Constitutional Law Final Review Think about this course in terms of POWERS and LIMITS.

of the state government and federal government. Federal Power: Federal Government gets its power from the Constitution. Those things specifically enumerated in the constitution and the implied powers. In terms of the limits of the federal powers, that comes from the powers given to the States. Also, each individual branch has limits on their own power as well. (They also have individual responsibilities.) Art. 1 Legislative Art. 2 Executive Art. 3 Judicial Presents threshold questions whether or not the court is even going to decide a case. Whether the case has a question on the merits or whether the question is not one that the court has the power to decide. (For Example: Political Question) Judicial Power is to say what the law is and this includes the significant power to declare acts of political branches unconstitutional. The question also only exists in the context of a case or controversy. The court cant decide something until it becomes a case before them. In order for someone to bring a case, there needs to be standing. There is also NO advisory opinions, so that means there needs to be an actual conflict between the parties. The conflict also needs to get to a point where it is RIPE for judicial review. It cannot be moot. The court needs to have jurisdiction to review the merits of the case, and without these things listed above, they do not have jurisdiction. Legislative Power gives the government the power to regulate commerce by way of the commerce clause. Commerce clause envelopes everything that is interstate and even some things that are instate as long as there are substantial effects on interstate commerce. This comes from a substantial effects test in Wickard and various cases from that time period. The taxing power can also be used to regulate behavior in addition to the Commerce clause power. The Spending clause can also be used to regulate behavior. Lastly, in addition to these powers listed above, the legislative branch/federal government has the power to do things that fall under the necessary and proper clause. This is a means to a constitutionally legitimate end. Executive power is the power to essentially take care that the Laws be faithfully executed which is the power to execute the law. Which, first requires that a lawful grant of statutory authority exists. Additionally, the president has the power as the Commander in chief (though there are only expressed powers in this

regard. The president has no implied powers when it comes to the domestic sphere. He does have discretion when it comes to foreign affairs.) He has the power to make treaties, and has the power and discretion when it comes to diplomatic relations. Separation of Powers/Granting power of one branch to the branch of another. Aggrandizement exercising power vested in another branch. Encroachment undermining another branchs vested power. Yielding ceding vested power to another branch. Political Question doctrine is really a separation of powers issue. It is not the courts job to meddle in such questions. If it tried to decide a political question, it would be ENCROACHING on another branches power. State Power There are three general categories where states retain their power: 1. When Congress has NOT regulated. (However, the federal government can still preempt the states from doing something.) 2. When there is concurrent jurisdiction between states and federal governments. Both can regulate. (Again there could be a preemption issue) 3. If it is a matter that is beyond Congresss power. Ok, in the realm of when the states can act, what are the LIMITS on their power? Constitutional Limits on State Powers: 1. Federal law is Supreme (preemption) a. Express words of the statute itself prevent the states from regulating. b. Implied Congress often doesnt include express preemptions even though it can. When they dont, they can punt to the courts so that the courts have to decide whether or not a power to regulate is impliedly preempted. The court decides what the congress intended. 2. Dormant Commerce Clause a. Tests b. Exceptions 3. Privileges and Immunities Clause protects against out of state residents against discrimination in reference to a fundamental right. TESTS for the Dormant Commerce Clause (If a test comes up on the exam, just treat it like it is still GOOD law. Even if it isnt.) What do we need to know from Marbury v. Madison? Created Judicial Review. We need to know the methodology in the opinion. (Probably Justice Marshall)

There wont be any questions about the 11th amendment Nor will we be tested on organizational standing. Difference between a penalty and a tax: It is really hard to draw a line between the two and it is a matter of degree. Because of this, the court said they will not police it. If it is obvious in a case such as the child labor case, the court will step in and say no this is clearly a penalty. As long as the tax, even if it has a penalizing effect to it, as long as it also has the effect of raising revenue, the court generally allows it. Market Participant Doctrine: When the state is acting as a market participant. If the state owns lumber and then sells it in the market. It can sell to whoever it wants, even if they only want to sell it to people in the state. It matters when the state is acting as a participant and trying to control things downstream. It is ok to sell the timber, but they cant put restrictions on what happens to the timber down the stream. The RESALE of timber is not part of the market that they are a participant in. They are participating in the sale of it. They cant control everything. Federal law preempts state law, so when the federal agency passes a law pursuant to their power granted by congress, then that is law. You need to apply tests to both the power of congress to delegate and the law that the agency (who was delegated power by congress) tries to pass. The states cannot be preempted by an unlawful federal law. They can be preempted by a lawful statute though. They can argue that the Congress did not have the power to delegate to the agencies, therefore that was unlawful and any law passed by the agency is also unlawful and the states cannot be preempted by an unlawful law.