some ways to spot protectionism: Look for rules restricting the export of “good stuff” produced inside the state. This is especially likely where natural resources are the “good stuff” (e.g. a rule saying, “No more than x% of coal mined form the state may be exported.”) Look for rules barring the import of “bad stuff” (e.g., “No out-of-state garbage or toxic waste may be buried in our state”). Look for rules whose effect is to limit imports of “good stuff” because the state is trying to boost demand for in-state-produced good stuff (e.g., “Coal-fired utilities located in this state must buy at least 10& of their coal from in-state mines”). Remember that the dormant Commerce Clause does not apply at all where the state is a market participant. Therefore, be on the lookout for instances where the state is operating a factory, purchasing goods, or otherwise directly engaging in commercial
transactions for its own account (as opposed to regulating the commercial transactions done by private parties). Don’t forget that local ordinances, not just state rules, can violate the dormant Commerce Clause. This is true even where the ordinance discriminates against in-staters as well as out-of-staters. Remember that taxes can be a violation of the dormant Commerce Clause (DCC) just as readily as regulations can be. We have the same 2 branches of analysis for taxes: Thus if the state is discriminating against interstate commerce by taxing it less favorably than in-staters, this will be a DCC violation. Alternatively, a tax scheme will violate the DCC if the scheme unfairly burdens commerce even though it doesn’t discriminate against out-of-staters on its face. Once common type of illustration: the state puts a flat tax on some activity, regardless of its degree of connection with the state. (Example: The state puts a flat annual tax on all trucks entering the state even occasionally, which has the effect of taxing out-of-state trucks much more heavily per mile than in-state trucks.) In considering the burden, consider whatever the fact pattern tells you about the tax policies of other states- inconsistencies can make the whole scheme burdensome even though each state’s scheme is not burdensome when viewed in isolation. Separately, be on the lookout for congressional pre-emption problems. Remember that this is an aspect of the Supremacy Clause; if Congress has acted in a particular respect or occupied a particular domain, the states are often precluded from regulating. Be on the lookout for a fact pattern telling you that there are federal and state statutes dealing with the same subject area. This is a clue to a pre-emption problems. Where the fact pattern gives you federal and state laws that are in the same subject area, check first for a direct conflict. If a person or business could not simultaneously obey both the state & federal regulation, then obviously the state regulation must fall. Most fact patterns are not of this “direct conflict” type, however. More commonly, you’ll see a fact pattern where there are federal & state statutes dealing with the same activity, and the state statute is more stringent than the federal statute. Obviously, a person can obey both (simply by obeying the more stringent state statute). Here, ask yourself whether Congress meant to say, “We’re setting a minimum standard, and we’ll let the states be more stringent,” or meant to say instead, “We’re regulating this way, and we don’t want states interfering with our scheme by being more stringent.” Remember that it is always a question of what Congress intended.
Finally, be on the lookout for a federal statutory scheme that seems to deal with an entire broad area. Where Congress has acted in this way, this may represent Congress’ intent to “occupy the whole field,” in which case even a state regulation dealing with an aspect of the problem that is not addressed in the federal regulatory scheme may be pre-empted. Commonly, this happens in fact patterns involving nuclear power and immigration- the existence of a broad federal regulatory scheme in these areas may well prevent the states from enacting even non-conflicting regulations dealing with these subjects. Intergovernmental Immunities & Interstate Relations If your facts show that the federal government is regulating a state, consider whether the state immunity from federal regulation is being violated. Here you should almost always conclude that the state immunity is not being violated. State immunity from federal regulation is exceptionally narrow. Only if a federal regulation prevents a state from exercising its core functions will there be a violation. (If you do find a violation, it is essentially a violation of the Tenth Amendment.) It is a unlikely you will see a fact pattern where the federal regulatory interference with state functioning is so great that this test is satisfied. Separation of Powers Whenever your fact pattern indicates that the President is issuing an “executive order,” consider whether this may amount to the making of law rather than the mere carrying out of law. If so, the President is probably treading on Congress’ domain. (But remember that if Congress acquiesces, even implicitly, to the President’s exercise of power, then the problem disappears. See, e.g., Dames & Moore v. Regan.) Always remember that “legislation” cannot go into effect unless the President has been given the opportunity to veto the bill. Therefore, if your fact pattern has Congress do something by a one-house or concurrent resolution, determine whether what Congress is doing amounts to lawmaking; if so, the action is unlawful. (See, e.g., INS v. Chadha, the “legislative veto” case.) One of the most common separation-of-powers issues involves the President’s power as Commander in Chief to commit the use of American armed forces abroad. The general rule, of course, is that only Congress, not the President, may declare war. However, the President may commit our armed forces even without a declaration of war in order to repel a sudden attack, and probably to defend an ally with whom we have a treaty. But if you conclude that one of these exceptions applies, note in your answer that the President probably has the obligation to consult with Congress after the fact, and to bring our troops back if Congress has not passed a declaration of war within, say, a couple of months. Any time your fact pattern involves the appointment or the firing of a federal official, be alert to possible separation-of-powers problems. The President, not Congress, has the power to appoint federal officers. Federal officers include ambassadors, federal judges, Cabinet members, agency heads, etc.
When the President appoints a “principal” officer of the United States (i.e., a toplevel officer), the appointment does not take effect until the Senate “advises and consents,” i.e., approves. This applies to members of the Cabinet, ambassadors and federal judges. The most frequently-tested area involving appointment of federal officers involves removal of officers once they have been appointed. Congress may not itself ever remove a federal officer, except by impeachment. (Example: If Congress decided that it did not like the Secretary of State, it could not pass a law stripping him of his office, even if Congress were able to override the President’s veto. Impeachment is the only method by which Congress could remove this officer.) Congress may limit the President’s right to remove a federal official, at least a lower-ranking official. Probably Congress may not severely limit the President’s right to fire high-level officers. (Example: Congress probably may not pass a law stating, “The Secretary of State shall serve for at least four years, and may not be removed by the President before expiration of this term.”) Impeachment is occasionally tested. Keep in mind the procedural rules: by majority vote, the House decides whether to “impeach” (which is like an indictment). Then, the Senate conducts a trial, at which a two-thirds vote is necessary for conviction. Your fact pattern may involve the issue of whether the President or another federal official may only be removed for crimes, or may also be removed for noncriminal “abuses of power.” The constitutional phrase is “high crimes and misdemeanors,” but it is not clear what this means. Issues relating to immunity of the various branches are sometimes tested: If a member of Congress is sued (either civilly or criminally), or called before a grand jury, be alert to the possibility that the member may be protected by the “Speech or Debate” Clause, which is basically a form of immunity. There is a common-law immunity for the President and other members of the Executive Branch. Members of the Executive Branch other than the President get only qualified immunity from civil suits. (Focus on whether the right violated by the official was “clearly established” at the time he acted; if it was, he can be liable, if not, he’ll be immune.) Remember that there is no Executive-Branch immunity from criminal prosecutions.
If your fact pattern involves a President or other Executive-Branch member who wants to decline to disclose material, consider the possibility that the doctrine of “executive privilege” may apply. If you discuss the doctrine, remember that the privilege is merely a qualified one, which can be outweighed by other interests (e.g., the need to develop all facts at a criminal trial). Also, mention that claims of executive privilege are justiciable- that is, the Court will typically decide these claims, rather than avoiding them as non-justiciable political questions. Justiciability Justiciability questions are pervasive and often hidden. Typically, your fact pattern will not contain the key words “standing,” “ripe,” “moot,” “abstain,” “political question,” etc.- it will be up to you to sport these issues. Worse, these issues can be hidden in absolutely any type of fact pattern, so you can’t let your guard down for a moment. Here are some specifics to watch for: Here’s a brief checklist of justiciability issues: 1. advisory opinions 2. standing 3. mootness 4. ripeness 5. 11th Amendment’s ban on certain suits against the states 6. abstention; and 7. political questions. The overwhelmingly most important aspect of justiciability on exams is “standing.” For every claim asserted anywhere on your exam, ask yourself, “Has P suffered, or is she about to suffer, a concrete, individualized harm, that would be redressed by a favorable result in the lawsuit?” Unless the answer is “yes,” there’s probably no standing. Here’s a checklist for standing, with the 5 individual elements broken out: P must have suffered an “injury-in-fact,” or be likely to suffer one reasonably soon; P’s harm must be concrete, not abstract; P’s harm must be “individuated,” i.e., not the same as that suffered by every other citizen or taxpayer; The action that P is complaining about must have been the “but for” cause of P’s harm; and A favorable decision in the suit must be likely to redress the injury to P. One common fact pattern: P has a contract with the government, and some statute or rule would prevent (or dissuade) the government from honoring the contract. Here, there’s usually standing b/c P is likely to suffer an “injury in fact” from losing the benefit of the contract.
Regardless of whether P has standing on her own, P will not usually be allowed to assert the rights of third persons not then before the court. You can refer to this as the rule against “jus tertii” to sound erudite. There are three important exceptions: In free-expression cases, litigants get to use the First Amendment overbreadth doctrine. This lets P say, in effect. “This statute blocks expressive conduct of mine that may constitutionally be proscribed, but it also could be interpreted to block expressive conduct or speech on the part of others not present, for whom it would violate their free speech rights.” The litigant can assert the third party’s rights if these rights would be impaired, and it’s legally or practically difficult for the third party to be present in the suit. (Example: Vendors are often permitted to assert the rights of their customers, who would each individually have too little at stake to sue.) Associations get to assert their members’ rights, as noted above. You can spot a mootness problem by the fact that P “doesn’t really seem to have a problem anymore.” (Example: P has been kept out of a public university by an allegedly discriminatory policy; if the university then allows P to enroll, the case has become moot.) Before you conclude that P doesn’t really have a problem anymore, look for “collateral consequences.” Most common: the litigant (he can either be P or D) has been convicted, then paroled or discharged-there will still be collateral consequences to him from having a conviction on the books (e.g., job or voting problems), so the case is not moot. Look for issues that are “capable of repetition, yet evading review.” This happens where P is one of a series of similarly-situated people, each of whom would face the same problem that would always turn out to be moot. Classic illustration: P is a pregnant woman seeking to overturn restrictions on abortion; she’s no longer pregnant by the time the suit gets heard, but all other pregnant women similarly situated would have the same problem, so a court will hear the case now. Another illustration: a political group is prevented from doing something until “after the election”; the election is now over, but other political groups, or this very group, would be likely to face the same mootness problem in a future context.