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Constitution for Annotation

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					Art. I, § 2 Gives the House the sole power to impeach.

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Art I, § 3 Gives the Senate the sole power to try impeachments and prescribes that no person can be convicted without the concurrence of 2/3 of the members present. SC has held that challenges to impeachment and removal process pose nonjusticiable political questions.

Art I, §§1&7, Cl.2 Bicameralism

Art I, § 7: Veto Power “Pocket Veto” Pres gets bill, does not sign, congress adjourns within those 10 days or more, the bill does not become law and congress cannot vote on it again.

Art I, § 7, Cl. 2: Presentment Clause: Requires that legislation be presented to the Pres so he may approve or veto.

Art I, § 8: Congress’s express or enumerated powers.

Art I, § 8, Cl. 3: The Commerce Clause It gives Congress the right to regulate interstate and international commerce.

Rationale behind the Commerce Clause: To eliminate trade barriers among the states, so that a truly national economy is maintained. The Commerce Clause acts both as (1) a source of Congressional authority, and (2) As an implicit limitation on state power.

Art I, §8, Cl. 16: Congress’s power to draft people into the armed forces.

Art I, §8, Cl. 18 “Necessary and Proper Clause” Allows Congress to take any legislative action that is rationally related to the carrying out of an objective that falls within an enumerated power. (McCullough v. Maryland) What constitutional provision would justify an act of Congress not explicitly enumerated in the Constitution? Article I, § 8, Clause 18 the Necessary and Proper Clause.

Art. I, §8, Cl. 18 Congress’s Implied Powers under the necessary and proper clause.

Art. I, § 10: Contracts Clause

Public Ks: If the state is trying to escape from its own financial obligations, the Court will closely scrutinize the attempt. Will be stuck down unless the modification is reasonable and necessary to support an important public purpose. Private Ks: When state re-writing Ks made by private parties, the judicial review is not so stringent. Here even a substantial modification to Ks b/t private parties will be allowed so long as the state is acting reasonably in pursuit of a legitimate public purpose. (Mere Rationality Review)

Art. 2, § 2, Cl. 2 Congress has 3 options in delegating the appointment of “lower federal officers” whose tasks are executive in nature. It may vest the appointment of such officers in either: The President alone; The courts of law; or The head of depts. (cabinet members)

Art. 2, § 2, Cl. 2 President has power to appoint top-level officials, but only upon the “advice and consent” (majority vote in favor) of congress. A treaty is valid if: The senate ratifies by a 2/3 margin; It deals with matters that are properly subject to negotiations with a foreign country; and The treaty does not violate any constitutional guarantees or prohibitions (like due process)

Article III § 1 Is the source of Federal Judicial Power

Article II, § 4 President and civil officials can be impeached for treason, bribery or other high crimes and misdemeanors. No definition of high crimes. An impeachable offense is whatever a majority of the HOR considers it to be.

Under Art. III § 2 Federal Jurisd. Extends to: 1. Diversity of Citizenship 2. Federal Question 3. State v. Citizen of another state 4. U.S. is a party 5. 2 or more states 6. State/Citizen v. A foreign country or its subjects

Article III § 2, Clause 2 states what cases may be brought under the original jurisdiction of the SC. Congress cannot alter the SC’s original jurisdiction. Congress can give lower courts the right to hear the same kind of cases. Congress can also change the fed appellate jurisdiction, as long as the change is made in a neutral manner, without the intent to decide the merits of the case through a change in jurisdiction. (U.S v. Klein)

Art. IV, § 2: This is the INTERSTATE Privileges and Immunities Clause Provides that a state cannot deny out of staters the P and I it accords its own citizens.

Congress can regulate and limit the SC’s appellate jurisdiction (although it could not eliminate it entirely) (Ex Parte McCardle.)

Art. VI, Cl. 2. “Supremacy Clause” The rules governing preemption in Commerce Clause cases derive from the supremacy clause.

Art VI, Cl. 2. Express Preemption: If a federal statute expressly says a federal law is exclusive, then state/local law is preempted through supremacy clause.

Implied Preemption: Even if the federal law is silent about preemption, preemption can be implied 1/3 ways. Conflict Preemption: If the federal law and state are mutually exclusive, then the state law is deemed preempted. Field Preemption: If Congress evidences a clear intent (with legislative history) to preempt state and local laws, then the state and local laws are preempted.

5th Amendment: Takings Clause

4 Questions when dealing with the Takings Clause: (1) Is it a taking? (Possessory or Regulatory) (2) Is it Property? (3) Is it for Public Use? (4) Is there Just Compensation?

A valid federal law must be rationally related to a congressional power, or necessary and proper to effectuate one of them. If congress legislates beyond its powers, it’s violating the 10th amendment. There is no federal police power! Only states have police power.

The 11th amendment essentially forbids federal-court actions against states for money damages, based on the state’s past conduct, where the money damages will be payable from state funds Three ways around the 11th amendment to hold state governments accountable in federal court: (1) State officers may be sued in federal court of injunctive relief or for damages to be paid by them, but state officers cannot be sued if is the state treasury that will be paying the damages. (2) State may waive (explicit) their 11th amendment immunity and may consent to be sued in federal court. State being sued in federal court. 5 questions: Who’s the PL? Applies to all private PLs. Is the state a D? Only applies to cases against states. (State government or agency). What relief is sought? Applies to damages, past debt, retroactive relief of any type. Has the state waived immunity? Does a congressional grant of jurisdiction apply? Federal statutes based on congressional power to enforce 14th amendment are not subject to 11th amendment bar.

(3) Congress acting pursuant to §5 of the 14th amendment.

States are largely immune from private damage suits for violations of federallycreated rights. Suit in state’s own courts: If the question involves a private damages suit brought on a congressionallyguaranteed right, but brought against a state in its own courts, remember that the newly recognized constitutional doctrine of sovereign immunity (Alden v. Maine) means that the state doesn’t have to hear the case.

Congress’s Power over civil rights derives from the 13, 14, 15 amendments.

13th Amendment Establishes that Congress can prohibit private racial discrimination.

Only 2 provisions of the Constitution have found to authorize abrogation. §1 and §5 of the 14th. Abrogate: To abolish (a law or custom) by formal or authoritative action; to annul or repeal.

The 14th Amendment Citizens have equal protection of the laws.

The 14th Amendment Congress’s power to regulate under the 14th extends only to state activity, not activities of private individuals. (US v. Morrison)

§5 of 14th Amend. §5 of 14th Amend. Authorizes Congress to enact remedial legislation prohibiting enforcement of state laws found to abrogate civil rights even though such state laws are not Unconstitutional. Congress may authorize suits against states pursuant to §5 of 14th Amend.

SS Examples: Substantive DP when fundamental.

Strict Scrutiny: The objective being pursued by the gov’t must be compelling; and the means chosen by the gov’t must be necessary to achieve the compelling end. (Not any less restrictive means) (B on G) Intermediate: Important Objective and Substantially related to the important gov’t objective. Mere Rationality: Legitimate gov’t objective and a minimal rational relation (will be rational unless arbitrary and irrational) (Burden of persuasion on Plaintiff)

MR Examples: 1. Dormant CC 2. Substantive Due Process, as long as not fundamental right. 3. K’s Cl.


				
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