Constitutional Law 2005

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PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER A. ARTICLE III Federal judicial power extends to cases involving...: 1. Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws; and

2. Disputes between states, states and foreign citizens, and citizens of diverse citizenship.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER B. POWER OF JUDICIAL REVIEW The Supreme Court may review the _____of acts of other branches of the ____. It may also review ____acts pursuant to the ___ ____: The Supreme Court may review the constitutionality of acts of other branches of the federal government. It may also review state acts pursuant to the Supremacy Clause.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER C. FEDERAL COURTS Only Article III courts (i.e., courts established by Congress pursuant to Article III) are the subject of this outline. Congress has ____: Congress has plenary power to delineate the original and appellate jurisdiction of these courts but is bound by the standards set forth in Article III as to subject matter and party jurisdiction and the requirement of a "case or controversy." Congress can also create courts under Article I (e.g., tax courts). Judges in those courts do not have life tenure as do Article III judges, and Congress may not assign to Article I courts jurisdiction over cases that have traditionally been tried in Article III courts.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER D. JURISDICTION OF THE SUPREME COURT 1. Original Jurisdiction The Supreme Court has ___jurisdiction in all cases affecting ___, ____, ___, and those in which ____is a: The Supreme Court has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party, but Congress has given concurrent jurisdiction to lower federal courts in all cases except those between states.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER D. JURISDICTION OF THE SUPREME COURT 2. Appellate Jurisdiction The Supreme Court has ___jurisdiction in all cases to which _____ power extends, subject to congre: The Supreme Court has appellate jurisdiction in all cases to which federal power extends, subject to congressional exceptions and regulation.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER D. JURISDICTION OF THE SUPREME COURT 2. Appellate Jurisdiction Cases can come to the Court by one of two ways: a. ___of ___--Most Cases The Supreme Court h: a. Writ of Certiorari--Most Cases The Supreme Court has complete discretion to hear cases that come to it by certiorari. The cases that come by certiorari are: 1) Cases from state courts where (i) the constitutionality of a federal statute, federal treaty, or state statute is in issue, or (ii) a state statute allegedly violates federal law. 2) All cases from federal courts of appeals. b. Appeal--Rare Cases The Supreme Court must hear cases that come to it by appeal. These cases are confined to decisions by a three-judge federal district court panel that grants or denies injunctive relief.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" Whether a case is "justiciable" (i.e., a fed: ...there is a "case or controversy." In addition to the "case or controversy" requirement, there are other limitations on federal court jurisdiction.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 1. No Advisory Opinions There must be specific _: There must be specific present harm or threat of specific future harm. Federal courts can hear actions for declaratory relief if there is an actual dispute between parties having adverse legal interests. Complainants must show that they have engaged in (or wish to engage in) specific conduct and that the challenged action poses a real and immediate danger to their interests. However, the federal courts will not determine the constitutionality of a statute if it has never been enforced and there is no real fear that it ever will be.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 2. Ripeness--Immediate Threat of Harm A plaintif: the plaintiff will suffer some harm or immediate threat of harm.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 3. Mootness A real ___must exist at all ___of re: A real controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 3. Mootness a. Exception Controversies cap: Controversies capable of repetition, but evading review are not moot. Examples: Issues concerning events of short duration (e.g., abortion) or a defendant who voluntarily stops the offending practice but is free to resume.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 3. Mootness b. Class Actions A class repre: A class representative may continue to pursue a class action after the representative's controversy has become moot if claims of other class members are still viable.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 3. Mootness Ripeness bars consideration of claim: Ripeness bars consideration of claims before they have been developed; mootness bars their consideration after they have been resolved.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 4. Standing A person must have a concrete stake: 1) Injury

2) Causation

3) Redressability
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 4. Standing a. Components 1) Injury P: Plaintiff must show that she has been or will be directly and personally injured by the allegedly unlawful government action, which affects her rights under the Constitution or federal law. The injury need not be economic.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 4. Standing a. Components 2) Causation: There must be a causal connection between the injury and the conduct complained of.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 4. Standing a. Components 3) Redressability: A decision in the litigant's favor must be capable of eliminating her grievance.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 4. Standing a. Components Remember that st: Remember that standing just allows the plaintiff to get into court. Thus, a successful ruling on the standing issue does not mean that the plaintiff wins his suit; it merely means that he gets an opportunity to try it.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 4. Standing b. Common Standing Issues 1) Congres: A federal statute may create new interests, injury to which may be sufficient for standing. However, Congress has no power to eliminate the case or controversy requirement and, thus, cannot grant standing to someone not having an injury.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 4. Standing b. Common Standing Issues 2) Standin: A plaintiff may have standing to enforce a federal statute if she is within the "zone of interests" Congress meant to protect.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 4. Standing b. Common Standing Issues 3) Standin: Generally, one cannot assert the constitutional rights of others to obtain standing, but a claimant with standing in her own right may also assert the rights of a third party if:

a) It is difficult for the third party to assert her own rights (e.g., an association may attack a law requiring disclosure of membership lists, because members cannot attack the law without disclosing their identities); or

b) A special relationship exists between the claimant and the third party (e.g., a doctor can assert a patient's rights in challenging an abortion restriction).
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 4. Standing b. Common Standing Issues 4) Standin: An organization has standing if (i) there is an injury in fact to members that gives them a right to sue on their own behalf, (ii) the injury is related to the organization's purpose, and (iii) individual member participation in the lawsuit is not required.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 4. Standing b. Common Standing Issues 5) No Citi: People have no standing merely as "citizens" to claim that government action violates federal law or the Constitution. The injury is too generalized.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 4. Standing b. Common Standing Issues 6) Taxpaye: A taxpayer has standing to litigate her tax bill, but a taxpayer generally has no standing to challenge government expenditures, because the taxpayer's interest is too remote. Exception: Suits attacking taxing and spending measures on First Amendment Establishment Clause grounds (e.g., federal expenditures to aid parochial schools).
For a taxpayer to have standing, the spending power must be involved. Thus, for example, there is no standing to challenge federal government grants of surplus property to religious groups.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 5. Adequate and Independent State Grounds The Su: The Supreme Court will not exercise jurisdiction if the state court judgment is based on adequate and independent state law grounds--even if federal issues are involved. State law grounds are adequate if they are fully dispositive of the case. They are independent if the decision is not based on federal case interpretations of identical federal provisions. When the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 6. Abstention a. Unsettled Question of State Law: A federal court will temporarily abstain from resolving a constitutional claim when the disposition rests on an unsettled question of state law.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 6. Abstention b. Pending State Proceedings: Federal courts will not enjoin pending state criminal proceedings (and in some cases pending state administrative or civil proceedings involving an important state interest), except in cases of proven harassment or prosecutions taken in bad faith.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 7. Political Questions Political questions will _: Political questions will not be decided. These are issues (i) constitutionally committed to another branch of government or (ii) inherently incapable of judicial resolution.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 7. Political Questions a. Examples of Political Questi: Challenges based on the "Republican Form of Government" Clause of Article IV, challenges to congressional procedures for ratifying constitutional amendments, and the President's conduct of foreign policy are political questions.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 7. Political Questions b. Compare--Nonpolitical Questi: Legislative apportionment, arbitrary exclusion of a congressional delegate, and production of presidential papers and communications are not political questions.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 8. Eleventh Amendment Limits on Federal Courts Th: The Eleventh Amendment prohibits federal courts from hearing a private party's or foreign government's claims against a state government.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 8. Eleventh Amendment Limits on Federal Courts a. What: The prohibition extends to actions in which the state is named as a party or in which the state will have to pay retroactive damages. Similarly, the Supreme Court has held that the doctrine of sovereign immunity bars suits against a state government in state court, even on federal claims, unless the defendant state consents.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 8. Eleventh Amendment Limits on Federal Courts b. What: The prohibition does not extend to actions against local governments, actions by the United States or other states, or discharge of a state's claim against a debtor in federal bankruptcy court.
PART 1: POWERS OF THE FEDERAL GOVERNMENT I. THE JUDICIAL POWER E. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION--"STRICT NECESSITY" 8. Eleventh Amendment Limits on Federal Courts c. Exce: The following actions can be brought against state officers in federal court despite the Eleventh Amendment: (i) actions to enjoin an officer from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state; and (ii) actions for damage against an officer personally.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS The federal government has limited powers. Every exercise of federal power must be traced to the Constitution. Congress can: Congress can exercise those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 1. Necessary and Proper "Power" Congress has the power to make all laws _____ and _____ (appropriate) for executing any: Congress has the power to make all laws necessary and proper (appropriate) for executing any power granted to any branch of the federal government.
The Necessary and Proper Clause standing alone cannot support federal law. It must work in conjunction with another federal power. Thus, an answer choice that states that a law is supported by the Necessary and Proper Clause (or is valid under Congress's power to enact legislation necessary and proper) will be incorrect unless another federal power is linked to it in the question.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 2. Taxing Power Congress has the power to ____, and most ____ will be upheld if they bear some _____ relationship to ____ production o: Congress has the power to tax, and most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed. However, neither Congress nor the states may tax exports to foreign countries.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 3. Spending Power Congress may spend to "provide for the ___ ___ and ___ ____." Spending may be for any ____ purpose. <: Congress may spend to "provide for the common defense and general welfare." Spending may be for any public purpose.
The federal government can tax and spend for the general welfare; it cannot directly legislate for it. Thus, nonspending regulations cannot be supported by the General Welfare Clause.
Also recall that although the power to spend for the general welfare is broad (any public purpose), it is still limited by the Bill of Rights and other constitutional provisions.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 4. Commerce Power Congress has the ___ power to ____ all ____ and ___ commerce. To be within Congress's power under the ____ ____, a f: Congress has the exclusive power to regulate all foreign and interstate commerce. To be within Congress's power under the Commerce Clause, a federal law regulating interstate commerce must either:
(i) Regulate the channels of interstate commerce;
(ii) Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or
(iii) Regulate activities that have a substantial effect on interstate commerce.
If Congress attempts to regulate noneconomic (i.e., noncommercial) intrastate activity, the federal government must prove to the court that the activity in fact affects interstate commerce.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 5. War and Related Powers The Constitution gives Congress power to declare ___, raise and support ___, and provide for and mainta: The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 5. War and Related Powers a. Economic Regulation _____ regulation during ___ and in the ___ period to remedy ___ disruption: Economic regulation during war and in the postwar period to remedy wartime disruptions has been upheld.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 5. War and Related Powers b. Military Courts and Tribunals Congress is authorized to make rules for the ___ and ____ of ___: Congress is authorized to make rules for the government and regulation of armed forces.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 5. War and Related Powers b. Military Courts and Tribunals 1) Judicial Review Regular ___ (or ___) courts have no __: Regular federal (or state) courts have no general power of review over court-martial proceedings.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 5. War and Related Powers b. Military Courts and Tribunals 2) Enemy Civilians and Soldiers Enemy ___ and ___ may be: Enemy civilians and soldiers may be tried by military courts.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 5. War and Related Powers b. Military Courts and Tribunals 3) American Soldiers ____ courts have ____ over all offen: Military courts have jurisdiction over all offenses committed by persons who are members of the armed services both at the time of the offense and when charged.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 5. War and Related Powers b. Military Courts and Tribunals 4) American Civilians American ____ may be tried by ____: American civilians may be tried by military courts under martial law only if actual warfare forces the federal courts to shut down.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 5. War and Related Powers b. Military Courts and Tribunals 5) Detention of Citizen Enemy Combatants ____ ____ requir: Due process requires that a citizen held in the United States as an "enemy combatant" have a meaningful opportunity to contest the factual basis for his detention before a neutral decisionmaker.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 6. Investigatory Power The power of Congress to ___ is ___. ____ must be ___ or ____ authorized by the appropriate congressional: The power of Congress to investigate is implied. Investigation must be expressly or impliedly authorized by the appropriate congressional house.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 7. Property Power Congress has the power to ___ of and make rules for ____ and other ____ of the United States. While there is n: Congress has the power to dispose of and make rules for territories and other properties of the United States. While there is no express limitation on Congress's power to dispose of property, federal takings (eminent domain) must be for the purpose of effectuating an enumerated power under some other provision of the Constitution.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 8. No Federal Police Power Congress has no general ___ ___. However, Congress has ___ ___ type powers over the ____ of ____, fed: Congress has no general police power. However, Congress has police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations (based on its power over the capitol and its property power).
If an answer choice attempts to support federal action on the basis of the police power (e.g., "Congress can constitutionally act under the police power" or "the action is valid under the federal police power"), see whether the facts state that the action pertains to the District of Columbia or other federal possessions. If not, it is a wrong choice.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 9. Bankruptcy Power Congress's power to establish uniform rules for ____ is ____; ____ may legislate in the field as long as the: Congress's power to establish uniform rules for bankruptcy is nonexclusive; states may legislate in the field as long as their laws do not conflict with federal law.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 10. Postal Power The ___ power is ____. Under the ____ power, Congress may validly classify and place reasonable restrictions on: The postal power is exclusive. Under the postal power, Congress may validly classify and place reasonable restrictions on use of the mails, but may not deprive any citizen or group of citizens of the general mail "privilege.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 11. Power Over Citizenship Congress may establish uniform rules of ____. This gives Congress ____ power over ___.: Congress may establish uniform rules of naturalization. This gives Congress plenary power over aliens.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 11. Power Over Citizenship a. Exclusion of Aliens ____ have no right to ___ the United States and can be ___ entry summarily bec: Aliens have no right to enter the United States and can be refused entry summarily because of their political beliefs. However, resident aliens are entitled to notice and a hearing before they can be deported.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 11. Power Over Citizenship b. Naturalization and Denaturalization Congress has ___ power over ___ and ____. However, Congr: Congress has exclusive power over naturalization and denaturalization. However, Congress may not take away the citizenship of any citizen--native born or naturalized--without his consent.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 12. Admiralty Power Congress's ___ power is ___ and ___ unless Congress leaves ___ matters to ____ jurisdiction.: Congress's admiralty power is plenary and exclusive unless Congress leaves maritime matters to state jurisdiction.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 13. Power to Coin Money and Fix Weights and Measures Congress has the power to ___ money and ___ standards for ___ and ___.: Congress has the power to coin money and fix standards for weights and measures.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER A. ENUMERATED AND IMPLIED POWERS 14. Patent/Copyright Power Congress has the power to control the ___ of ___ and ___.: Congress has the power to control the issuance of patents and copyrights.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER B. DELEGATION OF LEGISLATIVE POWER Legislative power may generally be ___ to the ____ or ____ branch as long as ___ standards are set and the power is not uniquely ___: Legislative power may generally be delegated to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress (e.g., powers to declare war, impeach).
Note: Congress may not appoint members of a body with administrative or enforcement powers (see III.A.1.a., infra).
Although you should know that a valid delegation of legislative power requires "intelligible standards" for the delegate to follow (see above), in applying that rule almost anything will pass for an intelligible standard, and thus no legislative delegation has been invalidated since 1936.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER C. SPEECH AND DEBATE CLAUSE--IMMUNITY FOR FEDERAL LEGISLATORS ___ that occurs in the ____ course of the federal ____ ____ and the ____ behind that ____ are ____ from _: Conduct that occurs in the regular course of the federal legislative process and the motivation behind that conduct are immune from prosecution.
Note: Immunity does not cover bribes, speeches outside Congress, or the republication in a press release or newsletter of a defamatory statement originally made in Congress.
PART 1: POWERS OF THE FEDERAL GOVERNMENT II. LEGISLATIVE POWER D. CONGRESSIONAL "VETO" OF EXECUTIVE ACTIONS INVALID A legislative ___ is an attempt by Congress to overturn an _____ agency action without ____ (i.e., passa: A legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism (i.e., passage by both houses of Congress) or presentment (i.e., giving the bill to the President for his signature or veto). Legislative vetoes of executive actions are invalid.
III. THE EXECUTIVE POWER A. DOMESTIC POWERS 1. Appointment and Removal a. Appointment Powers The executive appoints "all ___, other public ___ and ___, justices of the ___ ___, and all other ___ of the United States who: The executive appoints "all ambassadors, other public ministers and consuls, justices of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for," with advice and consent of the Senate. Congress, however, may vest the appointment of inferior officers in the President alone, the courts, or the heads of departments. Congress itself may not appoint members of a body with administrative or enforcement powers.
III. THE EXECUTIVE POWER A. DOMESTIC POWERS 1. Appointment and Removal b. Removal of Appointees 1) By President The President can remove high level, purely ____ officers ( e.g., ____ members) at ___, without any ____ b: The President can remove high level, purely executive officers ( e.g., cabinet members) at will, without any interference by Congress. However, Congress may provide statutory limitations ( e.g., removal only for good cause) on the President's power to remove all other executive appointees.
III. THE EXECUTIVE POWER A. DOMESTIC POWERS 1. Appointment and Removal b. Removal of Appointees 2) By Congress Congress may remove ___ ___ only through the ____ ___.: Congress may remove executive officers only through the impeachment process.
III. THE EXECUTIVE POWER A. DOMESTIC POWERS 2. Pardons The President may grant _____ for all ____ offenses but not for ____ or ___ ___. The ___ power cannot be ___ by Congress.: The President may grant pardons for all federal offenses but not for impeachment or civil contempt. The pardon power cannot be limited by Congress.
III. THE EXECUTIVE POWER A. DOMESTIC POWERS 3. Veto Power If the President disapproves (vetoes) an act of Congress, the act may still become law if the veto is ____ by a ___-____ vote of ___ house.: If the President disapproves (vetoes) an act of Congress, the act may still become law if the veto is overridden by a two-thirds vote of each house.
III. THE EXECUTIVE POWER A. DOMESTIC POWERS 3. Veto Power a. Pocket Veto The President has ___ days to exercise the ___ power. If he fails to act within that time, the bill is ___ ___ if Congress is __ in session. If Congress is i: The President has 10 days to exercise the veto power. If he fails to act within that time, the bill is automatically vetoed if Congress is not in session. If Congress is in session, the bill becomes law.
III. THE EXECUTIVE POWER A. DOMESTIC POWERS 3. Veto Power b. Line Item Veto Unconstitutional The veto power allows the President only to approve or reject a bill __ ___; he cannot cancel __ (through a __ ___ ___) and approve: The veto power allows the President only to approve or reject a bill in toto; he cannot cancel part (through a line item veto) and approve other parts.
III. THE EXECUTIVE POWER A. DOMESTIC POWERS 4. Power as Chief Executive The President's powers over internal affairs are ____. Clearly the President has some power to direct ___ ___officers, and there is a long history of Presiden: The President's powers over internal affairs are unsettled. Clearly the President has some power to direct subordinate executive officers, and there is a long history of Presidents issuing executive orders. Perhaps the best guide is as follows:
a. If the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid;
b. If the President acts where Congress is silent, his action will be upheld unless it usurps the power of another governmental branch or prevents another branch from carrying out its tasks; and
c. If the President acts against the express will of Congress, he has little authority, and his action likely is invalid (e.g., the President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent).
III. THE EXECUTIVE POWER B. POWER OVER EXTERNAL AFFAIRS 1. War The President has __ power to declare war but may act militarily in ___ hostilities against the United States ___ a congressional declaration of war. However, Congress: The President has no power to declare war but may act militarily in actual hostilities against the United States without a congressional declaration of war. However, Congress, under its power to enact a military appropriation every two years, may limit the President.
III. THE EXECUTIVE POWER B. POWER OVER EXTERNAL AFFAIRS 2. Foreign Relations The President has ___ power to represent the United States in day-to-day ___ relations.: The President has paramount power to represent the United States in day-to-day foreign relations.
III. THE EXECUTIVE POWER B. POWER OVER EXTERNAL AFFAIRS 3. Treaty Power The President has the power to enter into treaties with the ___ of ___-__ of the ____.: The President has the power to enter into treaties with the consent of two-thirds of the Senate.
III. THE EXECUTIVE POWER B. POWER OVER EXTERNAL AFFAIRS 3. Treaty Power a. Supreme Law Like other federal law, treaties are the "___ law of the land." ___ laws that conflict are ___.: Like other federal law, treaties are the "supreme law of the land." State laws that conflict are invalid.
III. THE EXECUTIVE POWER B. POWER OVER EXTERNAL AFFAIRS 3. Treaty Power b. Conflict with Federal Laws A conflict between a congressional ___ and a valid ___ is resolved by order of adoption: the ___ in time prevails .: A conflict between a congressional act and a valid treaty is resolved by order of adoption: the last in time prevails .
Conflict with Constitution
Treaties are not co-equal with the Constitution; a treaty may not be inconsistent with the Constitution.
Treaties are subject to constitutional limits. Thus, no treaty (or executive agreement) can confer on Congress authority to act in a manner inconsistent with any specific provision of the Constitution.
III. THE EXECUTIVE POWER B. POWER OVER EXTERNAL AFFAIRS 4. Executive Agreements ______ agreements are signed by the ______ and the ______ of a ______ ______. They can be used for any purpose that ___ can be used for. They do ___ r: Executive agreements are signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for. They do not require the consent of the Senate.
III. THE EXECUTIVE POWER B. POWER OVER EXTERNAL AFFAIRS 4. Executive Agreements a. Conflict with State Laws If a ___ law conflicts with an ___ agreement, the agreement ___.: If a state law conflicts with an executive agreement, the agreement prevails.
III. THE EXECUTIVE POWER B. POWER OVER EXTERNAL AFFAIRS 4. Executive Agreements b. Conflict with Federal Laws If an ___ agreement conflicts with a ___ law, the ___ ___prevails over the ___.: If an executive agreement conflicts with a federal law, the federal law prevails over the agreement.
III. THE EXECUTIVE POWER C. EXECUTIVE PRIVILEGE/IMMUNITY 1. Executive Privilege The President has a privilege to keep certain ___ secret. ___ ___secrets are given great ___ by the courts.: The President has a privilege to keep certain communications secret. National security secrets are given great deference by the courts.
III. THE EXECUTIVE POWER C. EXECUTIVE PRIVILEGE/IMMUNITY 1. Executive Privilege a. Exception In ___ proceedings, presidential ___ will be available to the ___ where a need for such information is ___.: In criminal proceedings, presidential communiques will be available to the prosecution where a need for such information is demonstrated.
III. THE EXECUTIVE POWER C. EXECUTIVE PRIVILEGE/IMMUNITY 2. Executive Immunity The President has absolute ___from ___damages based on any action he took within his ___ ___, but there is no ___for acts that allegedly occurred ___ta: The President has absolute immunity from civil damages based on any action he took within his official responsibilities, but there is no immunity for acts that allegedly occurred before taking office. If presidential aides have exercised discretionary authority in a sensitive area, they may share in the immunity for suits brought concerning that area.
III. THE EXECUTIVE POWER D. IMPEACHMENT The ___, ___ ___, and all ___officers of the United States are subject to ___(the bringing of charges). Grounds include ___, ___, ___crimes, and ___. A ___vote in the ___is necessary to invoke the: The President, Vice President, and all civil officers of the United States are subject to impeachment (the bringing of charges). Grounds include treason, bribery, high crimes, and misdemeanors. A majority vote in the House is necessary to invoke the charges of impeachment, and a two-thirds vote in the Senate is necessary to convict and remove from office.

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Number of cards 81