Con Law Review Exam Stuff o Copy of Constitution (annotated) o 2 page outline o 1/3 MC o 1 essay o Or 2ned essay or short answers Arguments that can be made when you have vague language. o S and T o History o Prudential Will get points for black letter law. Commerce Clause o Lopez then Reich Topics After The Commerce Clause Beginning of page 271
Youngstown Sheet o Inherent Power Executive needs to act quickly. o Jackson gave us the test. Three Part Test Power greatest where congress has expressly given Congress is silent When congress expressly says no. Non-delegation Doctrine (p. 296) Whitman v. American Trucking o Historically there was resistance to the setting up of administrative agencies. o Since then, some say that there is no longer a non-delegation doctrine. Congress can delegate almost anything. o There still is a test. Intelligible Principle Criteria Legislative Veto Overturned (INS Case) (299) Line Item Veto Case o Bicameralism and Presentment (passage of a bill) Requirements on appointment and removal powers. Separation of Powers and Foreign Policy o Presidential Power in the area of Foreign Policy Distinction in the Curtis-Wright Case (321) More leeway when dealing with international matters o With regard to president himself Accepted exeutive agreements which are not ratified by treatsise but are the law of the land
o War Powers A number of express provisions giving congress: Raise army/navy Declare War Designation of President and Commander and Chief o War Powers Resolution is not justiciable Political Question Doctrine comes from: Baker v. Carr Presidential Power and the War on Terrorism Not going to be a major question Checks on the President o Civil Suits (Nixon/Clinton) Can be sued while in office if action occurred before taking office. Cannot be sued after leaving office for actions taken during term OFFICIAL ACTS o Impeachment House votes to impeach Senate then tries 2 impeached 1 resigned Nixon None have ever been convicted by senate Limit on State regulatory and taxing power o Preemption Express Implied Field Impedes Conflict o Dormant Commerce Clause o Major difference is that preemption focuses on what congress has done. o If congress has done nothing in the area then DCC o IF discrimination against out of staters Strict Scrutiny High burden o If incidental burden to interstate commerce and non-discriminatory Balancing Test o Exceptions If congress approves Market Participant Exception P and I clause Article IV § 2 o Only applies to out of staters o Does not apply to aliens or corporation o Congress cannot override this restriction o Modern Test restated (NH v. Piper) (440) Structure of the constitutions protection of civil rights and liberties o The bill of rights apply only against congress not against the states (Baron) o Slaughter House Cases
o P or I of amendment 14 o Exceptions page 466 State Action o Civil Rights Cases o The protections of the 14th amendment only actionable against the state Economic Substantive Due Process o Lochner Version v. Today’s version if you don’t have a fundamental right o The current test carries a presumption of validity Rational Basis The Contracts Clause o Protection of existing contracts o Modern test comes from Energy case The Takings Clause Sovereign Immunity Justiciability Doctrine