Friday, November 19, 2010

Take the Con Law quiz: 25 questions

Like most law students at this time of year, I am spending a large part of my days refining, reviewing, comparing, and obsessing over the outlines for my classes. Welcome to finals -- the only games that matter. As part of my routine, I like to create lists of questions based on the notes I have taken all semester. I am posting part of the draft version for my Con Law questions below. Like law school, there is no single right answer, but lots of wrong answers. Don't try to grade yourself. There is no standard. And if you haven't taken Constitutional Law, either at the University of Louisville Brandeis School of Law or elsewhere, your chances of correctly answering more than half a dozen of these are probably slim to none. I also make no guarantees about accuracy, spelling, formatting, or your ability to read this impossibly small font. How's that for a disclaimer?

Con Law in 25 questions 
Fall 2010 

1. What is the holding of Marbury v. Madison? 

2. Who may challenge a ministerial executive decision (discretion)? 

3. What is the rationale for the court’s power to review state court decisions? 

4. What does the Supremacy Clause do? 

5. What are the three main limits on judicial power? 

6. List the main sources of constitutional interpretation 

7. What does Art. III say in terms of Congress and the Supreme Court? 

8. What are the two main prudential standing limits? 

9. What are the three main constitutional standing requirements? 

10. What are the reasons for the prohibition on third-party standing, and the major cases 
illustrating the rule? 

11. Define the prohibition on generalized grievances; which cases illustrate the rule? 

12. What are the six factors that may trigger a political question? 

13. What are the three main areas where political question is typically applied? 

14. What two questions should always be asked of a law passed by Congress? 

15. What is the necessary and proper clause? 

16. What early Supreme Court case defines the scope of the federal legislative power? 

17. What is the most recent Supreme Court case addressing the political question doctrine? 

18. Describe the two main limits on the Interstate Commerce Clause 

19. What are the cases and holdings that defined the scope of the Commerce Clause before the 

20. What are the cases and holdings that defined the scope of the Commerce Clause from the 
1930s to the 1990s? 

21. From the 1930s to 1990s, how does the court define commerce “among the states” with 
respect to civil rights, regulatory laws, and criminal laws? 

22. What is the modern view of the Commerce Clause, as defined in recent cases? 

23. After Darby, how is the Tenth Amendment used to invalidate a law? 

24. What are a few key parts of the Taxing and Spending Power? 

25. Name the post-Civil War amendments 

1. Sets ceiling for federal court’s original jurisdiction (matters arising from constitution, conflicts between 
states) beyond which courts can not act, and beyond which Congress can not authorize additional 
jurisdiction under Article III. Court has appellate jurisdiction in other cases.  
Also: establishes authority for judicial review of federal legislative acts.  

2. Only the political process checks the executive branch. But court retains control over decisions based on 
individual rights, which are tied to government duties.  

3. Martin v. Hunter’s Lessee, 1816, dispute over Va. land subject to federal treaty: states may have 
prejudices, jealousies, and interests that might obstruct regular administration of justice. Sup. Ct. review 
also ensures uniformity of interpretation of federal law.  

Also, Cohens v. Virginia, 1821, brothers arrested for selling lottery tickets: reaffirms ability to review state 
court decisions, even when state is a party or criminal charges are involved; state judges may not be 
impartial because state legislature pay their salaries/benefits. 

4. Establishes that the constitution, treaties and federal laws of the U.S. are the supreme law of the land, 
and that state and local laws are pre-empted when they conflict with federal laws. 

5. ICJ -- interpretive, congressional, and justiciability limits 

6. PETS (Precedent-External-Text-Structure) 
 Precedent – case law 
 External sources: changes in social mores and attitudes; Stevens’ non-originalist 
 argument in D.C. v. Heller, 2008, about modern urban atmosphere and gun  
 Text itself, historical background and framers’ intent (members of     
 Congress at time of original text and time of amendments); big backer: Scalia 
 Structure of gov’t; federalism/co-equal branches; representative gov’t control. 
7. “The Supreme Ct. shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and 
under such Regulation as the Congress shall make.” 
 a. Congress has authority to address appellate jurisdiction over large areas of law, not focused 
 on a particular decision. 
 b. Process of constitutional amendments 
 c. Ex Parte McCardle, post Civil War, newspaper editor fights arrest for articles critical of 
 Reconstruction; Congress changes law while Sup. Ct. has case; w/o jurisdiction the Court 
 can not proceed; law removed jurisdiction.  

8. First, a party may assert only her own rights and cannot raise claims of third parties not before the court. 
Second, a P may not sue as a taxpayer who shares a grievance in common with all other taxpayers. (unlike 
constitutional standing limits, prudential limits are waivable by either court or Congress at their discretion) 

9. RIC – Redressability-Injury-Causation:  
 i. Injury: P must allege that he has suffered or imminently will suffer injury (concrete and 
 ii. Causation: injury must be fairly traceable to D’s conduct.  
 iii. Redressability: a favorable court decision must be likely to redress injury. 

10. Reasons: Actual holders of rights may not want to assert them; third parties are usually best proponents 
of their own rights. SBCGE (Singleton-Barrows-Craig-Gilmore-Elk Grove) 
 Singleton v. Wulff, 1976, physicians sue Missouri official for opposing non-medical 
 abortions. Court defines exceptions to rule based on 1) closeness of relationship of litigant 
 to person whose right he seeks to assert, i.e. doctor on behalf of indigent patients, and 2) ability of 
 third party to assert own right (difficult here b/c patients indigent); women need docs to have 
 abortions, so relationship is close/inextricable; also it may be tough for women to sue because they 
 are only pregnant for a short time before getting abortion  
 Barrows v. Jackson, 1953, white homeowner who signs racial covenant allowed to raise rights of 
 excluded blacks because blacks were not parties to contract and otherwise had no way to assert 
 Craig v. Boren, 1976, bartender sues on behalf of Okla men who can’t buy 3.2 beer until  21; 
 women can buy at 18; court says tavern can be advocate for third party customers seeking 
 access to their market.  
 Gilmore v. Utah, 1976, mother of man facing death penalty has no third party standing to  appeal 
 case when man himself avoids appeal. 
 Elk Grove School Dist v. Newdow, 2004, father, atheist, fights Pledge recited by daughter 
 at school due to words ‘Under God.’ P asserts ‘next friend’ standing on behalf of daughter 
 Held: improper for federal courts to grant standing to party who asserts rights of another when 
 those rights are in dispute (by mom) and prosecution could have negative impact on rights.  

11. The Supreme Court will not hear cases in which the harm alleged is “shared in a substantially equal 
measure by all or a large class of citizens.” 
 U.S. v. Richardson, 1974, guy wants to know how CIA spends money; asserts right through status 
 as taxpayer.     
 Held: grievance is generalized b/c it is common to all members of public 
 Rationale: barring P may bar all potential litigation, but issue is best resolved by political  process, 
 i.e. letting disgruntled people vote for new leaders.   
 Dissent: P not looking to overturn law, but to enforce it by affirmative duty to supply info.  
 Flast v. Cohen, 1968, narrow exception to prohibition on taxpayer suits must meet two- prong 
 test: challenging enactment under Spending Clause of Art. I, i.e. must be an Establishment Clause 
 claim; also must show that enactment exceeds specific constitutional limits imposed on taxing and 
 spending power.  

12.  (1) a textually demonstrable commitment of the issue to a coordinate political dep’t
 (2) lack of judicially discoverable and manageable standards for resolving it 
 (3) impossibility of deciding without an initial policy determination of a kind clearly for 
 non-judicial discretion; 
 (4) impossibility of a court's undertaking resolution w/o expressing lack of respect due 
 coordinate branches of government; 
 (5) unusual need for unquestioning adherence to a political decision already made
 (6) potential embarrassment from multifarious pronouncements by various departments  on one 
Also, basic Pol Q. requirements  
1. Does the issue involve resolution of questions committed by the test of the Constitution to a 
coordinate branch of government? 
2. Would resolution of the question demand that a court move beyond areas of judicial 
3. Do prudential considerations counsel against judicial intervention? 

13.  1) challenges to restrictions on Congressional membership 
 2) challenges to the President’s conduct of foreign policy; and  
 3) challenges to the impeachment and removal process 

14.  1) does Congress have authority to enact the law under the Constitution? 
 2) does the law violate another constitutional provision, i.e. separation of powers or  
 individual liberty? 

15. Art. I § 18 “The Congress shall have Power - To make all Laws which shall be necessary and proper 
for carrying into Execution the Powers vested by this Const. in the Gov’t …” 
 Test: in looking at whether N&P clause gives Congress power to enact federal  
 statute, court looks to see whether statute constitutes a means that is rationally   
 related to the implementation of a constitutionally enumerated power.  

16. McCulloch v. Maryland, 1819, in which state tries to tax newly formed U.S. bank.  
 Held: Constitution didn’t expressly give Congress power to create bank, but it does have  implied 
 authority through N&P clause; also, although states can tax, they can’t tax entity (gov’t)  that 
 reigns supreme over states, b/c const. and laws created by it take precedence over states.  

17. Goldwater v. Carter, 1979, challenge to Pres. Carter’s rescission of Taiwan treaty w/o Senate 
ratification. Holding: political question; in absence of express view in Constitution about abrogation of 
treaties, politicians should set the standard, not courts.  

18.  1) Internal Limits – text, framers’ intent 
 2) External Limits –. 10th Amendment, necessary & proper, equal protection.  

19. CC established; mostly narrow/hostile to regulation; “categories” of commerce 
 Gibbons v. Ogden, 1824 -- monopoly on steamboat ferry service in N.Y. 
  Held: Congress has plenary power to regulate activities under its authority;   
  Rationale: promote free trade in economy, stop states from limiting    
  movement of goods across state lines.   
 U.S. v. EC Knight Co., 1895, monopoly on sugar refining industry. Majority upholds narrow 
 view of commerce, separate from police powers of states.  
  Held: manufacturing is an activity that happens purely within state    
  boundaries, and therefore falls under state regulation.  
  Dissent: this view is too narrow; production and manufacturing are commerce.  
 Hammer v. Dagenhart, 1918, dad sues to stop child labor laws; kids work in cotton mill.  
  Held: court strikes down federal child labor act, says labor is a separate act from   
  production of goods and does not fall within Congress’s power. (narrow view) 
  Rationale: Tenth Amendment reserves certain rights to states, including power to  
  control production of goods.  
 Schecter Poultry, 1935 (last gasp of narrow view, stream of commerce defined)  
  Held: once live poultry comes to rest at slaughterhouse, it can no longer by   
  regulated b/c interstate commerce aspect ends; court acknowledges greater   
  movement of goods, but also end point to stream of commerce
  Congress only has powers over intrastate commerce that have ‘direct effect’ on   
  interstate commerce.  

20. In 1930s, public unhappy w/ Sup Ct. in Great Depression b/c of court’s hostility to economic reg’n 
(narrow view) and laissez-faire gov’t. J. Roberts upholds minimum wage and labor relations laws, 
broadening Commerce Power to protect Congress ability to decide interests of citizens based on social 
policy goals, i.e. New Deal programs. “Switch in time that saved nine” preserves nine justices on court.  
 Three key decisions broaden CC  
 1) NLRB v. Jones & Laughlin Steel, 1937 
  Facts: vertically integrated steel company doesn’t like nat’l labor relations act.  
  Held: it is the effect on commerce, not the source of the injury, that dictates   
  congressional authority; congress may control anything with a ‘close and   
  substantial’ relation to IC; here, right to collective bargaining ensures overall   
  industrial peace.  
  Critics: court acting as a kind of super-legislature.  

 2) U.S. v. Darby, 1941 
  Facts: Ga. lumber and furniture co. stopped from shipping goods    
  interstate due to labor violations – min. wage, max. hours. 
  Held: federal law is not ltd. by Tenth Amendment as long as means are reasonably  
  related to goal and the activity (labor) has substantial effect IC 
  Also: there is no longer a zone of protected activities for exclusive state control under the  
  Tenth Amendment;  court moves away from categorical approach based on what is  
  production or stage of commerce; new focus on relationship b/w industry and commerce.  
 3) Wickard v. Filburn, 1942 
  Facts: wheat farmer on 12 acres subject to gov’t price fixing and ‘allotment’   
  Held: Congress has power to regulate prices to stimulate commerce. 
  Rationale: farmer is small, but regulation of smaller farms in the aggregate has a  
  big impact on the overall economy; there are some economic issues that   
  require uniformity in terms of regulation.  

21. Civil Rights:  
 Heart of Atlanta Motel, p. 169, 1964 
  Held: in passing Civil Rights Act, Congress had power to regulate    
  availability of hotels for minorities.  
  Test: as long as means are reasonably adapted to the end (the activity    
  regulated and interstate commerce), congressional action is OK.  
 Katzenbach v. McClung (Ollie’s Barbecue) 
  Facts: company’s meat comes from out of state; it refuses to     
  serve blacks in violation of Civil Rights Act;   
  Held: Congress had rational basis for finding that race discrimination in   
  restaurants adversely affects free flow of interstate commerce.  

22. CLUMR: Comstock, Lopez, U.S. v. Morrisson, Raich 
 U.S. v. Comstock, 2010: court upholds statute allowing continued civil commitment of sex  
 offenders with mental illness, even after prison sentence ends, under the Necessary & Proper 
 clause, in light of ….breadth of clause.. history of fed involvement in mental health care in federal 
 prisons… statute’s accommodation of state interests … statute’s narrow scope, and limited 
 number of people affected… gov’t interest in safeguarding public  
 Dissent: powers of Congress are narrow and limited to what is authorized in  
 constitution; States, however, have limitless powers; power to create this statute   
 is not specifically enumerated in constitution; gov’t only has authority to detain   
 during federal crime;   
 U.S. v. Lopez, 1995, invalidates Gun Free School Zones Act; no substantial effect on IC  
 ** Rehnquist redefines CC; three categories Congress may regulate ** 
  1) Channels (Darby, Heart of Atlanta; highways, rivers) 
  2) Instrumentalities; things and persons, vehicles, airplanes 
  3) Substantial Relation b/w activities and IC (NLRB v. Jones & Laughlin Steel) 
  Dissent: commerce depends on educating kids; look at cum. effect of guns in school  
  zones, and rational basis for connection b/w guns and education and IC; “one remove.” 
 U.S. v. Morrisson, 2000, invalidates VAWA/Violence Against Women Act; college rape case. 
  Held: despite voluminous legislative record, no substantial effect on IC. 
  Dissent: gender-related violence has big economic impact on nation. 
 Gonzalez v. Raich, 2005, medical marijuana patients fight gov’t control of pot under CSA. 
  Held: despite de minimis impact of two growers on market, substantial effect on IC is  
  potentially great b/c failure to control locally will impact nation, i.e. Wickard v. Filburn. 
  ** Little supporting proof req’d; just substantial effects, with rational basis review  
  based on legitimate gov’t interest and means reasonably related. 
  One of few cases using N&P clause to justify substantial effects based on idea that  
  regulation of intrastate activity necessary to make interstate regulation effective. 
  Dissent: a great part of federalism is that states can become laboratories for new ideas.  

23. Revival of the Tenth Amendment: some protections still carved out for states 
 N.Y. v. United States, 1992, challenges federal restrictions on low-level radioactive waste. 
  Held: a federal law that imposes a substantial burden on states will be enforced only if  
  Congress clearly indicated it wanted the law to apply to state gov’t activities; in absence  
  of clear power given to Congress in Constitution (such as in Art I.), Congress can  
  encourage states to get rid of waste, but may not compel states to do so. 
  Alternatives for feds: subsidies; attach conditions on receipt of fed funds; give states  
  choice of regulating by fed standards or having fed regs pre-empt state law.  
 Printz v. United States, 1997, cops challenge interim provisions in Brady Act of 1993, forcing 
 local background checks for firearm permits, pressing cops into federal service.  
  1. Text of Constitution silent on issue. 
  2. Use of historical record: absence of early laws forcing states to enforce federal laws;  
  more recent laws are less probative of tradition.  
  Tenth Amend, powers not  delegated to U.S. nor prohibited by it to the States are reserved 
  to the States or to the people; Hamilton: a healthy balance of power b/w states and  
  feds “reduces risk of tyranny and abuse from either front,” p. 229.    
  f. dissent: it’s OK to enlist local officials during an emergency such as military draft;  
  Brady Act is response to epidemic of gun violence. 

24. Taxing and Spending Power: Congress shall have power to lay and collect taxes… power is broader 
than CC, b/c based on wide categories of common defense and general welfare. Other keys: 
 1. Congress gets lots of deference; can place conditions on state receipt of funds (ex: minimum 
 drinking age) but  must be unambiguous, and related to particular national projects or programs. 
  But: conditions can’t go so far that “pressures turns to compulsion” 
 2. Courts reluctant to review congressional action b/c hard to create rules 
 3. Tax or penalty usually must be revenue raising, not punitive. 

25. The Big Three  
 13th – prohibits slavery 
 14th – all persons born or naturalized in U.S. are citizens; also, states (does not say feds) shall not  
  1) abridge the privileges or immunities of U.S. citizens,  
  2) deprive any person of life, liberty, or property w/o due process of law. 
  3) deny any person equal protection of the laws 
  § 5 = Congress has power to enforce article; three takes on §5 meaning: 
   i. power limited to judicially established constitutional violations 
   ii Congress can make preventive remedies to stop future violation 
   iii. Congress may remedy violations that courts might find to be violation of the  
   Constitution based on judgment of Congress about scope of const right. 
 15th – right of citizens to vote shall not be abridged on account of color, race, or previous 
 condition of servitude.