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Are we trying to decide if the Supreme Court can hear the case? 1. Is the case Justiciable? a) It must be a case or controversy as defined in Article III b) The case must not be an advisory opinion i. If the decision can be overturned by another branch, it is an advisory opinion ii. A declaratory judgment is not an advisory opinion as long as the parties meet standing 2. Do the parties meet the constitutional standing requirements? a) Injury – must be a perceptible and recognized harm. i. if seeking injunctive relief, must show the injury is ongoing (Lyons) ii. if seeking relief from future injuries, must show it is predictable you will suffer the same injury b) Causation – causal link between injury and conduct of defendant: “fairly traceable” c) Redressability – Relief requested must be designed to alleviate the injury 3. Do the parties meet the prudential standing requirements? a) Is the case a “general grievance”? If so, no standing. i. Can’t sue as a taxpayer or citizen unless you feel a particular harm or are challenging spending under separation of church and state b) Are you seeking standing as a third party? If so, no standing unless: i. You are in the best position to protect the rights of an absent party ii. You have a special relationship with the third party AND the other party is unable to bring its own claim AND you have standing on your own 4. The case must be ripe for review a) You can’t sue if you haven’t been harmed by enforcement of a law UNLESS (Abbot Labs test for pre-enforcement review) i. It would be a significant hardship to not grant review before enforcement of the law ii. The record is sufficient (facts undisputed) to make a decision as a matter of law iii. For criminal case – there must be an actual or imminent arrest (Poe) 5. The case must not be moot. It’s moot IF a) The issue has passed (one of the elements creating proper standing disappears during the case) i. defendant in a criminal case dies ii. Parties settle iii. Law changes b) Exceptions that will allow a moot case to proceed i. Wrongs capable of repetition to the same party but evading review (Roe v. Wade)
impeachment ii. much data required) c) Does the case have the potential for judicial embarrassment? (Nixon) d) Ex: Guaranty clause (republican government – redistricting). If the sentence for a criminal prosecution has been performed. but could resume at any time (Laidlaw) iii. foreign relations. The case must not be a “political question” – something that should be determined by the other branches of the government a) Is there a constitutional textual commitment of the power to some other branch? (Baker v.Defendant corrects behavior. Class action suits when the primary plaintiff’s case is mooted (Geraghty) iv. Carr) b) Is it the kind of question that lacks manageable judicial standards? (policy determinations. . but you still suffer injuries because of the prosecution 6.
Broad deference to congress as to what “substantially effects” (Darby) d) Is it valid today? (Lopez) i. Congress can’t force a state legislature to pass legislation c. machines in ISC (cars))? OR iii.does the federal legislation apply to state acts? (Morrison) b) Is the congressional act “congruent and proportional” to the problem it is trying to solve? (City of Borne v. Is this a valid exercise of power under the commerce clause? a) Would it have been valid under Gibbons v. 14th. Manufacturing isn’t commerce (EC Knight) ii. The law must not impinge on state police power under 10th amend (Hammer v. Are we trying to decide if Congress has the power to do something? 1. Is the thing being regulated a CHANNEL of interstate commerce (roads. There is no 10th amendment issue – nothing reserved for states v. No deference to congress – must provide evidence b. Is Congress trying to authorize a suit against a state government? . railroads)? OR ii. Is the act a commandeering? (violation of 10th amendment) a. Ogden? (anything involving more than one state. Does the activity being regulated “substantially effect ISC”? (Jones & Laughlin Steel) ii. Congress can’t commandeer an executive branch official to carry out federal policy d. IntRAstate transaction must have direct effect (Schechter Poultry) iii. Flores) 3. Congress more concerned with protecting states sovereign power than their police powers b. Dagenhart) c) Would it have been valid under the new deal era? i. Commerce clause is a valid excuse to regulate morals (Darby) iv. Only aggregation if regulating commercial activities (Morrison) iv. It’s not commandeering if the legislation is forcing state officials to implement policy that is directly aimed at the states 2. Is it an INSTRUMENTALITY of interstate commerce (people carrying goods in ISC. You can aggregate the effects of the activity (Wickard) iii. and 15th amendments? a) Valid under enforcement clause of 14th amendment . and anything from manufacture to consumption) b) Would it have been valid under Lochner? i.II. Does the thing substantially effect interstate commerce? a. Is this a valid exercise of power under the 13th.
Has the government established a clear pattern of violations? (Garrett) iii. Maine) i. Is the act to be enforced in federal courts a valid exercise under the 14th amendment (congruent and proportional – is the law too broad?) b) Is it a suit in state court? (Alden v.a) Is it a suit in federal court? i. Congress can authorize a damages suit against a state in a state court under the same rationale it can authorize suit against a state in federal court . Has congress unequivocally expressed its intentions to abrogate state immunity despite 11th amendment? ii.
then it is invalid c. Frankfurter – Pres has inherent powers unless they conflict with congress’ wishes iii. Not mentioned in constitution. and the necessity for the act b) (Zone of authority) The president has inherent authority when it comes to foreign affairs (Curtis Wright) 2. Congress can only delegate authority to administrative agencies if they provide an intelligible principle that defines the scope of the agency b) Has congress exercised some sort of legislative veto of an administrative act? They can’t do that. Anything more than a temporary emergency action requires authorization of congress ii. If congress “expressly disapproves” of the presidents action. Congress’ ability to expand presidential powers – line item veto 3. If there is not congressional approval or denial.President must have express constitutional or congressional authority ii. Olson) i.III. Checks on the president a) When can the president be forced to participate in an investigation? . Congress can’t do anything about lower officials (Olson test for inferior officer) 4. (INS v. Is he acting under an inherent presidential power? a) How do you tell if a presidential act is valid (Youngstown) i. the president can do anything constitutional b. Chadha) c) Has congress validly hired or fired an executive official? (Morrison v. Was the president’s act regarding foreign policy valid? a) Was he making a treaty? Requires 2/3 approval by the senate. then congress must look at the situation. Has Congress validly delegated power to an administrative agency? a) Non-delegation doctrine i. There must be an indication of acquiescence by congress 5. If he is acting under express authority from congress or the constitution. Regan) i. May do so as long as there is not an express congressional denial to make the particular agreement c) Was it a valid exercise under the war power? i. Are we trying to decide if the president is doing the right thing? 1. Majority . Jackson (the surviving rule) a. Congress must ratify senior officials ii. b) Has he made an executive agreement with a foreign government? (Dames & Moore v. the gravity of the circumstances.
Immune from suits arising from official acts committed when in office (Nixon v. Not clear if court will step into an impeachment. If he is operating in the realm of foreign policy. national security. House impeaches. senate tries the case iii. . Fitzgerald) ii.If he is claiming general executive privilege. or the military. he may have an unqualified privilege b) When can civil suits be brought against the president i. Not clear what would happen regarding actions committed outside scope of duties while in office c) Impeachment i. Not immune from suits from things done prior to entering office (Clinton v. the court gets to decide if he can exercise that privilege (US v. unless the decision to impeach appeared arbitrary i. Jones) iii. Nixon) ii. President can be impeached for “High crimes and misdemeanors” ii.
Does the state law impede the objectives of the federal law? a. Is the law discriminatory on its face? (specifically forbids out of state people from doing something that effects ISC) ii. Only applies to immigration law as far as we know iii. If the state law conflicts directly with the federal law – if you can’t comply with one without breaking the other b. and do we want to see if the state has exceeded its bounds? 1. Does the dormant commerce clause limit the states ability to act? a) Does the state law discriminate against out of state citizens? If so. there must be a strong state interest and no nondiscriminatory alternative i. May have to look at the intent behind the state & federal laws 2.IV. Did congress intend the federal law to occupy the whole field? a. V. May be revived for people traveling between states by Sanz c) Using the due process clause of 14th to protect people from states . Privileges and immunities clause of 14th eviscerated by Slaughterhouse Cases ii. Does the law have a discriminatory intent? (look at the legislative intent) b) If the state law is not discriminatory i. Balance the state interest to be protected against the burden on interstate commerce c) Exceptions to dormant commerce clause restrictions i. ii. How does the bill of rights apply to the states? a) Only the 14th amendment allows b) Using Privileges and Immunities clause to protect people from states i. Look out for federal standards which create a “floor” rather than an absolute. Does the state law conflict with the federal law? a. it may favor its own citizens Are we protecting the civil rights of some people? 1. Is the state law preempted by a federal law? a) Was there an express preemption in the text of the federal law? b) Was there an implied preemption? i. Congress grants a state authority to violate the clause ii. Does the law have discriminatory effects? (impose a huge burden on out of state people) iii. If the state is a participant in the area. Is there a state regulation in question.
and property not to be taken without due process” ii. maybe utilities. 7th amendment right to a jury trial e. . liberty. Judicial and law enforcement actions are automatically entanglement (Shelley v. 8th amendment prohibition of excessive fines 2. Any law that appears to limit that freedom subjected to high scrutiny a. No deference to legislature as to what is a compelling reason b) Since 1937 i. “Life. doesn’t apply to malls ii. or encourage the illegal activity? b. Did the state affirmatively authorize. run cities. Government regulation/involvement d. liberty. Court will defer to congress as to whether the law was passed for a good reason 2. Is it a function that is traditionally done exclusively by the government? b. Does a law violate freedom to contract? a) In the Lochner era i. Kraemer) c. 5th amendment right to be indicted by grand jury d. The measures implemented by the state must be “necessary” iii. Freedom to contract is protected ii. Was it a possessory taking? i. How does the bill of rights apply to private conduct? a) State action doctrine = it doesn’t b) Exceptions to the state action doctrine i. A law that seeks to limit the right to contract must have a rational basis (does the law protect a legitimate interest of the people) ii. Clause interpreted to mean that some rights are so fundamental as to fall within life.VI. Is there a taking of property? a) Was there a taking? i. Elections. facilitate. If the private organization is so similar in function and structure to the public entity Are we protecting someone’s economic liberties? 1. Incorporation = defining a right as fundamental enough to apply to the states. States can only interfere with freedom to contract if there is a compelling reason b. participate in. Is the private entity performing a “public function”? a. Is the private entity entangled with the state? a. Is the private entity entwined with the state? a. Only a few rights not incorporated: a. 2nd amendment b. Government Subsidies iii. and property iii. 3rd amendment no housing of militia clause c.
Was there a non-monetary compensation for the regulation (people allowed to keep trees) d. Was it a regulatory taking? a. Condemnation to build a road(actual taking) ii. The character of the governmental action 1. If the regulation takes away all economic value of land. If there are widely distributed burdens and benefits. Early rule: i. maybe not a taking 2. maybe not a taking iv. Penn Central Rule i. If the state is making an unavoidable choice. How much the regulation disappoints the investment backed expectation of the person being regulated iii. If the public benefit greatly outweighs the private detriment. Any permanent physical occupation of your land b. maybe not a taking 3. if a regulation “goes too far” it is a taking (Pennsylvania Coal) c. Government must have some power to regulate use of land without having to pay for it b. . it’s a taking unless the regulation is regulating a common law nuisance b) Was it for a public use? i.a. There is a high deference to congress as to what is a public use. Amount of decrease in value of property ii.
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