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Nature of Judicial Review [3-5 questions] & Separation of Powers [3-5 questions]

1. Article 3: Federal judicial power derived from Article 3 extends to cases involving
Judicial Power

. Disputes between states, states and foreign citizens, and citizens of diverse citizenships
a. Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws

2. Justiciability: Federal courts can hear a matter only if there is a case or controversy. Whether
there is a case or controversy depends on whether the case is justiciable

. When it is brought (it is ripe or moot)

a. What the case is requesting (is it an advisory opinion)

3. No Advisory Opinions: Federal courts cannot issue advisory opinions which are decisions that
c. Who is bringing it (does P have standing)

lack (1) an actual dispute between adverse parties, or (2) any legally binding effect on the parties
a. Note: The federal courts can still provide pre-enforcement review of a law (by
declaratory judgment action) without rendering an advisory opinion, assuming the case

4. Ripeness: P can establish ripeness before a law or policy is enforced by showing ( 1) the issues
or controversy requirements are met

are fit for a judicial decision, and (2) P would suffer substantial hardship in the absence of review
a. Fitness for Judicial Decision: An issue is not fit for judicial decision if it relies on
uncertain or contingent future events that might not occur. The more the case involves

. Hardship to Parties:
legal as opposed to factual issues, the more likely the case will be fit for review
The more hardship P can show, the more likely the court

5. Mootness: A live controversy must exist at all stages of review. P needs to be suffering from an
will find the case to be ripe

ongoing injury, otherwise the case will be dismissed as moot

a. Exceptions: A claim is not considered to be moot in the following situations, even if the
injury has passed –
i. Controversies capable of repetition but that evade review because of their
inherently short duration
ii. Cases where D voluntarily stops the offending practice but is free to resume it
iii. Class actions in which the class representative’s controversy has become moot

6. Standing: A person must have standing at all stages of litigation including on appeal. Standing
but the claim of at least 1 other class member is still viable

has 3 components: (1) injury in fact, (2) causation, and (3) redressability
a. Injury in Fact – To have standing, a person needs to show an injury in fact, which
requires both a particularized injury and a concrete injury
i. Particularized Injury – An injury that effects P in a personal and individual way
ii. Concrete Injury – An injury that actually exists
iii. Injury must have already occurred or imminently will occur
iv. Generally, NO third-party standing. P must be the one who suffered the injury,

. Causation: There must be a causal connection between the injury and the conduct
but there are exceptions to this rule

complained of
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c. Redressability: A decision in the litigant’s favor must be capable of eliminating

7. Standing of Organizations: An organization has standing to sue on behalf of its members if (1)
their harm (through damages or an injunction)

there is an injury in fact to the members, (2) the members’ injury is related to the organization’s

8. Standing to Assert Rights of Others: A claimant with standing in their own right may assert the
purpose, and (3) individual member participation in the lawsuit is not required

rights of a third party if: (1) it is difficult for the third party to assert their own rights, or (2) a

9. Standing for Free Speech Overbreadth Claims: A person has standing to bring a free speech
close relationship exists between the claimant and the third party

claim alleging that the government restricted substantially more speech than necessary, even if
that person’s own speech would not be protected under the 1st Amendment

10. No citizenship standing – People have no standing merely as citizens or taxpayers to claim that
a. This rule does not apply to restrictions on commercial speech

government action violates federal law or the Constitution. The injury is too generalized
a. Exceptions –

ii. 10th Amendment: A person may have standing to allege that federal action
i. Challenging Tax Liability: A taxpayer has standing to challenge their tax bill

violates the 10th Amendment by interfering with powers reserved to the states as
long as the person has a redressable injury in fact
iii. Congressional Spending: People have standing to challenge congressional

11. Miscellaneous Standing Issues –

spending measures on 1st Amendment Establishment Clause grounds

a. Congressional Conferral of Standing: Congress cannot eliminate the case or controversy

requirement, and thus cannot grant standing to someone who doesn’t have an injury
i. However, a federal statute may create new interests, injury to which may be
sufficient for standing
b. Standing to Enforce Government Statutes: P may have standing to enforce a federal
statute if they are within the zone of interests Congress meant to protect
c. Test Cases: Standing isn’t defeated simply because P wanted to bring a case to test the
constitutionally of a particular rule. The injury is still traceable to the government, even

12. Sovereign Immunity: The Supreme Court has held that the doctrine of sovereign immunity
if P knowingly triggered the application of the rule

reflected in the 11th Amendment bars a private party’s suit against a state in federal and state
courts. It also bars claims against a state in federal and state agencies
a. Exceptions: There are several exceptions to state sovereign immunity –
i. Express Waiver: States can be sued if they consent to it (by waiver). Most states
have expressly waived sovereign immunity, at least to a limited extent, in their
torts claim acts
ii. Implicit Consent/Structural Waiver: When they joined the federal union, states
implicitly agreed that their sovereign immunity would yield to certain federal

1. A federal power is complete in itself, AND

powers. Structural waiver applies when –

2. The states implicitly consented to the federal government exercising

that power as part of the plan of the Constitution
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3. Note: Waiver extends to suits brought by the federal government as well

as to suits by private parties if Congress delegates its power
iii. Actions Against Local Governments: Local governments (like a city or county) are
not protected by sovereign immunity. Neither are entities like police
departments. So, these entities can be sued
iv. Suits by Other States or the Federal Government: States can be sued by other
states, and the federal government can sue states
v. Bankruptcy: States lack sovereign immunity in bankruptcy proceedings, so a
person can sue a state in relation to a bankruptcy proceeding
vi. Certain Actions Against State Officers: A person can sue a state official (1) for
damages personally OR (2) to enjoin the official from future conduct that
violates the Constitution or federal law, even if this will require prospective

1. However, a suit against a state official is prohibited by sovereign

payment from the state

immunity to the extent that it seeks retroactive damages

vii. Congress Removes the Immunity: Congress can remove a state’s immunity as to
actions created under the 14th Amendment power to prevent discrimination,
but it must be unmistakably clear that Congress intended to remove the

13. Abstention: A federal court will temporarily abstain [defer to state courts] from resolving a
immunity

constitutional claim when the disposition rests on an unsettled question of state law
a. Federal courts will not enjoin pending state criminal proceedings, except in cases of

14. Political Questions will NOT be decided. These are issues (1) constitutionally committed to
proven harassment or prosecutions taken in bad faith

another branch of government or (2) inherently incapable of judicial resolution

a. Examples of political questions: Challenges based on the "republican form of
government" clause of Article 4; congressional procedures for ratifying constitutional
amendments; president’s conduct of foreign policy; and partisan legislative

15. Adequate and Independent State Grounds: The Supreme Court will not exercise jurisdiction if the
apportionment

state court judgment is based on adequate and independent state law grounds, even if federal
issues are involved
a. Adequacy: State law grounds are adequate if they are fully dispositive of the case
b. Independence: State law grounds are independent if the decision is not based on federal
case interpretations of identical federal provisions
c. If the state court has not clearly indicated hat its decision rests on state law, the

16. Original Jurisdiction of Supreme Court: The Supreme Court has original jurisdiction in all cases
Supreme Court may hear the case

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

17. Appellate Jurisdiction of Supreme Court: The Supreme Court has appellate jurisdiction in all
between states

cases to which federal judicial power extends under Article 3, subject to congressional
exceptions and regulations. This includes the power of judicial review pursuant to which the
Supreme Court can review the constitutionality of acts of other branches of the federal
government, and the power to review state acts under the Supremacy Clause. When exercising
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its appellate jurisdiction, generally the Supreme Court will hear the case only after there has
been a final judgment by the lower court. Cases can come to the Supreme Court by one of 2
ways –
a. Writ of Certiorari [Majority]: The Supreme Court has complete discretion to hear cases
that come to it by certiorari. The cases that come by certiorari are –
i. Cases from the highest state court capable of providing a decision where (1) the
constitutionality of a federal statute, federal treaty, or state statute is in issue,
OR (2) a state statute allegedly violates federal law; and
ii. All cases from federal courts of appeals
b. Appeal [Rare]: The Supreme Court MUST hear cases that come to it by appeal. These
cases are confined to decisions by 3-judge federal district court panels that grant or deny
injunctions

Legislative Power
1. Enumerated and Implied Powers: Congress can exercise the powers enumerated in the
Constitution plus any powers necessary and proper to carry out any of its enumerated powers
a. No Federal Police Power: Congress has no general police power (no general power to
legislate for the health, safety, and welfare of the nation). 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 capital and its property power
b. Necessary and Proper Clause: Congress has the power to make all laws necessary and
proper (appropriate or rational) to carry out any of the legislative powers enumerated in
Article I, as long as that law doesn’t violate another provision of the Constitution
i. This is a low hurdle – laws can be foolish, just not irrational
c. Taxing and Spending Power: Congress has the power to tax and spend to prove for the
general welfare. Taxing and spending may be for any public purpose not prohibited by
the Constitution
i. Congress can impose conditions on the grant of money to state or local
governments. These conditions are valid if they (1) are clearly stated, (2) relate
to the purpose of the program, (3) are not unduly coercive, and (4) do not
otherwise violate the Constitution
ii. Most federal taxes will be upheld if they bear some reasonable relationship to
revenue production or to promoting the general welfare. Rarely, a tax may be
regarded as an impermissible regulatory penalty if it seeks to compel rather than
simply influence behavior
d. Commerce Power: Congress has the power to regulate all foreign and interstate
commerce, as well as commerce with Indian tribes
i. To be within Congress’s Commerce Clause power, a federal law regulating
interstate commerce must either
1. Regulate the channels of interstate commerce
a. Example: highways, waterways, telephone lines, internet
2. Regulate the instrumentalities of interstate commerce and persons and
things in interstate commerce, or
a. Example: planes, trains, cars
3. Regulate activities that have a substantial effect on interstate
commerce
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ii. Interstate Activity: When Congress attempts to regulate intrastate commercial

activity under the third prong, the Court will uphold the regulation if it can think
of a rational basis on which Congress could conclude that the activity in the
aggregate substantially affects interstate commerce
1. If the regulated intrastate activity is NOT commercial or economic, the
court will generally not aggregate the effects and will uphold the
regulation only if Congress can show that it nonetheless has a direct
substantial economic effect on interstate commerce, which Congress
generally won’t be able to do
2. 10th Amendment Limitation: The Court has interpreted the 10th
Amendment to preclude Congress from regulating noneconomic
intrastate activity in areas traditionally regulated by state or local
governments
3. The Commerce Clause gives Congress power ONLY to regulate existing
commercial activity, it does NOT give Congress power to compel activity
4. Congress may prohibit private discrimination in activities that might
have a substantial effect on interstate commerce. Contrast that with
public discrimination (by state or local government) which Congress can
directly regulation under 14th Amendment enforcement power
e. War and Related Power: The Constitution gives Congress power to declare war, raise
and support armies, and provide for and maintain a navy
i. Economic regulation during war and in the postwar period to remedy wartime
disruptions has been upheld
ii. Military Courts and Tribunals: Congress can make rules for the government and
regulation of armed forces
1. Judicial Review: Congress authorized the Court of Appeals for the Armed
Forces, a specialized civilian court, to review military cases. The Supreme
Court has the ability to review some, but not all, decisions from court-
marital proceedings
2. Enemy Civilians and Soldiers may be tried by military courts. However,
Congress cannot deny habeas corpus review to all aliens detained as
enemy combatants absent a meaningful substitute for habeaus corpus
review
3. American Soldiers: 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
4. American Civilians may be tried by military courts under marital laws
only if actual welfare forces the federal courts to shut down
f. Investigatory Power: Congress has broad implied to investigate to secure information for
potential legislation or other official action. Investigation must be expressly or impliedly
authorized by the appropriate congressional house
i. Subpoena of Presidential Information: Under the investigatory power, Congress
can subpoena the President’s personal information. The subpoena must advance
a legitimate legislative purpose, but the court will also balance Congress’s
interests in obtaining the information against the burdens on the President
g. Property Power: Congress can dispose of and make rules for territories and other
properties of the United States. Although there is no express limitation on Congress’s
power to dispose of federal property, federal takings of private property (eminent
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domain) MUST be pursuant to an enumerated power under some other provision of the
Constitution
h. Postal Power: Congress has an exclusive postal power. Under the postal power, Congress
can 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
i. Power Over Citizenship: Congress may establish uniform rules of naturalization. This
gives Congress plenary power over aliens
i. Exclusion of Aliens: Aliens have NO right to enter the United States and can be
refused entry because of their political beliefs. However, resident aliens must
get notice and a hearing before they can be deported
ii. Naturalization and Denaturalization: Congress has exclusive power over
naturalization and denaturalization. However, Congress cannot take away the
citizenship of any citizen – native-born or naturalized – without their consent
j. Admiralty Power: Congress’s admiralty power is plenary and exclusive unless Congress
leaves maritime matters to state jurisdiction
k. Power to Coin Money and Fix Weights and Measures: Congress has the power to coin
money and fix standards for weights and measures
l. Patent/Copyright Power: Congress has the power to control the issuance of patents and
copyrights
2. Delegation of Legislative Power: Congress can delegate rulemaking or regulatory power to the
executive branch (including administrative agencies) or judicial branch as long as intelligible
standards are set and the power isn’t something that is uniquely confined to Congress
a. General standard will usually suffice as an intelligible principle
3. Claims of Broad Delegation on Major Questions: When an agency adopts regulations that have
extraordinary economic and political significance (major questions), it must be able to point to
clear congressional authorization for the exercise of such power. Modest, vague, or subtle
language in the act delegating power to the agency is NOT sufficient to support agency action
adopting a major change
a. Absent clear delegation of power to effect a major change, if an agency adopts a policy
or regulation effecting a major change, it will be struck down as being beyond the
agency’s delegated authority
4. Bicameralism and Presentment: To pass a law, Congress must use bicameralism (passage of a
bill by House and Senate) followed by presentment to the President for signature or vet.
Attempts by Congress to create laws or control the enforcement of laws without bicameralism
and presentment are invalid
a. No Line-Item Vetoes: The requirements of bicameralism and presentment mean that
Congress cannot give the President a line-item veto power – giving the President the
power to cancel parts of a bill while approving others is an unconstitutional delegation
of legislative power. The President can only approve or reject a bill as a whole
b. No Legislative Vetoes: Congress cannot retain a legislative veto, which is when Congress
gives itself the authority to amend or repeal an existing law without undergoing
bicameralism and presentment
5. Immunity for Federal Legislators: Conduct that occurs in the regular course of the federal
legislative process and the motivation behind that conduct are immune from prosecution
a. 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
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Executive Power
1. Domestic Powers
a. Power as Chief Executive [Take Care Clause] –
i. If the President acts with the express or implied authority of Congress,
presidential authority is at its maximum and the actions likely are valid
ii. If the President acts where Congress is silent, the constitutionality of the action
is uncertain, and the Court will consider the circumstances and any relevant
history. The act is unlikely to be upheld if it usurps the power of another
governmental branch or prevents another branch from carrying out its tasks
iii. If the President acts against the express will of Congress and Congress had
authority to act, then the action likely is invalid
b. Appointment: The President appoints ambassadors, justices of the Supreme Court, and
other officers of the United States whose appointments are not otherwise provided for
in the Constitution, with the advice and consent (approval) of the Senate
i. However, Congress can vest the appointment of inferior officers in the President
alone, the courts, or the heads of departments. Congress itself CANNOT appoint
members of a body with administrative or enforcement powers
c. Removal –
i. By President: The President can remove high level, purely executive officers (like
Cabinet members) at will, without any interference by Congress. Congress also
cannot restrict the President from removing the head of an independent agency
if that person is the sole director and exercises substantial discretion
1. However, Congress can provide statutory limitations (like removal only
for good cause) on the President’s power to remove all other executive
appointees
ii. By Congress: Congress can remove executive officers ONLY through the
impeachment process
d. Pardons: The President may grant pardons for all federal offenses but not for
impeachment or civil contempt. The pardon power cannot be limited by Congress
e. Veto Power: 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 the House and Senate
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i. Pocket Veto: The President has 10 days to exercise the veto power. If the
President fails to act within that time, the bill is automatically vetoed if Congress
in not in session. If Congress is in session, the bill becomes law
ii. Line-item vetoes are unconstitutional
2. Power Over External Affairs
a. War: The President has no power to declare war (only Congress does), but the
President, as commander in chief, can act militarily in actual hostilities against the
United States without a congressional declaration of war to protect American lives and
property
i. However, Congress, under its power to enact a military appropriation, may limit
the President. Challenges to the President’s conduct as commander in chief are
likely to be viewed as nonjusticiable political questions
b. Foreign Relations: The President has paramount power to represent the United States in
day-to-day foreign relations
c. Treaty Power: The President has the power to enter into treaties with the consent of
two-thirds of the Senate
i. Supreme Law: Like other federal law, treaties are the "supreme law of the land"
if they are self-executing (effective without any implementation by Congress)
State laws that conflict with a self-executing treaty are invalid
1. Note: President generally doesn’t have any independent power to issue
a memorandum ordering compliance with a treaty that isn’t self-
executing
ii. Conflict with Federal Laws: A conflict between a congressional act and a valid
treaty is resolved by order of adoption: the last in time prevails
iii. Conflict with Constitution: Treaties are inferior to the Constitution. A treaty may
not be inconsistent with the Constitution
d. Executive Agreements: 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
i. Conflict with State Laws: If a state law conflicts with an executive agreement, the
agreement prevails
ii. Conflict with Federal Laws: If an executive agreement conflicts with a federal
law, the federal law prevails over the agreement
3. Executive Privilege and Immunity
a. Executive Privilege: The President has a privilege to keep certain presidential
communications secret so that the President can receive candid advice and protect
national security. National security secrets are given great deference by the courts
i. Exception: In criminal proceedings, presidential communications will be
available to the prosecution where a need for such information is demonstrated.
Moreover, the President is subject to state criminal subpoenas of the President’s
personal records – such records do not fall under the executive privilege
b. Executive immunity: The President has absolute immunity from civil damages based on
any action taken while exercising official responsibilities, but there NO immunity for acts
that allegedly occurred before taking office. If presidential aides have exercised
discretionary authority in a sensitive area, they can share in the immunity for suits
brought concerning that area
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4. Impeachment: The President, Vice President, and all civil officers of the United States are subject
to impeachment (the bringing of charges). Grounds for impeachment include treason, bribery,
and high crimes and misdemeanors
a. A majority vote in the House is necessary to bring impeachment charges, AND two-
thirds vote in the Senate is necessary to convict and remove from office