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
1930s?
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
Answers
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
particularized)
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
rights.
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
question.
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
expertise?
• 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.
