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Con Law Attack Sheet 1) Is there JURISDICTION? a) Did Congress grant SCOTUS more than original jurisdiction?

i) Marbury v. Madison (Art. III gives SCOTUS original jurisdiction over certain cases and Congress cannot grant additional jurisdiction) b) Did Congress limit SCOTUSs appellate jurisdiction with its exceptions power? i) Ex Parte McCardle (Art. III expressly authorizes Congress to create exceptions to SCOTUSs appellate jurisdictiondefinitional limit) ii) U.S. v. Klein (Congress may not use the Exceptions clause to cripple the Courts ability to be the final arbiter of what the Constitution meansexternal/S-O-P limit) c) Violation of the 11TH AMENDMENT? i) Sovereign immunity means a state cannot be sued by a private party in federal court ii) Exceptions: stripping & injunction, state v. state, US v. state, state waiver, SCOTUS review of state case, 14th amendment claims iii) Hypo: can sue welfare official for defamation damages but not state for lost welfare 2) Is the claim JUSTICIABLE? a) Is there an ACTUAL CASE AND CONTROVERSY? i) Muskrat v. U.S. (there must be an actual dispute involving legal relations of 2 adverse parties for which judiciary can provide reliefare there fighters in the ring?) b) Is it an ADVISORY OPINION? i) SCOTUS will not give advice on new laws or abstract/hypothetical questions c) Is there a PRUDENTIAL LIMITATION? i) The court is self-conscious; conserve political capital; keep out troublemakers; adversary system sharpens issues d) Is it a POLITICAL QUESTION? i) SCOTUS will not violate S-O-P, the Constitution textually excludes review because the power is reserved for another branch of the government (1) Nixon v. U.S. (senate impeachments) (2) Goldwater v. Carter (Presidents power over foreign affairs) ii) SCOTUS will not consider a case where there are no judicially manageable standards (no criteria for review); Luther v. Boren (is a government republican?) e) Is the claim MOOT? i) SCOTUS will not hear a case when there is no controversy at any stage of litigation, unless: (1) Collateral injury? (2) Capable of repetition? Roe v. Wade ([1] type of injury is reoccurring and [2] litigation inherently shorter than time for injury) (3) Free to resume or sham mootness? Friends of the Earth v. Laidlaw (pollution); City of Erie v. Paps AM (sex) (4) Class action? f) Is the claim RIPE? i) SCOTUS will not hear a case unless there is a bleeding plaintiff

(1) Compare Abbot Laboratories v. Gardner (declaratory judgment/pre-enforcement review OK if [1] severe hardship if review withheld, and [2] predicted harm is probable) with Toilet Goods v. Gardner (penalty of license suspension not severe) (2) Hardship from collateral injuries, see Duke Power v. Carolina Environmental Group (the hardship was the fear of a nuclear accident) g) Does the claim meet Constitutional requirements of STANDING? i) There must be distinct or imminent personal injury in fact (1) Compare Lujan v. Defenders of Wildlife (plaintiffs lacked standing because insufficient likelihood of future injurythat required a plane ticket) with SCRAP (aesthetic and environmental injuries are OKthey breathed the air, hiked the trails) (2) L.A. v. Lyons (plaintiff could seek damages but not an injunction because there was no more likelihood of imminent harm) ii) Plaintiff must allege defendants conduct caused the harm (1) Allen v. Wright (the IRS did not cause the segregation; injury highly indirect and results from independent actions of some 3rd party not before the court); Simon v. Eastern Kentucky Welfare Rights (it was purely speculative the IRS caused the denial of medical services) (2) Duke Power v. Carolina Environmental group (but for the Price Act, the nuclear reactor would not be built and plaintiffs would not suffer harm) iii) Plaintiff must allege that a favorable court decision is likely to remedy the harm (1) Simon v. Eastern Kentucky Welfare Rights (the complaint suggests no substantial likelihood that victory in the suit would result in plaintiff receiving the hospital care they desired) h) Does the claim meet the prudential requirements of STANDING? i) 3rd party suits/standing? (1) Not allowed unless [1] the 3rd party is unable to sue, [2] there is a close relationship with the 3rd party/economic harm, and [3] the plaintiff can represent interests well, see Craig v. Boren (bartender allowed to sue for lost customers) ii) Association standing? (1) Only allowed if [1] the members would have standing on their own, [2] interests germane to purpose of association, [3] claim nor relief requires participation iii) Generalized grievances by taxpayers? (1) Compare Frothingham v. Mellon (no taxpayer standing), with Flast v. Cohen (Double Nexus Test: [1] there must be a logical link between taxpayer status and legislation attacked (the exercise of Congresss spending and taxing power, and [2] Congress violated a specific limitation on the power to tax and spend (only Establishment Clause) (2) Must be specific spending, not incidental expnditures, see Valley Forge (no standing when challenging administrative ruling under property clause) (3) Party must be within zone of interests (4) Friends of the Earth v. Laidlaw (civil penalties not paid to individuals are OK because they are incentive for the state not to do something)

3) Is CONGRESS Overstepping its POWER? Answer by: [1] what is the scope of the statute; [2] what is the intent (Court prefers non-Const. interpretation); [3] what federal power is Congress using; [4] what are the limits to the power a) NECESSARY AND PROPER? i) McCulloch v. Maryland (Congress can choose the appropriate means to accomplish any legitimate end of the Constitution by enacting laws related to the powers enumerated in Art. I Section 8) b) COMMERCE power? i) Channels of interstate commerce, Gibbons v. Ogden ii) Instrumentalities of interstate commerce, Gibbons v. Ogden iii) Activities having a substantial relation to, or substantial effect on interstate commerce (1) Lopez (No- guns are not an economic activity and too far removed to be substantially related to it; but for reasoning, building inference upon inference rejected); Morrison (No- cumulative effect of violence against women is noneconomic so not allowed) (2) Gonzalez (Yes- even intrastate activities can be regulated based on cumulative impact of economic activity because it is within a broad regulatory scheme of Congress) c) TAXING power? i) Upheld as long as it raises from revenue, even if purpose is regulatory, see Sonzinsky v. US (every tax is regulatory in some measure) d) SPENDING power? i) Broad spending power for the general welfare (1) Power to spend also means power to watch over money ii) Congress can offer financial inducement so long as [5] it does not pass the point where pressure becomes compulsion, South Dakota v. Dole (funds for increasing drinking age was OK inducement for safe highways) (1) [1] general welfare, [2] express conditions, [3] related to federal interest, [4] does not violate another provision of the Constitution e) 14TH AMENDMENT power? i) Equal protection and due process is directed specifically at controlling states so NOT subject to 11th amendment ii) Congress can only make laws to prevent or remedy violations, but not to expand or created new rights, see City of Boerne v. Flores (laws must be narrowly tailored to be congruent and proportional to Constitutional violationreligion law would affect everyone, everywhere) iii) STATE ACTION? (1) OK to regulate local and state governments but NOT private actions (2) Public function by private party performing function traditionally and exclusively governmental in nature (company town, but NOT malls, schools, hospitals) (3) Symbiotic relationship only, see Burton v. Wilmington Parking Authority

(4) State responsible for private action (a) Authorized, approved, or encouraged by judicial enforcement (b) NOT enough for even extensive licensing (Moosehead), or regulation, see Jackson v. Metro Edison Co. (the govt must become responsible for discrimination) f) Violation of the 10TH AMENDMENT? i) Garcia (powers not granted are reserved for states, but states are not immune from federal commerce regulations that apply equally to non-government entities) ii) New York (the govt can [1] encourage states to adopt regulations, [2] directly preempt with Commerce Clause, [3] but cannot compel states to enforce or administer federal regulations) iii) Compare Prinz (cannot commandeer state officials under Brady Gun Act) with Reno v. Condon (regulating driver license info availability OK, just a prohibition, state not required to enact laws or use state officials to enforce) iv) Treaties not subject to 10th amendment, Missouri v. Holland (bird treaty with Canada) 4) Is the STATE LIMITED? a) TAXING or REGULATING FEDERAL GOVERNMENT? i) States cannot tax the federal government, McCulloch v. Maryland (1) Including federal contractors where tax AND legal burden is passed on to federal govt ii) States cannot regulate federal workers (postal, USPTO agents, etc.) b) PREEMPTION to the state law? i) Preemption is like the Supremacy Clause in action ii) Express, Silkwood (clear cause says no state can impose) iii) Field, City of Burbank v. Lockheed Terminal (if Congress intended to exclusively occupy a field, any state law is preempted, even if laws have the same goal) iv) Physical conflict (if a person cannot comply with both, state law is preempted by federal) v) Purpose conflict (if a state law impedes federal objective) (1) Court can avoid preemption by narrowly construing state law, see Pacific Gas & Electric v. State (federal laws purpose was only to promote economically feasible nuclear plants, not simply nuclear plants) c) State statute violates DORMANT COMMERCE CLAUSE? (individuals & corporations) i) States cannot [1] discriminate, and [2] burden interstate commerce ii) If there is discrimination, there is a strong presumption against law, Deans milk v. Madison (1) Does the law exclude all out-of-staters? (2) Does the law impose a cost on out-of-staters that in-staters do not have to bear? (3) Was the law motivated by protectionist purpose? (4) Facially neutral law has discriminatory impact? Hunt v. Washington State Apple iii) Discriminatory law upheld only if necessary to achieve important state prpose (mainly health and safety)is there a non-discriminatory alternative?

(1) Compare Deans Milk v. Madison (if for safety, why not just send inspectors?) with Maine v. Taylor (only way to protect fragile fisheries from parasites was banning out-of-state baitfish) iv) Non-discriminatory law for legitimate local purpose upheld unless burden on IC is clearly excessive to local benefit, see Southern Pacific v. Arizona (decreased length=more trains) v) Is this a state tax? Complete Auto Transit v. Brady (state tax OK if substantial nexus between activity, fairly apportioned, does not discriminate, related to services provided) vi) MARKET PARTICIPANT exception (1) Unless regulatory effects downstream (2) Unless shared public rights vii) CONGRESSIONAL CONSENT exception d) State statute violates PRIVILEGES AND IMMUNITIES CLAUSE? (only citizens and discrim.) i) Discrimination is prohibited against non-citizens in a fundamental right (civil liberties and economic rights), see Baldwin v. Fish and Game Commission (elk hunting) ii) Unless necessary to promote an important state interest and must be narrowly tailored United Building and Construction v. City of Camden (economics not important enough and even if it were, must be tailored narrowlyi.e. not city hall) (1) Is there an alternative that does not discriminate and still achieve same result? iii) Congressional approval does not excuse a law that violates P&I iv) Exception for shared public rights 5) EXECUTIVE POWERS, LIMITATIONS, AND S-O-P a) EXECUTIVE OVERSTEPPING? i) Within Presidents inherent foreign affairs power? (somebody has to be able to exercise these powers of a sovereign nation) (1) [1] must be emergency, [2] Congress must not have negated, [3]does not violate any Constitutional provisions, see Youngstown Sheet & Tube Co. ii) President not doing his duty when Congress explicity says he must? Youngstown iii) Line-item veto? iv) Overstepping foreign affairs power by rescinding a treaty? Goldwater v. Carter (Taiwan treaty rescinding is a political question, but practical effect is SCOTUS OKd it) v) Does executive agreement violate Constitution or another federal statute? vi) Authority to declare war? (prevent war, end war, fix effects of war, tax more before war?) vii) Violation of War Powers resolution (that allows President to act without declaration if there is a need)? b) Invasion of EXECUTIVE PRIVILEGE? i) Is it a privilege to keep conversations secret for protecting national security and receiving unbiased opinions? U.S. v. Nixon (no) (1) No privilege for criminal cases as long as there is [1] specific need, [2] substantial need, [3] must be procedural safeguards c) Invasion of EXECUTIVE IMMUNITY?

i) Nixon v. Fitzgerald (absolute immunity from civil cases for damages while in office) ii) Contra Clinton v. Jones (Pres. Can be sued for events prior to taking office) d) CONGRESS OVERSTEPPING? i) Is Congress delegating its power with an intelligible principle? ii) Congress directly appointing or removing executive officers? (Congress cannot prohibit all removal power or give removal power to itself other than by impeachmentviolates S-O-P) iii) Is Congress limiting the executive removal power? (1) OK to limit removal for just cause of officers in independent agencies (FCC, FTC, SEC, etc.) (2) OK when there needs to be S-O-P, see Morrison v. Olson (limiting OK unless the standard for removal unduly trammels on executive authorityAG could still fire for good cause)