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Constitutional Law II
St. Johns University School of Law
Weinberg, Phillip

1.      Federal judicial power- the authority of the federal courts
2.      Federal legislative power- the authority of congress
3.      Federal executive power- the authority of the president and executive branch
4.      Federalism- limits on state local government powers bec. of the national government and other states
5.      Structure of the constitutions protection of individual liberties
6.      Due process-
7.      Equal protection-
8.      First amendment –speech and religion
1.      Federal judicial power
Article 3 of constitution defines the power of the federal courts    A. the authority for judicial review          i. Marbury v. Madison- established the authority for judicial review of federal legislative and executive acts. The constitution does not mention this power. This case decided that they may review these acts
ii.                  Federal courts have the authority to review the acts of state and local governments and local courts.
B. the requirements of cases and controversies- Article 3 defines the federal power using the words of cases and controversies. The Supreme Court has interpreted these words giving rise to a series of limits on the federal judicial power. These limits are called justiciability doctrines. There are 4 and all must be met for the case to be heard.
1. Standing- focuses on the question if the plaintiff is the proper person to bring the matter to the court. In order for the plaintiff to have standing 4 requirements must be met.
1. injury- plaintiff must allege and prove that plaintiff has been or imminently will be injured. The plaintiff must allege that he personally suffered injury (Sierra V. Morton- Disney wanted to build a resort the sierra club wanted to sue but they didn’t have standing       
2. Causation and Redress ability- the plaintiff has to allege and prove that the defendant caused the injury so that a favorable court decision is likely to remedy the injury. The Supreme Court has said that the core of Article 3 is a prohibition from giving advisory opinions. ( Hospital case with IRS)
3. No third party standing is allowed- plaintiffs can’t present the claims of third parties who are not before the court. Exceptions: – even these exceptions the plaintiff must meet the other requirements 1. If there is a close relationship between the plaintiff and the injured third party (doctor patient relationship) 2. If the injured third party is unlikely to assert his own rights either can’t or won’t come to court
4. No generalized grievances are allowed- generalized refers to a particular type of claim. The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law. Exception: taxpayers have standing to challenge the government if the government expenditures are violating the Establishment Clause (Flast v. Cohen- federal law that provided money to private schools; taxpayers lack standing to challenge federal grants of property to religious institutions.
           2. Ripeness- may the federal court grant pre-enforcement review of a statute or regulation, (declaratory judgment)
a.   the hardship that the plaintiff will suffer without pre-enforcement review
b. the fitness of the issues in the record for judicial review- does the federal court have before it all that it needs to decide the issue; would the court be better off waiting till it is an actual issue (FDA the case passed both points)
            3. Mootness- if events after filing of the lawsuit and the plaintiff’s injury the case shall be dismissed as moot; a plaintiff must present an ongoing injury during the proceedings if anything happens to end the injury then the case is moot; exceptions 1. For wrongs capable of repetition but evading review (the injury keeps ending before the case (Roe v. Wade) 2. Voluntary cessation if the defendant voluntary halts the offending practice but is able to resume at any time
          4. Political question doctrine- refers to allegations of constitutional violations that the Federal courts will not adjudicate; some provisions are left to the elected branches to decide.               1. Case under the republican form of government clause- Article 4 sec. 4 the US shall guarantee to each state a republican form of government – any case under this clause is a political question                2. Challenges to the president’s conduct of foreign policy are nonjusticiable political questions (Vietnam War lawsuits)                 3. Challenges to the impeachment and removal process- (Nixon V. US- federal judge that was impeached by the House of Representatives)                4. Challenges to partisan gerrymandering – when the political party redraws districts to maximize the votes (cases in 2004 and 2006)
2.                  Federal legislative power
Article 1 defines the power of congress
a.      Congress’s authority to act
                                                              i.      Congress may act only if there is implied or express authority –no general federal police power- state and local governments have police power; for congress to act it has to point to express or implied authority
                                                            ii.      The necessary and proper clause –Article 1 Sec. 8- congress may take all actions that are necessary and proper to carry out its authority (McCulloch v. Maryland- the supreme court said that this provides that congress may choose any means not prohibited by the constitution to carry out its authority;)
                                                          iii.      The taxing, spending, and commerce clause powers-
1.      Congress may tax and spend for the general welfare, congress may adopt any tax to raise revenue and any spending program to spend money if it’s for the general welfare, generally congress cannot act if it says it’s for the general welfare since they don’t have police power but for taxes and spending they may.
2.      Article 1 sec 8 – congress may regulate commerce with foreign nations, Indian tribes, and among the states. (1937-1995 the supreme court broadly interpreted the scope of congress’s commerce clause authority; April 1995-US v. Lopez- struck down the federal gun free school zone act, law was unconstitutional as exceeding the scope of congress’s commerce clause authority- 3 situations in which congress can act under the commerce clause
a.       Congress may regulate the channels of interstate commerce- places where commerce occurs, highways, waterways, and internet
b.      May regulate the instrumentalities of interstate commerce and persons or things in interstate commerce , things that facilitate interstate commerce, (Gibbons v. Ogden- commerce refers to all forms of intercourse ,radio waves, electricity, stock, telephone…, even cattle or people who go across state lines –Mann Act
c.       May regulate economic activities that have a substantial effect on interstate commerce (Wickard v. Filburn- wheat case, the price of wheat affected the interstate commerce, 2005 -Gonzales v. Rache- can congress criminally prohibit the cultivation of weed for medicinal purposes court said that since it is bought and sold in interstate commerce congress can regulate production since there is a cumulative effect; if its non-economic activity substantial effect can’t be based on cumulative impact; 2000- US v. Morrison- involved the civil damages act for violence against the women court said it was unconstitutional since it was a non-economic activity cumulative effect does not count
                                                          iv.      The Tenth Amendment- all powers not granted to the United States nor prohibited to the states are reserved to the states and to the people respectively; congress cannot compel state regulatory or legislative activity (NY v. US 1992- federal low level radi

as done before the presidency and that a civil suit would not take away from the presidents duties of office
                                                          iii.      Executive privilege protects presidential papers and conversations but such privilege must yield to overriding needs for such information; executive privilege is the authority of the president to keep secret conversations with or memoranda from advisors (US v. Nixon 1974, Watergate, SCT ruled that the privilege must yield to the need for evidence for a criminal trial
4.      Federalism- limit on state local government power because of the existence of a national government and other states
a.       Preemption- article 6 – supremacy clause- says the constitution and laws and treaties made person to it are the supreme law of the land therefore if there is a conflict between state and federal laws, federal laws win out the state law is deemed preempted ; in any one of 3 ways
                                                              i.      Express preemption- if a federal statute says that the federal law is exclusive in a field then state and local law is deemed preempted; any time congress has the authority to act congress can say that federal law is exclusive in the field state law is preempted
                                                            ii.      Implied preemption- even if federal statute is silent about preemption, implied preemption can be found in any one of the following ways
1.      If federal law and state law are mutually exclusive then state law is deemed preempted; if it’s not possible to simultaneously comply with state law and federal law then state law is invalidated
2.      If a state or local law impedes the achievement of a federal objective the state law is deemed preempted
3.      If congress evidences a clear intent to preempt the state law the state law is deemed preempted even if there is not express or other implied preemption
                                                          iii.      States may not tax or regulate federal government activities ( McCullough v. Maryland SCT ruled unconstitutional the state power to tax a federal bank, power to tax is the power to destroy) states cannot regulate federal   government if they are putting a significant burden on federal activity; the federal government has immunity from unwanted state taxation or regulation
b.      The dormant commerce clause and privileges and immunities clause of Article 4
                                                              i.      Definitions
1.      The dormant commerce clause- the principle that state laws are unconstitutional if they place an undue burden on interstate commerce; no provision that expressly says this.
2.      The privileges and immunities clause of article 4- no state may deprive citizens of other states of the privileges and immunities that it accords its own citizens; an anti-discrimination clause
The privileges or immunities clause of the 14th amendment- no state shall deprive any citizen of US citizenship (Slaughterhouse case 1873 limited it so much it had no effect; 1999 Saines v. Roe-